D.P. Ball QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 337 Date: 2007 09 21 Docket: Q.B.A. No. of 2007 Judicial Centre: PRINCE ALBERT BETWEEN: SEAN PHILLIP FLEURY and HER MAJESTY THE QUEEN Counsel: P. V. Abrametz for the appellant R. N. Claxton for the respondent Crown JUDGMENT ROTHERY J. September 21, 2007 [1] Sean Fleury (“Fleury”) appeals his conviction of dangerous driving. The learned trial judge concluded that the circumstantial evidence presented by the Crown was consistent with Fleury’s guilt and the circumstantial evidence was inconsistent with any other rational conclusion. [2] At about 8:00 a.m. on July 22, 2006, Cst. Poiré located minivan immersed in slough about 100 yards east of the Highway #2 at the point where Highway #11 intersects with Highway #2 at “T” intersection, few kilometres south of Prince Albert, Saskatchewan. The police photographs showed that tire tracks left the highway perpendicular to it, drove for about 25 feet, then up hill scraping the sod clear, travelling an additional 10 feet, then no visible tracks until the minivan landed in the slough. No one was at the scene, and Cst. Poiré called for the dive team to investigate. Cst. Poiré was able to identify the driver because Fleury’s personal effects floated to the surface. On enquiring at the hospital, Cst. Poiré was advised that Fleury had arrived at Victoria Hospital in Prince Albert about 1:00 p.m., and was being treated in emergency. [3] Cst. Poiré testified that, from the trajectory of the tire tracks, Fleury had approached the “T” intersection from the west, and had not stopped at the stop sign. By the distance of the tire tracks, and the fact that the minivan became airborne on impact with the hill and flew into the slough, Cst. Poiré testified that the minivan was travelling at considerable speed. Fleury had travelled across Highway #2 which was divided four-lane highway without stopping at the stop sign. Cst. Poiré testified that traffic is heavy on both Highway #11 and Highway #2. Thus, it was reasonable for the trial judge to infer that traffic was likely to be heavy at the “T” intersection. By driving at such high speed across the four lanes of traffic, the trial judge properly concluded this to be dangerous driving. [4] The issue on appeal is whether the circumstantial evidence which led the trial judge to conclude Fleury was travelling on Highway #11was inconsistent with any other rational conclusion. It was the defence’s theory at trial, and Fleury’s unwavering statement given to Cst. Poiré later the afternoon of the accident, that Fleury was travelling south on Highway #2 at the point of the “T” intersection and swerved to miss deer that had come onto the highway. [5] Fleury’s counsel argues that, without expert evidence called by the Crown to prove that it was not possible for Fleury to have swerved in such a manner to create the same physical evidence shown in the photographs, the Crown has failed to prove that Fleury drove through the stop sign on Highway #11. In other words, the trial judge could not simply rely on his own experience to find that Fleury could not have been able to manoeuvre the minivan in the way he told Cst. Poiré. [6] The learned trial judge would certainly be circumspect about the explanation that Fleury gave to Cst. Poiré. It seems unlikely that minivan could make 90° left turn at substantial speed without leaving any tire tracks across the two or three lanes it had to travel before leaving the pavement perpendicular to Highway #2. And, it seems unlikely that the minivan could navigate such sharp left turn at high speed without rolling. However, this is information that is beyond the general knowledge of trial judge. [7] While no accident reconstructionist was available to check the accident scene after the incident, the Crown could have called an expert to testify whether the defence’s theory could hypothetically be rational. However, no expert evidence was called. [8] agree with Fleury’s counsel that the learned trial judge erred in concluding that the only direction that Fleury could have come from was Highway #11, thus driving through the intersection at high speed without stopping at the stop sign. [9] Because the Crown’s evidence was not the only rational conclusion to be drawn by the trier of fact, it has failed to prove the case beyond a reasonable doubt. (See: R. v. Linn (R.W.) (1994), 1994 CanLII 4643 (SK CA), 116 Sask. R. 203 (C.A.) At para 13 15). Fleury is entitled to the benefit of that doubt. The appeal is allowed, and the conviction is set aside. J. A. R. Rothery
The appellant appeals his conviction of dangerous driving. The police did not see the appellant driving; they came across his minivan immersed in a slough in excess of 35 feet off the highway. Based on the tire tracks, the appellant was charged with dangerous driving. The trial judge concluded that the circumstantial evidence presented by the Crown was consistent with the appellant's guilt and the circumstantial evidence was inconsistent with any other rational conclusion. The appellant argues that without expert evidence called by the Crown to prove it was not possible for the appellant to have swerved in the manner he testified to create the same physical evidence shown in the photographs, the Crown has failed to prove that the appellant drove through the stop sign. In other words, the trial judge could not simply rely on his own experience to find that the appellant could not have been able to manoeuvre the minivan in the way he described. HELD: Because the Crown's evidence was not the only rational conclusion to be drawn by the trier of fact, the Crown has failed to prove the case beyond a reasonable doubt. While no accident reconstructionist was available to check the accident scene after the incident, the Crown could have called an expert to testify whether the defence's theory could hypothetically be rational. However, no expert was called. The appeal is allowed and the conviction set aside.