Her Majesty the Queen - v. -, 2011 SKPC 153

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 153 Date: October 5, 2011 Information: 41350483 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Erdan John Huseini Appearing: Mr. Brian Hendrickson , Q.C. For the Crown Mr. Robert Fielding For the Accused DECISION M.T. GORDON , J [ 1 ] Erdan John Huseini is charged that on or about the 12 th day of July, A.D. 2010, at or near Moose Jaw, Saskatchewan, did operate a motor vehicle on a street, road, highway or other public place in a manner that is dangerous to the public, contrary to section 249(1) (

a) of the Criminal Code . [ 2 ] The Crown called one witness, Moose Jaw peace officer Cst. Sheldon McNaughton. The evidence is straightforward and basically uncontradicted.

[ 3 ] Cst. McNaughton was driving west on Thatcher Drive in Moose Jaw. Cst. McNaughton, a qualified radar operator, had calibrated his unit at the start of his morning shift and was satisfied it was in proper working order. [ 4 ] At approximately 8:00 a.m., the officer observed a black Mustang vehicle accelerate quickly from a red light at the intersection of Thatcher Drive West and Woodlily East. The police officer was stopped behind the Mustang. Both vehicles were travelling west.

The police officer observed the Mustang accelerate for two to three blocks, and the officer locked in what appeared to be the Mustang’s greatest speed, at one hundred and forty kilometres an hour in a sixty kilometre zone. There was one other vehicle beside the Mustang which was left behind when the Mustang accelerated. [ 5 ] The Mustang was already slowing down as it was approaching the controlled intersection of 9 th Avenue N.W. and Thatcher Drive. There was no indication that the driver of the Mustang slammed on the brakes.

Rather, the vehicle slowed down substantially prior to the police officer activating the emergency lights. [ 6 ] At this controlled intersection, there is a church on one corner, a school on the northeast corner and a walking path to the playground area of the school on the north side. [ 7 ] Thatcher Drive is a fairly open road between Main Street and 9 th Avenue N.W. There are two lanes of traffic each way from Main Street to the Thatcher intersection with 4 th Avenue. The posted speed limit is fifty kilometres an hour to 4 th Avenue N.W. and then sixty kilometres.

Woodlily Drive East and West entrances intersect Thatcher Drive, as well as the access roads Blue Sage Drive and Avens Road on the north side. On the south side of Thatcher, 4 th Avenue comes to a T-intersection. [ 8 ] The officer testified that Thatcher is a fairly open stretch of road.

There is a bend on Thatcher as it turns into two lanes. [ 9 ] The officer testified there is no shoulder, but on cross-examination agreed that the shoulder is narrow as Thatcher Drive becomes two lanes. [ 10 ] On cross-examination the officer also agreed that the sidewalk is ten to fifteen metres off of the road and not connected to the pavement. There is a school and unfenced playground approximately one hundred to one hundred and fifty metres north off Thatcher. There are condominium units well back from the road. [ 11 ] However, the officer agreed that Mr. Huseini still had open road ahead of him.

He could not recall if there was any vehicle traffic waiting to enter onto Thatcher going west. [ 12 ] The officer noted heavy traffic eastbound on Thatcher at that time of day. [ 13 ] The Mustang was still accelerating and travelling greater than the speed limit. It was at this point, on the two lane portion west of the 4 th Avenue intersection, that the officer locked in the vehicle speed at one hundred and forty kilometres an hour. [ 14 ] The Mustang stopped when signalled to do so by the flashing lights of the police vehicle one block east of Thatcher and 9 th Avenue N.W.

There was no abrupt stopping or slamming on the brakes. [ 15 ] The driver of the Mustang was identified as the accused. He stopped his vehicle without any problems and was polite and cooperative. He was remorseful. He was charged for dangerous driving and given an Appearance Notice to appear in Court.

Analysis [16] The only question before the Court is whether the evidence provides proof beyond a reasonable doubt that the driving wasdangerous pursuant to s. 249(1)(

a) of the Code. [17] In R. v. Beatty, 2008 SCC 5 , [2008] 1 S.C.R. 49, the Supreme Court of Canada, after an extensive review of thedifferences between civil and criminal standards of negligence, stated the test for establishing the necessary actus reus and mens rea ofdangerous driving. Madam Justice Charron stated the test as follows at paragraph forty-three: (

a) The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section,driving in a manner that was dangerous to the public, having regard to all the circumstances including the nature, condition and use ofthe place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to beat that place. (

b) The Mens Rea The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied bythe required [page 77] mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence,including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard ofcare that a reasonable person would observe in the accused’s circumstances.

Moreover, if any explanation is offered by the accused,then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware ofthe risk and of the danger involved in the conduct manifested by the accused. [18] The driving must constitute a marked departure from the standard of care of a reasonable, prudent person in the accused’ssituation. [19] As the Court notes in Beatty, supra, it is the manner of driving that must be considered. It is a question of degree. [20] The length of time of the impaired driving may be brief to sustain a conviction.

Speed is a factor to consider in all of thecircumstances. Courts have convicted for dangerous driving when the excessive speed has been found too great for the driver to avoidunexpected events. [21] In R. v. Graham, 2009 SKPC 25, Judge Toth provides a good sampling and review of decisions in Saskatchewan, Alberta andBritish Columbia. [22] A review of these cases lead to the following conclusions: 1. Have the prerequisites been established in order that the radar evidence be admitted. 2. Dangerous driving requires a marked departure from that of a reasonably prudent driver. 3.

The basis of liability for dangerous driving is negligence. A marked departure from the civil standard is required. It is the conductof the accused that is the critical element. 4. The length of time of the alleged dangerous driving is not the determining factor. 5. Speed alone can, in certain circumstances, be characterized as dangerous driving. [23] The evidence is not in dispute. The accused was driving at a top speed of one hundred and forty kilometres an hour as

determined by Cst. McNaughton, operating his radar unit. The posted speed limit in this area is sixty kilometres an hour. [ 24 ] The accused was driving on Thatcher Drive, a busy main roadway on the north side of Moose Jaw. The weather was clear and road conditions were good. There was only one other vehicle in addition to the police unit in the area, westbound, which was left behind when the accused accelerated. In the two to three blocks between the intersecting roads of Woodlily to 4 th Avenue N.W., there were no other vehicles in-between the police vehicle and the accused’s Mustang.

The eastbound traffic was heavy at 8:00 a.m. The officer described this portion of Thatcher as a “fairly open road”. However, side roads intersect with Thatcher Drive in the area; being Woodlily East, 4 th Avenue N.W., Woodlily West and Blue Sage Drive. There are no homes or businesses that have direct access onto Thatcher in this area. [ 25 ] That being said I adopt the words of my colleague Judge Toth in R. v.

Graham , 2009 SKPC 25 , at paragraph forty-one as follows: However, where a vehicle is travelling at a speed more than double the posted 50 km/h limit, where cars and pedestrians are ordinarily present, danger accompanies. The ability of the driver to respond safely to any pedestrian, cyclist or vehicle entering onto Albert Street from the various feeder streets and avenues would be impaired. Any loss of control would result in serious damage, and possibly injuries for the driver and passengers.

The accused was driving dangerously. [ 26 ] In the within case, the police officer described that there was a bend in the road which adds to the danger. The accused’s vehicle was travelling one hundred and forty kilometres per hour, well over twice the posted speed limit in this portion of Thatcher Drive one lane each way. The eastbound traffic was heavy. This is substantially different than driving at this speed on a four lane highway, where the lanes of traffic are separated and the speed limit is one hundred and ten kilometres an hour. In this case, the driving is within the confines of the city.

One has to accept the posted speed limit is sixty kilometres an hour for good reason. The road it not constructed for greater speeds. [ 27 ] The driving, as in Graham , did not last long. The officer noted that the accused appeared to be slowing down. The accused stopped for the police officer without slamming on his brakes. [ 28 ] The police officer testified that Mr. Huseini stated he was driving foolishly and that was not normal for him. There was no other evidence as to an explanation for the excessive speed. The only conclusion that the Court can draw is that this driving action was planned and deliberate.

Therefore, the mens rea is inferred from the driving conduct. [ 29 ] I can reach no other conclusion other than the accused voluntarily undertook to drive his vehicle and accelerate to this rate of speed on this stretch of road. While the speed of one hundred and forty kilometres per hour was for a short period of time, in my view such conduct is a “marked departure” from the standard expected for a reasonably prudent driver. I do not have any reasonable doubt that the accused was driving dangerously. Mr. Huseini is guilty as charged.

Dated at Moose Jaw, Saskatchewan, this 5 th day of October, 2011. _______________________________________________ M.T. Gordon, J