IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130502

Docket: S23181

Registry:
Chilliwack

Between:

Candice Dawn Gibbs

Plaintiff

And

Stephen James
Carpenter and Leslie Kusch

Defendants

– and –

Docket: S23196

Registry:
Chilliwack

Between:

Stephen Kenneth
Gibbs

Plaintiff

And

Stephen James
Carpenter and Leslie Kusch

Defendants

Before:
The Honourable Mr. Justice Joyce

Reasons for Judgment

INTRODUCTION

[1]            
In the early morning hours of August 25, 2009, the plaintiffs were
driving on Promontory Road in Chilliwack, British Columbia, returning to their
home with their son after spending the day in Vancouver. The Gibbs reached the
bottom of Promontory Hill and were driving on a flat section of the road in a
sweeping left-hand curve when a car driven by the defendant, Stephen Carpenter,
owned by the defendant Leslie Kusch, crossed the centre line and collided head
on with their vehicle. Both plaintiffs were injured.

[2]            
It is common ground that Mr. Carpenter was impaired by alcohol and
was speeding at the time of the collision.

[3]            
In separate actions, the Gibbs sued Mr. Carpenter for negligence in
the operation of the car. They joined Ms. Kusch as a defendant on the
ground that Mr. Carpenter had obtained Ms. Kusch’s consent to drive
the car and, on that basis, she is vicariously liable pursuant to s. 86(1)(b)
of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [Act], which
provides:

(1)        In the case of a
motor vehicle that is in the possession of its owner, in an action to recover
for loss or damage to persons or property arising out of the use or operation
of the motor vehicle on a highway, a person driving or operating the motor
vehicle who

…

(b)        acquired possession of the
motor vehicle with the consent, express or implied, of the owner,

is deemed to be the agent or
servant of, and employed as such by, that owner and to be driving or operating
the motor vehicle in the course of his or her employment with that owner.

[4]            
Ms. Kusch denies that she gave her consent to Mr. Carpenter to
drive her car.

[5]            
At a trial management conference held on February 28, 2013, an order was
made by consent that there be a trial in both actions of the common issue of
whether Mr. Carpenter drove the car with Ms. Kusch’s consent.

REVIEW OF EVIDENCE

Overview

[6]            
On the evening of August 24, 2009, Christopher Malin had several friends
over for dinner and a party at the home of his parents, which is located in the
Promontory area of Chilliwack. Those who attended included the defendants
Stephen James Carpenter and Leslie Kusch, as well as Amanda Ormandy, Samantha
Warren and Breanne Savinkoff, all of whom testified at the trial. The people
who attended the party had all graduated from the same school in June 2009 and
knew one another.

[7]            
Some of the attendees came to Mr. Malin’s house for dinner and some
arrived later that evening. Mr. Malin served beer and wine at dinner and
some of the people that attended the party brought their own alcoholic
beverages. All of the people at the party were under the age of 19, with the
exception of Mr. Carpenter, who was 19 years old.

[8]            
Around midnight, a discussion arose about some people wanting to get
take-out food from the McDonald’s restaurant located near the bottom of
Promontory Hill. Mr. Carpenter and Ms. Warren were circulating
amongst the guests determining what people wanted to order. Eventually, Mr. Carpenter,
who was intoxicated and possessed only a learner’s permit to drive, and Ms. Warren
left in Ms. Kusch’s car to get the food.

[9]            
Mr. Carpenter and Ms. Warren safely made their way to the
McDonald’s restaurant and purchased the food. On the way back, Mr. Carpenter
drove on Promontory Road and sped through a red light at the intersection of
Promontory Road and Chilliwack River Road, crossing over the centre line and
into the path of the Gibbs’ vehicle.

[10]        
The issue, on which the evidence is divergent, is whether Ms. Kusch
gave Mr. Carpenter permission to drive her car.

[11]        
I will briefly review the salient evidence drawn from the witnesses
relating to this issue.

Mr. Malin

[12]        
Mr. Malin testified in direct examination that Mr. Carpenter
asked Ms. Kusch if he could use her car and she agreed. He said that a few
minutes later he saw Ms. Kusch take keys from her purse at the front door
of the house and hand them to Mr. Carpenter, who left with Ms. Warren.

[13]        
Mr. Malin admitted that he became very drunk during the evening and
believed a number of the other guests also achieved various states of
intoxication. He testified that Mr. Carpenter did not appear to be very
drunk. Mr. Malin conceded in cross-examination that his recollection of
events on that evening was vague. Significantly, he could not recall precisely
what was said between Mr. Carpenter and Ms. Kusch in the kitchen
about Mr. Carpenter using the car or what, if anything, was said when the
keys were turned over to Mr. Carpenter at the front door. He said it
appeared that she did not really hesitate.

[14]        
Mr. Malin testified that he did not think Mr. Carpenter was
intoxicated when he left to get the food. He said that he would not have let
him drive if he had thought he was drunk, but he conceded that he did not try
to stop Mr. Carpenter.

[15]        
Mr. Malin testified that on one prior occasion, Ms. Kusch
allowed him to practice driving using her car, although it was a different car.

[16]        
Mr. Malin had no recollection of anyone else using Ms. Kusch’s
car on the night of the party.

Amanda Ormandy

[17]        
Ms. Ormandy testified that she arrived at the party with Ms. Warren,
sometime after 9:00 p.m. She said Ms. Kusch was already at the party.

[18]        
Ms. Ormandy testified that neither she nor Ms. Warren took any
alcohol to the party. After they arrived, they decided they wanted to obtain
some alcohol. As Mr. Carpenter was the only person at the party who was
old enough to purchase alcohol, they enlisted him to accompany them to a liquor
store. Ms. Ormandy testified that she asked Ms. Kusch if they could
take her car and Ms. Kusch allowed Ms. Ormandy to drive Ms. Warren
and Mr. Carpenter to the store with her car. She said they purchased a 26
ounce bottle of Parrot Bay rum for her and a mickey of some other kind of
liquor for Mr. Carpenter, and then returned to the party. Ms. Ormandy
could not recall how she got Ms. Kusch’s car keys or what she did with
them when she returned from purchasing the alcohol. She shared the rum with Ms. Warren
and the party got into “full swing”.

[19]        
Ms. Ormandy testified that as the party went on, people became
hungry and there was a discussion about getting food from McDonald’s. She
recalled Ms. Warren writing down the orders on a list. Ms. Ormandy
said the plan was for Ms. Warren and Mr. Carpenter to pick up the
food using Ms. Kusch’s car. Ms. Ormandy did not witness any exchange
of keys, or hear any discussion about keys or driving. She could only say that
she did not recall any protest when Mr. Carpenter left with Ms. Warren
to get food.

[20]        
A while later, Ms. Ormandy received a phone call from Ms. Warren
informing her that she and Mr. Carpenter had been in an accident.

[21]        
Ms. Ormandy had no recollection of a purse.

[22]        
Ms. Ormandy also testified that on one occasion earlier that summer
she saw Mr. Carpenter driving Ms. Kusch’s car near her former high
school.

Stephen Carpenter

[23]        
Mr. Carpenter had dinner with Mr. Malin and others, and he
enjoyed some drinks. After dinner, he consumed a few more drinks. At one point,
Ms. Ormandy and Ms. Warren asked him to accompany them to the liquor
store so that he could purchase some alcohol for them. He went in Ms. Kusch’s
car, driven by Ms. Warren. Mr. Carpenter could not recall whether any
alcohol was purchased for him. When they returned to the party, he continued to
drink.

[24]        
Mr. Carpenter said he was selected to drive to McDonald’s because
he was deemed to be the most sober. He said that Ms. Kusch was present
during the discussions about who should drive.

[25]        
Mr. Carpenter testified that he asked Ms. Kusch if he could
have her car keys. He said that at first she could not find her keys. She then
dumped out her purse in the kitchen, found the keys and gave them to him
without objection. He described the purse as blue with some embroidered metal
on it.

[26]        
Mr. Carpenter testified that he had driven Ms. Kusch’s car
once before, very briefly, from the high school to Ms. Savinkoff’s home,
which is just around the corner from the school parking lot. He said that Ms. Kusch
was in the car with him and was aware that he only had a learner’s permit.

[27]        
Mr. Carpenter testified that he and Ms. Kusch met in grade 10.
They had some classes together. He said they were friends for a while, dated
for a week and then became acquaintances.

Samantha Warren

[28]        
Ms. Warren testified that she and Ms. Ormandy walked to the
party together and arrived somewhere between 9:30 and 10:00 p.m.

[29]        
Ms. Warren’s evidence agreed with that of Ms. Ormandy
regarding the trip for alcohol, except that she said Mr. Carpenter
purchased two or three vodka Rockstars for her. She could not recall what other
alcohol was purchased. She testified that Ms. Kusch said they could use
her car and gave the keys to Ms. Ormandy.

[30]        
Ms. Warren testified that by the time they left to get food, Ms. Kusch
was intoxicated. She testified that Ms. Kusch said she would let Mr. Carpenter
drive her car and she then went to find her purse. Mr. Malin and Mr. Carpenter
followed Ms. Kusch as she looked for her purse and Mr. Malin was
yelling at Mr. Carpenter that it was not a good idea for him to drive. Ms. Kusch
dumped the contents of her purse on the kitchen table, gave him her keys and
told him not to wreck her car. Mr. Malin followed them to the car, saying
it was not a good idea.

[31]        
Ms. Warren testified that Ms. Kusch never suggested she drive
the car.

[32]        
Ms. Warren testified that even though Mr. Malin was yelling at
Mr. Carpenter not to drive, Mr. Carpenter did not appear to be very
intoxicated at that point. She only came to the realization that he was
intoxicated when he was speeding along Promontory Road and ran the red light.

[33]        
Ms. Warren did not remain at the scene of the accident because she
was fearful of getting into trouble with her parents. She left the scene and
began to run up the hill where she was met by Ms. Ormandy and Mr. Malin.

[34]        
Ms. Warren testified that she recalled seeing Mr. Carpenter
drive Ms. Kusch’s vehicle on a prior occasion. She gave a much more
detailed version: Ms. Kusch, Mr. Carpenter, Ms. Warren, Mr. Malin,
herself and one other person had been at Cultus Lake. The group had then picked
up some food at the Dairy Queen and re-united at Ms. Savinkoff’s home near
the high school. She said that Ms. Kusch had to go somewhere and she and Mr. Carpenter
left in Ms. Kusch’s car. She did not recall who drove away, but said that
some time later Mr. Carpenter returned in Ms. Kusch’s car with some
beer and they gathered in a field near the school. Ms. Warren also
admitted that these events were very vague in her mind but denied making them
up to implicate Ms. Kusch in the accident.

Leslie Kusch

[35]        
Ms. Kusch testified that she drove her car to the party with two
other people and arrived at approximately 8:45 p.m. She said that Ms. Warren
and Ms. Ormandy were already at the party when she arrived.

[36]        
Ms. Kusch testified that when she arrived at Mr. Malin’s house,
she took her car keys and cell phone out of her jeans pockets and placed them
on the kitchen table before joining other guests on the patio. She said she did
not have a purse because, at that time in her life, she did not carry purses.

[37]        
In her examination in chief she testified that she placed her keys on
the table where Ms. Savinkoff had placed her keys and phone. In
cross-examination, she agreed that she arrived at the party before Ms. Savinkoff.

[38]        
Ms. Kusch testified that she did not drink anything alcoholic
before going to the party and that she did not take any of her own liquor to
the party. She said she drank three mixed drinks of either rum or vodka at the
party. The drinks were weak because she does not like the taste of alcohol. Ms. Kusch
agreed that at her examination for discovery she testified she had “three,
maybe four drinks”. She explained that her memory was clearer at trial and that
she had been mistaken when she said she potentially consumed four drinks.

[39]        
Ms. Kusch denied lending her car to Ms. Ormandy so that Ms. Ormandy
could go buy liquor. She said that she was not friends with Ms. Ormandy
and that they did not associate at high school. She was adamant that she would
never let Ms. Ormandy drive her car.

[40]        
Ms. Kusch’s evidence regarding the central issue was as follows.
She walked into the house from the patio and Mr. Carpenter mentioned that
some people wanted to get food from McDonald’s. He asked if he could take her
car and she said no. She pointed out that he was very intoxicated and only had
a learner’s permit. Mr. Carpenter asked if it would be okay if Ms. Warren
drove and she said no because Ms. Warren had been drinking as well. Mr. Carpenter
gave up and walked away. Ms. Kusch went outside, sat with Ms. Savinkoff
and told her about the conversation. A short time later, she went back inside
the house and another guest told her that her car had been in an accident at
the bottom of Promontory Hill.

[41]        
Ms. Kusch asked Ms. Savinkoff to drive her to the site of the accident.
When they arrived at the accident scene and Ms. Kusch went to look at her
car, she had a brief conversation with Constable Wright, who had attended the
scene and informed him that she was the owner of the car. They had a brief
conversation that I will refer to when I discuss Constable Wright’s evidence.

[42]        
Ms. Kusch testified that after the accident, she walked with Ms. Savinkoff
to Ms. Savinkoff’s home, which was quite close to the accident scene,
where she spent the night. In cross-examination, she agreed that Ms. Savinkoff
had driven her to Ms. Savinkoff’s home.

[43]        
The next day, Ms. Kusch’s father called her because he was supposed
to replace a tire on her car and she told him what happened. Ms. Savinkoff
drove Ms. Kusch to her home where her father, who is a police officer,
suggested that she and Ms. Savinkoff prepare written statements relaying
what had happened. Ms. Kusch and Ms. Savinkoff prepared type-written
statements, which she and her father then delivered to the Chilliwack RCMP
station that afternoon. Ms. Kusch agreed that she had made an error when
she testified at her examination for discovery and said that Ms. Savinkoff
prepared her statement at Ms. Savinkoff’s home. I will deal with the
admissibility of Ms. Kusch’s statement later in these reasons.

[44]        
Ms. Kusch testified that she never reported the vehicle stolen, but
she did make a claim with her insurance company.

[45]        
Ms. Kusch said she met Mr. Carpenter in grade 10. They shared
a couple of classes and talked during class. She said that while he asked her
out numerous times, she had never accepted. She only said that she would think
about going out with him, but then send him a text a week later saying no. She
denied that she ever allowed Mr. Carpenter to drive her car at any time. Ms. Kusch
testified that a photo taken at the night of graduation showing Mr. Carpenter
and Ms. Kusch in an agreeable pose was simply one of many photos taken
that day of members of the graduating class. She claimed it did not suggest
anything more.

[46]        
Ms. Kusch testified that she kept her car keys on a very
distinctive lanyard that stood out and was much coveted by those she associated
with.

Breanne Savinkoff

[47]        
Ms. Savinkoff’s evidence was that she drove her own car to the
party and arrived between 6:30 and 7:00 p.m., while Mr. Malin was making
dinner. She testified that during the evening she had three or four drinks. She
recalled drinking vodka mixed with Sprite, which is what she usually drinks.
She said she was neither drunk nor sober.

[48]        
Ms. Savinkoff testified that she was sitting on the patio when Ms. Kusch
came out and told her that Mr. Carpenter had asked for the keys to her car
and she had said no. While this evidence amounts to a prior consistent
statement by Ms. Kusch, unlike Ms. Kusch’s written statement, which I
will discuss later in these reasons, it is admissible, in my view, to rebut an
allegation of recent fabrication because it was made before Ms. Kusch had
any reason to fabricate. It can only be used for the limited purpose of
bolstering Ms. Kusch’s credibility and not for the truth of its contents.

[49]        
Ms. Savinkoff testified that a short time later, Ms. Kusch
advised her that Mr. Carpenter had taken her car and had been in a minor
accident. She drove Ms. Kusch down Promontory to the scene of the
accident.

[50]        
Ms. Savinkoff recalled there was a discussion about getting food
and that either Ms. Warren or Ms. Ormandy had asked her if she wanted
anything but she had declined.

[51]        
Ms. Savinkoff testified that Ms. Kusch did not use a purse and
did not have one with her that night.

Constable Wright

[52]        
Counsel for the plaintiff called Constable Wright as a witness, who was
the first police officer on the scene. He arrived alone at about 1:25 a.m. As
soon as he arrived, Mr. Carpenter identified himself as the driver and
admitted he was at fault. Constable Wright detected a strong odour of alcohol
coming from Mr. Carpenter. He placed Mr. Carpenter in his police car
and told him he was investigating him for impaired driving. He then spoke to
the Gibbs and confirmed that there were no life threatening injuries. All the
while, Constable Wright was directing traffic around the crash site.

[53]        
When Ms. Kusch identified herself as the owner of the car,
Constable Wright told her to wait until he had dealt with other more pressing
matters. After a while, he took Ms. Kusch aside and asked what had
happened. Counsel for Mr. Carpenter led the statement from Ms. Kusch,
without objection from the plaintiffs, on the basis that it constituted an
admission against interest. In direct examination, Constable Wright’s testimony
of what Ms. Kusch said was essentially as follows: They had been at a
party on Promontory at the home of Chris Malin. Stephen and Sam wanted to go
for food. Stephen indicated that he wanted the keys to her car. She said to
Stephen, “where are going”. Stephen indicated that they were going for food and
she replied “no you are not”. Then Ms. Kusch made a comment something to
the effect that “but Sam was supposedly going to drive.” Then Ms. Kusch
got a call from Samantha about the accident.

[54]        
When cross-examined with regard to the statement by Ms. Kusch,
Constable Wright confirmed that the notes he made at the time, in which he
paraphrased the statement read as follows:

Steven wanted to get food with
Sam (f). Went to McDonald’s using her car. grabbed her keys. Where you going.
To get food. No you’re not. Then supposedly Sam was going to drive. Then got a
call fr (sic) Sam.

[55]        
Constable Wright said that Ms. Kusch appeared upset, which he
attributed to the fact that her car had been badly damaged.

[56]        
Constable Wright testified that he told Ms. Kusch he would try to
get in touch with her the next day. He never did get in touch with Ms. Kusch.
He was busy the next day and subsequently off duty. When he returned to duty on
August 31, 2009, he found the type-written statements in his inbox.

[57]        
Constable Wright testified that no report was made to the police
regarding theft of Ms. Kusch’s car and he never further investigated the
issue of whether Mr. Carpenter had consent from the owner of the vehicle
to drive it.

Admissibility of Ms. Kusch’s Written Statement

[58]        
Mr. Harris sought to introduce Ms. Kusch’s written statement
into evidence. Ms. Briscoe objected on the ground that it was merely a
self-serving prior consistent statement. The statement was marked as an exhibit
for identification on the basis that I would determine its admissibility before
deciding the issue to be tried.

[59]        
Mr. Harris submits that the written statement was admissible on two
bases. First, he argues that this document, together with the brief oral
statement given by Ms. Kusch to Constable Wright, is one transaction. He
says that both parts must be considered as one statement. Second, he seeks
admission of the written statement as a prior consistent statement rebutting an
allegation of recent fabrication. Mr. Harris abandoned the argument that it
was admissible as res gestae.

[60]        
With regard to the first ground of admission, Mr. Harris submits
that the oral statement was brief and was given under circumstances where
Constable Wright had a number of things to deal with, including controlling
traffic to maintain safety until other police officers arrived, investigating
the circumstances of what he believed were a number of criminal offences
involving drinking and driving and maintaining continuity with respect to his
suspect, Mr. Carpenter. Mr. Harris says that Constable Wright
intended to speak further to Ms. Kusch the next day, but he was too busy.
He argues it was Constable Wright’s intention to obtain a more extensive
statement. Mr. Harris maintains that the oral statement is equivocal and
that the written statement clarifies and completes the brief statement given
the night before.

[61]        
I am unable to agree that the written statement forms part of one
continuous statement, given the intervening events. It is not as though the
statement was given at the scene mere minutes after the first conversation. Ms. Kusch
went home, slept, spoke to her father about what had happened and it was upon
his suggestion that she prepared a written statement. Ms. Kusch had the
opportunity to reflect and consider what information she would include in her
statement. In my view, it cannot be considered a mere continuation of the
earlier oral statement.

[62]        
As for the submission that the written statement should be admitted to
clarify the equivocal oral statement, the trial was the opportunity to testify
whether the oral statement was made or not, whether it was accurate or not,
whether Constable Wright’s version of what Ms. Kusch said was complete, or whether
his recall and recording of the statement were incomplete. I, therefore, do not
accede to Mr. Harris’ first ground.

[63]        
I am also of the opinion that the statement is not admissible as a prior
consistent statement rebutting an allegation of recent fabrication.

[64]        
In R. v. Stirling, 2008 SCC 10 [Stirling], Mr. Justice
Bastarache reviewed the principles applicable in determining when prior
consistent statements can be led to rebut an allegation of recent fabrication
and how such statements, if admitted, are to be used. The context in which the
issue arose in Stirling is set out in paras. 1 – 2:

[1]        The appellant, Mr. Stirling,
appeals his convictions on two counts of criminal negligence causing death and
one count of criminal negligence causing bodily harm. The convictions arose out
of a single-vehicle accident in which two of the car’s occupants were killed
and two others, including Mr. Stirling, were seriously injured. The
primary issue before the trial judge was whether the Crown had established that
the appellant, and not the other survivor of the accident, Mr. Harding,
was driving the vehicle when the crash occurred. The trial judge ultimately
concluded that Mr. Stirling was the driver. He based this finding on a
number of pieces of evidence, including the testimony of Mr. Harding, who
stated that Mr. Stirling had been driving.

[2]        During the
cross-examination of Mr. Harding, counsel for the appellant questioned the
witness about a pending civil claim he had launched against Mr. Stirling
as the driver of the vehicle and about several drug-related charges against Mr. Harding
which had recently been dropped. All parties agreed that this line of
questioning raised the possibility that Mr. Harding had motive to
fabricate his testimony and, following a voir dire, the judge admitted
several prior consistent statements which served to rebut that suggestion.

[65]        
Essentially, the appellant conceded the statements were admissible to
rebut the suggestion of recent fabrication, but argued that the trial judge had
incorrectly considered them for the truth of their contents.

[66]        
At para. 5 of Stirling, Bastarache J. set out the principles
relating to the admissibility of such statements:

[5]        It is well
established that prior consistent statements are generally inadmissible (R.
v. Evans, [1993] 2 S.C.R. 629; R. v. Simpson, [1988] 1 S.C.R. 3; R.
v. Béland, [1987] 2 S.C.R. 398). This is because such statements are
usually viewed as lacking probative value and being self-serving (Evans,
at p. 643). There are, however, several exceptions to this general
exclusionary rule, and one of these exceptions is that prior consistent
statements can be admitted where it has been suggested that a witness has
recently fabricated portions of his or her evidence (Evans, at p. 643;
Simpson, at pp. 22-23). Admission on the basis of this exception
does not require that an allegation of recent fabrication be expressly made ─
it is sufficient that the circumstances of the case reveal that the “apparent
position of the opposing party is that there has been a prior contrivance” (Evans,
at p. 643). It is also not necessary that a fabrication be particularly
“recent”, as the issue is not the recency of the fabrication but rather whether
the witness made up a false story at some point after the event that is the subject
of his or her testimony actually occurred (R. v. O’Connor (1995), 100
C.C.C. (3d) 285 (Ont. C.A.), at pp. 294-95). Prior consistent statements
have probative value in this context where they can illustrate that the
witness’s story was the same even before a motivation to fabricate arose.

[Emphasis added.]

[67]        
With respect to the use to be made of the prior consistent statement,
Bastarache J. stated at para. 7:

[7]        However, a prior
consistent statement that is admitted to rebut the suggestion of recent fabrication
continues to lack any probative value beyond showing that the witness’s story
did not change as a result of a new motive to fabricate. Importantly, it is
impermissible to assume that because a witness has made the same statement in
the past, he or she is more likely to be telling the truth, and any admitted
prior consistent statements should not be assessed for the truth of their
contents. As was noted in R. v. Divitaris (2004), 188 C.C.C. (3d) 390
(Ont. C.A.), at para. 28, “a concocted statement, repeated on more than
one occasion, remains concocted”; see also J. Sopinka, S. N. Lederman and A. W.
Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 313.
This case illustrates the importance of this point. The fact that Mr. Harding
reported that the appellant was driving on the night of the crash before he
launched the civil suit or had charges against him dropped does not in any way
confirm that that evidence is not fabricated. All it tells us is that it wasn’t
fabricated as a result of the civil suit or the dropping of the criminal
charges. There thus remains the very real possibility that the evidence was
fabricated immediately after the accident when, as the trial judge found, “any
reasonable person would recognize there was huge liability facing the driver”
(Ruling on voir dire, June 21, 2005, at para. 24). The reality is
that even when Mr. Harding made his very first comments about who was
driving when the accident occurred, he already had a visible motive to
fabricate ─ to avoid the clear consequences which faced the driver of the
vehicle ─ and this potential motive is not in any way rebutted by the
consistency of his story. It was therefore necessary for the trial judge to
avoid using Mr. Harding’s prior statements for the truth of their contents.

[68]        
Thus, the purpose of the prior consistent statement is to remove a
potential motive to fabricate and a trial judge may consider the removal of
this motive when assessing the witness’s credibility.

[69]        
In the recent decision delivered from the Ontario Court of Appeal, R.
v. Kailayapillai, 2013 ONCA 248 at para. 41, I note that Mr. Justice
Doherty adopted the phrase “motive or reason” to fabricate and discussed the
importance of the timing of the statement in relation to when the motive or
reason arose:

[41]      …
The value of the prior consistent statement does not rest exclusively
in its consistency with the evidence given by the witness at trial. It is the
consistency combined with the timing of that prior statement. As the statement
was made before the alleged motive or reason to fabricate arose, the
statement is capable of rebutting the suggestion made by the cross-examiner
that the witness’s evidence is untrue because it was fabricated for the reason
or motive advanced in cross-examination. The witness’s evidence is made more
credible to the extent that the asserted motive or reason advanced for
fabrication has been negated by the evidence of the prior consistent
statement: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7.

[Emphasis
added.]

[70]        
Once admitted, the trial judge may not use the prior consistent
statement for the truth of its contents. At para. 11 of Stirling, Bastarache
J. said:

[11]      Courts and scholars in
this country have used a variety of language to describe the way prior
consistent statements may impact on a witness’s credibility where they refute
suggestion of an improper motive. …. What is clear from all of these sources
is that credibility is necessarily impacted ─ in a positive way ─
where admission of prior consistent statements removes a motive for
fabrication. Although it would clearly be flawed reasoning to conclude that
removal of this motive leads to a conclusion that the witness is telling the
truth, it is permissible for this factor to be taken into account as part of
the larger assessment of credibility.

[71]        
In the present case, any reason that Ms. Kusch may have to
fabricate a story was clearly present at the time she prepared her type-written
statement. She faced having to explain to her father, a police officer, how an
inebriated young man with a learner’s permit came into possession of her car
and came to be involved in a serious car accident. She may very well have
appreciated that there might be insurance implications arising out of who was
driving. She may also have been influenced by the advice of her father in
forming her statement. The statement was not prepared prior to the existence of
a reason to fabricate; it was formed afterward. In my view, it does not have
any probative value and does not fall within the exception to the general rule
that excludes prior self-serving statements. It is not admissible.

POSITIONS OF THE PARTIES

[72]        
The plaintiffs have the onus to prove, on a balance of probabilities,
that at the time of the accident, Mr. Carpenter was driving Ms. Kusch’s
car with her consent, either express or implied. The plaintiffs’ principal
submission is that on balance the evidence demonstrates that Ms. Kusch
expressly consented to Mr. Carpenter driving her car to go to McDonald’s
by agreeing that he could drive and handing him the keys. The plaintiffs rely
primarily on the testimony of Mr. Carpenter, Mr. Malin, and Ms. Warren,
who witnessed the handing over of the keys. The plaintiffs submit that their
evidence is generally consistent and credible, and should be preferred over the
evidence of Ms. Kusch.

[73]        
In the alternative, the plaintiffs suggest that the evidence is capable
of supporting a finding of implied consent, based on prior occasions where Ms. Kusch
has been observed lending her vehicle.

[74]        
The plaintiffs do not rely on “transferred consent”, whereby Ms. Kusch
consented to Ms. Warren driving her car with the expectation and
willingness that Mr. Carpenter would drive it.

[75]        
Ms. Kusch says the real issue for determination is whether she gave
her express consent to Mr. Carpenter; the evidence simply does not support
the allegation of implied consent. She also submits that her evidence is more
credible and ought to be believed over that of the plaintiffs’ witnesses.

DISCUSSION AND ANALYSIS

[76]        
I will deal firstly with the matter of implied consent. Counsel for the
plaintiffs referred to Green v. Pelley, 2011 BCSC 841 at paras. 39
– 40, where Mr. Justice Saunders said:

[39]      The test for a finding
of implied consent under s. 86, in situations where consent has been given
to one person but the vehicle ends up being driven by a third party, is as set
out in Hartley v. Saunders (1962), 33 D.L.R. (2d) 638 (B.C.S.C.), and in
Godsman v. Peck (1997), 29 B.C.L.R. (3d) 37 (C.A.). The evidence must
establish that the vehicle owner had both an expectation and willingness that a
third party would drive the vehicle. Both an expectation and willingness must
be shown. One without the other will not suffice: L’Heureux v. Eustache,
2003 BCSC 347 at para. 9.

[40]      The requirement that an
owner have an actual expectation of a third party driving the vehicle is relaxed,
where it is clear from the circumstances that consent would have been given, if
sought, as a matter of course in the particular circumstances confronting the
person who is in possession by consent: dissenting judgment of Porter J.A. in Palsky
v. Humphrey (1963), 41 D.L.R. (2d) 156 (Alta. S.C. (A.D.)), as approved of
and adopted by the Supreme Court of Canada on appeal, [1964] S.C.R. 580 at 662.

[77]        
In my view, the forgoing passages are of no assistance to the plaintiffs
in this case. They deal with a situation of “transferred consent”, where the
owner gives express consent to one person to drive her car with the expectation
and willingness that it will be driven by another. That other driver then has
the implied consent of the owner. The plaintiffs do not suggest that is the
situation in this case.

[78]        
There may be situations when consent of the owner is implied. It may be
found where there is no intervening party to whom express consent was given
but, rather, a pattern of conduct of the owner establishing that the owner has
on previous occasions given permission to other persons to drive their vehicle
and has made the keys available with the expectation and willingness that other
person could simply take the keys and drive the car without asking for
permission each and every time.

[79]        
In this case, there is evidence that Ms. Kusch let Ms. Ormandy
drive her car earlier that evening. That evidence does not assist in
establishing implied consent with respect to Mr. Carpenter.

[80]        
There is also evidence that on one occasion, Mr. Carpenter had
driven Ms. Kusch’s car, although that evidence was not very clear. Mr. Carpenter
simply recalled driving a short distance once from the school to Ms. Savinkoff’s
house to practice his driving with Ms. Kusch in the car. Ms. Warren
offered a far more detailed account in comparison to Mr. Carpenter’s
recollection of previously driving Ms. Kusch’s car. Ms. Warren
claimed she saw Mr. Carpenter driving Ms. Kusch’s car when he
returned to the school with some beer after going somewhere with Ms. Kusch.
Ms. Ormandy said only that she saw Mr. Carpenter drive the car near
the school.

[81]        
In my view, this evidence, even if it is accepted entirely, falls well
short of establishing the kind of pattern that would be necessary to conclude
that Mr. Carpenter had the authority to use Ms. Kusch’s car on the
day in question without her express permission.

[82]        
I find this case turns on whether there was express consent. Express
consent is given “when possession was acquired as the result of the free
exercise of the owner’s will”: Barreiro v. Arana, 2003 BCCA 58 at para. 16.

[83]        
The law is clear. The facts are more complex. The determination of the
issue depends on my assessment of the evidence and the credibility of the
witnesses.

[84]        
I will deal firstly with the oral statement made by Ms. Kusch to
Constable Wright just after the accident. I can see nothing in that statement
that assists the plaintiffs’ case. The first part of the statement is, in fact,
an express denial that Ms. Kusch consented. The balance of the statement
might be capable of suggesting that she knew of the expedition and consented to
Ms. Warren driving, but it does not constitute an admission that she
consented to Mr. Carpenter driving.

[85]        
Mr. Harris submitted that all of the plaintiffs’ witnesses had a
motivation to give testimony that blamed Ms. Kusch. As he put it in his
written submissions:

… Carpenter, because he would
have been the sole blame-worthy person, Malin, because he could have been
blamed as host of a party where intoxicating liquor was served to minors,
(“host liability”), Ormondy, because she was a friend of Carpenter’s and
disliked Kusch, and Warren, because of her guilt at making a “food run” under
these circumstances.

[86]        
It can also be said that Ms. Kusch had a motivation to give false
testimony in order to avoid liability under the Act as owner of the
vehicle. However, the evidence indicates that before the accident occurred, Ms. Kusch
told Ms. Savinkoff that Mr. Carpenter asked to use her car and that
she had said no. While not admissible to prove the truth of that statement,
this evidence tends to refute a reason to fabricate and enhances Ms. Kusch’s
credibility.

[87]        
The degree of intoxication of the witnesses is obviously a factor that
can affect the reliability of their recollection of events that evening. While
most of the people at the party drank liquor to some extent, some were clearly
more intoxicated than others. Mr. Malin admitted he was drunk. Ms. Ormandy
described him as “wasted”. Although Mr. Malin and Ms. Warren did not
think Mr. Carpenter was extremely intoxicated when he left the house, he
admitted that after the accident his blood alcohol reading was twice the legal
limit. Ms. Ormandy thought that everyone else was visibly drunker than Mr. Carpenter.
That would include Ms. Ormandy herself. Ms. Warren admitted she was
quite drunk. Ms. Kusch and Ms. Savinkoff both admitted to consuming
some alcohol. Ms. Savinkoff said three or four drinks and Ms. Kusch
said three drinks. Ms. Warren described Ms. Kusch as being loud and
appearing drunk. No one described Ms. Savinkoff as being heavily
intoxicated.

[88]        
Not surprisingly, both Mr. Malin and Ms. Warren agreed that
their recollections were vague, no doubt in part due to their consumption of
alcohol that night.

[89]        
In fact, the only sober witness for this incident, aside from the Gibbs,
is a trained police officer, Constable Wright. Greater weight shall be accorded
to his recollection of events.

[90]        
The evidence with regard to the use of Ms. Kusch’s car by Ms. Ormandy,
Ms. Warren and Mr. Carpenter earlier in the evening to get alcohol is
not directly relevant to the issue of whether later that night Mr. Carpenter
obtained permission to use the car, but it is evidence that can be considered
in my assessment of credibility. The evidence of Ms. Kusch was in direct
conflict with the evidence of the other three witnesses, who testified that
there was a trip to the pub in Ms. Kusch’s car. The evidence of the three
witnesses concerning the trip for alcohol varied in detail and completeness. Ms. Ormandy
could not remember any details about how she obtained the keys from Ms. Kusch.
My note of her evidence was to the effect that:

Me, Sam and Stephen decided to go
to the liquor store. We went down the hill to the liquor store. We decided that
Leslie’s car was there so we would take it down the hill. She let me drive the
car.

[91]        
Ms. Ormandy also did not remember what she did with the keys when
they returned.

[92]        
Ms. Warren could not remember anything about how Ms. Ormandy
obtained the keys. Ms. Ormandy said they bought Parrot Bay rum and a mickey
of something for Mr. Carpenter. Ms. Warren said that she bought three
vodka Rockstars and could not remember what else was purchased. Mr. Carpenter
could not recall any details leading up to the trip to the liquor store, other
than the fact that Ms. Warren drove the vehicle, and could not recall what
alcohol was purchased.

[93]        
In my view, it makes little sense that Ms. Kusch would permit Ms. Ormandy
to use her car to make a trip for alcohol when she and Ms. Ormandy were
not friends and when Ms. Kusch did not want to purchase any alcohol.

[94]        
If the trip for alcohol was made as described by the three witnesses, I
am not satisfied that it was made in Ms. Kusch’s car with her consent.

[95]        
The evidence with respect to how Mr. Carpenter ended up with the
keys to Ms. Kusch’s car for the drive to McDonald’s and whether in fact he
had the consent of Ms. Kusch is extremely conflicted. Mr. Malin’s
evidence was that he clearly recalled seeing Ms. Kusch remove her keys
from her purse at the front door and hand them over to Mr. Carpenter.
Importantly, Mr. Malin made no mention of following Mr. Carpenter and
Ms. Kusch around the house while Ms. Kusch looked for her purse,
telling Mr. Carpenter that he should not drive and following them out to
the car, as described by Ms. Warren. Mr. Carpenter recalled being in
the kitchen when Ms. Kusch gave him her keys, which diverges from Mr. Malin’s
account of recalling seeing Ms. Kusch give her keys to Mr. Carpenter
at the front door.

[96]        
Ms. Ormandy does not recall anything about the keys or about any
protestation by anyone. She did not have any recollection of a purse.

[97]        
Ms. Kusch denies she had a purse that evening and said that she
placed her keys on the kitchen table. She said that her friends were familiar
with her distinctive lanyard to which her keys were attached. Mr. Carpenter
and Ms. Warren would have been able to recognize Ms. Kusch’s keys. Ms. Savinkoff,
who probably had the least reason of all the young persons who testified to be
concerned about the outcome of the trial, confirmed that Ms. Kusch did not
have a purse that evening because she did not carry purses.

[98]        
In the final analysis, I prefer the evidence of Ms. Kusch and Ms. Savinkoff
to that of Mr. Malin, Mr. Carpenter and Ms. Warren with regard
to the issue to be determined. I find the plaintiffs have not met their burden
of proof. It is more probable than not, that Ms. Kusch did not give
express consent to Mr. Carpenter to drive her car that evening.

“B.M.
Joyce J.”