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EVIDENCE - Burden and standard of proof - Documentary evidence - Photographs and video recordings

Wednesday, April 01, 2020 @ 9:06 AM  


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Appeal by the Crown from the respondent’s acquittal on a charge of dangerous driving causing death. The respondent drove his motorcycle into an intersection on an amber light and collided with another vehicle turning left in front of him, resulting in the death of his passenger. A vehicle adjacent to the respondent had stopped at the intersection. That vehicle’s dash camera provided a high-quality recording of the incident. The trial judge refused to review the dash camera recording for the purposes of determining the position of the motorcycle when the light turned amber. The trial judge found the Crown had proven beyond a reasonable doubt the respondent drove in a manner that was dangerous to the public but was not satisfied the Crown had proven the mens rea of the offence.

HELD: Appeal allowed; new trial ordered. The trial judge erred by requiring the Crown to prove the respondent’s speed beyond a reasonable doubt, by failing to consider the video evidence in relation to the respondent’s position on the road when the light turned amber and to observe the adjacent vehicle’s manner of stopping and by declining to determine if the respondent could have safely stopped in the absence of expert evidence. While speed could be relevant to the determination of the elements of the offence of dangerous driving, it was not of itself an element of the offence and did not need to be proven beyond a reasonable doubt. In the face of the video evidence, expert evidence was not required to reach reasonable inferences regarding the respondent’s ability to stop relative to other vehicles on the road. The verdict would not necessarily have been the same had the errors not occurred.

R. v. Gartner, [2020] S.J. No. 46, Saskatchewan Court of Appeal, R.K. Ottenbreit, B. Barrington-Foote and J.A. Tholl, JJ.A., February 10, 2020. Digest No. TLD-March302020007