Court Information

Ontario Court of Justice

Date: 2018-02-20

Location: Gore Bay

Court File No.: 16-471

Parties

Between:

Her Majesty the Queen

— And —

Cody Cheechoo

Before the Court

Justice: V. Christie

Heard: January 23, 2018 and February 6, 2018

Reasons for Judgment Released: February 20, 2018

Counsel

For the Crown: D. Beaton

For the Defendant: B. Allison

Reasons for Judgment

CHRISTIE J.:

Charges

[1] On January 23, 2018, Cody Cheechoo pleaded not guilty to the two charges set out on the Information. Those charges were as follows:

1. On or about the 2nd day of November, 2016, at the First Nation of M'Chigeeng in the said region did operate a motor vehicle on a street to wit Bebonang Street, M'Chigeeng, Ontario in a manner that was dangerous to the public contrary to Section 249(1)(a) of the Criminal Code; and

2. On or about the 2nd day of November, 2016, at the First Nation of M'Chigeeng in the said region, having the care of a vehicle to wit 2007 Sierra GMC Pickup truck that was involved in an accident with a property at 74 Bebonang Street, M'Chigeeng and with intent to escape civil or criminal liability failed to stop his vehicle, give his name and address, and offer assistance where a person's property was damaged contrary to Section 252 of the Criminal Code.

[2] The Crown elected to proceed summarily on these charges.

[3] The Crown called several witnesses, which will be summarized below.

[4] At the close of the Crown's case, defence counsel, on behalf of Mr. Cheechoo, brought a motion for a directed verdict in relation to count 2, failure to stop at the scene of an accident, contrary to section 252 of the Criminal Code, as the offence as alleged on the Information did not make out an offence known to law.

[5] On February 6, 2018, the Court requested further submissions as to whether this should be considered as a motion to quash as opposed to a directed verdict. At this point, the Crown conceded that count 2 should be quashed or stayed. The Court quashed count 2 on the information as it was not an offence known to law. This issue was dealt with in separate reasons.

[6] The trial then continued. The defence did not call any evidence. Counsel made submissions as to their relative positions on the trial proper.

Facts

[7] Alma-Jean Migwans was the home owner of 74 Bebonang Street who described a green truck driving onto her property on November 2, 2016 and causing some damage to her property. In cross-examination, she stated that the truck came from the south and was heading north, although she did not actually see the vehicle enter onto her property. Only one male was in the vehicle – the driver – who did not stop to give her his name or any information. The green truck had driven right up into her trees, and she demonstrated the position of the truck with her hand at a 45 degree angle. She yelled to the driver to ask if he was ok and he lifted his head from the steering wheel. She stated that the hydro lines were spinning from the house to the hydro poles. The driver was "gunning" the truck backwards, which she explained meant that he was stepping on the gas really hard to get the vehicle to move, and the truck was bouncing in the yard. The tires were spinning and dirt was flying. She ran into the house to get the phone to call the police, and when she came back out, the truck was still trying to get out of the situation it was in.

[8] Ms. Migwans testified that the truck eventually came off the tree and was tearing up the yard. The truck finally got over the ditch and took off down the road, northbound. She said that the road is a little bit higher than her yard. As the truck left the yard, a couple of young girls were walking south. She described the damage to her grass and trees. She stated that there was damage to the vehicle and that there were parts of the vehicle left in her yard.

[9] Marleen Debassige then arrived with Trina Debassige. They approached from the south, heading north. The truck had just left heading north. Ms. Migwans had a discussion with them about what had happened and they agreed to follow the truck. Ms. Migwans asked them to get her cigarettes first.

[10] Ms. Migwans explained that before Marleen Debassige returned, the truck came back, "driving crazy down the road". She explained that she meant that the truck was driving fast for a small street, and that she saw it swerve towards the front of the fire hall. She did not see any other traffic at that time. She noticed damage to the vehicle, specifically, that it was dented in the front, the mirrors were gone, and there was lots of mud on it. She called the police again. That was the last time she saw the truck.

[11] Marleen Debassige returned after Ms. Migwans saw the truck the second time.

[12] Ms. Migwans acknowledged that she suffers from PTSD, which she was diagnosed with about 2 years prior to the trial.

[13] Marleen Debassige, a neighbour of Alma-Jean Migwans, testified that she attended at the residence at 74 Bebonang Street on November 2, 2016 and observed some damage to the property. Ms. Migwans explained to Ms. Debassige what had happened and asked Ms. Debassige to follow the truck and see where it went. She also asked her to pick her up some cigarettes. After Ms. Debassige drove away from Ms. Migwans' residence, she saw the truck coming from the general store and enter onto Bebonang Street. It was a green GMC with a smashed front end, air bag deployed and smoke was coming from the front engine. She recognized the driver as C.J., who previously worked at the general store. She recognized the vehicle as belonging to Bill Cheechoo, who she believed to be the driver's father. She did not notice anything about the manner of driving, specifically, she did not notice any swerving, as she was focused on the damage.

[14] After she saw the truck, she crossed the street, turned around and went back to Ms. Migwans' residence. Ms. Debassige asked Ms. Migwans if she wanted them to continue to follow the truck, which they did. They went to Finn's and purchased cigarettes. Bill Cheechoo's residence is right next door to Finn's. By that time, the truck was parked at Bill Cheechoo's residence. When Ms. Debassige returned to Ms. Migwans' residence from Finn's, the police had arrived. At some point, Ms. Debassige also stopped and talked to Trinity Kaida, who she saw walking in the area. She had a conversation with her about what Ms. Kaida saw.

[15] Terry Thompson testified that he was re-shingling the roof of the West Bay General Store in the afternoon of November 2, 2016. It was a sunny, nice day. He was walking up the ladder when he heard a loud vehicle and when he looked back, he saw the vehicle almost hit his ladder. The vehicle was within inches of his ladder which was in the parking lot of the West Bay General Store, near the main business door. The vehicle looked like it had been in an accident and he described the damage to the vehicle, including a smashed front end and smoke coming from the front. He saw the driver get out, who he knew as C.J. The driver was banged up and bloody on his head and face. The driver went into the General Store. Mr. Thompson had some brief discussion with the driver, in that he asked the driver if he was ok and the driver told him to just keep working and mind his own business. He did not see the driver come out, but he saw the vehicle reversing and then go down the road. He said the vehicle should not have been driven as it was "pretty rough", was leaking fluids and smoking, and it was jumping and skipping, like it was being forced to go. The vehicle went down the highway toward downtown West Bay (M'Chigeeng). Mr. Thompson called the UCCM police.

[16] Shawn Campbell-Smith testified that he was working at the West Bay General Store on November 2, 2016. He saw Cody Cheechoo come in to purchase a bottle of alcohol at about noon. He described Mr. Cheechoo as banged up, with an abrasion on his head and cheek. Cody Cheechoo told Mr. Campbell-Smith that his dad was going to be upset with him as he had crashed his dad's truck.

[17] Trinity Kaida (who wished to be referred to as Ashton) testified that on November 2, 2016, she was walking with a few friends to go have some lunch at her mother's house. She saw a vehicle in the yard of Alma-Jean Migwans. She did not see the vehicle enter the yard; it was already in the yard when she got to the area. She described the vehicle as a GMC truck, dark green and that it was driving around the yard very carelessly. She recognized the driver as Cody Cheechoo. The truck was in the yard for about 30 seconds to a minute. She saw the vehicle leave the yard and stated that it "sped off a little bit". She said that the vehicle drove through the yard, through the ditch, and then on to the road. She was only about 5 feet away from the vehicle when it left the yard and this made her feel scared and gave her chills. She said that the vehicle then went toward the general store.

[18] Constable Mike Souliere and Constable Dave Mack testified about their investigation into this matter. They were called out to this investigation at 12:10 p.m. on November 2, 2016. They first proceeded to the residence of Alma-Jean Migwans where they spoke briefly with her.

[19] Both officers described the damage to the property, which included shrubs and trees that were tore out of the ground, the guide wire to the hydro pole was severed and on top of other wires, and there was damage to the grass. Constable Mack described fairly fresh signs of a crash that had occurred and that there were fresh skid marks in the gravel coming off of the street. Both officers described the road in this area as a flat surface with a slight curve in the area of Ms. Migwans' residence. They also both confirmed that the road surface was bare and dry on November 2, 2016.

[20] After attending to the residence of Alma-Jean Migwans, they received an update through dispatch and proceeded to the residence of Bill Cheechoo. They arrived at that residence at 12:17 pm. Officers observed what they believed to be the green truck in question. They knew this vehicle belonged to Bill Cheechoo. It was parked parallel to the house, and it had extensive front end damage, the driver's side window was busted out, the air bag was deployed on the driver's side, and there were small droplets of blood on the air bag. The whole bottom bumper and hood was caved in and there was air escaping from the radiator. They left the residence at approximately 1:00 pm.

[21] The vehicle was towed to headquarters and was photographed. Several photographs were marked as Exhibit 1. The licence plate located in Ms. Migwans' yard matched the licence plate on the vehicle at the Cheechoo residence. Several plastic vehicle parts taken from the Migwans' residence also appeared to match the vehicle towed from the Cheechoo residence.

[22] There was video surveillance in the area that was seized by police. There were in fact two different surveillance views of Bebonang Street introduced through Constable Mack and entered as Exhibit 2. The surveillance showed a truck leaving the roadway and driving into the yard of a residence. There was no surveillance of the vehicle leaving the yard. The surveillance also showed another vehicle driving on the same street in the opposite direction. The surveillance was motion activated as opposed to being continuous. Constable Mack also indicated that there was nothing on the surveillance showing people walking in the area.

[23] Finally, there were some further photographs entered by the defence as Exhibit 3. Those photographs were of Cody Cheechoo. Constable Mack noted some injuries to Cody Cheechoo as depicted in the photographs, and described these injuries as "small nicks" in a number of areas on the face including the right cheek, the right side of his chin and above the right eyebrow. Constable Mack also noted a small nick to the left hand on the base of the index finger. The officer admitted that he did not know the age of these injuries.

[24] This is merely a summary of the evidence, however, the Court considered the entirety of the evidence.

Position of the Parties

[25] In summary, the Crown submitted that the evidence itself was not very controversial and that the driving amounted to a marked departure from drivers in similar circumstances. The Crown referred to another vehicle that was on the roadway at the time which was evident from the surveillance. The Crown indicated that the Court could infer that the Cheechoo vehicle was travelling at a greater speed than this other vehicle seen in the video. It was submitted that the evidence established that there was no ice or snow that day and it was not dark or cloudy. There was nothing in the evidence to suggest an inability to anticipate the curve.

[26] The Crown stated that the Supreme Court of Canada in Beatty set out a narrow exception relating to mens rea, specifically where there is evidence of what the accused was thinking at the time. The Crown stated that the court did not have such evidence as Mr. Cheechoo did not testify and there was no other evidence of what Mr. Cheechoo was thinking. The Crown also referred to the fact that not only did the vehicle initially leave the roadway, but that it also moved around the yard of Ms. Migwans and then the vehicle extricated itself from the yard.

[27] In summary, Mr. Allison stated that dangerous driving was not made out and that the argument of the Crown attempted to shift the burden of proof to the accused. Mr. Allison noted that the Court has four different and discrete aspects of motor vehicle operation by the accused to consider and Mr. Allison discussed those in reverse chronological order as follows:

(1) Driving back past the complainant's residence – Mr. Allison stated that the Court must compare the evidence of the complainant to that of Marleen Debassige. The complainant said that the truck was swerving toward the fire hall. Marleen Debassige did not notice anything unusual about the driving.

(2) Driving the vehicle in and out of the West Bay General Store – Terry Thompson testified that the vehicle stopped within inches of his ladder. There was no other description of the manner of driving, such as speed, erratic driving, or the manner of stopping. Mr. Thompson conceded that the base of the ladder was located in the parking lot and that the vehicle parked in the parking lot.

(3) Putting the vehicle back onto the road – The evidence from the complainant was that wheels were spinning and he was gunning the engine. She did not describe the manner of departure from the yard beyond that. Trinity Kaida was the crucial witness to this part of the narrative, as she testified that she was present and frightened when the vehicle left the yard, and that it came within 5 feet of where she was standing. She was frightened because of the entire situation which was unusual to her. She was surprised by the carelessness of the vehicle being in the yard. Mr. Allison argued that it is not clear as to where Ms. Kaida was standing. He said that she testified she was initially walking south and she moved to a position across the road from where she was located. She was standing on the shoulder of the road when the truck left. However, first Ms. Kaida said that she was on the sidewalk, and then conceded that there was no sidewalk. Mr. Allison submitted that there was no explanation as to how the truck could have come back onto the road and be within 5 feet of her, as she was on the other side of the road according to her testimony. Mr. Allison also pointed out that Ms. Kaida did not state whether she was in front of the vehicle, beside the vehicle or behind the vehicle, which would be crucial to determining dangerousness. Without knowing where she was positioned on the side of the road, one cannot say that 5 feet is dangerous. Finally, there were other people with Ms. Kaida and none of those potential witnesses were called.

(4) Leaving the road and crashing – Mr. Allison submitted that there was no description by the complainant of the vehicle leaving the road and crashing as she did not see the initial collision. Mr. Allison acknowledged the existence of the video from the fire hall. The Crown asserted that the accused's vehicle was going faster than other vehicles on the road, which Mr. Allison described as more whimsy than fact. Mr. Allison reminded the Court that the images were non-consecutive images, operated by motion sensor and that it would be pure speculation to determine speed given this evidence. There was no evidence of the speed of the other vehicle in order to make a comparison. There was no accident reconstructionist to provide any evidence of speed or manner of driving. Mr. Allison submitted that there is simply no evidence as to why this vehicle left the road and that it amounts to nothing more than an accident or at most a highway traffic offence, but certainly not a Criminal Code offence.

[28] Mr. Allison also reviewed some case law with the Court which has been considered in reaching this decision.

Analysis

Essential Elements

[29] In order for the Crown to prove the case against Mr. Cheechoo in relation to the charge of dangerous operation of a motor vehicle, it must prove each of these essential elements beyond a reasonable doubt:

1. That the accused operated a motor vehicle; and
2. That the accused operated the motor vehicle in a manner that was dangerous to the public.

[30] There is no question that this is a motor vehicle and that Cody Cheechoo was the person operating that motor vehicle. The real question in this case is whether Mr. Cheechoo operated the vehicle, the GMC truck, in a manner that was dangerous to the public. In considering this the Court must take into account a number of factors, including, but not limited to the following:

1. The nature, condition and use of the place where the driving occurred;
2. The amount of other traffic, both vehicles and pedestrians, actually there at the time; and
3. The amount of other traffic, both vehicles and pedestrians, that might reasonably be expected to be there at the time.

The Legal Test

[31] Dangerous operation of a motor vehicle involves more than mere carelessness. The Crown must prove beyond a reasonable doubt that Mr. Cheechoo's driving was a marked departure from what a reasonably, prudent driver would do in the same circumstances.

[32] It is the manner of Mr. Cheechoo's driving, not its consequences that must be the Court's focus. Crown counsel does not have to prove that Mr. Cheechoo meant to endanger the lives or safety of anyone who was or might have been there at the time. Nor does the Crown have to prove that someone was actually harmed by the way in which Mr. Cheechoo drove his motor vehicle. See: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para 46

R. v. Beatty

[33] In R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, the Supreme Court of Canada discussed the elements of the offence of dangerous operation and made it clear that there is a true distinction between civil and penal negligence in a criminal setting. In the case of Beatty, the Court was considering whether a driver's momentary lapse of attention satisfied the requirements of the offence. The Court stated in part as follows:

In my respectful view, the approach advocated by the Crown does not accord with fundamental principles of criminal justice. Unquestionably, conduct which constitutes a departure from the norm expected of a reasonably prudent person forms the basis of both civil and penal negligence. However, it is important not to conflate the civil standard of negligence with the test for penal negligence. Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender's mental state. The onus lies on the Crown to prove both the actus reus and the mens rea. Moreover, where liability for penal negligence includes potential imprisonment, as is the case under s. 249 of the Criminal Code, the distinction between civil and penal negligence acquires a constitutional dimension.

The modified objective test established by this Court's jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence "modifies" the purely objective norm for determining civil negligence. It does so in two important respects. First, there must be a "marked departure" from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.

Second, unlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonable person in the accused's position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care. Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact. This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished.

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".

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.

In determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about the accused's actual state of mind. As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test. This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant. For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met. One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a "marked departure" from the standard expected of a reasonably prudent driver. Doherty J.A. similarly equates such deliberate action with a "marked and substantial" departure from the norm in the context of a criminal negligence charge in R. v. Willock.

However, subjective mens rea of the kind I have just described need not be proven to make out the offence because the mischief Parliament sought to address in enacting s. 249 encompasses a wider range of behaviour. Therefore, while proof of subjective mens rea will clearly suffice, it is not essential. In the case of negligence-based offences such as this one, doing the proscribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite fault. The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a "marked departure" from that norm, the offence will be made out. As stated earlier, what constitutes a "marked departure" from the standard expected of a reasonably prudent driver is a matter of degree. The lack of care must be serious enough to merit punishment. There is no doubt that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person. Nonetheless, as Doherty J.A. aptly remarked in Willock, "conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum" (para. 31). Although Willock concerned the offence of criminal negligence, an offence which is higher on the continuum of negligent driving, this observation is equally apt with respect to the offence of dangerous operation of a motor vehicle.

R. v. Roy

[34] A few years later, in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, the Supreme Court again considered the necessary fault element. Specifically the Supreme Court of Canada considered whether proof of the actus reus without more could support the inference that the required fault element is present. The Court referred to the analysis in Beatty and added the following comments:

A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, "The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving" (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.

The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.

Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused's actual state of mind (para. 43).

Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty, at para. 37.

R. v. Hecimovic

[35] In 2015, in Hecimovic, 2015 SCC 54, [2015] 3 S.C.R. 483, the Supreme Court of Canada looked at this issue once again, however, the Court simply dismissed the appeal for the reasons of the majority of the Court of Appeal decision. See R. v. Hecimovic, 2014 BCCA 483, [2014] B.C.J. No. 3066 (C.A.), paragraphs 55, 60, 62 and 70.

The Questions to be Answered

[36] The questions to be asked here are as follows:

(1) Was Mr. Cheechoo's driving, viewed objectively, dangerous to the public in all of 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?

(2) Was the dangerous manner of Mr. Cheechoo's driving the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances?

• (a) In light of all the evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible?
• (b) If yes, was Mr. Cheechoo's failure to foresee the risk and take steps to avoid it if possible, a marked departure from the standard of care expected of a reasonable person in the accused's circumstances?

Consideration of Totality of Circumstances

[37] While Mr. Allison has approached the driving as four discreet activities, the court should not, and does not, consider the driving as such. It is the totality of the circumstances that must be considered. If Mr. Cheechoo had left the roadway, proceeded into Alma-Jean Migwans' yard and the activity stopped there, this might not amount to a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. Vehicles leave the roadway for all kinds of reasons all the time. Sometimes there are medical issues at play, sometimes there is a momentary lack of attention to the roadway, sometimes there is an obstruction on the roadway that causes the person to swerve, overcorrect and lose control. This, however, is not the end of the evidence in this case. The entirety of Mr. Cheechoo's driving on Bebonang Street must be considered.

Question 1: Actus Reus – Was the Driving Objectively Dangerous?

[38] In answer to the first question – was Mr. Cheechoo's driving, viewed objectively, dangerous to the public in all of 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 – the Court finds and has considered the following facts:

1. Mr. Cheechoo left the roadway and drove onto the property at 74 Bebonang Street, knocking down some trees and tearing up the yard.
2. He was positioned up against a tree in Ms. Migwans' yard.
3. A guide wire was knocked down.
4. He gunned his truck, spinning his tires, until he was able to get free.
5. He then entered back onto the roadway through the ditch, where he came within 5 feet of a pedestrian. While it is a bit unclear as to precisely where on the roadway Trinity Kaida was standing at the time, there was no reason to disbelieve her evidence as to how close the truck was to her.
6. This occurred at around noon on an industrial/residential street, specifically Bebonang Street in M'Chigeeng. There were houses and businesses in the area.
7. As a result of the initial collision when he left the roadway, his air bag had been deployed, there was significant front end damage to his truck, his truck was smoking from the front end and pieces of his vehicle were broken and left behind in Alma-Jean Migwans' yard.
8. Mr. Cheechoo continued to the West Bay General Store. [I have not considered the manner of driving at the West Bay General Store as evidence of dangerousness as I do not have evidence that the store is located on Bebonang Street and the allegation on the Information is specific to Bebonang Street]
9. He left the store and went back down Bebonang Street where he was seen, by Alma-Jean Migwans, driving fast for a small street and then swerving toward the fire hall. The fact that Marleen Debassige did not see this happen does not mean that it did not happen, as she may not have been at precisely the same place at precisely the same time.

[39] Viewed objectively, Mr. Cheechoo's driving was dangerous to the public in all of the circumstances. This occurred around noon on what is presumed to be a weekday, given that Trinity Kaida was coming from school. There was at least one other vehicle on the surveillance. Bebonang Street is a public roadway where other drivers are entitled to be and pedestrians are entitled to walk. Even if vehicles and pedestrians were not actually present at the time, which they were in this case, one could reasonably expect them to be at that time and place. The cumulative nature of Mr. Cheechoo's driving on Bebonang Street was dangerous to the public in all of the circumstances.

[40] This finding, of course, does not end the analysis.

Question 2: Mens Rea – Was There a Marked Departure from the Standard of Care?

[41] In answer to the second question – was the dangerous manner of Mr. Cheechoo's driving the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances – the court has considered:

• (a) In light of all the evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible; and
• (b) if yes, was Mr. Cheechoo's failure to foresee the risk and take steps to avoid it if possible, a marked departure from the standard of care expected of a reasonable person in his circumstances.

[42] As Mr. Allison pointed out from the case law, there must be a meaningful inquiry into the manner of driving with a focus on the risk. Driving itself is inherently dangerous but a socially and legally approved activity nonetheless. Accidents do happen and accidents are not crimes. The Court must identify how and in what way the conduct is a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances.

[43] In this case, the Court has relied on the following facts in determining how and in what way the conduct is a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances:

1. Mr. Cheechoo left a roadway, which was flat, mildly curved, and dry. The reason this occurred is still a mystery.
2. He drove onto the property at 74 Bebonang Street, knocking down some trees and tearing up the yard.
3. He was positioned up against a tree in Ms. Migwans' yard, at a 45 degree angle.
4. A guide wire was knocked down.
5. Instead of stopping there, which a reasonable person would do, he gunned his truck, spinning his tires, until he was able to get free. This was extremely risky behavior given that he was in a person's front yard. A reasonable person would have foreseen the risk and avoided it by leaving the vehicle where it came to rest.
6. He then entered back onto the roadway by hopping the ditch, where he came within 5 feet of a pedestrian. This was again very risky behavior. Again, a reasonable person would have foreseen the risk and avoided it by leaving the vehicle where it came to rest. Given the time and area where this occurred, around noon on an industrial/residential street, specifically Bebonang Street in M'Chigeeng, any reasonable person would have foreseen the risk involved in trying to remove the vehicle from the yard in this manner.
7. As a result of the initial collision when he left the roadway, his air bag had been deployed, there was significant front end damage to his truck, his truck was smoking from the front end and pieces of his vehicle were broken and left behind in Alma-Jean Migwans' yard. Driving a vehicle in this condition would also be a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances.
8. Mr. Cheechoo does not even stop there. He continues to the West Bay General Store where he purchases some alcohol. As previously stated, I have not considered the manner of driving at the West Bay General Store as evidence of dangerousness as I do not have evidence that the store is located on Bebonang Street and the allegation on the Information is specific to Bebonang Street.
9. Mr. Cheechoo left the store and went back down Bebonang Street where he is seen by Alma-Jean Migwans, driving fast for a small street and swerving toward the fire hall.

[44] As previously stated, the Court should not consider the driving as four discreet events. It is the totality of the circumstances that must be considered. The court cannot possibly look at any part of this story in isolation. The Court must consider all of the facts and circumstances and decide whether in light of all the evidence would a reasonable person have foreseen the risk and taken steps to avoid it if possible. The reason Mr. Cheechoo's vehicle left the roadway is still a mystery. There is no evidence of his driving prior to that time and the Court certainly cannot and does not conclude that he was speeding as he left the roadway on the evidence. However, Mr. Cheechoo taking off out of the yard in the manner that he did, spinning his tires, going over the ditch and onto the roadway near pedestrians, is most definitely a situation where a reasonable person would have foreseen the risk and taken steps to avoid it if possible. It could have easily been avoided by simply staying put in the yard. Further, Mr. Cheechoo attended at the West Bay General Store and then drove his severely damaged vehicle, including the fact that the air bag was deployed, back down Bebonang Street, in a relatively fast and erratic manner.

[45] The conduct was markedly beyond careless. A reasonable person would have foreseen the risks and taken steps to avoid those risks. Mr. Cheechoo's failure to foresee the risk and take steps to avoid it, is most definitely a marked departure from the standard of care expected of a reasonable person in his circumstances.

Verdict

[46] The Court finds Cody Cheechoo guilty of dangerous operation of a motor vehicle.

Released: February 20, 2018

Signed: Justice V. Christie