Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Matthew Coombe
Before: Justice Robert S. Gee
Heard on: March 7 and 8, 2012
Reasons for Judgment released on: April 19, 2012
Counsel:
Robert Kindon, for the Crown
John Renwick, for the Accused
Reasons for Judgment
The Charges
1The accused, Matthew Coombe, is charged with dangerous operation of a motor vehicle causing bodily harm, contrary to section 249(3) of the Criminal Code of Canada. He is also charged with failing to stop at the scene of an accident knowing that bodily harm has been caused to another person, contrary to section 252(1.2) of the Criminal Code of Canada. These offences are alleged to have occurred at approximately 6:30 p.m. on July 30, 2010, in the town of Burford in the County of Brant.
2It is alleged that the accused, while operating his ATV in a park struck Jeremy Vanderheyden, which resulted in a fracture to Mr. Vanderheyden's right femur.
3In relation to the section 252(1.2) count in the Information, the accused offered a plea of guilty to the lesser and included offence of failure to stop at the scene of an accident contrary to section 252(1)(a), which offer was not accepted by the crown.
4The manner in which Mr. Coombe drove the ATV in the park that day is not seriously disputed.
The Facts
5The evening of July 30, 2010, was warm and pleasant not unlike many other uneventful summer nights. However, this evening was destined to end in a manner that has left an indelible mark on the lives of many individuals, not the least of whom are Jeremy Vanderheyden and Matthew Coombe.
6The scene of these unfortunate events took place in Optimist Park in the town of Burford. This park, which is adjacent to the local rink, is the type one would typically find in a small town like Burford. The park is made up of ball diamonds, soccer fields, a basketball court, a splash pad and climbing equipment, presumably for younger children, and a skateboard park presumably used mostly by older children and teens. It is on the skateboard park where the collision occurred between Mr. Coombe, who was riding his ATV and Mr. Vanderheyden.
7The skateboard park is on the eastern part of a paved rectangular section of the park. The western part of this paved section is the basketball court. A portion of chain-link fence separates these two parts of the paved rectangular area.
8The Vanderheyden family home backs on to the eastern boundary of Optimist Park. From their backyard, one has a clear view of the park.
9As one would expect on such a fine summer evening, there were numerous persons enjoying the park and its grounds as it was designed to be used. Children were playing in the splash pad, young teens were sitting on the grass chatting and some adolescent boys were riding their bikes on the skateboard park. A number of these park patrons testified at trial to the events that unfolded that evening.
The Initial Incident
10Harry Vanderheyden, the father of Jeremy Vanderheyden, testified that on the evening of July 30, 2010, he was cutting the lawn in his backyard. His attention was drawn to the park by the sound of ATVs. He testified that he noticed two ATVs ripping up the grass in the park and in fact, one of them became entangled in a soccer net. He advised his son Jeremy, who had just returned home from work, of his observations. Harry, Jeremy and Sjouke Kramer, who was the boyfriend of Jeremy's sister, headed over to the park with the intention of confronting the ATV riders as they felt the manner in which they were driving posed a danger to persons in the park that night.
11Harry Vanderheyden grabbed his camera and snapped a series of photos of the ATV riders as the three men approached. The photos, which were made exhibits at trial, showed two ATV riders in the park that night. One of the ATV riders was not wearing a helmet. This person was later identified as Andrew Williams. The other ATV rider, who was wearing a helmet, was Mr. Coombe. The photos also showed the ATV riders ripping up the grass of the Park by doing a series of "donuts". For those unfamiliar with this manoeuvre, a "donut" is when the rider turns the front wheels fully in one direction while applying sufficient power so that the rear wheels of the ATV spin, thereby causing the ATV to spin in a circular fashion with the front wheels acting as the centre point of the circle. This manoeuvre, in this instance, caused the grass to fly in the air and caused damage to the park grounds.
12One of the photos taken by Harry Vanderheyden showed the ATV of Mr. Coombe lying flipped on its side after he lost control of it due to the manner of his driving.
13Jeremy Vanderheyden testified that he approached Mr. Coombe shortly after he righted his ATV back onto its wheels after it flipped. He testified that as he neared Mr. Coombe, Mr. Williams noticed the approach of Jeremy, Harry Vanderheyden and Sjouke Kramer and fled from the park in a southeasterly direction. Mr. Williams left the park at this time and did not return.
14After righting his ATV, Mr. Coombe was having difficulty starting the engine. However, Mr. Coombe was able to start it just as Jeremy reached him. When he came within arm's length, Jeremy reached out to grab Mr. Coombe but as he did, Mr. Coombe accelerated his ATV. Jeremy was able to momentarily grab hold of Mr. Coombe's sweater but because he was accelerating away at the time he lost his grip and was not able to stop him. This grabbing of the sweater did however cause Mr. Coombe to briefly lose some control of the ATV. One of Harry Vanderheyden's photos captured this moment and showed Mr. Coombe being pulled slightly back on the ATV and the front wheels of the ATV being slightly elevated and turned. Also it appeared that Mr. Coombe momentarily lost his grip on the ATV's handlebars.
The Collision
15This encounter occurred on the grass just south of the skateboard park. Jeremy had noticed there were three adolescent or young teen boys who were in the skateboard park at the time. He testified he walked to the middle of the skateboard park to ask these boys if they knew who the ATV riders were. These boys were Stephen Hannah, Tyler St. Paul and Evan Caskanette.
16The skateboard park itself contains three pieces of equipment utilized by skateboarders and apparently bike riders. On the west end is what was called the half pipe, on the east end is what was called the ramp and on the north side in the middle is what was called the platform. The three boys, Stephen, Tyler and Evan, had been riding their bikes in the skateboard park and were taking a break on a flat surface on top of the ramp when the encounter between Jeremy and Mr. Coombe occurred.
17Jeremy testified that after his encounter with Mr. Coombe he took off on his ATV in a westerly direction. Jeremy did not know where he had gone and assumed he had fled. He testified that as he went out to the middle of the skateboard park to speak to the boys, he heard an ATV and turned and saw the same ATV driven by Mr. Coombe coming towards him from between the platform and the ramp. He testified that the ATV was no more than 15 feet from him when he noticed it and it was traveling at a high rate of speed, which he estimated to be between 40 and 45 km/h. He stated he tried to turn out of the way but could not and was struck by the front rack of the ATV. This sent him into the air and he landed on the pavement. The final photo taken by Harry Vanderheyden shows Jeremy lying on the pavement of the skateboard park moments after being struck by the ATV.
18Mr. Coombe admitted and it is clear from the testimony that Jeremy suffered bodily harm as a result of being struck. The collision fractured Jeremy's right femur just above his knee. He was taken by ambulance to the hospital where he had surgery. A rod was inserted in his leg from his knee to his hip and this rod was screwed to the bone to help repair the fracture. As a result of the injury Jeremy was unable to walk for 5 to 6 months. He then walked with crutches for a time and finally with a cane. He also did physiotherapy from October 2010 until June 2011. He was off work for over 13 months, from the time of the accident on July 30, 2010 only returning to work after the Labour Day weekend in September 2011.
The Accused's Evidence
19Matthew Coombe also testified in his own defence. Much of his testimony was consistent with that of Jeremy and the other crown witnesses. He stated that he and Mr. Williams had been riding their ATVs on trails in the Burford area for the better part of that afternoon. At approximately 5:30 PM, they made their way to Optimist Park. When they arrived at the park they noticed some young people there and decided to "show off". This "showing off" consisted of him and Mr. Williams doing the donuts and riding their ATVs in the manner previously described.
20Mr. Coombe testified that it was during one of these donuts that he flipped his ATV. Apparently this ATV was relatively new to him and he was still becoming familiar with its operation and handling. Mr. Coombe also confirmed that after he got his ATV upright again it initially would not start. He stated that just as he got it started he noticed Mr. Williams heading off in a southeasterly direction. He testified he did not know why Mr. Williams had decided to leave so suddenly.
21It was just at this time that Mr. Coombe noticed something pulling him back as he was sitting on his ATV, but he was unsure what it was. He stated he looked back and noticed an arm coming over but could not see who it was that was grabbing him. At that point he accelerated in an effort to leave the area. As he was doing so, the ATV momentarily lifted in the front as indicated in the picture taken by Harry Vanderheyden.
22He stated he circled around in an effort to see where Mr. Williams had gone so he could rejoin him. As he circled around, he re-entered the skateboard park from the northwest between the half pipe and the platform and proceeded across it in a southeasterly direction in order to catch up to Mr. Williams. He stated that as he proceeded across the skateboard park in this fashion, he did not see Jeremy. He stated that as he was proceeding across the skateboard park, somebody, presumably Jeremy, came up from the side, had his hands up and tried to grab him. He stated that he did not hit Jeremy on purpose and would not have hit him if Jeremy had not tried to reach out and grab him. Additionally, Mr. Coombe testified that he was unaware that the collision had resulted in any significant injury to Jeremy.
23When it was suggested to Mr. Coombe in cross-examination that he knew what he was doing was dangerous, could have resulted in injury to himself, or could have resulted in injury to others, he agreed. As well, he agreed that he knew there were at least 5 to 6 people by the skateboard park and that there were people on top of the ramp in the skateboard park itself while he was operating his ATV in the manner described.
The Key Factual Dispute
24Did Jeremy come from the side and attempt to grab Mr. Coombe as he crossed the skateboard park or, did Mr. Coombe strike Jeremy either purposely or simply because he failed to notice him as he crossed the skateboard park in an attempt to leave the area and catch up to Mr. Williams? This is the most significant factual dispute in this case.
Evidence of Independent Witnesses
25I have had the benefit of hearing from several other witnesses in this matter. Most significantly, I have heard from Stephen Hannah, Tyler St. Paul and Evan Caskanette. These three young men were all independent witnesses and were all in a particularly good position to observe the entirety of the encounter between Jeremy and Mr. Coombe.
26Stephen Hannah testified that after the initial encounter the ATV went around and came back through the skateboard park. He stated that as the ATV came back through, Jeremy was in the skateboard park and looked like he may have been trying to stop the ATV but that it did not work out. He also stated he did not really see what happened at the moment of impact.
27Tyler St. Paul testified that he has a particular affinity to ATVs and as such was watching them the whole time they were in the park. He saw the ATVs doing the donuts as well as getting caught in the soccer net. He stated that as the three adults approached the ATV riders, the one, presumably Mr. Williams took off, while one of the adults tried to grab the other ATV rider. This attempted grab the ATV rider was not successful. The ATV rider took off but re-entered the skateboard park between the half pipe and the platform. As he re-entered the skateboard park Mr. St. Paul indicated that the ATV sped up to the point where the front end of the ATV lifted and headed directly toward Jeremy and ultimately struck him. As a result of the collision, Jeremy flipped over the quad and landed on his back. The ATV itself was undamaged, left and never came back. Mr. St. Paul also testified that Jeremy did not attempt to grab Mr. Coombe at the time of or shortly before the impact.
28The testimony of Evan Caskanette was consistent with that of Mr. St. Paul. Mr. Caskanette testified that when the ATV re-entered the skateboard park it was going approximately 40 km/h and that its front end was raised up a bit. He stated the right front side of the ATV struck Jeremy which threw him into the air before he landed on the pavement. At this point the ATV fled the area and did not come back. He as well testified that Jeremy did not attempt to grab Mr. Coombe at the time of, or shortly before the impact.
Additional Crown Witness
29Melanie Fernandez was also called by the Crown as a witness. At the time of the incident, Ms. Fernandez would have been approximately 17 years old. She was in the park this day with her friends Candace Wight and Breanne Dawson. They had been sitting on the grass near the north side of the skateboard park when the ATVs entered. When Mr. Williams and Mr. Coombe noticed Ms. Fernandez and her friends they pulled their ATVs up to where they were sitting, stopped and struck up a conversation with them. After their conversation, Mr. Williams and Mr. Coombe proceeded to do their donuts in the Park. Presumably, when Mr. Coombe states they were showing off, it was to Ms. Fernandez and her friends.
30Ms. Fernandez testified she also noticed Jeremy, his father and Mr. Kramer attend and attempt to stop Mr. Coombe and Mr. Williams from engaging in this type of behaviour. She also stated that at one point as one of the ATVs came around the skateboard park, she had to jump out of the way to avoid being hit.
Issues and the Law
Issue One: Dangerous Driving
31The first issue in this case is did the manner in which Mr. Coombe operated the ATV on July 30, 2010, amount to Dangerous Driving, contrary to section 249 of the Criminal Code.
The Test for Dangerous Driving
The test for determining whether a particular act of driving amounts to dangerous driving is a modified objective test, as set out by Justice Cory of the Supreme Court of Canada in the case of R. v. Hundal, [1993] 1 S.C.R. 867. The test enunciated by Justice Cory is as follows:
It follows then that a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place". In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation.
33This test was reviewed and restated more recently by the Supreme Court of Canada in the case of R. v. Beatty, 2008 SCC 5 , [2008] 1 S.C.R. 49. In this case Justice Charron restated the test in terms of both the actus reus and mens rea aspects relating to dangerous driving. She set out the test in paragraph 43 of the decision thusly:
I would therefore restate the test reproduced above as follows:
(a) The Actus Reus
The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place".
(b) The Mens Rea
The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.
Application to the Facts
34Applying this test to the case at hand, in relation to the actus reus, the court is satisfied beyond a reasonable doubt that Mr. Coombe was operating his ATV 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 ATV was being operated and the amount of traffic that at that time is or might reasonably be expected to be at that place. It almost goes without saying, that given that this is a public park, and given what a public park is normally used for, one would not expect an ATV to be used nor would one reasonably expect there to be any traffic within the confines of the park.
35The act of doing donuts, driving at such a speed and in such a manner that patrons of the park such as Ms. Fernandez had to jump out of the way to avoid being struck and driving across the skateboard park at such a speed that if a person were to be struck it could result in significant bodily harm all while knowing that there were at least three persons in the skateboard park, is objectively dangerous conduct.
36However, I must also ask myself if I am satisfied beyond a reasonable doubt that Mr. Coombe's objectively dangerous conduct was accompanied by the requisite mens rea. I must ask if I am satisfied on the basis of all the evidence, including any evidence of Mr. Coombe's actual state of mind, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe if placed in Mr. Coombe's circumstances. In this regard, I must ask myself, if I am satisfied that a reasonable person in similar circumstances to Mr. Coombe, ought to have been aware of the risk and of the danger involved in the conduct of Mr. Coombe.
37In this regard, I am satisfied beyond a reasonable doubt that a reasonable person placed in similar circumstances to which Mr. Coombe found himself, would have been aware of the risk and of the danger involved in operating the ATV as Mr. Coombe did on the day in question. I find that not only would a reasonable person have been aware of the risk and danger involved in this activity, but that Mr. Coombe himself was admittedly aware that the manner in which he was operating his ATV was dangerous not only to himself, but to other members of the public who were in the park that day.
38For the sake of clarity, I find that a reasonable person either would have not driven an ATV in a public park on a summer evening when the park was being utilized as it was meant to be used by members of the public or, if a person did ride an ATV in the park in these circumstances, a reasonable person would have done so at a very slow speed and would have taken all available steps to avoid areas where they knew or might reasonably expect to find other persons. I find that the manner of driving and the doing of the donuts was a clear and marked departure from the standard of care a reasonable person would observe in the circumstances.
39Additionally, I find that the act of driving across the skateboard park, in such a manner and at such a speed that if a person were to be struck it could cause significant bodily injury, is a clear and marked departure from the standard of care a reasonable person would observe in the circumstances and this act of driving, standing alone, is sufficient to form the basis for a finding of guilt beyond a reasonable doubt on a charge of dangerous driving.
Issue Two: Causation
40The next issue I must decide is whether there is a causal link between Mr. Coombe's dangerous driving and the bodily harm caused to Jeremy Vanderheyden. It is in the analysis of this issue that the factual dispute between the two competing versions that occurred on the skateboard park when Mr. Coombe struck Jeremy Vanderheyden could be of significance. It is the position of Mr. Renwick on behalf of Mr. Coombe, that if the court prefers Mr. Coombe's his version of events in that Jeremy jumped or lunged out from the side and attempted to grab Mr. Coombe as he crossed the skateboard park, then this act is sufficient to break any causal link between the dangerous driving and the bodily harm that ensued.
41The issue of causation in relation to cases where bodily harm ensues, involves an inquiry into whether the person, in this case Mr. Coombe, caused the bodily harm not only in fact, but also in law. (See: R. v. Nette, 2001 SCC 78 , [2001] 3 S.C.R. 488 at par 44).
Factual and Legal Causation
42The distinction between factual and legal causation was recently reviewed by the Ontario Court of Appeal in the case of R. v. Kippax, 2011 ONCA 766 , [2011] O.J. 5494. The court explained the distinction as follows:
22 Factual causation involves an inquiry about how the victim died or suffered bodily harm, in a medical, mechanical or physical sense, and an accused's contribution to that result: Nette, at para. 44.
23 Factual causation involves a determination of whether A caused B. The answer to the question of whether A caused B is resolved in a criminal case by the evidence of witnesses, those who testify about facts and others who offer relevant opinions: R. v. Smithers, [1978] 1 S.C.R. 506, at 518. The factual determination of whether A caused B has nothing to do with intention, foresight or risk: Smithers, at p. 518.
24 To prove factual causation, the Crown does not have to prove that an accused's conduct was either the direct or predominant contributing cause of the prohibited consequence, whether death or bodily harm. It is no defence for an accused to say that the conduct of another was a greater or more substantial cause of the death or injuries. The Crown need only prove that an accused's conduct was a significant contributing cause of the death or injuries or, said another way, that the accused's conduct was "at least a contributing cause ... outside the de minimis range": Smithers, at p. 519; Nette, at paras. 70-71; and R. v. Hughes, 2011 BCCA 220, 305 B.C.A.C. 112, at paras. 56 and 64.
25 Factual causation, as the term itself would indicate, is a question of fact, reviewable only in accordance with a standard of palpable and overriding error: Hughes, at para. 65; and R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 18.
26 Legal causation, on the other hand, has to do with whether an accused should be held responsible in law for a prohibited consequence of his or her conduct, for example, death or bodily harm: Nette, at para. 45. In legal causation, the inquiry is directed at the question of whether an accused should be held criminally responsible for the consequences that occurred: Nette, at para. 45; R. v. Shilon (2006), 240 C.C.C. (3d) 401, at para. 32. In the analysis of legal causation in negligence-based offences, like dangerous driving, reasonable foreseeability of harm is a relevant consideration: Shilon, at para. 33.
27 Conduct that is inherently dangerous and carries with it a reasonably foreseeable risk of immediate and substantial harm satisfies the standard required for legal causation: Shilon, at para. 38.
Factual Causation
43In determining factual causation in the case at bar, it is not necessary for me to resolve the factual distinction between the two competing version of events as to what occurred at the moment Mr. Coombe struck Mr. Vanderheyden and immediately before. It is clear from the testimony of Jeremy Vanderheyden, Matthew Coombe, Tyler St. Paul and Evan Caskanette that the injuries sustained by Jeremy were in fact caused by being struck by the ATV operated by Mr. Coombe.
Legal Causation and Intervening Acts
44It is only in relation to the issue of legal causation that a resolution of the distinction between the two competing version of events may become necessary. The court also stated in relation to legal causation, in R. v. Kippax (supra) that an intervening human event may be sufficient in some cases to break the chain of causation. In this regard, the court stated the issue as follows:
28 It is well-established that independent, voluntary human intervention in events started by an accused may break the chain of causation: Shilon, at para. 43. A new event may result in an accused's conduct not being a significant contributing cause of a prohibited consequence. But legal responsibility for an event will remain and the chain of causation will not be broken where an accused intentionally produced the outcome, recklessly brought it about, or if the ordinarily circumspect person would have seen it as a likely consequence of his or her own conduct: R. v. Maybin, 2010 BCCA 527, 263 C.C.C. (3d) 485, at para. 35.
Application to the Facts
45In relation to the issue of legal causation in this case, I find that the manner in which Mr. Coombe drove on the day in question was inherently dangerous and carried with it a reasonably foreseeable risk of immediate and substantial harm. As such, unless the chain of causation was broken by an intervening event, the crown's case is made out and Mr. Coombe is guilty of dangerous driving cause bodily harm.
46In this case, I am being asked to find that Jeremy lunged or jumped out and tried to grab at Mr. Coombe as he drove across the skateboard park in a dangerous manner. I am not prepared to make such a finding. In order to make such a finding, I would have to accept the evidence of Mr. Coombe on this issue and reject the evidence of Jeremy Vanderheyden, Tyler St. Paul and Evan Caskanette.
47I find that Mr. Coombe's evidence in relation to this issue and in relation to the events that transpired at the time of and shortly after his initial encounter with Jeremy were confusing, unclear and ultimately not reliable. During his cross examination on the issue he was vague on the route he traveled after the initial encounter with Jeremy, he was unsure at times of how much time passed between the initial encounter with Jeremy and the striking of Jeremy and at other times he was not sure where he precisely traveled after his initial encounter with Jeremy. As such, I find that Mr. Coombe's evidence in this regard is unreliable and not accepted on this issue.
48I must then determine if there is any evidence on this issue which I do accept. In reviewing the evidence of Jeremy Vanderheyden, I find that he testified in an honest and straightforward manner, was clear and consistent in his relaying of the events as he recalled them and was not shaken in cross-examination. As well, I also find that the evidence of Tyler St. Paul was clear and consistent and he as well was not shaken nor did he waiver from his version under cross-examination. The same applies to the evidence of Evan Caskanette. I further note that both Mr. St. Paul and Mr. Caskanette were independent witnesses who had an excellent view of the entirety of the events that transpired almost directly in front of them. Lastly, the evidence of Jeremy, Mr. St. Paul and Mr. Caskanette was consistent between them. As such, I have no hesitation in accepting their version of events and finding beyond a reasonable doubt that Jeremy did not lunge for or try to grab Mr. Coombe as he drove across the skateboard park.
49As a result of this finding, I hold that the chain of causation was not broken by any intervening human event and as such the dangerous driving of Mr. Coombe was both the factual and legal cause of the bodily harm suffered by Jeremy and as such I find that the crown has proven its case beyond a reasonable doubt and Mr. Coombe will be found guilty of count one of the Information, being the charge of dangerous driving causing bodily harm contrary to section 249(3) of the Criminal Code.
50However, even if Mr. Coombe's version of events were accepted, the chain of causation would still not be broken. I am not prepared to say that Mr. Coombe intentionally struck Jeremy, however at the very least he was acting recklessly in undertaking a manner of driving which would have caused an ordinarily circumspect person to see that bodily harm was a likely consequence of such conduct. As such, as set out by the Court of Appeal in R. v. Kippax above, the chain of causation would still not have been broken.
Issue Three: Failure to Stop at the Scene
51Turning to the charge of failure to stop at the scene of an accident knowing that bodily harm has been caused contrary to section 252(1.2) of the Criminal Code, I note that that at the outset of trial Mr. Coombe offered a plea of guilty to the lesser and included offence of failure to stop at the scene of an accident contrary to section 252(1)(a) of the Criminal Code. This plea was not accepted by the crown and the matter proceeded to trial on the charge as set out in the Information.
52By offering the plea of guilt that he did and by testifying that he immediately and without stopping, fled the scene of the accident and returned to his home, Mr. Coombe has acknowledged that he had the care control of a motor vehicle that was involved in accident with a person and with the intent to escape civil or criminal liability he failed to stop at the scene of the accident, give his name and address and offer assistance, which are the essential elements of the offence under section 252(1)(a) of the Criminal Code. However he has denied that he knew Jeremy had suffered bodily harm as a result of the accident and therefore submits that the crown has failed to prove this additional element that is required for conviction pursuant to section 252(1.2) of the Criminal Code.
53It is an essential element of the offence of section 252(1.2) that the crown prove beyond a reasonable doubt that the accused knew bodily harm has been caused to another person. In this case, the crown submits that given the nature of the accident involved and given that several witnesses testified that Jeremy flew up over the ATV when struck and landed on the pavement, Mr. Coombe should have or ought to have known that bodily harm had been caused.
54As stated above, Mr. Coombe denies knowing Jeremy suffered bodily harm as a result of the accident.
55In this case, I find that it is likely that Mr. Coombe knew or would have known Jeremy suffered bodily harm had he turned his mind to it. However likely knowing that bodily harm had resulted falls short of proof beyond a reasonable doubt. Given that the accident occurred very quickly, there was no apparent damage to Mr. Coombe's ATV, Mr. Coombe was able to continue driving the ATV and that there were no other obvious or outward signs of bodily harm such as blood or loss of consciousness by Jeremy, I cannot say that the crown has proven beyond a reasonable doubt that Mr. Coombe knew Jeremy had suffered bodily harm.
56As a result of this finding, Mr. Coombe will be found not guilty of count two in the Information being the charge pursuant to section 252(1.2) but guilty of the lesser and included offence of failing to stop at the scene of an accident contrary to section 252(1)(a) of the Criminal Code.
Released: April 19, 2012
Signed: "Justice Robert S. Gee"