Court File and Parties

Ontario Court of Justice

Date: February 27, 2017

Court File No.: Ignace, Ontario 160407

Between:

Her Majesty the Queen

— and —

Virginia Nadine Mouras

Before: Justice Peter T. Bishop

Heard: February 1, 2017

Reasons for Judgment Released: February 27, 2017

Counsel

Tara Schuck — counsel for the Crown

Mark Van Welleghem — counsel for the defendant Virginia Nadine Mouras

BISHOP J.:

Charges

[1] This matter comes before me by way of Virginia Nadine Mouras being charged:

1. That on or about the 8th day of June, 2016 in the Township of Ignace in the District of Kenora, did operate a motor vehicle at 104 Main Street, Subway parking lot, to wit a 2013 Toyota Highlander, in a manner that was dangerous to the public contrary to Section 249(1)(a) of the Criminal Code;

2. And further, that on or about the 8th day of June, 2016 in the Township of Ignace in the said region, did carry a weapon, to wit Leatherman multitool/knife, for a purpose dangerous to public peace contrary to Section 88 of the Criminal Code;

3. And further, that on or about the 8th day of June, 2016 in the Township of Ignace in the said region, did in committing an assault on Jeffrey Joseph Corbett, carry a weapon, to wit, Leatherman multi-tool/knife, contrary to Section 267(a) of the Criminal Code.

Evidence of Jeffrey Joseph Corbett

[2] Mr. Corbett of Thunder Bay is a thirty-five year old truck driver employed in the log hauling business.

[3] On the 8th of June, 2016 he was enroute to the Sapawe Mill thirty kilometres from Atikokan, approximately thirty-five kilometres east of Ignace.

[4] At 6:00 p.m. he was entering the parking lot of the Subway restaurant/gas station in Ignace.

[5] He was pulling in to the Subway restaurant from the left lane of Highway 17 travelling west and swung wide to allow the transport to enter the parking lot. It was fully loaded with logs.

[6] It was a Peterbilt tractor with a trailer and there was another tractor trailer parked in the lot by the TransCanada highway.

[7] He observed a sport utility vehicle stationed at the eastern corner of the Subway restaurant building.

[8] He got out of his cab, which was facing west, and he was almost hit by the sport utility vehicle from the highway side.

[9] He began walking to the restaurant and was almost hit again on the right side as the same sport utility vehicle blocked his path.

[10] The driver was "giving him shit" and yelled "I note that you almost fucking hit me".

[11] He replied "big trucks need more room" and he was not trying to hit her.

[12] She was mad and tried to run him down and she backed up and almost hit him again. He had to jump out of the way as he could see the driver through her driver's side window.

[13] She drove forward, tried to hit him and then spun around.

[14] She then backed up and was yelling out of the passenger side as there was a dog in the vehicle.

[15] She stated that she "had the right to carry and he would be shot if this had happened in the U.S.A and that he shouldn't 'fuck' with Americans".

[16] Mr. Corbett told her to "fuck off and go home". He estimates that three or four times he had to get out of her way as she was directing and driving the sport utility vehicle at him.

[17] When he was on the passenger side of that vehicle, she continued to swear at him.

[18] She backed up again and he went around to the front of the vehicle and she came down the passenger side of his truck speeding towards him.

[19] At that time, she flashed a silver blade approximately four inches long. He could not see the handle but believed that it was a multi-tool instrument.

[20] He stated that she held the knife out her window with her left hand.

[21] At that time, he was between the wheels of the cab and the trailer and he had moved back and became afraid as the female driver said "you're not so big and tough", and "are you afraid of a woman".

[22] At that point he jumped on the catwalk between the cab and the trailer to get out of the way and avoid being hit.

[23] He estimated that he was approximately one foot away from the accused driver and that the knife was six inches to one foot away from him. As she approached in her vehicle she made a stabbing motion, at which point he jumped up on the catwalk which is approximately three feet from the ground when she called him a "coward" and a "pussy" to which he responded "you have a fucking knife, leave or I will call the cops" and then she left.

Evidence in Cross Examination

[24] Mr. Corbett has been a truck driver for thirteen years and he was pulling trailer loaded with logs. The trailer was forty feet long and he estimated that the total length of the vehicle was seventy feet.

[25] He stated that there were three entrances to the Subway gas station parking lot and the accused could have exited at the middle exit rather than confronting him near the eastern exit.

[26] There was another truck parked on his right and she came close to him on his left.

[27] To his left, there was a fence and a house. The other beige tractor trailer was parked to his right parallel to the highway. There was no vehicle on the other side of his truck.

[28] He did not hear her honk her horn as his window was up.

[29] She stated "you tried to hit me" then came at him in her vehicle.

[30] She pulled in front of him and he tried to tell her that big trucks need more room and confirmed that he told her to "fuck off and go back to the United States of America".

[31] He walked around to try and check her plates and as he walked away from her, he looked at the plates and she was then between him and the Subway restaurant.

[32] He estimated that when he parked the truck he was thirty feet away from the far eastern end of the Subway restaurant. The beige transport truck, which he observed, was twenty feet from the curb to the highway.

[33] He again confirmed that he jumped back as she almost hit him, then she backed up away from the driver's door on his side.

[34] She backed up, turned around and blocked his path. He tried to leave and was almost hit three times by the accused in her vehicle.

[35] At that time, the accused's vehicle's back end was facing the Subway restaurant as she turned around backing up.

[36] He was very clear and certain that she told him that if he was in the States he would be shot.

[37] He viewed the knife in her hand with approximately with one-half of her forearm sticking out of the window.

[38] He stated "you have a fucking knife, what do you want me to do".

[39] He denied that she was six feet away when the incident occurred.

[40] He wasn't going to run down to talk to her and had to jump back a few times. He was certain the knife was in her left hand and was not in her right hand because the knife was shown with her palm up.

[41] At no time did she get out of the vehicle and he was upset that she was trying to hit him.

Evidence of Virginia Nadine Mouras

[42] Ms. Mouras is a sixty year old United States resident and had been working as a nurse anesthetist in Alaska. She also had a contract in Banger, Maine, and was driving home and stopped at the Subway restaurant.

[43] She described a logging truck coming from the east, turning in as she was about to leave. There was another vehicle to her right with an individual sleeping in it.

[44] The truck came on straight near her and almost hit her. The truck was very close to her and she honked the horn. She felt that she was in peril.

[45] She also stated that she was too close to the other sport utility vehicle and afraid that the individual in that vehicle was sleeping. She estimated that there was just inches between her vehicle and the other vehicle and Mr. Corbett's truck.

[46] She did a u-turn and wanted to meet him to get an apology as his driving was egregious.

[47] He jumped down from the cab and her window was down and she stated that "I'm sure you didn't mean to hit me". He stated that she had plenty of room and she was certain that he did not see the other vehicle and she did not try to hit his trailer or truck.

[48] The response from the complainant was "you're in Canada, don't give me shit, bye-bye".

[49] At that point, she admitted that she lost her temper, blocked him, and wanted to chew-him-out and cursed him three or four times.

[50] Then she wheeled around and had the idea to vandalize the complainant's vehicle. She took out her Leatherman and was going to poke a hole in his tire or run it across the metal of his truck. She described the driver as a "jerk".

[51] She then wheeled back near the complainant who she described as doing a "Patrick Swayze move" as he jumped onto the catwalk of his tractor trailer. She estimates that she was six feet away and he was not in any danger.

[52] With respect to the Leatherman, the main blade was out and it was always in her right hand. She denies making any stab motions towards him but he asked her if that was a knife and she replied "of course it's a knife".

[53] She figured that she would call the police but she does not remember saying "if this happened in the U.S.A. you would be shot".

[54] She admitted that she called him a "pussy" and attempted to call 911 to report the incident but her phone didn't work.

[55] At all times, she stated she was six feet away when the complainant jumped on the cat walk and he did not jump back and her vehicle was parallel to his and no closer than seven feet away. At no time did he talk to her through the passenger side window because there was a seventy pound West Siberian husky-like dog there.

Evidence in Cross Examination

[56] She denied that she was overly angry when confronted and she objected to the Crown saying that it was "necessary for her to get an apology" as "necessity" was too strong of a word.

[57] She was hoping for an apology and was upset when he told her to "go back to America".

[58] She confirms that she blocked him in, was swearing, and making derogatory terms as he was driving in a reckless manner. She was so upset that she wanted to vandalize his vehicle and held a knife out at which time she kept chewing him out. She did not want to drop the knife and expected that he was going to call the police.

[59] When she left, she could not call 911 as her phone would not work.

[60] She feels that she was provoked as she was wedged into the parking lot by another sport utility vehicle.

Position of the Defense

[61] The Defense states that the accused was a very credible witness and wasn't seriously challenged. The complainant was upset and his demeanor reflected in an excitable response and jumped back. Further, there is no corroborative evidence and she had the knife in her right hand and not her left hand.

Position of the Crown

[62] The Crown submits that it has proven the all charges beyond a reasonable doubt as the complainant had to jump back three or four times while being blocked in by the accused's motor vehicle while driving in a dangerous manner.

[63] The complainant tried to diffuse the situation and the accused elevated the occurrence by driving in a dangerous manner with the car and a knife in her hand. She was very angry, used foul language and her driving resulted in the marked departure from the norm. She was very purposeful when she confronted the complainant and approached him in the manner that she did without regard to the use of the Subway parking lot.

[64] The Crown has filed several cases including R. v. Roy, 2012 SCC 26, R. v. Kraus, [2015] O.J. No. 5639, R. v. Hundal, R. v. Beatty, 2008 SCC 5.

Decision

[65] I have reviewed the case of R. v. WD, 63 C.C.C. (3d) 397 which is summarized as follows:

1. If the accused is believed, the judge must acquit;

2. If the accused is not believed there may still be a reasonable doubt as a result of the accused's testimony;

3. Even if the accused's testimony does not raise a reasonable doubt there may be reasonable doubt on the evidence as a whole that is accepted.

[66] With respect to dangerous driving, in R. v. Beatty, 2008 SCC 5, the court fully considered the requisite mens rea and actus reus. A modified objective test requires a marked departure from the civil norm in the circumstances of the case. A mere departure from the standard expected a reasonably prudent person will meet the threshold for civil negligence but will not be sufficient for penal negligence. The distinction between a mere departure and marked departure is a question of degree. The actus reus requires proof beyond a reasonable doubt that, viewed objectively, the accused was 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 in which the motor vehicle was being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place. It is the manner in which the vehicle was operated that is at issue, not the consequence of the driving. While the consequence may assist in assessing the risk involved, it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public.

[67] The mens rea requires the trier of fact to be satisfied on the bases of all the evidence, including evidence, if any, about the accused's actual state mind, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. If the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct caused to a marked departure from the norm, the trier of fact must consider the evidence, if any, about the actual state of mind of the accused determined whether it raises a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by this conduct. Subjective mens rea of intentionally creating a danger for the other users of the highway will always cause a marked departure from the standard expected of a reasonably prudent driver. Subjective mens rea however, is not necessary. A lack of care must be serious enough to merit punishment. 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. The objective mens rea is based on the premise that a reasonable person in the accused's position would have been aware of the risk arising from the conduct. The object test must be modified to give the accused the benefit of any reasonable doubt whether a reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger. In addition, a reasonably held mistake in fact may provide a complete defense, if, based on the accused's reasonable perception of the facts, the conduct measured up to the requisite standard of care. The modified objective test must be applied in the context of the events surrounding the incident. Personal attributes such age, experience and education are not relevant. The reasonable person however, must be put in the circumstance the accused found himself in when the events occurred in order to assess the reasonableness of the conduct.

[68] In these circumstances, I do not believe the accused's version of events. I do accept that the accused confronted the complainant while driving her vehicle in a manner as described by the complainant and she virtually confirmed the evidence of the complainant by using her vehicle as a means to intimidate him. This was done in a parking lot of a busy restaurant/gas station. It was not just one angry vehicle confrontation but it was at least three confrontations with the accused driving her vehicle. I do not accept that she was six to seven feet away from the accused but rather closer to one foot away which required the complainant to jump out of the path of the accused's vehicle. It was so concerning or frightening for the complainant that he had to jump upon his own vehicle to avoid being struck. This is a marked departure of the standard of care of a reasonable person in similar circumstances. A reasonable person would have been aware of the risk and the danger involved in her driving conduct. She appeared oblivious to the situation and focused her anger only on the complainant without regard to the other users or anticipated users of the parking lot/highway.

[69] This incident may be described as "road rage", but it went well beyond because of the actions of the accused driving her vehicle in the manner that she did in a gas station/restaurant parking lot. This location had three entrances to the TransCanada highway. She stated that she attempted to call 911 and the police, but there is no corroboration that she did in fact do that and she left the scene. The evidence is that the complainant called the police, who conducted an investigation, arrested the accused and charges were laid.

[70] The accused admitted that she was using foul, vulgar, abusive language towards the complainant which was reciprocated in kind when he saw how upset she was and the danger that she put him in. The accused's conduct is a marked departure from the norm. Her admitted state of mind does not raise a reasonable doubt as to whether a reasonable person in her position would have been aware of the risk created by her own admitted conduct. It was not only the danger of the driving at the complainant but to other users of the public which were present or likely were present at this location. The accused stated at no time was the complainant ever in danger. This is not the test and any reasonable person would conclude that the accused drove in a dangerous manner.

[71] After reviewing all of the evidence, I do not believe the accused and her evidence does not create a reasonable doubt nor on all of the evidence is there a reasonable doubt with respect to dangerous driving and a conviction will therefore enter.

[72] With respect to the possession of weapons dangerous, I find that the Crown has proven this case beyond a reasonable doubt as the accused has basically admitted that she got the knife out with the view to vandalizing the complainant's truck. I accept the complainant's evidence that the knife was out the window and it was thrusted towards him several times. It does not matter whether the knife blade was in the left or right hand, and her evidence that the knife was in her right hand and not her left hand does not create a reasonable doubt with respect to the charge of possession of a weapon dangerous. Coupled with the language and agitated state the accused was intimidating the complainant and I do not accept her evidence. And I do not accept the evidence that she was thinking only for a moment about vandalizing the complainant's tractor tires and trailer.

[73] For all of the above reasons, a conviction will enter for the dangerous driving and the possession of a weapon dangerous, but the assault with a weapon charge will be conditionally stayed on the Kienapple Principle.

Released: February 27, 2017

Signed: Justice Peter T. Bishop