R. v. Aujla Date:, 2011 BCPC 58

Citation: R. v. Aujla Date: 20110308 2011 BCPC 0058 File No: 83590 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GURDEEP SINGH AUJLA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: J. Dickie Counsel for the Defendant: P. Riddell Place of Hearing: Port Coquitlam, B.C. Dates of Hearing: February 9 and March 1, 2011 Date of Judgment: March 8, 2011 A corrigendum was released by the Court on March 10, 2011; the corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] The accused, Gurdeep Singh Aujla (“Mr. Aujla ”), faces charges of: (

a) having care or control of a motor vehicle while his ability to operate the same was impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code ; and (

b) driving in a manner that is dangerous to the public, contrary to s. 249(1) (

a) of the Criminal Code . [ 2 ] Those charges appear as counts 1 and 3, respectively, on Information 83590-1, sworn on December 10, 2009. The Crown is proceeding summarily on them. The charges arise in respect of an incident that is alleged to have occurred on or about September 26, 2009.

[3] Crown counsel advised the court at the commencement of trial that it is not proceeding on count 2 — a charge of refusing tocomply with a breath demand. That charge did not occupy any of the court’s time during the trial and at the conclusion of these reasons Ishall formally pronounce an acquittal of Mr. Aujla on count 2. [4] As is his right, Mr. Aujla did not testify in his own defence or otherwise call defence evidence at the trial of counts 1 and 3. Likeany accused person, he is presumed innocent.

Convictions may only be entered against him on those charges if the Crown succeeds inproving all of the essential elements of the subject offences against him beyond a reasonable doubt. [5] Certain facts are not in contention. For example, Mr. Aujla does not deny that he had care and control of, and indeed operated,the green pickup truck (the “Pickup”) in which he was pulled over, as sole occupant, during the early evening hours of September 26,2009.

Neither does he deny that he intended to have care or control of and operate the Pickup at that time, or that the Pickup is a motorvehicle for the purposes of s. 253(1)(

a) of the Criminal Code. [6] Similarly, identification is not in issue. That is to say, Mr. Aujla does not deny that it was he who had care and control of, andoperated, the Pickup on the offence date as it travelled from the Cape Horn Interchange, eastbound along the Lougheed Highway, thenonto Pitt River Road, and then through several residential streets leading into central Port Coquitlam where he was finally stopped bypolice, observed all the while by Crown witness Marcel Nikodym (“Mr. Nikodym”). WHAT THE CROWN MUST PROVE Impaired Driving [7] The actus reus of the impaired driving charge that Mr.

Aujla faces under count 1 of Information 83590 is the act of having careor control of a motor vehicle while his ability to operate the same was impaired, in this case, by alcohol. [8] Impairment by alcohol is proven by evidence of indicia of such impairment. Such indicia commonly emerge from witnesstestimony attesting to the smell of alcohol coming from the breath of the accused coupled with erratic driving, unsteady gait, slurredspeech and so forth.

Provided the evidence persuades the court beyond a reasonable doubt of impairment, to any degree, then proof ofthe actus reus of the offence will have been made out: R. v. Stellato, (ON CA), [1993] O.J. No. 18 at para. 14 (C.A.)(QL), aff’d (SCC), [1994] 2 S.C.R. 478 at para. 14. [9] The mens rea, or mental element, of the impaired driving offence in this case is the intention to voluntarily consume liquor. Dangerous Driving [10] The actus reus of the offence of dangerous driving is, in fact, codified in the language of s. 249(1)(

a) itself: see, for example, R.v. Beatty, 2008 SCC 5 , [2008] 1 S.C.R. 49 and, earlier, Peda v. R., (SCC), [1969] S.C.R. 905. It is an offenceunder that

section to drive in a manner that is dangerous: “... having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is beingoperated and the amount of traffic that at the time is or might reasonably be expected to be at that place”. [11] The focus of inquiry under s. 249(1)(

a) is the manner of operation of the motor vehicle and not the consequences of the same. Thus, while proof of the occurrence of an accident, or injury, or death, or other such resulting event may be evidence suggestive ofdangerous driving, it is neither conclusive on the point nor is it essential to secure a conviction: R. v. Mueller, [1975] O.J. No. 1190(C.A.) (QL). [12] The mens rea element of the offence is complex.

Of course, where objective evidence of dangerous driving is accompanied bycredible evidence that a driver had a positive intention to drive in a manner that put the public at risk, there is little room for argumentthat the mens rea element has been made out. But where there is no evidence of a positive intention to drive in a manner that ishazardous to others, a finding of the required mens rea involves more subtle considerations, some of them objective.

The “modifiedobjective test”, as restated by the majority in Beatty, is as follows: “The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied bythe required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, includingevidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care thata reasonable person would observe in the accused's circumstances.

Moreover, if an explanation is offered by the accused, then in order toconvict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and ofthe danger involved in the conduct manifested by the accused.” (at para. 43. See also, R. v. Hundal, (SCC), [1993] 1S.C.R. 867) [13] The cases show that where the driving in question is shown to be objectively dangerous, then — as is typically the case withgeneral intent offences — the necessary mens rea can be inferred from the driver’s conduct: see R. v.

Piluke, (1993), (BC CA), 86 C.C.C. (3d) 1 (B.C.C.A.) and R. v. Blenner-Hassett, (1993), (BC CA), 86 C.C.C. (3d) 199 (B.C.C.A.),both aff’d. (SCC), [1995] 1 S.C.R. 443. Importantly, however, proof that the accused person knew that what he or shewas doing was dangerous and that he or she persisted in spite of that is not required: R. v. Mason, [1990] B.C.J.

No. 2052 (C.A.) (QL),leave to appeal refused (1990), (BC CA), 60 C.C.C. (3d) 338n (S.C.C.). [14] I interpret the restatement of the mens rea requirement in Beatty to mean that what is inferred from a driver’s dangerous drivingconduct is the driver’s marked failure to: (

a) make the reasonable, mental assessment of the risks inherent in the circumstances that were prevailing at the relevant time that areasonably prudent driver would have made; and then

(

b) predicate upon that reasonable, mental assessment of risk a manner of situation-specific driving that takes account of and reasonably controls those risks. [ 15 ] The mental element of dangerous driving as a criminal offence under s. 249(1 )(

a) of the Criminal Code has some features in common with negligence that is actionable as a civil wrong. The two are, however, not the same. The difference is one of degree. A more egregious deviation from normative driving conduct must be proven before criminal liability will attach.

As Cory J. stated (for the majority) in Hundal : “Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code .” ( at para . 36) [ 16 ] The Supreme Court of Canada’s use of the word “marked” in cases like Hundal and Beatty to describe the departure from what would have been done by the similarly situated, reasonably prudent driver whose conduct serves as a benchmark for comparison neatly captures and reflects the aforementioned distinction between the species of driving negligence that will meet the criminal standard and other species of driving negligence. [ 17 ] It follows from the foregoing that a momentary lapse of attention viewed in context of an otherwise unimpugnable , contemporaneous pattern of driving will not found a conviction under s. 249(1) (

a) of the Criminal Code , even if it produces calamitous consequences to victims. This is so despite the fact that a momentary lapse of attention would likely suffice to found civil liability and, possibly, an offence under provincial motor vehicle legislation: see , for example, Beatty at paras . 33 et seq. and R. v. DeGoey , [2005] O.J.

No. 2063 at para . 45 et seq. (C.A.) (QL). [ 18 ] The Supreme Court of Canada in Hundal and Beatty have confirmed that where an accused person gives an explanation for his or her objectively dangerous driving conduct that could raise a reasonable doubt regarding the mens rea element of the dangerous driving offence, that explanation is entitled to due consideration.

As Charron J. (for the majority) expressed the point at para . 37 of Beatty : “... because the accused's mental state is relevant in a criminal setting, the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger. On these occasions, even when the manner of driving viewed objectively will clearly be dangerous, the accused cannot be convicted.

Cory J., in Hundal , gave some useful examples (at p. 887): ‘Take for example a driver who, without prior warning, suffers a totally unexpected heart attack, epileptic seizure or detached retina. As a result of the sudden onset of a disease or physical disability the manner of driving would be dangerous yet those circumstances could provide a complete defence despite the objective demonstration of dangerous driving.

Similarly, a driver who, in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly affects the driver in such a way that the manner of driving was dangerous to the public, could still establish a good defence to the charge although it had been objectively established.’” THE FACTS The Driving Behaviour [ 19 ] All of the evidence with regard to Mr. Aujla’s driving on the date in question was adduced through the Crown’s only civilian witness, Mr. Nikodym . In the early evening of September 26, 2009 — close to 8:00 p.m. — Mr.

Nikodym was travelling eastbound on the Lougheed Highway, having picked up his mother-in-law from the airport. As he came through the Cape Horn Interchange, he first saw the Pickup operated by Mr. Aujla in front of him in the lane to his left. Mr. Nikodym believes that the Pickup had come off the off- ramp that carries traffic from the Port Mann Bridge onto the eastbound lanes of the Lougheed Highway. [ 20 ] Traffic was relatively light, but there were other vehicles on the road. It was a dry, fall evening. [ 21 ] The Pickup signalled an intention to make a change from the lane to Mr.

Nikodym’s left to the lane in which Mr. Nikodym’s vehicle was travelling. Both vehicles were travelling at about 60 km/hour and Mr. Nikodym slowed somewhat to allow the signalled lane change to take place safely. The Pickup got half to three-quarters through the execution of that lane change when it darted to the left “at a harsh angle”, back toward its original lane of travel.

In doing so the Pickup crossed over the line and entered partway into the eastbound lane to the left of its original lane of travel, corrected, and then proceeded eastbound within its original lane of travel. [ 22 ] This erratic manoeuvre caught the attention of Mr. Nikodym and of other drivers travelling east on the Lougheed Highway. They slowed down in order to stay back from the Pickup as it continued on its way, weaving from side to side, sometimes crossing over the lane and fog lines delineating its lane of travel and accelerating and decelerating between 30 and 70 km/hour for no apparent reason.

From the time he was startled by the abruptly reversed lane change manoeuvre, Mr. Nikodym maintained uninterrupted visual contact with the Pickup. [ 23 ] Mr. Nikodym could not recall whether the light controlling eastbound traffic on Lougheed Highway was red or green at the intersection with Colony Farm Road but he acknowledged that, whatever it was showing, the Pickup proceeded through that intersection without incident. [ 24 ] When the Pickup was in the vicinity of Colony Farm Road Mr. Nikodym made a 911 call.

He did so because — based on his observations to that point — he was concerned that its driver may be impaired and may cause injury to others or to himself . Mr. Nikodym gave the license plate number for the Pickup to the 911 operator and determined that he would follow the Pickup and provide the operator with a “real time”, running account of its actions and its whereabouts until police could intervene.

[ 25 ] Mr. Nikodym’s further observations did nothing to allay his reasonable concerns. As the Pickup continued east on Lougheed Highway past Colony Farm Road toward Pitt River Road, it continued to “weave” and “judder” with the driver appearing to be struggling to keep it in its lane of travel. Despite those efforts, on Mr. Nikodym’s uncontroverted evidence its wheels continued to cross periodically over the fog line on the right and the lane line on the left.

Near Riverview Hospital the Pickup’s irregular driving pattern caused other motorists to sound their horns. [ 26 ] When it reached the intersection of Lougheed Highway and Pitt River Road, the Pickup executed a right turn without incident and travelled safely and unremarkably eastward across railway tracks and then over the red bridge that crosses the Coquitlam River. However, on the far side of that bridge Mr. Aujla’s vehicle began swerving again and at one point it even mounted the curb, travelling for a short distance with both right-side wheels on the sidewalk before getting back down onto the road surface.

When adjusting his trajectory in an effort to get the Pickup off the sidewalk and back onto the road Mr. Aujla overcorrected and entered the second eastbound lane on Pitt River Road briefly before returning to the curb lane and then continuing onward within it. [ 27 ] There then followed another short period of unremarkable driving, including a successful manoeuvre in which Mr. Aujla guided the Pickup successfully into the left turn bay in anticipation of leaving Pitt River Road and continuing east on the intersecting road that runs adjacent to a local high school.

However, when actually executing his turn across oncoming westbound traffic on Pitt River Road, Mr. Aujla did not wait for a gap to form in that traffic but rather initiated and made his turn at a time and in a way that required westbound drivers to “jam on their brakes” to avoid colliding with the Pickup. [ 28 ] Thereafter, the Pickup navigated through a number of residential streets, mainly without incident. His speed of travel fluctuated between 30 and 40 km/hour during this phase and, apart from having made a “rolling stop” at one stop sign-controlled intersection, there was nothing else about Mr.

Aujla’s driving that was noteworthy up to the time when a police cruiser — acting on Mr. Nikodym’s “real time” running commentary — arrived on the scene, activated its emergency equipment and performed a vehicle stop. Mr. Aujla complied fully and safely with the police requirement that he pull the Pickup over. [ 29 ] Mr. Nikodym is 41 years of age and an experienced driver. He testified that he has been driving since he was 16 — that is, for 25 years — and that he has never before seen driving of the kind he witnessed on the part of Mr. Aujla .

Other Indicia of Impairment by Alcohol [ 30 ] The erratic driving described above is suggestive of a degree of impairment, by something , of Mr. Aujla’s ability to operate the Pickup. Other evidence given by the police witnesses supplement that and tie the apparent impairment to the consumption of alcohol. [ 31 ] After she had effected the traffic stop, the primary investigating officer, Cst . Kasper — an officer trainee — identified Mr. Aujla as the driver of the Pickup. She did so by comparing what she could see of his face to the likeness appearing on his driver’s licence. Mr.

Aujla showed no motor difficulties in presenting his driver’s licence to Cst . Kasper; nor did he have trouble retrieving his registration from somewhere on the passenger’s side of the Pickup to show to her. [ 32 ] As she spoke with Mr. Aujla through the driver’s window of the Pickup, Cst . Kasper could detect an odour of alcohol or liquor. She asked him to step out of his vehicle and noted that, when emerging, he appeared unstable or “wobbly”.

When asked to walk a short distance alongside the box of his pickup truck to the space that had been left between it and the police cruiser, his first few steps were uncertain but the remainder were steady. Cst . Kasper noted that Mr. Aujla had glassy eyes and a manner of speaking that she described as “slurred”. However, she also acknowledged that the apparent dysfluencies could be attributable to his accent. When she was able to converse with him outside his vehicle Cst . Kasper was able to pinpoint Mr. Aujla’s breath as the source of a moderately strong odour of alcohol.

When confronted with the various statements and questions she posed to him in the course of giving him Charter warnings, his 24-hour driving prohibition and so forth, Mr. Aujla was generally responsive and comprehending although, given that English is not his first language, Cst . Kasper did take the precaution — after he had been taken to the detachment for booking — of involving a Punjabi- speaking officer to go over some of that ground with him again. [ 33 ] Based on her observations and upon what had been reported to her by the dispatcher concerning Mr. Nikodym’s reports of irregular driving, Cst .

Kasper formed the opinion that Mr. Aujla’s ability to operate a motor vehicle was impaired by alcohol. While she is a junior officer, Cst . Kasper’s life experience coupled with her training and experience on the force has equipped her, she believes, to be able to recognise intoxication when she sees it. [ 34 ] To Cst . Kasper’s recollection, Mr. Aujla did not display any problems with ambulation or balance when he was being processed at the detachment. However, for a good part of his time there he was either seated or leaning against counters and so the opportunities for observation were limited.

She recalled that his eyes, by the time he had arrived at the detachment, had become somewhat bloodshot. She reported that he seemed fatigued and kept his eyes closed for considerable periods. He was, at times, resistant and emotional while being taken through the booking and breath demand procedures — a fact that might have contributed to the appearance of his eyes. [ 35 ] Cst . Parsons — Cst . Kasper’s shift-mate and supervising trainer — made similar observations at scene to those reported by his trainee with respect to indicia of impairment. Back at the detachment, it was he who removed Mr.

Aujla’s handcuffs and who accompanied Mr. Aujla to the bathroom when he requested an opportunity to urinate. In his evidence he spoke of Mr. Aujla almost falling on his face at the time he was un-cuffed; Cst . Parsons also testified that Mr. Aujla swayed markedly while urinating. Neither of those important observations found their way into his officer’s notes, however — although Cst . Parsons did make a note that Mr. Aujla urinated for an unusually long time.

To the limited extent that the video footage of events unfolding in the booking area was of assistance to me in finding the relevant facts in this case, I will say that there was nothing in the way of a near loss of balance visible in the portion of the video footage depicting Cst . Parsons removing Mr. Aujla’s handcuffs. Accordingly, I assign minimal weight to Cst . Parsons’ testimony about the accused’s balance during urination and during the time when his handcuffs were being unfastened. [ 36 ] Cst .

Bhandar had a very limited involvement in the investigation; he was brought in, as noted, to communicate with Mr. Aujla in Punjabi so that police could have full confidence that he comprehended the various warnings, notifications and demands that police were giving to him. Cst . Bhandar corroborated the testimony of his fellow officers about the state of Mr. Aujla’s eyes and testified that, in his recollection, the odour of alcohol emanating from Mr. Aujla’s breath was a strong odour. Though not a fluent speaker of Punjabi, Cst .

Bhandar is conversant in the language and he testified that Mr. Aujla’s speech, in Punjabi, was slurred although not grossly so. Cst . Bhandar did not recall seeing Mr. Aujla demonstrate any difficulty with his balance at the detachment. [ 37 ] Like Cst . Kasper, Csts . Parsons and Bhandar — both experienced police officers who have often dealt with intoxicated persons — formed the opinion, based on their observations, that Mr. Aujla was impaired. [ 38 ] Considerable time at trial was devoted to a review of video images of Mr. Aujla at different stages of his being processed at the detachment after his arrest.

I did not find the video footage particularly significant — in part because of distances between cameras and subject and in part because of technical limitations associated with variations in the number of frames per second with which the moving images are captured. That said, I do acknowledge that, to the limited extent I was taken to brief passages in which Mr. Aujla could be clearly seen moving from one location to another, what I saw corroborated the testimony of Csts .

Kasper and Bhandar that his ambulation, while at the detachment, was generally steady and unremarkable. [ 39 ] Taken in the round, the evidence of impairment concerning Mr. Aujla on the evening in question is not monolithic. In some respects he performed, while under scrutiny, more or less the same way that a person who is not impaired would perform. The indicia of impairment are not suggestive of gross impairment. Mr. Aujla was not, as is sometimes said, “ falling down drunk”. But the indicia emerging from the evidence do reveal a measure of impairment. Every officer who interacted with Mr.

Aujla could smell alcohol on his breath. At scene he displayed some problems with balance. His eyes showed telltale signs of glassiness and, later, of being bloodshot. His speech was slurred. And, before he was stopped by police, his driving of the Pickup — while admittedly punctuated with periodic displays of normal operation — displayed several otherwise inexplicable anomalies over a relatively short distance. WAS MR. AUJLA’S ABILITY TO OPERATE A MOTOR VEHICLE IMPAIRED BY ALCOHOL? [ 40 ] I am left in no doubt by the evidence that Mr.

Aujla had consumed alcohol prior to driving the Pickup on the evening in question, and there is nothing to suggest that he did not do so voluntarily. [ 41 ] Beyond that, I am persuaded beyond a reasonable doubt that Mr. Aujla’s ability to operate a motor vehicle on the offence date was impaired by the alcohol he had consumed. [ 42 ] Labrosse J.A., in his reasons for judgment in the seminal case of Stellato , referred to the very indicia noted above in these reasons as “classic signs of impairment”.

The following passage from Stellato could almost have been written about the case at bar: “ At trial, the Crown's evidence consisted of the testimony of the arresting officer and the breathalyser technician who had observed the classic signs of impairment: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness on his feet. Both police officers had concluded that the appellant's ability to operate his vehicle was impaired by alcohol.” ( at para . 4) [ 43 ] During cross-examination, counsel for Mr.

Aujla very skilfully brought out the evidence that tempered some of the more damning aspects of the Crown’s case on the impairment issue. For example, he re-focussed the spotlight upon the various points along Lougheed Highway, Pitt River Road and residential streets near the centre of Port Coquitlam where his client’s driving was unremarkable, and upon various times when, following the traffic stop and later his arrest, Mr. Aujla did not seem to have trouble retrieving his driver’s licence and registration or walking steadily.

But at the end of the day, the indicia of impairment that were revealed by the evidence remain. They must be reckoned with. Counsel was successful in persuading me that the degree of impairment shown by Mr. Aujla was not as severe as that seen in some other cases but he was not successful in persuading me that Mr. Aujla’s ability to operate a motor vehicle was not impaired at all.

And, as the court in Stellato has held, “if the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out”. [ 44 ] Although, strictly speaking, it does not matter for present purposes, having regard to the indicia of impairment that arise from the evidence in this case, I would describe Mr. Aujla’s ability to drive as neither severely impaired, nor slightly impaired, but, rather, moderately impaired on the evening of July 26, 2009, when he was observed by Mr.

Nikodym driving the Pickup from the Cape Horn Interchange to central Port Coquitlam and later stopped by police. That, coupled with what is not disputed and what is established by the rest of the evidence, is sufficient to support Mr. Aujla’s conviction under s. 253(1) (

a) of the Criminal Code for “ hav [ ing ] the care or control of a motor vehicle … while his ability to operate a motor vehicle was impaired by alcohol”. WAS MR. AUJLA’S DRIVING DANGEROUS TO THE PUBLIC? [ 45 ]

Section 249(1 )(

a) requires that I evaluate the evidence of Mr. Aujla’s driving on the offence date in the context of the conditions prevailing at that time — that is, “having regard to all the circumstances, including the nature, condition and use of the place[s] at which [the Pickup was] being operated and the amount of traffic that at the time [was] or might reasonably be expected to be at that place”. [ 46 ] The “place[s]” where the Pickup was being operated for present purposes are principally: (

a) the Lougheed Highway running east from the Cape Horn Interchange to Pitt River Road; (

b) Pitt River Road running east to the intersection adjacent to the high school that is situated some distance past the red bridge but before the point where Pitt River Road intersects with Shaughnessy Street; and (

c) the comparatively small distance Mr. Aujla travelled on residential streets after leaving Pitt River Road, generally heading eastward toward central Port Coquitlam. [ 47 ] At the time the alleged driving offences were allegedly committed, it was dusk on a dry fall evening. There was some traffic but it was not heavy. [ 48 ] Mr. Nikodym’s testimony revealed that Mr. Aujla’s driving departed markedly from that which is normal and expected of a

reasonably prudent driver on a number of occasions over the course of a few kilometres. Indeed, looking at Mr. Aujla’s driving in the round, Mr. Nikodym commented pointedly that he has never before seen such driving over the 25 years that he, himself, has been licensed to drive. [ 49 ] The first departure involved an abrupt reversal of a partially executed lane change during which Mr. Aujla changed direction “at a harsh angle” and crossed over the line dividing his target lane from the one to its left before settling into the target lane. This manoeuvre, as I have noted, was observed by Mr.

Nikodym and other drivers who reacted defensively by slowing and staying back from the Pickup. From a safe distance Mr. Nikodym —and, presumably, those other drivers—were then able to observe that Mr. Aujla’s speed tended to vary between 30 and 70 km/hour and that the Pickup was weaving from side to side, sometimes crossing the lines defining the boundaries of his lane of travel. [ 50 ] Once past Colony Farm Road, Mr. Aujla continued to “weave” and “judder”, demonstrating difficulty in keeping the Pickup within his own lane. Other motorists sounded their horns in response to this pattern.

After making the turn at Pitt River Road and crossing the red bridge, the Pickup climbed the curb and mounted the sidewalk on the right side of the road and two of its four wheels travelled on the sidewalk for a short time before the vehicle got back down onto the road. Once those wheels were back down on the road the Pickup’s left wheels crossed briefly into the second eastbound lane before Mr. Aujla could get the vehicle properly back into the curb lane. [ 51 ] When turning left off Pitt River Road at the intersection adjacent to the high school, Mr.

Aujla did not wait for a gap in traffic to open up; rather, he crossed the westbound lanes directly in front of the approaching traffic, requiring that the drivers of those vehicles “jam on their brakes”. [ 52 ] In the part of these reasons that recounts my factual findings in full I have referred in more detail to the foregoing aspects of Mr. Aujla’s driving and also to the parts of it that were generally unremarkable and not subject to criticism. [ 53 ] It took only a few minutes for Mr. Aujla to get from the Cape Horn Interchange to his final resting place, under police control, in central Port Coquitlam.

In my view, the number of anomalies that were revealed in Mr. Aujla’s driving over that short period was considerable. Some of them had the potential to cause death, serious injury and property damage. The potential dangers to others presented by Mr. Aujla’s driving is reflected in part by the defensive actions — drifting back to a safe distance, sounding horns and jamming on brakes to avoid a collision — that were taken by the drivers, like Mr. Nikodym , who were sharing the road with Mr. Aujla .

While less serious, erratic and situationally unnecessary accelerations and decelerations increase the risk to other drivers because they are unpredictable and can interfere with the smooth flow of traffic generally. The same can be said of abrupt reversals of partially executed lane changes. The lines that divide lanes from each other and from the untraveled portions of the road surface are there to limit the risk of collisions by giving drivers clear boundaries within which to keep their vehicles. When motorists, like Mr.

Aujla , drift and weave and cross over those lines, other drivers who are using them or who may wish to use them cannot do so safely. The serious risks posed by a vehicle mounting a curb and driving even a short distance with two wheels up on a sidewalk are self-evident, and the cases canvassed above show that the fact that no pedestrians were apparently on the sidewalk during the early evening when Mr. Aujla drove up onto it does not relieve him of exposure for his actions.

And quite apart from the risks that such actions raise for pedestrians who often are found on such sidewalks, the court must also be mindful when assessing that driving behaviour of the risk of a total loss of control that can result when a vehicle unexpectedly hits a curb, especially where the driver has shown a tendency to overcorrect. [ 54 ] It cannot be gainsaid that Mr. Aujla placed those who were travelling west on Pitt River Road when he turned in front of them without waiting for a gap to form in oncoming traffic in very great danger.

The fact that they had to “jam on their brakes” to avoid a collision with the Pickup reveals that, but for the quick reactions of those other drivers, a collision would surely have occurred. [ 55 ] Over the time that Mr. Nikodym followed Mr. Aujla and maintained visual contact with him while guiding police, via the 911 operator, to a location where he could finally be pulled over, Mr. Aujla did — as I have noted — sometimes drive in an acceptable manner. I agree with defence counsel that I must give due consideration to that evidence alongside the evidence of his impugnable driving.

But I also agree with Crown counsel’s submission that it is the concentration of so many striking deviations from safe driving practice over a relatively short distance and a relatively short time that is most compelling.

The learned authors of The Working Manual of Criminal Law , loose-leaf (Toronto: Thomson Carswell , 2005) address this issue in describing driving conduct that may be civilly actionable but not sufficiently deviant from situational norms to attract criminal liability: “With respect to the marked departure from the norm: conduct that occurs in the brief time span of seconds, in the course of driving which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum.” ( at p. 344) [ 56 ] Seen in this light, in my view the relative concentration of Mr.

Aujla’s hazardous driving eclipses his good driving and renders the latter non-redemptive. [ 57 ] Based on this assessment of the evidence I am satisfied that the actus reus of the offence of dangerous driving has been made out in this case beyond a reasonable doubt. Assessed objectively, Mr. Aujla’s driving actions — unfolding at the time and in the places and in the ways described above—together constitute the operation of a motor vehicle “in a manner that [was] dangerous to the public”. [ 58 ] As to the mental element, I infer from Mr.

Aujla’s driving conduct on the alleged offence date a marked departure from the reasonable standard of care that governed his conduct in the circumstances in which he then found himself. That is to say, I infer a marked failure on his

part in mentally assessing the risks inherent in: (

a) commencing lane changes and then abruptly reversing them in mid-execution; (

b) accelerating and decelerating for no apparent reason while driving on a highway; (

c) weaving and drifting across lane and fog lines;

(

d) climbing a curb and driving with two wheels on a sidewalk; and (

e) making a left turn across oncoming traffic without waiting for a gap to open up that is sufficient to permit the turn to be made safely. [59] I further infer from the noted driving conduct a failure on Mr. Aujla’s part to tailor an approach to driving that took account ofthe above-described risks and appropriately controlled them. [60] Without anything further to consider regarding the mental element, what I have addressed above would suffice to satisfy me,beyond a reasonable doubt, that the Crown has proven both the actus reus and the mens rea elements of the s. 249(1)(

a) dangerousdriving offence beyond a reasonable doubt. And, indeed, there is nothing further for me to consider. Mr. Aujla did not call defenceevidence in this case and so there is no explanation from him for his objectively dangerous driving conduct (of the sort discussed atlength in Beatty) that I might evaluate and that might raise a reasonable doubt regarding the mens rea component of it. Neither didanything else that would cause me to question my conclusions regarding the mental element “emerge from” the evidence that wasadduced through the Crown witnesses at trial. [61] I hasten to say that it was Mr.

Aujla’s clear right to put the Crown to the proof of the charges against him and to decline to calldefence evidence. Plainly, no adverse inference may be drawn from the fact that he exercised his constitutional right to maintain hissilence. However, it is also true that, once the Crown has established the actus reus of dangerous driving under s. 249(1)(a), if Mr. Aujla“does not offer some explanation and none emerges from the evidence which can reasonably account for his objective conduct and at thesame time absolve him from criminal responsibility, he runs the risk of being convicted”: see R. v.

Beaudoin, [1973] O.J. No. 1976 atpara. 19 (C.A.) (QL). CONCLUSIONS AND DISPOSITION [62] Based upon all of the foregoing I restate my conclusions that the Crown has proven, beyond a reasonable doubt, that onSeptember 26, 2009, Mr. Aujla committed the offences of (under count 1) impaired driving, contrary to s. 253(1)(a), and of (under count2) dangerous driving, contrary to s. 249(1)(

a) of the Criminal Code. [63] While the two offences embrace overlapping subject matter, the rule in R. v. Kienapple, (SCC), [1975] 1 S.C.R.729 does not prelude conviction of Mr. Aujla on both charges. As Doherty J.A. recently stated (for the court) in R. v. Ramage, 2010ONCA 488 , [2010] O.J. No. 2970 at para. 64 (C.A. (QL): “... An impaired driving charge focuses on an accused's ability to operate a motor vehicle or, more specifically, on whether that abilitywas impaired by the consumption of alcohol or some other drug.

A dangerous driving charge focuses on the manner in which theaccused drove and, in particular, whether it presented a danger to the public having regard to the relevant circumstances identified in s.249 of the Criminal Code. The driver's impairment may explain why he or she drove the vehicle in a dangerous manner, but impairmentis not an element of the offence. Both impaired driving and dangerous driving address road safety, a pressing societal concern. They doso, however, by focussing on different dangers posed to road safety.

Impaired driving looks to the driver's ability to operate the vehicle,while dangerous driving looks to the manner in which the driver actually operated the vehicle.” (at para. 64) [64] Mr. Aujla therefore stands convicted on counts 1 and 3 of Information 83590. As I noted at the beginning of these reasons, theCrown advised the court at the commencement of trial that it was not proceeding against Mr. Aujla on count 2 and, accordingly, I acquithim of that “refusal to blow” charge. [65] Order accordingly. _______________________Thomas S. Woods, P.C.J.

CORRIGENDUM – Released March 10, 2011 In the Reasons for Judgment dated March 8, 2011, the following change was made: [1] The penultimate sentence of paragraph 53 should read as follows: “The serious risks posed by a vehicle mounting a curb and driving even a short distance with two wheels up on a sidewalk are self-evident, and the cases canvassed above show that the fact that no pedestrians were apparently on the sidewalk during the early eveningwhen Mr. Aujla drove up onto it does not relieve him of exposure for his actions.”