R. v. Kornkven (J.N.), (2007) 301 Sask.R. 162 (QB)

• Judge: Chicoine, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 29, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 301 Sask.R. 162 (QB);2007 SKQB 315

R. v. Kornkven (J.N.) (2007), 301 Sask.R. 162 (QB)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. SE.027

Jared N. Kornkven (appellant) v. Her Majesty the Queen (respondent)

(2006 QB No. 6; 2007 SKQB 315)

Indexed As: R. v. Kornkven (J.N.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Estevan

Chicoine, J.

August 29, 2007.

Summary:

The accused was charged with impaired driving and failing to stop after colliding with another vehicle.

The Saskatchewan Provincial Court, in a decision reported at 274 Sask.R. 208, found the accused guilty of failing to stop, but not guilty of impaired driving. The accused appealed from the conviction for failing to stop.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Criminal Law - Topic 1359

Motor vehicles - Failing to stop or remain at accident scene - Evidence and proof - The trial judge found the accused guilty of failing to stop where the judge was satisfied beyond a reasonable doubt that the accused drove his truck, collided with another vehicle (a Camaro) and drove away - The accused appealed from the conviction - The accused argued that it was an error in law for the trial judge to qualify an auto body shop owner (Powell) as an expert qualified to provide opinion evidence as to whether the accused's vehicle caused the damage to the Camaro, and as to the type of damage that would be expected on the accused's vehicle if it had been involved in the collision with the Camaro, and then to rule, after Powell had testified as an expert, that he had no qualifications to give an opinion in these matters - The Saskatchewan Court of Queen's Bench dismissed the appeal - Powell had no qualifications in the area of accident reconstruction and he should not have been tendered as an expert to give evidence on the type of damage you might expect to find on one vehicle as a result of the damage observed on another - However, the court concluded that while it would have been better if the trial judge had refused to allow Powell to testify as an expert on the issue, the accused's defence was not compromised as the trial judge had dismissed Powell's evidence as being of no assistance - See paragraphs 46 to 53.

Criminal Law - Topic 5422

Evidence and witnesses - Examination of accused - Credibility - The trial judge found the accused guilty of failing to stop where the judge was satisfied beyond a reasonable doubt that the accused drove his truck, collided with another vehicle and drove away - The trial judge found the accused's evidence not to be credible and rejected his testimony that he was not the driver involved in the collision - On the issue of the accused's credibility, the trial judge referred to "the lack of any feasible explanation for his failure to contact the R.C.M.P. when he knew they wanted to talk to him" - On appeal from the conviction, the accused argued that the trial judge erred in relying on the accused's post-offence conduct in not speaking to the R.C.M.P. and in drawing an adverse inference against him - The Saskatchewan Court of Queen's Bench concluded that it was not the failure to contact the R.C.M.P. that concerned the trial judge, but the contradictions in the accused's explanation for not contacting the R.C.M.P. - The trial judge found the accused's answers on the matter to be evasive - The trial judge was not wrong in using this evidence in his analysis of the accused's credibility - See paragraph 41.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - [See Criminal Law - Topic 1359 ].

Evidence - Topic 7003.2

Opinion evidence - Expert evidence - General - When expert evidence required - [See Evidence - Topic 7114 ].

Evidence - Topic 7114

Opinion evidence - Nonexpert evidence - Intoxication or impairment - The trial judge found the accused guilty of failing to stop where the judge was satisfied beyond a reasonable doubt that the accused drove his truck, collided with another vehicle and drove away - The trial judge found the accused's evidence not to be credible and rejected his testimony that he was not the driver involved in the collision - In support of that finding, the trial judge mentioned that the accused did not tell the truth when he testified as to the number of drinks that he had that evening - The trial judge concluded that the signs of impairment described by four Crown witnesses would have required the accused to have consumed much more than three drinks - On appeal from the conviction, the accused argued that the trial judge was not entitled to draw such a conclusion in the absence of expert evidence - The Saskatchewan Court of Queen's Bench held that the trial judge was entitled to apply common sense to this factual situation and to conclude that the accused was not telling the truth with regard to the amount of alcohol he had consumed - See paragraph 40.

Cases Noticed:

R. v. S.E.M. (2005), 265 Sask.R. 193; 2005 SKQB 213, refd to. [para. 6].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 7].

R. v. McKenzie (P.N.) (1996), 141 Sask.R. 221; 114 W.A.C. 221 (C.A.), refd to. [para. 19].

R. v. Miller (G.), [2005] Sask.R. Uned. 216; 2005 SKQB 530, refd to. [para. 40].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 114 D.L.R.(4th) 419, refd to. [para. 47].

R. v. Hatcher (E.), [2005] O.T.C. 425; 20 M.V.R.(5th) 123 (Sup. Ct.), refd to. [para. 50].

R. v. Brander (K.J.) (2003), 341 A.R. 104; 2003 ABQB 756, refd to. [para. 50].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; 138 D.L.R.(3d) 202, refd to. [para. 51].

R. v. Bamdad (A.R.), [2007] B.C.A.C. Uned. 33; 2007 BCCA 99, refd to. [para. 54].

Counsel:

Brian M. Banilevic, for the appellant;

Leta M. Brierly, for the Crown.

This appeal was heard before Chicoine, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Estevan, who delivered the following judgment on August 29, 2007.