IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         This trial concerned a set of tragic circumstances where Mr. Carson was the driver of a motor vehicle that collided with a loaded gravel truck near Dawson Creek on July 15, 2017. Mr. Jeffrey Burke, Mr. Carson’s friend and passenger, died in the collision. Mr. Harvey Eggleston was the driver of the gravel truck.

[2]         Anthony James Carson is charged with the following offenses:

[3]         The trial proceeded before me on February 3, 4, 5 and August 10, 11, 12, 13, 14, 24, 25, 26, 27 and 28. Mr. Carson challenged the admissibility of a breath certificate and certain statements he allegedly made to the RCMP. The majority of the trial was conducted as a blended voir dire and at the conclusion of the voir dire, I found a violation of section 8 of the Charter and excluded the breath certificate from evidence pursuant to section 24(2) of the Charter.

[4]         I rendered written reasons on the voir dire on August 26, 2020.

[5]         At paragraphs 17 to 34 of my written reasons, I reviewed the evidence relating to whether the officer had reasonable and probable grounds to believe that Mr. Carson was impaired by alcohol. I adopt those paragraphs here. I found that Constable Ferguson lacked reasonable and probable grounds to make the breath demand. Specifically, I found that Cst. Ferguson lacked reasonable grounds to believe that Mr. Carson had committed an offense within the preceding three hours, under section 253, as a result of the consumption of alcohol.

[6]         On the issue of impairment, little evidence was called outside of the voir dire. Mr. Carson testified that he possibly had two beer before the collision. This evidence does not significantly add to the voir dire evidence where I concluded that there was insufficient evidence of impairment to form reasonable and probable grounds.

[7]         Similarly, during the observation periods at the RCMP station, Mr. Carson said “Oh my God I’m so over”, and “I’m so over right now”. These utterances were recorded and contained in Exhibit G; the recording played in the voir dire. The contents of this recording was admitted in the trial proper but the recording was not marked as an exhibit. No cross-examination occurred about these utterances. I am unable to give them any weight on the issue of whether they may have been an admission of impairment.

[8]         The evidence from the voir dire was admitted at trial and the Crown called no further evidence in relation to Counts 1 to 4.

[9]         Without the breath certificate, there is no evidence of Mr. Carson’s blood-alcohol level.

[10]      I find him not guilty on Counts 1 and 2.

[11]      In the voir dire, I found that no reasonable and probable grounds to suspect impairment existed even on the relatively low standard for forming grounds. I do not find that the admission by Mr. Carson of consuming two beers or the utterance that “I’m so over” provide enough cumulative evidence over and above the evidence related to grounds, to convict him on the impaired-driving counts. I find that the Crown has not proven beyond a reasonable doubt that Mr. Carson was impaired by alcohol to any degree.

[12]      I find Mr. Carson not guilty on Counts 3 and 4.

[13]      The following admissions were filed as Exhibit 16 in the trial:

[14]      The following issues were identified by counsel and remain to be decided on Counts 5 and 6:

[15]      All evidence taken on the voir dire, save and except the breath certificate and some utterances made by Mr. Carson to Cst. Ferguson, was admitted into the trial proper by consent.

[16]      The following is a list and a summary of the evidence of witnesses who testified.

[17]      Mr. Ryer was a truck driver and was working in July of 2017 near Dawson Creek. He was parked in his vehicle approximately 100 to 150 feet away from the intersection of the Mason Road and Highway 97 near Dawson Creek where the collision occurred. He had a clear view of the incident from the cab of his truck and watched the collision occur.

[18]      He first heard a noise and saw a white SUV “flying by” at a “pretty good clip” down the Mason Road. The SUV was going fast but he was unable to estimate its speed.

[19]      He first saw the SUV when it was maybe 25 feet from a stop sign at the highway. He said he knew it was not going to stop. The SUV did not stop at the stop sign and collided with a tractor-trailer loaded with gravel. He saw the tractor-trailer unit jack-knife, roll over and skid down the highway.

[20]      He called 911 and gave a statement to the police after they arrived.

[21]      Mr. Easingwood was travelling with his wife and following the gravel truck as it drove on Highway 97 towards Dawson Creek. He was about four to five car lengths behind the gravel truck when a vehicle entered the intersection of the Mason Road and Highway 97 at a “very fast speed” and collided with the back of the truck or trailer. He estimated that the SUV was at a “highway travelling speed” when it entered the intersection. He observed the gravel truck swing to the right, swerve and flip over onto its passenger side.

[22]      He had previously been qualified as an industrial first-aid attendant and stopped to render assistance. He checked on the truck driver first and the truck driver was standing and moving inside the cab.

[23]      He said the SUV was in bad shape, especially the front passenger side which was “crumpled really bad”. The driver of the SUV showed signs of life but the passenger did not. He checked for a pulse on the passenger but was unable to find one.

[24]      He rendered assistance to the driver of the SUV until first responders arrived. He later provided a statement to the RCMP.

[25]      Mr. Garrison owns a property on the Mason Road, north of its intersection with Highway 97. The day of the accident he was sitting on the deck of his residence which was approximately 200 feet from the Mason Road. He said he heard what he thought was a vehicle travelling south on the Mason Road at a high rate of speed. He looked up and saw a white midsize vehicle pass by in a timeframe of 1 to 1.5 seconds. He estimated that the vehicle travelled 300 to 400 feet in that timeframe.

[26]      The vehicle went over the railway tracks without stopping at the stop sign located at the tracks. Shortly afterwards, he heard a sound that sounded like a deer whistle and seconds later, heard an eerie thud, consistent with one vehicle hitting another. He swore to himself because of how fast the vehicle was travelling. He said “nobody has ever driven by my house that fast”.

[27]      Mr. Lumnitzer was a truck driver and was hauling gravel on the day of the accident. He had just turned left off Highway 97 onto the Mason Road and was travelling north. He had stopped at the stop sign where the railway tracks cross the Mason Road. He said this crossing has stop signs on either side of the tracks for traffic on the Mason Road. He knows this to be a location where trains cross randomly.

[28]      As he stopped at the tracks, he noticed a vehicle coming towards him travelling south on the Mason Road. He estimated that when he first saw the vehicle it was about a half a mile away. He checked both directions for a train and then almost immediately saw the vehicle cross the tracks without stopping at the stop sign. He described the crossing of the railway tracks as “rough” and said the vehicle was travelling “very fast” but could not give an estimate of its speed.

[29]      He watched the vehicle in his rear-view mirror and remembers wondering if it was going to stop for the stop sign at the Mason Road and Highway 97 intersection. He watched the vehicle enter the intersection as a gravel truck travelled through the intersection on the highway and saw both vehicles “just disappear”.

[30]      He could not recall whether the vehicle had its lights on and does not remember seeing brake lights come on at any time. Other than the rough crossing of the railway tracks, he did not observe the vehicle weaving or swerving.

[31]      He did not attend the accident scene and was contacted by the RCMP several days later to give a statement.

[32]      Mr. Eggleston was driving a gravel truck on Highway 97 towards Dawson Creek on July 15, 2017. He described the truck as a tandem-drive truck with a tri-axle dump trailer filled with gravel. He recalls travelling under the speed limit and following another truck which was signalling to make a left turn off the highway onto the Mason Road. There were no traffic controls for him on the highway but he was exercising caution because of the other vehicle making a left turn.

[33]      He continued travelling in his lane on the highway and as he entered the intersection, he noticed a white vehicle coming down the Mason Road at “highway speed or better”. He said he immediately knew that something bad was about to happen and that there was no time to react because of the speed of the other vehicle.

[34]      The vehicle hit his truck behind the driver’s door and he recalled his truck being knocked on its side and sliding down the highway. He next recalled people outside of the window of his truck trying to remove him from the truck. He also recalled being attended to by first responders and waking up in the hospital in Dawson Creek.

[35]      He says he suffered considerable head trauma because of the incident, which included a “brain bleed”. He said he suffered sore muscles and that his shoulders, neck, back, hips and calves were very sore. He said he suffered debilitating headaches, backaches and shoulder pain, which lasted for months until he was able to control them with different medications.

[36]      He acknowledged that he had had a previous head injury and prior to July 15, 2017, had suffered from persistent headaches and backaches because of that injury. After his previous injury, he continued to own a ranch and was able to do normal chores on the ranch, involving horses, cattle, snow clearing, haying, riding, quadding and hunting. He says he has been unable to enjoy any of those activities since the accident of July 15, 2017.

[37]      In cross-examination, he agreed that he had been in a serious motor-vehicle accident in Kelowna in 2006. He agreed that he suffered serious injuries in that accident, including debilitating headaches, serious backaches and a debilitating shoulder injury.

[38]      He admitted to having had surgery after the 2006 incident and said it took four to five years to get back to “semi-normal”.

[39]      He also admitted in cross-examination that he had commenced a civil action against Mr. Carson to compensate him for his injuries. It was suggested that he suffered no injuries in the accident and he disagreed.

[40]      It was suggested to him in cross-examination that he was not wearing his seatbelt on July 15, 2017. He disagreed and said he was wearing a seatbelt.

[41]      He was working a regular shift with the Dawson Creek RCMP on July 15, 2017. He received a call at about 16:20 hrs. about an incident at Highway 97 and the Mason Road. He did traffic control near that location for about an hour before he attended at the scene.

[42]      He noted severe damage to the SUV and to the driver’s side of the gravel truck. He noted a deceased person still wearing a seatbelt in the passenger seat of the SUV.

[43]      He noticed some beer cans and a beer box in the back seat of the SUV. He did not recall whether any of the beer cans appeared to have been opened and does not recall a smell of liquor in the SUV.

[44]      He took some photographs of the accident scene, the deceased person and the deceased’s identification. He escorted both vehicles when they were towed from the scene to the secure bay at Exceptional Towing in Dawson Creek.

[45]      He was working dayshift with the Dawson Creek RCMP on July 15, 2017. At about 16:30 hrs., he received a call about a motor-vehicle accident on Highway 97 and the Mason Road. He attended at the scene and noted a large overturned truck and spilled load, as well as a severely damaged SUV, completely blocking all traffic in both directions on the highway.

[46]      He noticed a huge debris field on the highway and smelled smoke, gas and diesel. He attended at the SUV where he noted an unresponsive person in the passenger’s seat. He concluded that this person was deceased. All the airbags in the vehicle appeared to have deployed. He noted cans of beer in the back seat of the SUV and a smell of liquor in the vehicle. He was unable to say whether any of the beer cans were opened.

[47]      He assisted trying to identify witnesses and directed all people who did not appear to be witnesses away from the scene.

[48]      On July 15, 2017, he was employed with the Dawson Creek RCMP in traffic services. He received a call of a motor-vehicle accident at Highway 97 and the Mason Road sometime before 16:46 hrs. He was the first officer on scene.

[49]      He noted the magnitude of the collision and called his supervisor to request that an accident-reconstruction team attend.

[50]      He checked on the passenger in the SUV, was unable to find a pulse and concluded that the passenger was deceased. He noted what looked like beer cans in the back seat of the SUV and that some were full while others appeared empty. He noted a stale odour of liquor inside the SUV.

[51]      He noted a person nearby being attended to by paramedics and was advised by a paramedic that that person was the driver of the SUV. He decided to commence an impaired investigation and accompanied this person (later identified as Mr. Carson) to the Dawson Creek hospital in an ambulance.

[52]      Mr. Carson admitted to him that he had consumed a beer earlier in the day, and on at least three occasions at the hospital he detected what he says was a strong odour of liquor on Mr. Carson’s breath. He was present when Mr. Carson was cleared for release from the hospital by a doctor. He read Mr. Carson a breath demand at 18:58 hrs. and was present for the taking of two breath samples. He released Mr. Carson from police custody at about 21:18 hrs.

[53]      I reviewed Constable Ferguson’s evidence in more detail in the voir dire decision regarding the admissibility of breath samples. I concluded that Constable Ferguson lacked reasonable and probable grounds to make the breath demand, excluded the breath certificate and found Mr. Carson not guilty on Counts 1 through 4. The bulk of Constable Ferguson’s evidence is no longer relevant to the issues remaining to be decided in this trial.

[54]      Mr. Hnybida was qualified to give opinion evidence as a motor-vehicle inspector. On August 15, 2017, he was the senior vehicle inspector for the North Peace River area in British Columbia. He performed mechanical inspections on both vehicles after the collision to determine whether the vehicles were likely roadworthy and in compliance with the British Columbia Motor Vehicle Act and Regulations prior to the collision. In doing so, he took some photographs and produced a post-crash vehicle-inspection report for each vehicle. His reports were marked collectively as Exhibit 11 on the trial.

[55]      Regarding the SUV (“the Nissan”), he testified that he was not able to inspect severely damaged components, including some of the braking components, lighting, steering and suspension. He concluded that all mechanical components he was able to inspect appeared to meet all roadworthiness and Motor Vehicle Act and Regulation requirements.

[56]      His inspection of the truck revealed nothing out of the ordinary except two tires whose treads did not meet the standards set out in the Motor Vehicle Act and Regulations.

[57]      Sgt. Sullivan was qualified to give opinion evidence in the areas of collision reconstruction and crash-data analysis. He became involved in the investigation on August 16, 2017, when he received materials from Cpl. Jodoin. These materials included details of the accident scene as well as data retrieved from the computer module of a 2015 Nissan vehicle.

[58]      He understood this material to have been retrieved from the event recorder on the 2015 Nissan that had been involved in the July 15, 2017, fatal collision. Cpl. Wessell had used appropriate software and was able to retrieve information on what was happening with the vehicle in the immediate five seconds before the collision. He called this information “Event Record 1”. The accuracy and admissibility of the information retrieved by Cpl. Wessell is admitted.

[59]      Sgt. Sullivan testified that by comparing the electronic crash-data recording from the Nissan with all the other materials he received from the accident scene, it was his opinion that the recorded data was consistent and valid.

[60]      He identified and adopted the contents of a crash-data retrieval report he had prepared. This report was marked as Exhibit 12 in the trial. In this report he summarized the data in “Event Record 1” as follows:

[61]      He further concluded that a hard braking application was indicated within the pre-crash data because the vehicle slowed down at a consistent rate. He adopted the following from his report filed as Exhibit 12:

[62]      In cross-examination, he agreed that there should be a correlation between braking and a decrease in the engine’s RPM. He was directed to a table forming part of his report and agreed that the brake appeared to have been “On” from the -5.0 up to and including the -1.0 mark in the data. The chart showed the engine RPM decreasing from 2650 at the -5.0 mark to 1500 at the -3.0 mark. Then from the -3.0 mark to the -1.5 mark the engine RPM increased again to 1750 despite the brake appearing to be continuously “On”.

[63]      He was asked how an engine’s RPM could change independent of pressure on the brake and on the accelerator as indicated in the chart. He said this could be expected if the vehicle had shifted to a lower gear.

[64]      When asked if there could be other explanations for such an unexplained change in the RPM, he responded “we have no way of knowing that”.

[65]      Cpl. Jodoin was qualified to give opinion evidence in the area of collision reconstruction and analysis.

[66]      He was called to the accident scene on July 15, 2017, as an accident Reconstructionist. He made observations and took a number of photographs and measurements at the scene. He also attended at the secure compound to which the vehicles were towed and took some photographs there.

[67]      He produced an accident-reconstruction report, which included reference to materials and opinions provided to him by Cpl. Wessel, William Hnybida and Sgt. Sullivan. His accident-reconstruction report was filed as Exhibit 16 in the trial.

[68]      Cpl. Jodoin’s report includes the following:

[69]      He testified that the distance from the railway tracks to the area of impact was 285 meters. He concluded that the Nissan failed to stop for the stop sign at the railroad tracks on the Mason Road and for the stop sign at the intersection of Highway 97 and the Mason Road. View obstructions were not contributing factors to the collision. Highway, environmental and mechanical conditions were not contributing factors to the collision. The accident occurred in full daylight conditions with high cloud and no rain in the area that day. The highways were dry and free of defects.

[70]      He was unable to provide an opinion whether or not a seatbelt had been worn by the driver of the Peterbilt truck.

[71]      No further evidence was called by the Crown and the Crown closed its case.

[72]      Mr. Carson testified that on July 15, 2017, he was residing and working in the Grande Prairie area. On July 12 or 13, 2017, he had received news that a good friend of his had just taken his own life.

[73]      Jeffrey Burke was also a friend of his and they had known each other for years. They were living together in a trailer in Grande Prairie. Mr. Burke had also known the friend who had taken his life. Both he and Mr. Burke were having a hard time with the news and decided not to go to work on July 15, 2017. They decided instead to go fishing to the Sukunka River, which was about an hour-and-a-half drive from Dawson Creek.

[74]      They purchased a 15 pack of beer, some snacks and fishing equipment in Grande Prairie and Mr. Burke drove from Grande Prairie to Dawson Creek. Mr. Carson said he did not consume any liquor while Mr. Burke was driving.

[75]      Mr. Carson took over driving in Dawson Creek and after they left Dawson Creek, he consumed one or possibly two beer.

[76]      They decided to drive the Mason Road and although it was not the shortest route, they took it because it typically had less traffic than the highway.

[77]      He said everything was normal while travelling down the Mason Road until he reached the intersection of the Mason and 215 Roads. He noticed an old pickup truck pull out in front of him from the 215 onto the Mason Road. He pulled out to pass this pickup truck and accelerated to do so. When he let up on the accelerator, instead of slowing down, his vehicle continued to accelerate.

[78]      He said he tried braking but when he did so, the steering felt strange and he felt like he would lose control so he let off on the brakes. He passed several vehicles and went through some S-curves at a high rate of speed with tires squealing.

[79]      After the S-curves, he shifted his vehicle into neutral and the engine started screaming. He was afraid he would blow the engine and Mr. Burke, who was seated beside him, put the shifter back into drive.

[80]      He said he checked the accelerator pedal, was unable to lift it and concluded that it was not stuck. It occurred to him to shut the vehicle off but because of the high speed, he was afraid of losing power steering and power brakes and control. He therefore decided not to do so.

[81]      He says that as he was travelling down the straight stretch between the S-curves and approaching the railway tracks, he once more applied the brakes but let up on them because he again felt like he was losing steering control. He was unable to stop for the tracks.

[82]      After crossing the tracks and approaching the intersection at Highway 97, he said he again applied the brakes but let up on them once more because he felt like he was losing steering control.

[83]      He said he was familiar with the Mason Road and knew that the Highway 97 intersection was behind the railway crossing but that the intersection came up quicker than he had expected.

[84]      Just before he reached the intersection, he decided he would try to make a right turn onto Highway 97. When he got close to the highway, he realized he would not be able to navigate that turn so decided to try to cross the highway instead.

[85]      He said he did not believe that the alcohol he had consumed had affected his ability to drive. He also said he had no recollection of the collision.

[86]      In cross-examination, he testified that he had purchased the Nissan new in 2015 and had never experienced any difficulties with it other than a minor accident in 2016. It had never previously malfunctioned and specifically he never had any problems with unexplained acceleration.

[87]      He said he never received a recall notice for such a problem and googled the issue on the internet after the accident but was unable to find any similar problems with this make and model of vehicle.

[88]      He agreed that the distance on the Mason Road from the 214 Road where he passed the pickup truck and first experienced the malfunction, to the intersection at Highway 97, was about nine km. He also agreed that the distance on the Mason Road from the end of the S-curve to the intersection at Highway 97 was about five km and that this was a straight stretch.

[89]      He was asked how long it took for him to drive from the time he passed the pickup truck to the intersection at Highway 97 and he said “5 to 6 minutes is a guess”.

[90]      It was put to him that while in the hospital with Cst. Ferguson, he told Cst. Ferguson he remembered nothing about the accident other than that he was cruising and the next thing he remembers he was in the hospital.

[91]      He testified that at the time he spoke with Cst. Ferguson, he did not remember having a vehicle malfunction but that his memory started coming back in flashbacks two to three months after the accident. He said that in September or October 2017 he first recalled passing the old pickup truck near the 214 Road and his vehicle accelerating. Next, possibly weeks later, he recalled putting the vehicle into neutral and Mr. Burke shifting it back into drive. Subsequently, he recalled the rest of the events.

[92]      He agreed that he did not attempt to retrieve his damaged vehicle to have inspections done to locate a possible cause for the mechanical dysfunction he described.

[93]      It was suggested to him that he just made these recalled events up and that he was simply speeding and there was no problem with his vehicle. In response, he said “no, I do not drive like that. I had two kids, he had two kids and his wife had an unborn child. There is no chance that I’d drive like that”.

[94]      The Criminal Code provision in effect on July 15, 2017, defining dangerous driving was section 249(1)(a):

[95]      The legal test to determine whether driving constitutes dangerous driving under section 249 of the Criminal Code was stated in R. v. Beatty, 2008 SCC 5, at para 43, as follows:

[96]      In considering the mens rea in the offense of dangerous driving, a court may consider evidence of alcohol consumption even in circumstances where the court has acquitted an accused of impaired driving on the same information: R.v. Settle, 2010 BCCA 426, at para 58.

[97]      Because Mr. Carson testified, I must apply the rules as set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, and R. v. H.(C.W.), 1991 CanLII 3956 (BC CA), 68 C.C.C (3d) 146, at 155 (B.C.C.A.), to his testimony as follows:

[98]      In R. v. Dinardo, 2008 SCC 24, at para 32, the court reminds us that when applying the W.D. test and when assessing credibility and whether there is a reasonable doubt as to guilt, an accused’s evidence must not be considered in isolation but rather in the context of the evidence as a whole.

[99]      In section 2 of the Criminal Code, bodily harm is defined as “… any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.”

[100]   The test for causation requires that the respondent’s conduct had been a significant contributing cause of the victim’s bodily harm and nothing more. A cause that significantly contributes is equivalent to a cause that is beyond de minimus: R. c. Sarazin, 2018 QCCA 1065, para 21; R.v. Nette, 2001 SCC 78 (CanLII), [2001] 3 S.C.R. 488, para. 72.

[101]   At this stage, the court must be careful not to conclude that just because an accident happened that the driving was objectively dangerous. To protect against this form of faulty reasoning, a court must look at the pattern of driving behaviour.

[102]   The uncontested evidence from a number of sources was that Mr. Carson was operating the vehicle at an extreme rate of speed just before the collision. The CDR data taken from Mr. Carson’s vehicle and Sgt. Sullivan’s interpretation thereof suggests that at some point he was driving at least 142 km per hour.

[103]   The CDR evidence is corroborated by Harry Garrison who said he swore to himself because of how fast the vehicle was travelling and that “nobody has ever driven by my house that fast”.

[104]   Fred Lumnitzer testified that the vehicle travelled an estimated half mile in the short time he was stopped at the railway tracks and checking for trains. Although he could not give an estimate of the speed, he said that the vehicle was travelling “very fast”.

[105]   Mr. Carson, who also testified, admitted the vehicle was operating at an extreme rate of speed. He provides an explanation which is relevant at the mens rea stage but not at the actus reus stage.

[106]   The extreme rate of speed by itself may not constitute dangerousness unless it is combined with other factors. The other factors here are numerous.

[107]   The highway intersection was visible for about 650 meters from the direction the vehicle travelled. The vehicle did not stop for the intersection despite a yellow railway-crossing warning sign 463 meters from the intersection, a railway crossing sign 197 meters before the railway crossing stop sign, the stop sign at the railway crossing 266 metres before the intersection, a yellow warning intersection sign 172 meters from the intersection, a green travellers’ directional sign 100 meters before the intersection and a stop sign at the intersection.

[108]   All the signs were clear and unobstructed, the collision occurred in full daylight hours and highway, environmental and mechanical conditions were not contributing factors.

[109]   It is clear by the number of witnesses who testified that there were many other persons present in the vicinity where the driving occurred.

[110]   Ultimately, the vehicle entered the highway intersection at about 74 km/h and caused a collision.

[111]   I am satisfied that the Crown has proven the actus reus requirement. I am satisfied beyond a reasonable doubt that viewed objectively, Mr. Carson was, in the words of section 249(1)(a), “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”.

[112]   A trier of fact must also be satisfied beyond a reasonable doubt that the objectively dangerous conduct was accompanied by the required mens rea or mental element. I need be satisfied on the basis of all of 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.

[113]   In the event that an accused provides an explanation and I accept that explanation, in order to convict, I 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.

[114]   Here, Mr. Carson has provided an explanation for the pattern of driving which was clearly dangerous to the public. If I accept his explanation, and if his behaviour did not amount to a marked departure from what a reasonable person would have done or expected him to do in an identical set of circumstances, then I cannot be satisfied of the mens rea requirement beyond a reasonable doubt.

[115]   First, I need to determine whether I accept Mr. Carson’s explanation. This involves an assessment of his credibility and an application of the W.D. test.

[116]   I have considerable difficulties with Mr. Carson’s testimony. He testified that he first experienced the malfunction with his vehicle near 214 Road while passing another vehicle. He admits that this is about nine kilometers and possibly a five to six minute drive from the intersection where the collision occurred.

[117]   During that time, he said he was unable to gain control of the vehicle because of the vehicle’s high speed. Specifically, he said he tried at least three times to apply the brakes but was afraid to do so forcefully because he thought he might lose control. He also says he switched the vehicle into neutral but did not leave it there because he thought he might blow the engine. He further testified that he considered turning off the vehicle’s ignition but consciously decided not to do so because he was afraid he might lose power steering, power brakes and control of the vehicle.

[118]   The law is clear that the W.D. test is not to be considered in a vacuum. I must consider his evidence in the context of the evidence as a whole. His evidence makes no sense in the context of Cst. Sullivan’s evidence and the recorded CDR data for the five seconds immediately before the collision. That evidence was uncontested and I consider it highly reliable.

[119]   In these five seconds, Mr. Carson managed to slow the speed of the vehicle at a more or less steady and consistent rate by 74 km, from 148 km an hour to 74 km an hour, by letting off on the accelerator and depressing the brake pedal. The pattern of the CDR data suggests that had the collision not occurred, the rate would have continued to slow. There was no evidence of any loss of control of the vehicle during these five seconds when the brake pedal was depressed.

[120]   The only anomaly in the CDR data was the increase in the RPM from the -3.0 mark to the -1.5 mark. I accept Sgt. Sullivan’s explanation that this deviation in the RPM was likely caused by a downshift. With the accelerator off, the brakes being applied and the speed being decreased dramatically, one would expect a vehicle to downshift.

[121]   It is unfathomable that a person would have been unable to stop this vehicle after nine km and many minutes of driving. Doing a simple speed calculation, even if the vehicle had been travelling 150 km/h for the entire nine km, it would have taken 3.6 minutes to cover that distance. In an emergency situation, nine km and 3.6 minutes is an eternity.

[122]   I would be prepared to reject Mr. Carson’s evidence on this basis alone, but I am also troubled by other aspects of his evidence. The fact that he mentioned nothing of the malfunction to Cst. Ferguson or anyone else and in fact told Cst. Ferguson that he remembered nothing other than cruising and being in the hospital, causes me concern.

[123]   He testified that he gradually retrieved his memory of the events two to three months after. No expert evidence was presented to assist the court whether such memory recall is possible or likely. Additionally, once those memories were retrieved, he took no steps to recover and or have the vehicle inspected for the unexplained malfunction.

[124]   The vehicle was purchased new in 2015; he received no recall notices from the manufacturer about such a possible malfunction; he researched on the internet and located nothing to indicate any such malfunction for this make and model of vehicle.

[125]   With respect to the mens rea requirement, I further consider Mr. Carson’s testimony that he had consumed up to two beer shortly before the accident occurred. Although I found him not guilty of the offenses of impaired driving, I am able to consider this alcohol consumption for the sole purpose of determining whether his objectively dangerous driving constituted a marked departure from the standard of the reasonably prudent driver: R. v. Settle, 2010 BCCA 426, at para. 58.

[126]   Applying the test in W.D., I do not believe his evidence nor does his evidence raise a reasonable doubt with respect to whether the mens rea aspect of his driving behaviour has been proven. I accept the evidence of the Crown witnesses and his own evidence of alcohol consumption and am satisfied that his manner of driving constituted a marked departure from the standard of care that a reasonable person would observe in his circumstances.

[127]   I am convinced beyond a reasonable doubt that the Crown has satisfied both the actus reus and the mens rea requirement of dangerous driving.

[128]   I am satisfied beyond a reasonable doubt that Mr. Carson is guilty of dangerous driving.

[129]   There being no apparent intervening cause between the collision and the death of Jeffrey Burke, I am satisfied that Mr. Carson’s dangerous driving caused Mr. Burke’s death.

[130]   I find Mr. Carson guilty on Count 5.

[131]   Mr. Eggleston testified that he suffered a number of injuries, including a brain bleed, sore muscles, soreness to his shoulders, neck, back, hips and calves. He also said he suffered debilitating headaches and shoulder pain, which were severe for months.

[132]   He testified that he continues to suffer from these injuries such that he can no longer enjoy many of the activities he used to enjoy prior to the accident.

[133]   In cross-examination, it was put to him and he agreed that he had been in a serious motor vehicle accident in Kelowna in 2006 and had also suffered serious injuries then, including debilitating headaches, backaches and a debilitating shoulder injury. He testified that he had gotten back to “semi normal” after four to five years and that this accident had made everything worse again.

[134]   He agreed that he had started a civil claim against Mr. Carson.

[135]   It was also suggested in cross-examination that he was not wearing a seatbelt but he disagreed saying that he was wearing a seatbelt.

[136]   Although the cross-examination highlighted some potential concerns, I found that Mr. Eggleston readily and fully responded to all of the questions put to him. I did not find that he tried to hide or minimize his previous injuries. I found him to be a credible witness and I accept his evidence.

[137]   I find that he suffered bodily harm as defined in section 2 of the Criminal Code, namely, hurt or injury that interferes with his health or comfort and that this hurt or injury was more than merely transient or trifling in nature.

[138]   I also accept his evidence that he was wearing his seatbelt although I do not find that particularly relevant to the issue of causation.

[139]   I have no difficulties finding that there was no intervening cause. I find beyond a reasonable doubt that Mr. Carson’s driving was a significant contributing cause beyond the de minimus range, to the bodily harm suffered by Mr. Eggleston.

[140]   I find Mr. Carson guilty on Count 6.