IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Harry, |
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2018 BCSC 820 |
Date: 20180517
Docket: 103700
Registry: Kamloops
Regina
v.
Gary Travis Harry
Before: The Honourable Mr. Justice Marchand
Reasons for Judgment
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Counsel for the Crown: |
C. Cook |
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Counsel for the Accused: |
M. Stanford |
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Place and Date of Trial: |
Kamloops, B.C. April 16-19, 2018 |
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Place and Date of Judgment: |
Kamloops, B.C. May 17, 2018 |
[1] On Tuesday, July 7, 2015, at about 10:00 a.m., Gary Travis Harry was driving himself and his passenger, Marlee Duncan, southbound on Highway 99 from Pavilion towards Lillooet. Mr. Harry was driving his mother’s 2003 Chevrolet Blazer. Mr. Harry lost control of the vehicle, which left the road and rolled over in the ditch on the opposite side of the highway. Ms. Duncan was ejected from the vehicle and suffered extensive injuries.
[2] Mr. Harry is charged with dangerous driving causing bodily harm contrary to s. 249(3) of the Criminal Code, R.S.C. 1985, c. C-46 [Code].
[3] The evidence is clear that Mr. Harry was operating the vehicle in an objectively dangerous manner and that Ms. Duncan suffered serious injuries as a result. The issue is whether Mr. Harry’s driving represented a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. Mr. Harry says that his excessive speed was the result of a momentary lapse of judgment when he accelerated to avoid being rear-ended by another vehicle on the highway.
[4] I have driven Highway 99 from its junction with Highway 97, south through Pavilion to Lillooet many times. It is a stunning drive. Various witnesses accurately described the highway as passing through Marble Canyon, by lakes and ranch land, and high above the Fraser River. The witnesses described the highway as a somewhat windy two-lane highway through hilly terrain with a posted speed limit that varies from 80 km/hr to 100 km/hr. In the area of the accident, the highway has a posted speed limit of 100 km/hr.
[5] Highway 99 is the main highway between Pavilion and Lillooet. Being from the area, Mr. Harry is very familiar with the highway. While the highway is not “busy”, one witness described that traffic flows “quite regularly” and that the highway is busier in the summer tourist season. On the day of the accident, the weather was clear and warm. The highway was bare and dry.
[6] On July 6, 2015, Mr. Harry and Ms. Duncan attended a birthday party with family and friends at the Sky Blue Resort at Pavilion Lake. Ms. Duncan was drinking heavily while Mr. Harry did not consume any alcohol. Ms. Duncan also consumed various “pills”, including prescription narcotics, which had been prescribed to Mr. Harry. Ms. Duncan testified that Mr. Harry also consumed these pills but Mr. Harry denied this. Mr. Harry said he had accidentally dropped his “case” of pills, which resulted in his pills being destroyed, the day before. Ms. Duncan testified that the pill case had fallen early on the morning of July 7, 2015, that the pills had spilled onto the ground, and that the two had been able to recover many of the pills.
[7] In any event, after dropping off Mr. Harry’s nephew in the early morning hours of July 7, 2015, Mr. Harry drove with Ms. Duncan to an area above Crown Lake. The two stayed up for several more hours. Ms. Duncan says they snorted crushed up pills. Mr. Harry denied having done so.
[8] After a few hours of sleep in Mr. Harry’s mother’s vehicle, Ms. Duncan says the two consumed more pills. Mr. Harry denied this but agreed that he drove Ms. Duncan to her mother’s home. Ms. Duncan was very hungover and smoked marihuana with others. Mr. Harry then drove Ms. Duncan to the Pavilion Band (Ts’kw’aylaxw First Nation or TFN) office to see her drug and alcohol counsellor. The counsellor was not there so Mr. Harry and Ms. Duncan left for Lillooet for Mr. Harry to refill his prescriptions for the pills he had lost. Mr. Harry testified that he felt “dope sick” that morning as a result of not having taken his prescription medications. Mr. Harry maintained, however, that he was well enough to drive.
[9] The driveway to the TFN office runs parallel to Highway 99. Mr. Harry, therefore, had to turn around to look over his left shoulder to see if any traffic was coming before he turned onto the highway. Mr. Harry saw no traffic to the north but did see a southbound logging truck in the distance to the south. Mr. Harry proceeded onto Highway 99 towards Lillooet.
[10] Mr. Harry was in no rush and drove at or below the speed limit until he caught up to the logging truck. By that time, he says he was surprised that a car was behind him. The car did not pass Mr. Harry but continued to follow him closely. Mr. Harry felt pressured by the car, so, when it was safe to do so, Mr. Harry passed the logging truck. After safely pulling back in to the southbound lane, Mr. Harry says he saw a “flash” of the car behind him in his side-view mirror. Mr. Harry then looked in his rear-view mirror and saw that the front end of the car was down and the back end up, indicating that the car was braking. Mr. Harry says he thought he was going to be rear-ended. To avoid a collision, Mr. Harry, in his own words, “gunned it”.
[11] Mr. Harry says he stepped on the gas for a couple or, perhaps, a few seconds. He acknowledges that he was travelling very fast down “Twenty Mile Hill” and into a left hand corner. He also acknowledges that he was travelling in the oncoming lane as he took the corner to the left at the bottom of the hill.
[12] Mr. Harry testified that he was “on a collision course” with an oncoming vehicle so turned to the right to avoid a collision. His vehicle began going sideways towards a concrete median barrier on the west side of the highway. Mr. Harry then corrected back to the left so as not to slam into the barrier. He says he tried to hit his brake as his vehicle slid around. Mr. Harry recalls narrowly missing a collision with another vehicle before his vehicle went into the ditch, made impact with the ground and began spinning.
[13] The car behind Mr. Harry was driven by Andrew Law. Mr. Law was returning from a vacation with his pregnant partner, Ana Galac. Mr. Law and Ms. Galac both testified that they came upon a large, slow-moving vehicle. Mr. Law testified that it was a large recreational vehicle while Ms. Galac testified that it was a logging truck. Both testified that, after passing the vehicle they pulled in behind the SUV driven by Mr. Harry.
[14] They both described that the SUV was travelling slowly, which meant somewhere between 90 to 100 km/hr. They both testified that after following the vehicle for a couple of seconds, it suddenly gained speed. Mr. Law testified in cross-examination that the driver “hammered it”.
[15] While both Mr. Law and Ms. Galac testified that they followed the vehicle at a safe distance, I conclude otherwise. Mr. Law testified in direct that he was on the vehicle’s bumper and admitted in cross-examination that he had told the police he was on the vehicle’s “ass”. For her part, Ms. Galac described that Mr. Law “slotted in” behind the vehicle after passing the large, slow-moving vehicle. I conclude that Mr. Law was following Mr. Harry’s vehicle very closely and was, in fact, tailgating Mr. Harry.
[16] Mr. Law and Ms. Galac witnessed the vehicle travel at a high speed down a hill and into a left hand corner. They commented to each other regarding how fast the vehicle was travelling. Mr. Law “guessed” that it was travelling 150 km/hr. Mr. Law testified that the driver tapped the brakes into the corner. The vehicle disappeared from view but, soon after, Mr. Law and Ms. Galac saw a cloud of dust. Five to ten seconds later, Mr. Law and Ms. Galac came upon the accident scene and offered assistance.
[17] Mr. Law found Mr. Harry in the back seat of the SUV. He was conscious and very concerned about his passenger. Mr. Law informed Mr. Harry that there was no passenger and helped him out of the vehicle. Mr. Law quickly realized that a passenger must have been ejected from the vehicle and helped Mr. Harry search for the passenger. The two found Ms. Duncan hung up in a barbed wire fence on the east side of the highway. It was obvious that she was badly injured.
[18] The accident occurred in an area without cell service so another driver was asked to call for an ambulance. Eventually the police and an air ambulance arrived to tend to Ms. Duncan.
[19] Due to her injuries, Ms. Duncan recalls very little of her drive with Mr. Harry but there were two other witnesses to the accident.
[20] Naomi Goforth is from Pavilion and is an acquaintance of Mr. Harry. On the morning of July 7, 2015, she had driven from Pavilion to Fountain (which is between Pavilion and Lillooet) to buy cigarettes. On her way back, she was travelling north on Highway 99. As she was coming around a corner and about to go up a hill to Pavilion, she saw Mr. Harry’s SUV coming towards her in her lane. She was unable to estimate Mr. Harry’s speed but knew it was over the speed limit. She described that Mr. Harry’s SUV was “out of control”, “skidding sideways”, and “fishtailing”. She testified that this meant the back of Mr. Harry’s SUV was travelling faster than the front.
[21] Ms. Goforth had to pull her truck to the right and onto the shoulder of the highway to avoid a collision. She lost sight of Mr. Harry’s SUV but turned around because she knew there would be a “pretty bad accident”. Another driver, Cora Watkinson told Ms. Goforth to go back to the accident scene. When she did, it looked like Mr. Harry had just gotten out of his vehicle and Ms. Goforth saw Ms. Duncan “literally wrapped up” in barbed wire. Ms. Goforth thought Ms. Duncan was dead.
[22] Ms. Watkinson is originally from the Pavilion/Fountain/Lillooet area. On the morning of July 7, 2015, she was travelling north on Highway 99 from Fountain to the TFN band office to attend a workshop. She was coming around a corner when she saw Mr. Harry’s SUV coming right towards her at a high rate of speed. I understood her to have estimated the speed of the SUV at 140 km/hr. She described that the vehicle was out of control and going back and forth across the road. She testified that the SUV was already diagonal and coming into her lane when she first saw it.
[23] Ms. Watkinson drove into the ditch on the east side of the highway to avoid a collision. She thought the SUV missed her vehicle by about a foot. Ms. Watkinson watched in her rear-view mirror as the SUV “crashed”. She described seeing the SUV rolling or flipping. She also saw a long object, presumably Ms. Duncan, coming out of the front of the vehicle.
[24] Ms. Watkinson backed up her truck to get as close to the accident as she could. She jumped out of her truck. She knew that she was following Ms. Goforth. Ms. Watkinson thought the SUV might have hit Ms. Goforth’s truck but then saw Ms. Goforth come back around the corner. Ms. Watkinson offered to go and call 911. A man, presumably Mr. Law, told her to do that. Ms. Watkinson called 911 from the TFN office and then returned to the accident scene, where she offered assistance to both Ms. Duncan and Mr. Harry until the paramedics arrived.
[25] The details of the accident are well supported by the objective evidence.
[26] R.C.M.P. Corporal Michael Jacobson was qualified as an expert in forensic collision analysis and forensic collision reconstruction. He submitted a Forensic Collision Reconstruction Investigation Report and testified at trial.
[27] Cpl. Jacobson attended the accident scene on the day of the accident. He made observations, took photographs, made measurements and performed a variety of calculations. I will summarize his key findings and conclusions below.
[28] The accident occurred on Highway 99, 4.3 kilometres south of Pavilion and 29 kilometres north of Lillooet.
[29] Prior to the accident scene, a southbound vehicle would travel on a 700 metre straight stretch, with a downhill grade of 8.4% before negotiating a 240 metre counter-clockwise curve of 47 degrees (from a full circle bearing of 217 degrees to a full circle bearing of 170 degrees), with a downhill grade of 4.6%. A southbound vehicle would then enter a further 165 metre straight stretch, with a downhill grade of 4% to the location where Mr. Harry’s vehicle left the highway. Mr. Harry’s vehicle came to rest in the second straight stretch.
[30] A hillside on the east side of the highway limited the view of southbound traffic but the sightline for southbound traffic was in excess of 100 metres at the curve.
[31] Warning signs were posted prior to, and throughout the counter-clockwise curve. A left curve sign was posted 383 metres prior to the onset of tire marks left by Mr. Harry’s vehicle. An obstruction sign was posted at the beginning of the concrete median barrier on the west side of the highway, 290.2 metres prior to the onset of tire marks from Mr. Harry’s vehicle. A series of “chevron” signs directing traffic to the left were posted along the concrete median barrier throughout the counter-clockwise curve.
[32] Two tire marks from the passenger side of Mr. Harry’s vehicle begin in the southbound lane, near the centre line. These tire marks arc across the southbound lane and into the northbound lane and paved shoulder before leaving the highway, creating furrows in the gravel shoulder and ditch on the east side of the highway. Several tire marks from the driver’s side of Mr. Harry’s vehicle begin later, essentially on the centre line, and continue across the northbound lane and paved shoulder, before leaving the highway, creating furrows in the gravel shoulder and ditch. The tire marks were left by the vehicle sliding across the highway and not by any braking action. Mr. Harry’s vehicle also left four gouges from impacting the hillside and ditch before coming to rest facing northeast in the ditch.
[33] Based on the location of the passenger side tire marks, the driver’s side tires were on the centre line at the time Mr. Harry’s vehicle lost control and began a rotational counter-clockwise sideslip. A diagram showing Cpl. Jacobson’s reconstruction of the accident makes clear that Mr. Harry’s vehicle was returning from the oncoming northbound lane when he lost control. The tire marks show Mr. Harry’s vehicle headed close to the concrete median barrier on the west side of the highway before sliding sideways across the northbound lane and into the ditch on the east side of the highway. The tire marks and reconstruction are entirely consistent with the descriptions of the accident given by Ms. Goforth, Ms. Watkinson and Mr. Harry.
[34] Using a range of coefficients of friction, Cpl. Jacobson calculated the minimum speed of Mr. Harry’s vehicle to have been 113 to 126 km/hr at the onset of the tire marks.
[35] Cpl. Jacobson also calculated the “critical curve speed”, which is “a theoretical value at which a vehicle negotiating a curve has reached its frictional threshold.” Under “optimum conditions”, any slight steering input or increased speed to a vehicle travelling at or near the critical curve speed can compromise lateral traction and cause the vehicle to lose control. In this case, Cpl. Jacobson calculated the critical curve speed to be 159 km/hr.
[36] Cpl. Jacobson examined the seatbelts in Mr. Harry’s vehicle but was unable to say whether they had been in use at the time of the accident.
[37] Cpl. Jacobson retrieved data from the Sensing Diagnostics Module (“SDM”) in Mr. Harry’s vehicle. The data was interpreted by R.C.M.P. Corporal David Barnhart. Cpl. Barnhart was qualified as an expert in accident reconstruction and analysis, and interpretation of electronic data, including data from airbag control modules. Cpl. Barnhart submitted a Forensic Reconstruction Addendum Report and testified via video-link.
[38] Cpl. Barnhart explained that a sudden change in speed in the SUV driven by Mr. Harry triggered the module in the SUV to record five seconds of pre-accident data. The module collected various pieces of data, including vehicle speed, engine speed, throttle position and brake switch on or off at one second intervals. The last piece of data was collected one second before the triggering event.
[39] Cpl. Barnhart reported that he considered the following data retrieved from the SDM to be accurate and reliable:
|
Parameter |
-5.0 s |
-4.0 s |
-3.0 s |
-2.0 s |
-1.0 s |
|
Vehicle Speed (km/hr) |
165.7 |
165.7 |
157.7 |
140.0 |
74.0 |
|
Percent Throttle (%) |
100 |
92 |
0 |
0 |
5 |
|
Brake Switch Circuit State (on/off) |
off |
off |
off |
off |
off |
|
Engine Speed (RPM) |
4736 |
4736 |
4160 |
2624 |
1664 |
[40] Both Cpl. Jacobson and Cpl. Barnhart noted that the vehicle driven by Mr. Harry had tires of a slightly modified size. Because of the modified tires, the recorded speeds have to be adjusted upwards by 3.10%. This adjustment results in a speed of 170 km/hr as little as four seconds before the accident and 144.3 km/hr as little as two seconds before the accident. Cpl. Barnhart reported that the accuracy range of the vehicle speed sensors is plus or minus 4%, resulting in a speed range of 163 to 176 km/hr as little as four seconds before the accident and of 139 to 150 km/hr as little as two seconds before the accident.
[41] Mr. Harry admitted driving well above the speed limit but denied driving as fast as recorded by the SDM. He testified that the SUV did not have sufficient power to pick up that much speed that fast, even going downhill. Mr. Harry admitted, however, that he was watching the road and not the “speed limit” (which I took to mean that Mr. Harry did not look at the speedometer).
[42] Cpl. Barnhart testified that the downloaded data was consistent with the results of Cpl. Jacobson’s investigation. In particular, the minimum speed of Mr. Harry’s vehicle calculated by Cpl. Jacobson was less than the SDM recorded speed as little as two seconds prior to the collision.
[43] During the trial, Mr. Harry formally admitted that Ms. Duncan was ejected from his vehicle during the accident and that she suffered the following injuries as a result:
1. Extensive scalp lacerations;
2. Fracture of the C2 vertebra with 4 mm displacement;
3. Pars interarticularis fractures at T1 and T4-9;
4. Fractures of the left ribs 2-9;
5. Fractures of ribs 2-1 with a hemopneumothorax;
6. Comminuted left pelvic super-inferior pubic ram;
7. Left sacral alar fracture;
8. Right inferior pubic ramus fracture;
9. Left comminuted compound tib-fib fracture;
10. Left scapula and clavicle fracture; and
11. Extensive gluteal flap degloving.
[44] Section 249 of the Code provides, in part, as follows:
Dangerous operation of motor vehicles, vessels and aircraft
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;
…
Dangerous operation causing bodily harm
(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
[45] Like all criminal offences, the offence of dangerous driving causing bodily harm consists of two components: prohibited conduct and a required degree of fault. To secure a conviction, the Crown must prove beyond a reasonable doubt that:
1. Mr. Harry operated a motor vehicle in a dangerous manner resulting in bodily harm to Ms. Duncan. (This is the prohibited conduct, also called the actus reus of the offence); and
2. Mr. Harry’s driving represented a marked departure from the standard of care that a reasonable person would observe in all the circumstances. (This is the required degree of fault, also called the mens rea of the offence).
[46] In R. v. Roy, 2012 SCC 26, Cromwell J., on behalf of a unanimous Supreme Court of Canada, succinctly summarized the principles involved in dangerous driving cases as established in the leading case of R. v. Beatty, 2008 SCC 5. Though Beatty and Roy involved dangerous driving causing death, the same principles apply to cases involving dangerous driving causing bodily harm. The only difference is the extent of the harm caused by the dangerous driving.
[47] In relation to the prohibited conduct or actus reus, in Roy at paras. 33-34 Cromwell J. summarized the principles as follows:
(3) The Actus Reus
[33] Beatty held that the actus reus for dangerous driving is as set out in s. 249(1)(a) of the Code, that is, driving “in a manner that was ‘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’” (para. 43).
[34] In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, “The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving” (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.
[Emphasis in original.]
[48] In relation to the required degree of fault or mens rea, in Roy at paras. 36-38 Cromwell J. summarized the principles as follows:
(4) The Mens Rea
[36] The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.
[37] Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in Beatty, put it this way: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy” (para. 34). The Chief Justice expressed a similar view: “Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving” (para. 71).
[38] The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk (para. 40). Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86).
[49] In relation to proving the required degree of fault, in Roy at paras 39-42 Cromwell J. summarized the principles as follows:
(5) Proof of the “Marked Departure” Fault Element
[39] Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused’s actual state of mind (para. 43).
[40] Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty, at para. 37.
[41] In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited.
[42] Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.
[50] Mr. Harry did not contest that his driving was objectively dangerous to the public.
[51] Though Mr. Harry denied driving as fast as recorded by the SDM, there was no serious challenge to the reliability and accuracy of the data retrieved from the SDM and analysed by Cpl. Barnhart. There was also no serious challenge to Cpl. Jacobson’s measurements, calculations and opinions. Given the observations of the witnesses, the critical curve speed calculated by Cpl. Jacobson, and the mechanics of the accident as reconstructed by Cpl. Jacobson, I am satisfied beyond a reasonable doubt that Mr. Harry was travelling at no less than 163 km/hr (the minimum of the range determined by Cpl. Barnhart) just prior to losing control of his vehicle.
[52] Very clearly, Mr. Harry was driving at an excessive speed around a left hand curve at the bottom of a long hill on Highway 99 when there was traffic on the highway, as would be expected at that time of day at that time of year. Mr. Harry was driving in the oncoming lane and, due to his excessive speed, lost control of his vehicle, narrowly missed colliding with two vehicles travelling in the opposite direction, and flipped his vehicle in the ditch on the opposite side of the highway. His passenger, Ms. Duncan, was ejected during the rollover and suffered serious injuries as a result. The case law is clear that in assessing whether the accused’s driving was a danger to the public, a passenger in the accused’s car is part of the public, for the purposes of this section of the Code: R. v. Edlund (1990), 23 M.V.R. (2d) 31, 104 A.R. 354 (C.A.).
[53] Based on the uncontroverted evidence, I am satisfied beyond a reasonable doubt that Mr. Harry was driving in a manner that, in all the circumstances, was objectively dangerous to the public and caused bodily harm to Ms. Duncan. Accordingly, the actus reus of the offence has been proven.
[54] In Beatty, the Supreme Court of Canada restored the trial judge’s acquittal of the accused. The accused’s failure to confine his vehicle to his lane of travel was objectively dangerous to the public, and caused a head-on collision. The three occupants in the oncoming vehicle were killed. There was, however, insufficient evidence to establish a marked departure from the standard of care of a prudent driver. The accused was not sure why he had crossed the centre line but believed he may have lost consciousness or fallen asleep. There was no evidence of any impairment, mechanical failure, or prior improper driving. The evidence suggested that the dangerous conduct was the result of a momentary lapse of attention, which the Court concluded was insufficient to support a finding of criminal responsibility.
[55] In Roy, the Supreme Court of Canada set aside the conviction of the accused, which had been upheld by the British Columbia Court of Appeal. The accused had pulled onto a highway in foggy conditions in front of an oncoming tractor-trailer. The accused’s passenger was killed. The accused had no memory of what happened. The accused’s driving was objectively dangerous to the public but the Court held that the required marked departure from the norm could not be inferred from the fact that the accused had driven dangerously. The Court also concluded that there was no evidence to find that the accused was aware of the risk he was facing and deliberately ran that risk. The record disclosed only a momentary error in judgment, which happened to have tragic consequences.
[56] In this case, Mr. Harry submits that the accident was the result of a momentary lapse of judgment to avoid a perceived risk of being rear-ended. For the reasons that follow, I cannot agree.
[57] Both parties encouraged me to resolve various conflicts in the evidence by undertaking a credibility analysis. While the case does not turn on these conflicts, I can dispose of the conflicts briefly.
[58] The Crown submits that I should take into account that Mr. Harry’s ability to drive was impaired to some degree by his ingestion of prescription medication, dope-sickness and/or fatigue, and that Mr. Harry knew that Ms. Duncan was not wearing a seatbelt. The Crown also submits that I should prefer the testimony of Mr. Law and Ms. Galac over Mr. Harry’s testimony regarding how their vehicle came to be following Mr. Harry’s vehicle and the timing of Mr. Harry’s vehicle accelerating away from them.
[59] Regarding the allegation that Mr. Harry had ingested prescription medications before driving, I found Ms. Duncan’s testimony to be unreliable. Due to her injuries and/or consumption of various substances, Ms. Duncan’s memories of the events were far from clear. Regarding the allegation that Mr. Harry’s ability to drive was impaired by his admitted dope-sickness and lack of sleep, the evidence is simply insufficient to establish that these were factors.
[60] Regarding the allegation that Mr. Harry knew Ms. Duncan was not wearing a seatbelt, there certainly was strong circumstantial evidence to establish that she was not wearing a seatbelt. Post-accident photographs show that the front passenger side seatbelt was wrapped around the headrest and Mr. Harry described how Ms. Duncan was moving within the vehicle just prior to being ejected. The evidence falls short, however, in establishing that Mr. Harry was aware that Ms. Duncan was not wearing a seatbelt prior to losing control of his vehicle.
[61] Regarding how the Law/Galac vehicle came to be following Mr. Harry’s vehicle and the timing of Mr. Harry’s vehicle accelerating away from them, while I found Mr. Law and Ms. Galac to generally be credible and reliable witnesses, I also found Mr. Harry’s version of events to be believable. Mr. Harry made a number of admissions that were contrary to his interests, his version of events matched up reasonably well with the testimony of other witnesses and the objective evidence, and his asserted initial reaction to being followed too closely was, in my view, not ideal but within the norm of typical reactions of ordinary drivers. On either version of events, the issue is not how the Law/Galac vehicle came to be following Mr. Harry’s vehicle so closely. The issue is the length of time that Mr. Harry accelerated away from the danger he says he perceived.
[62] I now return to analysing mens rea based on the facts which have been clearly established.
[63] There is no evidence to suggest that Mr. Harry had engaged in any erratic or unsafe driving at any time prior to accelerating away from Mr. Law’s vehicle. In fact, the only evidence is that he was driving at or slightly below the posted speed limit at the time Mr. Law pulled in behind him. While it is understandable that Mr. Harry accelerated to avoid a perceived danger, there is a limit to how long it was necessary for him to do so.
[64] In this case, Mr. Harry accelerated his vehicle long enough to achieve a considerable separation from Mr. Law’s vehicle and reach a speed of at least 163 km/hr. The separation was so great that Mr. Law and Ms. Galac lost sight of Mr. Harry’s vehicle. This distance was markedly longer than was reasonably necessary to avoid any perceived danger. As well, the speed was grossly excessive, particularly in view of the fact that Mr. Harry was travelling down a long hill with an 8.4% grade, approaching a well-marked left hand curve on a two-lane highway when traffic could reasonably be expected. While no calculations were completed to determine how long it took Mr. Harry to accelerate from roughly 100 km/hr to 163 km/hr, in my view, there was more than enough time for Mr. Harry to simply take his foot off the throttle. Once Mr. Harry had achieved sufficient distance from Mr. Law and Ms. Galac, it would have taken only an instant to take his foot off the throttle and begin to slow down. In my view, this could have and should have been done well before Mr. Harry reached an unsafe speed.
[65] Dealing with the two questions posed in para. 36 of Roy, in my view a reasonable person would have foreseen the risk of travelling at a grossly excessive speed down Twenty Mile Hill towards the left hand curve and taken steps to avoid that risk. Even if I leave aside Mr. Harry’s familiarity with this stretch of highway, in my view, this was a marked departure from the standard of care expected of a reasonable person in Mr. Harry’s position reacting to a perceived danger. While Mr. Harry’s initial reaction may have been a momentary lapse in judgment, in all of the circumstances, I am satisfied beyond a reasonable doubt that he had plenty of time to avoid a danger he himself had created by continuing to accelerate until he reached a speed of at least 163 km/hr.
[66] I have not reached my conclusion on mens rea based only on the fact that Mr. Harry was driving at an excessive rate of speed around a left hand curve in the oncoming lane at a time when there was traffic on the highway. I have also not reached my conclusion on mens rea based on the terrible consequences of the collision. Rather, I have based my conclusion on mens rea on the fact that Mr. Harry continued to accelerate far beyond what was reasonably necessary in the circumstances. While Mr. Harry’s initial reaction may have been a momentary lapse in judgment, his sustained acceleration was not.
[67] I am satisfied beyond a reasonable doubt that Mr. Harry’s sustained acceleration, on a rather steep down hill section of Highway 99 into a curve, was a marked departure from the standard of care a reasonable driver would have exhibited when reacting to a perceived risk of being rear-ended. Accordingly, the mens rea of the offence has been proven.
[68] For all of these reasons, I find Mr. Harry guilty of dangerous driving causing bodily harm, as charged.
“L.S. Marchand J.”
MARCHAND J.