R. v. Jack Date:, 2013 BCPC 335

Citation: R. v. Jack Date: 20131216 2013 BCPC 0335 File No: 95910 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EVELYN ANNE JACK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. Donald Mann Appearing on their own behalf: Ms. Evelyn Jack Place of Hearing: Kamloops , B.C. Date of Hearing: November 28 and November 29, 2013 Date of Judgment: December 16, 2013

[ 1 ] December 2, 2012 was a cold but clear day. Gregory Harris, as is his usual habit, brought his autistic son down to the Lansdowne Village Mall to watch the trains go by. They spent their usual hour to an hour and a half in this pleasurable pastime. Then Mr. Harris left his son in the vehicle while he walked into Coopers Foods to buy some lunch food. [ 2 ] In the meantime, Evelyn Jack was attending to her own errands. She drove into Lansdowne Village Mall parking lot just behind Christy Reinson, who was parking her vehicle in front of the Coopers Food store, and just ahead of Amy Arndt. By Ms.

Arndt’s account, Ms. Jack was in no hurry, driving slowly through the parking lot. Ms. Arndt described herself as an impatient person. She sat while Ms. Jack attempted to park in the handicapped parking spot. The parking job was not particularly good and Ms. Arndt expected Ms. Jack to pull back out to straighten up. She watched the vehicle while she waited to see what the driver would do. [ 3 ] Ms. Reinson had already parked in her parking spot and was in the process of exiting her vehicle. Mr. Harris was just then walking along the sidewalk, had passed Ms.

Reinson’s vehicle and was almost in front of the handicapped spot Ms. Jack was pulling into. [ 4 ] Mr. Harris said he was right between the pillar marking the front of the Coopers Food entrance and the handicapped spot Ms. Jack was pulling into when he heard the engine rev and saw the van moving toward him. He stuck out his hand in a futile effort to stop being struck and tried to hop out of the way. Ms. Jack’s vehicle came over the sidewalk, knocked over the pedestrian parking post and struck Mr. Harris, pinning him against the pillar. Once he was pinned, Ms. Jack accelerated, crushing Mr.

Harris’ leg against the ornamental surround on the pillar. [ 5 ] Ms. Reinson saw the accident out of the corner of her eye as the vehicle was accelerating over the sidewalk. The noise of the van striking the handicapped post attracted her attention and she saw the van accelerate and hit Mr. Harris. [ 6 ] Ms. Arndt did not see the accident happen, having started to pass the location of Ms. Jack’s vehicle. She heard the noise, looked back but did not see that a person had been struck. She carried on her way. [ 7 ] Ms.

Reinson said the van had been moving too quickly to be braking when she first noticed it going over the sidewalk. Ms. Arndt confirmed that she did not see brake lights as she waited to determine if the driver was going to back out and straighten up or simply stay parked the way it had pulled in. [ 8 ] Ms. Jack gave her statement to Cst. Peters, one of the attending officers. She told Cst. Peters that she was not sure but thought her foot slipped off the brake onto the gas, and then the van went up onto the sidewalk and hit the man.

At trial, she said she didn’t know, but when she pulled into the parking spot everything went out of control. She said she knew her foot was on the brake and it slipped off onto the gas, but it happened so fast that she just does not know. She speculated that her foot must have been muddy. [ 9 ] Steve Aasen has known Ms. Jack for about five years. He is a neighbour who lives in the same building at the Glenfair Seniors Residence. Ms. Jack has been the Vice President of their group for the last four years. In that capacity, Mr. Aasen and Ms.

Jack have driven together at least once a week for a full year collecting bottles to put toward a Christmas fund for families in need. He believed he had been in her vehicle a hundred times or more. He described her as a very good driver. He had himself been a taxi driver for 30 years and was accident free. He said that he knows quite a bit about driving and has never found fault with any of her driving habits. However, he said that their parking lot is often very muddy and it could well have been muddy on this particular day. [ 10 ] There is no objective evidence of what Ms.

Jack’s parking lot looked like on that particular day. The roads themselves and the parking lot at Lansdowne Village Mall were clear and dry with no snow or ice evident in any of the photographs. [ 11 ] The photographs of Ms. Jack of the scene of the accident show her wearing white running shoes which do not appear to have any mud on them. Similarly, the photographs taken by Cst. Gillingham of the foot well in her van show an accumulation of dry dirt on the floor mat. There is some dirt in the grooves of the brake pedal but it is not particularly dirty. The gas pedal is almost entirely dirt free.

There is no evidence that there was a build up of mud scraped off of the brake pedal or on the gas pedal. [ 12 ] Kevin Wallace is an automotive mechanic who has been in business since 1990 and has done over 100 post-crash vehicle inspections for the RCMP in Kamloops. He is also a licensed motor vehicle inspector for the Province of British Columbia. He inspected Ms. Jack’s van and determined that the brake system, steering system and accelerator system are all in good working order.

There was nothing mechanical wrong with the vehicle. [ 13 ] Constable Dawn Gillingham is an automobile collision expert with the RCMP. She examined the scene where one front tire mark had left imprints on the sidewalk. She determined from the marks that the van drove up over the sidewalk, knocked down the handicap post, and collided with Mr. Harris and a cement garbage structure. The cement garbage structured was shattered when it was knocked over and Mr. Harrison was pinned against the cement pillar.

At the point where he was pinned, the van accelerated on the spot, heating up the tires and leaving a particularly dark mark on the sidewalk. This coincides with Mr. Harris’ recollection of lying on the sidewalk watching the tires spin for three to five seconds after he was struck. The van then backed up, leaving traces of the now hot tire in a line leading from the accelerating spot back to where Ms. Jack reversed her vehicle. Constable Gillingham found no evidence of any braking tire scuff marks. [ 14 ] The video surveillance of the parking lot captures in a still frame recording as Ms.

Jack’s van entered the parking spot and then as she struck Mr. Harris. However, it is impossible to determine from the video alone, Ms. Jack’s speed or whether she stopped before driving up over the sidewalk. [ 15 ] I find on the evidence before me that Ms. Jack pulled into the parking spot but did not brake or stop. Instead, she accelerated up over the crosswalk, colliding with the handicap post and then striking Mr. Harris and the cement garbage can. The horrifying outcome is that Mr. Harris was pinned so tightly against the post that when she accelerated, his lower leg was severed.

[16] There is no question that this is an accident in the sense that Ms. Jack had no intention of striking Mr. Harris. The question iswhether she was driving without due care and attention. [17] While I do not accept that Ms. Jack had her foot on the brake pedal, or that mud caused her foot to slip from the brake pedalonto the gas pedal, I will also consider this scenario against the case law. [18] I was provided with the following decisions: Adam v. Morrison, 2002 Y.K.C.A. 15; HMTQ v. Funk, 2005 BCSC 1873, 2005 B.C.S.C., 1873; R. v. Tubbs, 2006 BCPC 224 , [2006] B.C.J. No. 1206; and R. v.

Reid, 2010 BCPC 32, [2010] B.C.J. No. 555. [19] As each of the cases point out, driving without due care and attention is a strict liability offence. That means the Crown needsto show that the manner of driving in question departs from the accustomed sober behavior of a reasonable person. The accused personmay then avoid liability by proving that he or she took all reasonable care. What is expected of the reasonable person is highlighted inthe decision of Funk where a two litre water bottle fell into the driver’s foot well preventing him from pressing the brake or clutch.

Thereasonable and prudent driver is expected to foresee certain incidents occurring, such as a water bottle falling into a well. Similarly, Mr.Mann argued that even if Ms. Jack had mud on her shoes causing her foot to slip from the brake pedal, a reasonable and prudent driverwould ensure their footwear was clean and appropriate for driving. I agree.

While no reasonable and prudent driver would be expectedto ensure their footwear was entirely clean every time they got into their vehicle, it is incumbent upon anyone driving their vehicle toensure that their footwear is safe and is not going to cause a foreseeable accident. [20] In Tubbs, the court addressed whether driving skill was a factor. Ms. Jack has a clean driving record and is found to be a gooddriver by one of her most frequent passengers. In Tubbs, the court addressed the distinction between inattentive and inadvertence. In thiscase, however, I am satisfied that Ms.

Jack was both inattentive and that she acted inadvertently. Her inattentiveness comes from themanner in which she parked poorly in a handicapped spot she should not have been occupying. While she had a handicapped sticker inthe vehicle, it was not for her purposes but for a passenger who was not with her that day. Ms. Arndt described Ms. Jack parking in theparking spot poorly and not taking any steps to correct her manner of driving. Both of these are factors which suggest Ms.

Jack wasinattentive. [21] The absence of any brake marks also go to show that she was inattentive in continuing to drive into the parking spot and overthe sidewalk into Mr. Harris. The inadvertence is in the act of pressing the accelerator instead of the brake, and in accelerating instead ofbraking once she struck Mr. Harris. Absent mechanical failure of the vehicle, which is not present in this case, there can be no otherexplanation for why Ms. Jack drove over the sidewalk and then accelerated once she struck Mr. Harris, other than inattentiveness. Areasonable and prudent driver would have done neither.

As stated in the decision in Reid, this kind of inattentiveness goes to the veryheart of driving without due care and attention. [22] Ms. Jack defended this charge on the basis that this was just an accident. It is true that driving without due care and attentionoften leads to an accident as it is inadvertent negligence, but it is a different kind of accident from that which would acquit Ms. Jack ofthis charge.

A pure accident can occur in certain circumstances, such as where a properly maintained vehicle has a mechanical failureleading to the accident; where a sudden patch of black ice appears on an otherwise dry road; or a pedestrian steps into the path of avehicle which is otherwise travelling in a manner it ought to be travelling; or any other number of possible scenarios where a reasonableand prudent driver could not avoid the incident. A pure accident does not contemplate circumstances where a reasonable and prudentdriver ought to have been able to avoid the incident such as the case was here.

I am therefore satisfied that the Crown has proved its casebeyond a reasonable doubt. __________________________ S.D. Frame Provincial Court Judge