Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Corey McIlmoyle
Before: Justice S.W. Konyer
Heard on: November 23 and 25, 2016
Reasons for Judgment released on: January 24, 2017
Counsel
Mr. J.T. Martin — counsel for the Crown
Mr. A. Richter — counsel for the defendant Corey McIlmoyle
Judgment
KONYER J.:
1Corey McIlmoyle is charged with having the care or control of a motor vehicle on June 23, 2015 while his ability to drive was impaired by alcohol, and while he had a blood-alcohol concentration that exceeded the legal limit. He is also charged with dangerous driving from the same incident. It is not disputed that he was impaired by alcohol or that his blood-alcohol concentration was roughly twice the legal limit. Nor is it disputed that he operated the vehicle, at least briefly, in a manner that was dangerous to the public. The only issue is whether his actions are legally excused by operation of the defence of necessity.
2The unusual facts of this case are that Mr. McIlmoyle grabbed the steering wheel of a car being driven by his former partner, causing the car to veer sharply to the right and crash in the ditch. The defence argues that Mr. McIlmoyle did so out of necessity to prevent the driver from deliberately causing an accident. I must first decide whether there is an air of reality to Mr. McIlmoyle's claim of necessity. If there is an air of reality to the necessity claim, then the onus is on the Crown to prove beyond a reasonable doubt that Mr. McIlmoyle did not act out of necessity. Like any accused person, Mr. McIlmoyle is presumed innocent and must be found not guilty unless the Crown proves the case against him beyond reasonable doubt.
3If there is an air of reality to the claim of necessity on the facts of this case, then I must consider this defence. This essentially involves asking three questions. First, was Mr. McIlmoyle in a situation of imminent peril? If he was, then did he have any other reasonable legal alternative to acting as he did? If he did not, then was the potential harm involved in the course of action he chose proportionate to the harm he sought to avoid? In answering the first two questions, I must apply a modified objective standard and consider how a reasonable person in Mr. McIlmoyle's circumstances would have acted. In answering the third question, I must apply an objective standard.
4In this case, I have heard testimony from Mr. McIlmoyle's former partner, who was driving him home at the time, another driver who witnessed the accident, and several police officers involved in the investigation of the accident. Mr. McIlmoyle also testified in his own defence.
5To come to a decision in this case, I will first review the evidence that is relevant to the issues as I have described them. Next, I will briefly set out the law of necessity. Finally, I will apply the law to the facts as I have found them to be in order to reach a conclusion as to whether there is an air of reality to the claim of necessity and, if there is, whether the Crown has proven beyond reasonable doubt that Mr. McIlmoyle did not act out of necessity.
Summary of the Relevant Facts
6By September 23, 2015, Mr. McIlmoyle had been involved in an intimate relationship with Sara Lawton for over five years. They shared two children. Ms. Lawton described their relationship as toxic. She explained that Mr. McIlmoyle abused alcohol and had cheated on her with another woman. She also said that they were each emotionally and physically abusive towards one another. This evidence was not disputed.
7They were living separately when this incident occurred. Ms. Lawton lived in Peterborough with the children, while Mr. McIlmoyle had moved into his brother's home in Norwood. On September 23, 2015, she brought the children to Norwood to celebrate their older daughter's birthday. During the course of the party, Mr. McIlmoyle consumed several beers and became intoxicated. Ms. Lawton left with the children around 9:00 p.m. and returned to her home in Peterborough. After arriving home, she and Mr. McIlmoyle texted one another. At one point she sent him a text asking "you really do love me?" to which he responded "of course." Ms. Lawton agreed that she still had strong feelings for Mr. McIlmoyle at the time, despite their separation. After the text message exchange, she returned to Norwood, picked him up, and drove back to Peterborough.
8Once they arrived at her home, however, Ms. Lawton and Mr. McIlmoyle began to argue almost immediately. She examined his phone, and discovered recent text messages between Mr. McIlmoyle and the same woman. She became upset, hid his cell phone, refused to return it, and told him she was going to drive him back to Norwood.
9They continued to argue during the drive to Norwood. The children were not in the car during this trip. Ms. Lawton said they were both yelling and screaming, and that he was pounding the dashboard in front of the passenger seat. When asked by the Crown to describe what she was yelling, she said "I could not imagine being without Corey". She then said that Mr. McIlmoyle suddenly reached over and grabbed the top of the steering wheel and yanked it to the right. This caused her car to veer into the right hand ditch, where it crashed. Both front seat airbags deployed, resulting in minor injuries to each of them. She estimated the car's speed at the time Mr. McIlmoyle grabbed the steering wheel to be 90 km/hr.
10In cross-examination, Ms. Lawton agreed that she was extremely upset during the drive back to Norwood. Despite all of the problems in their relationship, she agreed with the suggestion that she could not fathom life without Mr. McIlmoyle. He told her that if she did not return his phone, that she would never see him again. This upset her greatly. She also agreed that she had a history of mental illness throughout their relationship, and that she had threatened to commit suicide many times when they fought.
11On this date, Ms. Lawton admitted that she threatened to end both of their lives during the drive towards Norwood. She made this threat shortly before the accident. When it was suggested to her that she followed up the threat by steering the car to the left across the centre line of the highway, she said she did not remember doing so, but agreed that it was possible.
12The accident was witnessed by Allan Laroche, who was operating a tractor trailer on Highway 7 just east of Peterborough, on a stretch of highway that is four lanes wide. Mr. Laroche was travelling eastbound in the right lane, when he noticed Ms. Lawton's vehicle pass him in the left eastbound lane. He noticed nothing unusual about the vehicle until it was two or three car lengths ahead of him, at which point it suddenly veered to the right, crashing into the ditch. This occurred in a split second. He agreed that he was not paying any particular attention to the vehicle until it veered in front of his truck. Mr. Laroche has logged thousands of hours as a trucker, and until the accident this was simply one of countless vehicles that had passed him.
13Mr. Laroche stopped his truck promptly and walked back to the site of the accident. By the time he arrived at the scene, Ms. Lawton had gotten out the car and was yelling at Mr. McIlmoyle that he had tried to kill her and that she was calling the police. Mr. Laroche then saw Mr. McIlmoyle get out of the car and stare at Ms. Lawton in silence before walking away eastbound on Highway 7.
14Police attended the scene in response to Ms. Lawton's 911 call, and took statements from her and Mr. Laroche. They were unable to locate Mr. McIlmoyle until a canine officer attended and tracked him to a wooded area behind a nearby business. He complied with verbal requests to exit the woods where he was hiding, and was placed under arrest without incident. Police did note minor bleeding to his face as a result of the air bag deployment, but Mr. McIlmoyle declined medical attention. He was initially told that he was being arrested for mischief endangering life and possibly assault. Mr. McIlmoyle responded by stating "there was no assault, I just grabbed the wheel."
15Mr. McIlmoyle was properly informed of his rights and cautioned before being transported to the Peterborough OPP detachment. The arresting officer noted obvious signs of intoxication. Once at the detachment, the police determined that they were now investigating him for drinking and driving offences as well as dangerous driving. Mr. McIlmoyle was informed of this change in his legal jeopardy, and exercised his right to counsel. Eventually, he was turned over to a Qualified Technician, D.C. Clarke, who conducted breath tests. No challenge was taken to the testing procedures, and the results of the analysis of Mr. McIlmoyle's breath samples showed his blood-alcohol concentration to be 170 milligrams of alcohol per 100 millilitres of blood, or just over twice the legal limit for operation or having the care or control of a motor vehicle.
16Mr. McIlmoyle was also interviewed by D.C. Clarke during the testing procedure, and this interview was audio and video recorded. The voluntariness of Mr. McIlmoyle's statements was conceded. He argued with D.C. Clarke when told he was being charged with impaired operation and could be charged with operating a motor vehicle with an excessive blood alcohol concentration, stating that he was not operating the vehicle. When asked if he had caused the vehicle to go into the ditch, he said "based on me asking her three times to pull over, then I grabbed the wheel". He later admitted grabbing and pulling on the steering wheel, causing the car to go into the ditch.
17Mr. McIlmoyle testified in his own defence. He agreed with most of the narrative provided by Ms. Lawton. He agreed with her characterization of their relationship as toxic, agreed that he was intoxicated on the date of the incident, and agreed that an argument started after she grabbed his phone and discovered messages to and from another woman. He also said that Ms. Lawton had a history of mental illness throughout their relationship. In 2014, she was held involuntarily for several weeks on a mental health ward following suicide threats. About two weeks prior to the driving incident, she threatened to commit suicide after first discovering his relationship with another woman. As a result, she was hospitalized overnight. Significantly, the Children's Aid Society was also alerted, apparently opened a file and placed the children temporarily with another family member.
18During the trip back to Norwood, Mr. McIlmoyle agreed that they were arguing loudly. Ms. Lawton refused to return his cell phone, and he told her that their relationship was over. He said that she became very agitated at which point he asked to be let out of the car. She refused, saying that he was not going to live without her.
19At this point he felt the car veer to the left, and begin to cross the centre line. He saw a used car lot with parked vehicles on the left side of the highway, and also saw distant headlights approaching from the east. He believed that Ms. Lawton intended to follow through on threats to harm both herself and him, and he panicked and grabbed the steering wheel, pulling it back to the right. He felt the steering wheel go loose and believes that Ms. Lawton released it. The next thing he knew the car was in the ditch on the right hand side.
20Mr. McIlmoyle testified that he feared that Ms. Lawton intended to crash the car, either into parked vehicles in the car sales lot, or into oncoming traffic. His fear was based on her prior history of suicidal threats, her level of agitation, and the words she spoke immediately before he felt the car moving to the left. He reacted with the intention of preventing an accident.
21Mr. McIlmoyle said that he left the scene of the accident because he was intoxicated, Ms. Lawton was blaming him for the accident, and he knew that police were being called. At the time, he had outstanding drinking and driving charges from an earlier incident. He hid from police to avoid arrest. When he became aware that the police had tracked his location, he surrendered.
22With respect to the statements he made to D.C. Clarke, he explained that he did not want to tell police that Ms. Lawton had threatened to commit suicide again out of fear that this would be reported to the C.A.S. and result in the apprehension of their children.
The Applicable Law
23The defence of necessity operates to excuse otherwise criminal conduct in circumstances where that conduct is essentially involuntary. By definition, it is clear that the defence will apply only in very limited circumstances.
24The leading cases on the law of necessity are R. v. Perka, [1984] 2 S.C.R. 232 and R. v. Latimer, 2001 SCC 1 , [2001] 1 S.C.R. 3. I agree with and adopt the summary of the law of necessity as set out succinctly by Rose J. in R. v. Hunt, 2016 ONCJ 147, at paragraphs 25–31.
25There is a three-part test to determine if legal necessity is made out - the accused must face a situation of imminent peril; there must be no reasonable legal alternative to the course of action chosen; and the harm inflicted must be proportionate to the harm avoided.
26As a preliminary matter, there must be an air of reality to the claim of necessity. If an air of reality is found to exist, then the onus shifts to the Crown to prove beyond reasonable doubt that any of the three parts of the necessity test do not exist. In other words, the Crown must prove that there was no imminent peril, or that the accused had a reasonable legal alternative, or that the harm inflicted was disproportionate to the harm avoided.
Application of the Law to the Facts of This Case
27In Mr. McIlmoyle's case, I find that there is an air of reality to his claim that he acted out of necessity. I base this on Ms. Lawton's history of mental illness and suicide attempts, her admission that she was both furious with Mr. McIlmoyle and upset at the prospect of losing him in the moments before the crash, her admission that she uttered a threat to harm them both, and her concession that she may have deliberately acted upon her threat by steering into oncoming lanes of traffic. Taken together with Mr. McIlmoyle's testimony that he grabbed the steering wheel to prevent an accident, these facts lend an air of reality to the claim of necessity.
28Since I have found there to be an air of reality to the defence of necessity in this case, the question I must decide is whether I am sure that Mr. McIlmoyle did not act out of necessity. Unless I am sure, the law requires that I find him not guilty. Because necessity involves a three part test, I must ask myself the following three questions:
i) Has the Crown proven beyond reasonable doubt that Mr. McIlmoyle did not face a situation of imminent peril?
ii) Has the Crown proven beyond reasonable doubt that he had no reasonable legal alternative?
iii) Has the Crown proven beyond reasonable doubt that the harm inflicted was disproportionate to the harm avoided?
29If the answer to any of these questions is yes, then the Crown will have proven that Mr. McIlmoyle did not act out of necessity. Since the charges are otherwise conceded, he would be found guilty.
30In answering the first question, the test is not simply whether Mr. McIlmoyle believed himself to be in a situation of imminent peril. His belief must be objectively reasonable, taking into account the situation and his particular characteristics.
31Applying this test, I find that the Crown has not proven that Mr. McIlmoyle did not face a situation of imminent peril. He was in a vehicle travelling at highway speed on a busy, multi-lane highway. The driver was angry at him, agitated, and known to him to have a history of suicidal ideation. She had just threatened to end both of their lives as a result of the deterioration of their relationship. She refused to stop and let him out of the car. Ms. Lawton herself admitted that she may have begun steering the car into oncoming lanes of traffic. Whether she was actually serious about trying to kill herself and Mr. McIlmoyle, this act by her must have been at least intended to convey to Mr. McIlmoyle that she was serious.
32The fact that Mr. Laroche did not notice any swerving to the left is not conclusive proof that Ms. Lawton did not begin to steer the car across the centre line. Mr. Laroche had no particular reason to focus on the car until it veered in front of his own vehicle and it is conceivable that he did not notice the car first swerving in the opposite direction. As Mr. Laroche testified, this entire incident was unexpected and sudden.
33The fact that Mr. McIlmoyle made statements to the police about why he grabbed the steering wheel that are inconsistent with his testimony at trial is a factor that tends to undermine the reliability of his evidence on this point. However, I accept his explanation for not being truthful with D.C. Clarke on this point as plausible in the circumstances. Ms. Lawton's previous suicide attempt had led child welfare authorities to remove the children from her care, at least temporarily. It would have been reasonable for him to believe that disclosure to police of her effort to harm them both would have resulted in another apprehension. His reluctance to tell the truth in those circumstances is understandable.
34On all of the evidence, I cannot discount the very real possibility that Mr. McIlmoyle's testimony about why he took control of the car by grabbing the steering wheel is truthful.
35The Crown argues that even if Ms. Lawton had begun to steer the vehicle into oncoming lanes, there was no imminent peril because both the far ditch and any oncoming traffic was far enough away that Mr. McIlmoyle could have waited before taking corrective action. In Latimer, supra, the Supreme Court confirmed that the defence of necessity "rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience." [para. 26].
36The risk presented by Ms. Lawton's actions behind the wheel was not a circumstance that Mr. McIlmoyle could have reasonably been expected to have foreseen. In my view, the law does not require that someone in Mr. McIlmoyle's circumstance wait until the last possible moment to decide whether Ms. Lawton was actually going to follow through on her threat of harm. She estimated their speed to be 90 km/hr. She agreed that she was extremely upset and could not imagine life without Mr. McIlmoyle after he told her their relationship was over. She agreed that she threatened to end both of their lives. In those circumstances, once she began to steer the car into oncoming traffic lanes, an emergency situation arose that justified an immediate response. The Crown has failed to prove beyond reasonable doubt that there was no imminent peril.
37In answering the second question on the necessity test, I must determine whether Mr. McIlmoyle had a reasonable legal alternative. Again, the test I must apply is a modified objective test. Mr. McIlmoyle was inside a vehicle moving at highway speed. He could not simply leave the situation, and practically speaking there was no time to permit him the luxury of either calling for help or attempting to calm down Ms. Lawton. Although he was clearly impaired by alcohol, I am satisfied that no reasonable legal alternative existed other than for him to correct the course of the vehicle by steering it himself.
38In answering the third question on the necessity test, I find that the harm inflicted was of a comparable gravity to the harm avoided. By acting in the manner he did, Mr. McIlmoyle posed a risk of harm to himself, Ms. Lawton and other users of the road, which was precisely the harm he sought to avoid by assuming control of the motor vehicle.
39At the end of the day, I cannot be sure if Mr. McIlmoyle grabbed the steering wheel of Ms. Lawton's car in a fit of drunken rage, or whether he did so in response to a threat posed by Ms. Lawton's own conduct. Since the law requires that I be sure that he did not act out of necessity in order to convict him, it follows that the Crown has failed to displace the defence of necessity raised on the facts of this case. Accordingly, Mr. McIlmoyle is found not guilty on all three counts.
Released: January 24, 2017
Signed: "Justice S.W. Konyer"