R. v. McAndrew

2004BCSC0068 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. McAndrew, 2004 BCSC 68 Date: 20040120 Docket: 71333-2 Registry: Kamloops Between: Regina And Kyle Scott Keith McAndrew Before: The Honourable Madam Justice D. Smith Reasons for Judgment Counsel for the Crown: L. Fisher Counsel for the Defence: A. Watt Date and Place of Trial: December 8-11, 15-17, 2003 January 6, 2004 Kamloops, B.C. Introduction [1] Kyle Scott McAndrew was charged on a six count indictment with dangerous driving causing death, impaired driving causing death, leaving the scene of an accident, and three counts of obstruction of justice. [2] The Crown conceded there was insufficient evidence to establish beyond a reasonable doubt the offence of impaired driving causing death and a not guilty verdict was entered on that count. The Crown also conceded that not guilty verdicts should be entered on two of three charges for obstruction of justice. Those counts involved allegations that Mr. McAndrew attempted to influence or bribe friends to whose house he ran after the accident. Based on their testimony the allegations were not substantiated. [3] At the conclusion of the evidence, Mr. McAndrew admitted the offence of leaving the scene of the accident and a guilty verdict was entered on that count. [4] The remaining two counts to be determined are the charge of dangerous driving causing death and a single charge of obstruction of justice. Background facts [5] The circumstances of the alleged offences arise out of a tragic incident on February 12, 2002, in which a 19-year-old woman was killed in a single motor vehicle accident. The accident occurred at the intersection of Tranquille Road and Ord Road near the airport in Kamloops ("the intersection"). Mr. McAndrew was the driver of a small pick-up truck. The young woman who died in the accident was his passenger. [6] The accident occurred at about 5:00 a.m. There was little traffic on the road at the time. Although still dark, road conditions and visibility were good. [7] Between 12:00 a.m. and 2:00 a.m. that morning Mr. McAndrew had attended at a local bar. While at the bar he had two or three one-ounce drinks. He left the bar at about 2:00 a.m. The bartender, a man of some 12 years experience, described Mr. McAndrew as a quiet customer who was sober and coherent when he left. [8] At about 1:00 a.m. the young woman came into the bar. The bartender described her as grossly intoxicated and appearing high on something. A post-mortem toxicology report determined that her blood alcohol level at the time of her death was well above the legal limit. The bartender asked her to leave when she was unable to produce identification. About five minutes later she left but returned before closing. She approached Mr. McAndrew and struck up a conversation with him. Together, they left the bar at about 2:00 a.m. [9] They were next seen by a truck driver at about 3:30 a.m. some 3.5 kilometres up Red Lake Road. This is a radio-controlled road which is accessed from the western end of Tranquille Road. It is frequented by truck drivers hauling logs from a loading dock located 35 kilometres from the base of the road. On the morning of the accident Red Lake Road was very slippery. [10] A truck driver hauling a load of logs down Red Lake Road came across Mr. McAndrew's vehicle stalled in a shallow ditch at the side of the road. He was unable to assist Mr. McAndrew as he did not have an extra wrapper. He radioed to the truck driver behind him who did have one and was able to pull Mr. McAndrew's vehicle from the ditch. The young woman thanked the second truck driver and gave him a hug for his efforts. He said he smelled alcohol on her breath. Neither truck driver reported any signs of intoxication or impairment on Mr. McAndrew. [11] At about 5:00 a.m. an airport employee on the way to work came across Mr. McAndrew's abandoned vehicle on the east side of Tranquille Road, just south of the intersection. It was apparent the vehicle had been in an accident. Upon closer inspection he saw a female lying on the ground beside the passenger side of the truck. He determined she was deceased and immediately called 911. A few minutes later a fellow employee stopped as did two local doctors en route to the airport. One of the doctors confirmed the young woman was recently deceased. [12] The airport employee did not see anyone in the immediate vicinity of the truck. However, he noticed an individual, who was later identified as Mr. McAndrew, running through a field away from the accident scene. Later that morning a police dog unit tracked Mr. McAndrew's scent from the accident scene, across the field, to a location close to where Mr. McAndrew resided with his mother. [13] A couple who were friends of Mr. McAndrew lived a few blocks from Mr. McAndrew's residence. About an hour after the accident Mr. McAndrew knocked on their front door. They described his appearance as dishevelled, messy and dirty. His hands and clothes were covered in blood and he had marks on his face. He was very distraught. The husband said Mr. McAndrew kept repeating that his passenger had grabbed the wheel from him, that the road had been changed, and that there was now a mound of dirt where the road had previously gone straight through. [14] Mr. McAndrew told the husband he thought the young woman with him had been killed in the accident. He said that after the accident, when he held her in his arms, he had a feeling of emptiness. [15] The husband's evidence in regard to Mr. McAndrew's alleged impairment was based largely on assumptions and hearsay evidence. His credibility was impeached on cross-examination and contributed to the Crown conceding that the evidence could not support a conviction against Mr. McAndrew for impaired driving causing death. [16] The husband said he tried to comfort Mr. McAndrew who was very upset. He took him upstairs so that he could wash the blood off his hands. He gave him a glass of water to drink and an apple to eat. He offered him a set of clean clothes to replace his soiled and ripped clothing. He dropped Mr. McAndrew's clothes into the laundry basket. Later that day his wife washed the clothes and returned them to Mr. McAndrew the following week. The husband arranged for Mr. McAndrew to have a short nap on the couch in their basement. He then convinced Mr. McAndrew to go with him downtown in order to speak with a lawyer and turn himself in to the police. [17] The lawyer's office was not open when they arrived so they waited at a nearby park. Their conversation was dominated by Mr. McAndrew's account of the accident. Mr. McAndrew told the husband he was out having a good time that night, had picked up this girl at a bar, they went somewhere to fool around, and suddenly there was an accident. He said he was scared about what had happened and ran until he reached their house. [18] After consulting with the lawyer Mr. McAndrew turned himself in at the police station at 10:35 a.m. that morning. He was arrested for dangerous driving causing death and leaving the scene of an accident. Later that day he was released from custody. [19] On March 13, 2002, the police executed a search warrant at Mr. McAndrew's residence. They seized a leather jacket. Mr. McAndrew told the police that the blood on the seized jacket had nothing to do with the accident but came from an incident two years earlier when he had been assaulted. The assault incident he referred to was corroborated by a subsequent search of police files, which established that Mr. McAndrew had been wearing the jacket on that earlier occasion. [20] During the execution of the warrant Mr. McAndrew asked the police officer why they were seizing the jacket. The officer testified: I explained to Kyle that we were there to seize the clothing that he had been wearing the night of the accident. He replied that we already had all the clothing that he was wearing and I replied, "No, we have the clothing you were wearing when you turned yourselves (sic) in. We want the clothing you were wearing that night. [21] The officer did not testify what, if any, reply Mr. McAndrew made to these comments. The accident scene [22] The accident occurred at the intersection of Ord Road and Tranquille Road. The intersection had been changed before the accident because of its non-standard design and limited sight distances. A section of Ord Road was also upgraded. Work had started in August, 2001, and was completed in September, 2001. The reconfigured intersection was activated on September 14, 2001. [23] Ord Road travels in an east-west direction with a posted speed limit of 50 kph. South of Ord Road is the CN railroad tracks which also run in an east-west direction, generally parallel to Ord Road. [24] At its most westerly point, north of the railroad tracks, Ord Road curves to the left at a 90 degree angle, changing to a north-south direction. Travelling west on Ord Road there is a posted speed advisory of 20 kph in advance of this curve. South of the curve there is no posted speed sign and the speed limit defaults to 50 kph. [25] In the vicinity of the accident site, Tranquille Road travels in a north-south direction. South of the railroad tracks it curves to the west, at a 90 degree angle, and changes to an east-west direction. It continues in a westerly direction, generally parallel to the railroad tracks. Tranquille Road intersects with Ord Road where it curves to the west and changes from a north-south to an east-west direction. [26] Before September, 2001, the section of Ord Road south of the 90 degree curve was narrow and uneven. It crossed the railroad tracks, dipped, and ended at a stop sign. At some earlier time the stop sign had replaced a yield sign. The north-south section of Ord Road was called Farm Road. [27] Before the road changes, Tranquille Road had intersected with Farm Road at two locations. Vehicles travelling south on Farm Road accessed the north-south section of Tranquille Road by continuing straight through from the stop sign; they accessed the east-west section of Tranquille Road by making a 90 degree right-hand turn from the stop sign. [28] The reconfigured intersection changed the approach to, and angle of, the intersection. Farm Road was renamed and became the north-south continuation of Ord Road. Vehicles travelling south on Ord Road now approached both the north-south and east-west sections of Tranquille Road from a single 45 degree curve to the west, which intersected with Tranquille Road at a stop sign. There, traffic could turn right to travel west on Tranquille Road or left to travel south on Tranquille Road. [29] The north-south section of Ord Road (the old Farm Road) was upgraded by widening the road and adding shoulders. The dip in the road south of the railroad tracks was levelled and the road was divided by a set of double solid lines. [30] Two berms or dirt mounds were positioned where the sections of Farm Road, that had accessed the east-west and north-south sections of Tranquille Road, had been cut off by the reconfigured intersection. The berms were built on the east and north sides of Tranquille Road. They were quite high and had a 31 degree grade on their slopes. They were to act as visual obstructions for southbound and westbound traffic. In particular, the berm installed on the east side of Tranquille Road was to be a visual obstruction for southbound Ord Road traffic. The berms were difficult to see as they blended in with the dirt shoulder. [31] Around the end of October, 2001, the City of Kamloops received a complaint from a member of the public about the new intersection. As a result of that complaint a site review was conducted and a number of changes recommended. [32] The proposed changes included the addition of concrete, no-post guard rails ("no-posts") along the east and north side of Tranquille Road at the reconfigured intersection. The no-posts were to run parallel to the direction of travel and protect vehicles from veering off the road. [33] The no-posts installed along the east side of Tranquille Road did not block the old access to the north-south section of Tranquille Road. It was believed that extending them that far north would make them perpendicular to the southbound traffic on Ord Road, which might create more of a hazard for vehicles hitting them. This design created an opening for southbound Ord Road traffic to drive straight off onto the old access to the north-south section of Tranquille Road, where the berm was now located. Landscaping of the two berms was recommended to make them more visible. [34] Artificial lighting aligned the west side of Ord Road and the east side of Tranquille Road. Additional lighting was recommended around the no-posts in order to better illuminate the reconfigured right-hand curve and intersection. Also recommended were street sweeping and signage indicating a right-hand curve for southbound Ord Road traffic. [35] At the time of the accident some, but not all, of the recommended changes had been completed. The no-posts had been installed and the area had been swept. However, neither the additional street lighting nor the signage indicating a right-hand curve for southbound Ord Road traffic had been installed. As well, the berms had not been landscaped because of the lateness of the season. The accident [36] There were no witnesses to the accident. Constable Poitras, a 13 year veteran of the R.C.M.P., with expertise in accident reconstruction, was tasked to conduct an analysis of the accident and prepare a written report outlining his opinion as to how the accident occurred. [37] He determined that Mr. McAndrew's vehicle had been driving south on Ord Road at a constant speed of 53 kph. The vehicle had driven around the 90 degree left-hand curve on Ord Road where the road changes from an east-west to a north-south direction. Travelling south on Ord Road the vehicle crossed the railroad tracks and the double solid lines. As it approached the reconfigured curve to the right it continued straight off of Ord Road and onto the frozen shoulder of the road. It continued up the berm. Tire marks ran from the bottom to the top of the berm where they vanished. At that point the vehicle became air-borne at a speed of 50 kph. It vaulted over the berm and landed nose first, at a speed of 31 kph, onto the no-posts positioned on the east side of Tranquille Road. It slid nose first along the no-posts colliding with a sign at the end of the guard rails. It fell off the no-posts with the rear of the vehicle rotating in a counter clockwise direction on its lateral axis and pointing in a northerly direction. It landed on the north shoulder of Tranquille Road where it rolled onto the passenger side, then onto the driver's side, and continued its rotation from the driver's side onto its wheels. It came to rest on the shoulder facing north. [38] The young woman was a front seat passenger in the vehicle and was unrestrained. When the vehicle was air-borne and hit the no-posts she was forced forward and to the right, towards the right front corner of the vehicle. As the vehicle collided with the no-posts her knee came into contact with the dash directly in front of the passenger seat breaking her kneecap. She was thrust into the "A" pillar, a metal support connecting the windshield with the passenger door. The impact fractured her skull. There was no evidence she was thrown from the vehicle as the passenger door was still latched. In Cst. Poitras' opinion she was pulled from the vehicle after it came to rest. [39] Dr. McNaughton, the pathologist who conducted the autopsy, agreed the young woman was not wearing a seatbelt when the accident occurred. He concluded that she suffered massive skull fractures when her head hit the "A" pillar of the vehicle; that the fractures caused significant bleeding into and around the brain which rendered her unconscious; and, that her head came to rest on the passenger door armrest. Death ensued within minutes. In his opinion, the marks on her torso were consistent with her body having been dragged over broken glass and the uneven surface of the ground. [40] It was Cst. Poitras' opinion that driver inattention was the major cause of the accident. This conclusion was based on Mr. McAndrew's apparent failure to perceive the right-hand curve to the west on Ord Road and his continued driving straight off of Ord Road onto the shoulder of what had been the old access road to the north-south section of Tranquille Road. [41] Cst. Poitras also noted in his report that "Artificial lighting on the west side of Ord Road and the east side of Tranquille Road may have given the impression that the roadway was straight for southbound Ord Road traffic" (page 14). He agreed that it was possible for a driver to perceive the road continued on straight rather than curving to the right. He found no evidence of steering having been employed as an evasive manoeuvre or indeed any evasive manoeuvre before the vehicle started up the berm. In his opinion, the tire marks on the north slope of the berm were suggestive of braking. He dismissed the possibility that they were suggestive of acceleration as there was no evidence that Mr. McAndrew had deliberately driven up the berm. That theory, in his view, would have been an unreasonable assumption in the circumstances. [42] In Cst. Poitras' view the lack of signage of a right-hand curve for southbound traffic, as well as the lack of artificial lighting on the no-posts, were minor contributing factors to the accident. [43] Cst. Poitras' opinion that driver inattention was the major cause of the accident was premised on three time-distance scenarios he constructed. The scenarios were based on three stimuli on the road that in his opinion should have alerted Mr. McAndrew to changes in the road: the railroad tracks, the double solid lines, and the change in road surface when Mr. McAndrew's vehicle left the asphalt pavement. The scenarios were also based on a number of assumptions which were not challenged: (i) that Mr. McAndrew was travelling at a constant speed of 53 kph; (ii) that Mr. McAndrew had a standard perception-reaction time of 1.5 seconds; iii) that the braking efficiency for Mr. McAndrew's vehicle was 80%; and, (iv) that Mr McAndrew's headlights were operational. [44] In the first scenario Cst. Poitras hypothesized that had Mr. McAndrew braked when he crossed the railroad tracks he would have been able to stop his vehicle before reaching the frozen shoulder where the old road had travelled. If he had been driving the old road at 54 kph his vehicle would have been air-borne when crossing the railway tracks because of the dip in the road. At an actual speed of 53 kph he would have been projected forward. Therefore, the officer reasoned, because the railroad crossing on the upgraded road was more level than the old road, Mr. McAndrew should have noticed the smoother crossing although going over the tracks would still have been bumpy. The bumpiness of the crossing in Cst. Poitras' opinion should have alerted Mr. McAndrew to the road and its changes. Cst. Poitras agreed there was no evidence of bad driving over the railroad tracks. [45] In the second scenario Cst. Poitras hypothesized that had Mr. McAndrew braked upon crossing the visible double solid lines, a short distance past the railroad crossing, he would have been able to stop his vehicle by the time it reached the top of the berm. In his opinion, Mr. McAndrew should have noticed the double solid lines on the road and had he done so they would have alerted him to the changes in the road. He calculated the driving time from the railroad tracks to the double solid lines at .96 of a second. He also agreed that a person believing the road continued straight could have failed to notice the double solid lines if he had been momentarily distracted. [46] In the third scenario Cst. Poitras hypothesized that had Mr. McAndrew braked when he drove off the asphalt pavement onto the shoulder of the road, Mr. McAndrew's vehicle would still have become air-borne and vaulted off the top of the berm, but at a slower speed of 31 kph, which would have caused it to slide into the no-posts but not hit them head on in a nose dive. In his opinion, the change in road surface should have alerted Mr. McAndrew to the changes in the road and caused him to take evasive action at that point. While an accident would still have resulted with the vehicle hitting the no-posts, it would have been a minor one. Cst. Poitras calculated the driving time from the double solid lines to the edge of the pavement at .81 of a second. There, the paved road changed to a gravel shoulder and then a dirt shoulder. Cst. Poitras agreed that Mr. McAndrew might not have noticed the difference from the paved road to the gravel shoulder because the gravel surface was smooth and fairly level to the asphalt. However, in his view Mr. McAndrew should have noticed the change from the gravel to the dirt shoulder. [47] A fourth scenario was put to Cst. Poitras on cross-examination. He was asked to calculate a time-distance scenario that placed Mr. McAndrew's perception-reaction at a point 1.5 seconds before the first tire mark on the berm. That point approximated where the shoulder of the road changed from gravel to dirt. The difference in time between a perception-reaction based on the third scenario and one based on the fourth scenario was calculated to be .33 of a second. In Cst. Poitras' opinion, if Mr. McAndrew had reacted to the change in the road when his vehicle reached the dirt shoulder he would not have been able to avoid the accident by using braking as the only evasive manoeuvre. [48] In summary, Cst. Poitras was of the view that Mr. McAndrew drove negligently when he failed to negotiate the curve to the west on Ord Road and continued driving straight between the railroad tracks and the edge of the paved road, a period he calculated at 1.77 seconds. In his opinion, he also drove negligently for .33 of a second, which is the driving time he calculated from the edge of the pavement to a point that approximated the change in the gravel to the dirt surface of the shoulder, or 1.5 seconds back of the first tire mark on the berm. During these 2.10 seconds of negligent driving, in Cst. Poitras' opinion, certain stimuli should have alerted Mr. McAndrew to the changes in the road. If Mr. McAndrew had taken appropriate evasive action that included braking or steering at those points in the road, the accident could have been avoided. However, the only evasive action Mr. McAndrew took was to brake when his vehicle hit the berm. While Mr. McAndrew might not have felt the change in the road surface from the asphalt pavement to the gravel shoulder, in Cst. Poitras' view Mr. McAndrew should have felt the change from the gravel to the dirt surface of the shoulder. Unfortunately, by that point the accident was unavoidable unless in .33 of a second Mr. McAndrew had chosen to steer away from the berm rather than brake. Discussion [49] The accident occurred when Mr. McAndrew failed to negotiate a 45 degree curve to the west, as he drove south on Ord Road after crossing the CN railroad tracks. This court must determine whether at law, in the circumstances of this case, that failure constitutes the criminal offence of dangerous driving. [50] The tragic consequences of this motor vehicle accident do not displace the duty of the court to consider matters in accordance with the law. See R. v. Sweeney (1992), 33 M.V.R. (2d) 1 (B.C.C.A.) at ¶26-28. Given the considerable publicity over this trial, in my view it is necessary to review some of the law that governs our criminal justice system. [51] The criminal law is governed by two fundamental principles: the presumption of innocence and proof beyond a reasonable doubt. [52] An accused person is presumed innocent until the trier of fact - which may be a judge alone or a jury - is satisfied beyond a reasonable doubt that he has committed the offence with which he is charged. The burden of proof rests with the prosecution throughout the trial to prove the guilt of the accused beyond a reasonable doubt. The accused has no obligation to prove he is not guilty and is under no obligation to explain the evidence offered by the Crown. The law presumes innocence until a body of evidence establishes the accused's guilt beyond a reasonable doubt. [53] The burden of proof beyond a reasonable doubt is linked to the presumption of innocence. The presumption of innocence means that no person may be found guilty of an offence until the Crown proves each and every element of that offence beyond a reasonable doubt. Proof that an accused is probably guilty is not sufficient although proof beyond any doubt or proof to an absolute certainty is not required. A reasonable doubt is a doubt based upon reason and common sense. It is not an imaginary or frivolous doubt but is logically connected to the evidence or absence of evidence. [54] I wish also to speak briefly about the role of an expert witness. Witnesses that are qualified as expert witnesses are allowed to give their opinions about a matter in the area of their expertise. Their opinions are offered to provide assistance to the court on matters that are outside the ordinary experience of the court. The parameters of their role was summarized by Madam Justice Newbury (as she then was) in R. v. Yewdale (1995), 3 B.C.L.R. (3d) 240 (S.C.) at ¶4: Given the special privilege accorded to experts to testify as to their opinions, they must not become advocates. They must express their opinions as opinions and must leave for the court the required conclusions of law. In theory at least, the court "knows the law" - in practise it has the responsibility of finding and applying it. Thus the expert should express his or her opinion in an objective and impartial manner, and must not present argument in the guise of expert evidence. [55] Lastly, proof of a criminal offence requires not only proof of the actus reas or the criminal act, but also the mens rea or the intent to commit the criminal act. [56] The Criminal Code defines the act of dangerous driving as driving a motor vehicle "in a manner that is 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 mens rea requirement for dangerous driving was outlined in the seminal decision of R. v. Hundal, [1993] 1 S.C.R. 867. At ¶30 the court described it as " a marked departure from the standard of care that a reasonable person would observe in the accused's situation." [57] This is a modified objective test which the Supreme Court of Canada applied in Hundal for the offence of dangerous driving. It did so by adopting the mens rea requirement as described in the earlier Supreme Court of Canada decision in R. v. Tutton, [1989] 1 S.C.R. 1392 at ¶45: The application of an objective test may not be made in a vacuum. Events occur within the framework of other events and actions and when deciding on the nature of the questioned conduct, surrounding circumstances must be considered. The decision must be made on a consideration of the facts existing at the time and in relation to the accused's perception of those facts. Since the test is objective, the accused's perception of the facts is not to be considered for the purpose of assessing malice or intention on the accused's part but only to form a basis for a conclusion as to whether or not the accused's conduct, in view of his perception of the facts, was reasonable . If an accused has an honest and reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the reasonableness of his conduct. For example, a welder who is engaged to work in a confined space believing on the assurance of the owner of the premises that no combustible or explosive material is stored nearby, should be entitled to have his perception, as to the presence or absence of dangerous materials, before the jury on a charge of manslaughter when his welding torch causes an explosion and a consequent death. [58] If the driving of an accused, when viewed objectively, is found to be dangerous, the court must then consider any explanation offered by the accused for his driving. As noted in Hundal at ¶33, " 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 test of the standard of care of a reasonable person becomes modified by the requirement that it must be applied in the context of all of the circumstances surrounding the incident. A reasonable doubt as to the mens rea of dangerous driving may arise if the belief of an accused as to the circumstances in which the driving occurred was honest and reasonable. [59] This defence recognizes the distinction between the civil standard of negligence where the objective test alone is sufficient to establish liability for an accident, and the criminal standard for dangerous driving that requires an examination of the accused's driving in the context of the circumstances understood by the accused, provided that understanding was reasonable. This was succinctly stated in Hundal at ¶24: Thus, it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accused subjectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care. It is not overly difficult to determine when a driver has fallen markedly below the acceptable standard of care. There can be no doubt that the concept of negligence is well understood and readily recognised by most Canadians. Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code. [60] Shortly after Hundal, the Supreme Court of Canada revisited the issue of the mens rea for criminal negligence. In R. v. Creighton, [1993] 3 S.C.R. 3, at ¶113, the court stated: However, as stated in Martineau, it is appropriate that those who cause harm intentionally should be punished more severely than those who cause harm inadvertently. Moreover, the constitutionality of crimes of negligence is also subject to the caveat that acts of ordinary negligence may not suffice to justify imprisonment: R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Sansregret, [1985] 1 S.C.R. 570. To put it in the terms used in Hundal, the negligence must constitute a "marked departure" from the standard of the reasonable person. The law does not lightly brand a person as a criminal. Application of the law to the facts (a) Dangerous driving causing death [61] The Crown submits that Mr. McAndrew did not meet the standard of care of a prudent driver when he failed to notice the curve to the west created by the upgrade of Ord Road and the reconfigured intersection, and drove straight off onto the frozen shoulder of the road and up the berm. Based on Cst. Poitras' time-distance scenarios, Crown counsel submits that Mr. McAndrew should have become aware of the changes to the road in at least three places: the railroad tracks, the double solid lines and the change in the road surface when his vehicle left the asphalt pavement. Had he taken appropriate evasive action at any of those points in the road, Mr. McAndrew could have avoided the accident that took the life of the young woman. He could also have avoided the accident as late as when his vehicle hit the dirt shoulder of the road, if he had steered away from the berm rather than braked. [62] The Crown relies on Mr. McAndrew's inadvertence in failing to notice the right-hand curve in the road as determinative of the mens rea requirement that his driving constituted a marked departure from the standard of care of a reasonable driver. In the absence of any explanation for Mr. McAndrew's negligent driving such an inference could reasonably be drawn. There is no doubt that his failure to notice the curve in the road meets the civil standard of negligence as well as the standard of careless driving under the provincial Motor Vehicle Act. However, in the criminal context the court must examine the explanation provided by Mr. McAndrew for his inadvertence in order to determine if the mens rea requirement for the offence has been established beyond a reasonable doubt. [63] Mr. McAndrew's explanation is found in the evidence of the husband. After arriving at his friend's house in a distraught state, Mr. McAndrew told the husband that he had not realized the road had been changed and a berm installed on the straight through portion of the old road. This explanation is supported by the lack of evidence of any evasive manoeuvre before the berm and by Mr. McAndrew's calculated constant rate of speed of 53 kph. Both factors suggest that Mr. McAndrew believed he was on the old road. His only evasive action was to brake when his vehicle hit the berm. [64] The court must next assess the reasonableness of Mr. McAndrew's explanation for his inadvertence. Cst. Poitras conceded that the lack of artificial lighting on the west side of Ord Road and the lack of signage for the right-hand curve, might have given the impression that the road continued on straight for southbound Ord Road traffic rather than curving to the right. This perception, in his view, was reasonably possible given the time of day, the lack of lighting and signage, and the recent reconfiguration of the road. While Mr. McAndrew's failure to notice the curve in the road was negligent, his belief that he was driving the old road instead of the new road was one that could reasonably exist in the particular circumstances of this accident. [65] The reasonableness of Mr. McAndrew's belief is critical to determining whether the mens rea for the offence of dangerous driving has been established beyond a reasonable doubt. If his belief was reasonably possible in the circumstances, the modified objective test requires the court to examine the manner of Mr. McAndrew's driving in the context of how he perceived the road to be. The court must assess whether his driving in that context was a marked departure from the standard of care of a reasonable driver. [66] The manner of Mr. McAndrew's driving on what he thought was a straight through road cannot be said to have been objectively dangerous. He drove over the railroad tracks in a controlled manner. He was not speeding. There was no evidence that alcohol was a contributing factor to the accident. Although he crossed the double solid lines, that infraction did not pose any danger as there was little if any traffic on the road at the early hour of the morning. Cst. Poitras acknowledged that a momentary lapse might cause a driver to miss seeing the double solid lines. He also acknowledged that Mr. McAndrew might not have noticed the change from the paved road to the gravel shoulder. [67] Accepting that Mr. McAndrew missed the curve in the road because he believed the road continued straight, in Cst. Poitras' view Mr. McAndrew's manner of driving did not meet the standard of care of a reasonable driver when he failed to take the appropriate evasive action upon reaching the dirt shoulder. In his view, Mr. McAndrew could have avoided the accident if at that point he had steered away from the berm rather than braked. [68] I have concluded, however, that having reached the dirt shoulder before realizing the road had been changed, Mr. McAndrew's momentary lapse of judgement within .33 of a second does not meet the criminal standard of recklessness required to establish the offence of dangerous driving beyond a reasonable doubt. While his inadvertence or negligence caused him to miss the curve, that inadvertence was reasonably possible in the circumstances of the reconfigured intersection. The manner of his driving was not objectively dangerous except for his split second decision to brake rather than steer away from the berm when he finally saw it. In these circumstances, I am unable to conclude beyond a reasonable doubt that Mr. McAndrew's driving constituted a marked departure from the standard of care of a reasonable driver when viewed in the context of how he perceived the road to be and in his instantaneous reaction upon being faced with the impending danger of the berm. Accordingly, Mr. McAndrew must be acquitted of this count in the indictment. (b) Obstruction of justice count [69] The remaining count of obstruction of justice relates to the washing of the clothes worn by Mr. McAndrew on the night of the accident. The Crown alleges that Mr. McAndrew intentionally caused those clothes to be washed in order to dispose of any potential evidence. [70] The Crown acknowledges the wife's evidence does not support such an allegation beyond a reasonable doubt. The evidence indicates that it was the husband's idea for Mr. McAndrew to change his clothes and the wife, not appreciating the significance of that evidence, acted out of kindness and washed his clothes. [71] Instead, the Crown relies on the evidence of the police officer who executed the search warrant. Counsel submits that after the police explained to Mr. McAndrew they were there to seize the clothing he had been wearing the night of the accident, Mr. McAndrew responded by telling the officer they already had all of the clothing he had been wearing that night. Based on that alleged representation, the Crown submits that Mr. McAndrew intentionally misled the police with respect to the evidence. [72] However, a careful examination of a transcript of the officer's testimony does not support the Crown's submission that Mr. McAndrew made such a representation. When the officer explained to Mr. McAndrew that they were there to seize the clothing he had been wearing the night of the accident there is no evidence that Mr. McAndrew responded in the manner suggested, if indeed he responded at all. The only representation made by Mr. McAndrew regarding the jacket seized was that he had worn it during an earlier assault incident which was how some blood came to be on it. When that representation was investigated by the police, it proved to be accurate. [73] In my view, the suggested evidence relied upon by the Crown to establish the charge of obstruction of justice does not exist and therefore the Crown has failed to prove beyond a reasonable doubt the offence as alleged. Accordingly, Mr. McAndrew is acquitted on that count. [74] In the result, Mr. McAndrew is convicted of one count of leaving the scene of the accident. "D.M. Smith, J." The Honourable Madam Justice D.M. Smith January 21, 2004 - Corrigendum to the Reasons for Judgment issued by Madam Justice D.M. Smith advising that in paragraph 65, I refer to "Mr. Andrew's belief" and that should read "Mr. McAndrew's belief".