R. v. Nottebrock (A.K.),

• Judge: Wittmann
• Neutral Citation: 2014 ABQB 318
• Citation: (2014), 589 A.R. 332 (QB),2014 ABQB 318,589 AR 332,(2014), 589 AR 332 (QB),589 A.R. 332
• Date: 29 May 2014
• Court: Court of Queen's Bench of Alberta (Canada)

R. v. Nottebrock (A.K.) (2014), 589 A.R. 332 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JN.014

Her Majesty the Queen (Crown) v. Amie Kristen Nottebrock (accused)

(120208939Q1; 2014 ABQB 318)

Indexed As: R. v. Nottebrock (A.K.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Wittmann, C.J.Q.B.

May 29, 2014.

Summary:

The accused was operating a motor vehicle while impaired by alcohol and while her blood alcohol level was over the legal limit. She entered an intersection on a red light and struck another motor vehicle lawfully in the intersection causing the death of that driver and the death of the accused's passenger. She was charged with two counts of impaired driving causing death (counts 1 and 2), two counts of driving while her blood alcohol level was over the legal limit causing death (counts 3 and 4), and two counts of criminal negligence causing death (counts 5 and 6). At trial, the accused conceded that the Crown had proven the charges alleging impaired driving causing death and "over .08" causing death. At issue was whether the accused was guilty of criminal negligence causing death in the operation of a motor vehicle or the included offence of dangerous driving causing death.

The Alberta Court of Queen's Bench convicted the accused of all counts, including the two counts of criminal negligence in the operation of a motor vehicle causing death. Having regard to the Kienapple principle the court stayed the convictions on counts 3 and 4.

Criminal Law - Topic 1352

Motor vehicles - Criminal negligence in the operation of motor vehicle - Intention or mens rea - [See both Criminal Law - Topic 1353 ].

Criminal Law - Topic 1353

Motor vehicles - Criminal negligence in operation of motor vehicle - Causing death - The accused was operating a motor vehicle while impaired by alcohol and while her blood alcohol level was over the legal limit (between .222-.227) - She went through a red light between 135 and 145 kmph and struck another motor vehicle causing the death of that driver and the death of the accused's passenger - The intersection was well lit, road conditions were dry and the weather clear - The accused was charged with two counts of criminal negligence in the operation of a motor vehicle causing death - The Alberta Court of Queen's Bench convicted the accused - The actus reus was established - She was driving in a manner that demonstrated a wanton or reckless disregard for the lives or safety of others - The mens rea was also established - She demonstrated a marked and substantial departure from the standard of care expected of a reasonable person in the circumstances - See paragraphs 70 to 73.

Criminal Law - Topic 1353

Motor vehicles - Criminal negligence in operation of motor vehicle - Causing death - The Alberta Court of Queen's Bench reviewed the principles applicable in determining whether conduct constituted criminal negligence in the operation of a motor vehicle causing death or dangerous driving causing death - See paragraphs 38 to 69 - The court stated, inter alia, that "The fundamental difference between dangerous driving causing death and criminal negligence in the operation of a motor vehicle causing death is that in dangerous driving, to prove the mental element, one need only to be satisfied beyond a reasonable doubt that a marked departure from the standard of care of a reasonable person in the circumstances be established. Further, there is no need to establish wanton or reckless disregard for the lives and safety of others, but rather that the driving, having regard to all of the circumstances, was in a manner dangerous to the public" - See paragraph 69.

Criminal Law - Topic 1391.2

Motor vehicles - Dangerous driving - Causing death or bodily harm - [See both Criminal Law - Topic 1353 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 26 C.R.N.S. 1; 44 D.L.R.(3d) 351, refd to. [para. 35].

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. 38].

R. v. Roy (R.L.) (2012), 430 N.R. 201; 321 B.C.A.C. 112; 547 W.A.C. 112; 35 D.L.R.(4th) 193; 2012 SCC 26, refd to. [para. 38].

R. v. Tschetter (D.J.) (2009), 466 A.R. 213; 2009 ABPC 125, refd to. [para. 38].

R v Yazlovasky, [1995] 5 W.W.R. 334, refd to. [para. 38].

R. v. Anderson, [1990] 1 S.C.R. 265; 105 N.R. 143; 64 Man.R.(2d) 161, refd to. [para. 38].

R. v. Gratton (A.L.) (2003), 341 A.R. 201; 23 Alta. L.R.(4th) 214; 2003 ABQB 728, refd to. [para. 38].

R. v. Brander (K.J.) (2003), 341 A.R. 104; 2003 ABQB 756, refd to. [para. 38].

R. v. J.F. (2008), 380 N.R. 325; 242 O.A.C. 338; 2008 SCC 60, refd to. [para. 38].

R. v. Tayfel (M.) (2009), 245 Man.R.(2d) 300; 466 W.A.C. 300; 2009 MBCA 124, refd to. [para. 38].

R. v. J.L. (2006), 206 O.A.C. 205; 204 C.C.C.(3d) 324 (C.A.), refd to. [para. 38].

R. v. Hnatiuk (1983), 45 A.R. 125 (C.A.), refd to. [para. 38].

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; 79 C.C.C.(3d) 97, refd to. [para. 40].

R. v. Tutton and Tutton, [1989] 1 S.C.R. 1392; 98 N.R. 19; 35 O.A.C. 1, refd to. [para. 40].

R. v. Waite, [1989] 1 S.C.R. 1436; 98 N.R. 69; 35 O.A.C. 51, refd to. [para. 40].

R. v. Anderson, [1990] 1 S.C.R. 265; 105 N.R. 143; 64 Man.R.(2d) 161, refd to. [para. 53].

R. v. J.L. (2006), 206 O.A.C. 205; 204 C.C.C.(3d) 324 (C.A.), refd to. [para. 54].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 219(1), sect. 220, sect. 249(1), sect. 249(4) [para. 37].

Counsel:

Jonathan W. Hak, Q.C., for the Crown;

Alain Hepner, Q.C., and Gloria Froese, for the accused.

This matter was heard on May 5, 6, and 7, 2014, before Wittmann, C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on May 29, 2014.