R. v. Schickerowsky Date:, 2017 BCPC 424

Citation: R. v. Schickerowsky Date: 20171013 2017 BCPC 424 File No: 94420 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MILO GLENN SCHICKEROWSKY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE McQUILLAN Counsel for the Crown: G. Barnes Counsel for the Defendant: In Person Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 12, 2017 Date of Judgment: October 13, 2017

[ 1 ] Milo Glenn Schickerowsky is charged with operating a motor vehicle in a manner that was dangerous to the public, on June 19, 2015, contrary to Section 249(1) of the Criminal Code . He has pled not guilty to this charge. [ 2 ] The Crown led the evidence of two police officers as well as five civilian witnesses. A video tape of part of the incident that led to the charges was also entered into evidence as well as a number of photographs. The Defendant was unrepresented and testified on his own behalf.

He did not disagree with much of the evidence tendered by the Crown except in a few significant areas which I will address shortly. Evidence for the Crown [ 3 ] The evidence of the witnesses for the Crown was as follows: On June 19, 2015, Melvin Williams was driving home after dropping off his daughter in Vancouver. He was driving on Lougheed Highway and turning left onto Dewdney Trunk Road in Maple Ridge, when he noticed a grey vehicle behind him driving erratically and swerving in and out of traffic. He observed the driver to be shouting at him and appearing to be angry, although he was uncertain why. Mr.

Williams then “gave the finger” to the driver of the grey vehicle. This occurred at the intersection of Dewdney Trunk and 203 rd street. [ 4 ] As he continued east bound and approached the next lighted intersection on Dewdney Trunk Road at 207 th Street, Mr. Williams stopped at a yellow light which was turning to red. When he stopped, the grey vehicle behind him made contact with his bumper and pushed him forward. Mr. Williams then got out of his vehicle and approached the driver of the grey vehicle, who was identified as the defendant, and said to him, “What the fuck is your problem”.

When he saw that the defendant was trying to get out of his vehicle, Mr. Williams was afraid that this would escalate and held the defendant’s door shut. When Mr. Williams stepped away from the vehicle, the defendant got out and began throwing punches at Mr. Williams, landing one punch to Mr. Williams’ head, knocking his hat and glasses off. When he bent down to retrieve them, the defendant attempted to kick him but did not connect. Mr. Williams denies ever striking or attempting to strike the defendant. [ 5 ] Mr. Williams then got back in his car and dialled 911.

While he was calling 911, the defendant drove his vehicle forward into the back of Mr. Williams’s vehicle and then proceeded to push it through the entire intersection. Witnesses say that the defendant reversed and then rammed Mr. Williams’ vehicle two to three times, while pushing it through the intersection. Mr. Williams’ vehicle was in first gear, with the ignition off and parking brake and foot brake engaged throughout. Photographs show lengthy skid marks from the Mini cooper across the intersection. Mr.

Williams estimates that his vehicle was pushed 100 feet by the defendant. [ 6 ] After being pushed through the intersection, Mr. Williams then observed the defendant to be trying to drive away, so he got out of his vehicle again and approached the defendant. He leaned into the window of the Defendant’s vehicle and attempted to turn off ignition. Mr. Williams states that he did not strike or attempt to strike the defendant in the process. He says that the defendant then repeatedly hit his arm while backing up and then driving forward to pass Mr.

Williams vehicle on the right to get away. [ 7 ] As the defendant drove away Mr. Williams held onto the vehicle with his body partly inside the window. Mr. Williams continued to be pulled with the vehicle as it accelerated quickly to get away from the intersection. He eventually let go of the vehicle, peeled off of the vehicle and fell to the pavement striking his head on the road. He lost consciousness briefly.

Police say that he was found 50-100 meters in front of where his vehicle was stopped, thus indicating that he was dragged in the Defendant’s car for that distance. [ 8 ] Witnesses state that the defendant’s vehicle took off very quickly with Mr. Williams hanging from the window. Before he took off, one witness, Dylan Hartman, approached the defendant’s vehicle and also reached into the defendant’s vehicle to try to turn off his ignition to prevent him from leaving the scene. Both Mr. Williams and Mr. Hartman indicated that they smelled the odour of alcohol coming from the defendant’s vehicle.

Witnesses describe the defendant’s vehicle as accelerating quickly when leaving with Mr. Williams hanging from the window, reaching a speed of 30-60 KMH. [ 9 ] Witnesses also state that when the defendant’s vehicle drove around Mr. Williams’ vehicle to get away, it drove up onto the sidewalk with two wheels before returning back to the lane and speeding away. [ 10 ] Mr. Williams sustained significant abrasions along his body from his head to his legs. He had a concussion and injuries to his ligaments and tendons which will require further surgery, more than two years after this incident.

He remained in hospital overnight and missed three weeks of work. He had physio for 1½ years to rehabilitate his injuries. [ 11 ] The police who attended at the scene were provided with video footage taken by Mr. Hartman which disclosed a licence plate number of 824 MWE on the grey vehicle. Computer searches revealed that the licence was linked to a vehicle owned by the defendant. Police then attended at the defendant’s residence where they found the same vehicle and arrested the defendant. The police also located Mr.

Williams’ cell phone on the floor of the defendant’s vehicle where he said he had dropped it during the altercation while reaching inside the defendant’s vehicle. [ 12 ] This was clearly a dangerous incident that one witness described as terrifying, both in relation to what appeared to be happening to Mr. Williams and the potential threat to the public. Witnesses and photographs confirm that this is a busy intersection for both vehicular and pedestrian traffic. Evidence for the Defendant [ 13 ] The defendant was not represented by a lawyer. He testified as to his version of events.

He did not cross examine the various witnesses other than Mr. Williams and appears to have accepted much of the evidence of the various witnesses. He did however dispute the evidence of Mr. Williams in a few areas.

[14] The defendant states that he had no interaction with Mr. Williams before the intersection of Dewdney Trunk and 207th Street inMaple Ridge. He acknowledges driving more quickly and erratically than he should have and that he was darting in and out of traffic. He states that when he reached the intersection with 207th Street, heading east bound on Dewdney Trunk, he stopped behind Mr.Williams’s car at the red light. He says that when the light turned green, Mr. Williams did not move forward so he honked his horn. Mr. Williams then backed up into his vehicle into his.

The defendant then pushed his vehicle forward into Mr. Williams’s vehicle. [15] The Defendant says that he then tried to get out of his vehicle to speak to Mr. Williams, but Mr. Williams had already gotten outof his vehicle, approached his vehicle and was pushing the door closed to keep him from getting out and that Mr. Williams reachedinside and punched him in the head. He says that Mr. Williams then repeatedly slammed the door on his heels. He says he then got outof his vehicle, whereupon Mr. Williams took a swing at him but missed him.

The defendant says that he then swung back at Mr.Williams and knocked him down. He denies attempting to kick him when he was down. [16] The defendant says that he then got back into his vehicle and proceeded to push Mr. Williams’ vehicle forward through theintersection, with Mr. Williams in it. After pushing the vehicle through the intersection, he says that Mr. Williams again got out of hisvehicle and approached his vehicle. He says that Mr.

Williams then leaped into the window of his vehicle, grabbed the steering wheelwith his right hand and began throwing punches at him with his left hand. [17] The defendant says that he was fearing for his life so he reversed and then accelerated forward around the vehicle with Mr.Williams hanging out of his window. He says that he eventually was able to push Mr. Williams out of his vehicle when he fell to thepavement. He then drove home and poured himself a drink because he was so flustered by the incident.

When police arrived at hishome shortly thereafter he was found with a drink in his hand. [18] The defendant denies having been drinking before this incident, saying that he had just left work and was on his way to drivehis grandson to a soccer practice. [19] The defendant acknowledges some fault for this incident, but says that both he and Mr. Williams are at fault. Analysis and Decision [20] Where an accused testifies and credibility is in issue, the principles set out in R. v. W. D. (SCC), [1991] 1S.C.R. 742 apply. In brief that case states: First, if I believe the evidence of the accused, I must acquit.

Second, if I do not believe the testimony of the accused but I am still left in reasonable doubt, I must acquit. Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I doaccept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [21] Although the defendant did acknowledge some responsibility for this incident and acknowledged being in a hurry and drivingerratically, I have some deep reservations about his evidence.

A few examples of the shortcomings of his evidence are as follows: • He claims that Mr. Williams intentionally backed into him when he honked his horn. However, it was clear that Mr.Williams drove an immaculate vehicle that he was proud of and it does not make sense that he would intentionally back up his vehicleinto the defendant’s vehicle. Photos indicate that the defendant’s car was considerably more dilapidated. • The defendant’s suggestion that Mr.

Williams was the aggressor is inconsistent with the corroborated evidence that thedefendant pushed the other vehicle all the way through the intersection. • The defendant’s statement that he was fearing for his life and just trying to get away is inconsistent with his pushing theother vehicle with his, particularly the fact that he pushed it all the way through the intersection, not just a couple of feet. That statementis also inconsistent with the defendant’s demeanour as observed by other witnesses and as seen on the video footage. He could notprovide any explanation for why he did not just drive around Mr.

Williams’ car to get away rather than push him through theintersection. • Despite claiming to be fearful for his life, the defendant never called the police, during the incident or even after he drovehome, saying that he felt the incident was over. On the other hand Mr. Williams and others all called 911 while this event wasunfolding. Furthermore, the defendant did not make any attempt to exchange information with Mr. Williams, while acknowledging thatthat is a requirement after a traffic accident. Instead he fled from the scene. • Despite claiming to have sustained injuries at the hands of Mr.

Williams and having photos to prove the injuries, no suchevidence was provided. • The defendant initially claimed that Mr. Williams was hitting him with his left hand but on cross examination changed it tohis right hand. He also claimed that Mr. Williams was hitting him while holding onto the steering column and his cell phone.

I find thatto be implausible. • He does not recall driving up on the sidewalk to flee the scene even though that was observed by various witnesses. • He denies driving away quickly despite the evidence of several witnesses that that is in fact what occurred. • He could provide no explanation for the fact that both Mr. Williams and Mr. Hartman detected the smell of liquor comingfrom his vehicle.

• He does not recall Mr. Hartman being at the scene although the video footage shot by Mr. Hartman clearly shows the defendant looking at him and saying “what is your problem?” [ 22 ] On the contrary, I found the evidence of Mr. Williams to be both internally and externally consistent. He was prepared to acknowledge that the defendant may not have intended to kick him, despite his perception that he was trying to. He also acknowledges having himself escalated matters somewhat by giving the defendant the finger and having said, “what the fuck is your problem” to him.

His evidence was also consistent with the testimony of the other Crown witnesses. The same cannot be said for the testimony of the defendant. None of the other Crown witnesses were challenged in their credibility or reliability. [ 23 ] Section 249(1) (

a) of the Criminal Code states: 249

(1) Every one commits an offence who operates (

a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the 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 be at that place; [ 24 ] The evidence was that this incident took place at an intersection busy with both vehicles and pedestrians. Applying the test in R. v.

W.D. , on the basis of the evidence that I accept, which is essentially all of the testimony of the witnesses for the Crown, I have no hesitation in finding that the Crown has proven beyond a reasonable doubt that the defendant was driving a vehicle in a manner that is dangerous to the public as contemplated by Section 249(1) (a). [ 25 ] Furthermore, even if I were to accept or even prefer the evidence of the defendant over that of Mr.

Williams, which I do not, I would nonetheless find that the Crown has proven his guilt beyond a reasonable doubt by way of the uncontradicted evidence that the defendant intentionally pushed Mr. Williams’ vehicle through the intersection, drove away with Mr. Williams hanging from inside the vehicle, and driving onto the sidewalk while driving away. His behaviour on that date could easily have resulted in consequences far more serious than what occurred. [ 26 ] As such, I find Mr. Schickerowsky guilty of dangerous driving contrary to

Section 249(a). The Honourable Judge R. McQuillan Provincial Court of British Columbia