INFORMATION 24202906 2005 SKPC 38 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT YORKTON, SASKATCHEWAN Between: HER MAJESTY THE QUEEN -and- TODD R. TYNDALL Brent Klause for the Crown Arliss Dellow for accused GREEN, R.G., PCJ JUDGMENT April 11, 2005 I. INTRODUCTION [1] Todd Tyndall is charged with driving without due care and attention at Yorkton, Saskatchewan on February 18, 2004, contrary to section 44(1) of the Highway Traffic Act. Section 44(1) provides “no person shall drive vehicle on highway without due care and attention”. This offence is in effect careless driving, as distinguished from dangerous driving under the Criminal Code. [2] At trial, the Crown called three witnesses: Rebecca Banga, Justin Banga and Lance Kuchar. The defence then called four witnesses: Michael Rostotski, Corporal Pelzer, Constable Kinellson and Mr. Tyndall. [3] On this date, Mr. Tyndall, who is Constable with the Royal Canadian Mounted Police stationed in Yorkton, was on duty in marked police car. With him was an authorized “ride-along” passenger named Michael Rostotski. While driving south on the road that passes beside Tim Horton’s restaurant, Mr. Tyndall received radio message asking him to assist another officer on “non-priority” matter in the south-west part of Yorkton. accept Mr. Tyndall’s evidence that the most direct route to the area he was called to was proceeding straight south along this road, passing directly to the east of Super Store, and then connecting to Highway and subsequently to the bypass leading to the south-west area. [4] As he drove his vehicle down the road past Super Store on his right, with the parking lot on his left, Mr. Tyndall stopped his vehicle, and backed up to where Justin Banga and Rebecca Banga were standing with their infant girl. There was then discussion between Mr. Tyndall and Mr. Banga, and shortly thereafter Mr. Tyndall’s vehicle moved forward and collided with Lance Kuchar, man who just come out of Super Store and was crossing the road on foot directly in front of this police vehicle. [5] The issue to be determined is whether Mr. Tyndall’s actions in operating his vehicle on the road beside Super Store constituted driving without due care and attention. The standard to be applied was set out by the Saskatchewan Court of Queen’s Bench in R. v. Kozun 1997 CanLII 11313 (SK QB), [1997] S.J. No. 98, where Madam Justice Hunter, in applying the Supreme Court of Canada’s decision from R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] S.C.R. 1299, held that an offence under section 44(1) is strict liability offence “in which the prosecution need not prove state of mind, but it is open to the accused to prove due diligence defence” including “taking all reasonable steps to avoid the particular event”. As result, the standard of proof in this case is whether the Crown has proved that Mr. Tyndall drove without due care and attention applying an objective test in assessing carelessness and if so, whether Mr. Tyndall has then shown, on balance of probabilities, that he exercised due diligence in the context of the circumstances he encountered. [6] The actions of Mr. Tyndall which could be considered careless are, firstly, the speed at which he drove past Super Store, and, secondly, his driving forward into Mr. Kuchar. [7] Regarding the issue of speed, Mr. Banga said, after he and his family left Super Store, that car “zipped past”. He thought this car was going too fast based on the short time it took to pass by them, as they stood at the cross-walk preparing to cross this road. Mrs. Banga said the car was moving by them very fast. Neither witness estimated the actual speed of this vehicle. [8] For the defence, Michael Rostotski testified that the vehicle he was in was travelling at between 20 and 25 kilometres per hour. Mr. Tyndall testified he was not driving too fast, but did not state any speed. As no evidence was lead by the Crown on what the speed limit was at the point Mr. Tyndall drove by the Bangas, there is insufficient evidence to conclude, even on an objective standard, that Mr. Tyndall’s act in initially driving past the Bangas constituted driving without due care and attention. [9] The issue of Mr. Tyndall’s vehicle striking Mr. Kuchar is more complex. In considering whether this action by Mr. Tyndall constituted an offence under section 44(1), will review four areas where there was inconsistency and conflict in the evidence given by Crown and defence witnesses. 1. Why did Mr. Tyndall come back, and was he justified in doing so? [10] At trial, the Crown questioned, in considering the totality of Mr. Tyndall’s driving, why he would have stopped his vehicle, and then backed up to speak with Mr. Banga. In effect, the suggestion was that Mr. Tyndall had an oblique motive for doing so, perhaps thinking that Mr. Banga was being insolent and returning to set him straight. The Crown argued Mr. Tyndall should have simply continued driving. [11] This assertion was based on the evidence of Mr. and Mrs. Banga that neither was waving their arms, or giving any other cause for concern other than Mr. Banga’s statement to his wife saying “that vehicle could slow down”. No specific reference was made by Mr. or Mrs. Banga about how loud this statement was, although Mr. Banga, who described himself as shocked, annoyed and concerned by the situation, did say he was not shouting at the officer. Both Mr. Rostotski and Mr. Tyndall said they passed by where the Bangas were standing, heard someone they later determined to be Mr. Banga holler, and then reversed to his position to find out what his concern was. [12] In these circumstances, as there could be no other reason on the evidence presented for Mr. Tyndall to stop his vehicle, find that Mr. Banga did use raised voice in speaking to his wife, and that his voice was overheard by Mr. Tyndall and Mr. Rostotski. also find that Mr. Tyndall could have reasonably concluded that Mr. Banga was in need of assistance. Clearly, as police officer, Mr. Tyndall was placed in difficult position. Had he not responded through this inquiry, and had Mr. Banga been seeking assistance for some emergency situation occurring in or near Super Store, this officer may well have been criticised for simply driving off. 2. What was said between Mr. Tyndall and Mr. Banga after he reversed his vehicle? [13] Although not recalling Mr. Tyndall's exact words to Mr. Banga, Mrs. Banga said the officer asked "Did you say something, sir?" She gave no other evidence about further conversations between the two. Mr. Banga initially said Mr. Tyndall first asked him what he had said. Later in his evidence, Mr. Banga said the officer first asked if Mr. Tyndall had problem with him, and what he had said. Mr. Banga then testified that he replied he had told his wife "that car could slow down", and that Mr. Tyndall then told him he was on call, and presumably had to leave. Mr. Banga claimed he didn't lose his temper, and that the exchange was not heated. He gave no evidence about discussions between Mr. Tyndall and Mr. Kuchar. [14] Defence witness Michael Rostotski said, after reversing his vehicle, Mr. Tyndall asked Mr. Banga if he could help him, referring to him as “sir”. He said Mr. Banga replied "Slow the fuck down" and "you should have had your fucking lights and sirens on". Mr. Rostotski then said that, after some conversation between Mr. Tyndall and Mr. Banga, Mr. Tyndall told Mr. Banga he did not have time as he was on call. [15] Mr. Tyndall testified that, after backing up to where Mr. Banga was, he said to him "Sir, can help you?" Mr. Banga responded that Mr. Tyndall should slow "the fuck" down and then said if Mr. Tyndall had call he should "fucking go". [16] This incident happened over year ago. note elsewhere in Mr. Banga's evidence that he claimed Mr. Tyndall got out of his police vehicle after striking Mr. Kuchar, contrary to the evidence of Mr. Tyndall and Mr. Kuchar who both said the officer remained in his vehicle. As result and given the stressful situation Mr. Banga found himself in, question whether Mr. Banga, while testifying, had complete and accurate recollection of what was said. Given the contradictions in evidence on this point, am not able to determine the exact words spoken between these two. do, however, accept that Mr. Banga was upset at Mr. Tyndall this day, and did use an angry and raised voice towards Mr. Tyndall. further accept that Mr. Tyndall did initially inquire about whether he could assist Mr. Banga, and that the conversation then became heated between the two, and ended when Mr. Tyndall said he had to leave on his call. 3. What was said between Mr. Tyndall and Mr. Kuchar after Mr. Tyndall's vehicle struck him? [17] Mr. Kuchar said that as he was leaving Super Store, he passed in front of stopped vehicle, which turned out to be Mr. Tyndall's vehicle. Mr. Kuchar looked to his right and began to cross the road. He was then struck from the left by Mr. Tyndall's vehicle, and fell onto that vehicle's hood. He suffered swelling in his hip, and was later taken to the emergency ward of Yorkton Regional Hospital by another police officer. After being struck by the vehicle, Mr. Kuchar said he approached Mr. Tyndall, and said "What the hell are you doing", after which Mr. Tyndall lifted up his hands. Mr. Kuchar said he then advised Mr. Tyndall that he would sue him if he was injured, to which Mr. Tyndall responded he had insurance. Mr. Kuchar questioned Mr. Tyndall about whether he was drinking, and why he had not been watching. He admitted to losing his temper, and wasn't sure if he swore at the officer. He also said Mr. Tyndall may have asked him whether he needed an ambulance. Mr. Kuchar claimed Mr. Tyndall initially would not give his name, but later did. [18] Mr. Rostotski said Mr. Kuchar, after being struck by the vehicle, was angry, and said "Where the fuck where you going" and said he could sue Mr. Tyndall. He said Mr. Tyndall apologised, saying this was an accident and asked whether Mr. Kuchar wanted ambulance assistance. He also said Mr. Kuchar initially refused to give his name. [19] Mr. Tyndall said, after striking Mr. Kuchar, he immediately apologized to him, at which time Mr. Kuchar "went off” on him, questioning whether Mr. Tyndall was “high”, and saying he was going to sue Mr. Tyndall, and he was going to have Mr. Tyndall fired. He said Mr. Kuchar initially refused to give his name, and continued his angry accusations toward Mr. Tyndall. Given the nature of this confrontation and as an accident had occurred, Mr. Tyndall said he rolled up his window, and called for other police officers to attend the scene. [20] There is no doubt Mr. Kuchar was very angry. This is understandable, given that he was struck by vehicle shortly after emerging from Super Store. find that Mr. Tyndall did apologise to him, and did offer to have an ambulance summoned. find that Mr. Kuchar, who was crossing the road outside of the cross-walk, did swear at Mr. Tyndall, and did threaten to sue him and cause him to be fired from his employment. do not find much significance in which of the two, if any, would not provide their names, as this exchange eventually occurred between the two in an incident that was relatively short in duration. 4. How far did Mr. Tyndall's vehicle move before he struck Mr. Kuchar? [21] key issue in this trial was how far Mr. Tyndall's vehicle moved before striking Mr. Kuchar. Mr. Kuchar said it moved five to six feet, although he was guessing about that. Mr. Banga said the vehicle moved between fifteen and twenty feet, then said it was ten to fifteen feet, then said two to fifteen feet. On cross-examination, Mr. Banga admitted he had given statement saying Mr. Tyndall's vehicle was not going very fast when it struck Mr. Kuchar, and that the vehicle only moved short distance. Mr. Banga also admitted saying that his judgement regarding distances was "not great". Mrs. Banga, on cross-examination, testified that the vehicle moved between six inches and two feet before striking Mr. Kuchar. [22] Mr. Rostotski said the car only moved one half tire rotation before striking Mr. Kuchar, who was less than one foot from the car when he first saw Mr. Kuchar. Corporal Pelzer, of the RCMP, attended immediately to the scene that evening, and photographed and measured skid mark on the pavement below this police vehicle's left front tire. accept that this vehicle had not been moved at the point Corporal Pelzer attended. He said this skid mark measured thirty-four centimetres, distance of approximately one foot. Corporal Pelzer also said he could find no sign of damage to the front end of this vehicle at the point where contact was made with Mr. Kuchar. Mr. Tyndall, in his evidence, said after concluding his conversation with Mr. Banga, he took his foot off the brake, not touching the accelerator, and rolled forward striking Mr. Kuchar, who was directly in front of the vehicle. He said the vehicle moved less than one foot, and didn't not strike Mr. Kuchar with any significant degree of force, saying (as did Mr. Rostotski) that their seat belt harnesses did not lock upon impact. [23] Based on the evidence of Corporal Pelzer, as confirmed by the picture filed as #4 in Exhibit P1, and the evidence of Mrs. Banga, taken together with the evidence of Mr. Rostotski and Mr. Tyndall, accept that this vehicle only moved very short distance forward before striking Mr. Kuchar. accept that distance was at most one foot. also accept Mr. Tyndall's evidence that he did not touch the accelerator, and briefly took his foot off the brake, and then immediately reapplied the brake after seeing Mr. Kuchar, who find was positioned directly in front of the police car at this time. also accept that neither seat belt, belonging to Mr. Tyndall or Mr. Rostotski, locked upon striking Mr. Kuchar, and that this vehicle did not accelerate and did not move forward quickly before striking him. [24] The first part of the test set out by the Supreme Court of Canada in R. v. Sault Ste. Marie, as adopted and applied to this offence in Kozun, is whether the Crown has proved that the driving by the accused was careless. Here, we have pedestrian crossing road adjacent to parking lot, and while walking directly in front of stopped vehicle, he is then struck by that vehicle as it rolls forward into him. Viewed objectively, and before considering any explanation from and on behalf of Mr. Tynadall, am satisfied that this driving was careless. [25] The second part of the Sault Ste. Marie test is whether Mr. Tyndall has shown, on balance of probabilities, that he exercised due diligence, or took reasonable care, on this date. Based on his evidence, and the findings of fact have made, am so satisfied. In particular, I accept that his vehicle rolled forward only a short distance of not more than one foot, and not at a fast or accelerating speed, that Mr. Kachur was directly in front of the police vehicle and was crossing the parking lot road outside of the cross-walk, and that Mr. Tyndall - without having applied any force to his accelerator peddle - immediately applied his brake when he saw Mr. Kachur, and immediately took steps both to assist Mr. Kachur by asking if he required an ambulance, and to have other officers attend at the scene. [26] In conclusion, I am satisfied, on a balance of probabilities, that, given the situation Mr. Tyndall found himself in, he could not have reasonably anticipated that a person would have been so close in front of him, and further that Mr. Tyndall did exercise due diligence both before and after striking Mr. Kachur. [27] As a result I find him not guilty of this charge. Dated at Yorkton, Saskatchewan, on this 11th day of April, 2005. GREEN, R.G., PCJ
The accused is charged with driving without due care and attention contrary to s. 44(1) of the Highway Traffic Act. A pedestrian was crossing a road adjacent to a parking lot and, while walking directly in front of a stopped vehicle, was struck by the vehicle when it rolled forward. HELD: The accused is not guilty. The court accepted the accused's evidence that his vehicle rolled forward only a short distance of not more than one foot and not at a fast or accelerated speed and that the pedestrian was crossing outside of the cross walk and that the accused applied his brakes as soon as he saw the pedestrian. The accused did exercise due diligence.