R. v. Puyenbroek, 2007 ONCA 824

R. v. Puyenbroek, 2007 ONCA 824

CITATION: R. v. Puyenbroek, 2007 ONCA 824

DATE: 20071130

DOCKET: C44350

COURT OF APPEAL FOR ONTARIO

FELDMAN, BLAIR and LAFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

YVES VAN PUYENBROEK

Appellant

Vincenzo Rondinelli and Crystal Tomusiak for the appellant

Shelley Maria Hallett for the respondent

Heard: May 28, 2007

On appeal from conviction by Justice Ian M. Gordon of the Superior Court of Justice, sitting without a jury, dated August 17, 2005 and sentence imposed October 7, 2005.

FELDMAN J.A.:

1The appellant was intoxicated at a Christmas party. Although he was offered a ride, he insisted on driving himself home. On the way, he hit two pedestrians who were walking on the shoulder of the highway, causing one of them very serious injuries. He left the scene and drove the short distance to his home, where he was arrested by the police less than two hours later. During the course of the arrest, the police found two long guns and ammunition that were improperly stored. The accused was acquitted of operating a motor vehicle with a concentration of alcohol in his blood in excess of 80 mg. per 100 mL. of blood and of criminal negligence causing bodily harm. He was convicted of impaired driving causing bodily harm, dangerous driving causing bodily harm, failing to remain at the scene of an accident, and careless storage of firearms. He received a total sentence of three years, six months for the driving offences, plus sixty days for the careless storage charge after receiving two-for-one credit for fifty-five days of pre-trial custody. The appellant appeals his convictions and sentence.

2For the reasons that follow, I would allow the appeal against conviction on the charge of careless storage of firearms, but otherwise dismiss the appeal from conviction. I would reduce the sentence to three years and I would set aside the DNA order that the trial judge made without giving reasons.

FACTS

3The appellant, his wife Danielle, and his thirteen-year-old son were guests of Bertha and Denis Cormier at their Christmas dinner party on December 25, 2003. Mrs. Van Puyenbroek drove the three of them over during the late afternoon or early evening in their Ford F-150 truck, which the appellant’s son describes as silver with a dark blue bottom line. Both Mr. and Mrs. Cormier, as well as several other guests at the dinner, observed that the appellant acted intoxicated. He was wearing a yellow shirt, red blazer, and cowboy boots. He was loud and rude to his wife. When urged to eat, he refused. One witness reported that the appellant said that he does not eat and drink at the same time. Another witness testified that the appellant said he did not wish to eat because he did not want to ruin his buzz. The appellant also began to doze off at the table. Because of her husband’s behaviour, Mrs. Van Puyenbroek asked one of the guests to drive her and her son home at about 7:00 p.m. The Cormier and Van Puyenbroek residences are both located in the community of Elk Lake, less than three kilometres apart.

4When he learned his wife had left, the appellant decided to leave as well. People at the dinner observed that he appeared and acted drunk at this point. He had difficulty descending the stairs and putting on his boots. He was offered a ride home, but he emphatically refused. He left sometime between 7:20 and 7:40 p.m. When he backed his truck out of the Cormier’s driveway, he backed into and through a ditch. A few inches of snow had fallen during the day. The appellant drove through town and turned onto the highway towards his home.

5In the meantime, the two victims, Bruce Martin and his spouse, Joanne Langlois, who lived in a house on the side of the highway, were out for a walk along the highway after their Christmas dinner. It was a clear night. The highway was snow-covered but sanded. Mr. Martin walked on the highway proper, while Ms. Langlois walked on the highway’s south shoulder, within two or three feet of the snow bank. When Mr. Martin realized that a vehicle was approaching them from behind, he suggested crossing the highway, but Ms. Langlois thought they could stay on the same side because she was wearing a retro-reflective construction vest. Mr. Martin agreed but moved directly in front of Ms. Langlois, who had moved closer to the snow bank. As a result, they were walking single file, hugging the snow bank.

6Mr. Martin described hearing the vehicle making a howling noise as it approached. Moments after Mr. Martin stepped in front of Ms. Langlois, he heard a thump and he was thrown into the snow bank onto his knees. After first seeing Ms. Langlois spinning in the air, he then saw only her snowsuit sticking out of the snow bank. He observed the truck up the road. Its brake lights came on, then the reverse lights. The truck backed up towards him, then the brake lights came on again, the reverse lights went off and the vehicle drove away. The truck came close enough to Mr. Martin that he could see a flash of yellow in the clothing of the driver. In the meantime, Mr. Martin was yelling for help and was yelling Joanne’s name.

7Mr. Martin was able to get back to his house and Joanne Langlois’ niece called emergency services. He and others then went out to assist Ms. Langlois, whom they found head-first in the snow in the ditch. She was eventually air-lifted to Sunnybrook hospital in Toronto where she underwent brain and bowel surgery and received further treatment until the middle of March, at which point she was transferred to a rehabilitation centre.

8Constable Colquhoun of the Englehart O.P.P.—the detachment nearest to Elk Lake—received a call to attend the accident at 7:23 p.m. He was 55 kilometres away at the time and arrived at the accident scene by 8:10 p.m. Mr. Martin told the officer that a blue Dodge truck struck him, then drove off in an easterly direction. Ms. Langlois’ brother told the officer that the appellant’s truck made the howling 4-by-4 noise that Mr. Martin had heard. Also, the appellant’s son had come over to the accident scene to check what was going on, but had left before Constable Colquhoun arrived. The officer found a large black plastic housing for the side-view mirror of a pick-up truck. After spending 20–25 minutes investigating the scene, the officer drove east to the appellant’s house about one-half kilometre away. He went there based on suspicion arising from the information he had obtained at the accident scene.

9The officer arrived in uniform at the appellant’s house at around 8:35 p.m. He observed fresh tire tracks in the snow of the driveway leading to a Ford F150 pick-up truck and footprints from the truck leading into the house. The officer pulled his own truck in behind the appellant’s truck. He observed damage to the right front side of the Ford as well as to the side view mirror, consistent with the piece of plastic he found at the scene of the accident.

10The officer then called the OPP communication centre to advise that he had located a vehicle with damage that matched the debris at the accident scene. Shortly thereafter, Mrs. Van Puyenbroek came out of the door of her house and asked Constable Colquhoun what he was doing there. In response, Constable Colquhoun asked her who had been operating the truck, and she responded that it was her husband and that he had just arrived home. Another officer, Sergeant King, then arrived and after briefly conferring, the two officers approached the front door of the appellant’s home and knocked.

11When Mrs. Van Puyenbroek returned to the door, Constable Colquhoun asked her where her husband was. She told the officer her husband was in bed. Constable Colquhoun said he would like to speak to her husband. According to the officer, Mrs. Van Puyenbroek backed off from the front door and gestured that he was in the bedroom. Constable Colquhoun assumed this was an invitation to enter the house and to follow her to the bedroom, which the officers did.

12In the bedroom, they found the appellant either sleeping or pretending to sleep. He had very red, watery eyes, a strong odour of alcohol on his breath and a slight slurring of his speech. The officers asked him to dress, placed him under arrest and handcuffed him. He refused to put on his boots. The appellant was then taken to the police car with no footwear on and read his rights. The officers also took possession of a rifle, a 12-gauge shotgun, and ammunition, which they found improperly secured in the bedroom.

13In his reasons for judgment, the trial judge made the following conclusions of law and findings beyond a reasonable doubt: (1) the appellant’s truck was involved in the incident; (2) the appellant was driving at the time; (3) the appellant’s ability to drive was impaired by alcohol; (4) his driving was dangerous in accordance with the test in R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867; (5) his careless driving did not amount to criminal negligence; (6) the bodily harm to Mr. Martin and Ms. Langlois was caused by the appellant’s impaired driving; (7) the bodily harm caused to the two victims was caused by the appellant’s dangerous driving; (8) the trial judge had a reasonable doubt on the issue of wanton and reckless disregard for the lives and safety of others necessary for a conviction on the charge of criminal negligence causing bodily harm; (9) the appellant knew he was involved in an accident and left the scene; and (10) the appellant was also guilty of careless storage of firearms; (11) the trial judge stayed the two counts of impaired driving causing bodily harm based on the principle in Kienapple v. The Queen 1974 14 (SCC), [1975] 1 S.C.R. 729.

14The appellant was sentenced to three years for the dangerous driving charges after giving a credit of 110 days for pre-trial custody, six months consecutive for leaving the scene of an accident, and sixty days consecutive for the careless storage of firearms. He was also prohibited from driving for five years, from possessing a firearm for ten years, and ordered to provide a DNA sample.

ISSUES

15On this appeal, the appellant appeals both conviction and sentence. He raises the following issues:

(i) The trial judge should have excluded the evidence of the firearms found in the appellant’s bedroom as a breach of the appellant’s s. 8 Charter right against unreasonable search and seizure. The trial judge erred in finding that the police were entitled to enter the appellant’s home and bedroom without a warrant based on the doctrine of hot pursuit or, alternatively, the consent of Mrs. Van Puyenbroek

(ii) The trial judge misapprehended the evidence of the defence expert on accident reconstruction and therefore improperly rejected his evidence.

(iii) The verdicts on dangerous driving and impaired driving causing bodily harm were unreasonable. There was no evidence that the appellant’s impairment caused the accident, nor was there evidence of faulty driving. In the absence of evidence of faulty driving, the trial judge improperly shifted the burden of proof to the appellant to disprove it.

(iv) The trial judge misapprehended the mens rea requirement for the charge of failure to remain at the scene.

(v) The sentence for dangerous and impaired driving causing bodily harm is beyond the range for these offences; the sentence imposed for failing to remain should not be consecutive; and the trial judge failed to give reasons for making a DNA order, as he was required to do under s. 487.051(3) of the Criminal Code.

ANALYSIS

Issue 1: Was the warrantless entry justified based on either “hot pursuit” or consent?

16At trial, the appellant sought a stay of the proceedings or in the alternative exclusion of the evidence of the firearms and the police observations of the appellant’s impairment. On this appeal, the appellant seeks only to exclude from the evidence the firearms the police found when they entered the appellant’s bedroom in breach of s. 8 of the Charter.

17In R. v. Feeney (1997), 1997 342 (SCC), 115 C.C.C. (3d) 129, the Supreme Court of Canada set out the general rule that under the Charter, a warrant is required both for arrest in a dwelling house and to legally search a dwelling house, in order to prevent unreasonable intrusions on an individual’s right to privacy in the home. However, the court confirmed the common law exception where the police were engaged in “hot pursuit.” In such cases, “the privacy interest must give way to the interest of society in ensuring adequate police protection”: id. at para. 47.

18In Feeney, the court approved its earlier decision in R. v. Macooh (1993), 1993 107 (SCC), 82 C.C.C. (3d) 481, on the issue of the hot pursuit exception. In Macooh, after having observed the accused go through a stop sign, a police officer activated his lights and siren and began pursuit. The officer saw the accused accelerate, run two more stop signs, park his car, and enter an apartment building. The officer called for the accused to stop but the accused did not comply. The officer went to the back door of the apartment and called the accused by name. After receiving no answer, he identified himself as an RCMP officer, then entered the apartment and the accused’s bedroom, where he arrested the accused.

19The court approved the common law power of officers to enter private premises to make an arrest in hot pursuit as a well-recognized exception to the principle of sanctity of the home. And for the first time, the court defined the concept of hot pursuit by adopting the definition from R.E. Salhaney, Canadian Criminal Procedure, 5th ed. (Aurora: Canada Law Book, 1989) at 44:

Generally, the essence of fresh pursuit is that it must be continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction.

20The court also discussed the justifications for this exception to the important principle that protects the sanctity of a private home. First, where an offender is a fugitive who has gone to his home while fleeing for the sole purpose of escaping arrest, when the police come, they are not unexpected or intruding on the person’s “domestic tranquility”. Second, from a practical point of view, offenders should not be encouraged to run or drive for home to seek refuge from the police, creating dangerous situations for members of the public. In Macooh, it was fortunate that the accused did not hit anyone while he sped to the apartment. Third, the police officer may have personal knowledge of the commission of an offence justifying arrest, thereby greatly reducing the risk of error. Fourth, flight usually indicates awareness of guilt. Fifth, in some circumstances it may be difficult to identify the offender without arresting him on the spot. Sixth, evidence of the offence may be lost, such as evidence of impairment. Seventh, the offender may again flee or continue the offence while the police are waiting for him to emerge.

21Of course, the power to enter private premises without a warrant to make an arrest is only available where the police already have the power and grounds to arrest without a warrant: Macooh, supra at 493–94.

22In this case, the trial judge used the hot pursuit doctrine as a secondary justification for the police officers’ entry onto the appellant’s property—which is not a ground of appeal—and, as this decision considers further, the officers’ entry inside his home and bedroom. The trial judge acknowledged that the hot pursuit exception requires a close temporal connection between the accident and the police entry, but stated that the time focus should begin at the point when the police first arrive on the accident scene. He concluded that in this case, “the investigation and pursuit was continuous, diligent, and led in a short period of time, about one half hour or slightly more, to arrest.” He also found that before they entered the house, the police had reasonable and probable grounds, both subjectively and objectively, to arrest the appellant for the offence of leaving the scene of an accident.

23The appellant takes the position that the circumstances of this case do not amount to a continuous pursuit, nor do they amount to a single transaction. He also says that the police were entering for further investigation and did not have reasonable and probable grounds for arrest before they entered the appellant’s house. Counsel argued that once Constable Colquhoun spoke to Mrs. Van Puyenbroek, he needed a Feeney warrant under s. 529 or s. 529.1 of the Criminal Code to enter the home and conduct a search. The officer never said that he was in hot pursuit, that there were exigent circumstances, or that he had any safety concerns. Furthermore, he said he wanted to enter the home to speak with the appellant, not that he already had reasonable and probable grounds to arrest him.

24In assessing this ground of appeal, the trial judge was alive to the legal issue and articulated the test correctly. There are two issues for this appeal: the first is whether the trial judge erred in his application of the law to the circumstances in this case. The second is whether the trial judge erred in making the necessary finding that the officer possessed both subjective and objective grounds to arrest the appellant before he entered the house without a warrant.

25This was a case where the officer did not observe the offence himself; instead, he had to come from a distance in order to reach the accident scene, and he took some time at the scene before heading to the appellant’s home. The Crown relies on the decision of the British Columbia Court of Appeal in R. v. Haglof (2000), 2000 BCCA 604, 149 C.C.C. (3d) 248, which held that it was possible for the police to be in hot pursuit without actually observing the events that gave rise to the offence. Although personal knowledge by the police was adopted by the Supreme Court in Macooh as one of the grounds justifying the hot pursuit exception, the Haglof court noted that in Macooh, Lamer C.J.C. also said in obiter, at supra 492, that personal knowledge was not necessary if the police saw the offender fleeing or continued a pursuit already begun.

26In Haglof, the police arrived on the accident scene shortly after the accident. Based on information they obtained including a description of the car, they went to the home of the car’s owner within 15 minutes. They then spent 29 minutes outside the home obtaining further information, which gave them reasonable and probable grounds to arrest, and then entered the home, where they found a marijuana grow-op. The court held that the events were sufficiently proximate to form a single transaction.

27In this case, the time between the accident and the arrest was about one-and-a-half hours, including the time it took the officer to travel to the accident scene, which was some 55 kilometres distant. The trial judge chose to exclude that travel time from his consideration of the total circumstances in order to reach the conclusion that the commission of the offence, the pursuit, and the capture of the appellant formed a single transaction, and therefore fit within the definition of “hot pursuit.”

28In so doing, the trial judge effectively extended the hot pursuit exception to a situation where the officer arrived at the scene long after the offence was completed and the perpetrator had left; the officer conducted an investigation at the scene; he developed a “suspicion” that the perpetrator of the offence was the appellant and for that reason went to the appellant’s home; there he conducted a further investigation by observing the truck and speaking with the appellant’s wife from whom he learned that the appellant was inside the house and had been driving the truck; he entered the home to speak to the appellant, and after observing evidence of inebriation, he arrested the appellant for impaired driving causing bodily harm.

29In other words, the trial judge extended the hot pursuit exception to a situation where the officer had no personal knowledge of the facts of the offence or the identity of the perpetrator because he neither observed the offence nor began or took up any pursuit of that perpetrator. He also extended the exception to a situation where the time that had lapsed between the commission of the offence and the arrest was one-and-a-half hours. I recognize that part of this time was the necessary travel time by the police officer in a northern community. However, the effect in this case was that the officer neither had any personal information about the offence or the offender, nor did he begin or take up a chase or pursuit in the classical sense because the appellant was already at home by the time the officer arrived on the scene.

30This extension of the hot pursuit exception must be examined in light of the amendments to the Criminal Code that now specifically provide for a warrant for arrest inside a dwelling house and set out the circumstances when an officer may enter a dwelling house without a warrant. Section 529.3 provides:

(1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer

(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or

(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

31The opening words of this subsection appear to leave open the common law hot pursuit exception to the rule requiring a warrant before an officer can enter a dwelling house. Having said that, the section only expressly provides a peace officer with the authority to enter a dwelling house without a warrant in situations where there exist exigent circumstances. This legislative provision is consistent with the Supreme Court’s approach in Feeney, which stated that the law provides but a very narrow range of circumstances when an officer may enter a dwelling house without a warrant.

32I see no reason, based on the intent of Parliament as expressed in the amendments to the Criminal Code following Feeney, to extend the interpretation or application of the hot pursuit exception beyond its ambit as described by the court in Feeney. It is a necessarily narrow exception. Normally, once an officer has reasonable and probable grounds to arrest a person in a dwelling place, the officer can proceed to obtain a warrant, including a telewarrant if necessary, before entering the home. However, if there are exigent circumstances, the officer may proceed without a warrant. If there are no exigent circumstances, it is difficult to imagine why an officer could not proceed to obtain the warrant, outside of a “classic” situation of hot pursuit, in which the officer is literally at the heels of a suspect at the moment the suspect enters a dwelling-house: Macooh, supra at 491.

33In this case, there appeared to be no justifiable reason Constable Colquhoun could not have obtained a warrant to arrest the appellant if he had reasonable grounds to believe the appellant had committed an indictable offence.

34The trial judge found that the officers had “reasonable and probable grounds subjectively and objectively to arrest the accused for failing to remain at the scene of the accident and were justified in entering the house and effecting the arrest, when his condition was noted for impairment causing bodily harm.”

35With respect to the trial judge, although there were objective grounds to arrest the appellant for leaving the scene, there is nothing in the evidence of the officers that suggests that they intended to enter the house to arrest the appellant for leaving the scene. The evidence was that Constable Colquhoun, the officer who spoke French and dealt directly with the appellant and with Mrs. Van Puyenbroek, intended to enter the home in order to speak with the appellant, which is what he told Sergeant King and Mrs. Van Puyenbroek. Furthermore, once the officers observed the appellant’s apparent impairment, they arrested him for impaired driving causing bodily harm. It is unclear whether they arrested him for leaving the scene at that time.

36It may be that the reason the officers did not try to obtain a warrant was because they were not yet satisfied that they had the grounds to arrest the appellant until they spoke to him.

37I conclude, based on the evidence of the officers, that the trial judge erred in his finding that the officers subjectively believed that they had reasonable and probable grounds to arrest the appellant and in his conclusion that they were entitled to enter the dwelling-house without a warrant on the basis of hot pursuit.

38The trial judge also found that the officers were entitled to enter the home to arrest the appellant and conduct a search because they entered with the informed consent of Mrs. Van Puyenbroek. His analysis is contained in paras. 66 and 67 of his ruling on the voir dire:

Also, on the facts as I find them, the officers were invited into the house by Mrs. Van Puyenbroek. I decline to accept her evidence in this regard and accept instead the evidence of Cst. Colquhoun that she by gesture invited them into the house and led them to the room where her husband was resting. I accept the evidence of Bertha Cormier as to Mrs. Van Puyenbroek’s call to her confirming her knowledge that the accused had hit something on his way home and further Mrs. Van Puyenbroek says the officer showed her the damage to the truck before they entered the house. It cannot in fairness be said therefore that she did not fully appreciate the facts and the implications when she allowed the officers in.

Further she at no time told them to leave or stay outside. In summation, in my view, the officers were in hot pursuit and therefore justified to be on the property and in arresting the accused. In the alternative they were invited on the property and a waiver by Mrs. Van Puyenbroek was a fully informed one.

39In this analysis, the trial judge appears to accept the principle that in order for Mrs. Van Puyenbroek’s consent to have been valid, it must have been fully informed consent. As this court stated in R. v. Wills (1992), 1992 2780 (ON CA), 70 C.C.C. (3d) 529 at 546, in order to be fully informed, the person giving the consent must be aware of her right to refuse. See also R. v. Lewis (1998), 1998 7116 (ON CA), 122 C.C.C. (3d) 481 at 488 (Ont. C.A.). There was no evidence or suggestion that Mrs. Van Puyenbroek was so informed and no finding by the trial judge on that aspect of the issue. In my view, the trial judge’s conclusion on this issue therefore cannot stand.

40The trial judge’s finding of no Charter breach made it unnecessary for him to consider s. 24(2). On this appeal, the appellant seeks to exclude the evidence of the firearms the police found when they entered the appellant’s bedroom in breach of s. 8 of the Charter. These were two long guns, at least one of which was trigger-locked, but which were improperly secured and left near loose ammunition. The appellant concedes that under s. 24(2), because the impugned evidence is real evidence, there is no trial fairness issue. The issue to be balanced is whether admission or exclusion of the evidence would tend more to bring the administration of justice into disrepute. Although there appeared to be no bad faith by the officers, entry into a dwelling-house without a warrant is a very serious Charter breach.

41In Feeney, where the offence was murder, the court excluded evidence that was non-conscriptive, crucial to the Crown’s case, and would not affect trial fairness. The majority decision of Sopinka J. emphasized that the unlawful warrantless entry into the appellant’s dwelling-house by the police was “a very serious intrusion of the appellant’s privacy rights”: id. at para. 81. Feeney thereby affirmed the conclusion of Cory J. in R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297 at para. 152, which stated that “to enter a dwelling-house without a warrant … constitutes such a serious breach of Charter rights that it will likely lead to a ruling that the evidence seized is inadmissible.”

42In this case, the impugned evidence is two long guns and ammunition, which were neither illegally owned, nor being brandished. Although any firearms offence is serious, the relative seriousness of the careless storage offence in this case does not outweigh the need to exclude the evidence so that the administration of justice in promoting the sanctity of the home will not be brought into disrepute. This court has emphasized that trial courts must give appropriate weight to the seriousness of the Charter breach at issue when considering the effect on the administration of justice under s. 24(2) of admitting or excluding evidence: see R. v. Calderon (2004), 2004 7569 (ON CA), 188 C.C.C. (3d) 481 at paras. 87–94. In the same vein, this court held in R. v. Sutherland (2000), 2000 17034 (ON CA), 52 O.R. (3d) 27 at paras. 1, 28–34, that an unlawful night-time search of a dwelling-house was serious enough to exclude evidence of handguns. As with s. 24(2) cases involving illegal arrests and searches of defendants found in possession of relatively small quantities of illegal narcotics or monies obtained from crime, in the present case, the relative magnitude of the careless storage of firearms offence is outweighed by the harm to individual liberty and to the administration of justice that would result from admitting the evidence obtained from a warrantless search of a dwelling house: see R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227 at para. 39; R. v. Lam (2003), 2003 ABCA 201, 178 C.C.C. (3d) 59 at paras. 55–69 (Alta. C.A.); R. v. Vigneault (2003), 2003 27327 (QC CA), 182 C.C.C. (3d) 422 at paras. 57–62 (Q.C.A.). I would therefore exclude the evidence of the rifle, shotgun, and ammunition.

Issue 2: Did the trial judge misapprehend the evidence given by the defence expert on accident reconstruction?

43Both the Crown and defence called expert testimony on accident reconstruction to help the court understand the circumstances of the accident and draw the appropriate conclusions on the appellant’s driving. This evidence was necessary as there was little direct evidence of the appellant’s driving. He testified that he had no memory of the accident.

44The trial judge was favourably impressed by the Crown expert, and in contrast, he found the evidence given by the defence expert, Mr. Garcia, “so greatly lacking as to have little usefulness.” The trial judge then undertook a detailed recitation of the problems with this evidence and why he found it so unhelpful.

45First, Mr. Garcia premised his findings on tire tracks at the scene that had no relationship to the accident. Second, in his reconstruction, he allowed the field of view to be contaminated by light emanating from a vehicle parked on the north shoulder of the highway facing west with its headlights and hazard lights on, whereas there was no evidence of any westbound vehicles at the time of the incident. Third, Mr. Garcia’s test vehicle was a mid-sized passenger car, with headlights that were lower than those mounted on a truck. Fourth, in calculating vision distances, Mr. Garcia did not consider that both the truck and the pedestrians were moving in the same direction. Fifth, he used statistics derived from a previous test that used a pedestrian wearing a white top instead of a retro-reflective vest, and his reconstruction used a pedestrian wearing a reflective but not a retro-reflective vest like the one worn by Ms. Langlois.

46In addition to these discrepancies, the trial judge criticized Mr. Garcia’s methodology because it made no reference to the co-efficient of friction on a snow-packed roadway or the type of tires on the appellant’s truck, and whether either of these factors would have made a difference. He concluded that:

All in all, it was understandable this witness, in cross-examination, exhibited nervousness, shaking hands, and a continual rolling of pen over and over in his hands. The entire package was completely unimpressive.

47The appellant’s complaint is that the trial judge misapprehended the purpose and purport of the expert’s testimony. The appellant claims that the purpose of Mr. Garcia’s evidence was not to present an alternative reconstruction, but rather to show that any reconstruction cannot be relied upon to demonstrate visibility distances, in view of unknown variables such as expectancy and vehicle speed.

48We did not call on the Crown to respond to this ground of appeal in oral argument. It is the province of the trial judge to decide what weight to give to every piece of evidence. He decided, for cogent reasons that he clearly articulated, that he was not prepared to rely on the opinion evidence of this expert for any purpose.

49In contrast, the trial judge gave full reasons for accepting the opinion of the Crown expert and for concluding that the appellant had clear visibility and ample time and distance to avoid the pedestrians without having to take any evasive action. The appellant also submits that the trial judge erred by preferring the evidence of the Crown expert and not properly applying the principles in R. v. W.D. (1994), 1994 76 (SCC), 93 C.C.C. (3d) 1 (S.C.C.), to this evidence. I disagree. In rejecting the defence expert, the trial judge concluded that his evidence did not raise a reasonable doubt. There is no basis to attack the trial judge’s findings on this evidence.

Issue 3: Were the findings of dangerous driving causing bodily harm and impaired driving causing bodily harm unreasonable?

50The appellant submits that there was no evidence of faulty driving and no evidence that the appellant’s impairment caused the injuries. As a result, the convictions on these two counts are unreasonable.

51In R. v. Andrew (1994), 1994 3288 (BC CA), 91 C.C.C. (3d) 97 at 120, the British Columbia Court of Appeal stated that s. 253 of the Criminal Code requires a causal connection between the impaired driving and the bodily injury; otherwise, Parliament could simply have increased the penalty for impaired driving where injury or death ensues. The court described the type of conduct that would imply a causal connection as certain driving conduct, a failure to react, or a failure to make a certain judgment that contributed in more than a de minimis way to the injury.

52Having found that the appellant had both clear visibility and time to react, the trial judge observed that there was no evidence of any reason why the appellant would have been unable to stay on the travelled portion of the road. Even if there was a fleeting distraction, there was ample time to avoid the pedestrians. In assessing whether the accused’s driving amounted to a marked departure from the standard of care of a reasonable person in the accused’s situation, as required by R. v. Hundal, the trial judge then turned to the known facts: the appellant was impaired by alcohol, if not intoxicated, when he refused offers of a ride and insisted on driving himself home from the party; on his way out, he backed one rear wheel off the side of the driveway and into the adjoining ditch, but kept going; nearly 500 metres from the accident, he entered a straight stretch of roadway; the weather and road conditions were normal for winter, it was not snowing and visibility was good; the pedestrians were walking off the roadway proper near the snow bank and Ms. Langlois was wearing a retro-reflective vest; the pedestrians were hit with considerable force.

53Based on these findings, the trial judge concluded beyond a reasonable doubt that the appellant’s driving represented a marked departure and went well beyond a momentary lack of attention. The trial judge specifically excluded from his consideration the evidence of two young men who had observed the appellant driving through town on the wrong side of the road, as this evidence suffered from certain frailties regarding the date of their observations.

54The appellant argues that he may have had legitimate reasons for driving close to the edge of the road inconsistent with dangerous driving, such as to give oncoming vehicles more room on a snowy night or in anticipation of reaching his driveway. Although there is no onus on an accused, the trial judge was entitled to rely on the facts that he did, where there was no other evidence from which to draw another conclusion or to raise a reasonable doubt, to prove dangerous driving causing bodily harm and impaired driving causing bodily harm beyond a reasonable doubt.

Issue 4: Did the trial judge misunderstand the mens rea requirement for the charge of failing to remain?

55The appellant says that in convicting him of failing to remain, the trial judge was required to find beyond a reasonable doubt not only that the appellant knew he had been involved in an accident, that he hit something, and that he left the scene, but also that he failed to stop with intent “to evade civil or criminal liability.” The appellant points to the evidence that Mrs. Van Puyenbroek had called Mrs. Cormier and told her that her husband knew he had hit something but was unsure what.

56I would not give effect to this ground of appeal. Besides the evidence that the appellant stopped and reversed his truck before driving away and that Mr. Martin was yelling at him for help, there was more evidence of the appellant’s intent and knowledge from his subsequent conduct. The evidence was that the appellant drove home and immediately drank more alcohol. It is reasonable to infer that the reason he may have done that was to influence any breathalyser reading he might have had to undergo. He and his wife had given evidence about a toothache he was suffering from, but it was unclear whether he drank or avoided alcohol to deal with the pain. In any event, the trial judge rejected the evidence of the appellant and of Mrs. Van Puyenbroek as he was entitled to do.

57Although the trial judge did not specifically refer to this section, the Crown also relies on s. 252(2) of the Criminal Code, which is applicable and provides:

In proceedings [under this section], evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.

Issue 5: The sentence appeal

58The appellant raises three issues with respect to the sentence: first, that the three year concurrent sentences for the dangerous driving causing bodily harm convictions following credit for 110 days of pre-trial custody are well outside the range for these offences; second, that the trial judge erred in imposing a consecutive sentence of six months for the fail to remain charge, as the conduct was the same as that involved in the impaired and dangerous driving charges; and third, that the trial judge erred by failing to give reasons for the DNA order as required by s.487.051(3) of the Criminal Code.

59In sentencing the appellant to three years concurrent on top of pre-sentence custody on the two major driving offences, the trial judge stated that the range suggested by the Crown of three to five years was within the appropriate range. However, the case law brought to the attention of this court does not bear out that observation. A chart attached as Schedule A to this court’s decision in R. v. Goudreault (2004), 2004 34503 (ON CA), 190 C.C.C. (3d) 19, suggests that the range runs from conditional sentences to two years less a day in prison in circumstances comparable to those in this case in terms of aggravating factors.

60Crown counsel relied on this court’s decision in R. v. Barnes (1999), 1999 1355 (ON CA), 117 O.A.C. 371, to support the three-year sentence. However, in that case, the charge was dangerous driving causing death and bodily harm. On appeal, the court reduced the sentence from three years to two years less a day because the trial judge erred in factoring in that the offence was alcohol-related when the jury had acquitted the appellant of impaired driving causing death and bodily harm. The court stated that in light of the appellant’s prior record, he deserved a substantial prison term for the offence of dangerous operation.

61Although it appears that the trial judge was in error in his understanding of the range of sentence that courts have historically been imposing for dangerous and impaired driving causing bodily harm, the issue before us on this appeal is whether the trial judge erred in the sentence he imposed on the appellant in this case.

62A trial judge’s decision on sentencing is one that is accorded the highest degree of deference by this court. The trial judge is familiar with the community and what is appropriate in all the circumstances of the case. The trial judge did not err in finding that a sentence of significant incarceration was warranted in light of the circumstances of the offence, including the degree of impairment, the nature of the accident and the very serious injuries and suffering of Ms. Langlois. Although the sentence of three years may be somewhat beyond the range historically imposed in similar cases, I see no error in the sentence imposed by the trial judge.

63I also do not accept the appellant’s position that the trial judge erred in law by imposing a consecutive sentence for leaving the scene. I agree with the trial judge that this offence involved separate conduct for which the trial judge was entitled to impose a consecutive sentence. The trial judge did not include this conduct when he discussed the reasons for imposing the three-year sentence for the major driving offences.

64Although the trial judge did not err in law in his reasoning, a court is also required to review the full sentence imposed and determine whether, in its totality, it exceeds the sentence required to meet the sentencing objectives in the Criminal Code. The trial judge noted that the appellant had a previous conviction for drinking and driving in 1990, which he said did not have a great deal to do with the current sentence, although he considered it. He also referred to the appellant’s expression of remorse to a doctor he spoke to in jail. In this case, the appellant served 55 days in pre-trial custody. A further 3 years, 6 months was imposed for the driving offences, for a total—counting the pre-trial custody credited on a 2-for-1 basis—of 3 years, 9 and 1/2 months. In my view, applying the totality principle, the total sentence should be reduced to 3 years after credit for pre-trial custody.

65The appellant also asked in his factum that the DNA order the trial judge imposed should be set aside because he failed to give reasons as required by s. 487.051(3) of the Criminal Code. The Crown did not respond on this ground. As the section is clear and no basis was argued for doing otherwise, I would set aside the DNA order.

66In the result, I would reduce the sentence to three years and I would set aside the DNA order.

CONCLUSION

67In the result, I would allow the appeal against conviction only in respect of the careless firearms convictions and set aside the 60 day consecutive sentence for those offences, but otherwise dismiss the conviction appeal. I would grant leave to appeal sentence and reduce the sentence to three years. I would also set aside the DNA order.

Signed: “K. Feldman J.A.”