IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Accused James Steven Baker is charged with providing the Insurance Corporation of British Columbia (ICBC) or its representatives information material to a claim for insurance that he knew or ought to have known was false or misleading, contrary to section 42.1  (2) (a) of the Insurance (Vehicle) Act. The offence is alleged to have occurred from December 10^th to 11^th of 2013 in Abbotsford, BC.

[2]           It is acknowledged by everyone that on December 10, 2013, sometime around 5:35 a.m., the Accused was the driver of a black Dodge Ram 4x4 pickup truck that was involved in a motor vehicle accident on 64^th Avenue in Surrey, B.C. The Crown asserts that this was a single vehicle accident caused because the Accused was driving too fast for road conditions. The Accused has testified that his accident was the result of his truck being struck by another vehicle. This is a significant distinction because if the evidence satisfies me beyond a reasonable doubt that the Accused was untruthful in his report to ICBC as to how the accident took place and that he knew or ought to have known that he was being untruthful then the offence is made out.

[3]           There are two main reasons to question whether or not the Accused was being truthful to ICBC when he said that the accident was the result of a two vehicle collision and not a single-vehicle collision. Firstly, this incident was witnessed by the driver of a City of Surrey salt truck, and that person is adamant that there was no other vehicle involved in the accident. Secondly, an examination of the Accused’s vehicle does not show damage in those areas where one might reasonably expect it to be if the accident occurred as he described in his statement. This second issue is more problematic because no expert accident reconstruction expert was called to support this conclusion, and the question therefore becomes how strong of an inference or conclusion can I as the trier of fact draw from the evidence on this point?

[4]           It must be kept in mind that it is not a question of whether or not I believe the Accused. The question is whether or not the Crown has proven all of the elements of the offence beyond a reasonable doubt. That burden of proof remains with the Crown at all times. It never shifts to the Accused. It is the Crown who must prove the guilt of the Accused to that standard.

[5]           On December 10, 2013, the Accused was driving his 2008 Dodge Ram pickup truck from Abbotsford to Surrey where he was scheduled to start work at 6:00 a.m. At around 5:30 a.m. the Accused was driving west bound on 64^th Avenue in Surrey. It had snowed that night and salt trucks were on the road that morning in order to address the icy road conditions that existed. There is a portion of 64^th Avenue consisting of a series of rolling hills, known as Bose Hill, where the road narrows from being a four-lane highway to become a two-lane highway separated by a painted island lane as one proceeds west down the hill. It was along this portion of 64^th Avenue that the Accused lost control of his vehicle that morning and ended up off the highway, on the north side, and went down the grade of the side of the road, coming to rest in a field.

[6]           The Accused testified that the accident was the result of his being struck by another vehicle which attempted to pass him at the top of the hill. Here is how he described his accident in a signed statement that he gave to ICBC the day after the accident occurred (December 11, 2013):

[7]           In his examination-in-chief at trial, the Accused elaborated on the manner of the contact between his vehicle and the one that he says came into contact with his vehicle. He gave the following answers in response to questions from his counsel:

[8]           In his statement to ICBC, the Accused made no mention of the presence of a City of Surrey salt truck being present at the time of the collision, aside from a brief reference to there being a “truck or something ahead of” him. He did not make any mention of sliding past the salt truck before hitting the road, as he did in his testimony at trial.

[9]           The Accused testified that after his vehicle hit the ditch, he was able to call the dispatcher at his employer, the Surrey Detachment of the Royal Canadian Mounted Police and report the accident as well as his location and his predicament. That call was placed at 5:44 a.m. He remained there for about forty-five minutes before two members of the Surrey Detachment arrived.

[10]        The Accused’s version of the incident is at odds with that testified to by City of Surrey salt truck driver Kelly Grayson. Mr. Grayson testified that on that morning, at about 5:35 a.m. he was operating his truck on 64^th Avenue in the Bose Hill area, applying salt to the road, and was proceeding west. He described this incident as follows:

[11]        Mr. Grayson testified that the center island (or “suicide lane”) was completely covered by snow. He also testified that the black truck remained upright at all times.

[12]        Mr. Grayson felt that it would not be safe to stop for the driver. From the nature of the accident that he had witnessed, he did not feel that it was necessary for him to stop and render first aid. He asked his dispatcher to call police and report the accident. He passed by the scene of the accident later that morning and saw the truck in the field. Police were present at that time.

[13]        Mr. Grayson was certain that this was a single vehicle accident. He testified as follows:

[14]        Mr. Grayson agreed that there were other vehicles on 64^th Avenue before the collision occurred, but he testified that he did not see any other vehicle come into contact with the Accused’s truck at the time of the accident. In cross-examination, there was some confusion on Mr. Grayson’s part about precisely where on Bose Hill the Accused passed Mr. Grayson’s salt truck. In a statement he gave to police, he said that this took place at the bottom of the hill, but in his testimony at trial he said that this took place in the middle of the hill.

[15]        Both the Accused and Mr. Grayson were asked to view a video from a traffic camera located at the intersection of 168^th Street and 64^th Avenue. This video shows that at that location, about five blocks east of where this accident occurred, other vehicles were heading westbound on 64^th Avenue at around the same time that the Accused’s vehicle proceeded through. This was the last video camera which these vehicles passed prior to the Accused’s accident.

[16]        Daryl Cote is an adjustor for ICBC and she was the person who took the Accused’s statement on December 11, 2013. She described the procedure for the taking of the statement, in which she asked the Accused questions, received his responses, typed the statement into a computer, read the statement to him, asked him if any corrections were required and then had him sign the statement. When asked if the Accused gave more details about the accident than those contained in the statement, Ms. Cote said that he did not. In giving his evidence, the Accused said that he provided much more information than was set out in the statement that he signed. He testified that the statement he signed was accurate, and that Ms. Cote had accurately, but not fully, summarized what he had told her.

[17]        On December 11, 2013 the Accused’s vehicle was examined on the premises of Craftsman Collision in Abbotsford by ICBC Special Investigator John Porter. Mr. Porter took 29 photographs of the vehicle and he was instructed to review the vehicle for any evidence of damage that might have resulted from a collision which took place in the manner that the Accused had described. Mr. Porter testified that he did not find any indication of damage to the left bumper, to the left quarter-panel or to the left headlight of the vehicle. He testified “I saw nothing that I would associate with a moving collision with a motor vehicle.” His photos generally support this testimony. In a photo taken of the truck’s left front bumper (taken from the side), the bumper appears to be undamaged. There is a mark on the corner of the bottom of the bumper just to the left of a fog light at the bottom of the bumper. The front license plate is missing and there appears to be a smear of some kind between the places where two bolts would normally hold the license plate. Mr. Porter gave evidence as to his examination of the vehicle, but he was not qualified to give any sort of expert opinion evidence and did not offer any such opinion. He testified only as to his own observations as well as offering an explanation of what was in the photographs that he had taken.

[18]        On behalf of the Crown, Mr. Fox argues that the evidence of the Accused is not credible for a number of reasons. Firstly, he says that it defies common sense, logic and the laws of physics that the Accused’s vehicle would be struck on the left (driver’s) side by a lighter vehicle and that this would cause it to lose control in such a manner that it spun out of control passing Mr. Grayson’s salt truck on the left side. Secondly, there is no explanation for the disappearance of the vehicle which the Accused says he struck his truck. Mr. Fox notes that Mr. Grayson testified that he did not see any other vehicle in between his and the Accused’s vehicle and he did not see a second vehicle pass him prior to when, or at the time that the Accused’s vehicle entered the ditch. Third, Mr. Fox argues that the Accused’s vehicle shows no damage of being struck from the left and that the absence of the truck’s license plate and other markings on the front of the truck’s bumper are not corroborative of an accident as described by the Accused. He also argues that it is not credible to believe that, after being struck on the left side of his vehicle, the Accused would continue to steer his vehicle in that direction.

[19]        Mr. Fox argues that the Accused’s evidence should not be believed and that it does not raise a reasonable doubt. He states that the evidence of Mr. Grayson proves, beyond a reasonable doubt, that the Accused was not being truthful when he told ICBC that his truck was struck by another vehicle, and that he obviously knew that this was so.

[20]        On behalf of the Accused, Mr. Butcher argues that Mr. Grayson’s evidence is not determinative of the issue before the court because the collision that the Accused told ICBC about occurred behind Mr. Grayson, who was unable to observe it due to having his view restricted to what he could see in his side mirrors, as well as by the hilly terrain. He also argues that Mr. Grayson’s evidence is not objective and points to parts of Mr. Grayson’s evidence in which the witness was confrontational, argumentative and stubborn. He also notes inconsistencies between the witness’s evidence in his initial statement to police and his testimony at trial, including different versions of where on Bose hill his vehicle was passed. Mr. Butcher argues that it would be dangerous to convict the Accused on Mr. Grayson’s evidence.

[21]        Mr. Butcher also argues that the absence of any accident reconstruction evidence prevents the court from drawing any conclusions about the absence of damage to the left side of the Accused’s vehicle. He argues that the Accused should be believed because of the absence of any motive to fabricate and because his evidence cannot be recent fabrication. At the very least, he argues, the Accused’s version of events is a reasonable possibility and as such, the Accused is entitled to the benefit of any doubt.

[22]        Section 42.1 (2) of the Insurance (Vehicle) Act makes it an offence for anyone to provide ICBC or its representatives with “information material to a claim that the person knew or ought to have known was false or misleading, whether the information is required… or volunteered”. The elements of this offence may be summarized as follows:

[23]        The section makes it an offence for someone to give information material to a claim that the person knew “or ought to have known” was false. The phrase “or ought to have known” has been judicially construed in other contexts to adopt a standard of what an honest person would reasonably know under the circumstances (see, for example White v. White [2001] 2 All ER 43 at 49-50) and this is a fair construction of that phrase in this legislation, provided that this should not in any way be construed so as to lessen the burden of proof that rests with the Crown to prove the mental element (the “mens rea”) of the offence.

[24]        In this case it is not in issue that the Accused provided “information”, as that term is used in this section, to ICBC that was material to a “claim” as defined in the Act. The issue is whether or not the Crown has proven beyond a reasonable doubt that the Accused knew or ought to have known that the information was false or misleading.

[25]        The Crown is required to prove all of the elements of this offence beyond a reasonable doubt. In R. v. Lifchus 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada discussed the meaning of the phrase “reasonable doubt.” The court said that a reasonable doubt is a doubt based upon reason and common sense. It is not based upon sympathy or prejudice. It must be logically connected to the evidence. It does not require proof to an absolute certainty, nor is it an imaginary or frivolous doubt. It requires more than the belief that an accused is probably guilty.

[26]        In R. v. Bachman 2013 BCSC 1028, the Honourable Mr. Justice Brown explains the definition of “reasonable doubt” further, in paragraphs [74] to [79] of that decision. As he states in his reasons for judgement:

[27]        Where there is conflicting evidence in a case such as this, the law requires me to instruct myself according to the following directions set out by the Supreme Court of Canada in R. v. D.W. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at p. 757, which I paraphrase as follows:

[28]        In R. v. C.W.H. (1992) 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), the late Judge Wood, then Mr. Justice Wood, gave the following further advice:

[29]        There are a number of considerations which a court can apply when determining issues of credibility.  Firstly, a court may consider evidence which pertains to the honesty and forthrightness of the witnesses.  Evidence of character, background or other behaviour that bears on a person's honesty may be considered, such as a criminal record for crimes of dishonesty, or other dishonest conduct proven, such as false statements made to police in the course of the investigation. 

[30]        A court may also consider the demeanour of a witness while that witness gives testimony, but I concur with those who believe demeanour to be one of the least accurate barometers of credibility. 

[31]        The credibility of a witness may be assessed by its internal consistency, which is by the presence or absence of any contradiction within itself. It may also be assessed by its external consistency, which is by the presence or absence of any contradiction with the remainder of the evidence.

[32]        In this case, the Crown has invited me to infer or to conclude, from the absence of damage to the left side of the Accused’s vehicle, that the Accused’s vehicle was never struck in the manner that the Accused alleges. Counsel for the Accused takes the position that, in the absence of any expert opinion evidence, I cannot draw such a conclusion.

[33]        An inference is defined in Watt’s Manual of Criminal Evidence as “a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established” in the evidence presented. The author goes on to note that “it is a conclusion that may, not must, be drawn from the circumstances” but that it does not change either the burden of proof or the standard of proof.

[34]        Even where there is no expert opinion on an issue, a trier of fact can use matters of common knowledge and accumulated life experience in making findings of fact. This is sometimes referred to in case law as “common sense”, even though that term may lack a precise meaning. It is a concept which can be problematic because it can invite intellectual dishonesty if one is not careful. In a criminal context, there may be things which appear to fall within the realm of common sense to the Crown, but not to the defence or vice versa. The temptation can present itself to apply this label to whatever accords with one’s own views as a shortcut, while ignoring contrary views. On the other hand, the law of evidence cannot be so pedantic as to require expert proof of basic matters. As Mr. Justice Brown stated in R. v. Bachman, supra, common sense is one of the things that one must apply in determining whether or not reasonable doubt exists.

[35]        As the authors point out in McWilliams on Evidence, 5^th Edition, in section 26:20:20, juries are routinely instructed to apply their “individual and collective common sense and judgement” in their decision making function. The authors note that “allowable uses of common sense, common knowledge and experience” have emerged in criminal trials in a variety of situations and that there is no exhaustive list of the parameters of such application.

[36]        One example of this is found in R. v. Kim 2011 BCCA 127, where the trial judge drew a conclusion about whether or not the scraping of a key on the door of a car would be audible. On appeal, it was argued that in coming to this conclusion, the trial judge had “embarked on inappropriate scientific analysis”. This argument was rejected by the BC Court of Appeal, who held, at paragraph 19, that the trial judge was permitted to make what it termed “a common sense assessment”.

[37]        In R. v. R.A.N. (2001) 2001 ABCA 68 (CanLII), 152 C.C.C. (3d) 464, the Alberta Court of Appeal held that expert evidence was not required for a trial judge to conclude that the onset of bedwetting and other behavioural problems for a 10 year old child was indicative of some trauma in the child’s life.

[38]        In R. v. Rogers (2005) 2005 BCCA 377 (CanLII), 198 C.C.C. (3d) 449 the BC Court of Appeal held that expert evidence was not required to establish that emotions are strained following separation in a spousal relationship.

[39]        These cases are also in keeping with the general principle that expert witnesses should only be permitted to give an opinion about matters upon which lay persons would be unlikely to form a correct opinion. (R. v. McMillan (1975) 1975 CanLII 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.); affirmed at [977] 2 S.C.R. 824.) Where a reasonable conclusion can be reached by the trier of fact based common knowledge and life experience, a court can permissibly arrive at such a conclusion.

[40]        In applying the law to the evidence presented I must first determine whether or not, based on the three stage analysis set out by the Supreme Court of Canada in R. v. D.W., I accept the evidence of the Accused as to how this accident occurred.

[41]        There is one piece of independent evidence that is somewhat corroborative of the Accused’s version of events. A recording captured by a video camera of the intersection of 64^th Avenue and 168^th street shows that shortly before this accident occurred, and shortly after the Accused’s vehicle drove through this intersection, a dark sedan followed in the same direction, and that this vehicle can be said to fit within the general description that the Accused gave of the vehicle that struck him.

[42]        There are three aspects to the independent evidence which contradict the Accused’s version of events. Firstly, there is the evidence of Mr. Grayson, in which Mr. Grayson is clear that this was a single vehicle accident. Secondly, there is the absence of any damage to the left side of the Accused’s vehicle, specifically to the left quarter panel, or the outside of the bumper. What damage there is appears minimal and is located on the front of the bumper in portions of it that would not have been struck by another vehicle cutting across the path of the truck from the left side. The removal of the license plate, as described by the Accused, would require the Accused’s vehicle to be at or nearly at a right angle to the other vehicle, something that does not seem possible. Lastly, the absence of any mention by the Accused of his passing the City of Surrey salt truck, while not having control of his vehicle at the time of the accident is troubling. The salt truck features prominently in the Accused’s version of what took place. The Accused had testified that after his vehicle was struck, it slid from behind and to the front of the salt truck. No mention is made about the salt truck in the statement which the Accused gave to ICBC, other than his mentioning that there was a truck in the distance ahead of him prior to the accident.

[43]        In a criminal trial, a judge may accept all of a witness’s evidence, some of a witness’s evidence of none of a witness’s evidence. It is somewhat problematic that Mr. Grayson, in giving his evidence, was not entirely dispassionate, sometimes choosing to debate counsel in cross-examination, other times steadfastly sticking to assertions, even when shown to be incorrect. There are inconsistencies in his evidence that have been pointed out by the Accused’s counsel. There are two significant facts on which there is no inconsistency in his evidence and on which he is not contradicted by any independent evidence: (1) that the Accused’s vehicle lost control after it had passed his vehicle and (2) that there was no second vehicle which caused or contributed to the Accused’s accident (or that was on that particular section of 64^th Avenue at the time of the accident.) While there may be other collateral details that Mr. Grayson is or may be mistaken about, there is nothing in the evidence which suggests that he is mistaken about these two things. There is also nothing in the evidence which suggests that he is falsely asserting these things.

[44]        The absence of damage to the left side of the Accused’s vehicle give rise to a concern about his evidence that the front of his vehicle was clipped by another vehicle, causing him to lose control of it and causing him to veer to the left and pass Mr. Grayson’s salt truck on the left side. It does not accord with logic and common sense that there would be no damage to the left front of the Accused’s vehicle and specifically to his left front quarter panel, his left headlight or the left side of his bumper. The Accused described this impact as a significant jolt. The suggestion that a collision as described by the Accused would have torn off the vehicle’s license plate also defies logic. It is difficult to imagine how this could have occurred without the Accused’s vehicle being at or nearly at a right angle to the other vehicle.

[45]        It is also troubling that the Accused omitted to mention in his statement the presence of the City of Surrey salt truck, or that the collision caused his vehicle to slide from behind the salt truck, pass it on the left side, and then slide back in front of it before hitting the ditch. This was a significant detail that was not mentioned in statement which the Accused reviewed and signed.

[46]        All of these considerations lead me to the conclusion that the evidence of the Accused as to what took place at the time of the accident cannot be accepted. It cannot even be said that, while not credible, this version of events might be true. The combination of the evidence of Mr. Grayson, the absence of vehicle damage and the other factors mentioned preclude acquittal on the first or second parts of the test in R. v. D.W.

[47]        I turn next to considering whether, on the evidence that I do accept, I am satisfied that the Crown has proven all of the elements of the offence beyond a reasonable doubt. I am satisfied, beyond a reasonable doubt, that on December 11, 2013, the Accused provided information to ICBC that was material to a claim, as that term is defined in section 42.1 of the Insurance (Vehicle) Act. I am also satisfied, beyond a reasonable doubt, that certain material portions of that statement were false. Specifically, the representation that another vehicle caused the accident referred to in the statement is false. I accept the evidence of Mr Grayson that there was no vehicle involved in this accident other than the Accused’s. I find that the accident occurred in the manner described by Mr. Grayson.

[48]        I also find that when the Accused gave the information that he gave to the ICBC adjuster, he knew that material portions of the statement were false. Specifically, he knew that there was no second vehicle which struck him and which was the cause of his accident.

[49]        The Crown has proven all of the elements of this offence beyond a reasonable doubt and accordingly I find the Accused guilty of the offense set out in court one of the information.