IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           It must be remembered that accidents happen, sometimes accidents with catastrophic consequences solely as a result of negligence and not as a result of criminal behaviour. Neither the consequences of the accident, nor the severity of the injuries caused by that accident, define the criminal responsibility of the driver of the vehicle at fault. In a criminal case, the court must decide if the Crown has proven beyond a reasonable doubt that the driving in question was dangerous, even the nature and circumstances that were or might reasonably have been expected to be present at the time of the accident. Then the Crown must prove that that dangerous driving was the cause of the injuries or the bodily harm sustained in the accident.

[2]           I carefully considered the evidence led in this matter and the thorough and helpful submissions of counsel and I am satisfied that the Crown has met this heavy burden and the accused is guilty as charged.

[3]           On December 20, 2017 at approximately 8:15 in the morning, the accused driving a black Mercedes SUV, struck L.B. while she was in a crosswalk, crossing Ash Road at the corner of Ash Road and Torquay Drive. Miss L.B. was 11 years old at the time of the accident. Miss L.B. was thrown a significant distance before coming to a stop, wedged under another vehicle. Sadly, as a result of the impact, she suffered catastrophic injuries including severe brain damage, a fractured neck and lacerated spleen. Of course it is common ground that those injuries constituted bodily harm as that term is defined in the Criminal Code, R.S.C., 1985, c. 46.

[4]           The accused’s driving first came to the attention of her fellow drivers some five and one third kilometres before the scene of the accident. For this distance, she is observed by two individuals to be driving extremely close to the vehicle she was following. So close that the driver of the vehicle in front of her indicated that all she could see of the accused’s vehicle was the grill. It is also clear from the evidence that the accused was continually texting throughout the course of that driving. The text records disclose the following text conversation times between the accused and unknown persons:

[5]           Not surprisingly, she is specifically observed to be texting for the duration of the time she was at a red light prior to the accident. This behaviour is unlawful constituting the offence colloquially known as “distracted driving”. Motor Vehicle Act, R.S.B.C. 1996 c. 318 Reg. 308/2009 (the “Motor Vehicle Act”).

[6]           The route driven on the morning of the accident was subject to a posted speed limit of 50 kilometres per hour. Approximately four and a half kilometres from the time the accused was initially observed driving, she passed two vehicles. The action of passing those two vehicles was captured by a forward and rear facing dash camera located in the second of the two vehicles the accused passed. The images from those cameras was introduced into evidence at the trial. Those images were also analysed by an expert in video analysis to determine the speed of the accused’s vehicle as she perfected the pass.

[7]           Based on the evidence and the video analysis, it is clear that both of the vehicles she passed were travelling at the speed limit and there was clearly adequate space for the accused to pass one vehicle at a time. Instead of that, she chose to speed by both vehicles at once. Video analysis of the images from the dash cameras establishes that in order to affect this pass she accelerated to speeds from 95 to 100 kilometres per hour in a 50 kilometre per hour zone. At the location of the pass, the accused’s vehicle crossed a single solid yellow line, meaning that the pass was lawful. To pass at twice the posted speed limit, however, is clearly not lawful, rather constitutes the offence of “excessive speeding”. Section 148 of the Motor Vehicle Act. There are no other vehicles present or visible that rendered the pass unsafe in and of itself, however the road in the location of the pass was a two-lane road with no significant shoulder space and little or no way in which the accused could correct or evade, in the event a hazard might present itself.

[8]           Some 500 metres following the high-speed pass, the dash camera of a city transit bus travelling in the opposite direction captured the accused’s vehicle. The bus is equipped with a number of cameras, one of which captures the view out the front window of the bus. Another camera captures the view out the driver’s side window of the bus facing toward the rear of the bus. Video analysis was done of those images as well. I accept that the calculations from the analysis of the video from the transit bus are slightly compromised as a result of the limited frame rate of those two on board cameras and the relatively brief period of time that the accused’s vehicle is in the ken of those cameras. In spite of those frailties, however, the video analyst opined with a good degree of confidence that at the time the accused passed the bus, she was still travelling at 80 kilometres per hour. She passed this bus approximately 590 metres before striking the victim as she walked through the crosswalk.

[9]           Many witnesses testified about the scene of the accident and all of their evidence paints a similar, clear and convincing picture of the scene.

[10]        At approximately 8:10 that morning, young L.B. left home to walk to school. She was a few short metres from her home when she stopped at a crosswalk on the southeast corner of Ash Road and Torquay Drive. Three separate motorists observed her stopped at the crosswalk waiting to cross to the north across Ash Road. When stopped at the crosswalk she was looking left and right. One witness noticed the child stop some metres before the crosswalk and gaze upward into the sky. This observation is clearly before the child walked from that spot, to the crosswalk, where she was clearly seen by the three other motorists.

[11]        At the time when young Miss L.B. is standing at the crosswalk ready to cross Ash Road, the accused is still driving east on Ash Road approaching the same crosswalk. The operator of the motor vehicle travelling west on Ash Road, in the opposite direction from the accused, clearly observed the child and the crosswalk and brought her vehicle to a stop to allow the child to cross. The vehicle travelling north on Torquay Drive also observed the child at the crosswalk. The vehicle travelling north on Torquay Drive figures prominently into my analysis. That vehicle was driven by a gentleman named Mr. Steele. For clarity, I will refer to that vehicle as the “Steele Vehicle”.

[12]        Mr. Steele testified that when he stopped at the stop line in order to turn left and go west on Ash Road, he was very concerned about the motor vehicle travelling east on Ash Road, the motor vehicle driven by the accused, because it did not appear to be slowing down for the crosswalk. As the possibility of a collision between the child and the accused’s vehicle became more profound, Mr. Steele sounded his horn to warn the accused of the hazard. Simultaneously, young L.B. begins to run across the crosswalk. Approximately two thirds across the path of the accused’s vehicle, she is struck with significant force. Her body is propelled forward and slid some 25 to 26 metres before wedging under a motor vehicle that was stopped some distance east of the crosswalk. The driver of that vehicle had brought his vehicle to a stop well before the point of impact when he perceived an accident rapidly unfolding.

[13]        The child was struck by the accused’s vehicle and propelled to her final resting place with significant force. The first officer on the scene, who became the investigating officer, described the position of the child, as “wedged under the vehicle” this being the vehicle she struck after skidding along the asphalt. This means that the child clearly would have slid further but for striking and wedging under the stopped vehicle. This is an important factor because the most reliable calculation of the speed of the accused’s vehicle at the time of impact is derived almost exclusively on the distance the child slid or rolled after being struck.

[14]        Following the impact, the accused brought her vehicle to a stop. When she exited her SUV it was noted that the music inside the vehicle was particularly loud. The officer that searched the vehicle after the accident noticed that there was no apparatus by which the accused’s mobile device could be connected to the vehicle. Without the mobile device being securely attached to the vehicle, use of it is an offence under s. 7 of the Motor Vehicle Act.

[15]        I am aware, however, that the cellular phone used by the accused on this morning had the capacity and was fully capable of hands-free use, including dictating as well as sending and receiving text messages. There is also no evidence as to whether or not the mobile device could or could not be operated through the built-in audio system of the accused’s 2000 Mercedes SUV.

[16]        At the time of the accident the weather was clear and cold. The roads were wet at the scene of the accident, most likely as a result of the thawing of morning frost, rather than proceeding rainfall. I am satisfied on the evidence that the intersection was particularly slippery at the time of the accident.

[17]        The accused did not testify.

[18]        The defence argues that the accident was inevitable. Counsel argues that the small child was not visible to the accused at the crosswalk and that the evidence fails to establish that the driving was dangerous for the location and time of the accident. He further submits that the evidence does not establish that the accused was exceeding the speed limit or texting illegally at the time of the impact.

[19]        The Crown argues that the impact is as a result of the continuing pattern of driving observed by the witnesses and established by the forensic evidence. Crown argues that the pattern of driving was dangerous and led directly to the injuries caused by the impact.

[20]        The law of dangerous driving is described by some authors as relatively easy to describe, but vexingly difficult to apply. This is doubtless so as a result of the extraordinarily broad number of ways the offence might be committed while performing a function that most Canadians consider routine.

[21]        There are two elements to the offence. The actus reus, the act which constitutes the crime, and the mens rea, or the mental state of the individual who is committing the act. I must first assess the nature of the driving in question and determine if it is dangerous. If it is, then I must consider the thought processes of the driver of the vehicle. In the final analysis, I must determine whether or not the driving in question is sufficiently morally blameworthy to attract criminal responsibility. Negligence, or even gross negligence, will never be enough. This test was articulated comprehensively in R. v. Beatty, 2008 SCC 5 (CanLII), [2008] SCJ No. 5 as follows:

[22]        To determine the actus reus I must consider the manner of driving. In doing so I must consider if that pattern of driving created danger to the public having regard to all of the circumstances such as the nature, condition and use of the roadway and the amount of traffic that is or might reasonably be expected to be present. In this stage of the analysis the driving does not have to constitute a marked departure from the norm, rather it simply creates the danger parliament proscribed. Beatty at para. 43.

[23]        Unlike most other criminal offences the mens rea of dangerous driving is a blend of both subjective and objective elements. It is through the analysis of the mental state of the accused that the court must determine whether the dangerous operation of the vehicle attracts sufficient moral blameworthiness to constitute a criminal offence and be worthy of criminal sanctions. In order to do so the court must find that the manner of driving must be the result of a marked departure from the standards of a reasonably prudent driver.

[24]        In R. v. Roy, 2012 SCC 26 (CanLII), [2012] 2 S.C.R. 60, the Supreme Court restated the test as follows:

[25]        To determine fault I must draw inferences from the observed or proven driving. Do those inferences establish that the accused drove in a manner that was a marked departure from the norm? I must be satisfied beyond a reasonable doubt that the accused’s driving was “the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited.” Roy at para. 41 As I indicated above, simply because the accused driving was objectively dangerous does not lead necessarily to the conclusion that it was a marked departure from the standard of care of a reasonable person in those same driving circumstances.

[26]        When considering the mental element, I must consider whether there are any positive explanations provided such as a stroke or other unforeseeable circumstance, which may relieve the accused of moral blameworthiness. R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867 at paras. 887 to 889. In this case no excuse or alternate explanation was provided so this final step in the analysis is not necessary.

[27]        Finally, the accused in this case is charged with dangerous driving causing bodily harm. This means that if I am satisfied that the Crown has established both the actus reus and mens rea beyond a reasonable doubt, I must also be satisfied that the dangerous driving caused the bodily harm. It is quite properly conceded by counsel for the accused that the injuries to the victim constitute bodily harm. What is in issue is whether the driving, if it was even dangerous, was the cause of those injuries.

[28]        Causation has two elements. The first is the factual causation, the second is the legal causation. Factual causation simply means that the act of the accused, in this case the driving, actually caused the injuries. This portion of the analysis is very broad in its application: Was the act of the accused a contributing cause of the injuries beyond de minimis? In R. v. Maybin, 2012 SCC 24 (CanLII), [2012] 2 S.C.R. 30, the Court wrote:

[29]        It can be seen that factual causation is limited in its broad scope by legal or imputable causation which limits causation to morally blameworthy causation. In R. v. Romano, 2017 ONCA 837 (CanLII), [2017] O.J. No. 5703 (Ont. C.A.), Mr. Justice Paciocco puts it this way:

[30]        This test was stated more recently by the Quebec Court of Appeal in R. v. Collin, 2019 QCCA 887 appeal dismissed [2019] S.C.J. 64 (S.C.C.) as follows:

[31]        In this case I must ask myself whether the driving in question was dangerous and then go on to decide whether or not that dangerous driving caused the injuries to the child or was there an intervening act such as to relieve the accused of responsibility for those injuries. This case poses the possibility of two potential intervening acts. The first that the accused had ceased the behaviour which would constitute the offence of dangerous driving prior to impact. The second that the accused could not avoid the accident because the behaviour of the victim in running across the street in the crosswalk created an unavoidable accident. R. v. Singhal, [1988] B.C.J. No. 651 at para. 10. If the Court has a doubt arising from either of those possible theories, then the charges alleged are not made out.

[32]        The Court must assess the entirety of the driving pattern. In my view the dangerousness of the driving may be viewed in light of the pattern of driving proceeding the moment of impact. This is particularly so since the Court must determine whether the actions of the driver simply constituted a momentary lapse of attention or was a product of a more prolonged period of inattentiveness. R. v. Dunford, [2017] S.J. No. 7. On this issue I adopt specifically the analysis of the Ontario Court of Appeal in R. v. McLennan, 2016 ONCA 732 (CanLII), [2016] O.J. No. 5174 where the Court writes:

[33]        In that case the accused had performed certain “stunts” such as spinning the tires on acceleration or over torqueing the car such that that it would fishtail on acceleration or causing the vehicle’s tires to spin so the vehicle would rotate in the circle called, colloquially, “burning out”, “laying rubber” and a “doughnut” respectively. The “stunts” occurred at least a half an hour prior to the actual accident that involves simply excessive speed and losing control on a corner.

[34]        The accused in this case was first observed driving badly on Cordova Bay Road where she was tailgating the vehicle driven by Ms. Etsy. This tailgating occurred while, at a minimum, she was texting regularly and frequently with other persons.

[35]        The evidence shows 18 incoming and outgoing texts in the 24 minutes prior to the impact, the record shows that the texts were a regular incoming to outgoing connection leading to the inference that the accused was engaged in an electronic conversation with third parties. She was distracted. The evidence establishes that there was no device to secure the phone to the vehicle, meaning that the accused used the device when it was not “securely fixed to the motor vehicle” as required by the statute. This conclusion is supported by the evidence of Ms. Etsy, which I accept, that she was constantly looking up and down into her lap at the stop light at Royal Oak Drive and Cordova Bay Road, as if she was texting with the phone in her lap. Her attempts to secret this behaviour by keeping the phone in her lap confirms her own knowledge that this behaviour was illegal.

[36]        While there may be a possibility that the accused was sending and receiving text messages through the audio system of the automobile combined with the phone’s voice recognition software, in my view the evidence leaves me unable to come to any other inference than that the accused is manually texting. Any other inference is mere speculation. Moreover, even if she was not technically offending the provisions of the Motor Vehicle Act, the stream of inbound and outbound texts establish in any event that she was clearly diverting her attention to matters unrelated to the use and control of her motor vehicle.

[37]        This tailgating and texting is followed by the fact of the high-speed pass which was itself followed by a period of high-speed driving, while eastbound on Ash Road. I am mindful in particular of her driving at 80 kilometres per hour when she passed the transit bus. Following this high-speed driving, and perhaps most importantly, the evidence establishes a complete failure to observe the obvious warning signs as she approached the crosswalk. This is the critical moment of impact and requires some detailed analysis.

[38]        I accept the evidence of the traffic video analyst that at the time the accused passed the bus, she was travelling between 80 and 84 kilometres per hour some 30 to 34 kilometres per hour in excess of the posted speed limit. I agree with the defence that the quality of this calculation is somewhat compromised by the low frame rate of the digital cameras. I accept the evidence of the analyst, however, that he remains confident of his results regardless of this lower frame rate.

[39]        After passing the transit bus, the accused travelled for a distance of approximately 590 metres before reaching the crosswalk where the incident occurred. The evidence establishes the accused slowed down quite significantly before reaching the actual crosswalk in the point of impact. There is some question on the evidence regarding just how much she actually slowed down.

[40]        The accused’s vehicle struck the child as she crossed the crosswalk. After impact the child was thrown a distance between 24.43 metres and 27.83 metres. Both of those distances assume the child came to a natural stop as a result of the forces of gravity and friction. In this case, however, I find that the child came to a stop when she became wedged under the vehicle which was her final resting place. This means, necessarily, that she was going to slide further if she had not struck that stopped vehicle, how much further is impossible to tell. Based only on the known slide distance, the accident reconstructionist calculates that the accused was travelling between 53 and 67 kilometres per hour when she struck the child. Because the child’s slide is artificially concluded by striking the stopped vehicle, it is clear that the child would have slid further, leading inexorably to the conclusion that the accused was in fact travelling faster than the reconstructionist’s speed range. By how much is impossible to determine. I do find that she was travelling well in excess of the speed limit at the time of the impact.

[41]        When the accused approached the intersection and the crosswalk, the evidence establishes that she did not slow down. All witnesses confirmed that they observed no indication that the accused was slowing down. When she approached the crosswalk, one car travelling in the opposite direction had already come to a complete stop at the crosswalk. A second vehicle was stopped in the north-south crosswalk waiting to turn left. Those two visual clues indicate to any reasonable driver that something is happening at the crosswalk that requires the driver to use extreme caution or stop, certainly not to proceed to the crosswalk in excess of the speed limit.

[42]        There was some confusion in the evidence with respect to whether at the time of the accident the northbound Steele Vehicle on Torquay Drive was positioned in such a manner as to obstruct the accused’s view of the child as she waited to cross the road. Mr. Steele testified that he approached the intersection and intended to turn left. Travelling from the south, as he was, the roadway has a stop line, then some small distance forward and an outer crosswalk line, then some distance later and an interior crosswalk line. Mr. Steele testified that he came to a complete stop at the stop line, then, not having sufficient sight lines, edged his vehicle forward to check for traffic coming from the west, in the direction of the accused. In doing so he testified that he only moved his vehicle slightly into the crosswalk. Most other witnesses at the scene testified that he moved his vehicle, or at least the front of his vehicle approximately halfway through the crosswalk.

[43]        I do accept the evidence of Mr. Steele. He was a thoughtful and thorough witness. He testified that he had been involved in an accident before at this very intersection and paid close attention to the sight lines that were available to him for cars travelling eastbound, as the accused was travelling. His evidence was clear and unshaken on vigorous cross-examination. Moreover, his evidence was supported by the evidence of all of the other witnesses except on two points. First as to whether he was turning right or left at the time he was stopped at the intersection. Although he was clear he was turning left as he was taking his son to an appointment, the other witnesses perceived him as trying to turn right. While I accept the evidence of Mr. Steele over that of the other witnesses, the difference is immaterial. Second, I do accept the evidence, on the whole, of the other drivers that this left turning vehicle driven by Mr. Steele was in fact blocking more of the crosswalk than Mr. Steele thought. I’m supported in this conclusion by my review of the report of the municipal engineering department of the District of Saanich which indicates that the ideal location for visibility of northbound cars looking for traffic travelling eastbound is approximately halfway through the crosswalk.

[44]        In spite of this I am satisfied that the child standing at the crosswalk ready to cross from south to north was clearly visible to the accused had she been paying attention. Moreover, even if I’m in error in this regard, there were still sufficient clues at the intersection that a reasonably prudent driver would have brought her vehicle to a stop given the presence of the other vehicles already stopped at the crosswalk.

[45]        Much was made of the history of texting while driving. I agree with Crown counsel that texting constitutes a significant hazard for people who operate motor vehicles. The act of driving is a complicated multitasking process. The distraction created by the use of handheld devices significantly limits the ability of the driver to safely receive, process and respond to the constant stream of stimuli that must be effectively processed to operate a motor vehicle safely. Clearly, this is the reason the use of handheld devices while operating a motor vehicle is specifically prohibited under the Motor Vehicle Act. Moreover, it has been the subject of comprehensive public awareness campaigns in this province for years. All drivers are well aware that the use of handheld devices while operating a motor vehicle is both illegal and dangerous. There is an important difference, however, between the use of handheld devices and other dangerous activities sometimes carried out by drivers such as consuming alcohol or other intoxicants before driving. In the case of impaired driving the effect of impairment is not transitory rather it is enduring until such time as the alcohol has been eliminated from the body. On the other hand, with the case of texting and driving, the driver is perfectly attentive and capable of driving the moment the texting or other use of the handheld device is concluded. For this reason, the Court must use caution when comparing previous cases which consider a driver’s impairment by alcohol or drugs with cases which consider driving while using a handheld device. In the former case, the presence of impairment leads naturally to the inference that the ability to drive was compromised creating a dangerous condition. In the latter case, because of the distraction is over the moment the driver ceases to use an electronic device, a more comprehensive assessment of this factor is necessary.

[46]        The Court must consider if the texting was occurring at the time of the driving in question. The Court must consider the nature and duration of the texting to determine if the driver continued to be distracted by the use of the electronic device. If the texting was constant and repeated often and in rapid succession as shown above, it is the natural inference from the pattern of text messages coming in and going out that the accused is engaged in a protracted and intensive conversation through her cellular telephone. While it is impossible to determine the precise time of the accident and therefore whether the accused was actually texting at the precise moment of impact, I am satisfied that she was engaged in distracting behaviour for some time prior to the moment of impact and, I infer, that she was indeed distracted at the time of the accident. At a minimum, her thoughts were elsewhere.

[47]        During the course of submissions, both counsel asked the Court to conduct a view. This comprised of driving the route the accused was observed to drive on the morning in question at approximately the same time the accused drove that route. While there is some debate on the authorities as to the use the Court is to make of perceptions and observations obtained during the course of the view, both counsel asked that the Court consider the observations and perceptions gained from the view in its analysis of the facts. The video images filed by Crown counsel accurately depict the roadways that are involved in this matter. What is not plainly apparent is that prior to arriving at the crosswalk at Torquay Drive, there is a substantial and steep hill that obstructs a clear view of the crosswalk. Indeed the hill also requires a driver to accelerate his or her motor vehicle just to maintain a consistent speed.

[48]        However, the view also showed that once a driver reached the top of the hill, there is an abundance of time to observe many indicators warning that driver that a crosswalk is approaching. These consist of markings on the road, an overhead flashing yellow light, plainly marked crosswalk lines and no visual obstructions to the crosswalk of any kind. The view established that there is an abundance of time for any driver to see, appreciate the significance of, and prepare themselves to enter the intersection and deal with any hazards the crosswalk, or any pedestrian using the crosswalk might pose.

[49]        Considering all of the above I am left with no doubt that the accused drove both before the accident and at the time of the accident in a manner that was dangerous to the other users of the road. I am satisfied that a reasonably prudent driver in these circumstances would be aware of the risks posed by her pattern of driving and taken steps to avoid those risks. The accused’s failure to either perceive those risks or take steps to avoid those risks is clearly a marked departure from the standard of care of a reasonably prudent person in the accused’s circumstances.

[50]        Finally, I’m also satisfied the dangerous driving in question is the cause of the accident which left tragic injuries to the victim. In this regard I am satisfied first that the dangerous driving was an actual contributing cause beyond de minimis. The accused was speeding, not paying adequate attention to clearly visible markers at the crosswalk, the child and the stopped vehicles and was engaged in conversations with other parties by way of a handheld electronic device. Because of that, she failed to see that which is plainly there to be seen. The driving was the cause of the accident beyond de minimis. I’m equally satisfied that, given the facts leading up to the actual accident, the law requires that the accused be held legally responsible for the consequences of that dangerous driving. As such, I find her guilty as charged of dangerous driving causing bodily harm as alleged.