R v Spicer, 2019 MBCA 117

Citation: R v Spicer, 2019 MBCA 117 Date: 20191125 Docket: AR18-30-09183 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) T. L. Mariash ) for the Appellant ) Respondent ) A. C. Bergen ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: DESMOND EVAN SPICER ) November 6, 2019 ) ) Written reasons: (Accused) Appellant ) November 25, 2019 cameron JA (for the Court) : [ 1 ] The accused appeals his conviction for impaired operation of a motor vehicle causing death (section 255(3) (now

section 320.14(3)) of the Criminal Code (the Code )). He acknowledges that, at the time of the fatal collision, he was driving with a blood-alcohol level over .08. However, he argues that the trial judge erred in finding that his level of impairment caused the collision that resulted in the death of the deceased. He maintains that he should only be convicted of the lesser-included offence of impaired operation of a motor vehicle (section 253(1)(a) (now

section 320.14(1)(a)) of the Code ). [ 2 ] After the hearing, we dismissed the appeal with reasons to follow.

These are those reasons. [ 3 ] At the trial, the witnesses called by the Crown included two police officers who were driving behind the accused at the time of the collision; two civilian witnesses who observed the incident; an identification officer who took photos of the scene; the breath technician who administered the breathalyser to the accused; a blood-alcohol expert; two accident reconstructionists (the second of whom made a video of the scene); and the pathologist who performed the autopsy on the deceased.

The accused testified, but the trial judge rejected his evidence and found that it had not raised a reasonable doubt. [ 4 ] Relying on the evidence called by the Crown, the trial judge found that, while driving with a blood-alcohol level between 128 and 156 milligrams per cent, the accused ran over the deceased who, after just having been assaulted, was lying unconscious on the side of the road in the accused’s lane of travel. He found that the accused did not apply his brakes, swerve, or take any evasive measures to avoid hitting the deceased.

Despite the fact that the collision occurred at night, he found that the area in which it occurred was well-lit. [ 5 ] Regarding the issue of causation, the trial judge cited R v Cabral , 2001 MBCA 10 , in which the Court held that “[i]t must be proven that the impairment was a contributing cause of the accident” and that “[s]ome fault” must be found aside from the “impairment alone” (at para 13).

He rejected the accused’s argument that, based on the evidence of the second accident reconstructionist called by the Crown, he would have hit the deceased, thereby causing his death, regardless of his level of impairment.

Rather, he stated: I find moreover that the accused’s manner of driving was a significant contributing cause to the death of the deceased in this way, not because of erratic driving, not because of blatant breaches of the Highway Traffic Act [CCSM c H60 ], save for one -- that he failed to keep a proper lookout to the point that there was really no effort whatsoever to avoid the accident involving the deceased. This failure to keep a proper lookout was, I find, as a direct result of his impairment.

[6] The accused argues that the verdict was unreasonable because the evidence did not support the trial judge’s findingthat the accused failed to keep a proper lookout. He also argues that the trial judge did not consider other available inferences that theaccident was “unavoidably fatal.” In support of his argument, he points to the evidence of one of the civilian witnesses who said that heflashed his high beams at the scene.

The accused argues that the trial judge should have drawn the inference that the flashing of the highbeams could have blinded him or caused him to be momentarily distracted and therefore unable to stop in time. He also relies on thecombined evidence of the two accident reconstructionists that, even if the accused had seen the deceased when he was 35 metres awayand braked, applying an industry-standard perception/reaction time and a speed of 50 kilometres per hour, he still would have madecontact with the deceased.

Therefore, he submits that it was not inattentiveness resulting from his impairment that caused the collision,as, under the same conditions, a sober driver would not have been able to take evasive action. [7] The standard of review for an assertion of unreasonable verdict was explained by Cromwell J in R v Villaroman, 2016SCC 33 (at paras 55-56): A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris, 2000SCC 15, [2000] 1 S.C.R. 381.

Applying this standard requires the appellate court to re-examine and to some extent reweigh and considerthe effect of the evidence: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 at p. 186. This limited weighing of the evidence onappeal must be done in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantial evidence,the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the onlyreasonable conclusion available on the totality of the evidence [citations omitted].

The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine [R v Dipnarine, 2014 ABCA 328], at para.22. The court noted that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdict isnot unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind.

Most importantly, “[i]t is still fundamentallyfor the trier (of) fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.” [emphasis added] [8] We are not convinced that the standard for appellate intervention has been met. The accused did not testify regardingthe effect of the flashing of the high beams on him. His evidence was that a gold-coloured car had pulled out in front of him, caused himto swerve and distracted his attention just prior to the collision.

The trial judge rejected this scenario, commenting that it made no senseand that none of the other witnesses, including the police officers driving behind the accused, observed the gold vehicle. [9] More importantly, the trial judge was entitled to reject the accused’s argument that he should have inferred that theflashing high beams would have distracted the accused’s view from the body on the road.

The trial judge’s conclusion in this regard isunderstandable considering that a witness who was driving in the same direction, slightly in front of the accused in the lane beside him,did not notice the flashing high beams and that the area was quite well-lit. [10] Regarding the evidence of the second reconstructionist, we note that the accused’s assertion that the deceased’s bodycould only be seen from 35 metres away, thereby making contact with the deceased inevitable, was based solely on the premise that theonly light available to the accused at the time was his one working headlight.

The expert calculation that he would have been able to seethe deceased’s body from a distance of only 35 metres did not account for the fact that the evidence disclosed that there was considerableartificial and ambient lighting in the area in addition to his headlight. It was a precise calculation based on the assumption that theaccused was travelling at exactly the speed limit and not five kilometres below it, as he testified.

It must also be remembered that thesecond reconstructionist testified that there would have been little or no injury to the deceased if the accused had taken action by brakingin accordance with the assumed reaction time.

Finally, this assertion is in direct contradiction to each of the reconstructionists’ opinionsthat, based on the evidence, there was no reaction by the accused to the deceased’s body in the roadway. [11] In light of the above, as well as the considerable evidence of impairment, including the blood-alcohol readings of theaccused and the police observations of his level of impairment, we cannot say that it was unreasonable for the trial judge to conclude thatthe accused’s failure to keep a proper lookout was caused by his impairment which was a contributing factor to the death of thedeceased. [12] Therefore, for the above reasons, we dismissed the appeal.

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