R. v. Basra

2015 BCSC 1075 R. v. Basra IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Basra, 2015 BCSC 1075 Date: 20150529 Docket: X077691-2 Registry: New Westminster Regina v. Jagjit Singh Basra Before: The Honourable Mr. Justice F.E. Verhoeven Oral Reasons for Judgment Counsel for the Crown: D.K. Simpkin Counsel for the Accused: D.H. Albert Place and Dates of Trial: New Westminster, B.C. April 27- 29 and May 1, 2015 Place and Date of Judgment: New Westminster, B.C. May 29, 2015 I. introduction [1] The accused, Mr. Jagjit Singh Basra, is charged with what is commonly called a "hit-and-run." Specifically, he is charged under ss. 252(1) and (1.3) of the Criminal Code, R.S.C. 1985, c. C-46 [Code] with failing to stop his vehicle, offer assistance, and give his name and address after a motor vehicle accident that caused the death of Shamus Travis William MacKay on September 4, 2010 in Surrey, British Columbia. [2] The Crown does not contend that Mr. Basra actually knew that the vehicle he was driving was involved in an accident causing Mr. MacKay's death. However, the Crown alleges that Mr. Basra was wilfully blind to the fact that the vehicle he drove was involved in an accident with Mr. MacKay. The Crown alleges that Mr. Basra was also wilfully blind to the bodily harm that resulted from the accident, and reckless as to whether Mr. MacKay's death resulted from the bodily harm. [3] At the time of the collision, Mr. Basra's driver's licence was suspended pursuant to the British Columbia Motor Vehicle Act, R.S.B.C. 1996, c. 318. He was aware that his licence was suspended. The Crown's Indictment charges that Mr. Basra failed to comply with his obligations under the Code with intent to escape civil or criminal liability. In submissions, the Crown refers specifically to liability arising out of driving without a valid licence. [4] The Crown does not allege that Mr. Basra saw or ought to have seen Mr. MacKay before the accident. There is no evidence that Mr. Basra was at fault in any way for causing the accident. Tragically, it appears that Mr. MacKay may have been attempting to commit suicide. II. factual overview [5] At approximately 12:46 a.m. on Saturday, September 4, 2010, Mr. MacKay died as a result of injuries sustained in a collision with a vehicle, a 2008 Volkswagen City Jetta, being driven by Mr. Basra. The vehicle's owner was Ms. Parveen K. Bains, who was Mr. Basra's passenger at the time of the collision. Mr. Basra and Ms. Bains had been dating each other for several months and had a boyfriend/girlfriend relationship. [6] The accident occurred on Fraser Highway in Surrey, British Columbia, just east of the intersection of Fraser Highway and 168th Street. [7] Mr. Basra and Ms. Bains had been out on a date that evening. She resided with her parents in Burnaby, while he resided with his parents in Surrey, well west of the accident location. Ms. Bains picked up Mr. Basra from his home in her car. They proceeded to Burnaby Lake to go paddle boating. Afterwards, they had dinner at a restaurant, and then went to Langley to look at some tile products at a store owned by a friend of Mr. Basra. Mr. Basra was in the tile business and Ms. Bains was an interior designer, so they had a common interest in respect of tiles. Ms. Bains drove. [8] They left the tile store in Langley at 10:30 or 11:00 p.m. They went for coffee at a Tim Horton's restaurant in Langley, north of the tile store. They intended to proceed to Mr. Basra's home. After leaving the coffee shop, they proceeded westbound on 88th Avenue towards Surrey. [9] Mr. Basra and Ms. Bains testified that as they proceeded towards Mr. Basra's home, while driving, Ms. Bains began experiencing chest pains, a condition she had suffered from previously. Ms. Bains testified that she could not continue to drive the vehicle. Ms. Bains asked Mr. Basra to take over the driving and to take her home, rather than proceeding to Mr. Basra's residence. [10] Ms. Bains testified that she was unfamiliar with the area. Her testimony as to their route was vague, but she testified that she asked Mr. Basra to drive the car when they were in Surrey somewhere near Fraser Highway. Mr. Basra testified that Ms. Bains developed the chest pain problem while they were travelling westbound on 88th Avenue. Mr. Basra testified that he instructed Ms. Bains to turn left at 168th Street in order to begin to make their way to Burnaby via Fraser Highway, and Highway 1. Mr. Basra testified that Ms. Bains stopped the vehicle just north of the intersection of 168th Street and Fraser Highway, where Mr. Basra took over the driving. According to Mr. Basra, he then turned left at the intersection of 168th Street and Fraser Highway on a green light. He intended to proceed to 176th Street to go northbound to link up with Highway 1. They proceeded eastbound on Fraser Highway a short distance when the accident occurred. [11] I find that Mr. Basra took over driving the vehicle just north of the intersection of 168th Street and Fraser Highway and then proceeded eastbound on Fraser Highway as he testified. [12] Through his legal counsel, Mr. Basra formally admitted that he was aware that his licence was "suspended from driving a motor vehicle pursuant to the Motor Vehicle Act" at the material time. In his testimony at trial, he confirmed that he was aware that he was "prohibited from driving" at the material time. The precise details concerning Mr. Basra's licence including the reason for the suspension or prohibition are not in evidence. No submissions were made by counsel as to any distinction between driving while under suspension or driving while prohibited. In either case, Mr. Basra would be committing an offence under the Motor Vehicle Act and would be subject to sanctions. I conclude that the potential distinction between driving while his licence was suspended and driving while he was prohibited is not material to the case. [13] Mr. Basra testified that he had not told Ms. Bains that he was prohibited from driving. However, Ms. Bains testified that, as she put it, she "knew he did not physically have a licence but he was in the process of renewing it or getting a new one." She was not asked to elaborate on this ambiguous comment. At a minimum, then, Ms. Bains was aware that there was some kind of problem with Mr. Basra's licence when she asked him to drive her car. The information about his licence must have come to her from Mr. Basra, of course. [14] The collision between the Jetta driven by Mr. Basra and Mr. MacKay occurred in the eastbound travel portion of the roadway at a point approximately 56 metres east of the intersection of Fraser Highway and 168th Street. [15] Mr. Basra testified that he was travelling at a speed of approximately 55 km/h when the collision occurred. This is roughly consistent with the evidence of Ms. Bains. I find the vehicle was travelling at about 55 km/h as Mr. Basra testified. He was not speeding. He had not been drinking. [16] As Mr. Basra and Ms. Bains were proceeding eastbound on Fraser Highway, they both testified that they heard a "thud." Mr. Basra acknowledged in cross-examination that it was "a loud bang." They both testified that they saw nothing prior to the collision and did not see what hit the car. Each testified that immediately after the thud or bang, they saw a hole in the windshield. As I will explain, it was a large hole. [17] Mr. Basra testified that he looked over at Ms. Bains who was crying, and screaming. Both testified that they were in fear because they did not know what had happened, but thought that someone had thrown a rock through the windshield. Mr. Basra testified that he wanted to stop, but Ms. Bains did not want him to stop. She urged him to keep going. However, he proceeded only a very short distance when, according to Mr. Basra, Ms. Bains said that she wanted to drive the car. He stopped the vehicle about 15 or 20 seconds from the collision point, about 300 yards from that point. [18] Mr. Basra confirmed that Ms. Bains was uninjured. He confirmed that no rock had been thrown through the windshield. They both got out of the car in order to switch seats, so that Ms. Bains could drive. She testified that she was so frightened that she forgot about her chest pains. [19] It was dark in the area. Mr. Basra testified that he looked back up the roadway but saw nothing. He testified that he did not want to go back to the collision scene due to fear that someone had thrown a rock at the vehicle. Mr. Basra got into the passenger seat. Ms. Bains drove away, continuing eastbound on Fraser Highway. [20] Mr. MacKay's body had been thrown into the ditch along the side of Fraser Highway. Within moments of the collision, his body was seen in the ditch by Mr. Tim Szabo, who was a passenger in a vehicle being driven by his friend eastbound on Fraser Highway. He testified that he thought they were travelling at approximately the speed limit in the area, which was 60 km/h. [21] Mr. Szabo saw a reflection of eyes in the ditch about 15-20 feet away from the travelled portion of the road. He repeatedly told his friend to stop the car. His friend stopped. Mr. Szabo ran to the ditch and found Mr. MacKay. He pulled Mr. Mackay out of the ditch onto the gravel along the edge of the roadway area, and called 9-1-1. Mr. MacKay was obviously seriously injured. Emergency personnel arrived. He was pronounced dead at 1:21 a.m. The cause of death was determined to be blunt force trauma to the head. Based upon blood alcohol levels, he was heavily intoxicated when the collision occurred. [22] The windshield of Ms. Bains' vehicle was heavily damaged. Nonetheless, Ms. Bains and Mr. Basra continued driving, continuing eastbound on Fraser Highway and then proceeding northbound from Fraser Highway on 176th Street to a point north of Highway 1, in the vicinity of 176th Street and 104th Avenue. At that point, Ms. Bains stopped the car in a residential area. She testified that she could not take the vehicle home in the condition it was in because she was concerned about her parents finding out she was out on a date with a man they did not know. [23] While Mr. Basra agreed that Ms. Bains did not want to take the vehicle home in its condition, the essence of his evidence is that they stopped the vehicle at that point because the state of the windshield would not permit safe operation of the vehicle on the highway. He testified that the damage to the windshield was such that one could see out of the windshield but could not drive at highway speeds. [24] After stopping the vehicle, Mr. Basra called his older sister. The call was made at 12:55 a.m. according to Mr. Basra's cell phone records. The call was about nine minutes in length. According to Mr. Basra, he asked his sister to come and pick them up from their location. His sister also spoke to Ms. Bains. However, Mr. Basra's sister could not come. [25] Ms. Bains urged Mr. Basra to call a glass repair service immediately. Mr. Basra called Mr. Michael Vleeming, the proprietor of Exclusive Auto Glass, an automotive glass repair business at 1:09 a.m. Mr. Vleeming provides a mobile windshield repair service. Mr. Basra's call went to an answering service, but Mr. Vleeming called Mr. Basra back immediately. The call took place at 1:09 a.m. and lasted 75 seconds. According to Mr. Vleeming, Mr. Basra was frantic to have the windshield repaired that very night. However, Mr. Vleeming was at the PNE having attended a music concert, and was not prepared to do the work immediately. They made arrangements for Mr. Vleeming to attend the scene in the morning in order to carry out the windshield repair. [26] While they were stopped, Ms. Bains and Mr. Basra observed that there was substantial further damage to the vehicle. The photographs in evidence show heavy damage to the passenger side hood and fender, and to the vehicle headlights on the passenger side. Mr. Basra and Ms. Bains went via taxi to the home of Mr. Basra where they spent the night. [27] The following day, Mr. Vleeming went to his shop to pick up the appropriate windshield and then went to the site of the vehicle. He replaced the windshield. He testified that there was a large amount of broken glass inside the car, which he cleaned up as best he could by using a vacuum cleaner and borrowed power from a nearby residence. While he was repairing the windshield or perhaps after he had completed his work, Mr. Basra and Ms. Bains arrived. They had come by taxi from Mr. Basra's residence. Mr. Basra paid Mr. Vleeming in cash for the windshield repair. Mr. Vleeming suggested the name of a friend of his who could perform the necessary auto body repairs from the friend's "backyard bodyshop" in Surrey. Mr. Basra and Ms. Bains followed him to the friend's place in the Jetta. [28] Mr. Vleeming took the damaged windshield back to his shop. It was too heavily damaged to be put into the dumpster safely, so he laid it on the floor. Later that day, Mr. Basra called him and told him not to discard the windshield. The police later seized the windshield. Forensic analysis confirmed that two hairs from the windshield matched Mr. MacKay's DNA. [29] Mr. Basra testified that he was awakened in the morning of September 4, 2010 at 9:00 a.m. by his radio alarm clock, which was tuned to an all-news radio station. The news report informed him that a pedestrian had been killed in an accident at 168th Street and Fraser Highway. He realized that the pedestrian must have been killed in the accident he was involved in. Nonetheless, he and Ms. Bains proceeded to meet with Mr. Vleeming at the site of the vehicle. He and Ms. Bains had the vehicle windshield repaired and proceeded to the auto body repair person's place. However, at some point during the day he contacted legal counsel, through whom he provided a report of the matter to the police, and provided a statement to the police in which he acknowledged his role in the accident. III. analysis [30] The material portions of s. 252 of the Code are as follows: 252. (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with (a) another person, (b) a vehicle, vessel or aircraft, or (c) in the case of a vehicle, cattle in the charge of another person, and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance. (1.1) Every person who commits an offence under subsection (1) in a case not referred to in subsection (1.2) or (1.3) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction. (1.2) Every person who commits an offence under subsection (1) knowing that bodily harm has been caused to another person involved in the accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. (1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if (a) the person knows that another person involved in the accident is dead; or (b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results. (2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability. [31] For the purposes of this case, the basic elements of the offence under s. 252(1) are as follows: 1. the accused had the care, charge or control of a vehicle; 2. the vehicle was involved in an accident; 3. the accident was with another person; 4. the accused failed to (1) stop the vehicle; (2) give his name and address, and (3), where any person has been injured or appears to require assistance, offer assistance; and 5. the accused failed to do these things with intent to escape civil or criminal liability. [32] The Crown's Indictment charges under s. 252(1.3), which contains the following additional elements: 1. The accused knows that another person involved in the accident is dead; or 2. The accused (1) knows that bodily harm has been caused to another person involved in the accident, (2) is reckless as to whether the death of the other person results from that bodily harm, and (3) the death of that other person so results. [33] There is no doubt that Mr. Basra had the care, charge or control of the vehicle which was involved in an accident with another person, and that he failed to stop, give his name and address, and render assistance. There is no doubt that Mr. MacKay's death resulted from the accident. [34] Section 252(1) is a specific intent offence, requiring proof beyond a reasonable doubt of mens rea as follows: 1. that the accused knew he was involved in an accident (in the circumstances of this case)with another person; and 2. that the accused failed to stop, give his or her name and address and render assistance if needed, in order to escape civil or criminal liability. (See R. v. Hatcher, 2005 CanLII 16614 [Hatcher] at para. 35). [35] I observe that in R. v. Mazur, 2009 ABCA 263 [Mazur], the Court combines these two mens rea elements into one, stating: [17] The dual mens rea inquiry advocated in Hatcher is redundant because one cannot separate the subjective knowledge that the accused was in an accident with another person from the intention to escape criminal or civil liability. [36] Mazur was not cited to me. Before me, the Crown agreed with the mens rea analysis in Hatcher. I prefer the reasoning in Hatcher. I do not agree that proof of the intent to escape criminal or civil liability necessarily entails proof of knowledge that the accused was involved in an accident within the meaning of the section. These can be two separate questions, as in the case before me. [37] As noted, the Crown relies upon mens rea based upon wilful blindness, in respect of the first element of mens rea. [38] The concept of wilful blindness in this context was neatly summarized by Mr. Justice Grist in R. v. Harrison, 2007 BCSC 1801: [37] In my view, the element of knowledge accompanying s. 252(1) with respect to involvement in an accident can be satisfied by the accused exhibiting wilful blindness towards what has been struck. In R. v. Sansregret, [1985] 1 S.C.R. 570, wilful blindness was defined as a quality different from recklessness. It is where a person is aware of the need to inquire, but makes no inquiry because he or she does not want to know the truth. [39] The first major issue in the case is whether the Crown has proven beyond a reasonable doubt that Mr. Basra knew (or was wilfully blind to the fact) that the vehicle he was driving was involved in an accident with another person. As noted, Mr. Basra contends that he did not know this, and that he thought a rock struck the vehicle. He contends that this thought caused him and Ms. Bains to be in fear, so he did not do the things required by the Code. [40] However, I find that while Mr. Basra did not know what had struck the vehicle, he was wilfully blind to the fact that what struck the vehicle was a person -- Mr. MacKay. [41] It was immediately obvious that the vehicle had been involved in a major impact with something very substantial. There was, as Mr. Basra testified, a "thud" or "loud bang". There was a hole in the windshield. In fact, there was much more than a mere "hole". The windshield was severely damaged. The photographs taken in Mr. Vleeming's shop and later by the RCMP show a very large hole in the passenger side of the windshield, with innumerable associated cracks and cracking reaching every part of the windshield. [42] There was testimony from Ms. Bains and Mr. Basra to the effect that the damage to the windshield as shown in the photographs was more severe than the amount of damage to the windshield initially. However, I accept the testimony of Mr. Vleeming that the windshield was heavily damaged. There was a curtain of glass hanging inside the windshield. He testified about the substantial quantity of glass fragments that were inside the vehicle. The damage to the windshield was so severe that he decided it was unsafe to put the windshield in the dumpster at his shop, because it lacked structural integrity and it would be unsafe for a single person to handle it as required for that purpose. The windshield damage was severe enough that Mr. Basra felt the car could not be driven safely on the highway. When she parked the vehicle, Ms. Bains put a blanket over the windshield because she was concerned about rain. I find therefore that there was obvious, severe damage to the windshield that coincided with the thud or loud bang that Mr. Basra and Ms. Bains heard. [43] The car was also heavily damaged in the area of the passenger side of the hood, right fender, and the right side headlamps. However, it is possible that Mr. Basra and Ms. Bains did not see this other damage until they stopped the vehicle for the second time, some minutes later. Mr. Basra did not suggest that this additional damage could have been caused by a rock. [44] Mr. Basra contends that one would not expect to find a pedestrian late at night in the area where the accident occurred. As noted it was dark, and there was minimal lighting in the area of the accident. There is a golf course on the south side of the road, adjacent to the eastbound lane of Fraser Highway. While the presence of a pedestrian at that time and place may have been somewhat unusual, Mr. Basra did not and could not in my view deny that a pedestrian might be in the area. [45] In cross-examination, Mr. Basra acknowledged that when the accident occurred there were at least three possibilities to explain the impact that he experienced: 1. collision with an animal, 2. collision with a person, or 3. collision with a rock that could have been thrown by someone. [46] However, there was nothing to indicate that a rock had been thrown at the car. There were no people observed in the area. There is no evidence of an overpass or structure from which a rock might have been dropped or thrown. There were no signs of any criminal activity in the area. There were no circumstances of any kind that would have lent any support for that scenario. Mr. Basra conceded that it was soon clear no rock had come through the windshield. [47] The defence concedes that when Mr. Basra stopped the vehicle about 300 yards from the point of impact, he did so in order to change drivers as Ms. Bains requested, rather than to comply with his duties under the section. [48] Mr. Basra acknowledged in his testimony that he did not make any effort to walk back towards the point of impact to investigate. He says he looked in that direction, saw nothing, but was in fear of the possibility that someone had thrown a rock at the car, and therefore he did not wish to go back up the road. However, there was simply no reason at that point to believe that a rock had been thrown at the car by someone. There was no reason for continued fear. He saw no one coming towards them. He saw no one at all. Other than the rock scenario, the remaining possibilities were that the collision involved a person or an animal. Mr. Basra did not testify that he thought he might have struck an animal. He did not see an animal at any time. There was really nothing to suggest that he might have struck an animal. However, he chose not to investigate. [49] Mr. Basra's actions after the accident are not consistent with his evidence that his overriding concern was about a rock. If he was in fact sincerely concerned that the vehicle had been struck by a rock thrown by someone, then it would perhaps make sense for him to drive a short distance, and immediately dial 9-1-1 to report the attack to the police. Despite his alleged concerns and fears he did in fact stop the car 300 yards from the collision point. By then it was quite clear that there was no danger. Both he and Ms. Bains had cell phones with them and calling 9-1-1 would have been easy to do. Instead, Mr. Basra chose to get in to the car, and to allow himself to be driven away from the scene by Ms. Bains. [50] Mr. Basra offered no rational explanation for the sudden decision, after the impact, to stop the car and change drivers. According to both witnesses, moments before the accident Ms. Bains had been in such physical distress that she was unable to drive the car. She was in even more distress after the impact. For some reason, she demanded to drive the car. A rational explanation is that Mr. Basra, and probably Ms. Bains as well, were aware that Mr. Basra's licence was suspended, he should not have been driving the car, and that they should change drivers in order to avoid Mr. Basra being found behind the wheel, for example, if the vehicle were stopped. [51] Rather than calling the police to report the supposed rock throwing incident, Mr. Basra sought to and obtained the repair of the windshield urgently. [52] Moreover, I do not find Mr. Basra or indeed Ms. Bains to be credible. [53] Mr. Vleeming testified that when he attended the parked vehicle in order to fix the windshield, there was a discussion about what caused the damage to the car. I accept the evidence of Mr. Vleeming that Mr. Basra told him that he had been at a party, and someone had smashed the windshield with a baseball bat and that while departing the scene of the party in the vehicle he had struck a pole causing the other damage to the vehicle. Mr. Basra denied saying this. He testified that he told Mr. Vleeming on the telephone the night before that Mr. Vleeming had repaired his car some years previously. (In fact, it was eight or nine years previously). He testified that he told Mr. Vleeming that the reason for the repairs on the former occasion was that his windshield had been damaged at a party by a person wielding a baseball bat. He contends that Mr. Vleeming must have been confused in his testimony. He contends that there was no discussion between himself and Mr. Vleeming about what caused the damage to the Volkswagen Jetta in question. [54] In my view, Mr. Vleeming's testimony is clearly more credible in this respect. The telephone call relied upon by Mr. Basra was quite short at one minute and 15 seconds. It is unlikely that Mr. Basra would have spent any significant time discussing events of many years before. It is also highly likely that at the scene of the repair, Mr. Vleeming and Mr. Basra would have engaged in some conversation about the cause of the damage to the car that Mr. Vleeming was repairing. At the same time, it is highly unlikely that there would have been no discussion at all about this. I reject as a fabrication Mr. Basra's testimony about the telephone discussion with Mr. Vleeming. [55] Mr. Basra denied the truth of facts that were contained in his signed statement to the police. There, he stated that he heard about the accident along Fraser Highway the following day after the windshield was repaired. In cross-examination, he testified that he learned about the accident from the radio news report at 9:00 a.m., before the windshield was repaired. This evidence would be more inculpatory than his statement. Nonetheless, he testified that his statement was in error and that the error may have been caused by his lawyer in drafting the statement. It is more likely that his testimony at trial was false in this respect. [56] The evidence of Ms. Bains seemed designed to support the case of Mr. Basra as much as possible. She was generally vague and unhelpful in-chief when testifying for the Crown but when cross-examined by counsel for Mr. Basra, she was remarkably agreeable. Her evidence about her concern about her parents was unpersuasive. She was 32 years of age at the time. She did not go home that night nor did she contact her parents. [57] I find that Mr. Basra was well-aware of the possibility that the accident had involved a collision with a person, but chose not to investigate or inquire, in order to avoid finding out what he did not want to find out. He was wilfully blind to the fact that the accident had involved a collision with Mr. MacKay. [58] The comments of Grist J. in Harrison, are once again apt: [38] Here, the circumstances required the accused to at least determine what she had hit. She did not want to learn the truth and there cannot be a defence, in my view, to closing one's eyes through panic or fear of what has happened. [39] Had Ms. Harrison stopped and made the necessary inquiry, the bodily harm to Mr. Pinson would have been evident. Her failure to do so in the face of the force of impact exhibited recklessness as to whether he lived or died. [59] Similarly, in this case, the circumstances required Mr. Basra to at least determine what he had hit. He did not do so because he did not want to learn the truth. Had Mr. Basra complied with his duties under the Code, he would have quickly determined that bodily harm had been caused to Mr. MacKay. He deliberately avoided obtaining actual knowledge of the bodily harm and therefore was wilfully blind as to that bodily harm. He was also reckless as to whether the death of Mr. MacKay resulted from that bodily harm, in that he took no steps whatsoever to determine whether someone had been injured or whether death might ensue. [60] Liability for driving while the accused's licence is suspended comes within the meaning of "civil or criminal liability" in s. 252(1): R. v. Benson, [1987] O.J. No. 1493 (D.C.); R. v. Sanford, 2014 ONSC 3164 at para. 73. [61] Where the Crown proves the actus reus of the offence, proof of intent to escape civil or criminal liability is provided for in s. 252(2). [62] The operation of the presumption set out in s. 252(2) was described in R. v. Sadler, 2008 BCCA 491 at para. 28: [28] Section 252(2) creates a rebuttable presumption that an accused intends to escape civil or criminal liability by leaving the scene of an accident. Evidence to the contrary that is not rejected by the trier of fact may rebut that presumption. Case law interpreting this section confirms that "evidence to the contrary" does not shift the burden of proof to an accused. Rather, it provides a basis whereby evidence which tends to show that an accused may not have possessed the specific intent required will support an acquittal verdict. [authorities omitted] [63] Neither Mr. Basra's evidence nor any other evidence in this case leaves me with a reasonable doubt that would displace the presumption set out in s. 252(2). [64] In any event, quite apart from the presumption applicable pursuant to the section, I conclude on the evidence in totality that Mr. Basra did not comply with his duties under the Code for the purpose of avoiding civil or criminal liability. [65] Mr. Basra testified in his own defence. In such circumstances, I must be mindful of the instructions that I would give to a jury in such a case based upon the decision of the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 at 758: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [66] I do not believe the evidence of the accused nor I am left in reasonable doubt by the evidence of the accused nor on the basis of the evidence in the case as a whole, do I have a reasonable doubt concerning the guilt of the accused. [67] I therefore find Mr. Basra guilty of the charges set out in the Indictment. "Verhoeven J."