R. v. Stebih Date:, 2016 BCPC 67

Citation: R. v. Stebih Date: 20160105 2016 BCPC 0067 File No: AH86256289 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL STEBIH REASONS FOR JUDGMENT OF JUDICIAL JUSTICE B. L. EDWARDS Counsel for the Crown: Cst. Matt Baker Appearing for the Defendant: Jeremy Maddock, Law Student Place of Hearing: Colwood , B.C. Date of Hearing: December 21, 2015 Date of Judgment: January 5, 2016

[ 1 ] On December 11, 2014, Ms. Chicorelli was out for a walk when she was struck by a motor vehicle leaving the driveway of a residence in a suburb of Victoria known as Colwood, British Columbia. What happened next changed her life drastically and brought Mr. Stebih before this court charged under the Motor Vehicle Act with careless driving. BACKGROUND: [ 2 ] This matter was first heard by the Court on October 22, 2015. While it is not entirely clear that a plea was entered at that time, I am assuming that was the case as the Judicial Justice noted on the record that the Crown, as represented by Cst.

Matt Baker, intended to call 4 witnesses and that one-half day of Court time would be needed for the trial. Regardless, I confirmed with Mr. Stebih that he wished to plead not guilty to the charge. The Judicial Justice at the first appearance allowed an amendment to the ticket to change the charge from driving without due care and attention, contrary to s. 144(1)(

a) to an allegation under s. 144(1) (

b) of the Motor Vehicle Act , R.S.B.C. 1996, c. 318 (the "Act") of driving without consideration for others using the highway; both charges fall under the heading of "careless driving". [ 3 ] This was not a textbook perfect proceeding. At the outset of the trial on December 22, 2015, Cst. Baker candidly advised the Court that he was not familiar with the trial process and did not know where to begin. Mr. Maddock, a law student acting as agent for Mr. Stebih, advised the Court of concerns that he had regarding redactions made in the documents that had been disclosed to him. Cst.

Baker advised the Court that the redactions consisted solely of the dates of birth, addresses and phone numbers of witnesses. Neither party sought an adjournment and the trial proceeded. [ 4 ] Cst. Baker testified that as a member of the Western Communities R.C.M.P., he was on duty on December 11, 2014 and was dispatched to attend at the scene of a reported motor vehicle accident at 736 Kelly Road in Colwood, B.C. He testified that, when he arrived on scene, he noted a woman lying on the ground being attended to by paramedics. That is the sum total of the evidence that was clearly stated by the officer.

The remainder of his evidence was phrased very generally and in passive terms. He testified that "witnesses identified Mr. Stebih as the driver" and "he presented himself as such" and "the investigation identified him as the driver". He did not indicate who identified Mr. Stebih and whether that identification was made to him or another officer. He concluded his very brief testimony by stating that "information gathered" indicated that Mr. Stebih "rolled forward while trying to enter traffic into Kelly Rd. and impacted her".

He stated that his role involved taking statements from the injured woman (later identified as Ms. Chicorelli) and two other individuals. He noted that the two witnesses noted in the disclosure had been expected to testify but both were unavailable to attend as was the other officer who had been on scene and had taken a statement from Mr. Stebih. [ 5 ] Cst. Baker did not testify as to whether it was he or the other officer who wrote the Violation Ticket to Mr.

Stebih that brings him before the Court, nor did he indicate why the ticket was issued for the offence of "driving without due care" contrary to s. 144(1) (

a) of the Act (later amended as noted above to s. 144(1) (b)). I note that the issuing officer's badge number appears on the ticket as does an illegible signature. Generally, the officer prosecuting the case on behalf of the Crown is the issuing officer. [ 6 ] Under cross-examination by Mr. Maddock, Cst. Baker agreed that prior to declining to speak with Cst. Baker, Mr. Stebih had provided a statement to another officer. Cst. Baker didn't know what the content of that statement was but he believed that it was made prior to Mr.

Stebih being identified by witnesses as the driver. [ 7 ] The Crown called as a witness, Angelina Chicorelli who testified that she had been out for a walk "on Kelly Road" on December 21, 2014, a day she described as "rainy", "dark" and "grey". As she approached the driveway of a house that she believed to be located at 739 Kelly Rd. in Colwood, B.C., she noticed a motor vehicle in the driveway. She stated that she when she first saw the motor vehicle that it was facing forward, at the "foot of the driveway" which she described, further, as "where the driveway met the sidewalk".

The vehicle was running but not moving. As she approached the driveway, the vehicle began moving slowly forward toward her. She said she put her hand up and gestured in a "stop" motion. She believed the driver was looking at her at the time and that they made eye contact. She continued to walk across the driveway and as she moved in front of the motor vehicle when "he moved forward slowly". She then "banged" the car hood with her hand at which point she said the driver was looking away from her. Then, she said "he just gunned it and knocked me down" and drove over top of her leg.

She stated that the driver stopped the vehicle, jumped out of it and came toward her as she screamed at him to get the vehicle off her, which he did. [ 8 ] Ms. Chicorelli was clearly distraught at reliving these events during her testimony. It is not surprising that she was very focused on the impact and the serious injuries that she sustained and from which she continues to suffer.

She was not asked by the Crown whether she could describe the vehicle that hit her or the driver and she offered no description of either the car or the driver save to make several references to the driver using a male pronoun. [ 9 ] When asked by Cst. Baker if she saw the driver in the courtroom, Ms. Chicorelli identified the disputant, Mr. Stebih as the driver of the car that hit her. [ 10 ] In cross-examination, the law student acting as an agent for Mr. Maddock put a photo to Ms. Chicorelli and asked her if it depicted the location of the collision. She said it did.

When asked again about the address of that location, she stated that she might be mistaken as to the last digit of the address of the house but she was very confident of the location as she walked the route regularly and recognized the distinctive "Monkey Puzzle Tree" in the front yard. (I noted for the record that much of the foreground of the photo was taken up by a large blue SUV in a driveway and that there was a distinctive tree behind that vehicle.) When asked by Mr.

Maddock if the vehicle in the photos was "consistent with" the vehicle that she had seen in the driveway on December 11, 2014 she replied "yes, I guess it is. It's a blue SUV". This was the only time in the trial that the vehicle involved was described in any way. Ms. Chicorelli testified that the photo did not accurately depict the location of the vehicle at the time she noticed it moving forward; she said the vehicle had been further back in the driveway than depicted in the photo. [ 11 ] In response to a question from Mr. Maddock, Ms. Chicorelli acknowledged that she had been interviewed, in hospital, by Cst.

Baker and that she had provided a statement to him in which she had indicated that she could not be certain if she had made eye contact with the driver because it was a dark, cloudy day. Mr. Maddock suggested to her that the driver did not make eye contact with her. She

replied "I thought he looked in my direction. Maybe he didn't. Obviously, he didn't see me if he hit me." When asked to describe her attire on that day, Ms. Chicorelli said she was wearing a black jacket, with reflective strips, rain pants and pink running shoes. [ 12 ] The Disputant elected not to call any evidence in his defence. [ 13 ] A copy of Violation Ticket AH86256289 issued to Mr. Stebih for an offence alleged to have occurred on December 11, 2014 was part of the court file and had been since prior to the first appearance on this matter by the parties in October 2015. After Mr.

Maddock made closing submissions on behalf of the Disputant, Cst. Baker noted that he had forgotten to introduce the ticket into the record during the Crown's case. [ 14 ] I reserved judgment on this decision because at the conclusion of the Crown's case it became clear to me that many of the pieces of the "puzzle" of what occurred on December 11, 2014 were missing. Two witnesses and an investigating officer that the Crown had planned to call to testify were not present and no affidavit evidence was provided instead.

The Crown had not led any evidence as to the circumstances leading up to the ticket being issued and served on Mr. Stebih nor did the Crown clarify who wrote the ticket. Still further, the Crown failed to call any evidence regarding the direction that Ms. Chicorelli travelled on Kelly Road on the day in question. The officer offered a very limited description of the scene when he arrived (merely noting a woman being attended to by paramedics). He offered no descriptors of any vehicles on scene nor did he offer any descriptors of Mr. Stebih's demeanour at the time.

The Crown elicited only scant evidence as to the identity of the driver and the driving behaviour that had led to Mr. Stebih being charged with an offence. [ 15 ] The agent for Mr. Stebih unwittingly assisted the Crown to some extent by introducing a photograph which he suggested depicted the location and showed a vehicle that was at least "consistent with" the one that had hit her. Issue: [ 16 ] The question for me to determine is whether there is sufficient evidence to establish that Mr.

Stebih committed the offence of driving a motor vehicle without reasonable consideration for other persons using the highway on December 11, 2014. [ 17 ] There are 3 elements to this issue that require addressing : 1) The identity of the driver of the motor vehicle involved on December 11, 2014; 2) The location of the driving behaviour at issue, i.e. whether it occurred on a highway; and 3) The manner of driving, i.e. whether it was without reasonable consideration for other persons using the highway. Discussion: [ 18 ] Mr. Stebih is charged with breaching s. 144(1) (

b) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 which provides as follows: Careless driving prohibited 144

(1) A person must not drive a motor vehicle on a highway (

a) without due care and attention, (

b) without reasonable consideration for other persons using the highway ...

(2) A person who contravenes subsection (1) (

a) or (

b) is liable on conviction to a fine of not less than $100 and, subject to this minimum fine,

section 4 of the Offence Act applies. (emphasis added) [ 19 ] I am troubled by the fact that the Crown did not provide any evidence that Mr. Stebih was served with a copy of Violation Ticket AH85256289 either at the time of the incident or subsequently. In fact, I have no evidence before me establishing the identity of the officer who issued the ticket or of the officer's grounds to issue the ticket and whether the signature of the "alleged offender" on the ticket is, in fact, that of Mr. Stebih. [ 20 ] For the purposes of this decision, I am prepared to accept that Mr.

Stebih was served with the ticket and is aware of its content as he has twice appeared in court in response to the allegation on the ticket, set the matter down for trial and arranged for a law student to represent him at the trial. As a result, I am satisfied that he was served with a copy of the ticket. [ 21 ] The Crown bears the onus of establishing each of the elements of the offence noted on the ticket (as amended) beyond a reasonable doubt, i.e. that Mr. Stebih was the driver; that the location of the collision was on a highway; and that Mr.

Stebih's driving behaviour was such that it was without consideration for other persons who were using the highway. [ 22 ] I am satisfied based on the uncontroverted evidence of Ms. Chicorelli, that Mr. Stebih was the driver of the vehicle that hit her on December 11, 2014. She saw the person who was behind the wheel of the car prior to being hit by it and she saw the driver who alit from the vehicle and came to speak with her where she lay trapped under the vehicle before returning to the vehicle and driving it off of her leg. She identified Mr. Stebih as that person. [ 23 ] I also accept Ms.

Chicorelli's evidence that, at the time she was struck by Mr. Stebih's car, she was walking on the shoulder area of Kelly Road; an area that is separated from the vehicle lane by a white line. That shoulder area is clearly depicted in the photo introduced by Mr. Maddock on behalf of Mr. Stebih and was marked as an exhibit at trial. I find that, at the time she was struck, Ms. Kelly was a pedestrian walking on the shoulder portion of a public road where that road intersected the driveway of a home.

The exact house number is not relevant but I find that the incident occurred in the driveway of a home in the 700 block of Kelly Road which has a distinctive tree (a "monkey puzzle tree") in the front yard.

[ 24 ] The shoulder of a public road is part of a highway. While much was made of the fact that Ms. Chicorelli thought that the portion of the road she was walking on was a "sidewalk", I find that her belief as to the characterization of the area is irrelevant. [ 25 ] The Act defines a highway in

section 1 as follows: "highway" includes (

a) every highway within the meaning of the Transportation Act , (

b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and (

c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited, (

d) but does not include an industrial road; [ 26 ] As a result, I find that Ms. Chicorelli was a "person using the highway" within the meaning of s. 144(1) (

b) on December 11, 2014 when she was struck by Mr. Stebih's vehicle. [ 27 ] The only remaining question is whether the driving behaviour of Mr. Stebih rose to the level of "driving without consideration" to Ms. Chicorelli as another person using the highway. I note, in passing, that

section 176 of the Act , a

section that specifically addresses situations where a driver is emerging from a driveway that crosses a sidewalk or sidewalk area, provides that pedestrians have the right of way over emerging vehicles. However, Mr. Stebih was not charged with that offence for reasons which are not apparent to me. It was one of many unanswered questions that the Court was left with at the conclusion of this trial. [ 28 ] Mr. Maddock, on behalf of Mr. Stebih, argued that the offence of driving without reasonable consideration for other persons using the highway requires more than a moment of inadvertence. The Law: [ 29 ] In R. v.

Malcolm, 2015 BCSC 306 at para. 21 , Mr. Justice Rogers held that the “true test” of driving without reasonable consideration was articulated by the Honourable Judge Hoy of this Court in R. v. Joe , [1994] B.C.J. No. 2017 at para 20 where the Court held: [20] The test, in my view, is contained in the

section itself. Thus, is the driving done without consideration of the conditions and use of the roadway by others, in such circumstances where a reasonably prudent driver ought to have been aware of the potential dangers posed or created? [ 30 ] Justice Rogers added that: [22] The test does not require that an accused motorist be liable for one or more violations of the Act .

It simply requires that the evidence show that given the circumstances of the time and place the accused, as a reasonably prudent driver, ought to have been aware that his driving exposed other users of the highway to potential danger. [23] This is an objective test. [ 31 ] I am not satisfied, beyond a reasonable doubt that Mr. Stebih failed to take the steps that a reasonably prudent driver would take in the circumstances. There is no evidence that he was "careless" as to the safety of other users of the highway such as pedestrians like Ms. Chicorelli.

Neither is there any evidence that he ought to have been aware that his driving exposed others users of the highway to potential danger. [ 32 ] Rather, the evidence before me is that December 11, 2014 was a dark, cloudy winter day and it had just stopped raining. Ms. Chicorelli was a pedestrian who was wearing dark clothing. She cannot be certain that Mr. Stebih saw her before she stepped in front of the vehicle, neither can I. Mr. Stebih was driving out of the driveway of a house, facing forward and moving slowly as he attempted to enter traffic on Kelly Road.

That evidence falls far short of establishing driving behaviour that is careless or demonstrates a lack of reasonable consideration for other persons using the highway. Similarly, the evidence does not establish that Mr. Stebih ought to have been aware that his driving exposed other users of the highway to potential danger. [ 33 ] I know that the result in this case may be troubling to Ms. Chicorelli who has obviously been deeply affected by the events of December 11, 2014. I regret that. Nonetheless, the limited evidence before me does not establish that Mr.

Stebih was careless or that he acted without consideration for her. As a result, I find Mr. Stebih not guilty of driving without consideration for others contrary to s. 144(1)(

b) of the Act and I order him acquitted of that charge. Brenda L. Edwards Judicial Justice