Court File and Parties

Court File No.: 11523 Location: St. Thomas Date: November 7, 2012

Ontario Court of Justice

Her Majesty the Queen and Justin Vandorp

Before: George, J.

Counsel:

• C. Sigurdson for Crown
• R. Braiden for J. Vandorp

Reasons for Decision

The Charge

[1] Mr. Vandorp is charged that on May 30th, 2011 he did dangerously operate a motor vehicle in a public place, contrary to section 249(1)(a) of the Criminal Code of Canada.

Trial Proceedings

[2] The trial took place over the course of two days - July 9th, 2012 and November 1st, 2012.

[3] Six crown witnesses testified. I heard from two defence witnesses, including Mr. Vandorp. I received a collection of photographs into evidence as well that depicted, among other things, the scene of the collision which is the subject of these proceedings.

Legal Test for Dangerous Operation

[4] For me to find Mr. Vandorp guilty of this offence the crown must prove that he operated a motor vehicle and that he did so in a dangerous manner - the danger to be assessed in relation to risk to the public.

[5] There is no doubt Mr. Vandorp operated the motor vehicle on the date in question. That was conceded by the defence at the outset of trial.

[6] Did he operate it in a dangerous manner?

Factors to Consider

[7] In considering this question I must be mindful of:

• the nature, condition and use of the place where the driving occurred,
• the amount of both vehicular and pedestrian traffic actually there at the time,
• and the amount of both vehicular and pedestrian traffic that might reasonably be expected to be there at the time.

[8] Further to these considerations, I can make the following preliminary comments:

• The conditions at the place where Mr. Vandorp operated the vehicle were good - the weather was not inclement and the events occurred in broad daylight.
• The driving in question occurred within the city of St. Thomas - a locale of modest size, at a busy area with several retail businesses and a gas station in close proximity.
• The location was a large parking lot that typically would have a moderate to heavy amount of public traffic.

Standard of Proof

[9] In assessing the matter further, the court must be always mindful of the fact that dangerous operation of a vehicle involves more than carelessness or a 'mere' departure. The Crown must satisfy me beyond a reasonable doubt that the driving constituted a 'marked' departure from how the reasonable, prudent person would drive in similar circumstances. The accused bears no burden of proof. They don't have to establish the absence of a marked departure - the onus at all times is on the Crown.

[10] The Crown need not prove an accused meant to endanger lives or anyone's safety, nor does it need to prove someone was actually harmed by the driving.

The Victim's Evidence

[11] The complainant here was harmed. Peter Broughten was struck on his bike, from behind by a vehicle Mr. Vandorp was operating. He was, as a result, ejected from the bike and did suffer some injuries. This is not in dispute. As the court analyzes these facts, it must focus not on the result of the driving (in this case the collision between the vehicle and bike), but rather on the manner of driving immediately before the collision.

[12] Defence counsel, in his final remarks, conceded there was a departure from how a reasonable, prudent person would have reacted / driven in these circumstances. Having narrowed the issue then, the question is was this admitted departure a 'marked' departure?

The Accused's Evidence

[13] Before I review the evidence that impacts my decision, I note as well that the accused has testified and offered an explanation as to the circumstances surrounding this event; why he reacted in the way he did; and his description of his car's impact with Mr. Broughten's bike. If I were to accept his version as the truth, it is clear an acquittal must be registered - it amounts to a defence. In a nutshell, his explanation is that after he and Mr. Broughten entered the parking lot he lost sight of him on his bike. He went on to indicate that only after Mr. Broughten reappeared, as observed by his mother who was a passenger, to his car's right, and then only after Mr. Broughten made a sudden movement on his bike proceeding directly in front of and centred to Vandorp's vehicle, did the collision occur. Further details from Mr. Vandorp included his reaction (shifting into neutral), and why he did that, as opposed to slamming on or in any way applying the brakes.

[14] For reasons that will be become apparent as I continue, I don't accept Mr. Vandorp's version. That does not end the matter.

[15] Does Mr. Vandorp's evidence, nonetheless, raise a reasonable doubt? If it doesn't, I must then ask whether or not a doubt exists based on the evidence I do accept.

Crown Witness Evidence

Officer Calvert

[16] Officer Calvert, a member of the St. Thomas Police Service ("STPS") was involved in the investigation of this offence. She attended the scene of the collision at the Canadian Tire parking lot, arriving almost immediately afterwards as she was driving in close proximity to this area. She testified that she observed two men (who we now know was Mr. Vandorp and Mr. Broughten) holding each other's arms and engaged in a struggle. She also observed a woman (Mr. Vandorp's mother) who was screaming about her vehicle being stolen. She described Mr. Broughten's bike laying on the asphalt - twisted and bent - and his shoes lying on the ground beside the bike.

[17] In her evidence she described Mr. Vandorp as appearing agitated, and told us how she overheard Mr. Vandorp yelling at Mr. Broughten. She went on to describe Mr. Vandorp's mother as being even more agitated then her son and focusing exclusively on the fact she believed her car had been stolen. In terms of the condition and use of this particular area, she described the location of the collision as being in a large parking lot where there were curbed entrances that were well designated. The surface was asphalt.

[18] The court was advised by this officer that this was typically a busy area that could sometimes be congested. On this particular day she described the traffic as being moderate. It was not raining and the asphalt was dry.

Officer Christianson

[19] Officer Christianson, also a member of the STPS was described as being the lead investigator. He arrived after Officer Calvert and was briefed by her upon his arrival. He provided a similar description of the scene, bike and vehicle, and provided some detail as to Mr. Broughten's injuries. He had direct discussions with Mr. Vandorp who he described as being "defiant, unremorseful as to what happened, and put the blame entirely on Mr. Broughten." He gathered witness statements from many of those who were present at the scene.

Peter Broughten (Victim)

[20] Peter Broughten testified next. He advised that he was riding his bike in this area of St. Thomas and confirmed that he was the cyclist who was ejected from his bike after being struck from behind by the car driven by Mr. Vandorp. He testified that he was cycling to this area in order to hand out resumes as he was then looking for work. He described riding down Talbot st., and proceeding onto what he called a service road that accessed the Canadian Tire and Walmart. He clearly recalls being stopped at a red light, looking both ways and turning. After this, he says a vehicle overtook him. At some point, he was stopped in the middle of the road waiting for a car to pass which is when, he says, the person he now knows as Mr. Vandorp started honking his horn at him.

[21] As he was riding he heard someone yelling at him from inside the vehicle. He didn't recognize who was yelling nor could he hear precisely what was being said. After he turned into the parking lot and as he continued riding on the bike, he testified he heard that same car's engine revving. The car was directly behind and as he was looking back he saw the cars bumper hit his bike. It was at this point he was forced off the bike and to the ground. He suffered some injuries in the form of scrapes and bruises.

[22] After he was struck and was able to get to his feet, he testified that the passenger (Mr. Vandorp's mother) got out of the car and was irate. He went on to say he went to the driver's side of the Vandorp vehicle as he noticed Mr. Vandorp did not exit, and he was fearful he may leave the scene. He takes the keys from the vehicle and then hands them to another, unknown to him, member of the public. His recollection is Officer Calvert arrives almost immediately thereafter.

[23] As the events progressed (passing the car; being honked at; overhearing yelling) nothing concerned Mr. Broughten particularly until he was proceeding into the parking lot. Throughout his evidence he was adamant there was nothing unusual about his riding and that he was at all times abiding by the rules of the road. He denied any desire to engage Mr. Vandorp and denied intentionally veering his bike in front of the vehicle, or to improperly employing his brake.

[24] Mr. Broughten was adamant that Mr. Vandorp accelerated into his back tire. He estimated that the distance from the parking lot entrance to the location of the collision was about 25 metres.

Deb Hill (Witness)

[25] Deb Hill, the fourth crown witness to testify, advised that she did not know either Mr. Broughten or Mr. Vandorp, and that she just happened to be in the vicinity at the time of the accident. Ms. Hill testified that she had a clear, unobstructed view of these events. She says she clearly heard a lady yelling, who we can fairly conclude was Ms. Vandorp, as the bike and car were proceeding into the Canadian Tire parking lot from the service road. She described it as being very busy that day in and around the gas bar area, which was within the large parking lot.

[26] Immediately before the accident, Ms. Hill believes the person driving was "stepping on the gas". She went onto describe a "pretty quick acceleration".

[27] She was able to see that the impact of the bike was in the direct middle of the car. In cross examination she maintained that when hit, the bike was "in front of and dead centre of the car". Before the actual contact Ms. Hill simply describes the cyclist as ignoring the yelling being directed his way.

William Taylor (Witness)

[28] William Taylor gave evidence. He was at the Canadian Tire gas bar in the Talbot st. / First ave. area at the time of accident. After filling up his truck he was turning to go into the Canadian Tire store parking lot. He remembers seeing the bicycle come into the entrance - he observes then a car come up behind the bike. He testified the car was travelling at an excessive rate of speed. He observes the impact and says he saw the cyclist "launch" from the bike. In his evidence he was certain that the car was speeding before the collision as, when initially in the parking lot, they were some 40-50 feet apart. He described how this gap was closed, according to him, and that it was not account of the cyclist stopping, slowing, or braking. This is consistent with Deb Hill's evidence on this point.

[29] After the collision, the car did stop, and according to Mr. Taylor the woman passenger was irate. He says she was boisterous, foul and cursing at the injured cyclist. He described her as having no concern at all for the person on the bicycle. He doesn't remember the driver getting out of the vehicle until after the keys were taken by Mr. Broughten which we learned were given to Mr. Taylor. At this point, according to Mr. Taylor, he does get out and says to him "get ready to hit the ground old man". He describes the police as arriving almost immediately after this exchange with Mr. Vandorp.

[30] Throughout the cross-examination he was adamant there was nothing unusual about the manner in which the bike was being operated. In direct examination he testified that the car was travelling too fast in the parking lot and I took from his evidence that it was on account of this that the gap was closed before the bike was struck. This is consistent with his evidence on cross-examination (which is slightly inconsistent with some of the other civilian witnesses) that he does not see the vehicle accelerate. In his mind the vehicle was at all times traveling much too fast and that no quick, noticeable acceleration was necessary to cause the collision.

[31] Mr. Taylor maintained as well, notwithstanding a very effective cross examination, that the bike never slowed noticeably or braked prior to the collision.

Marilyn Roberts (Witness)

[32] Marilyn Roberts was the final Crown witness. She is a para-transit bus driver who just happened to be sitting in the Canadian Tire parking lot that day, and at that particular time. She was sitting close to the service rd. right at the point one would turn into the parking lot. She said she had a direct view of the service road and the entrance into the parking lot, and advised that there were no obstructions.

[33] Her attention was initially drawn to all of this by someone yelling. She sees the cyclist turn into the parking lot and the car turn in behind it. According to her, nothing unusual is happening yet but she says she does hear yelling and that it is coming from both the man and woman inside the car. Ms. Roberts was clear and unequivocal, both in direct and on cross, that the car "followed him" (the cyclist) and that the car "sped up" before hitting the bike. It was her impression the cyclist was pedalling hard to "get away from the car". She also testified that even though the vehicle sped up, she didn't hear any revving of the engine. Her evidence was to the effect of: "even though I didn't hear revving, the car sped up and hit him."

[34] After the collision, Ms. Roberts exited her bus and recalls saying to the driver (Mr. Vandorp) and his passenger "you just hit him". The passenger's response to her was "you should have seen what he was doing out on the other road". She described the passenger as being outraged and the male driver as not saying or doing anything.

[35] On cross examination Ms. Roberts acknowledged that her view of the crash was from the rear. She could not provide a good estimate as to how fast the car was travelling.

Defence Witness Evidence

Laura McLaughlin (Defence Witness)

[36] Laura McLaughlin was called as the first witness for the defence. She advised that she was putting gas in her car at the Canadian Tire gas bar. After she was done she exited, turning left, then right as if going towards Redan st. As she was proceeding in that direction, she says she "noticed a man on a bicycle get hit by a car". She testified that she noticed, before this, the cyclist turning in off of Redan st., heading north in the direction of Canadian Tire. She sees the vehicle travelling directly behind the bike. The distance between them to her "seemed close", but she qualifies this by saying they were not directly in front of her.

[37] She doesn't notice any change in speed of either the car or bike. In relation to the car, this is consistent with Mr. Taylor's evidence at least in terms of there being no acceleration.

Justin Vandorp (Accused)

[38] Justin Vandorp testified on his own behalf. His evidence boiled down to essentially a denial of acceleration. In fact his account was that it was the cyclist who made a quick, unexpected decision to veer in front of his car. With this, according to Mr. Vandorp, the only reason he hit the cyclist from behind was because he, as opposed to braking, put the car in neutral. He attributed this to his unfamiliarity with automatic transmissions as he typically drove a standard. He explained that the bike veered from the cars right, and after his mother/passenger warned that he was there. After this happened, he says he didn't manoeuvre to his left in the parking lot, as it was "too busy".

[39] Later on in the examination - seemingly contrary to his explanation that it was on account of unfamiliarity with automatic transmissions - he explained that he didn't brake because he didn't have enough time to brake. This latter explanation makes no sense, given the time it would have taken to extend his right hand between the front seats, and move the gear shift to the neutral position. His explanation that he couldn't manoeuvre to his left makes no sense at all either, in particular when you consider it relative to his explanation that it was on account of time that he couldn't apply pressure to the brake.

[40] Mr. Vandorp denied, initially, ever expressing any anger or frustration throughout the driving and incident that followed. It was only after being pressed by Mr. Sigurdson that he finally acknowledges that he got upset, but only after they keys were removed from the car. I have a hard time accepting his explanation on these points, and am inclined to characterize his evidence much in the same way the crown did in their submissions, which is Mr. Vandorp recalled with exacting detail all those things which assist in his defence, and recalled very little about all details which could have impacted him in a detrimental way. His evidence was self-serving, and wasn't logical on some points. For instance, the idea that Mr. Broughten was cycling against the rules of the road and in an unsafe manner, to the extent that it enraged his mother, and to the point where he honked his horn at him -- and that he was utterly and completely unaffected by this, simply isn't believable.

[41] It was, I believe, evidence tailored to soften the blow of a reality he knew could be construed as a road rage incident. Also, given his description of his own driving through the parking lot, and given his evidence that his mom pre warned him that Mr. Broughten was riding right beside them to their right, it is inconceivable that a cyclist could accelerate at a speed quicker than a car, move across half the width of that car while both are in operation, all happening, keeping in mind, without Mr. Vandorp at any point braking.

[42] I reject as well his evidence that he lost sight of the bicycle as he was entering the parking lot.

Court's Analysis and Findings

[43] The reality here is Mr. Vandorp and his mother, for one reason or another, did become upset with Mr. Broughten for something he did while still out on the public roadway and before the turn into the parking lot. Perhaps it's because they didn't think Mr. Broughten was following the rules of the road; perhaps it was because, as Mr. Vandorp says, he passed them along the curb too closely, and in an unsafe manner. Perhaps it was because he was sitting out in the middle of the road not moving. It's hard to know for sure, based on the evidence I heard.

[44] Mr. Vandorp then proceeded to follow Mr. Broughten into the parking lot, not necessarily to hit him. Notwithstanding Ms. Robert's impression that he was trying to hit the cyclist intentionally, I don't believe he did intentionally, and with a specific purpose, try and hit Mr. Broughten, but rather was attempting to intimidate him by making it known he was upset by following him too closely. The act of following closely, which in turn enabled his mother to continue her verbal tirade was, I find, the purpose. This immature, outrageous, and dangerous behaviour in the result not only caused a dangerous situation but caused actual harm. It could have been worse.

[45] The fact Mr. Vandorp at no point applied pressure to his brakes; the fact he at no point attempted to manoeuvre his vehicle out of the line being travelled by the bike; and the fact he either was travelling too quickly throughout the parking lot or at some point accelerated, all assist me in coming to this conclusion.

Witness Credibility and Inconsistencies

[46] To this last point, which is relevant to the next step in my consideration, which is even if I don't believe the accused, am I satisfied beyond any reasonable doubt, based on the evidence I do accept, of Mr. Vandorp's guilt, I make the following conclusions: First, there were some inconsistencies as between all of the civilian witnesses. Second, I conclude that these were all, I believe, more indications of what I'll call 'hallmarks of the truth' as opposed to irregularities that give rise to a reasonable doubt.

[47] The inconsistencies were as between those who say there was a distinct acceleration by the vehicle, Mr. Taylor who says there wasn't acceleration rather an excessive speed throughout the parking lot, and Ms. McLaughlin who doesn't indicate either. At the end of the day, it's not relevant other than to the question of whether or not there was an intentional striking with his car which, although that could very well have been the case, I don't feel as if I'm in a position to make that specific finding. If that were the case Mr. Vandorp should likely have been answering to an assault with a weapon charge, as he would have, in those circumstances, been using a vehicle as a weapon.

Legal Principles and Conclusion

[48] I make these points mindful of the Supreme Court of Canada's decision in R. v. Roy 2012 SCC 26, and the fault requirement that is required. A reasonable person, in these very circumstances, would have acted and responded differently, and the risk created by Mr. Vandorp's driving that day was a foreseeable risk. Steps could have been taken by him to avoid what ultimately happened.

[49] In determining Mr. Vandorp's guilt beyond a reasonable doubt I am aware as well that I am not to focus on the result of the bad driving - the collision and Mr. Broughten's injuries - but on the manner of driving as it was immediately before the accident. The driving here did not amount to mere carelessness nor was it just a momentary lapse in judgment. It was criminal driving and behaviour that should attract the stigma associated with a criminal conviction and punishment.

Verdict

[50] Mr. Vandorp is found guilty of the offence charged.

Date: November 7, 2012

Justice Jonathon C. George