SUPREME COURT OF PRINCE EDWARD ISLAND. Her Majesty the Queen. - and - Charles Joseph Adams. Before: The Honourable Justice Wayne D.

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1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: R. v. Adams 2011 PESC 19 Date: Docket: S2-GC-86 Registry: Summerside Her Majesty the Queen - and - Charles Joseph Adams Before: The Honourable Justice Wayne D. Cheverie Appearances: John R. Diamond Q.C., solicitor for the Crown Robert Rideout, solicitor for the accused Place and dates of trial Summerside, Prince Edward Island September 12, 13 & 14, 2011 Place and date of oral decision & judgment Summerside, Prince Edward Island September 22, 2011

2 Page: 2 Criminal law - accused charged with dangerous driving causing death and dangerous driving causing bodily harm - evidence supported a finding that the accused operated his motor vehicle in a manner dangerous to the public, but the facts fail to support a finding that his actions constituted a marked departure from the norm in all the circumstances - offence not proven beyond a reasonable doubt - accused found not guilty. CASES CONSIDERED: R. v. Hundal, [1993] 1 S.C.R. 867; R. v. Beatty, [2008] 1 S.C.R. 49; R. v. Buchanan, [2002] 28 M.V.R. (4 th ) 297; R. v. Manty, 2005 MBQB 55; 191 Man. R. (2d) 216; R. v. MacDonald, 2005 ABPC 351; R. v. Nieto-Campos, [2005] 28 M.V.R. (5 th ) 194; R. v. Bader, 2010 BCPC 168; 99 M.V.R. (5 th ) 305; R. v. Willock (2006), 210 C.C.C. (3d) 60. STATUTE CONSIDERED: Criminal Code of Canada, R.S.C. 1985, Chap. C-46, s-s. 249(1). Cheverie J. (orally) [1] By all accounts, Sunday, July 4, 2010 was a sunny, pleasant summer day in Prince County, Prince Edward Island. However, things turned quite dark for Charles Joseph Adams and his two friends, Jesse Reginald Harper and Remington Strongman, when they travelled down the O Halloran Road sometime between 2:00 p.m. and 2:30 p.m. on that date. Adams was driving a 1994 Chevrolet S-10 pickup truck. Strongman was seated in the middle of the front seat and Jesse Harper was seated on the passenger s side of the front seat. None were wearing seat belts. [2] Charles Adams proceeded to pass another vehicle on the O Halloran Road heading in the direction of Route 2, and in the course of that manoeuver, was confronted by another vehicle coming toward him from the opposite direction. He managed to complete the pass and avoid the oncoming vehicle, but wound up driving onto the unpaved shoulder of the O Halloran Road. His attempt to bring the vehicle back to the paved portion of the road was unsuccessful, and he continued along the shoulder of the road until the vehicle struck a driveway. Out of control, the rear end of the vehicle lost contact with the ground and when contact was reestablished, the truck started rotating clockwise, through the ditch, into the brush and struck a large spruce tree and then came to rest beyond the tree. [3] Adams suffered minor injuries. Strongman had a broken left leg, a dislocated toe, and a broken right foot, plus a few cuts and scrapes. Jesse Harper died.

3 Page: 3 The charge [4] On the 11 th day of March, 2011, an indictment was laid against Charles Joseph Adams alleging that he committed two offences. The counts in the indictment read: Count #1 on or about the 4 th day of July, A.D. 2010, at or near Bloomfield, in the Province of Prince Edward Island did operate a motor vehicle on a highway to wit: O Halloran Road, in a manner that was dangerous to the public, having regard to all the circumstances including the nature, condition and use of such place and the amount of traffic that at the time was or might reasonably be expected to be in such place and thereby caused the death of Jesse Reginald Harper contrary to Section 249(4) of the Criminal Code of Canada and amendments thereto. Count #2 on or about the 4 th day of July, A.D. 2010, at or near Bloomfield, in the Province of Prince Edward Island did operate a motor vehicle on a highway to wit: O Halloran Road, in a manner that was dangerous to the public, having regard to all the circumstances including the nature, condition and use of such place and the amount of traffic that at the time was or might be reasonably expected to be in such place and thereby caused bodily harm to Remington Strongman, contrary to Section 249(3) of the Criminal Code of Canada and amendments thereto. [5] In short, Charles Joseph Adams, stands charged with one count of dangerous driving causing death and one count of dangerous driving causing bodily harm. The Crown case consists of: the testimony and expert reports from police officers; medical reports; testimony and a report with respect to the mechanical condition of the Adams vehicle; and a number of lay witnesses to the accident. The defence did not call any evidence. What now must be determined is whether the evidence offered by the Crown is sufficient to prove the counts in the indictment against Charles Joseph Adams, according to law. Basic principles 1. Presumption of innocence [6] Criminal trials are not conducted in a vacuum or on an ad hoc basis. Certain basic principles apply in every criminal case. While these principles are well known and second nature to the court and counsel, I believe it is appropriate in these circumstances to restate them because they are the basic guideposts by which I must

4 Page: 4 assess this case. [7] According to the law which governs all of us, Charles Joseph Adams is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. This presumption of innocence means that Charles Joseph Adams started the trial with a clean slate. The presumption stays with him throughout the case, including my deliberations at the end of the trial. It is only defeated if, and when, the Crown has satisfied me beyond a reasonable doubt that Charles Joseph Adams is guilty of the crimes charged. 2. Burden of proof [8] Coupled with the principle of presumption of innocence is the concept of burden of proof. Put bluntly, Charles Joseph Adams does not have to present evidence or prove anything in this case, in particular, that he is innocent of the crimes charged. From start to finish, it is the Crown which must prove that Charles Joseph Adams is guilty beyond a reasonable doubt. It is for the Crown to prove that guilt beyond a reasonable doubt and not Charles Joseph Adams who must prove his innocence. I must find him not guilty of the charges before the court, unless the Crown satisfies me beyond a reasonable doubt that he is guilty of those offences. The burden on the Crown is to prove each of the elements of the two counts in the indictment beyond a reasonable doubt. 3. Proof beyond a reasonable doubt [9] The standard of proof required for conviction is proof beyond a reasonable doubt. The phrase beyond a reasonable doubt is a very important part of our criminal justice system. The law teaches that a reasonable doubt is not a far fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. [10] It is not enough for me to believe that Charles Joseph Adams is probably, or likely, guilty. In those circumstances I must find him not guilty because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Probability speaks to a civil standard, where a plaintiff must prove his or her case on the balance of probabilities. That is not the standard which applies in the criminal justice system. [11] However, I must also keep in mind it is nearly impossible to prove anything with absolute certainty. The Crown is not required to do so. Absolute certainty is a standard of proof that is impossibly high. If, at the end of the case, after considering

5 Page: 5 all the evidence, I am sure that Charles Joseph Adams committed the offences charged, I should find him guilty of those offences, since I would then be satisfied of his guilt beyond a reasonable doubt. On the other hand, if, at the end of the case, based on all of the evidence, or the lack of evidence, I am not sure that Charles Joseph Adams committed the offences charged, then I should find him not guilty of them. Elements of the offences Count #1 - dangerous driving causing death [12] Charles Joseph Adams is charged with dangerous operation of a motor vehicle causing the death of Jesse Reginald Harper. For me to find him guilty of this charge, the Crown must prove each of the following essential elements beyond a reasonable doubt: (i) that Adams operated a motor vehicle; (ii) that Adams operated the motor vehicle in a manner that was dangerous to the public; and (iii) that Adams operation of the motor vehicle caused the death of Jesse Reginald Harper. [13] Elements (i) and (iii) are not in issue. Charles Joseph Adams was the operator of the motor vehicle on July 4, 2010 and defence counsel has filed an admission pursuant to s. 655 of the Criminal Code of Canada confirming Jesse Reginald Harper died from injuries sustained in the collision. The issue for determination is whether Charles Joseph Adams operated his motor vehicle in a manner that was dangerous to the public. Therefore it falls to me to examine the evidence presented; discharge my obligation as the trier of fact to find the facts in this case; and then, as judge of the law, to apply the law to the facts and thereby determine whether the Crown has proven this element of the offence beyond a reasonable doubt. Count #2 - dangerous driving causing bodily harm [14] Charles Joseph Adams is also charged with dangerous operation of a motor vehicle causing bodily harm to Remington Strongman. The same three elements are present in this offence, and in order for me to find Charles Joseph Adams guilty of dangerous operation of a motor vehicle causing bodily harm, the Crown must prove beyond a reasonable doubt: (i) that Adams operated a motor vehicle; (ii) that Adams operated the motor vehicle in a manner that was dangerous to the public; and (iii) that Adams operation of the motor vehicle caused bodily injury to Remington Strongman. [15] As with count #1 in the indictment, the evidence satisfies me beyond a reasonable doubt that Charles Joseph Adams was the operator of the motor vehicle on July 4, 2010 in circumstances giving rise to these charges. Likewise, as per the admission pursuant to s. 655 of the Criminal Code, defence counsel admits that as a

6 Page: 6 result of the collision on the date in question, Remington Strongman was injured and sustained a fracture to his left distal tibia and fibula. [16] The issue with respect to count #2 is the same as with count #1: whether the Crown has proven beyond a reasonable doubt that Charles Joseph Adams operated a motor vehicle in a manner that was dangerous to the public. If the Crown satisfies me beyond a reasonable doubt on this issue, then I must find Charles Joseph Adams guilty on both counts in the indictment. Analysis [17] The focus of the court in this case must be on the operation of the motor vehicle, not the consequence of that operation. I cannot simply look at the tragic results of this collision and conclude the offence has been made out. To do so would be an error in law. [18] While I must remain focussed on the application of the law to the facts as I find them, I am not immune to the tragedy and heartache inflicted on those directly involved in the events of July 4, 2010, their families, the local community, and the wider Island community. A young man s life was snuffed out; another young man suffered severe injuries, but survived; and the accused (whether found guilty or not guilty) carries those consequences with him for life. Regardless of the outcome of this trial, we cannot turn the clock back and return Jesse Harper to our midst, or reverse Remington Strongman s injuries. [19] Evidence relating to the manner of driving of Charles Joseph Adams on July 4, 2010 comes primarily from Cst. Frankie Stevenson of the RCMP and civilian witnesses Shawna Doucette, Carol Norman, Bev Forsyth, and Remington Strongman. I shall now review their evidence. Witnesses Cst. Frankie Stevenson [20] Cst. Stevenson was accepted as an expert in accident reconstruction and collision. He was called in to assist in the investigation of the accident on July 4, 2010 and testified he arrived at the scene about 6:30 p.m. As with other witnesses, he said the paved road was in good condition and the weather was good. He walked the accident scene, made certain observations, and took photographs. [21] Cst. Stevenson prepared a report of his investigation of the accident which was entered as Exhibit C-3. As he approached the collision area from the south, he noted

7 Page: 7 the first visible evidence was located on the east side of the road approximately 145 metres away from the final resting place of the vehicle. He noted the grass showed where the tires of the vehicle had travelled on the grass and started to rotate counterclockwise as it continued northward (Ex. C-3, p. 4). He concluded the vehicle came into contact with the driveway at civic address number 2893 (the residence of Mr. Leigh MacKay), which caused the rear of the vehicle to rise into the air, taking some branches off the overhanging tree, while the left front tire stayed in contact with the ground. He went on to find that when all tires came back in contact with the ground, the vehicle started rotating clockwise and continued northbound, through the ditch, went into brush, struck a large spruce tree and came to rest on the northwest side of the tree (Ex. C-3, p. 5). [22] The vehicle sustained extensive front end damage as a result of colliding with the tree. The force of the collision with the tree resulted in the cab of the vehicle being separated from the mounts and severely twisting the frame (Ex. C-3, p. 7). The engine was separated from the frame, with the transmission being separated from the motor. The front quarter panel on the driver s side and the engine bonnet were bent downward (Ex. C-3, p. 8). From photographs of the truck after the collision submitted in evidence, I would describe it as a mangled mess. [23] While Cst. Stevenson was able to paint a picture of how the accident occurred, he was unable to assist the court with an important factor, that being the estimated speed of the vehicle. He concluded at p. 9 of his report: As for possible speed factors for this collision, there were no suitable tire marks located at the scene from this vehicle to perform a speed calculation. With no other evidence to support or deny this assumption, the minimum pre-collision speed is unknown. Shawna Doucette [24] Ms. Doucette was the driver of the vehicle which was overtaken by the Adams vehicle just prior to the collision. She testified that as she turned off the Jerry Road and onto the O Halloran Road, she saw Adams coming up behind her pretty fast. She recognized the vehicle as Charlie s truck. Ms. Doucette testified that when she first noticed the Adams vehicle from the rear, she had just started to speed up on the O Halloran Road and was doing maybe 50 or so. She goes on to say Whenever he started to pass, I was going probably between 80 and 90. She is certain of her speed because she checked her speedometer. The speed limit in the area was 80 k.p.h. Her evidence with respect to the speed of the vehicles prior to the collision is the best evidence offered by the Crown. [25] Ms. Doucette was asked what she saw when the truck started to pass her. She

8 Page: 8 answered that she saw the corner and a silver car coming from the other direction in the other lane. She testified this other car, when it appeared, was very close. At this time she also noticed a man in the ditch cutting his grass. She testified she just barely remembered seeing him and says he let go of the lawn mower just in time. Adams truck was really close to hitting him. [26] When asked in direct examination about her observations concerning the distance between the oncoming car and the truck that was passing her, she says It was really close. She went on to say He pulled in just in time. Just in time. She described the movement of the truck after it passed her by saying that whenever he pulled in, he had to do it fast and went off the side of the road for quite a ways and then there was a driveway. She says he lost control at the driveway and just flew right into the tree. According to Ms. Doucette, the Adams vehicle was on the shoulder of the road quite a piece before he actually lost control. [27] A key component of Ms. Doucette s testimony concerns her observations as to where the passing by the Adams vehicle began and where it finished. She testified: When he first started passing it was a passing lane, but it was finishing... When he would have finished passing, it was double solid line. Another important observation for my consideration was Ms. Doucette s comment that this whole series of events, including the collision, occurred very fast. [28] In cross-examination she confirmed that whenever Adams was close to passing her vehicle, she looked at her speedometer and it was between 80 and 90. Of that, she is certain. As for the silver car coming in the other direction, she says she was pretty much at the corner whenever that vehicle appeared. By that point the Adams vehicle had been past her vehicle because she said He had just enough time to pull in front of me. [29] Defence counsel suggested to her that when Adams pulled out and started to pass her, she had not yet seen the silver vehicle coming from the other direction. Doucette agreed with that statement. Ms. Doucette indicated Adams lost control of his vehicle and when asked what she meant by that, she said it was in the ditch and he wasn t able to come back onto the road. [30] When asked again about the proximity between the Adams vehicle and the car coming from the other direction, she said They were very close. She added That s why he had to pull in in front of me so fast, because he would have hit the silver car. When this matter was recanvassed by defence counsel with permission of the court, she was asked what it appeared Adams was trying to do while on the shoulder of the

9 Page: 9 road. She answered he was trying to get back, get control of the vehicle again, back onto the road. [31] I found Ms. Doucette to be an excellent witness and her testimony to be reliable. Carole Norman [32] Ms. Norman is a summer resident of Bloomfield Station. She was the driver of the vehicle coming from the other direction on the O Halloran Road on July 4, She testified she was proceeding down the O Halloran Road and there was a black pickup truck coming the other way going towards the Western Road. Another small truck came up and passed the black truck and he was in her lane coming fast towards her and then he swerved in and went off the road. She noticed Mr. MacKay cutting his grass on the side of the road. According to Ms. Norman, he was almost hit with the truck. [33] She described the vehicle coming towards her as travelling very fast. She had to apply her brakes and the Adams vehicle then pulled in. She estimated her speed on that day at approximately 40 m.p.h. (64 k.p.h.). She testified that when she saw the truck coming, she actually stopped her vehicle which then allowed the Adams vehicle to pull in. [34] Ms. Norman testified she travels the O Halloran Road constantly when she is resident in this province during the summer. She has been coming to Prince Edward Island since she was a child. When asked about traffic in the area, she responded by saying there is not really much traffic, but there are a lot of cars that go by. Beverley Forsyth [35] Ms. Forsyth and Ms. Norman are sisters. Ms. Forsyth was a passenger in Ms. Norman s vehicle on July 4, She witnessed a smaller pickup truck passing a larger pickup truck coming directly toward her. She confirmed the accident happened very quickly and that her sister slammed on the brakes when the truck was coming in their direction. James Leigh MacKay [36] On July 4, 2010, Mr. MacKay was cutting his grass. The weather was sunny and clear and the road was dry. He was cutting grass on the shoulder of the road adjacent to his property when he saw a truck pass him in the ditch between where he was cutting and his property.

10 Page: 10 [37] Mr. MacKay uses hearing aids. He testified he did not have those aids in at the time and that his lawn mower was running, therefore he didn t hear the truck coming. Mr. MacKay therefore was unable to offer any specific evidence as to the speed of the Adams truck, but when asked about the traffic in the area, he said there is heavy traffic in the run of a summer day. When asked specifically about the traffic on July 4, 2010, Mr. MacKay couldn t say for sure how much there was. His family has lived in that area since Remington Strongman [38] Mr. Strongman described his relationship to Mr. Adams as being a close friend. He described his contact with Adams at Adams residence on the O Halloran Road in Bloomfield. He and Adams were working on a truck that Strongman had when Jesse Harper arrived. According to Strongman, Jesse Harper was there to get work done to his car. [39] At some point they all left to get gas for the truck they were working on. He says they were headed to the corner store at the end of the O Halloran Road. They left in the Adams vehicle with Charles Adams driving; Strongman in the middle; and Jesse Harper on the passenger side. He testified no one was wearing seatbelts, although seat belts were available in the truck. [40] Strongman recalled passing another truck on that day. When asked if he could estimate how fast the Adams vehicle was travelling as it caught up to the truck in front of him, he said it was over the speed limit but he didn t know how fast. When asked about oncoming traffic, he said there was none until they got by the truck and then another vehicle came around the corner from the opposite direction. He was asked to describe how the passing finished and he said they were passing the vehicle and noticed the oncoming vehicle:...we noticed the oncoming vehicle, so in avoiding a head on collision, he cut over to the right, like hard, and he overturned and went into the ditch. Overcorrected. When asked how close the car was, Strongman says he was playing with the stereo in the truck when the passing began and just looked up and saw the car. [41] Strongman described the motion of the Adams vehicle after it passed the Doucette vehicle in that it pulled over hard. He said We pulled over to the right, hard, too far, and the back end hit the shoulder of the road and lost traction. Then the vehicle went into the ditch and started rolling. He recalls hitting the driveway and

11 Page: 11 noticing a man cutting his grass nearby. He never lost consciousness throughout the accident and described how he braced himself for the collision. [42] After the vehicle came to rest, he says Adams kicked out the window and helped him out of the truck. He suffered a broken leg, a dislocated toe, and a broken right foot. [43] As did the other witnesses, Strongman said the condition of the road was good. It was paved and dry. He said the weather was clear and sunny. He said he travels this road quite a bit and it is not a very busy road. [44] While he described Adams driving as fast as he passed the Doucette vehicle, he says that up to that point his driving was normal. He testified Adams tried to keep his vehicle under control after he passed the Doucette vehicle, but he just couldn t. [45] In cross-examination, Strongman was asked if he felt safe in the Adams vehicle and he said he did until the passing started. There was nothing unusual about Adams driving prior to the accident. As for the speed of the Adams vehicle, he really didn t know what it was, except to say that it was fast because they passed a truck. While conceding there would be a buildup of speed before he started to pass, he did add It seemed a little excessive... He thought it was going fast by the way the trees were going by and the RPMs of the engine. [46] As for the silver car coming in the other direction, he offered the opinion it was doing over the speed limit. However, when asked when he recalled first seeing the oncoming vehicle, he said he just looked up and saw it. Again, he conceded he was playing with the stereo and just looked up and saw the vehicle. As for the rate of speed of the Norman vehicle, I accept Ms. Norman s testimony that she was doing approximately 64 k.p.h. By his own admission, Mr. Strongman only saw the Norman vehicle very shortly before avoiding it, while she was actually driving and in a better position to know her speed. [47] In cross-examination Strongman reiterated the Adams vehicle was driving along the shoulder until it hit the driveway. Defence counsel asked him what Adams was trying to do or what his actions were at that point and Strongman replied by saying Adams was trying to correct it but lost traction and couldn t help it. Defence counsel then suggested to Strongman that Adams was trying to get his vehicle back onto the roadway and Adams agreed. [48] In my view, considering the fact Remington Strongman was a friend of both the accused and the deceased, his testimony concerning the circumstances of the accident was, for the most part, fair and truthful. As with other witnesses, he testified

12 Page: 12 the accident happened very quickly. He was candid about the speed of the Adams vehicle, but I also believe equally candid about Adams attempt to bring his vehicle back to the paved travel portion of the road. Findings of fact [49] The evidence presented by the Crown supports the following findings of fact: 1. On July 4, 2010, Charles Joseph Adams operated a black 1994 Chevrolet S-10 pickup truck on the O Halloran Road. 2. Seated next to him in the truck was Remington Strongman and on the passenger s side sat Jesse Harper. No one was wearing a seat belt. 3. It was a sunny day; there were no impediments to visibility on the road; the travel portion of the road was paved and dry; the shoulder of the road was unpaved; except for the lines on the pavement, there were no warning signs. 4. Shawna Doucette was operating her motor vehicle on the O Halloran Road proceeding toward Route 2 and accelerating from approximately 50 k.p.h. when Adams motor vehicle quickly caught up to her and proceeded to pass her. 5. As the Adams vehicle was next to the Doucette vehicle and overtaking her, she was travelling at a speed of between 80 and 90 k.p.h. 6. When Adams started to pass the Doucette vehicle he was in a permitted passing zone, although at the end of it. 7. When Adams completed his pass, he was in a no-passing zone marked by double solid centre lines. 8. Given the speed of the Doucette vehicle, Adams, too, was exceeding the speed limit, and I find must have been travelling at least 100 k.p.h. in an 80 k.p.h. zone. 9. At some point when the Adams vehicle was beside the Doucette vehicle, the Norman vehicle appeared from the other direction. 10. Adams continued to accelerate and pull his vehicle to the right in front of the Doucette vehicle, thereby avoiding collision with the Norman

13 Page: 13 The law vehicle. 11. In pulling his vehicle to the right, Adams drove onto the shoulder of the road and continued in that fashion until striking the driveway at the residence of Leigh MacKay, whereupon the vehicle became airborne as described by Cst. Stevenson. It continued to proceed along the ditch striking a tree and ultimately coming to rest. 12. While travelling on the shoulder of the road, Adams attempted to pull his vehicle back to the left onto the paved travel portion of the road, but without success, and any hope that he could do so was dashed when he struck the driveway. 13. As a result of the collision, Jesse Harper died and Remington Strongman suffered injuries causing him bodily harm. 14. The traffic in the area at the time of the collision included the Adams vehicle, the Doucette vehicle and the Norman vehicle. 15. Other residences were located in the area with access to the O Halloran Road. The O Halloran Road runs from Route 2 to Route 14. Route 14 was described by Cst. Mintie as a scenic route and given this accident occurred on a fine summer day in July, one might reasonably expect increased traffic in the area because of the tourist season. [50] Subsection 249(1) of the Criminal Code provides that everyone commits an offence who operates 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. The Crown bears the burden of proof of each of the elements required of s. 249, but as noted earlier in these reasons, this case focusses squarely on whether the manner of driving of Charles Joseph Adams amounts to dangerous operation of a motor vehicle. [51] Every criminal offence requires a combination of a guilty act (known in law as the actus reus) and a guilty mind (known in law as the mens rea). Trial courts experienced difficulty in determining the mens rea for these type of offences and the Supreme Court of Canada offered some direction in two cases: R. v. Hundal, [1993] 1 S.C.R. 867 and R. v. Beatty, [2008] 1 S.C.R. 49. These decisions bind me and I must follow them. Nevertheless, the case before me is a prime example of the difficulty

14 Page: 14 one has in determining whether the Crown has fully discharged its burden when it comes to the concept of dangerous driving. [52] It is for this reason that I wish to make reference to several passages from the Beatty case which are relevant to the case at bar. I shall then apply the law to the facts as I have found them. The following passages from Beatty are noteworthy. Writing for the majority, Charron J. begins at para. 41 as follows: Restatement of the Test in Hundal 41 In Hundal, Cory J. summarized the analytical framework for applying the modified objective test in the following oft-quoted passage (at pp ): It follows then that a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place". In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation In reviewing a number of cases that have applied this test, I have observed two common difficulties. First, there appears to be some confusion on the distinction, if any, between "objectively dangerous driving" on one hand, and a "marked departure from the standard of care" on the other. This difficulty is quite understandable because some departures from the reasonable standard of care may not be "marked" or "significant" but are nonetheless undeniably dangerous As we have seen, the requisite mens rea for the offence of dangerous driving was the sole issue before the Court in Hundal, and the test was expressed accordingly. In order to clarify the uncertainties I have mentioned, it may assist to restate the summary of the test in terms of both the actus reus and the mens rea of the offence...the actus reus must be defined, rather, by the words of the enactment. Of course, conduct that is found to depart markedly from the norm remains necessary to make out the offence because nothing less will support the conclusion that the accused acted with sufficient blameworthiness, in other words with the requisite mens rea, to warrant conviction. In addition, it may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused's manner of driving, evidence about the accused's actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea. I would therefore restate the test reproduced above as follows:

15 Page: 15 (a) The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, 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". (b) The Mens Rea The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required [page77] mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. Charron J. continues at paras. 45 through 49 as follows: Determining the Actus Reus 45 I deal firstly with the actus reus. The offence is defined by the words of the legislative provision, not by the common law standard for civil negligence. In order to determine the actus reus, the conduct must therefore be measured as against the wording of s Although the offence is negligence-based, this is an important distinction. As we have seen, conduct that constitutes dangerous operation of a motor vehicle as defined under s. 249 will necessarily fall below the standard expected of a reasonably prudent driver. The converse however is not necessarily true -- not all negligent driving will constitute dangerous operation of a motor vehicle. If the court is satisfied beyond a reasonable doubt that the manner of driving was dangerous to the public within the meaning of s. 249, the actus reus of the offence has been made out. Nothing is gained by adding to the words of s. 249 at this stage of the analysis. 46 As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The consequence, as here where death was caused, may make the offence a more serious one under s. 249(4), but it has no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. [page78] Again, this is also an important distinction. If the focus is improperly placed on the consequence, it almost begs the

16 Page: 16 question to then ask whether an act that killed someone was dangerous. 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... Determining the Mens Rea 47 In determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about the accused's actual state of mind... the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test. This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant. For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that [page79] vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met. One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a "marked departure" from the standard expected of a reasonably prudent driver. Doherty J.A. similarly equates such deliberate action with a "marked and substantial" departure from the norm in the context of a criminal negligence charge in R. v. Willock (2006), 210 C.C.C. (3d) 60 (Ont. C.A.), where he states, at para. 32: I think the appellant's conduct during the two or three seconds in issue could only reasonably be said to constitute a marked and substantial departure from the conduct expected of a reasonable driver if the appellant deliberately jerked the steering wheel to cause the vehicle to swerve, presumably to either show off or frighten his young passengers. If that finding was reasonably open on the evidence, then the appellant could properly have been convicted of criminal negligence, as he was unable to regain control of the vehicle before it crossed the median and collided with the westbound vehicle. As indicated, I read the trial judge as making that finding. With respect, I do not think that finding was reasonably available on the totality of the evidence Therefore, while proof of subjective mens rea will clearly suffice, it is not essential. In the case of negligence-based offences such as this one, doing the proscribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite fault. The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a "marked departure" from that norm, the offence will be made out. As stated earlier, what constitutes a "marked departure" from the standard expected of a reasonably prudent driver is a

17 Page: 17 matter of degree. The lack of care must be serious enough to merit punishment. There is no doubt that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person. Nonetheless, as Doherty J.A. aptly remarked in Willock, "conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum" (para. 31). Although Willock concerned the offence of criminal negligence, an offence which is higher on the continuum of negligent driving, this observation is equally apt with respect to the offence of dangerous operation of a motor vehicle. 49 If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need to pursue the analysis. The offence will not have been made out... Cases on marked departure [53] My reading of cases involving dangerous driving leads me to the conclusion that the majority of them are fact driven. Such is the case at bar. It falls to the court to determine on the particular facts of a case whether the particular actions of an accused cross the line and constitute marked departure from the norm. Following are some cases where other courts in this country have found a marked departure in the facts before them: 1. R. v. Buchanan, [2002] 28 M.V.R. (4 th ) 297 (Ont. Sup. Court of Justice). The accused fell asleep at the wheel, crossed a concrete median and struck and killed two pedestrians. He was found guilty of dangerous operation of a motor vehicle causing death. The court found a marked departure in that the accused knew he was tired before setting out. He had fallen asleep in his car in the parking lot of his employment for 45 minutes before setting out. He failed to take steps to ensure his alertness while driving. The court found a reasonably prudent driver may drive while tired, but he or she will take steps to make sure they stay awake. The accused failed to do so. 2. R. v. Manty, 2005 MBQB 55; 191 Man. R. (2d) 216. In this case the accused failed to stop at a stop sign and struck another vehicle. He was found guilty of dangerous operation of a motor vehicle causing bodily harm. Marked departure was found in that the accused was not paying attention to the flashing warning sign before the intersection. He knew the route well and had travelled it many times, but he either did not see or did not pay attention to clearly posted and visible signs. The court found a reasonably prudent driver may go slightly in excess of the speed limit, but doing so requires an increased level of diligence which

18 Page: 18 the reasonably prudent driver will demonstrate. 3. R. v. MacDonald, 2005 ABPC 351. The accused drove through two red lights at high speed and crashed into another vehicle. He was found guilty of dangerous driving of a motor vehicle causing bodily harm. The court found a marked departure from the norm in that the accused entered the intersection knowing the light was about to turn red, accelerated to beat the light, saw the other vehicle in the intersection, but proceeded through the intersection anyway. 4. R. v. Nieto-Campos, [2005] 28 M.V.R. (5 th ) 194 (Ont. Sup. Court of Justice). This case involved the accused racing another vehicle. There was a crash and the driver of the other vehicle was killed. The accused was found guilty of dangerous operation of a motor vehicle causing death. The court found marked departure in that the accused was going well in excess of the speed limit by doing 150 k.p.h. in a 90 k.p.h. zone. The fact the vehicles were racing also pointed to a marked departure. 5. R. v. Bader, 2010 BCPC 168; 99 M.V.R. (5 th ) 305. In this case the accused passed a tractor trailer during winter driving conditions. The lane dividing lines were obscured and a portion where the accused passed was uphill. He collided with an oncoming vehicle and the driver of that vehicle was killed. The accused was found guilty of dangerous operation of a motor vehicle causing death. The court found the accused s driving to be a marked departure from the norm in that he decided to pass when he could not see the lanes clearly. He was not familiar with the road, so he could not adequately assess the safety or the danger of passing. He remained in the oncoming lane after the tractor trailer began to accelerate and did not attempt to get back into the proper lane. The lines of marked departure from the norm in each of these cases is much clearer than in the case at bar. Conclusion [54] On the whole of the evidence, or lack of evidence, I must determine whether the Crown has discharged the burden on it to prove its case beyond a reasonable doubt. As the Supreme Court points out, the actus reus of the offence is made out when, viewed objectively, the accused was driving in a manner that was:

19 Page: 19...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. [55] The Supreme Court also concludes that objectively dangerous driving on one hand may not amount to a marked departure from the standard of care on the other. In the case before me, I have no difficulty concluding that the Crown has proven beyond a reasonable doubt that the driving of Charles Joseph Adams on July 4, 2010, when viewed objectively, was dangerous to the public. The actus reus of the offence has been made out. I reach that conclusion based on my finding that he started to pass in a passing zone, but completed his pass in a no passing zone while approaching a curve in the road. He exceeded the speed limit and was doing at least 100 k.p.h. and perhaps accelerating as he passed the Doucette vehicle and attempted to avoid the Norman vehicle. There was traffic in the area, including the pedestrian Leigh MacKay. Given the location and time of year, one might reasonably expect traffic in the area even greater than what actually existed. I do not have a reasonable doubt concerning the actus reus of the offence. [56] However, the Crown must do more than prove the actus reus. I must be satisfied beyond a reasonable doubt that the dangerous conduct of Charles Joseph Adams was accompanied by the required mens rea. In making this objective assessment, I must be satisfied his conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused s circumstances. What does the evidence tell me on this key issue? I know Adams was in a no-passing zone when his vehicle was alongside the Doucette vehicle. I know he was exceeding the speed limit as he passed the Doucette vehicle and pulled in front of it, subsequently losing control. Thus, two damning factors are that he was in a no-passing zone and exceeding the speed limit, although there is no evidence of his exact speed. [57] I also know that when he started his passing manoeuver, he was in a permitted passing zone. I know from the evidence, and a view of the scene, the turn that he approached while overtaking the Doucette vehicle was a long gradual turn, as opposed to an abrupt one. Given what I have seen from the photos of the area, the testimony of Cst. Stevenson, and the photos of what was left of his vehicle after the collision, I might say that Adams was probably doing far in excess of the posted speed limit prior to the collision. However, that would be nothing more than speculation or conjecture on my part because I have no evidence to support it. At best, it would be a probability, and at worst, it would be conjecture. [58] The accident happened very quickly. The road was dry. The weather was clear. Adams knew the road. Visibility was good. Adams attempted to get his truck

20 Page: 20 back on the travel portion of the road after he passed the Doucette vehicle, but to no avail. There is no evidence of any alcohol or drug use by Adams on July 4, There is no evidence of any abnormal driving by Adams before he passed Doucette. [59] Charles Joseph Adams was clearly negligent in his operation of his motor vehicle on July 4, Viewed objectively, he operated it in a manner dangerous to the public. The Crown advanced a strong case, inviting me to conclude that the actions of Charles Joseph Adams on July 4, 2010 constituted a marked departure from the norm. While the case presented by the Crown was compelling, I am unable to reach the conclusion suggested. [60] A reasonably prudent driver in the circumstances of the accused would try to avoid collision with an oncoming car by getting by the Doucette vehicle as quickly as possible. The reasonably prudent driver would then try to get his vehicle back onto the paved road after he had overcompensated by pulling onto the shoulder after passing the Doucette vehicle. This is what Adams tried to do, but failed. That being the case, I am unable to conclude the Crown has proven beyond a reasonable doubt that Adams operation of his motor vehicle constituted a marked departure from the norm. On the whole of the evidence, it would simply be unsafe to convict. As Doherty J.A. remarked in R. v. Willock (2006), 210 C.C.C. (3d) 60 (Ont. C.A.): Conduct that occurs in such a brief time frame in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum. Since I am left with a reasonable doubt, I must resolve that in favour of the accused and, therefore, must find him not guilty on each of the counts in the indictment. September 22, 2011 J.