R v TLC, 2024 ABCJ 23

In the Alberta Court of Justice Citation: R v TLC, 2024 ABCJ 23 Date: 20240131 Docket: 221037617Y1 Registry: Calgary Between: His Majesty the King Crown - and - TLC Young Person Restriction on Publication Identification Ban – See the Youth Criminal Justice Act , section 110(1). No person shall publish the name of a young person or any other information that may identify a young person as having been dealt with under the Youth Criminal Justice Act . NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published.

Identification Ban – See the Youth Criminal Justice Act , section 111(1). No person shall publish the name of or any other information that may identify a child or young person as having been a victim of -or- appeared as a witness in connection with an offence committed or alleged to have been committed by a young person. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Written Decision of the Honourable Justice R.J. O’Gorman [ 1 ] The young person, TLC, is charged with the following offences under the Criminal Code of Canada , RSC 1985, c C-46

( CC) : Count 1: On or about the 21 st day of June 2022, at or near Calgary, Alberta, did unlawfully wound, maim, disfigure or endanger the life of the complainant, ES, thereby committing an aggravated assault, contrary to s 268 of the CC ; and Count 2: On or about the 21 st day of June 2022, at or near Calgary, Alberta, did commit an offence under s 320.16(2) of the CC : failure to stop after an accident. [ 2 ] The young person, TLC, and the complainant, ES, had once been friends. For some reason not disclosed, the two had stopped being friends and they had been in some sort of fight.

Nevertheless, ES thought the situation was now settled. [ 3 ] On June 21, 2022, ES and her boyfriend, EH, were waiting at a bus stop on 41 st Street in Calgary, Alberta, when TLC drove by in her mother’s truck. Words were exchanged and a water bottle was allegedly thrown at ES. A passenger in the truck then allegedly threw a yogurt container at ES. When ES and her boyfriend got on the bus, TLC followed the bus in the truck. [ 4 ] When ES and her boyfriend got off the bus, TLC was still driving the truck and continued to follow them. ES took a photo of TLC in the driver’s seat of the truck.

There were some snap-chat messages back and forth between the parties and there was a suggestion that TLC wanted to fight ES. According to ES, they tried to evade TLC and the truck. ES and her boyfriend entered a back alley. Approximately halfway down the alley the truck entered the alley behind them. Allegedly ES was hit by the truck, after which the truck sped out of the alley. ES was later treated in hospital for her injuries. [ 5 ] TLC’s position is that the Crown has not established that a collision occurred.

TLC suggests that upon evaluation of the credibility and reliability of the evidence given by ES and her boyfriend, that their testimony does not align with the medical documentation and the photographs which were entered as exhibits. TLC submits that the evidence of ES and her boyfriend is also inconsistent, both internally and externally, and that there is a lack of physical evidence to confirm that the accident actually took place. [ 6 ] No evidence was called on behalf of the Defence.

Issues [ 7 ] This case will require a thorough and reasoned evaluation of the evidence provided by the Crown, and whether there is a lack of any evidence necessary for the Crown to prove its case. The issues are: 1. Has the Crown proved beyond a reasonable doubt that TLC was the driver of the truck at the time of the alleged incident? 2. If TLC was the driver, did she intentionally strike ES with the truck? 3. If TLC was the driver of the truck, did she intend to leave the scene to escape civil or criminal liability? 4. Did ES suffer bodily harm as a result of being hit by the truck?

The Trial [ 8 ] This matter was heard on December 5 and 7, 2023, in Calgary. The Crown called three witnesses: the complainant, ES; the complainant’s boyfriend, EH; and the investigating officer, Constable Schute of the Calgary Police Service.

The Crown entered into evidence a total of six exhibits as follows: • Exhibit #1: Medical Records from the Hospital Emergency Room. • Exhibit #2: Snap-chat photo of the accused behind the wheel of the grey Dodge Ram truck. • Exhibit #3: Photo of the complainant’s facial injuries. • Exhibit #4: Photo of the complainant’s back injuries. • Exhibit #5: Photo of the complainant’s elbow injuries. • Exhibit #6: A series of four photos of the grey Dodge Ram truck. Evidence at Trial: Witness No. 1 – Complainant, ES [ 9 ] ES testified that she is currently 17 years of age and has completed grade 12.

She is currently on a “gap” year and, as a result, is not in school. On June 21, 2022, ES was at a bus stop with her boyfriend, EH. According to ES, as the truck drove by, a water bottle was thrown at ES and ES stated it was TLC that threw the water bottle. TLC was driving the truck. ES further stated that a passenger in the truck threw a yogurt container at her. ES testified that she and her boyfriend got on an arriving bus and TLC, in the truck, followed the bus.

According to ES, the passenger in the truck snap-chatted a message to her telling her to get off the bus. [ 10 ] ES explained that she and TLC, as well as the passenger in the truck, had previously all been a part of the same friend group. Once again, no reason was given but ES stated that she and the other girls were no longer friends. ES stated that she and her boyfriend

got off the bus at their regular stop. According to ES, the truck with TLC driving it continued to follow them. ES testified that TLC said that she wanted to fight her, one on one. ES stated that she responded by saying that she thought it had all been settled. [ 11 ] ES stated that they were on their way to her boyfriend’s grandmother’s house and that she didn’t want TLC to know where the grandmother lived because she was afraid of what she might do. According to ES, they tried to evade TLC and turned into an alley and walked halfway down.

ES stated that the truck then appeared at the entrance to the alley where she and her boyfriend had entered. ES thought the distance between themselves and the truck might have been 100 feet. ES stated that she was afraid that TLC would bear spray her because TLC had yelled that she had bear spray. [ 12 ] ES testified that she had her back to the truck, that she heard the truck engine “rev” and then she got hit. ES believed that it was approximately two seconds from when she heard the truck engine rev until she was hit. According to ES, she was hit in the back, caught some air, and then she hit the ground.

ES stated that she “flipped” and that she landed face down on her right side. ES testified that she did not see who was in the truck when she got hit. [ 13 ] ES stated that the truck drove down to the end of the alley and then made a sharp turn out of the alley. According to ES, the truck did not stop after hitting her, and that no one from the truck asked if she needed help. ES confirmed that the truck that hit her was the same grey Dodge Ram truck that had followed her and her boyfriend into the alley.

ES stated that approximately five minutes before she had been hit by the truck, she had taken a snap-chat photo of TLC in the grey Dodge Ram behind the driver’s wheel. ES confirmed that the photo she had taken of TLC in the driver’s seat was in fact TLC, and it was marked as Exhibit No. 2. [ 14 ] ES testified that at the time of the incident she was wearing a backpack. As to the impact, ES stated that she hit the right side of her body - her face, the right chest, down to her right foot. According to ES, she initially did not feel much pain and stated that she believed that her adrenalin had kicked in.

ES stated that her boyfriend started to freak out. After helping her up, the boyfriend asked ES to check all of her teeth. They then walked to the boyfriend’s grandmother’s house. [ 15 ] ES confirmed that at the time of the incident, there was no one else in the alley, and that, specifically, there had been no other vehicles in the alley. While at the grandmothers, it was suggested that ES should go to the hospital and ES went to the hospital that evening with the boyfriend and her mother. In the emergency room at the hospital, ES was placed in a wheelchair and given some Tylenol for the pain.

Eventually, ES was admitted to the hospital, and she was administered a number of tests including an MRI and X- rays. ES was also given an IV. [ 16 ] ES testified that she spent the night at the hospital. According to ES, the medical staff recorded that she had sustained soft tissue injuries and bruising, a ligament was torn, facial injuries including road burn, scratches, and a loss of skin on her chin and nose. The day after she got back from the hospital ES took photos of her facial injuries, these were marked as Exhibit No. 3.

ES confirmed that as a result of her injuries she had a swollen lip, road rash, and scratches on her nose, chin, and right cheek. ES also confirmed that all of these injuries were the result of being hit by the truck from behind in the alley. None of these injuries existed prior to the incident in the alley. [ 17 ] ES stated that it took approximately three weeks for most of the injuries to heal. ES confirmed that the photos of her bare back showed scratches along the spine and stated that the photo was taken the day after her hospital visit.

ES stated that her mother had taken the photo and that these injuries healed in two weeks. This photo was marked as Exhibit No. 4. ES stated that the photo of her elbow had been taken a few days later because the injuries to her chin had already begun to look better. This photo was marked as Exhibit No. 5. [ 18 ] With respect to the leg injury being a torn ligament, ES testified that it took approximately a year and a half to heal. As a result of the leg injury, ES was unable to continue her apprenticeship as a surveyor, and she lost the job.

ES explained that because the apprenticeship work involved construction sites that she couldn’t go to, that technically, she was laid off. ES did admit that during one of the exchanges with TLC, she had threatened her with her own bear mace. According to ES, she had stated that since they both had bear mace it would be just a “spray battle”. ES stated that she had bear mace in her backpack for protection, but that she never took it out of the backpack. [ 19 ] ES testified that on June 21, 2022, she had consumed no alcohol or drugs.

ES also confirmed that it was the hospital that contacted Calgary Police Service (CPS) and not her. A statement was eventually provided to CPS a few days later. At this point, a tape measure was used in the court room to try to determine what the distance had been between ES and the truck. ES had previously testified that the distance was approximately from the witness box to where her mother was sitting in the gallery, and there had been a suggestion it was approximately 100 feet. Using the tape measure, it was determined that distance was only 26 feet. That concluded the direct examination of the witness.

Cross-examination by Defence Counsel [ 20 ] Under cross-examination, ES confirmed that she and her boyfriend were at the bus stop for approximately ten minutes. ES stated that TLC could have thrown the yogurt container at her. Then ES and her boyfriend got on the bus for about five minutes. When they got off the bus, the truck followed them. According to ES, they were trying to evade the truck by going down back alleys, this continued for approximately five minutes.

ES stated that she and her boyfriend were halfway down the alley being closer to the right side of the alley and her boyfriend was on her right-hand side. [ 21 ] ES testified that she heard the rev of an engine and turned her head to the left then back again. ES stated that she was afraid of being bear sprayed. ES confirmed that from the time she heard the engine rev to the time that she got hit was approximately two seconds. According to ES, the backpack took the majority of the blow. The doctors at the hospital told ES that the backpack could have saved her life. ES described the alley as very long.

After being hit, ES confirmed that her boyfriend told her to check her teeth. [ 22 ] Still under cross-examination ES was asked whether she had sent a text message to TLC to come back. ES did not respond. As to an alternative version of events, ES was asked whether the truck actually stopped in the alley and TLC got out to fight ES. The answer

from ES was no. ES was then asked if TLC threw her to the ground during the fight. The answer from ES was no. ES was asked if TLC got back in the truck and drove off. The answer from ES was no. That concluded the cross-examination. Evidence at Trial: Witness No. 2 – Complainant’s boyfriend, EH [ 23 ] EH stated that he has graduated grade 12 and that he currently works at McDonalds. On June 21, 2022, he confirmed that he and his girlfriend, ES, were waiting at a bus stop. Someone threw something at ES from a truck. He described the truck as being dark grey in colour but he couldn’t remember the model.

He confirmed that TLC was driving the truck. He stated that although he had never met TLC before this incident, that ES had shown him photos of TLC earlier because ES and TLC used to be friends. He confirmed it was TLC and a passenger in the truck and that someone threw what could have been a water bottle at ES. [ 24 ] According to the boyfriend, after he and ES got on the bus, the passenger in the truck was sending ES videos from the truck behind and following the bus. Once they got off the bus the truck was there and, according to EH, there was an aggressive exchange between TLC and ES.

The boyfriend stated that they started to walk down 8 th Avenue and the truck was following, but on the opposite side of the road. He confirmed that TLC was driving the truck, and that TLC and ES were talking back and forth. According to the boyfriend, TLC wanted to fight, and ES was telling her to go away. [ 25 ] The boyfriend testified that he and ES entered an alley and approximately halfway down he heard an engine rev. According to EH, he turned around and saw the grey truck. He confirmed that the grey truck was being driven by TLC.

Next, he testified that he saw ES go flying and that she went “across my face”. EH stated that ES went approximately three to five feet in the air. According to the boyfriend, ES’s face was all bloodied. [ 26 ] EH admitted that he did not see the actual contact between the truck and ES because he was looking at his phone. According to the boyfriend, ES ended up beside some sort of hedge or bush beside the fence. The boyfriend stated that the truck speed off at this point.

The boyfriend stated that the truck did not stop, no one from the truck asked if ES needed help and there was no one else in the alley at that time. [ 27 ] The boyfriend testified that TLC did not get out of the truck at any time in the alley. After ES had flown in the air and landed on the ground, her nose and cheek were scrapped, and she had road rash. According to the boyfriend, the injuries happened after she was hit. He stated that the truck briefly slowed down and then speed away. EH and ES went to his grandmother’s home nearby. He confirmed that he had not consumed any alcohol or drugs that day.

Cross-examination by Defence Counsel [ 28 ] Under cross-examination, EH confirmed that he and ES were waiting at the No.58 bus stop. The boyfriend stated that something was thrown at ES and that it could have come from the passenger’s side of the truck. While on the bus, he confirmed seeing a photo of the back of the bus that was sent from someone in the truck. When they got off the bus and were walking down the street, the truck continued to follow them by driving beside them.

According to the boyfriend, ES had told TLC to get out of the truck. [ 29 ] The boyfriend testified that after approximately five minutes he and ES turned into an alley. About halfway down the alley, the truck entered the same alley. The boyfriend stated that he looked back at the truck when he heard the engine rev and then he looked ahead again. He and ES were holding hands as they walked down the alley. EH testified that the time from when he heard the engine rev to ES getting hit was approximately six seconds. [ 30 ] The boyfriend stated that upon being hit, ES flew through the air in front of him.

He was asked how close the truck came to him and he stated that he was looking at his phone. The boyfriend said that ES landed on her left side. He further stated that the truck never stopped moving. Interestingly, the boyfriend was asked if the truck came close to running over ES and he answered by saying that ES flew to the right. After helping ES up, he then helped her walk to his grandmother’s house. The boyfriend stated that ES still had the backpack on.

According to the boyfriend, CPS was not called at this point. [ 31 ] As to an alternative set of events, the boyfriend was asked if the truck stopped in the alley and TLC got out of the truck. The boyfriend answered no. The boyfriend was asked if in the alley, that TLC and ES had a physical fight. The boyfriend answered no. Finally, the boyfriend was asked if after the fight, had TLC then drove away. The boyfriend answered no. That completed the cross- examination. Evidence at Trial: Witness No. 3 – Constable Schute [ 32 ] Constable Schute has been with CPS since 2021.

Constable Schute responded to an incident report and on June 23, 2022, attended the residence of ES who resides with her mother and father. The Constable observed ES to have large facial injuries and bruising, and that she had a limp. On June 24, 2022, the Constable attended the residence of TLC who lives with her mother. The Constable took photos of a grey Ram truck registered to TLC’s mother. The Truck had damage to the right front end. The photo was marked as Exhibit No. 6. In October 2022, Constable Schute reattended TLC’s residence and TLC was arrested. TLC’s mother was present at the time of arrest.

That concluded the evidence at trial. Legal Analysis and the Analytical Framework to Assess Reasonable Doubt

[33] The Crown is required to prove the essential elements of each offence beyond a reasonable doubt: R v Shrivastava, 2018ABQB 998 at para 54. To be clear, it is the Crown’s burden to prove each and every element of the offences that TLC has been chargedwith. The key issue is whether the Court is satisfied beyond a reasonable doubt that TLC was driving the truck at the time ES was hit.The Court must assess the reliability and credibility of the evidence provided at trial.

It is well established that I can accept all, some ornone of the witness’s testimony. [34] The Supreme Court of Canada (SCC) has provided trial courts the analytical framework to assess reasonable doubt in acriminal trial: R v W(D), (SCC), [1991] 1 SCR 742 . Because the Defence did not call any evidence at trial, any evidenceinconsistent with guilt would, by necessity, need to arise within the context of the Crown’s case. [35] In his paper, Doubt about Doubt: Coping with R. v.

W.(D.) and Credibility Assessment, (2017) 22 Can Crim L Rev 31,Professor David Paciocco, now Ontario Court Justice Paciocco, recasts the W(

D) test as follows:

a) the trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

b) even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true there isa reasonable doubt and an acquittal must follow;

c) even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and

d) even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt. [36] In R v L (DO), (SCC), [1993] 4 SCR 419, Justice L'Heureux-Dubé agreed with the trial judge’s position andreferred to O’Sullivan JA, who she stated had “succinctly enunciated” the test as follows at para 317: The only question for the trier of fact at the end of the trial is whether or not, on the whole of the evidence, the Crown has proved itscase beyond a reasonable doubt.

If it has, the accused must be convicted. If there is a reasonable doubt, the accused must be acquitted. [37] To assess the reliability and credibility of the witness’s evidence, the Court will assess the witness's ability to recall, perceiveand communicate the necessary evidence. Factors to be considered include: 1.

The internal consistency with other parts of the witness’s evidence given at trial; 2. the consistency of the witness's account over time; 3. the external consistency of the evidence with that of other credible witnesses; 4. any independent physical or documentary evidence; 5. the inherent plausibility of the evidence; 6. the balance of the evidence and the witness’s willingness to be fair and forthright; and 7. to some extent, the attitude and demeanor of the witness. [38] Under these factors for consideration and the analytical assessment framework, the Court is to address the first issue asfollows: 1.

Has the Crown proved beyond a reasonable doubt that TLC was the driver of the truck at the time of the alleged incident? [39] The Defence has suggested that the Crown has fallen short of establishing that a collision even occurred. According to theDefence, if the Crown has failed to prove the collision happened, then there is no proof beyond a reasonable doubt - and as a result, TLCshould be acquitted of both charges.

To be clear, the position of the Defence is that the alleged collision has been made up by ES and herboyfriend, EH. [40] The Defence has argued the evidence of ES, and her boyfriend, is not credible and is inconsistent, both internally andexternally. Specifically, the Defence has suggested that the evidence of ES and her boyfriend is contradictory as to what happened afterthey got off the bus and before they entered the alley. ES testified they were seeking to evade the truck through the alleys and thatapproximately five minutes went by before they entered the alley where she said she got hit.

ES also testified that she thought the truckhad left the scene by that time. The boyfriend did not mention alleys in the plural sense, and he did testify that they had walked straightdown the block. Nevertheless, the boyfriend did state that they walked for approximately five minutes before turning into the alleywhere ES got hit. In my opinion, there is no significant contradiction in the evidence of ES and the boyfriend. [41] The Defence has also suggested that there is a contradiction as to the time interval between when the engine was revved, andwhen ES was hit.

ES had testified that the time period between the two events was approximately two seconds. The boyfriend hadtestified that he believed the time period between the two events was approximately six seconds. Apart from the fact that given all of thecircumstances this is not, in my opinion, a significant contradiction. I concur with my British Columbia colleague, Provincial Court JudgeJudith T. Doulis in R v Naziel, 2017 BCPC 427, where she stated in para 46: I find J.B. a reliable and credible witness, with one caveat: I do not accept that prior to having been hit by the vehicle, Mr.

Morris arguedfor two minutes with its driver and then two minutes with the female passenger. Lay witnesses, particularly young people, arenotoriously inaccurate estimating time ...

[42] The Defence has also suggested that it was “absolutely preposterous” that upon noticing the truck at the entrance to the alleythat both ES and the boyfriend would continue walking down the alley with their backs to the truck. ES had testified that she was afraidof getting bear sprayed by TLC and the boyfriend had testified that he was looking at his phone. [43] The Defence questioned the boyfriend’s recollection of the incident because he could not tell how close the truck came tohimself, as he was holding hands with ES at the time of the incident.

The Defence was also critical of the fact the boyfriend could notrecall if his arm was jerked forward or not. I do not recall the witness being asked this question in cross-examination, and I note that theboyfriend, in direct examination and his cross-examination, clearly testified that ES flew in the air approximately three to five feet infront of him to the right.

Defence also questioned the fact that ES testified that she landed on her right side whereas the boyfriend statedshe landed on her left. [44] The Defence has also argued that the physical evidence or the lack of physical evidence suggests that there is no evidence thatthe truck hit ES. The Defence’s position is that a vehicular collision between a truck and a victim wearing only a t-shirt should haveresulted in more injuries.

The Defence proposed that the evidence of ES “does not reflect the common experience of people”.Specifically, Defence argues that the following physical evidence is missing: • No evidence of a damaged backpack. • No evidence of torn or ripped clothing. • No pictures of the accident scene. • No pictures of blood stains. • No samples of blood. • No DNA evidence. • No ultrasound. [45] The Defence suggestion that the absence of this physical evidence somehow prevents the Crown from linking TLC to thecollision is not reasonable.

The absence of this physical evidence does not raise a reasonable doubt, and the Defence position iscompletely speculative. [46] The Defence also referred to the medical record from the hospital emergency room to suggest that ES’s injuries were not thatserious. At page 11 of the medical record Defence read for the court: ES is a 16-year-old female presenting with trauma, altercation with old friends, walking down alley, was walking away from the truck,and the truck hit her side, and fell forward onto face. c/o pain to abrasions on face/chin + R. Leg + L. upper abdomen/lower chest wallanteriorly. No SOB.

No Head Injury/LOC/Vomiting [47] At page 12 of the medical report the Defence counsel read for the court: No head trauma, denis c-spine tenderness. PEARLA. denies NV. Present with mother and boyfriend. [48] At page 16 of the medical report the Defence counsel read for the court: 01:30 Domestic Violence Questionnaire Is there concern for you or your children?: (asked in private) 01:33 Domestic Violence Questionnaire Is there concern for you or your children?: No (asked in private) [49] Defence counsel suggested that ES was questioned in private on two occasions by the nurse about the potential of domesticviolence.

I am not sure that is an accurate description of the nurse’s notes. It is true the question was asked in private, but the firstquestion was asked at 1:30am “Is there concern for you or your children”. There is no answer recorded. Again, at 1:33am, the nurseasked the same question. This time the nurse recorded that ES responded “No”. Neither ES nor the boyfriend were asked any questionsabout domestic violence in cross-examination. [50] I find that the Crown has proved beyond a reasonable doubt that TLC was driving the truck on June 21, 2022, when it hit ESin the alley.

I rely on the evidence of ES and the boyfriend who I found to be credible and reliable witnesses. [51] Both ES and the boyfriend were candid as to what they saw and what they did not see. They did not exaggerate, their evidencewas persuasive, forthright and succinct. Both ES and the boyfriend were unshaken in cross-examination. These events all occurred duringdaylight hours. [52] Any inconsistencies in their evidence given is minor. The suggestion that ES and her boyfriend made up the story about thetruck hitting ES is also completely speculative. 2.

If TLC was the driver, did she intentionally strike ES with the truck? [53] The mental element of assault has been defined as “intentionally” and includes recklessness: R v DJW, 2011 BCCA 522. Theword “intentionally” simply means “not done by accident or through honest mistake”: The Queen v George, (SCC),

[1960] SCR 871. [ 54 ] The evidence that TLC intentionally drove the truck in such a manner as to hit ES is gathered from information from circumstantial evidence. The Court may make inferences as to TLC’s state of mind from circumstantial evidence - provided that the inference is reasonable given the evidence, or the absence of evidence, assessed logically, and in light of common sense and human experience: R v Villaroman , 2016 SCC 33 . [ 55 ] Justice Cromwell in Villaroman , referring to R v Hodge, 1838 CanLII 1 (the Hodge’s Case), provided the following guidance: [35] ...

In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts ... Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [36] ... a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus , a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence ”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt ... the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. ... “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. ... [41] ... that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation. [42] ... the trier of fact should not act on alternative

interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible. [ 56 ] In this case, I infer from the circumstances that TLC intentionally drove the truck in such a manner as to hit ES. Although once friends, on June 21, 2022, TLC and ES were engaged in an aggressive exchange after ES and her boyfriend got off the bus.

When the truck entered the alley with TLC behind the wheel, I find it impossible to believe that TLC didn’t know that ES was in front of the truck when TLC accelerated the truck forward, thereby intentionally hitting ES. 3. If TLC was the driver of the truck, did she intend to leave the scene to escape civil or criminal liability? [ 57 ] TLC is charged with failing to stop at the scene of an accident contrary to s 320.16 of the CC , which states in part: Failure to stop after accident 320.16

(1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance. [ 58 ] Justice Verhoeven in R v Basra , 2015 BCSC 1075 , at para 31 , succinctly sets out the basic elements of the offence under s 252 of the CC .

Although s 252 has now been replaced by s 320.16 of the CC , the same principles apply as follows: 1. the accused had the care, charge or control of a vehicle; 2. the vehicle was involved in an accident; 3. the accident was with another person; 4. the accused failed to (1) stop the vehicle; (2) give his name and address, and (3), where any person has been injured or appears to require assistance, offer assistance; and 5. the accused failed to do these things with intent to escape civil or criminal liability. [ 59 ] Justice Verhoeven goes on to state that this charge is a specific intent offence, requiring proof beyond a reasonable doubt of mens rea , being that the accused knew they were involved in an accident, failed to stop and give their name and address and render assistance if needed, in order to escape civil or criminal liability.

Therefore, failure to perform any of the three requirements is sufficient to form the actus reus of the offence and trigger the presumption to escape criminal or civil liability.

The mens rea may be proved by the presumption of intent in the absence of any evidence to the contrary: R v Seipp , 2017 BCCA 54 , para 31 . [ 60 ] Having found that the Crown has proved beyond a reasonable doubt that TLC was driving the truck when it hit ES in the alley, and having found that the Crown has proved beyond a reasonable doubt that TLC intentionally struck ES with the truck, and having found that TLC knew that an accident had occurred involving ES, I find that after the accident, TLC failed to perform all of the statutory duties required of TLC under the legislation.

As a result, the Crown has proved beyond a reasonable doubt that TLC is guilty of

failing to stop after an accident. 4. Did ES suffer bodily harm as a result of being hit by the truck? [ 61 ] In her closing arguments, the Crown informed the Court that they would not be arguing for a conviction of aggravated assault in this case under s 268 of the CC . Instead, the Crown argued that the offence of assault causing bodily harm had been established beyond a reasonable doubt, being a lesser-included offence of aggravated assault: s 269 of the CC . [ 62 ] S 269 of the CC states: Unlawfully causing bodily harm 269 Every one who unlawfully causes bodily harm to any person is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction. [ 63 ] Bodily harm is defined in s 2 of the CC as follows: bodily harm means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature; [ 64 ] The unlawful act must be at least objectively dangerous,

an act that a reasonable person would inevitably realize would be more than merely trivial or transitory in nature and would usually involve

an act of violence done deliberately to another person. [ 65 ] ES testified that several of the injuries healed by themselves within three weeks. Nevertheless, the leg injury, being a torn ligament, took approximately a year and a half to heal. In addition, as a result of the leg injury, ES was unable to continue her apprenticeship as a surveyor because it required going to construction sites which she could no longer do. I am satisfied that ES suffered bodily harm as a result of being hit by the truck in the alley.

The injury interfered with ES’s health and comfort and was not trivial or transitory in nature. [ 66 ] Therefore, I am satisfied that on the totality of the evidence the Crown has proved beyond a reasonable doubt that TLC is guilty of causing bodily harm as charged in Count 1. [ 67 ] I am also satisfied that on the totality of the evidence the Crown has proved beyond a reasonable doubt that TLC is guilty of leaving the accident without stopping as charged in Count 2. Heard on the 5 th and 7 th day of December 2023. Dated at the City of Calgary, Alberta this 31 st day of January 2024. R.J.

O’Gorman A Justice of the Alberta Court of Justice Appearances: K. Forrest for the Crown

J. Molloy for the Young Person