The Yukon Court of Appeal has overturned three convictions of a rural Yukon resident for dangerous driving and two counts of failing to stop at the scene of an accident.

Justice Susan Cooper issued her written decision on Jan. 3. Justices Robert Bauman and Gregory Fitch both agreed with Cooper’s conclusion.

This decision will see Paul Kloepfer acquitted of the two charges of failing to stop at the scene of an accident.

The dangerous driving charge was conditionally stayed. Kloepfer remains convicted of one count of dangerous driving causing bodily harm.

Kloepfer appealed his convictions on May 9, 2018.

Cooper provided some background before giving her reasons.

The offences stem back to an incident on Aug. 20, 2014. Kloepfer lives on a rural road off the South Klondike Highway south of Whitehorse. It’s a gravel road where residents in the area have to contribute to maintaining it.

This had caused tension between Kloepfer and some of his neighbours, who feel he does not contribute enough to road maintenance despite using it often.

“The tensions between the neighbours have led to both the appellant and his neighbours making complaints to the police,” Cooper said in the written decision.

During the day in question, a mother and her two children were walking along this rural road with a man.

Kloepfer was driving on the road. The two groups met. The family alleged that Kloepfer drove by at a high rate of speed and forced them off the road.

Kloepfer told the court he had to drive around boulders, found on the road, fearing they would cause damage to his truck’s undercarriage. He said he was driving slowly as he passed the group and alleges one of them hit his truck with a walking stick.

“The trial judge did not accept the evidence of the appellant nor did he find that it raised a reasonable doubt,” Cooper said in the decision.

She explained she would have to address four issues to decide this case. These issues are:

• was the trial judge wrong to use the statutory presumption built into the offence of failing to stop at the scene of an accident;

• did the judge make a mistake when convicting Kloepfer on both dangerous driving and dangerous driving causing bodily harm;

• was there a misapprehension of evidence; and

• did the judge use different standards when assessing the Crown and defence evidence.

Starting with the first issue, Cooper said the Crown must prove that someone accused of failing to remain at the scene of an accident was deliberately trying to escape liability.

She added that the driver’s behaviour after the accident could be used to demonstrate the person was not escaping.

The trial judge felt the Crown had proved that Kloepfer had been trying to escape liability as there was no evidence to demonstrate the contrary.

She said that is not an accurate assessment.

“In my view, he erred in doing so,” Cooper said in the decision.

She said the contrary evidence does exist.

She pointed out Kloepfer called the RCMP over this incident when he got home.

She said this meant the trial judge needed to assess whether the Crown had proved an intent to escape liability. She felt the judge did not take this step.

With that she quashed the two convictions on this offence.

She next moved to the dangerous driving conviction, the second issue.

She said the issue here was if the trial judge should have used the principle against multiple convictions.

The trial judge determined there had been enough evidence to convict him on one count of dangerous driving causing bodily harm.

Kloepfer faced a second count, but the trial judge felt there was not enough evidence. The judge instead convicted him of dangerous driving.

Cooper said the court would have to determine if there is a factual and legal link between the two charges. This included looking over the incident, the location, the timeframe, if there were intervening events and if the action was taken to achieve a common objective.

“The court must determine if there are any distinguishing features between the offences,” she said in the decision.

Cooper said it was clear that the incident took place in just a few seconds. There were no breaks in Kloepfer’s driving.

She felt there was no connection between the two offences. She pointed out that since there were no reported injuries to justify the second conviction, this meant the dangerous driving charge should have been dropped completely.

She next addressed the potential misapprehension of evidence, the third issue.

She explained that the trial judge’s decision is entitled to deference unless it can be demonstrated that there had been a mistake.

“The misapprehension must go to substance rather than detail, it must be material to the trial judge’s reasoning process, and must play an essential role, not just in the narrative of the judgment, but in the reasoning process that led to the conviction,” she said in the decision.

Kloepfer had argued several points of misapprehension, but Cooper felt only one was valid.

She disagreed with all other points. She felt the judge had not been misapprehending evidence, but just had a different interpretation.

As for the one instance she agreed with, she felt this misapprehension was not essential in the trial judge’s reasoning.

She said the judge had been wrong to conclude that Kloepfer’s partner returned home and they had discussed the boulders he saw on the road.

This left the last issue.

Cooper felt the trial judge did not scrutinize the defence evidence differently from the Crown’s.

She stated the judge “carefully reviewed” all witnesses.

She pointed out the judge had rejected evidence provided by a Crown witness. She clarified that the evidence in question was still corroborated.

“A trial judge who extensively reviews the evidence of a witness and articulates why the evidence is not accepted cannot be said to be applying a great level of scrutiny to the evidence of that witness when what is being done is providing the witness with an explanation as to why the evidence was not accepted,” Cooper said.

With that, she partially granted the appeal.