CASE LAW - R v Munden

BC Courts Coat of ArmsJoseph Munden and Ephrahim Barnett used to be neighbours, did not care for each other and were not on good terms. May 8, 2019 found the two at the intersection of 4th Avenue North and Proctor Street in Williams Lake. Mr. Barnett was riding his bicycle southbound on 4th and Mr. Munden turned from eastbound on Proctor to northbound on 4th.

Mr. Munden accelerated directly at Mr. Barnett, striking him and throwing him with significant force into the parking lot adjacent to the sidewalk.

Following the collision, Mr. Munden drove his vehicle onto the sidewalk on 4th Avenue, narrowly missing a parked car before returning to the road and driving away. Mr. Munden did not stop his vehicle or even slow down before leaving the scene, despite being aware or reckless as to whether or not Mr. Barnett was injured. Much of the interaction between Mr. Munden and Mr. Barnett was caught on dashboard camera footage obtained from a vehicle parked on 4th Avenue North.

Mr. Barnett was injured as a result of the collision. During the trial, he described suffering broken fingers; injuries to his hip, knees and ankle; a bruised back and road rash. He suggested that surgery was required to repair some of the injuries, although he provided no specifics. He also described feeling paranoid and afraid to ride his bicycle.

At the conclusion of the police investigation into the incident, Mr. Munden was charged with three counts under the Criminal Code:

  1. Assault with Weapon
  2. Operating a Motor Vehicle in a Manner Dangerous to the Public and Causing Bodily Harm
  3. Failing to Remain at the Scene of an Accident

Judge P.D. Whyte found Mr. Munden guilty of all counts and imposed the following penalties:

  1. For the offence of Dangerous Driving Causing Bodily Harm, I sentence you to a 15 month term of imprisonment, plus the mandatory $1000.00 fine.
  2. For the offence of Assault with Weapon, I sentence you to a six month term of imprisonment, to be served concurrent to the sentence for Dangerous Driving Causing Bodily Harm.
  3. For the offence of Failing to Stop at the Scene of an Accident and Offer Assistance, I sentence you to a six month term of imprisonment, to be served consecutive to the other two offences, plus the mandatory $1000.00 fine.

The total term of imprisonment is 21 months, the fines total $2,000 and a driving prohibition of two years was also imposed.

This case was called to my attention by a DriveSmartBC newsletter reader who was concerned that the penalty for Mr. Munden's actions was not severe enough.

Other examples of case law involving a death:

Comments

My View

But the first lines of the sentence caught my attention very quickly and prompts this note.

I log many Km's during the cycling season and see many instances of negligent behaviour, but just this past early November, I was in a position that a vehicle came too close for comfort.

I was crossing a well travelled bridge during a windy day; not only was that a reason to be concentrating, but there isn't an established Bicycle lane, so we regularly ride with traffic.

The powers that be, have put up a cyclist stimulated sign that begins flashing overhead and warning of "Cyclist on Bridge", to vehicle operators.

Ambiguous message some would say, what's a vehicle operator to do with it?

The idea is for the cyclist to have the lane, and vehicles are to remain behind until it is safe to pass.

Rarely does this scenario work out the way the bureaucrat thought it would; rather, cars are usually crowding the cyclist(who has to mind the raised curb sidewalk and drainage grates, who has to be 300mm away from the curb to miss those. When the wind blows or the cyclist is not completely competent, the distance from the curb/grates will be more.

Now add in the initiative to have 1.5m from cyclists' elbows to vehicle mirror at speeds over 50Km/Hr(the bridge speed limit is 50Km/Hr, but really, that never happens); under 50 and 1m is standard. So you begin to see the lane we share with vehicles is getting too tight to pass safely. Here's the rub: the cyclist gets the short end of the stick 99% of the time, when an incompetent operator scrapes by.

The driver that passed me, on that windy day did so against better judgment and reasoning; he clearly hadn't been reading the sign not more than 20 seconds earlier. Or couldn't care less.

I yelled my best, !OY!, DON'T DO THAT!.

I was able to see him clearly for that split second.

He heard me as his reaction was to shake his head. There wasn't any gesticulation to him on my part, I was too busy adjusting to the wind gusts.

I thought that I had seen the last of him.

On my return ride, I was accosted by the same vehicle, only this time a lot closer and with his horn blasting in my left ear; he had to be over the Fog line to be so close. I was shocked.

I pulled over and immediately phoned the Nelson RCMP, reported his description, down to his glasses, plaid jacket and approximate age and height, vehicle description and year, to the extension ladders on his roof and his regi number.

In these circumstances, one must be calm enough to record properly. Turns out I wasn't, although I was very sure. I mistook a letter, and the poor officer couldn't match the suburban to the plate. I say poor because he was the only patrol covering a vast area and wasn't in my vicinity. When he called me, about 15 minutes later, he had coincidentally answered another almost same report.

My gripe is the lack of education for all of us, I drive a truck, I pedal a bicycle, we all are making bad choices. But weilding a vehicle against a cyclist is a fool's game; surely when vehicle operators do so, they do not think how things are going to pan out, for their future, the cyclist's or the family members of both, or the community that will be impacted.

The BC Cycling Coalition is making progress getting all authorities on board to change the distance of separation between Bicycle and vehicle, but it isn't happening quick enough nor is it widely visible to John Q public. So it's going to be a long ride on this one kids.

More education please.

Intent

intent is smeared all over the criminal code.  I hope some driver never intentionally runs down the judge who was responsible for the is ruling

Example from Vancouver Island

We have a case over here in 2018 on the Malahat on Vancouver Island (just went through the court system last week) where a woman driving impaired at almost twice the speed limit in a construction zone, went out of control, crossed the center line, had a head-on collision with another vehicle killing both the driver and passenger.

She was charged with multiple offenses including, impaired driving causing death x 2, Dangerous Driving causing Death X 2, etc., etc.

She ended up pleading guilty to Driving Without Due Care and Attention and received a $1000.00 fine and a one-year driving ban. Just imagine how the families of these poor victims feel ??

I could go into the textbook excuses that the judge used for the totally inappropriate sentence but that's another story.

So I believe that, considering the behavior of a small minority of bicycle riders he received a sentence on the high side.

Short and Sweet

Attempted murder? 5 years.

The Perfect Crime

If I was a hired hit man, I’d hope my target was a cyclist. I’d simply run them down with my car and kill them that way and never risk doing hard time or being accused of manslaughter or homicide.

The laws are inappropriate when it comes to deliberate harm using a vehicle as a weapon. They need to change. Higher accountability is needed. No excuses.

Nothing is an “accident” when it comes to striking cyclists with a vehicle.

I’ve been hit and run twice on my cycle and four times hit with ICBC claims. The second hit and run appeared deliberate

why the double standard on weapons?

"...and a driving prohibition of two years was also imposed."

I own (legally) a couple of firearms. If I ever used either one in an assault or attempted murder, I'd expect to be banned from owning firearms for life, in addition to whatever other punishments were coming to me.

So why, if someone has used a car as a deadly weapon, are they ever allowed to drive again? I suppose one might argue that firearms are only weapons, with no other purpose, and a car is only incidentally a weapon, if used the wrong way. But as far as I know as a layperson/non-lawyer, you can be charged with possession of "weapons dangerous" for carrying items that are ordinarily perfectly legal (crowbars, kitchen knives, baseball bats) if it can be proved you've used them as such or are carrying them with intent to do so. I don't see the difference between those things and a car as an improvised weapon. Any actual lawyers care to enlighten me on the legal thinking here?

A Second Example

The case of R v Cortez involves the death of a passenger following a collision with many serious factors involved. The death was not deliberate, but the sentence of 2 years imprisonment and a 10 year driving prohibition is similar.

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