COURT OF APPEAL FOR ONTARIO
Huscroft, Coroza and Gomery JJ.A.
BETWEEN
His Majesty the King
Appellant
and
Devesh Amar Serkissoon
Respondent
Matthew Morley, for the appellant
Stephen Gehl, for the respondent
Heard: January 5, 2026
On appeal from the directed verdict of acquittal entered on September 25, 2024 (COA-24-CR-1149), with reasons reported at 2024 ONSC 5286, and the acquittals entered on January 10, 2025 (COA-25-CR-0140) by Justice Michael D. McArthur of the Superior Court of Justice.
Coroza J.A.:
1On February 3, 2021, the respondent accelerated into an intersection in Kitchener, Ontario and struck a car turning left, killing the passenger and seriously injuring the driver.
2The respondent was charged with dangerous and impaired driving offences. He was acquitted of the impaired driving counts on a directed verdict application. He was acquitted of the remaining dangerous driving counts after a judge-alone trial. The Crown appeals from these acquittals.
3For the reasons that follow, I would allow the appeal and remit the matter for a new trial on all counts.
I. Overview
4As stated above, the respondent sped through an intersection and struck a left-turning vehicle. The driver of the struck vehicle was seriously injured. The passenger was killed.
5The respondent was transported to the hospital. Blood samples were taken by medical staff approximately four hours after the collision. At the hospital, the respondent told police that he had consumed marijuana the day before. Marijuana and marijuana paraphernalia were found inside the respondent’s car.
6The police obtained the respondent’s blood samples pursuant to a warrant under s. 487 of the Criminal Code, R.S.C. 1985, c. C-46. The samples were sent for testing to the Centre for Forensic Sciences. Two blood samples were tested by a technician. The results were forwarded to an analyst, Betty Chow.
7The first sample yielded a result of 4.94 ng/mL of tetrahydrocannabinol (“THC”). The second sample yielded a result of 5.46 ng/mL of THC. The average THC concentration of the samples was 5.2 ng/mL, with a measurement uncertainty of +/- 0.4 ng/mL.
8The respondent was charged with dangerous driving causing death (s. 320.13(3) of the Criminal Code), dangerous driving causing bodily harm (s. 320.13(2)), driving with excess blood drug concentration (“BDC”) causing death (s. 320.14(3)), and driving with excess BDC causing bodily harm (s. 320.14(2)).
9The Crown alleged that the respondent had a BDC in excess of 5 ng/mL THC within two hours of the time of the accident, contrary to s. 320.14(1)(c). The Crown relied in part on the statutory presumption in s. 320.31(2), which provides as follows:
The result of an analysis made by an analyst of a sample of a person’s blood is proof of their blood alcohol concentration or their blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly.
10To meet the requirements for the statutory presumption, the Crown provided a report written by Ms. Chow. Ms. Chow also testified at trial.
11During her examination-in-chief, Ms. Chow testified that, while it was not possible to extrapolate precisely what the respondent’s BDC would have been at the time of the collision, it would have been at least as high as his BDC at the time of testing, assuming no further THC consumption after the collision. Accordingly, Ms. Chow opined that, based on when the blood samples were taken and the relevant scientific principles, and assuming that the marijuana was consumed before the accident by inhalation, the respondent’s BDC within two hours of operating his car was 5.2 ng/mL of THC or higher.
12On cross-examination, Ms. Chow acknowledged that, incorporating the principle of measurement uncertainty, the respondent’s BDC at the time of driving could have been as low as 4.8 ng/mL.
13At the close of the Crown’s case, the respondent brought a motion for a directed verdict on the impaired driving counts.1 The trial judge granted the respondent’s motion and acquitted the respondent of these counts.
14In reaching his directed verdict ruling, the trial judge held that the Crown could not rely on the statutory presumption in s. 320.31(2) because this presumption did not apply to analyses of blood samples obtained pursuant to a search warrant issued under s. 487 of the Criminal Code. Therefore, the trial judge also declined to rule on whether Ms. Chow was a designated “analyst” and ascertain the “result of the analysis” within the meaning of the Criminal Code.
15Without applying the presumption, the trial judge found that Ms. Chow’s evidence on measurement uncertainty left a reasonable inference that the respondent’s BDC could have been below 5 ng/mL during the relevant time period and thus a reasonable jury, properly instructed, could not return a verdict of guilt on these counts.
16The trial proceeded on the dangerous driving counts only.
17At the conclusion of the trial, the trial judge acquitted the respondent of the remaining dangerous driving counts.
18The trial judge found that the respondent was driving carelessly, but not dangerously; the traffic at the intersection was light; and the driver of the other vehicle may have been distracted and unexpectedly entered the intersection. Applying the test from R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, the trial judge held that the Crown did not meet its burden of establishing that the respondent had the required mens rea for dangerous driving.
19The Crown appeals from these acquittals. The Crown submits that the trial judge committed errors of law in granting the respondent a directed verdict on the impaired driving offences and in his analysis of whether the respondent had the requisite mens rea for the dangerous driving offences.
II. Grounds of Appeal
20First, the Crown submits the trial judge erred in his application of the directed verdict test. Instead of asking whether a reasonable jury could convict, he asked whether the Crown had overcome any reasonable inference consistent with innocence. The trial judge further erred by holding that the presumption in s. 320.31(2) did not apply because the blood samples were obtained via a s. 487 warrant. Consequently, he did not consider the Crown’s evidence within the proper framework. The trial judge should have assessed the evidence within the presumption framework to determine whether the result of the analysis by a designated analyst under the Criminal Code established a reasonable basis to find that the respondent had the requisite BDC for the impaired driving offences. In the alternative, if the trial judge was correct that the presumption did not apply, he still should have found that a reasonable jury, properly instructed, could convict based on the analyst’s evidence alone.
21Second, the Crown submits the trial judge erred in his analysis of the respondent’s mens rea for dangerous driving. Although the trial judge correctly set out the legal test from Roy, the trial judge erred in law in his analysis of whether the respondent’s conduct was a marked departure from a reasonable standard of care in the circumstances.
22I will deal with each submission in turn.
III. Impaired Driving Counts
a. Directed Verdict Ruling
23The trial judge held that the provisions of Part VIII.1 of the Criminal Code – including the statutory presumption in s. 320.31(2) –did not apply to the testing and analysis of the blood samples in this case because the blood was obtained via a search warrant granted under s. 487. He reasoned that this conclusion is “clear” when s. 320.3 is “read in relation to the other sections in this Part which include by example s. 320.28 (demands by peace officers) and s. 320.29 (warrants requiring a medical practitioner or technician to take blood samples).”
24Putting aside the statutory presumption, the trial judge then turned to applying the test for a directed verdict to Ms. Chow’s evidence standing alone. He stated that the question on a directed verdict is whether there exists evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty, citing R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, and R. v. Ortega, 2022 ONCA 826.
25Applying this test, he found that a reasonable jury, properly instructed, could not return a guilty verdict, highlighting the following aspects of Ms. Chow’s testimony:
Unlike alcohol, there is no reliable way of reading back THC concentration.
The result of the first test was 4.94 ng/mL, with a measurement uncertainty of +/- 0.36 ng/mL. Applying the applicable measurement uncertainty, the respondent’s BDC based on the first result could have been as low as 4.63 ng/mL.
Ms. Chow then requested a further test and averaged the two results. The averaged result was 5.2 ng/mL, with a measurement uncertainty of +/- 0.4 ng/mL. Applying the applicable measurement uncertainty to the averaged result, the respondent’s BDC could have been as low as 4.8 ng/mL.
26Based on this, the trial judge concluded as follows:
[T]he range of reasonable inferences that can be drawn from Ms. Chow’s evidence is that the THC content in the blood of [the respondent] at the time of operation of the vehicle may have been below 5.0 ng/mL. Accordingly, in view of this evidence there is a reasonable inference other than guilt and the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.
27The Crown submits that the trial judge’s application of the directed verdict test was erroneous. Instead of asking the correct question, whether a reasonable jury could convict, he instead asked whether the Crown had overcome any reasonable inference consistent with innocence, requiring the Crown to “negate the inference the THC level was below 5.0 ng/mL”.
28Applying the correct test, the Crown’s primary position is that the trial judge should not have directed an acquittal because: (i) the presumption does apply, notwithstanding that the blood samples were obtained via a s. 487 warrant; and (ii) applying that presumption here, the “result of an analysis” of the respondent’s blood is 5.2 ng/mL.
29During oral argument, the Crown clarified that this ground of appeal could be disposed of solely on the trial judge’s erroneous conclusion that, because the blood samples were seized pursuant to a s. 487 warrant, the provisions of Part VIII.1 of the Criminal Code, including the presumption, did not apply. The matter would then be remitted to the trial court to apply the relevant provisions and determine whether the presumption applies and the directed verdict test is met.
30In the alternative, the Crown submits that, if the presumption does not apply, the appeal should still be allowed on the basis that a reasonable jury, properly instructed, could convict the respondent on the evidence of Ms. Chow alone.
b. Statutory Framework
31Before dealing with the Crown’s argument, it is helpful to review the history and context of the offence of driving with excess BDC.
32Since 1969, the Criminal Code has outlawed driving with a blood alcohol content (“BAC”) of over 80 mg/100 mL: R. v. Rousselle, 2025 SCC 35, 453 C.C.C. (3d) 1, at para. 37.
33Parliament enacted various “evidentiary shortcuts” to simplify and streamline impaired driving proceedings: R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 2. These evidentiary shortcuts historically provided that, where breath samples were tested via certain approved instruments, the result of that analysis was proof of the accused’s BAC both at the time the sample was taken and at the time the offence was alleged to have been committed, if certain conditions were met and in the absence of certain categories of evidence rebutting the presumption.
34In 2018, Parliament passed a comprehensive revision to the driving related provisions in the Criminal Code via An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21. This was a complete overhaul of the Criminal Code’s driving provisions and replaced all the former driving-related offences under a new Part VIII.1 of the Criminal Code: R. v. Wolfe, 2024 SCC 34, 441 C.C.C. (3d) 415, at paras. 11-12; Rousselle, at para. 100.
35Two features of this overhaul are important for purposes of this appeal.
36First, Parliament implemented new BDC offences, designed to combat drug-impaired driving in advance of cannabis legalization: Department of Justice, Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, as enacted, at pp. 7, 25.
37The new offence relevant to this appeal is found in s. 320.14(1)(c), which prohibits having a BDC that is equal to or exceeds the amount prescribed by regulation “within two hours after ceasing to operate a conveyance”:
(1) Everyone commits an offence who
(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation[.]
38According to s. 2 of the Blood Drug Concentration Regulations, SOR/2018-148, the prescribed amount for THC is 5 ng/mL of blood.
39This new BDC offence is different in structure than the previous “over 80” provision as it appeared prior to the 2018 amendments. The previous “over 80” offence criminalized operating a motor vehicle and other conveyances with a BAC exceeding 80 mg/100 mL of blood. It is now an offence to have a certain BAC or BDC within two hours of having operated a conveyance. This makes it unnecessary to prove the accused’s BAC or BDC at the time of driving: Rousselle, at para. 100.
40Second, Parliament enacted statutory presumptions to facilitate proving this and other related offences. The statutory presumption relevant to this appeal is s. 320.31(2), which provides that “the result of an analysis” made by an “analyst” “is proof” of a person’s BDC at the time the sample was taken, in the absence of evidence that the analysis was conducted improperly:
The result of an analysis made by an analyst of a sample of a person’s blood is proof of their blood alcohol concentration or their blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly.
41“Analyst” is a defined term in s. 320.11:
analyst means a person who is, or a person who is a member of a class of persons that is, designated by the Attorney General under subparagraph 320.4(b)(ii) or paragraph 320.4(c).
42Section 320.4(b)(ii) provides that the Attorney General may designate a person or class of persons as qualified to analyze samples of bodily substances.
43The statutory presumption in s. 320.31(2) is an evidentiary shortcut; it is not an element of the offence that the Crown is required to prove. If the preconditions for relying on the statutory presumption are not met, the Crown may still prove the case against the accused in other ways depending on the evidence before the court. As the Supreme Court recently explained in the context of BAC in Rousselle, at para. 48:
While the presumption of accuracy functions as an evidentiary shortcut for proving “80 and over” offences, it is not itself an element of the offence. Failure to prove the statutory preconditions beyond a reasonable doubt means that the Crown cannot rely on the presumption to prove an accused’s BAC at the time of testing. However, there may be other avenues for the Crown to prove its case against the accused, depending on the evidence before the court [Emphasis added, citations omitted.]
44The trial judge in this case determined that the statutory presumption in s. 320.31(2) does not apply to blood samples seized via a s. 487 warrant.
45Subsequently, Edwards J. released a decision disagreeing with the trial judge on this point and finding that the statutory presumption does apply to blood samples seized in this way: R. v. Zhou, 2025 ONSC 6043. In reaching a different conclusion from the trial judge here, Edwards J. wrote as follows, at para. 108:
I agree with the submissions of the Crown that Serkissoon did not engage in statutory interpretation using the modern approach reading the provision in its ordinary grammatical sense. Rather, it would appear that the court in Serkissoon relied on s. 320.3 of the Code, a provision that does not concern the presumption of accuracy but rather permits testing of samples taken “for the purposes of this part” for either alcohol or drugs both. I agree with the submission of the Crown that Parliament’s purpose in rewriting the presumption of accuracy as set forth in s. 320.31(2) cannot be informed by a different search power. I agree with the submission of the Crown that Parliament’s choice to remove reference to samples “taken pursuant to a demand”, or “taken under” specified sections, must be given effect in interpreting s. 320.31(2).
46Edwards J. went on to cite the Supreme Court of Canada’s decision in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 134, for the principle that Parliament is presumed not to speak in vain.
c. Standard of Review
47The key question on a motion for a directed verdict is the same as the question on a preliminary inquiry: “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: Arcuri, at para. 21, quoting from United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080. “A directed verdict is not available if there is any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction”: R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 48.
48In making this assessment, the trial judge must consider “the entirety of the evidence” viewed “in the reasonable light that is most favourable to the Crown”: R. v. Kelly, 2017 ONCA 920, 138 O.R. (3d) 241, at para. 19.
49While discussing how to apply this test in the context of a preliminary inquiry (which uses the same test), Doherty J.A. explained that “evidence at the preliminary inquiry that is equally capable of supporting two reasonable inferences, one consistent with guilt and the other inconsistent with guilt, requires that the accused be committed for trial”: R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 11. This must be distinguished from a situation where the evidence “cannot reasonably support the inferences necessary to establish the Crown’s case”: at para. 12.
50The standard of review on a directed verdict of acquittal is correctness. Whether or not this test is met is a question of law that does not command appellate deference to the trial judge: Barros, at para. 48; Ortega, at para. 5.
d. Analysis
51I agree with the Crown that the statutory presumption in s. 320.31(2) applies, notwithstanding that the respondent’s blood samples were obtained via a s. 487 warrant. I reach this conclusion by considering the text, context and purpose of s. 320.31(2): Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; Rousselle, at paras. 80-81. This conclusion is sufficient to allow this ground of appeal.
52First, the text of s. 320.31(2) does not contain any qualifying language about how the blood sample was obtained. On its plain language, there is no basis to restrict its applicability to blood samples obtained via a warrant or police demand under Part VIII.1.
53Second, the context of s. 320.31(2) supports this interpretation. The trial judge relied on the context of other provisions in Part VIII.1, namely ss. 320.28 and 320.29, to conclude that the statutory presumption in s. 320.31(2) does not apply. Respectfully, I do not see anything in s. 320.3, even when read together with ss. 320.28 and 320.29, that would limit the application of the statutory presumption in s. 320.31(2).
54Section 320.3 is non-exclusive. It provides that “[s]amples of a person’s blood that are taken for the purposes of this Part may be analyzed to determine the person’s… blood drug concentration”. It permits samples taken for the purposes of Part VIII.1 to be analyzed to determine blood drug concentration. However, it does not say that only samples taken for the purposes of this Part may be analyzed to determine blood drug concentration.
55Moreover, even if s. 320.3 were exclusive, the blood samples in this case were taken “for the purposes of this Part”. While the blood samples were seized using a warrant obtained under a different Part, it is clear that the purpose of the seizure was to analyze the respondent’s blood for the purpose of proving an offence under Part VIII.1. I see no reason to construe s. 320.3 so narrowly as to exclude evidence seized for this purpose.
56Third, Parliament must have had some purpose in removing the restriction that was in the previous version of this statutory presumption. For ease of reference, I provide a side-by-side comparison of the statutory presumption pertaining to blood samples in s. 320.31(2), and the previous statutory presumption pertaining to blood samples in s. 258(d), as it appeared before the 2018 amendments came into force.
57The relevant statutory presumption pertaining to blood samples, as it appeared before the amendments came into force, was:
(d) if a sample of the accused’s blood has been taken under section 254 or 256 or with the accused’s consent, evidence of the result of the analysis of that sample is conclusive proof, in the absence of evidence tending to show that the analysis was performed improperly, that the concentration of alcohol in the accused’s blood both at the time when the sample was taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis […] [Emphasis added.]
58The relevant current statutory presumption, as it appears after the amendments come into force, is:
(2) The result of an analysis made by an analyst of a sample of a person’s blood is proof of their blood alcohol concentration or their blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly.
59As explained by Prof. Sullivan, “[i]t is presumed that amendments to the wording of a legislative provision are made for some intelligible purpose: to clarify the meaning, to correct a mistake, to change the law”: Ruth Sullivan, The Construction of Statutes, 7th Ed. (Toronto: LexisNexis, 2022), at § 23.02.
60The same logic applies here. Some meaning must be given to Parliament’s choice to remove the restrictive language in the previous version of the statutory presumption pertaining to blood samples.
61The previous version of this statutory presumption began with clear qualifying language limiting its application to blood samples taken under s. 254 (samples demanded by a peace officer), s. 256 (samples obtained via warrant) or with the accused’s consent. The other statutory presumptions in the pre-2018 legislation pertaining to breath samples had similar qualifying language. This language was removed in the new version of the presumption. In my view, Parliament’s choice to remove this qualifying language in s. 320.31(2) should be given meaning. As stated by Edwards J. in Zhou, Parliament’s choice to remove reference to samples taken under specified sections of the Criminal Code must be given effect in interpreting s. 320.31(2): at paras. 107-108.
62In sum, looking to the text, context and purpose of s. 320.31(2), the trial judge erred in concluding that s. 320.31(2) does not apply to analyses of blood samples obtained via a s. 487 warrant.
63This is sufficient to remit the impaired driving counts for a new trial. The trial judge’s error deprived the Crown of the evidentiary shortcut in s. 320.31(2). Consequently, the trial judge did not assess whether Ms. Chow was a “designated analyst” and did not determine the “result of the analysis” through the proper framework.
64The Crown goes further and asks this court to apply the presumption, find that Ms. Chow is an analyst as designated by Parliament, and interpret the “result of an analysis” to mean 5.2 ng/mL on these facts, as opposed to the entire 95% confidence interval of 4.8-5.6 ng/mL. Relying on R. v. Moreau, 1978 CanLII 162 (SCC), [1979] 1 S.C.R. 261, and R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397, from the breathalyzer context, the Crown submits that Parliament is understood to have taken measurement uncertainty into account in setting the criminal threshold for BAC. The Crown argues that “the same logic applies to the presumption of accuracy in s. 320.31(2) as it relates to the result of Ms. Chow’s analysis of the respondent’s blood”, and thus the result of the analysis for the purpose of the presumption in s. 320.31(2) is 5.2 ng/mL.
65I decline to make that finding here. It is more appropriate for the trial judge, applying the proper framework, to assess whether Ms. Chow is a designated analyst and determine the result of her analysis within the meaning of s. 320.31(2). It will also be for the trial judge to grapple with any constitutional issues raised, and this court’s recent decisions in R. v. Kelly, 2025 ONCA 92, 175 O.R. (3d) 577, and R. v. Robertson, 2026 ONCA 281, which were released after the trial judge rendered judgment in this case. These issues were not fully addressed on this appeal, nor were they addressed in the reasons below, given the trial judge’s conclusion that the statutory presumption did not apply. As such, this court is not well situated to make a definitive ruling.
66Accordingly, I would allow this ground of appeal and remit the impaired driving counts for a new trial.
67Given my conclusion on the Crown’s primary argument on this ground of appeal, it is unnecessary to address the Crown’s more general argument that the trial judge erred in applying the directed verdict test and its alternative argument that, absent the presumption, a jury could still reasonably convict on the evidence of the analyst alone, as raised in oral submissions.
IV. Dangerous Driving Counts
68The Crown submits that the trial judge misapprehended the speed at which the respondent was driving, provided insufficient reasons for rejecting the evidence of the collision reconstructionist, failed to properly consider the respondent’s manner of driving and level of intoxication at the time, and improperly considered the other driver’s conduct as a consideration relevant to the respondent’s mens rea. Accordingly, the Crown seeks a new trial on these counts.
a. Reasons for Judgment
69The trial judge began his analysis in the reasons for judgment by instructing himself on the two-stage approach to mens rea in dangerous driving offences from Roy, stating:
The Supreme Court of Canada in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, has suggested a two-stage approach to mens rea by asking the questions: First, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it, if possible. And second, whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.
70The trial judge went on to explain that, in his view, based on the level of traffic and the other driver’s testimony about where her attention was directed, the respondent could not have anticipated the collision:
It is difficult for this Court to understand what risk anyone, let alone the defendant, could have expected. In this case, it would not be reasonable to have anticipated that another vehicle would unexpectedly enter one's lane of travel and then expect them to have the onus to avoid such a risk that they may not have created. [Emphasis added.]
71Ultimately, the trial judge returned to the two-part test from Roy and concluded that “the answers to both of those questions … is no.”
b. Standard of Review
72The Crown can appeal an acquittal only on a “question of law alone”: Criminal Code, s. 676(1)(a). For the Crown to prevail on appeal, we must be satisfied that there is an appealable error that is anchored to a question of law, rather than a question about how the trial judge weighed evidence or his assessment as to whether it met the standard of proof beyond a reasonable doubt: R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at paras. 10-11.
73An error of law may arise where “the legal effect of findings of fact or of undisputed facts raises a question of law” or where there is “an assessment of the evidence based on a wrong legal principle”: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197.
74In other words, the Crown may prevail on appeal where “the trial judge’s application of the legal principles to the evidence demonstrates an erroneous understanding of the law, either because the trial judge finds all the facts necessary to meet the test but errs in law in its application, or assesses the evidence in a way that otherwise indicates a misapprehension of the law”: Chung, at para. 11.
c. Analysis
75I am mindful that it is not the function of this court to parse the reasons of the trial judge in search of error. However, I am satisfied that the Crown has identified a significant legal error in the trial judge’s analysis that is dispositive of this ground of appeal.
76Specifically, the trial judge erred in his application of the test for mens rea by not considering all the relevant evidence. The trial judge put undue focus on whether the other driver was distracted, rather than analyzing whether a reasonable person would foresee the danger to the public posed by the respondent’s conduct.
77Relying on the other driver’s role in the accident as a basis for determining what a reasonable person would do was an error. As explained by Paciocco J.A. in R. v. Romano, 2017 ONCA 837, 41 C.R. (7th) 305, at paras. 68-71:
…[T]he focus is on whether the manner of driving constitutes a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.
Judging whether driving was dangerous by exploring whether the accused is at fault for an accident that occurred obscures the proper focus on the manner of driving.
78Instead of evaluating the manner of the respondent’s driving and the degree of departure from the norm, the trial judge erred by examining the circumstances of the collision and the other driver’s role in it, to the exclusion of other potential risks posed by the driver’s conduct.
79The issue was not whether the collision with the driver turning left was foreseeable and avoidable. Rather, the issue was whether the respondent’s manner of driving created foreseeable and avoidable risks to the public, including risks that would arise if people or other cars were on the roadway: Romano, at para. 78.
80In his reasons, the trial judge stated that “the main risk advanced is that of excessive speed.” He went on to find that, “[o]n the facts of this case, this is not a marked departure from the normal standard of driving behaviour on such roads.”
81In my view, this statement was conclusory and the trial judge did not account for all the relevant evidence.
82In the respondent’s statement to the police, he stated as follows:
… I was driving down Victoria and had a green light, I saw the walking hand come on so I accelerated so I didn’t catch the yellow going around 80 km an hour and the vehicle I hit was taking a left turn and I guess they weren’t watching or aware of me coming so I tried to avoid them and it was too late. [Emphasis added.]
83The respondent admitted to the police that he accelerated towards the intersection at a high speed. The question for the trial judge was not simply an assessment of the respondent’s speed. It was whether the totality of the respondent’s conduct markedly departed from the reasonable standard of care in the circumstances and not the conduct of the driver turning left.
84As Martin J. explained in Chung, in order to evaluate the mens rea for dangerous driving, a trial judge must conduct an objective assessment comparing the accused’s conduct to the conduct of a reasonable person in their circumstances, with reference to all relevant evidence. She went on to explain, at para. 24:
At some point in the mens rea analysis, the trial judge must work with the facts as found and consider whether, in the totality of the circumstances, a reasonable person would have foreseen the risk and taken the same actions as the accused. Only where there has been an active engagement with the full picture of what occurred can the trial judge determine whether the accused’s conduct was a marked departure from the conduct of a reasonable and prudent driver. [Emphasis added.]
85In sum, I am persuaded by the Crown’s submissions that the trial judge’s decision to acquit the respondent on the dangerous driving counts was tainted by his focus on the other driver’s conduct and his failure to consider all the relevant evidence. This was significant legal error. Therefore, the respondent’s acquittals in relation to the dangerous driving counts should be set aside and remitted for a new trial.
86At the new trial, it will be for the trial judge to decide whether, on the correct analysis and considering all the relevant evidence, the respondent should be convicted or acquitted of these counts.
V. Disposition
87For these reasons, I would allow the appeal and remit the matter to the Superior Court of Justice for a new trial on all four counts.
Released: July 3, 2026 “G.H.”
“S. Coroza J.A.”
“I agree. Grant Huscroft J.A.”
“I agree. S. Gomery J.A.”
Footnotes
- The respondent had also previously sought to challenge the search of his vehicle under s. 8 of the Canadian Charter of Rights and Freedoms and the facial validity of the blood sample warrant under R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. The trial judge ruled that the search did not offend the Charter. He postponed submissions on the Garofoli application until after the directed verdict application had been decided.