R. v. Lozinski (W.G.), 2009 BCCA 544

• Judge: Saunders, Tysoe and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 05, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 544;(2009), 280 B.C.A.C. 81 (CA)

R. v. Lozinski (W.G.) (2009), 280 B.C.A.C. 81 (CA);

    474 W.A.C. 81

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. DE.026

Regina (respondent) v. Walter George Lozinski (appellant)

(CA034957; 2009 BCCA 544)

Indexed As: R. v. Lozinski (W.G.)

British Columbia Court of Appeal

Saunders, Tysoe and Groberman, JJ.A.

December 3, 2009.

Summary:

The accused was convicted of dangerous driving causing death and failing to remain at the scene of an accident. He appealed his convictions.

The British Columbia Court of Appeal allowed the appeal from the conviction of dangerous driving causing death and ordered a new trial with respect to that offence. The appeal respecting the conviction of failing to remain at the scene of the accident was dismissed.

Criminal Law - Topic 1391.2

Offences against person and reputation - Motor vehicles - Dangerous driving - Causing death or bodily harm - The accused, a professional truck driver, was driving a "Super B train" unit (i.e., a truck tractor and two trailers) when the rear trailer crossed over the centre lane and struck a car travelling in the opposite direction, killing the driver of the car - It was dark and raining heavily - There was no evidence of speeding, alcohol or drug involvement or erratic driving before the accident - The accused was convicted of dangerous driving causing death - He appealed - The British Columbia Court of Appeal allowed the appeal and ordered a new trial - The trial judge erred in concluding that the mens rea of the offence was made out by the simple fact that the second trailer of the unit had crossed the centre line and caused the accident - As a result, the trial judge erred by failing to properly consider the mens rea of the offence, including a consideration of the conduct of the accused along the "continuum of negligence" - See paragraphs 13 to 20.

Criminal Law - Topic 1393

Offences against person and reputation - Motor vehicles - Dangerous driving - Intention or mens rea - [See Criminal Law - Topic 1391.2 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - The accused, a professional truck driver, was driving a "Super B train" unit (i.e., a truck tractor and two trailers) when the rear trailer crossed over the centre lane and struck a car travelling in the opposite direction, killing the driver of the car - The accused did not realize he had hit a vehicle and did not stop at the accident scene - He was convicted of leaving the scene of an accident - The accused appealed, arguing that the opinion evidence of an expert (Weicker), relied upon by the trial judge, was outside the fields of expertise in which Weicker was accepted as an expert and was beyond his expertise - The accused argued that Weicker was qualified as an expert in the field of handling procedures, but not in the handling of trucks generally - The British Columbia Court of Appeal rejected the accused's argument - The court noted that the accused's trial counsel had not objected to or commented upon the opinion evidence - In any event, the court found that it was clear from Weicker's experience that he did, in fact, possess expertise in the handling of Super B units and his opinion about their handling was admissible - Weicker's lack of actual experience with respect to the particular events in question went to the weight to be given to his opinions by the trial judge - The trial judge exercised his discretion to rely on the opinion evidence in convicting the accused and no error had been demonstrated in that regard - See paragraphs 22 to 30.

Cases Noticed:

R. v. Beatty (J.R.) (2006), 225 B.C.A.C. 154; 371 W.A.C. 154; 2006 BCCA 229, refd to. [para. 13].

R. v. Beatty (J.R.), [2008] 1 S.C.R. 49; 371 N.R. 119; 251 B.C.A.C. 7; 420 W.A.C. 7; 2008 SCC 5, refd to. [para. 15].

R. v. Hundal (S.), [1993] 1 S.C.R. 867; 149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241, refd to. [para. 16].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 22].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 108 D.L.R.(4th) 47, refd to. [para. 25].

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. 29].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 33].

Counsel:

M.F. Allen, for the appellant;

K.D. Madsen, for the (Crown) respondent.

This appeal was heard in Victoria, British Columbia, on November 5, 2009, before Saunders, Tysoe and Groberman, JJ.A., of the British Columbia Court of Appeal. The following decision was delivered for the court, by Tysoe, J.A., on December 3, 2009, in Vancouver, British Columbia.