



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Bader,









2012 BCCA 25




Date: January 19, 2012

Docket:   CA038287

Between:

Regina

Respondent



And

Norman Cecil Bader

Appellant








Before:



The Honourable Mr. Justice Low





The Honourable Mr. Justice Frankel





The Honourable Mr. Justice Hinkson




On
appeal from:  Provincial Court of British Columbia, March 25, 2010

(
R.
v. Bader
, 2010 BCPC 168, Dawson Creek Information No. 29334-1)




Counsel for the Appellant:



M.P. Bussanich





Counsel for the Respondent:



W.J.S. Bell





Place and Date of Hearing:



Vancouver, British
  Columbia

November 15, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 19, 2012









Written Reasons by:





The Honourable Mr. Justice Frankel





Concurred in by:





The Honourable Mr. Justice Low
The Honourable Mr. Justice Hinkson




















Reasons for Judgment of the Honourable
Mr. Justice Frankel:

Introduction

[1]

On a dark January morning, Norman Cecil Bader was driving his pick-up
truck behind a tractor-trailer unit on a two-lane secondary highway just
outside of Dawson Creek, British Columbia.  He was accompanied by his wife and
daughter and the daughters boyfriend.  Visibility was poor and snow obscured the
lines on the pavement.  As the two vehicles ascended a steep hill, Mr. Bader
pulled into the oncoming lane to pass the tractor-trailer.  When Mr. Bader
crested that hill and began his descent, he noticed the headlights of an oncoming
vehicle.  Mr. Bader turned his truck towards the ditch on his left in an effort
to avoid a collision.  The other vehicle, also a pick-up truck, turned towards
the same ditch.  The two vehicles collided.  Wade Hubley, the driver and sole
occupant of the other vehicle, was killed.

[2]

Mr. Bader was convicted of dangerous driving causing death by Judge
Blaskovits of the Provincial Court of British Columbia.  In appealing that
conviction, Mr. Bader submits that this Court should enter an acquittal because
the trial judge improperly utilized the audio-track of a DVD containing videos
of the route driven by Mr. Bader that was tendered as a defence exhibit.  In
addition, Mr. Bader submits that a new trial should be ordered because the
trial judge misapprehended or, more accurately, failed to consider, his evidence
concerning why he perceived it was safe to pass the tractor-trailer.

[3]

For the reasons that follow, I would allow this appeal and order a new
trial.  I will deal first with the misapprehension of evidence ground and then
the ground relating to the use of the audio-track.  As will be seen, I have
concluded that Mr. Bader is entitled to a new trial on both grounds.

Factual Background

[4]

The following facts were admitted as part of the Crowns case:

(a)      On
January 5, 2008, Mr. Bader left Ft. St. John, travelling south on the Alaska
Highway (Highway 97N) towards Dawson Creek.  Shortly before 8:40 a.m., he
turned to travel westbound on Braden Road, a two-lane secondary highway.  At
about this time, Mr. Hubley was driving eastbound on Braden Road;

(b)      There
is no artificial lighting on Braden Road.  At the time of the collision the
temperature was approximately minus eight degrees centigrade; no snow was
falling.  It was dark, visibility was poor, and the road was covered with
compacted snow.  There was some fresh snow on the ground from the night before;

(c)      The speed limit on Braden Road is 80
kilometres per hour;

(d)      Approximately
two kilometres west of the intersection of the Alaska Highway and Braden Road,
Mr. Bader, while travelling westbound up a steep hill, attempted to pass a slow
moving tractor-trailer.  At this point, the two lanes on Braden Road are
separated by two solid yellow lines.  Those lines were covered by compacted
snow;

(e)      There
is limited visibility for westbound traffic to view eastbound (i.e., oncoming)
traffic approaching the crest of the hill;

(f)       Mr.
Bader was travelling in the eastbound (i.e., oncoming) lane as he attempted to
pass the tractor-trailer.  He crested the hill, still in the eastbound lane,
and began his descent.  He collided head-on with the eastbound vehicle driven
by Mr. Hubley.  The collision occurred in the eastbound lane;

(g)      Both
vehicles had their headlights on at the time of the collision;

(h)      Mr.
Hubley died of blunt trauma injuries to his chest as a result of the collision;
and

(i)       Both
vehicles were examined following the collision and found to be in good working
order.

[5]

No maps, drawings, or measurements of Braden Road were placed in
evidence.  The Crown tendered a series of photographs of the road from the
Alaska Highway turnoff to the site of the collision.  In addition, during
Mr. Baders evidence in-chief a DVD containing videos of that route was
tendered as evidence.  That DVD was made by Mr. and Mrs. Bader in the fall
of 2009.  Mr. Bader drove the route three times with his wife sitting in the
back seat pointing a video camera at the front window of the vehicle they were
in.  Two of the trips were in the dark; one was during daylight hours.  The
daylight video provides a clear view of Braden Roads topography while
travelling westbound from the Alaska Highway:  there is a level stretch leading
to a long steep hill, after that hill the road levels out (plateaus) for a
short distance and starts to climb again, after a short distance it drops off
quickly in a steep descent.  Although there are utility poles and trees
alongside the road that could assist a driver in appreciating the topography ahead,
they were not visible on the morning of the collision due to lighting and
weather conditions.  As well, there were no signs indicating grade changes in
the road.

[6]

Several hours after the collision, Mr. Bader was interviewed by Constable
Jackelynn Passarell of the Royal Canadian Mounted Police.  That interview was
tape-recorded.  What follows are excerpts from the transcript of that
interview:

Officer:
Okay. Okay. And so, when you decided to pass, could you see down the
road?

Bader:      Um, well I, I couldnt see a-around ah, the big load ah,
and, and actually my, h- when I pulled out I, I didnt, hadnt really decided
to pass, I, I was gonna have a look and ah, you know, I could see for a ways
but I, I ah, I honestly couldnt see far enough.

Officer:     Okay.  When you pulled out to have a look, what was,
what could you see in front of you?

Bader:
I could see a, just the road.  And ah, (indiscernible) just the
road.

...

Officer:     Okay. 
When you pulled out, could you see any vehicles oncoming?

Bader:      No.

Officer:     Could
you see down the road so that if there were vehicles oncoming, you wouldve
seen them?

Bader:      Well
I thought I could, I didnt realize that ah, that the hill there was, was that
steep or I guess was the problem, like.

...

Officer:     Uh
hm.  Okay.  So when you pull out to take a look, you can see the crest of the
hill?

Bader:
Um, you know I Im ah, its still dark and, and ah, I, I-ah yeah,
I-I I could still see road, I didnt realize we were startin down the hill
like that.

Officer:     Okay. 
Could you see headlights?

Bader:      No.

Officer:     Okay. 
Did the other vehicle have headlights on?

Bader:      Yes,
he did.

...

Officer:     Okay.  And when you pulled out to look ahead, you could
not see anything coming towards you?

Bader:      No.

Officer:     Okay.  And then once you had committed to try, started
to make that pass was when you first observed the headlights coming.

Bader:      Ah, well ah, well I, yeah I, I had decided to make the
pass and then ah, um, as soon as I had actually started-Im-I'm positive of
this, I had started to slow down before I seen the vehicle, um, because I was,
I was re-actually quite fast, you know and, and driven trucks, like how fast he
accelerated I know, I know they have all kinds of power and everything but, um,
like I could see it wasnt his intention to let us by (indiscernible) it wasnt
my (indiscernible) my family going skiing and, ah.  You know so, so I, I had
made, I-I had made the decision to slow down to, to get back in behind him in
my lane and, and, and, about that time ah, ah, well somewhere in there the, the
vehicles headlights appeared and, the truck was gone like there was lots a
room for him to go out and around, and you know the truck was already by so, so
thats how face [
sic
] he, hed been goin, or picked up his speed,
c-cause the truck was long gone.  He had time to looked like, get up, to get
over into my lane. Y-you know, it was just a move over and, it wasnt as if he
was driving there for a long time, like it, you know, it all happened within
you know, a thousand feet, somein, you know, not very, not very far eh.

[Emphasis added.]

[7]

Rodney Bruce Steiner, the driver of the tractor-trailer, first noticed
Mr. Bader attempting to pass him while on the flat (plateau) portion of Braden
Road just before the steep descent.  Based on his familiarity with Braden Road,
Mr. Steiner described that area as a non-passing spot, because of the steep
descent after the road crests.

[8]

When he first noticed Mr. Baders vehicle, Mr. Steiner was travelling at
50 to 60 kilometres per hour, having slowed from approximately 70 kilometres
per hour at the start of his climb.  He said that while on the plateau one can
see the continuation of the hill ahead but cannot see past the crest.  As Mr.
Steiners vehicle crested the hill its speed began to increase.

[9]

Brady Eugene Busche, one of the passengers in Mr. Baders vehicle, was
familiar with Braden Road.  He said that he was skeptical/nervous when
Mr. Bader pulled out to pass because he was aware of the steep drop-off ahead. 
He did not say anything as he initially thought Mr. Bader would be able to pass
the tractor-trailer before reaching the crest of the hill.

[10]

Mr. Bader was the only defence witness.  He confirmed that his statement
to the police was the truth as he knew it.  He had last driven on Braden Road
about eight years before the collision.

[11]

Mr. Bader testified that he decided to pass the tractor-trailer because
it had slowed to 20 to 30 kilometres per hour.  When he pulled out to see if he
could pass he believed he was on a portion of the road that had levelled off. 
He did not see the hill rising in front of him and did not feel the ascending
slope of the road.  Mr. Bader believed he could see a long way down the
road and that it was clear ahead.

[12]

When the tractor-trailer picked up speed, Mr. Bader said he decided not
to pass and slowed down intending to move back into the right lane.  As he
crested the top of the hill the road vanished ... and dropped off.  He then
noticed the headlights of an oncoming vehicle.  He tried but failed to avoid
colliding with that vehicle.

[13]

What follows are excerpts from Mr. Baders testimony:


In
Chief

Q         Thank
you.  And could - - when you [pulled out to pass], could you see the hill
rising in front of you.

A          The
hill, no.

Q         Okay. 
What could you see in front of you when you pulled out to pass?

A          I
could see down the road I thought was - - was quite a ways.

Q         Why did
you think that?

A          Thats
- - thats just what it looked like.

...

Q         So was
there anything in particular that you think you could see down the road?

A          I
just thought I could see a long way down the road.

Q         So, Mr.
Bader, your - - just going through the - - you - - the time just prior to the
accident.

A          Right.

Q         You had
been going up the hill behind the truck.

A          Right.

Q         You
pulled out to - - to pass, and I think what youd said to Constable Passarell was
that you pulled out, you - - you hadnt committed yourself when you pulled out.

A          No,
thats right.

Q         What
did you mean by that?

A          Well,
I - - I wanted to make sure I had a good look, that nobody was coming and - -
you know, before you speed up you make sure everything is clear and - - and it
was.

Q         Okay. 
So you looked and everything was clear.

A          Right.

Q         When
did you make the decision to - - to pass the low-bed?

A          Well, at that time, yeah.

Cross-Examination

Q         At some
time could it have been in - - in - - moments from approaching Mr. Steiners
vehicle or it could have been some time after Mr. Steiners vehicle, you
decided youre going to peek out and pass, youre going to peek out and see if
its safe; is that fair to say at this point?

A          Yes.

...

Q         Okay.
Now, lets talk about what the grade of the slope is.  Youve said its dark.

A          Yes.

Q         So you
cant - - you dont have any landmarks to see.

A          No.

Q         The
vehicle - - Mr. Steiners vehicle has slowed to a fairly slow pace because its
going up a very steep part of the hill; right?  You can feel that hill in your
vehicle, presumably your back is driven into the seat.
You - - you can feel
the slope; right?

A          No.

Q         You
dont feel the slope as youre going up the hill?  You dont recall that.

A          Not
in a pickup.  No.

Q         Can
you see the slope of the hill that youre travelling up?

A          Actually
no, I didnt realize it was that - - that steep.  Like it doesnt look like the
same - - same thing you see in the daylight.

Q         I can
appreciate its dark - -

A          Right.

Q         - - and
you dont have landmarks.  Are you aware that youre going uphill?

A          Yes, I
- - I was aware we were going up a - - a bit of a grade.

Q         And
thats when Mr. Steiners vehicle slows down is when youre going - - when
youre going up this grade; right?  Hes slowing right down to this very slow
speed you recall on the grade, on the uphill grade; right?

A          Yes,
he was slowing down, yeah.

Q         Okay.
Now, it is on this grade that you peek out to look past Mr. Steiners
vehicle to see if its safe?  Are you still going uphill when you peek out?

A          No, I
believe we were on the level on the top.

Q         Now,
you say you believe.  Could you say with certainty as you just - - youre not
sure where you made that decision; right?  You believe it was on top or youre
not certain?

A          You know, it - - its - - Im not certain, no.

Q         I know because its difficult - -

A          Right.

Q         - - because its a long time ago and a traumatic
event at the end.  It ...

A          Thats right.

Q         Assume as what we know; right?

A          Yeah.

Q         Okay.
You peek out and you look ahead.  Now, what I suggest to you is you can see - -
when you look out, youve got your headlights, perhaps one headlights is
looking past the Steiner vehicle at this time; right, its looking past the
low-bed.  You can see up the length of the Steiner vehicle; right?  You can see
up the length of that low-bed; correct?

A          You
know, I cant remember the details like that.  Like its been just about two
years.

Q         And
its dark; right?  Youve testified that its actually quite dark.  We cant
see much in these videos at all; right?

A          Yes,
its quite dark, yes.

Q         So your
- - your vision is limited by the distance of your headlights; correct?

A          Thats
right.

Q         So you
cant see - - I take - - were just looking at the roadway now.  On the roadway
itself, you cant see much past your - - if anything, past your headlights;
right?

A          Past
my headlights?

Q         Yes.

A          Yeah,
I cant say that.  He had his headlights on.

Q         Mr.
Steiner.

A          Thats
right.

Q         So you
may have had - - those lights may have illuminated the view ahead of you a bit
more?

A          Thats
possible, yeah.

Q         But
again its possible, but we - - we dont have - - you dont have a present
recollection of this.

A          I
dont, no.

Q         The
best you recall then is you looked out and you thought you could see far enough
ahead; right?

A          For
- - for the - - for the speed we were travelling, I could see far enough ahead.

[Emphasis added.]

Trial Judges Reasons

(2010 BCPC 168, 99 M.V.R. (5th) 305)

[14]

The trial judge commenced his reasons by setting out the facts that he
found had been established by the evidence.  After describing Braden Road and
the lighting and weather conditions on the morning of the collision, he
continued:

[5]        At about two kilometers west of
the junction with Highway 97, the grade of the roadway rises to a hill, is
level for a short distance and then rises again to a final crest before
beginning to drop suddenly.  There was no measurement offered in evidence of
the overall length of the hill or the length of the short level portion of
roadway.  There was no calculation or estimate of the pitch of the inclination.
 Photographs and videos introduced into evidence suggest that the overall
length of the grade is in excess of one kilometer, that the level portion is
very short and that the pitch of the inclination before and after is relatively
steep.  There are double solid lines marked on the pavement along some extent
of the incline.  Due to snow on the roadway, the lines were not visible on the
morning of January 5, 2008 and there were no signs posted at the time
indicating that passing was not permitted.
The grade itself should be
apparent to a motorist, even in the dark, when a vehicles transmission begins
to labour.  The audio portion of a video introduced into evidence by the
defence demonstrated this.
In the dark however, poles alongside the road
could not be seen in order to assist a motorist in reckoning the distance
remaining of the grade of the roadway ahead or the onset of the sudden
declivity after the final rise.

[6]        The tractor and trailer were
moving slowly and Mr. Bader pulled out on the hill to pass the unit.  According
to Mr. Bader he pulled out on the short level portion of the roadway before the
final ascent.  According to the driver of the tractor and trailer, Mr. Bader pulled
out on the final ascent.  I am prepared to accept Mr. Baders evidence of his
position on the roadway when he began to pass.  It appears that Mr. Bader may
have thought that he reached the crest of the hill when he was on the short
level portion, but he did not say so.
I infer that because he knew he was
on a grade when he caught up to the unit, he must also have known he was on a
grade after he pulled out on the short level stretch and began to climb again.
In either case, it is important to find, and I do, that Mr. Bader had not yet
reached the crest when he pulled out.

[Emphasis
added.]

[15]

The trial judge then went on to discuss what happened from the time Mr. Baders
vehicle crested the hill until it collided with Mr. Hubleys vehicle.

[16]

The judge reviewed the evidence given by various witnesses, which he
said was generally consistent about the circumstances leading up to the
collision.  In the course of that review he set out a number of excerpts from
Mr. Baders statement to the police.  He did not include any excerpts from Mr.
Baders testimony, including those set out in para. 13 above.

[17]

The trial judge summarized Mr. Baders testimony as follows:

[18]      Mr.
Baders evidence at the trial was substantially the same.  The tractor and
trailer were moving slowly and he decided to pass.  The driver of the tractor
did not give him an indication that he could pass.  He said that he pulled out
without committing to pass in order to make sure it was clear to pass.  It was
dark.  He was aware that he was going up a grade but didnt realize how steep
the hill was.  His vehicle and the tractor and trailer were then travelling the
same speed.  Mr. Bader said that he looked at the lowbed trailer and then at
the roadway and the roadway suddenly dropped off.  By then he said he had
decided not to pass and he started to fall back.  The oncoming headlights came
into view.  The headlights moved into the westbound lane and back again.  He
tried to slow down and move behind the tractor and trailer unit but it had speeded
up.  In deciding to pass he said he hadnt considered this happening.  The
collision occurred.

[18]

Under the heading LAW, the trial judge set out the relevant provisions
of the
Criminal Code
, R.S.C. 1985, c. C-46, i.e., ss. 249(1)(a) and (4). 
Those were followed by a discussion of
R. v. Hundal
, [1993] 1 S.C.R. 867
and
R. v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49, the leading decisions of
the Supreme Court of Canada on the elements of the offence of dangerous
driving.

[19]

Under the heading ANALYSIS, the judge applied that law to the
questions of whether the Crown had proven both the
actus reus
and
mens
rea
of the offence of dangerous driving.  He concludedand this is not
challenged on appealthat, viewed objectively, Mr. Bader drove his vehicle
in a manner dangerous to the public.  Turning to the mental element of the
offence, the trial judge began his discussion as follows:

[32]      The second question is whether Mr.
Bader had the necessary
mens

rea
for the offence or whether there
is a reasonable doubt that he had the necessary
mens rea
for the offence.
I consider his explanation for his manner of driving.

[33]      There is no suggestion in the
evidence that Mr. Bader was inobservant of the circumstances, as limited as
they were, under which he was driving when he pulled out.
There is also no
suggestion in the evidence that he laboured under a mistake of fact in his
perception of the circumstances
or that he was incapable of perceiving
them.

[Emphasis added.]

[20]

Applying the test set out in
Beatty
, the judge was satisfied
beyond a reasonable doubt that Mr. Baders driving amounted to a marked
departure from the norm.  Although the judge found that Mr. Bader had not
pulled out with the deliberate intention of putting anyone in danger, he found
that, having regard to all the circumstances, Mr. Bader would have been aware of
the risks created by his attempt to pass when and where he did.  In concluding
his analysis, the judge stated:

[40]      Mr. Bader cannot point to the
increase in the speed of the tractor as an excuse for his conduct.  He was
himself a professional driver.  He was already in the opposing lane and when
both vehicles reached the crest of the road, he must have known that the
slower, heavier vehicle on an incline will pick up speed on the level or
decline.  As a professional driver, he must also have known the danger inherent
by the drivers applying the brakes of the tractor and trailer unit on a
decline in winter road conditions.

[41]      A
driver possessed of this information would have been aware of the risks and the
danger of Mr. Baders manner of driving.  The reasonable driver aware of these
risks and with the limited capacity to assess the safety of a passing manoeuvre
would not have deliberately entered and remained in the oncoming lane on this
roadway.  Mr. Baders evidence and the evidence at the trial as a whole do not
raise a reasonable doubt that someone in his position would not have been aware
of the risks created by this manner of driving.

Analysis

Misapprehension of the Evidence

[21]

Mr. Baders primary defence at trial was that when he commenced his passing
manoeuvre he honestly believed, based on his senses, that the road ahead was
level and clear.  In other words, he believed it was safe to pass.  He submits
that the trial judge, in addressing the
mens rea
element of dangerous
driving, failed to consider his evidence with respect to that belief and that,
as a result, the trial was unfair.  I agree with that submission.

[22]

Mr. Bader testified that he pulled out from behind the tractor-trailer
on a level stretch of road and, having done so, did not realize that the roads
grade had started to rise again.  Further, he said that before cresting the
hill he believed he could see far enough down the road to determine that it was
safe to pass.

[23]

A finding of fact important to the trial judges ultimate conclusion was
that Mr. Bader must have known that the roads grade started to rise
again.  The judge expressly made this finding at para. 6 of his reasons. 
Although in that paragraph the judge refers to other aspects of Mr. Baders evidence,
no mention is made of the testimony to which I have just referred.  If the
judge rejected Mr. Baders testimony regarding what he believed about the grade
of the road and what lay ahead, then I would have expected the judge to have explained
why he reached that conclusion.  It is noteworthy that when the judge later
came to review Mr. Baders evidence, he again made no mention of how Mr. Bader
said he perceived the circumstances.

[24]

That the trial judge overlooked this aspect of Mr. Baders testimony is further
reflected in that portion of his reasons dealing with the
mens rea
element of the offence.  In para. 32 of those reasons, the judge begins his
consideration of Mr. Baders explanation for his manner of driving. 
However, in the following paragraph he states that there is no suggestion in
the evidence that [Mr. Bader] laboured under a mistake of fact in his
perception of the circumstances.  This is a clear indication that the judge
misapprehended, or failed to consider, an important aspect of Mr. Baders
testimony.

[25]

In response to Mr. Baders argument, the Crown points to the fact that it
has never been disputed that part of the passing manoeuvre took place while
Mr. Baders vehicle was proceeding up a hill.  That, however, is not
determinative of the issue of what Mr. Bader perceived the grade to be at the
relevant time.  Neither is the testimony given by other witnesses with respect
to the topography and the road and weather conditions.

[26]

It is clear from
Beatty
that a mistake-of-fact defence is open to
a person charged with dangerous driving.  In that case, Madam Justice Charron
stated that a reasonably held mistake of fact may provide a complete defence
if, based on the accuseds reasonable perception of the facts, the conduct
measured up to the requisite standard of care:  para. 38.  The problem in the
case at bar is that the trial judge did not turn his mind to that question. 
Accordingly, it cannot be said, as the Crown submits in its factum, that there
was nothing to suggest that [Mr. Bader] had a reasonably based belief in a
state of facts that would have led him to mistakenly believe he could see far
enough ahead of him to properly assess his ability to pass.

[27]

The threshold for establishing a misapprehension of evidence sufficient
to overturn the decision of a trial judge is a high one.  It was succinctly
stated by Chief Justice Finch in
R. v. Peters
, 2008 BCCA 446, 262
B.C.A.C. 57:

[14]      Material
misapprehension of the evidence can justify appellate intervention.  The
standard is a stringent one:  the misapprehension of the evidence must go to
the substance rather than to the detail; it must be material to the reasoning
of the judge and not peripheral; and the errors must play an essential part not
only in the narrative of the judgment but in the reasoning process itself.  If
this standard is met, appellate intervention is justified, even if the evidence
actually does support the conclusion reached:  [citations omitted].

Also apposite is the judgment of
Madam Justice Bennett in
R. v. Shen
, 2010 BCCA 554:

[29]      The question, then, is
whether the errors, admittedly made by the trial judge, played an essential
part in the reasoning process resulting in a conviction.  The test is
stringent, because it is easy, in a busy trial court or after a long trial, for
a judge to misspeak, even when reading from written reasons.  Misspeaking or misapprehending
evidence is not an error unless the error or errors go to the core of the
reasoning process which resulted in a conviction.

[28]

In my view, that threshold has been met in the case at bar.  Because the
trial judge failed to consider Mr. Baders evidence as to why he perceived that
it was safe to pass, Mr. Bader did not receive a fair trial:
R. v. Lohrer
,
2004 SCC 80, [2004] 3 S.C.R. 732 at para. 1, citing
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 221.  As a result, there must be a new
trial.

Use of the Audio-Track of the DVD

[29]

As previously mentioned, the defence tendered a DVD containing a
video-recording of three trips Mr. and Mrs. Bader made along Braden Road more
than a year after the collision.  That recording has an audio-track.  For the
most part all that can be heard are sounds made by the vehicle Mr. and
Mrs. Bader were in and other vehicles on the road.  There is minimal conversation
between Mr. and Mrs. Bader.  Both the video and audio-tracks are part of
the trial record.

[30]

The DVD was played during Mr. Baders examination-in-chief and
cross-examination and he was questioned about what it depicted.  He was not
questioned about the audio-track.  As the transcript filed on the appeal does
not contain counsels oral submissions, it is not possible to say whether
either of them referred to the audio-track in advancing their respective
positions.  However, the written submissions counsel provided to the trial
judge were filed on the appeal.  Those do not contain any reference to the audio-track.

[31]

It is, however, clear that the trial judge did have regard to the
audio-track.  For ease of reference, I repeat what he said about it in para. 5
of his reasons:

The grade itself
should be apparent to a motorist, even in the dark, when a vehicles
transmission begins to labour.  The audio portion of a video introduced into
evidence by the defence demonstrated this.

In the following paragraph the
judge said:

I infer that
because [Mr. Bader] knew he was on a grade when he caught up to the unit, he
must also have known he was on a grade after he pulled out on the short level
stretch and began to climb again.

[32]

It is not disputed that the audio-track indicates that the transmission
noise of the vehicle Mr. Bader was driving in the 2009 DVD increased as that
vehicle proceeded up the grade to the crest of the hill.  However, there is no
evidence that Mr. Bader was aware of that noise.  More importantly, there
is no evidence that the transmission of the vehicle Mr. Bader was driving on
January 5, 2008, made a similar noise and, even if it did, that such noise
would have been apparent to him.  In this regard, I note that there is a dearth
of evidence with respect to such matters as whether there was music playing in
Mr. Baders vehicle on the morning of the collision, or the level of
conversation inside the vehicle at that time.

[33]

Although it is not entirely clear, it appears that the trial judge may
have taken the transmission noise into account in deciding that, after Mr.
Bader pulled out to pass, he must have known that he was again travelling up a
hill because that noise would have been apparent to him.  If the judge did do so,
then in my opinion, he erred.  However, it may also be, as submitted by the
Crown, that the judge did not use the transmission noise to either bolster the
Crowns case or to negate Mr. Baders evidence, but rather, treated it as
merely confirmatory of a fact that was not in dispute, i.e., that the grade
increased after Mr. Bader pulled out.

[34]

Given that the reasons leave open the possibility that the transmission-noise
evidence was misused, I would give effect to this ground as well.  However, I do
not agree with Mr. Bader that this error entitles him to an acquittal because, otherwise
at a new trial, the Crown might to able to call additionalperhaps
expertevidence with respect to transmission noise.  The use of a particular
piece of evidence to draw an unavailable inference does not lead to an
acquittal on appeal when the balance of the evidence could support a
conviction.  The only available remedy is a new trial.

Conclusion

[35]

I would allow this appeal, set aside the conviction, and order a new
trial.

The Honourable Mr. Justice Frankel

I agree:

The Honourable Mr. Justice Low

I agree:

The Honourable Mr. Justice
Hinkson


