R. v. Le (T.Q.), (2008) 453 A.R. 162 (PC)

• Judge: Fradsham, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: September 05, 2008
• Citations: (2008), 453 A.R. 162 (PC);2008 ABPC 257

R. v. Le (T.Q.) (2008), 453 A.R. 162 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. SE.053

Her Majesty The Queen v. Tao Quang Le (070104377P101001-002; 2008 ABPC 257)

Indexed As: R. v. Le (T.Q.)

Alberta Provincial Court

Fradsham, P.C.J.

September 5, 2008.

Summary:

The accused was charged with mischief causing actual danger to life (Criminal Code, s. 430(2)) and dangerous driving (s. 249(1)(a)).

The Alberta Provincial Court found the accused guilty of dangerous driving. He was found not guilty of mischief causing actual danger to life, but guilty of the lesser included offence of mischief.

Criminal Law - Topic 1391

Motor vehicles - Dangerous driving - What constitutes - [See Criminal Law - Topic 2258 ].

Criminal Law - Topic 2258

Wilful acts respecting property - Mischief - Causing actual danger to life - The accused deliberately rammed his vehicle into the front of the victim's vehicle at least twice, causing sufficient damage to render the vehicle inoperable - He was charged with mischief "causing actual danger to life" (Criminal Code, s. 430(2)) and dangerous driving - The Alberta Provincial Court found the accused not guilty of mischief "causing actual danger to life" - There was no evidence of the speed at which the accused struck the victim, no evidence as to how far the vehicle was moved (violence of collisions) and no expert or lay evidence as to what constituted the "actual danger to life" resulting from the impact suffered by the victim - However, the accused was found guilty of mischief and dangerous driving.

Criminal Law - Topic 5409

Evidence and witnesses - Witnesses - Duty of Crown to call witnesses - The accused was charged with offences resulting from allegedly ramming his vehicle into the victim's vehicle at least two times - The victim testified - The accused argued that the Crown failed to call evidence to corroborate the victim's version of the events (content of 911 call and witnesses from the scene) - Although the accused did not specifically seek an adverse inference against the Crown, the drawing of an adverse inference was implied - The Alberta Provincial Court stated that "the Crown is under no obligation to call a witness it considers unnecessary to the prosecution's case" - The court discussed when the failure to call a witness will result in the drawing of an adverse inference - The court stated that "I would not draw an inference adverse to the Crown for not calling witnesses other than the complainant and one of the attending officers. There is nothing to suggest that the decision of the Crown not to call additional evidence was motivated by improper considerations. Crown counsel simply made a tactical decision as she was permitted to do. Whether that tactical decision works to the Crown's advantage will be determined after the reliability of the evidence which was called is determined." - See paragraphs 12 to 15.

Evidence - Topic 2250

Special modes of proof - Judicial notice - Particular matters - Geography and topography (incl. maps) - The accused was charged with offences resulting from allegedly ramming his vehicle into the victim's vehicle at least two times - The Alberta Provincial Court referenced a map from the Land Information and Mapping Department of the City of Calgary, attaching it as an Appendix to the judgment - The court stated that although the map was not entered into evidence at trial, the court could take judicial notice of facts which were "capable or immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy" - The court noted other cases where judicial notice was taken of maps of indisputable accuracy - See paragraph 27.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - [See Criminal Law - Topic 5409 ].

Cases Noticed:

R. v. Jolivet (D.) (2000), 254 N.R. 1 (S.C.C.), refd to. [para. 13].

O'Connell v. Adams, [1973] R.T.R. 150 (Eng. Q.B.), refd to. [para. 22].

R. v. Covert, [1917] 1 W.W.R. 919 (Alta. C.A.), refd to. [para. 23].

Lord Advocate v. Lord Blantyre (1879), 4 App. Cas. 770 (H.L.), refd to. [para. 25].

R. v. Laviolette (D.) (1996), 145 Sask.R. 71 (Q.B.), refd to. [para. 27].

R. v. Daley (W.C.) (2008), 328 N.B.R.(2d) 156; 841 A.P.R. 156; 58 M.V.R. (5th) 199 (Q.B.), refd to. [para. 27].

Butterfield v. Butterfield Estate, [1992] O.J. No. 61 (Gen. Div.), refd to. [para. 27].

R. v. Bueschkens (1980), 26 A.R. 114 (C.A.), refd to. [para. 28].

R. v. Gunning (J.J.) (2005), 333 N.R. 286; 211 B.C.A.C. 51; 349 W.A.C. 51 (S.C.C.), refd to. [para. 39].

R. v. Beatty (J.R.) (2008), 371 N.R. 119; 251 B.C.A.C. 7; 420 W.A.C. 7 (S.C.C.), refd to. [para. 41].

R. v. Ferguson (T.J.) (2005), 389 A.R. 366 (Q.B.), refd to. [para. 45].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed. 1976), p. 22 [para. 25].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), paras. 7.4, 7.5 [para. 19]; 19.13 [para. 27].

Counsel:

V. Faulkner, for the Crown;

H. Wolsh, Q.C., for the accused.

This matter was heard at Calgary, Alberta, before Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on September 5, 2008.