Her Majesty the Queen - v. -, 2016 SKPC 64

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 064 Date: May 2, 2016 Information: 24517510 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jacob David Ross Appearing: Mr. Luke Coupal For the Crown Mr. Jonathon Stockdale For the Accused JUDGMENT S.I. ROBINSON , J [ 1 ] Jacob David Ross of La Ronge District, Saskatchewan was charged that he did on August 24, 2015, at La Ronge District, Saskatchewan: a.

Having the control of a vehicle, to wit, a truck that was involved in an accident with Josephine McKenzie at Highway 2, with intent to escape civil or criminal liability, fail to stop his vehicle, give his name and offer assistance to Josephine McKenzie, an

injured party who appeared to require assistance, contrary to subsection 252(1.2) of the Criminal Code ; and b. While his ability to operate a motor vehicle was impaired by alcohol, operate a truck and thereby cause bodily harm to Josephine McKenzie contrary to subsection 255(2) of the Criminal Code . The Evidence [ 2 ] On the evening of August 24, 2015, a truck driven by the accused collided with a bicycle ridden by one Josephine McKenzie.

The collision happened at an intersection where Highway 2 running north into La Ronge is crossed by a gravel road that connects two parcels of the Lac la Ronge Indian Band’s lands—Bigstone Reserve to the west and 101 Reserve to the east. The accused was coming from Bigstone Reserve intending to make a left turn to proceed north on Highway 2. Ms. McKenzie was riding her bicycle south on Highway 2 intending to continue south through the intersection. [ 3 ] The accused left the scene soon after the collision occurred.

He did, however, come into the La Ronge RCMP detachment a week later to give two separate video-taped statements regarding his involvement in the matter. In his statements, he said that on the evening in question, at around 10:30 p.m. or 11:00 p.m., he was driving a Chev truck with one Donovan Roberts as his passenger. He was coming from Bigstone Reserve to turn left onto Highway 2 when a bicycle came from his left. He did not see this bicycle in advance as he was blinded by the lights of an oncoming vehicle shining into his eyes.

He only got a glimpse of the bicycle when it hit the driver’s side of his truck’s front bumper with a “boom”. He then rolled down his truck window and asked the cyclist, “Are you okay?” At about this time, it seems, another motor vehicle pulled up beside him. He then left the scene without getting out of his vehicle. [ 4 ] In his first video-taped statement to police, the accused told the interviewing officer that he had been drinking on the day before the collision and had woken up hungover at around 10:00 a.m. He then started drinking again at around 2:00 p.m.

He said he was not drinking fast but had five or six drinks of hard liquor while playing slot machines (presumably at one or more of La Ronge’s bars). In describing his condition, he told the officer, “I was pretty much highly intoxicated.” Further, when asked why he thought he should not have been driving, he replied, “Because I was intoxicated. That’s why.” He elaborated by describing his balance as “a little staggering”. [ 5 ] One Don Bird testified for the Crown. He said that he and his wife Nora Bell were driving home from town when they came across the collision scene.

He saw a truck backing up across Highway 2 in a westerly direction. He also saw a female person on the paved portion of the highway. He turned and parked his own vehicle on the Bigstone Reserve road, and he and his wife then got out. As his wife was attending to the female person on the highway, he went to talk to the driver of the vehicle that had been backing up. But that driver left before he could talk to him. [ 6 ] Nora Bell also testified for the Crown. When she and her husband Don Bird arrived on the scene, she saw that there was a bicycle and a person on the highway.

The bicycle was in the middle of the highway, while the person appeared to be crawling away from the bicycle towards the north-west corner of the intersection. She told her husband to stop, and they got out of their vehicle to assist. She found that the female person on the road, whom she did not immediately recognize, was complaining that her head hurt. The female was also trying to stand up and walk but was unable to do so. [ 7 ] Nora Bell also observed a truck backing up across Highway 2. The driver of that vehicle rolled down his window and asked the injured female, “Are you okay?

Are you okay?” He did not, however, get out of his vehicle but left when Don Bird went to talk to him. [ 8 ] Constable Blair de Bruin testified for the Crown. She had attended at the scene shortly after the collision. By the time she arrived, others were helping Josephine McKenzie off the road. She observed that Ms. McKenzie was limping and had blood on the back of her head. Constable de Bruin was able to take a photograph of Josephine McKenzie’s bicycle (Exhibit P-4), which photograph shows one handlebar badly bent.

Constable de Bruin was also able to observe blood stains and some debris near the centre line of Highway 2 (marked on diagram Exhibit P-7). [ 9 ] Josephine McKenzie testified for the Crown. She said that on the night in question, she was riding her bicycle south on Highway 2, staying to the right of the white line separating the main traffic lane from the shoulder. As she was passing the Bigstone Reserve access road, she was knocked off her bicycle by a vehicle . She had not seen the vehicle in advance but only saw it when she crossed the intersection and the front bumper of the truck struck her.

She said she was “in the middle of the road” when she was struck. She was not wearing a bicycle helmet, and, as she put it, “I banged my head pretty good.” The driver of the vehicle stopped long enough to ask if she needed help, but then he was gone. [ 10 ] Josephine McKenzie testified that she had been drinking beer up until a half hour or hour before her collision with the truck.

Initially, she said that she had had “about three,” but agreed on cross-examination that she probably had more than three beer and as many as six. [ 11 ] Significantly, Josephine McKenzie said that her bicycle was not fitted with lights. She thought her bicycle had a reflector saying, “I think there’s one in the middle.” However, the RCMP photograph of Ms. McKenzie’s bicycle (Exhibit P-4) shows no such reflector. [ 12 ] Josephine McKenzie was injured as a result of the collision. When she was taken to the hospital, she received four stitches to a cut on her head.

Migraine headaches that she had suffered from previously have become worse since the collision.

[13] Information concerning the collision was supplied to one Constable Doug Green, a collision re-constructionist. ConstableGreen did not testify at trial, but written notes prepared by him were admitted into evidence as part of the defence’s case by agreementbetween Crown and defence: Information supplied to me suggests a very low speed on the vehicle with the seven or eight feet of skid marks on the edge of theroadway. There’s very little useful scene data and evidence that can be used to help with the investigation. [14] The accused did not testify at trial.

The only defence witness was one Donovan Roberts, aged 17, who had been theaccused’s passenger when the accused’s truck collided with Josephine McKenzie. Donovan testified that on the evening in question hewas sober. He and the accused were driving from Bigstone Reserve to La Ronge to pick up Donovan’s sister-in-law at a residence onCook Crescent in La Ronge. When they got to Highway 2, the accused stopped his truck, looked both ways and then pulled into theintersection about five feet or less. Donovan then noticed a bicycle coming and told the accused to stop.

The accused stopped, but thebicycle ran into their truck. The accused then backed his truck up immediately. [15] Donovan Roberts saw the victim get up and noticed that she was holding her right leg. He did not comment on how long heand the accused stayed at the scene. His evidence indicates they continued on to his sister-in-law’s place on Cook Crescent. [16] When questioned about the accused’s consumption of alcohol, Donovan Roberts said there was nothing unusual about theaccused’s driving. He also said the accused was walking normally and was not slurring his words.

But he could smell alcohol on theaccused, and the accused said to him that he was “buzzing” from what he had had to drink. Failing to Stop [17] Subsections 252(1), 252(1.2) and 252(3) of the Criminal Code read: 252.

(1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in anaccident with (

a) another person, (

b) a vehicle, vessel or aircraft, or (

c) in the case of a vehicle, cattle in charge of another person, and with intent to escape civil or criminal liability fails to stop his vehicle, vessel or, if possible, the aircraft, give his or her name andaddress and, where any person has been injured or appears to require assistance, offer assistance. 252.

(1.2) Every person who commits an offence under subsection (1) knowing that bodily harm has been caused to another personinvolved in the accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. 252.

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, asthe case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, inthe absence of evidence to the contrary, proof of an intent to escape civil or criminal liability. [18] Although the accused did stop his vehicle briefly after his truck collided with Josephine McKenzie’s bicycle, I find theevidence before me clearly establishes that he did not leave his name and address and did not offer any assistance to JosephineMcKenzie.

I also find that it should have been readily apparent to the accused that Josephine McKenzie required assistance of somekind. I also find that there is no evidence to rebut the presumption set out in subsection 252(2) of the Criminal Code that the accusedhad an intention to escape civil or criminal liability. I therefore have no hesitation in finding him guilty of an offence under subsection252(1) of the Criminal Code. [19] I must also determine whether the Crown has established beyond a reasonable doubt that the accused knew that bodily harmhad been caused to Josephine McKenzie.

If knowledge of bodily harm is established, then the accused is liable to the more seriouspenalty set out in subsection 252(1.2). [20] I find that Josephine McKenzie did indeed suffer bodily harm. She had a cut to her head that required stitches and headachesthat have persisted over a long period of time. Her injuries were more than transient or trifling in nature. [21] The accused did not stay at the scene of the collision long enough to determine the nature of Josephine McKenzie’s injuries. But can I find that the accused had legal knowledge of the bodily harm to Ms.

McKenzie on the basis that he was wilfully blind as to hercondition? [22] In the Ontario Court of Appeal case of R v Duong, (ON CA), [1998] OJ No. 1681, Doherty, JA, afterreferring to the Supreme Court of Canada cases of R v Sansregret (1985), (SCC), 18 CCC (3d) 223 and R v Jorgensen(1995), (SCC), 102 C.C.C. (3d) 97 wrote:

These authorities make it clear that where the Crown proves the existence of a fact in issue and knowledge of that fact is a component ofthe fault requirement of the crime charged, wilful blindness as to the existence of that fact is sufficient to establish a culpable state ofmind. Liability based on wilful blindness is subjective. Wilful blindness refers to a state of mind which is aptly described as "deliberateignorance" (D. Stuart, Canadian Criminal Law, 3rd ed. (1995) at p. 209).

Actual suspicion, combined with a conscious decision not tomake inquiries which could confirm that suspicion, is equated in the eyes of the criminal law with actual knowledge. Both are subjectiveand both are sufficiently blameworthy to justify the imposition of criminal liability. [23] The accused heard a “boom” sound at the time of the collision, indicating a significant impact. He also would have seenJosephine McKenzie lying on the highway. He had to have known he had hit either a pedestrian or a cyclist. The accused fled the scenebefore he could know what injuries Ms.

McKenzie had, but I must conclude that he was wilfully blind to what those injuries were. I thusfind that knowledge of Ms. McKenzie’s bodily harm must be ascribed to him. He is guilty of his charge under subsection 252(1.2). Impaired Causing Bodily Harm [24] If the accused is to be convicted of his charge under subsection 255(2) of the Criminal Code, the Crown must first prove thathis ability to operate a motor vehicle was impaired by alcohol within the meaning of paragraph 253(1)(

a) of the Criminal Code. [25] The test for determining impairment within the meaning of paragraph 253(1)(

a) was set out in R v Stellato, (ON CA), [1993] OJ No. 18 where Labrosse, JA at para. 14 stated: In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [26] Here, the only significant evidence of the accused’s impairment was his own admission given to Constable Blair de Bruin thathe had been intoxicated at the time his truck collided with a bicycle. This admission was made a week after the events giving rise to hischarge.

The accused had come to the RCMP station voluntarily to confess to his involvement in the matter and was, it seems, feelingguilty about how he had acted. [27] It is somewhat tempting to equate the accused’s admissions as proof that his ability to operate a motor vehicle was impairedwhen he collided with Josephine McKenzie.

But in the absence of something more, I do not think his admissions are sufficient to provethe Crown’s case. [28] Set against the accused’s admissions is the evidence of Donovan Roberts who testified that although he could smell alcoholon the accused, the accused was walking normally and was not slurring his words. Further, Mr. Roberts said there was nothing unusualabout the accused’s driving. [29] I do not consider the collision itself as evidence of impairment.

While a collision did occur, it is quite plausible that nodriver, either sober or intoxicated, would have been able to see a bicycle travelling down a highway without lights on a dark night. Thisis especially true given the statement of the accused to Constable Blair de Bruin that his vision was compromised by the lights ofoncoming traffic. [30] The accused admissions regarding drinking and being intoxicated no doubt establish that he had been consuming alcohol. And perhaps they point to some level of impairment.

But they fall short of establishing that his ability to operate a vehicle was impairedby alcohol. [31] Looking at all the evidence available to me, I find the Crown has not proven beyond a reasonable doubt that the accused’sability to operate a vehicle was impaired by alcohol. I therefore find him not guilty on his charge under subsection 255(2) of theCriminal Code. [32] If I had found that the accused’s ability to operate a vehicle was impaired by alcohol, I would necessarily have had todetermine whether that impairment caused bodily harm to Josephine McKenzie.

On the evidence before me, I would not be able tomake that determination. It appears that the proximate cause of the collision between the accused’s truck and Ms. McKenzie’s bicyclewas the fact that Ms. McKenzie was driving her bicycle down a highway in the dark without using any lights or reflectors. There wasno evidence to suggest that the accused’s driving as he pulled off of the Bigstone Reserve road onto Highway 2 caused the collision. So,even if I had found the accused to be impaired within the meaning of paragraph 253(1)(

a) of the Criminal Code, I would have found himnot guilty of a charge under subsection 255(2). [33] I wish to thank both Mr. Coupal and Mr. Stockdale for their helpful submissions. ____________________________________

S.I. Robinson, J