A dump-truck driver who crossed a double-yellow line, killing a South Surrey man in 2011, took a 鈥渃alculated, deliberate risk鈥� that resulted in the head-on collision, Surrey Provincial Court heard Tuesday.
Glen Edward Theriault鈥檚 decision to cross out of the westbound lane in the 19800-block of 16 Avenue and travel in the wrong lane, leading to the , 59, on Jan. 18 was not the action of 鈥渁 reasonable person,鈥� Crown prosecutor Winston Sayson told Judge Paul Dohm during closing arguments.
The trial had been after the defence asked to recall a forensic collision reconstructionist who had attended the scene. Defence counsel Rishi Gill had told Dohm he had worded a question poorly and asked to clarify the evidence.
This week, Gill asked Dohm to 鈥渄isregard鈥� or 鈥渧oid鈥� previous testimony and refer to the witness鈥檚 latest answers, along with videos and photos he had taken on Sept. 29.
However, Dohm denied the request, telling Gill that 鈥渏ust because you don鈥檛 like someone鈥檚 answers鈥� doesn鈥檛 mean he would void the testimony, adding the witness could change his answers, but it 鈥渃alls into question his credibility and reliability.鈥�
Later, Gill argued that while 鈥�actus reus鈥� (鈥榞uilty act鈥�) had occurred when Theriault had crossed the westbound lane to overtake another car, the 鈥�mens rea鈥� (鈥榞uilty mind鈥�) was not proven beyond a reasonable doubt.
鈥淭heriault thought the road was clear ahead,鈥� Gill told the court. 鈥淛ust passing a double-yellow solid is not enough (to equate a dangerous-driving conviction).鈥�
Gill added that given Theriault鈥檚 belief the road was clear ahead, it was not a 鈥渕arked departure of a reasonable person鈥� to cross the double-yellow line to pass a car.
鈥淎 reasonable driver is not a perfect driver,鈥� the defence lawyer said.
Gill said the collision should be considered an act of 鈥渟imple negligence,鈥� referring to statements Theriault made at the scene that the attempt to pass was a 鈥渂ad three-second decision鈥� and that he didn鈥檛 see the vehicle approaching in the eastbound lane.
Gill added that had there not been a fatality, Theriault may not even have been charged with negligence.
Sayson argued that a reasonable person would know a double-yellow line is a clear indicator that it is not safe to pass, and that Theriault鈥檚 state of mind was key.
Sayson cited comments Theriault made to 91原创 RCMP about being late to drop his truck off in Delta and concerns about losing his job as a result.
鈥淎ll of that shoots down that he thought it was safe to pass,鈥� Sayson said. 鈥淚t doesn鈥檛 excuse that you killed somebody to bring a truck to Delta鈥� A reasonable person knows what a double-yellow line means. Of course you can鈥檛 see, that鈥檚 what a double-yellow line means. You don鈥檛 pass.鈥�
Gill asked that Theriault鈥檚 comments relating to the crash being a 鈥渂ad three-second decision鈥� and that he did not see the other vehicle should be 鈥渁dopted specifically.鈥�
鈥淭hose two statements are what should be given the most weight,鈥� the defence lawyer argued.
However, the judge rejected that argument.
鈥�(You want me to give) the greatest weight to the ones that help you and ignore the ones that don鈥檛?鈥� Dohm said.
Sayson noted that in order for the evidence to be considered, the judge must take the statements in their entirety.
The trial is scheduled to continue Friday.
