Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Ronnie Esteves
Judicial Officer and Counsel
Before: Justice M.K. Wendl
Heard on: December 6, 2018
Reasons for Judgment released on: January 16, 2019
Counsel:
- Stephanie Turner — counsel for the Crown
- Rocco Loccisano — counsel for the defendant Ronnie Esteves
Judgment
Charges and Plea
1Mr. Ronnie Esteves is charged with operating a motor vehicle in a manner that was dangerous to the public, contrary to section 249(1)(a) of the Criminal Code of Canada and a breach of recognizance for contact with Susan Spry, contrary to section 145(3) of the Criminal Code of Canada. The charges arise out of the same occurrence on July 9, 2017. Mr. Esteves pled not guilty to the charge of dangerous driving and testified on his own behalf. He pled guilty to the charge of breach of recognizance. Therefore the court must determine whether the Crown has proven the charge of dangerous driving beyond a reasonable doubt.
Facts Agreed Upon
2The Crown and defence can agree on the following. Ronnie Esteves and the complainant Susan Spry are divorced. It is an acrimonious relationship. Susan Spry went to pick up her twin boys from their father, Ronnie Esteves, on July 9, 2017. Ms. Spry wanted the hockey equipment ready at the pickup because the boys had a ball hockey camp that week. When she arrived at the house she saw the boys and she saw the equipment except for the hockey sticks. When Ms. Spry arrived, Mr. Esteves got into his truck and began to leave. When he heard the comments about the hockey sticks, he reversed back into the driveway and got out. A discussion ensued; who started the discussion is not an issue I need to resolve. It escalated and Ronnie Esteves began swearing and making degrading comments to his former wife. Mr. Esteves got back into his truck, passed Ms. Spry's Chrysler, and turned to the left. It is this brief timeline, beginning with Mr. Esteves getting into his truck a second time and him turning left, that I need to focus the analysis upon.
Credibility Assessment
3Given that Mr. Esteves testified on his own behalf, I will first turn my attention to an assessment of his credibility.
4As stated above, his testimony and that of Ms. Spry's generally overlap. He indicated that she came to his house to pick up the children. The hockey equipment was left out except for the hockey sticks. He admits berating her. He admits that when he got out of the driveway he turned to the left and drove past Ms. Spry.
5The most salient difference in their evidence, other than his manner of driving, is that when he drove past her she was at the rear of her vehicle. He did not testify in-chief as to how fast he was driving in the driveway, but in cross-examination he denied going fast in the driveway. Nor did he give any evidence in-chief about whether his car had veered to the left in the driveway. Again, however, he did deny that in cross-examination.
6In examination-in-chief he indicated that after he had left it took him about 15 to 20 minutes to calm down. He then returned home. When it was put to him in, under cross-examination, that he had been angry, he clearly tried to minimize this. He said he was calm while exiting the driveway, however, he admitted that he continued yelling obscenities at Ms. Spry when exiting the driveway. I will add that they were exceptionally vile and crude. When the Crown put to him in cross-examination that he was upset when exiting the driveway because it took him 15 or 20 minutes to calm down before returning home, he effectively denied what he had said in-chief. In addition to that, his agitated state of mind at the time of the incident would have impacted his recollection. As a result, I do not accept his evidence on the first branch of the W.(D.) analysis.
W.(D.) Analysis — Reasonable Doubt
7Since I have not accepted Mr. Esteves' evidence on the first branch of the W.(D.) analysis, I must now ask myself whether his evidence, in the context of at the evidence as a whole, leaves me with a reasonable doubt.
Assessment of Witness Evidence
8Mr. Archibald, a witness for the prosecution and neighbor of Mr. Esteves, indicates that he saw the incident and that he saw Mr. Esteves drive at a high rate of speed and direct his car within the driveway towards the complainant. Essentially, instead of going straight out of the driveway and turning to the left, Mr. Esteves, within the driveway, steered the vehicle towards the left and towards Ms. Spry. He did not say this in is initial statement to the police. Mr. Archibald's evidence is different from Ms. Spry's in so far that he states that Ms. Spry was on the property on the passenger side of her vehicle. Her evidence was that she was on the driver's side of her vehicle, on the street, and had to back up when the truck turned.
Speed of Vehicle
9I cannot find that Mr. Esteves was operating his vehicle at a high rate of speed. Mr. Esteves testified that he did not travel at a high rate of speed and I have no objective context in which to assess the opinions of Ms. Spry or Mr. Archibald on that point. I have no evidence as to the length of the driveway nor how quickly a Ford F-150 could speed up. There was no evidence of squealing of the tires or tire marks.
10On the record before me, I am unable to find Ms. Spry's evidence on that point sufficiently reliable. As with Mr. Esteves, her state of mind at the time of the incident must have impacted the accuracy of her perception and her memory. Her ex-husband was berating her and she was rightly upset. She also indicated that she did not look up at Mr. Esteves until the last second when he had made the turn. If so, how could she know how fast he was going before she was even looking at him? As for Mr. Archibald, all I have is his bald opinion that Mr. Esteves was operating his vehicle at a high rate of speed. I have no real ability to assess what that means.
Swerving of Vehicle
11I now turn to the swerving of the car within the driveway to the left. As with the alleged high rate of speed, Mr. Esteves denied swerving to the left in cross-examination. Only Mr. Archibald states that Mr. Esteves swerved to the left in the driveway. However, Mr. Archibald did not say that in his initial statement to the police. This detracts from his credibility on this point. Also Mr. Archibald claims that Ms. Spry was on the passenger side of her vehicle. In contrast, Ms. Spry testified that she was on the driver's side. On this point, I will rely on the evidence of Ms. Spry. I believe that she knew where she was. She says she was on the driver's side. As a result, I cannot find Mr. Archibald's evidence reliable as to whether Mr. Esteves swerved to the left within the driveway. Again, Ms. Spry was not looking up at that time so she would not know. Therefore, I cannot find that Mr. Esteves swerved within the driveway to the left.
Mens Rea Analysis
12Since I cannot find that Mr. Esteves was operating his vehicle at a high rate of speed nor that he veered his car to the left within the driveway toward Ms. Spry, I cannot find that the mens rea of the offence is made out. This is true even if the vehicle came close to Ms. Spry upon turning left and caused a real danger to her, making out the actus reus.
13Even if I were to find that Mr. Esteves' vehicle came close to Ms. Spry after he had turned left, and thereby had caused a real danger to her, I would not be satisfied that the Crown has proven the mens rea of the offence beyond a reasonable doubt. The Court of Appeal recently reminded the courts in R. v. Laverdure that it is not sufficient to infer the mens rea of the events from the actus reus. The court must identify "how and in what way" the driving went beyond negligence or carelessness and reached a level of a marked departure from the standard of care that a reasonable person would show in the same position. At best I can say that it was momentary inadvertence and that Mr. Esteves did not gage the space for his turn properly. It is not criminal conduct. As the Supreme Court said in R. v. Beatty:
If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.
Conclusion
14In conclusion, after considering the evidence of Mr. Esteves, in the context of the evidence as a whole, I am left with a reasonable doubt on the charge of dangerous driving. Therefore, I find Mr. Esteves guilty of the fail to comply with the recognizance but not guilty of the charge of dangerous driving.
Released: January 16, 2019
Justice M.K. Wendl
Footnotes
1R. v. Hull, [2006] O.J. No. 3177 at para. 5