HMTQ v Nelson

2000 BCSC 1579 Citation: HMTQ v Nelson Date:20001027 2000 BCSC 1579 Docket: 62626 Registry: Kamloops IN THE SUPREME COURT OF BRITISH COLUMBIA HER MAJESTY THE QUEEN AGAINST DWAIN DAVID NELSON REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE HUNTER Counsel for Crown W. Burrows Counsel for Accused R. Bruneau Date and Place of Trial: October 19 & 20, 2000 Kamloops, BC [1] The accused is charged under the Criminal Code with a number of motor vehicle offences. There are five counts and all are alleged to have occurred on or about January 20, 1999, at or near Pavilion, British Columbia. These counts include one of dangerous driving causing bodily harm to Georgina Ned, dangerous driving causing bodily harm to Jarrod Michael Mountain, driving with a blood alcohol level exceeding .08, driving while impaired by alcohol or a drug and thereby causing bodily harm to Georgina Ned, and a similar count of impaired driving causing bodily harm to Jarrod Michael Mountain. [2] The only issue is that of identification. The vehicle in question, an older model Ford 3/4-ton flat deck was apparently owned by the accused Nelson's girlfriend. At all relevant times, Nelson's right to drive a motor vehicle in British Columbia had been suspended by the Superintendent of Motor Vehicles. On the morning of January 20, 1999, Claude Peterson met the accused at his home near Lillooet. They drove to Lillooet to do three floor-laying jobs which were Mr. Peterson's responsibility that day. They finished one of those jobs about 11:00 a.m. and decided to take a break. They bought a six-pack of beer and went to the old bridge in Lillooet where they consumed it. They then went to another job which they completed about 3:00 p.m. The other job was a small one which Mr. Peterson was able to handle on his own and so Nelson left Peterson and drove this truck approximately one block to get something to eat. He then met Jarrod Mountain. Together, with Mountain driving, they went to a nearby beer and wine store. With them by this time were Peterson's girlfriend, Violet Ned, and her sister Gina (Georgina). Violet bought some beer and a 40-ounce bottle of rum. [3] The plan was to drive to Marble Canyon, a short distance beyond the Pavilion Indian Reserve. They left Lillooet about 4:00 p.m. Peterson was driving. They drove, without stopping, to Marble Canyon where they visited Violet's sister Mona Ned. Peterson says that during this trip everyone was drinking either beer or rum in the truck. The rum bottle was being passed around and he thought that each of them had a beer. They stayed at Mona Ned's home for 15 - 20 minutes and Peterson said they drank some beer there. They then drove back to the Pavilion Indian Reserve to Violet Ned's home. Peterson said they went into the house where they may have had a beer. All of the driving to this time had been done by Peterson, except for the approximate one-block of driving done by Nelson in Lillooet and the small amount of driving done by Mountain in Lillooet before they left for Marble Canyon. [4] In Peterson's opinion, all of the occupants of the truck were drunk. Peterson said that he suggested to Nelson and the others that they remain at Violet Ned's residence and return to Lillooet the next day. Nelson, Gina Ned and Jarrod Mountain decided to leave. Peterson and Violet Ned remained in Violet's home for the night. [5] Peterson said that Nelson had first wanted to drive the vehicle back to Lillooet, and then Mountain said he wanted to drive the vehicle back to Lillooet, and then they were gone. [6] Gina Ned said that when they left Violet Ned's residence to return to Lillooet that night, that Nelson was driving, she was sitting in the middle of the front seat, and Mountain was sitting on her right. She thought that Nelson seemed his normal usual self, but his driving scared her. He was speeding. She closed her eyes just before he lost control of the truck and the next thing she recalled was that the truck had come to rest under the road overpass beside the railway line near the Pavilion School. No one was wearing seatbelts. Nelson and Gina Ned were thrown out of the vehicle. The vehicle came to rest on its passenger side. Mountain was still in the vehicle lying beside the passenger seat and on the inside of the passenger door. All three of them were injured in this accident. The most serious injury was suffered by Nelson, that being a head injury. He recalled nothing from about the time they had left Lillooet that afternoon. Gina Ned received $33,000 from I.C.B.C. for her injuries, and Mountain received $9,000 for his injuries. Gina Ned said that as they were leaving the Pavilion Indian Reserve that Mountain asked Nelson if he could drive. She says Nelson's response was that he could not and that Nelson laughed when giving this response. [7] Jarrod Mountain said that he probably had three or four beers before they left Lillooet for the Pavilion Indian Reserve. He said that "just about" all of the vehicle's occupants were drinking beer on the drive to Pavilion. He thought that they first went to Violet Ned's place at Pavilion, then to Mona Ned's place at Marble Canyon, and then back to Violet's place at Pavilion. He said that he and Gina Ned and Nelson then left Violet's place. Gina Ned was sitting in the back seat. Once they got on to the highway, he described Nelson's driving as "kind of fast", that is, faster than the speed limit. As they approached the highway overpass, Mountain described the truck as sliding sideways and backwards and then going off the road. The next thing he remembers is waking up in the ambulance. He described himself as being drunk but said he knew what was going on. He suffered a broken collarbone and cuts and bruises, but denied driving the truck that day except for a short distance in Lillooet earlier that afternoon. [8] The crash was heard by a member of Adele Louie's family. They were living in a house from which you could see the accident scene. She and her daughter Amanda and her common-law husband, Ole Flostrand, immediately drove to the accident scene. Adele described Gina as screaming and obviously hurt. They took Gina to their vehicle where she would be warm. Adele and Amanda say that Gina then told them that Mountain was driving the truck but that she was going to say that the accused was driving. When Amanda and Adele were at the truck, Amanda asked Mountain who had been driving. Both Adele and Amanda say that his response was that he, Mountain, was driving. Within minutes of that Mr. Flostrand says that he was told by Adele and Amanda that they had spoken with Mountain while he was still in the truck and Mountain had told them that he was the driver. That hearsay evidence from Mr. Flostrand was admitted at trial, not as proof that Mountain had made that statement, but rather to rebut the theory of recent fabrication by Adele and Amanda which theory was open to the Crown on the evidence. Flostrand says that he was told this by Adele and Amanda when they were in his vehicle and later in their house. Flostrand also said that he heard Gina Ned tell Adele and Amanda that Mountain was the driver. [9] Both Mountain and Gina Ned deny having said that Mountain was the driver. Mountain, as I have said, denied that he drove the truck that day other than in the town of Lillooet. [10] Adele Louie also said that since the accident she has had problems with Gina Ned. On one occasion Gina threw a beer bottle at her, which struck her on the back, in front of the Reynolds Hotel in Lillooet and told her that she and Amanda had better not give evidence for the accused Nelson. On a later occasion Adele describes Gina as having threatened her with a knife in front of the post office in Lillooet. She says that was approximately two weeks ago. She describes Gina as having pulled out a pocketknife and then telling her "not to witness against her and Jarrod Mountain". [11] Amanda Louie, the 20-year old daughter of Adele, described having had "problems with Gina Ned" as well. She said that on one occasion in Lillooet that Gina wanted to fight with her, that "she came after me and asked me not to witness for" Nelson. She described herself as being present as well when Gina threw the beer bottle at her mother in front of the Reynolds Hotel, at which time she said Gina had said, "she couldn't believe that we were witnessing for" Nelson. She also said that she was present when Gina pulled out a knife in front of her mother at the post office a short while ago. Gina Ned denies all of these incidents. [12] I must say that I have some difficulty with Amanda's evidence. She became angry with Crown counsel in cross-examination, which I thought was inappropriate in the circumstances. She expressed a strong dislike for the police, although the reason for that was not disclosed. [13] Claude Peterson also told the court that he was in the bar of the Reynolds Hotel in Lillooet approximately six weeks after this accident and overheard Mr. Mountain talking about this accident in an adjoining booth. Peterson said it was clear to him that he was talking about this accident because he overheard Mountain say that he had broken his collarbone in the accident and Peterson had understood that that was an injury Mountain suffered in the accident. Peterson said that he overheard Mountain say that he was driving at the time of the accident and should not have been, but later he heard Mountain say that he was not driving when the accident occurred. Mountain was asked about this evidence of Peterson. Mountain denied that he was the driver and denied that he had made that statement. [14] There is much about the evidence as to who was driving which was in conflict. I must apply the rule as to proof beyond a reasonable doubt as was set out in R. v. W(D) (1991), 2 S.C.R. 742. One of the instructions set forth in W(D) is that, if after a careful consideration of the evidence, the court is unable to decide whom to believe, it must acquit. After a review of the defence evidence and in the context of all the evidence, I am satisfied that there is a reasonable doubt as to whether Nelson was the driver. That being so, the indictment must be dismissed on all counts. "R.B. Hunter, J." The Honourable Mr. Justice R.B. Hunter