R. v. Baker Date:, 2015 BCPC 296

Citation: R. v. Baker Date: 20151027 2015 BCPC 0296 File No: 81744 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES STEVEN BAKER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: R. D. Fox Counsel for the Defendant: D. G. Butcher Q.C. Place of Hearing: Abbotsford , B.C. Dates of Hearing: September 14-15, 2015 Date of Judgment: October 27, 2015

Introduction [ 1 ] The Accused James Steven Baker is charged with providing the Insurance Corporation of British Columbia (ICBC) or its representatives information material to a claim for insurance that he knew or ought to have known was false or misleading, contrary to

section 42.1 (2) (

a) of the Insurance (Vehicle) Act. The offence is alleged to have occurred from December 10 th to 11 th of 2013 in Abbotsford, BC. [ 2 ] It is acknowledged by everyone that on December 10, 2013, sometime around 5:35 a.m., the Accused was the driver of a black Dodge Ram 4x4 pickup truck that was involved in a motor vehicle accident on 64 th Avenue in Surrey, B.C. The Crown asserts that this was a single vehicle accident caused because the Accused was driving too fast for road conditions. The Accused has testified that his accident was the result of his truck being struck by another vehicle.

This is a significant distinction because if the evidence satisfies me beyond a reasonable doubt that the Accused was untruthful in his report to ICBC as to how the accident took place and that he knew or ought to have known that he was being untruthful then the offence is made out. [ 3 ] There are two main reasons to question whether or not the Accused was being truthful to ICBC when he said that the accident was the result of a two vehicle collision and not a single-vehicle collision.

Firstly, this incident was witnessed by the driver of a City of Surrey salt truck, and that person is adamant that there was no other vehicle involved in the accident. Secondly, an examination of the Accused’s vehicle does not show damage in those areas where one might reasonably expect it to be if the accident occurred as he described in his statement.

This second issue is more problematic because no expert accident reconstruction expert was called to support this conclusion, and the question therefore becomes how strong of an inference or conclusion can I as the trier of fact draw from the evidence on this point? [ 4 ] It must be kept in mind that it is not a question of whether or not I believe the Accused. The question is whether or not the Crown has proven all of the elements of the offence beyond a reasonable doubt. That burden of proof remains with the Crown at all times. It never shifts to the Accused.

It is the Crown who must prove the guilt of the Accused to that standard.

Summary of Evidence [ 5 ] On December 10, 2013, the Accused was driving his 2008 Dodge Ram pickup truck from Abbotsford to Surrey where he was scheduled to start work at 6:00 a.m. At around 5:30 a.m. the Accused was driving west bound on 64 th Avenue in Surrey. It had snowed that night and salt trucks were on the road that morning in order to address the icy road conditions that existed.

There is a portion of 64 th Avenue consisting of a series of rolling hills, known as Bose Hill, where the road narrows from being a four-lane highway to become a two-lane highway separated by a painted island lane as one proceeds west down the hill.

It was along this portion of 64 th Avenue that the Accused lost control of his vehicle that morning and ended up off the highway, on the north side, and went down the grade of the side of the road, coming to rest in a field. [ 6 ] The Accused testified that the accident was the result of his being struck by another vehicle which attempted to pass him at the top of the hill. Here is how he described his accident in a signed statement that he gave to ICBC the day after the accident occurred (December 11, 2013): On December 10, 2013 at about 5:30 A.M. I was involved in a motor vehicle accident.

I was on my way to work in Surrey at the time. I was alone in my vehicle, a 2008 Dodge Ram pickup… The roads were slippery and snowy. I was westbound on 64 th Ave. in the 16300 block, somewhere in that area. There is one lane in each direction. I was going 60 KPH. There was a truck or something ahead of me at some distance and a car approaching from behind, but I can’t say how far away as there is a hill just before where the accident happened and I just remember seeing the headlights. The vehicle behind me came up and was passing me on the left. There is a painted median on the center of the road.

The other vehicle was a small dark colour sedan. I think it was black and would guess that it was something similar to a Honda Civic or a Toyota Camry. I just got a quick look before I had to swerve. The other vehicle wasn’t quite past me. The other vehicle was passing me in the center median. I would say his back bumper was by my front tire when he started to come back over into my lane. I braked and the other car started to veer over pretty quick and clipped my front bumper and license plate.

I veered to the left to try and avoid further contact and I started to fishtail for 2 or 3 bumps back and forth and then my truck completely spun around and then ended up going into the ditch on the north side and I think that’s when the tires blew and I ended up with the front end of the truck angled up toward the road. There was no secondary impact.

The other vehicle didn’t stop… I have read this statement and it is true and correct to the best of my knowledge. [ 7 ] In his examination-in-chief at trial, the Accused elaborated on the manner of the contact between his vehicle and the one that he says came into contact with his vehicle. He gave the following answers in response to questions from his counsel: Mr. Butcher: Which lane were you driving in? Accused: I was in the left lane.

So between, let’s say, that light post as a marker and the crest of the hill, it’s hard to see from the photo but there’s a dip in the road, as I was proceeding between those two points, a vehicle passed me on the left hand side, and like I said, at that point the curb did not exist, it was a painted median the width of a driving lane. So a vehicle passed me on my left-hand side in that area and began to overtake me and cut back in front of me. The vehicle hadn’t quite passed me yet. His rear tire would have been somewhere around my front tire. He hadn’t quite cleared before he started to merge back over.

So at that point, I had driven on this road many times going to work, and I knew what was ahead, meaning the hill, the big ditches, and concrete retaining walls, so I knew hitting the brakes I had to turn to avoid colliding with this vehicle. So I had a choice to turn right or left. I chose to turn left because I was worried that if I turned right I would smash into a retaining wall or flip into the ditch and kill myself, so I veered left to try to use that

painted median lane as an escape route. As soon as my vehicle entered that painted median lane, I had no traction or control. I immediately started to slide. At that point I began to go up over the hill, still travelling at roughly sixty kilometres an hour, for my braking, so I’m not sure how much my braking reduced my speed, but I was travelling sixty, hit the brakes, veered into that center lane. I’m now going over the hill and as I reach the crest of the hill and start going downwards, I start to accelerate just due to the slope of the hill. Mr.

Butcher: I’m going to stop you there because I want to ask you some more questions about this vehicle that passed you on the left. Are you able to describe it at all? Accused: Uh, in an approach I saw headlights in my rear view, in my mirrors. As it passed me, it appeared to be a darker coloured sedan size vehicle. It wasn’t, you know, a truck like mine, but it appeared to be somewhat like a sedan sized vehicle. Mr. Butcher: Any idea as to make or model? Accused: I just generally believe it would be something like a Toyota or a Honda, something like an import style. Mr.

Butcher: You’ve told us about that vehicle passing you on the left. What happened after it passed you on the left? Accused: So after it passed me on the left, it began to cut back over to the right and across in front of me. So it was driving, when it passed me on the left, it was driving on that painted median lane. So then it hadn’t quite cleared my vehicle, its rear tire would have been in line somewhat with my front tire, and it began to try to merge back over in front of me. Mr. Butcher: And what happened?

Accused: Well at that point I saw him coming back over and I thought “this guy’s gonna hit me” so I immediately braked and tried to move my vehicle out of the way. Mr. Butcher: Did that vehicle hit you? Accused: Yes. The vehicle’s rear end impacted my truck’s front end. Mr. Butcher: What was your vehicle doing and what was the other vehicle doing at the time of impact? Accused: At the time of impact he was, the other vehicle was still trying to complete the lane change. I guess if you want to call it that, into my lane, and I was hitting the brakes, trying to exit my lane to avoid it. Mr.

Butcher: If I’ve got this right, he’s moving - the other vehicle is moving from left to right, center of the road to side of the road, and you’re moving in the opposite direction? Accused: Correct. Mr. Butcher: Can you describe the impact? Accused: Uh, the impact would have been his rear end, like his rear, I’m assuming his rear passenger corner with roughly the center area of my bumper of the truck as we were both turning, making that angle. Mr. Butcher: How hard was the impact? Accused: Uh, it was a significant enough impact. Mr. Butcher: To do what? Significant enough to do what?

Accused: Significant enough to feel like a jolt in the truck. It’s a very big truck, very heavy duty, and, uh, the impact was felt. Mr. Butcher: What happened to the other vehicle? Accused: Um, as soon as he had cut in front of me, we had the impact. I had gone off into the median. I lost sight of the vehicle because I immediately lost traction in that center lane and I was just focusing on stabilizing my own vehicle, so I lost sight of that vehicle. Mr. Butcher: Do you know what happened to it? Accused: I do not. Mr. Butcher: Mr. Grayson was driving a City of Surrey gravel truck that morning. Accused: Correct.

Mr. Butcher: Did you see him? Accused: I did see him further down the hill. Mr. Butcher: You’re talking about ahead of you? Accused: Ahead of me, yes, to the west. Mr. Butcher: Okay, I think I interrupted you when you were telling us about going towards the crest of the hill.

Accused: Okay, so I hit my brakes, veered left, and I’m in the center painted median of the road which is snow-covered, snowy, icy, and I immediately lose traction, control. I’m slipping and I’m going over the hill as I’m slipping, and then as I began to descend the hill, I begin to pick up speed just due to the natural slope of that hill. Uh, I try to correct, I pump my brakes a few times, I don’t want to lock my tires by slamming on the brakes. I’m trying to keep it straight.

I don’t have control, I feel it slipping and sliding, then I start some big movements to slide back and forth and I try to correct those, and eventually the side to side motion gets so big that I start to spin sideways. So my initial direction was westbound. I begin to slide sideways going down the middle of the road and my vehicle is not pointed northbound. Mr. Butcher: Where were you in relation to the gravel truck, um, when you started to spin sideways? Accused: When I started to spin sideways I would have been very close, I estimate a few car lengths.

I was so focused on trying to keep this truck from spinning and flipping into the ditch. Um, I wasn’t watching the traffic as intently to measure that specific distance, but he was a matter of car-lengths from me. Judge: Car lengths to the west or the east? Ahead or behind you? Accused: Um, I slid sideways for a significant period of time, so it would have been a matter of car lengths, I was facing him as I passed him and then, like. It’s hard to kind of describe it out kind of for you, but let’s say this is Grayson and I’m sliding sideways kind of around him.

So that distance between me and him changes and gets very close. Mr. Butcher: Do you have any control of the vehicle as you’re going - as you’ve just described around him? Accused: No, I had my hands on the wheel, and prior to this, I mean I was trying to do corrections to try to steer, to try to slow down, try to stop, but I couldn’t and as I’m spinning around him sideways I have no control. My hands are still on the wheel, but I have no control. The whole road going down, the whole center is covered in snow and ice and there’s no control. Mr. Butcher: What happens next? Accused: So I continue sliding.

I slide around what would be Grayson’s truck and I continue spinning in a clockwise direction. So now my vehicle spins and I’m facing eastbound as I’m around Grayson’s vehicle. So now I’m facing eastbound and at the same time the momentum of the spin has caused me to drift north across 64 th toward the north side curb. So my vehicle drifts into the curb with my driver’s side front and rear tires. I smash the curb with some force, hop over the curb, and then my vehicle slides down into this ditch and turns me facing southward.

So it spins me southward so my back end of the truck goes down the ditch. [ 8 ] In his statement to ICBC, the Accused made no mention of the presence of a City of Surrey salt truck being present at the time of the collision, aside from a brief reference to there being a “truck or something ahead of” him.

He did not make any mention of sliding past the salt truck before hitting the road, as he did in his testimony at trial. [ 9 ] The Accused testified that after his vehicle hit the ditch, he was able to call the dispatcher at his employer, the Surrey Detachment of the Royal Canadian Mounted Police and report the accident as well as his location and his predicament. That call was placed at 5:44 a.m.

He remained there for about forty-five minutes before two members of the Surrey Detachment arrived. [ 10 ] The Accused’s version of the incident is at odds with that testified to by City of Surrey salt truck driver Kelly Grayson. Mr. Grayson testified that on that morning, at about 5:35 a.m. he was operating his truck on 64 th Avenue in the Bose Hill area, applying salt to the road, and was proceeding west. He described this incident as follows: Mr.

Grayson: I was westbound on 64 th Avenue in Cloverdale, about the 16200 block of 64 th heading west down the hill from, they call it Bose Hill because of the old Bose farm that’s up top of the hill, and, uh, there was no traffic that morning, at that time of the morning, and as I was approaching the crest of the hill, I noticed a large truck come, come up behind me at a high rate of speed.

As I crested the hill to proceed down I tapped my brakes to test the surface of the road to make sure that it wasn’t icy and also so that I could select my proper gear for the hill on the way down, and as I proceeded down the hill approximately halfway down the hill, the truck passed me in what I call the “suicide lane”, you could also call it the painted island, um, the truck passed me, and as it passed, it came back, it tried to re-enter the travel lane, lost control, spun about approximately a hundred and eight degrees, hitting the curb at the bottom of the hill.

With the impact of the hit, the back end of the truck came up onto the grass and then rolled backwards down into a farmer’s field. [ 11 ] Mr. Grayson testified that the center island (or “suicide lane”) was completely covered by snow. He also testified that the black truck remained upright at all times. [ 12 ] Mr. Grayson felt that it would not be safe to stop for the driver. From the nature of the accident that he had witnessed, he did not feel that it was necessary for him to stop and render first aid. He asked his dispatcher to call police and report the accident.

He passed by the scene of the accident later that morning and saw the truck in the field. Police were present at that time. [ 13 ] Mr. Grayson was certain that this was a single vehicle accident. He testified as follows: Mr. Fox: Now besides your salt truck and this other black pickup that you’ve described, were there any other vehicles at the scene when the accident happened? Mr. Grayson: No. Mr. Fox: Did that black pickup collide with any other object prior to losing control?

Mr. Grayson: No. Mr. Fox: Did that pickup come into contact with your truck in any way? Mr. Grayson: No. [ 14 ] Mr. Grayson agreed that there were other vehicles on 64 th Avenue before the collision occurred, but he testified that he did not see any other vehicle come into contact with the Accused’s truck at the time of the accident. In cross-examination, there was some confusion on Mr. Grayson’s part about precisely where on Bose Hill the Accused passed Mr. Grayson’s salt truck.

In a statement he gave to police, he said that this took place at the bottom of the hill, but in his testimony at trial he said that this took place in the middle of the hill. [ 15 ] Both the Accused and Mr. Grayson were asked to view a video from a traffic camera located at the intersection of 168 th Street and 64 th Avenue. This video shows that at that location, about five blocks east of where this accident occurred, other vehicles were heading westbound on 64 th Avenue at around the same time that the Accused’s vehicle proceeded through.

This was the last video camera which these vehicles passed prior to the Accused’s accident. [ 16 ] Daryl Cote is an adjustor for ICBC and she was the person who took the Accused’s statement on December 11, 2013. She described the procedure for the taking of the statement, in which she asked the Accused questions, received his responses, typed the statement into a computer, read the statement to him, asked him if any corrections were required and then had him sign the statement. When asked if the Accused gave more details about the accident than those contained in the statement, Ms. Cote said that he did not.

In giving his evidence, the Accused said that he provided much more information than was set out in the statement that he signed. He testified that the statement he signed was accurate, and that Ms. Cote had accurately, but not fully, summarized what he had told her. [ 17 ] On December 11, 2013 the Accused’s vehicle was examined on the premises of Craftsman Collision in Abbotsford by ICBC Special Investigator John Porter. Mr.

Porter took 29 photographs of the vehicle and he was instructed to review the vehicle for any evidence of damage that might have resulted from a collision which took place in the manner that the Accused had described. Mr. Porter testified that he did not find any indication of damage to the left bumper, to the left quarter-panel or to the left headlight of the vehicle. He testified “I saw nothing that I would associate with a moving collision with a motor vehicle.” His photos generally support this testimony.

In a photo taken of the truck’s left front bumper (taken from the side), the bumper appears to be undamaged. There is a mark on the corner of the bottom of the bumper just to the left of a fog light at the bottom of the bumper. The front license plate is missing and there appears to be a smear of some kind between the places where two bolts would normally hold the license plate. Mr. Porter gave evidence as to his examination of the vehicle, but he was not qualified to give any sort of expert opinion evidence and did not offer any such opinion.

He testified only as to his own observations as well as offering an explanation of what was in the photographs that he had taken. Position of the Parties 1. The Crown [ 18 ] On behalf of the Crown, Mr. Fox argues that the evidence of the Accused is not credible for a number of reasons. Firstly, he says that it defies common sense, logic and the laws of physics that the Accused’s vehicle would be struck on the left (driver’

s) side by a lighter vehicle and that this would cause it to lose control in such a manner that it spun out of control passing Mr. Grayson’s salt truck on the left side. Secondly, there is no explanation for the disappearance of the vehicle which the Accused says he struck his truck. Mr. Fox notes that Mr. Grayson testified that he did not see any other vehicle in between his and the Accused’s vehicle and he did not see a second vehicle pass him prior to when, or at the time that the Accused’s vehicle entered the ditch. Third, Mr.

Fox argues that the Accused’s vehicle shows no damage of being struck from the left and that the absence of the truck’s license plate and other markings on the front of the truck’s bumper are not corroborative of an accident as described by the Accused. He also argues that it is not credible to believe that, after being struck on the left side of his vehicle, the Accused would continue to steer his vehicle in that direction. [ 19 ] Mr. Fox argues that the Accused’s evidence should not be believed and that it does not raise a reasonable doubt. He states that the evidence of Mr.

Grayson proves, beyond a reasonable doubt, that the Accused was not being truthful when he told ICBC that his truck was struck by another vehicle, and that he obviously knew that this was so. [ 20 ] On behalf of the Accused, Mr. Butcher argues that Mr. Grayson’s evidence is not determinative of the issue before the court because the collision that the Accused told ICBC about occurred behind Mr. Grayson, who was unable to observe it due to having his view restricted to what he could see in his side mirrors, as well as by the hilly terrain. He also argues that Mr.

Grayson’s evidence is not objective and points to parts of Mr. Grayson’s evidence in which the witness was confrontational, argumentative and stubborn. He also notes inconsistencies between the witness’s evidence in his initial statement to police and his testimony at trial, including different versions of where on Bose hill his vehicle was passed. Mr. Butcher argues that it would be dangerous to convict the Accused on Mr. Grayson’s evidence. [ 21 ] Mr.

Butcher also argues that the absence of any accident reconstruction evidence prevents the court from drawing any conclusions about the absence of damage to the left side of the Accused’s vehicle. He argues that the Accused should be believed because of the absence of any motive to fabricate and because his evidence cannot be recent fabrication. At the very least, he argues, the Accused’s version of events is a reasonable possibility and as such, the Accused is entitled to the benefit of any doubt. Applicable Law 1. Elements of the Offence

[22]

Section 42.1 (2) of the Insurance (Vehicle) Act makes it an offence for anyone to provide ICBC or its representatives with“information material to a claim that the person knew or ought to have known was false or misleading, whether the information isrequired… or volunteered”. The elements of this offence may be summarized as follows: 1. The giving of information that is material to an insurance “claim” (as that term is defined in

section 42.1 (1) of the Act) 2. Knowledge on the part of the person giving the information that the information is false or misleading or is such that an honest personwould reasonably have known under the circumstances that it was false. [23] The

section makes it an offence for someone to give information material to a claim that the person knew “or ought to haveknown” was false. The phrase “or ought to have known” has been judicially construed in other contexts to adopt a standard of what anhonest person would reasonably know under the circumstances (see, for example White v.

White [2001] 2 All ER 43 at 49-50) and this isa fair construction of that phrase in this legislation, provided that this should not in any way be construed so as to lessen the burden ofproof that rests with the Crown to prove the mental element (the “mens rea”) of the offence. [24] In this case it is not in issue that the Accused provided “information”, as that term is used in this section, to ICBC that wasmaterial to a “claim” as defined in the Act.

The issue is whether or not the Crown has proven beyond a reasonable doubt that the Accusedknew or ought to have known that the information was false or misleading. 2. Reasonable Doubt [25] The Crown is required to prove all of the elements of this offence beyond a reasonable doubt. In R. v. Lifchus (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada discussed the meaning of the phrase “reasonable doubt.” The court said that areasonable doubt is a doubt based upon reason and common sense. It is not based upon sympathy or prejudice. It must be logicallyconnected to the evidence.

It does not require proof to an absolute certainty, nor is it an imaginary or frivolous doubt. It requires morethan the belief that an accused is probably guilty. [26] In R. v. Bachman 2013 BCSC 1028, the Honourable Mr. Justice Brown explains the definition of “reasonable doubt” further, inparagraphs [74] to [79] of that decision. As he states in his reasons for judgement: [78] …Reasonable doubt must connect logically to the evidence, based on reason and on common sense. A reasonable doubt cannot befrivolous or unduly speculative.

The burden of proof the Crown carries applies to the evidence as a whole, not to individual items ofevidence. [79] In the range of levels of doubt that lie between probable guilt and absolute certainty of guilt, reasonable doubt lies much closer toabsolute certainty of guilt than it does to probable guilt… 3. Credibility [27] Where there is conflicting evidence in a case such as this, the law requires me to instruct myself according to the followingdirections set out by the Supreme Court of Canada in R. v.

D.W. (SCC), [1991] 1 S.C.R. 742 at p. 757, which Iparaphrase as follows: First, if I believe evidence which raises a defence or negates an essential element of the offence, then I must acquit. Second, if I do not believe the evidence raising a defence or negating an essential element of the offence, but I am left in reasonabledoubt by it, I must acquit. Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myselfwhether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt. [28] In R. v.

C.W.H. (1992) (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), the late Judge Wood, then Mr. JusticeWood, gave the following further advice: “If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” [29] There are a number of considerations which a court can apply when determining issues of credibility. Firstly, a court mayconsider evidence which pertains to the honesty and forthrightness of the witnesses.

Evidence of character, background or otherbehaviour that bears on a person's honesty may be considered, such as a criminal record for crimes of dishonesty, or other dishonestconduct proven, such as false statements made to police in the course of the investigation. [30] A court may also consider the demeanour of a witness while that witness gives testimony, but I concur with those who believedemeanour to be one of the least accurate barometers of credibility. [31] The credibility of a witness may be assessed by its internal consistency, which is by the presence or absence of anycontradiction within itself.

It may also be assessed by its external consistency, which is by the presence or absence of any contradictionwith the remainder of the evidence.

4. The Absence of Expert Accident Reconstruction Evidence [32] In this case, the Crown has invited me to infer or to conclude, from the absence of damage to the left side of the Accused’svehicle, that the Accused’s vehicle was never struck in the manner that the Accused alleges.

Counsel for the Accused takes the positionthat, in the absence of any expert opinion evidence, I cannot draw such a conclusion. [33] An inference is defined in Watt’s Manual of Criminal Evidence as “a deduction of fact that may logically and reasonably bedrawn from another fact or group of facts found or otherwise established” in the evidence presented.

The author goes on to note that “it isa conclusion that may, not must, be drawn from the circumstances” but that it does not change either the burden of proof or the standardof proof. [34] Even where there is no expert opinion on an issue, a trier of fact can use matters of common knowledge and accumulated lifeexperience in making findings of fact. This is sometimes referred to in case law as “common sense”, even though that term may lack aprecise meaning. It is a concept which can be problematic because it can invite intellectual dishonesty if one is not careful.

In a criminalcontext, there may be things which appear to fall within the realm of common sense to the Crown, but not to the defence or vice versa.The temptation can present itself to apply this label to whatever accords with one’s own views as a shortcut, while ignoring contraryviews. On the other hand, the law of evidence cannot be so pedantic as to require expert proof of basic matters. As Mr. Justice Brownstated in R. v.

Bachman, supra, common sense is one of the things that one must apply in determining whether or not reasonable doubtexists. [35] As the authors point out in McWilliams on Evidence, 5th Edition, in

section 26:20:20, juries are routinely instructed to applytheir “individual and collective common sense and judgement” in their decision making function. The authors note that “allowable usesof common sense, common knowledge and experience” have emerged in criminal trials in a variety of situations and that there is noexhaustive list of the parameters of such application. [36] One example of this is found in R. v. Kim 2011 BCCA 127, where the trial judge drew a conclusion about whether or not thescraping of a key on the door of a car would be audible.

On appeal, it was argued that in coming to this conclusion, the trial judge had“embarked on inappropriate scientific analysis”. This argument was rejected by the BC Court of Appeal, who held, at paragraph 19, thatthe trial judge was permitted to make what it termed “a common sense assessment”. [37] In R. v. R.A.N. (2001) 2001 ABCA 68 , 152 C.C.C. (3d) 464, the Alberta Court of Appeal held that expert evidencewas not required for a trial judge to conclude that the onset of bedwetting and other behavioural problems for a 10 year old child wasindicative of some trauma in the child’s life. [38] In R. v.

Rogers (2005) 2005 BCCA 377 , 198 C.C.C. (3d) 449 the BC Court of Appeal held that expert evidence wasnot required to establish that emotions are strained following separation in a spousal relationship. [39] These cases are also in keeping with the general principle that expert witnesses should only be permitted to give an opinionabout matters upon which lay persons would be unlikely to form a correct opinion. (R. v. McMillan (1975) (ON CA), 23C.C.C. (2d) 160 (Ont.

C.A.); affirmed at [977] 2 S.C.R. 824.) Where a reasonable conclusion can be reached by the trier of fact basedcommon knowledge and life experience, a court can permissibly arrive at such a conclusion. Analysis [40] In applying the law to the evidence presented I must first determine whether or not, based on the three stage analysis set out bythe Supreme Court of Canada in R. v. D.W., I accept the evidence of the Accused as to how this accident occurred. [41] There is one piece of independent evidence that is somewhat corroborative of the Accused’s version of events.

A recording captured by a video camera of the intersection of 64th Avenue and 168th street shows that shortly before this accident occurred, andshortly after the Accused’s vehicle drove through this intersection, a dark sedan followed in the same direction, and that this vehicle canbe said to fit within the general description that the Accused gave of the vehicle that struck him. [42] There are three aspects to the independent evidence which contradict the Accused’s version of events. Firstly, there is theevidence of Mr. Grayson, in which Mr. Grayson is clear that this was a single vehicle accident.

Secondly, there is the absence of anydamage to the left side of the Accused’s vehicle, specifically to the left quarter panel, or the outside of the bumper. What damage there isappears minimal and is located on the front of the bumper in portions of it that would not have been struck by another vehicle cuttingacross the path of the truck from the left side. The removal of the license plate, as described by the Accused, would require theAccused’s vehicle to be at or nearly at a right angle to the other vehicle, something that does not seem possible.

Lastly, the absence ofany mention by the Accused of his passing the City of Surrey salt truck, while not having control of his vehicle at the time of theaccident is troubling. The salt truck features prominently in the Accused’s version of what took place. The Accused had testified thatafter his vehicle was struck, it slid from behind and to the front of the salt truck.

No mention is made about the salt truck in the statementwhich the Accused gave to ICBC, other than his mentioning that there was a truck in the distance ahead of him prior to the accident. [43] In a criminal trial, a judge may accept all of a witness’s evidence, some of a witness’s evidence of none of a witness’s evidence.It is somewhat problematic that Mr. Grayson, in giving his evidence, was not entirely dispassionate, sometimes choosing to debatecounsel in cross-examination, other times steadfastly sticking to assertions, even when shown to be incorrect.

There are inconsistenciesin his evidence that have been pointed out by the Accused’s counsel. There are two significant facts on which there is no inconsistency inhis evidence and on which he is not contradicted by any independent evidence: (1) that the Accused’s vehicle lost control after it hadpassed his vehicle and (2) that there was no second vehicle which caused or contributed to the Accused’s accident (or that was on that particular

section of 64th Avenue at the time of the accident.) While there may be other collateral details that Mr. Grayson is or may bemistaken about, there is nothing in the evidence which suggests that he is mistaken about these two things. There is also nothing in theevidence which suggests that he is falsely asserting these things.

[ 44 ] The absence of damage to the left side of the Accused’s vehicle give rise to a concern about his evidence that the front of his vehicle was clipped by another vehicle, causing him to lose control of it and causing him to veer to the left and pass Mr. Grayson’s salt truck on the left side. It does not accord with logic and common sense that there would be no damage to the left front of the Accused’s vehicle and specifically to his left front quarter panel, his left headlight or the left side of his bumper. The Accused described this impact as a significant jolt.

The suggestion that a collision as described by the Accused would have torn off the vehicle’s license plate also defies logic. It is difficult to imagine how this could have occurred without the Accused’s vehicle being at or nearly at a right angle to the other vehicle. [ 45 ] It is also troubling that the Accused omitted to mention in his statement the presence of the City of Surrey salt truck, or that the collision caused his vehicle to slide from behind the salt truck, pass it on the left side, and then slide back in front of it before hitting the ditch.

This was a significant detail that was not mentioned in statement which the Accused reviewed and signed. [ 46 ] All of these considerations lead me to the conclusion that the evidence of the Accused as to what took place at the time of the accident cannot be accepted. It cannot even be said that, while not credible, this version of events might be true. The combination of the evidence of Mr. Grayson, the absence of vehicle damage and the other factors mentioned preclude acquittal on the first or second parts of the test in R. v.

D.W. [ 47 ] I turn next to considering whether, on the evidence that I do accept, I am satisfied that the Crown has proven all of the elements of the offence beyond a reasonable doubt. I am satisfied, beyond a reasonable doubt, that on December 11, 2013, the Accused provided information to ICBC that was material to a claim, as that term is defined in

section 42.1 of the Insurance (Vehicle) Act . I am also satisfied, beyond a reasonable doubt, that certain material portions of that statement were false. Specifically, the representation that another vehicle caused the accident referred to in the statement is false. I accept the evidence of Mr Grayson that there was no vehicle involved in this accident other than the Accused’s. I find that the accident occurred in the manner described by Mr. Grayson. [ 48 ] I also find that when the Accused gave the information that he gave to the ICBC adjuster, he knew that material portions of the statement were false.

Specifically, he knew that there was no second vehicle which struck him and which was the cause of his accident. [ 49 ] The Crown has proven all of the elements of this offence beyond a reasonable doubt and accordingly I find the Accused guilty of the offense set out in court one of the information. Dated at the City of Abbotsford, in the Province of British Columbia, this 27 th day of October, 2015. __________________________________________ (The Honourable Judge K. D. Skilnick)