Court File and Parties
Court of Appeal for Ontario Date: 20210426 Docket: C65598
Fairburn A.C.J.O., Watt and Thorburn JJ.A.
Between: Her Majesty the Queen Respondent
And: Lerrell Stennett Appellant
Counsel: Paul J.I. Alexander, for the appellant Eric W.G. Taylor, for the respondent
Heard: October 16, 2020 by video conference
On appeal from the conviction entered on April 19, 2018, and the sentence imposed on July 11, 2018, by Justice Joseph F. Kenkel of the Ontario Court of Justice.
Watt J.A.:
[1] On a wet highway, a driver lost control of his vehicle. The vehicle began to rotate, struck a curb and left the roadway.
[2] After the vehicle left the roadway, it sheared off two light standards and continued on to the lot of a used car dealership. There, it hit a parked pickup truck. The force of the collision drove the pickup truck into another vehicle. Then another. And another. And another.
[3] The vehicle returned to the road surface. Three people were inside. The driver. A front seat passenger. A rear seat passenger. The driver and front seat passenger suffered serious injuries. The front seat passenger’s injuries were life-threatening. Fortunately, she survived.
[4] Lerrell Stennett (the appellant) was the driver of the vehicle.
[5] A judge of the Ontario Court of Justice found the appellant guilty of counts of dangerous operation and impaired operation of a motor vehicle causing bodily harm.
[6] The appellant appeals his conviction and one ancillary order included as part of his sentence.
[7] In the reasons that follow, I explain why I would dismiss the appeals from conviction and set aside the victim surcharge included as part of the sentence imposed.
The Background Facts
[8] The trial proceedings consisted of a blended voir dire to determine the admissibility of an interview of the appellant by investigating officers; an Agreed Statement of Facts (“ASF”), which included a Collision Reconstruction Report and a Toxicology Letter of Opinion by qualified experts in each field; and the viva voce evidence of a qualified forensic toxicologist. The appellant did not testify or otherwise adduce evidence.
[9] In large measure, the circumstances underlying the offences with which the appellant was charged are uncontroversial. Their brief recital affords a sufficient frame for the decision that follows.
The Nightclub
[10] On the evening before the accident, the appellant drove to a birthday party for one of his brothers at a nightclub. He drove there in a rear-wheel drive Jaguar owned by another of his brothers. He had driven the car previously.
[11] The appellant had arranged for bottle service at the nightclub. This included a 1.5-litre bottle of vodka. The appellant did not plan to drink at the nightclub, but rather, as he explained to police when interviewed, he planned to get “lit” later. However, he acknowledged having had two shots, which he considered would have resulted in an “alert” reading if tested on an alcohol screening device.
The Departure
[12] As the birthday celebration came to a close, the appellant left the club with two others. One sat in the front passenger seat, the other in the rear passenger seat. The appellant was the driver.
[13] The group stopped at a McDonald’s restaurant where one of the members got some water.
The Accident Scene
[14] The accident occurred on a straight level stretch of Highway 7 at about four o’clock one mid-August morning. The road surface was paved with two lanes running in each east-west direction. There was no median or other obstruction on the road surface. The posted speed limit was 60 km/h.
[15] The road surface was wet at the time of the accident.
The Accident
[16] According to the collision reconstructionist, the accident occurred when the appellant was driving west on Highway 7. The Jaguar rotated clockwise with its centre mass continuing in a westerly direction, but its front facing north. The rear tire on the passenger side struck the curb. The vehicle left the travelled surface of the highway and sheared off two light standards as it continued towards several vehicles parked on a used car lot.
[17] The driver’s side of the appellant’s vehicle struck a truck parked on the used car lot on the north side of the highway. The force of the impact pushed the pickup truck into an adjacent vehicle parked in a line with several others. Four vehicles in this line were damaged in the chain reaction that followed.
[18] The Jaguar continued to rotate clockwise after the chain reaction collisions in the used car lot. The vehicle continued south off the shoulder of the road until it finally came to rest in the westbound lanes of Highway 7, its original direction of travel.
The Vehicle
[19] A post-accident examination of the Jaguar disclosed no pre-existing defect in its operating system or fittings. There was extensive damage to the driver’s side of the car. The front wheel was detached from the axle. The rear driver’s door was no longer attached. There was a cylindrical dent in the roof above the door. The driver’s airbag had deployed. Both front and side windows on the driver’s side had shattered.
The Speed of the Vehicle
[20] The Jaguar was not equipped with an Event Data Recorder (“EDR”). As a result, there was no record of any pre-accident information such as the speed of the vehicle before, at the time and after the various collisions. The vehicles parked on the used car lot and struck by the Jaguar or each other in the chain reaction that followed were not powered, thus their EDRs did not record any events in which they were involved. The collision reconstructionist was unable to calculate the pre-collision speed of the Jaguar.
[21] In his report, the collision reconstructionist wrote that wet roads can reduce the dynamic friction between the tire on a vehicle and the surface of the road. This can contribute to a loss of control if a vehicle is travelling at a speed that exceeds the available friction. Other factors that can contribute to a loss of control on wet conditions include steering input, a curve in the road, abrupt acceleration and braking. The reconstructionist was unable to determine which, if any, of these factors may have caused the Jaguar to enter a rotation.
The Toxicology
[22] The accident occurred between 4:00 and 4:09 a.m. on August 20, 2016. Blood samples were taken from the appellant at hospital and later analyzed by forensic toxicologists at the Centre of Forensic Sciences. The projected blood alcohol concentration of the appellant at the time of the collision was 66-96 milligrams of alcohol per 100 millilitres of blood.
[23] Elizabeth Hird is a forensic toxicologist at the Centre of Forensic Sciences. She testified that impairment of driving ability due to alcohol consumption becomes significant at a blood alcohol concentration of 50 milligrams of alcohol per 100 millilitres of blood and increases from that point as blood alcohol concentration increases. Impairment refers to a decreased ability to perform a complex task such as driving a motor vehicle. Intoxication refers to the physiological or observable effects alcohol has on a person. These effects may be less apparent in those with a tolerance for alcohol, but tolerance has no effect on impairment.
[24] Ms. Hird testified that the ability of a person with a blood alcohol concentration in the range of 66-96 milligrams of alcohol in 100 millilitres of blood to operate a motor vehicle would be impaired. Driving requires the use of several faculties almost simultaneously. Divided attention must be maintained. Judging speed and distance. Responding to unexpected events. Taking corrective action. The witness could not say whether a person with a blood alcohol concentration of 60 milligrams of alcohol in 100 millilitres of blood who displayed no visible signs of intoxication could operate a vehicle safely. But she did say that the person’s ability to operate the vehicle would be decreased due to the complexity of the task and their decreased ability to perform that task well.
[25] In cross-examination, Ms. Hird acknowledged that she could not say whether the appellant was impaired at a blood alcohol concentration because she had never tested him. Similarly, she could not express an opinion about where within the projected range of 66-96 milligrams of alcohol per 100 millilitres of blood the appellant would have fallen at the time of the collision. However, she noted that the entire range was beyond 50 milligrams of alcohol per 100 millilitres of blood at which impairment generally becomes significant. She also testified that although she could not rule out a blood alcohol concentration at the lower end of that range, either generally or for the appellant in particular, she considered it more likely that a person would be at the higher end due to the average rates of elimination.
The Signs of Impairment
[26] No one reported having seen any signs of impairment of the appellant at the nightclub, the collision scene, or the hospitals to which he was taken or transferred after the collision.
The Consequences of the Collision
[27] Neither the appellant nor either of his passengers could recall the circumstances of the collision. None gave evidence at trial. The appellant and his front seat passenger were severely injured in the collision. Each suffered internal and brain injuries.
The Grounds of Appeal against Conviction
[28] On his appeal from conviction, the appellant says the trial judge erred:
i. in drawing conclusions contrary to the ASF based on misapprehensions of or lack of support in the evidence adduced at trial;
ii. in inferring guilt from the consequences of the collision; and
iii. in finding each offence proven through circular reasoning.
Ground #1: Erroneous Findings of Fact
[29] This ground of appeal alleges that the trial judge erred in finding that the accident was caused by grossly excessive speed. This finding, the appellant says, is anchored in a combination of three discrete, yet related errors that vitiate both convictions. Those errors consist of:
i. misapprehending the evidence;
ii. making findings contrary to the ASF; and
iii. making findings in the absence of any supporting evidence.
[30] It is unnecessary to repeat what has already been said about the circumstances of the accident as described in the ASF, the report of the collision reconstructionist and the testimony of the forensic toxicologist.
[31] A brief reference to the reasons of the trial judge will provide a suitable foundation for the discussion that follows.
The Reasons of the Trial Judge
[32] The trial judge began his consideration of the offences alleged in the indictment with the counts charging impaired operation. The issue, he said, was whether the Crown had proven the alleged impairment beyond a reasonable doubt on the basis of the evidence of the appellant’s projected blood alcohol concentration, the manner of driving and the expert evidence of the forensic toxicologist. He acknowledged that there was no direct evidence of the manner of the appellant’s driving and that the evidence was that the appellant had displayed no signs of physical impairment at the nightclub, at the accident scene and at the hospital.
[33] In examining the evidence about the speed of the appellant’s vehicle at the time of the accident, the trial judge affirmed the absence of any direct evidence of the precise speed before or at any point during the accident. However, the trial judge recognized that, like any fact in issue, the relative speed of the vehicle could be established by circumstantial evidence.
[34] The cumulative effect of several items of evidence persuaded the trial judge that when he lost control of his vehicle, the appellant was travelling at a speed that was far beyond what was safe under the conditions and constituted a marked departure from the standard of a reasonably prudent driver. Among the items of evidence were these:
i. the absence of any mechanical defect as a contributing factor;
ii. the straight, level, unobstructed nature of the highway and road surface;
iii. the posted speed limit of 60 km/h;
iv. the absence of any difficulty for first responders and other motorists to navigate the wet surface of the roadway safely;
v. the absence of evidence of skid marks suggesting the intervention of some external factor requiring evasive action;
vi. the relationship between a speed that exceeds the available friction between the tire and road surface and loss of control of the vehicle; and
vii. the circumstances of the several collisions with light standards and parked vehicles including the extent of damage caused.
[35] In determining whether the evidence established that the appellant’s ability to operate a motor vehicle was impaired by his consumption of alcohol, the trial judge reviewed the testimony of the forensic toxicologist. He concluded that the circumstantial evidence relating to the appellant’s driving showed the indicia of mental impairment.
[36] The trial judge accepted that driving was a complex task involving divided attention, choices, reaction time, and judgment of speed and distance. All these mental processes are impaired when a driver’s blood alcohol concentration is 50 milligrams of alcohol per 100 millilitres of blood and impairment increases as the blood alcohol concentration increases. The appellant’s blood alcohol concentration at the time of the accident exceeded 50 milligrams of alcohol per 100 millilitres of blood. The trial judge recognized the possibility of an outlier at a blood alcohol concentration of 50 milligrams of alcohol per 100 millilitres of blood, but noted that this prospect diminished as the blood alcohol concentration increased.
[37] The absence of common indicia of physical impairment, such as loss of balance and slurred speech, were important. What was critical, however, was not physical impairment, but rather mental impairment, that is to say, impairment of the ability to perform the complex task of driving a motor vehicle. The trial judge concluded that the appellant drove while impaired:
The circumstantial evidence as to the accused's driving shows the indicia of mental impairment as described by the toxicologist. Mr. Stennett was able to travel across Highway 7 to Kipling without incident, but he failed to perceive the need to slow his speed and he failed to react to the wet road condition. The evidence shows Mr. Stennett is not the rare, theoretical outlier as discussed in cross-examination. On the contrary, his driving errors show the effects of alcohol impairment on the mental faculties necessary to drive safely that were identified by the toxicologist. The Crown is not required to prove intoxication or marked impairment. Considering all of the evidence and the legal test, I find the lack of physical indicia and other circumstances do not reasonably leave a doubt. The Crown has proved impairment by alcohol in the mental faculties necessary for safe driving.
[38] On the count charging dangerous operation causing bodily harm, the trial judge expressed his conclusion in this way:
The whole of the evidence including the circumstances of the multiple collisions shows that the accused drove far in excess of the speed that was safe for the road conditions that evening. He was driving while his ability to judge safe speed and react to road conditions was impaired by alcohol consumption which is a departure from the standard of care required for safe driving. The Crown has proved beyond a reasonable doubt that the accused's manner of driving was dangerous to the public and a marked departure from the standard of care a reasonable person would observe.
The Arguments on Appeal
[39] The appellant contends that the finding of fact upon which the convictions are grounded is that the appellant was driving at a grossly excessive speed at the time of the accident. This finding, the appellant says, was fatally flawed for three reasons. It was based on a misapprehension of the evidence. It was contrary to the ASF. And it was unsupported by the evidence adduced at trial. It follows that neither conviction can stand.
[40] The misapprehension of the evidence, the appellant submits, has to do with the collision reconstructionist’s reference to the effect of the speed of the vehicle exceeding the available friction between the tire and road surface on the loss of control. The report said that if the speed of the vehicle exceeded the available friction between the tire and the roadway, a loss of control over the operation of the vehicle may occur. But the collision reconstructionist did not say that a speed exceeding the available friction was the cause of the accident as the trial judge concluded. The expert pointed to several other factors that might cause a driver to lose control of their vehicle and said that he could not determine which factor was at work here.
[41] In addition, the appellant says, the finding of excessive speed was contrary to the ASF. There it was clear that the pre-impact speed of the vehicle could not be determined. It was and remained an unknown. The report of the collision reconstructionist, which was part of the ASF, offered no reason for the loss of control of the vehicle and did not say that excessive speed caused or contributed to the loss of control.
[42] In the end, the appellant concludes, the evidence adduced at trial simply cannot support the trial judge’s conclusion that excessive speed caused the accident. There were other explanations for the loss of control. But the trial judge never considered them, nor their impact upon proof of the essential elements of the offences charged. As a whole, the evidence falls short of the standard of persuasion required. Acquittals should be entered.
[43] The respondent rejects any suggestion of error in the trial judge’s conclusion or in the analysis that underpins it.
[44] The ASF and the language used in the report of the collision reconstructionist were not so definitive or conclusive that they foreclosed an examination of the evidence, the available inferences and making findings of fact concerning the cause of the loss of control. Nothing suggested that speed was not a factor or that the cause of the loss of control could not be determined. The absence of direct evidence did not preclude the use of circumstantial evidence or conclusions based on inferences from that evidence taken as a whole.
[45] The trial judge properly concluded that the phrase “travelling at a speed that exceeds available friction” meant simply driving too quickly for the road conditions, given the wetness and the available friction, irrespective of the actual speed at which the vehicle travelled. This conclusion was not at odds with the ASF.
[46] At trial, the respondent continues, it was uncontroversial that the appellant lost control of the car and that this caused the accident. It fell to the trial judge to determine, if he could, why the appellant lost control. The trial judge recognized that this was his task and that he had to consider other plausible theories or reasonable possibilities. He did so and concluded that excessive speed was the cause. He was not required to consider speculative possibilities.
[47] The respondent says that the trial judge’s finding that the appellant drove far in excess of the speed that was safe for the road conditions was grounded in the evidence adduced at trial. Although it was not possible to know or find a precise or exact pre-impact speed of the vehicle, the nature of the accident itself could provide circumstantial evidence about the speed of the vehicle relative to the road conditions at the time of the accident. This could inform the decision on whether the appellant’s driving amounted to dangerous operation of a motor vehicle.
The Governing Principles
[48] Several disparate strands of principle woven together inform the decision on this ground of appeal.
[49] First, misapprehension of evidence.
[50] The phrase “misapprehension of evidence” encompasses at least three errors. The failure to consider evidence relevant to an issue. A mistake about the substance of an item or items of evidence. And a failure to give proper effect to evidence: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 217-18.
[51] Where an appellant advances misapprehension of evidence as a ground of appeal, the reviewing court considers first the reasonableness of the verdict rendered by the trier of fact. If the verdict is not unreasonable, then the reviewing court must decide whether the misapprehension of evidence caused a miscarriage of justice. If the appellant fails on this ground as well, the court must inquire whether the misapprehension amounted to an error of law, and if so, whether that error occasioned the appellant a substantial wrong or miscarriage of justice: Morrissey, at pp. 219-20.
[52] Whether a misapprehension of evidence renders a trial unfair and results in a miscarriage of justice requires an examination of the nature and extent of the misapprehension and its significance to the verdict rendered at trial. Where the mistake relates to a material part of the evidence and the error plays an essential part in the reasoning process leading up to the conviction, the conviction is not grounded exclusively on the evidence and constitutes a miscarriage of justice: Morrissey, at p. 221. This is a stringent standard: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.
[53] Second, drawing inferences.
[54] A trier of fact may draw inferences from the evidence adduced at trial. However, the inferences must be ones that can reasonably and logically be drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts is not a permissible inference but rather impermissible conjecture and speculation: Morrissey, at p. 209.
[55] Third, admissions of fact.
[56] In proceedings on an indictment, an accused or their counsel may “admit any fact alleged against him” for the purpose of dispensing with proof of that fact. This is the effect of s. 655 of the Criminal Code, R.S.C. 1985, c. C-46. These are formal admissions. They dispense with the need to prove the fact admitted by other evidence. They are binding on the party and may only be withdrawn with leave of the court: Castellani v. The Queen, [1970] S.C.R. 310, at p. 317; R. v. Korski, 2009 MBCA 37, 244 C.C.C. (3d) 452, at paras. 121-22.
[57] Sometimes, admissions may be informal. They are not conclusive but rather may be contradicted or explained by evidence adduced at trial. In essence, they are items of evidence, thus subject to qualification or rebuttal. Informal admissions may be or include statements of what a witness could or would say if called to give evidence: Korski, at paras. 123-24, citing Matheson v. The Queen, [1981] 2 S.C.R. 214, at p. 217.
[58] Informal admissions may be labelled or designated “Agreed Statement of Facts”, but that does not make them so. Those that recite what a witness would say retain their true character, however they may be styled. An agreement about what a witness could say or would have said is not an agreement that what they say is true: Korski, at para. 125.
[59] Fourth, circumstantial evidence and the burden and standard of proof.
[60] Circumstantial evidence is about drawing inferences and the range of reasonable inferences that may be drawn from that evidence. In an assessment of circumstantial evidence, a trier of fact is required to consider, or be directed to consider, “other plausible theories” and “other reasonable possibilities” inconsistent with guilt. In its effort to establish guilt, the Crown must negate those “reasonable possibilities”. However, the Crown need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. These “other plausible theories” or “other reasonable possibilities” must be rooted in logic and experience applied to the evidence or absence of evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37. See also R. v. Bagshaw, [1972] S.C.R. 2, at p. 8.
[61] Circumstantial evidence does not have to totally exclude other conceivable inferences. The trier of fact must not act on alternative interpretations of the circumstances that it considers unreasonable. Alternative inferences, whether arising from the evidence or an absence of evidence, must be reasonable, not simply possible: Villaroman, at para. 42. Non-culpable inferences, based on the evidence or the absence of evidence, must be reasonable when assessed logically and in light of human experience and common sense: Villaroman, at para. 36.
[62] The final point concerns the analysis of a trial judge’s reasons.
[63] A reviewing court must not read or analyze a trial judge’s reasons as if they were the final instructions to a jury. Reasons for judgment delivered after a trial before a judicial trier of fact do not equip jurors with what is required to reach an informed decision, a verdict in accordance with the evidence and compliant with the applicable legal principles. Reasons for judgment explain why the judge reached their verdict. They are not to be read as an enumeration of the entire deliberative process: Morrissey, at p. 204.
The Principles Applied
[64] As I will explain, I would not give effect to this ground of appeal.
[65] This ground of appeal challenges the trial judge’s finding that the accident was caused because of the grossly excessive speed at which the appellant was travelling. This was a marked departure from the standard of care of a reasonably prudent driver. This finding is said to be fatally flawed on three grounds:
i. it is contrary to the ASF;
ii. it is based on misapprehensions of the evidence; and
iii. it is unsupported by any evidence adduced at trial.
[66] First, the claim that the finding is contrary to the ASF and, in particular, the report of the collision reconstructionist that forms part of the ASF.
[67] In my respectful view, this argument is based on a mischaracterization of the ASF and, in particular, the Collision Reconstruction Report.
[68] The Collision Reconstruction Report is not a formal admission of fact within s. 655 of the Criminal Code. It follows that it is not conclusive of the facts stated but rather subject to contradiction or qualification. It is an informal or evidentiary admission, in essence, a “will say” or “can say” statement of what the author of the report could or would say if called to testify about its subject-matter. It dispenses with the swearing or affirmation of the witness and the taking of evidence by admitting what their evidence would be if it were called. Labelling the document that refers to the report as “Agreed Statement of Facts” does not alter the fundamental character of the report.
[69] As with any item of evidence received at trial, the trial judge, as the trier of fact, could accept or reject the contents of the report in whole or in part. He was entitled to draw reasonable inferences from it. His conclusion that the appellant drove at a grossly excessive speed in the circumstances was not foreclosed, as the appellant contends, by the ASF or the contents of the Collision Reconstruction Report.
[70] Further, to the extent that the Collision Reconstruction Report represents the opinion of its author, it is debatable whether it could be the subject of a formal admission under s. 655 of the Criminal Code. The section only permits an accused or counsel to admit “any fact alleged against him”.
[71] Second, misapprehension of evidence.
[72] The appellant urges that the trial judge misapprehended the collision reconstructionist’s opinion in concluding that the appellant’s speed was so excessive that it amounted to the criminal offence of dangerous operation. However, when read as a whole, the reasons of the trial judge do not support the interpretation the appellant advances.
[73] At trial, it was undisputed that the appellant lost control of the vehicle he was driving. The trial judge recognized that he needed to determine, if he could on the available evidence, why this loss of control occurred. This involved consideration of various possible explanations and whether it amounted to either offence charged. One such explanation was that the appellant was driving too fast for the conditions of the road at the time. The trial judge examined other possible explanations for the loss of control, such as a curve in the road, sudden braking and a need for steering correction, and rejected them, as he was entitled to do. Of some assistance on the issue of degree of departure from the speed safe for the road conditions were the circumstances of the collisions involved. The conclusion that the manner in which the appellant was driving amounted to dangerous operation was one reached on the basis of the evidence as a whole, not on a misapprehension of any particular item of evidence including the opinion of the collision reconstructionist.
[74] Third, the innocent explanations.
[75] In order to conclude that the only reason that the appellant lost control of the vehicle was because of the grossly excessive speed at which he was driving, the trial judge was required to consider whether all other plausible theories or reasonable possibilities inconsistent with culpability could account for the accident. These non-culpable inferences could arise from the evidence or the absence of evidence. However, to be availing, those inferences must be reasonable, given the evidence and the absence of evidence, assessed logically and in light of human experience and common sense. Circumstantial evidence does not have to exclude merely conceivable or possible inferences, only those that are reasonable and not speculative.
[76] It remains fundamentally for the trier of fact to determine whether any proposed alternative way of looking at the case is reasonable enough to raise a doubt. In other words, it is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation. The trier of fact’s assessment can be set aside only where it is unreasonable. Here, it was reasonable for the trial judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt.
Ground #2: Inferring Guilt from Consequences of the Accident
[77] The second ground of appeal focuses on the conviction of dangerous operation causing bodily harm. The complaint is that the finding of guilt was not based as it should have been on an analysis of the manner in which the appellant operated the motor vehicle, but rather on the consequences of the accident.
[78] An assessment of this alleged error does not require any further reference to the evidence adduced at trial. A brief reference to the arguments advanced and the reasons of the trial judge will provide the background essential to determining the viability of this claim.
The Arguments on Appeal
[79] The appellant submits that the actus reus or conduct requirement in the offence of dangerous operation of a motor vehicle focuses on the manner in which the vehicle is operated, and the risks associated with it. The focus is not on the consequences of the manner of operation.
[80] The fault element in dangerous operation, the appellant says, required the Crown to prove that the manner of driving was a marked departure from the standard of care of a reasonable person in equivalent circumstances. This is a modified objective standard, more than mere carelessness or momentary inattention. And it cannot be established by simply drawing an inference from proof of the conduct requirement.
[81] In this case, the appellant continues, the trial judge conflated the consequences of the accident with the manner in which the vehicle was operated and the extent it departed from the standard of a reasonable person. In essence, the trial judge inferred both the conduct and fault elements from the mere fact of the accident and its consequences.
[82] The appellant argues that the trial judge undertook no meaningful inquiry into either essential element of dangerous operation. He did not examine the manner of driving but rather simply found grossly excessive speed, a conclusion at odds with the ASF and unsupported by the evidence. Likewise for the fault element. No meaningful inquiry. And a conclusion of marked departure from nothing more than the consequences of the accident.
[83] The respondent rebuffs the appellant’s claim that the trial judge’s finding of guilt of dangerous operation rested on an impermissible inference from the consequences of the accident.
[84] A review of the reasons for judgment betrays any claim that the findings on the conduct and fault elements of the offence were no more than inferences from the bodily harm caused and property damaged by the accident. Admittedly, the reasons could have been more expansive. But his reasons show that he was aware of the tests for both elements and why he was satisfied that they had been met.
[85] Read as a whole, together with the colloquies with counsel during submissions, what emerges clearly is that the trial judge was keenly aware of the essential elements of the offence and why the evidence satisfied him that those elements had been established with the required degree of certainty. The trial judge relied upon his finding of grossly excessive speed which caused the appellant to lose control of the vehicle as the basis for his conclusion that the conduct requirement had been met. In connection with the fault element, the trial judge relied on his finding of impaired ability to appreciate the risk created by driving too fast in the conditions to conclude that this was a marked departure from the requisite standard of care.
The Governing Principles
[86] Like the first ground of appeal, this submission relates to the count of dangerous operation causing bodily harm, not that of impaired operation causing bodily harm. The controlling principles are those associated with the offence of dangerous operation simpliciter as there is no issue of causation in controversy here.
[87] As the language of the offence-creating provision makes clear, it is the manner in which the motor vehicle was operated that is at issue, not the consequences of the driving. The consequences, such as bodily harm, may make the offence more serious. But the consequences have no say on whether the offence of dangerous operation has been established: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 46.
[88] The focus of the inquiry into whether an accused’s driving, viewed objectively, was dangerous to the public in all the circumstances is on the risks created by the manner of the accused’s driving, not its consequences such as an accident which ensued from that driving. However, the consequences of the driving may assist in assessing the risk involved even though they do not answer the fundamental question of whether the accused operated the vehicle in a manner which was dangerous to the public: Beatty, at para. 46; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 34-35.
[89] The conduct requirement or actus reus of the dangerous operation offence requires that the trier of fact be satisfied beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that was dangerous to the public in all the circumstances: Beatty, at para. 43.
[90] The focus of the analysis on the fault element or mens rea is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances: Beatty, at para. 48; Roy, at para. 36.
[91] In considering the issue of the fault element, it is helpful to ask two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If the answer to the first question is “yes”, the second question is 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 equivalent circumstances: Roy, at para. 36.
[92] As a general rule, a trier of fact may infer the required objective fault element or mens rea from the fact that an accused drove in a manner that constituted a marked departure from the norm. But this is an inference, not a presumption. And even where the manner of driving is a marked departure from the norm, the trier of fact must examine all the circumstances to decide whether it is appropriate to draw the inference of fault from the manner of driving: Roy, at para. 40.
[93] The fault element or mens rea of dangerous operation can be established by momentary excessive speeding on its own, provided, in light of all the circumstances, it supports an inference that the driving was the result of a marked departure from the standard of care that a reasonable person would have exhibited in the same circumstances: R. v. Chung, 2020 SCC 8, 386 C.C.C. (3d) 523, at para. 19; Roy, at para. 41.
[94] Finally, it is not permissible to infer the marked departure simply from the fact that an accused’s driving, viewed objectively, was dangerous: Roy, at para. 44.
The Principles Applied
[95] In my respectful view, this ground of appeal fails.
[96] Like the respondent, I would characterize the trial judge’s reasons on the count charging dangerous operation causing bodily harm as spare. However, the appellant does not suggest that they are insufficient to permit meaningful appellate review. Nor am I persuaded otherwise when they are considered as a whole, together with the evidence adduced, the positions advanced and the exchanges between counsel and the trial judge during final submissions.
[97] The trial judge found the conduct element or actus reus established on the basis of the persuasive force of several circumstances. Speed that was far in excess of the speed that was safe in view of the existing road conditions. A blood alcohol concentration consistent with impairment of the ability to carry out the complex tasks associated with the operation of a motor vehicle, including timely and appropriate responses to the unpredictable. The circumstances of the accident as indicative of the relative speed of the vehicle. The conclusion is barren of any reference to the consequences of the accident to the appellant or his passengers. This combination of factors and circumstances provided an adequate evidentiary predicate to ground a finding that the conduct element or actus reus of the dangerous operation offence had been proven beyond a reasonable doubt.
[98] The trial judge concluded on “[t]he whole of the evidence” that the fault element or mens rea of dangerous operation had been proven beyond a reasonable doubt. As with the conduct element, this finding was not contaminated by any improper consideration of the consequences of the accident to the appellant and his passengers. As we have seen from Chung, excessive speed alone can establish the required fault element where, in all the circumstances, it supports the inference that the driving resulted from a marked departure from the standard of care that a reasonable person would have exhibited in the same circumstances. In this case, that inference from excessive speed and the conduct element was further supported by evidence of impairment of the ability to operate a motor vehicle due to consumption of alcohol.
[99] I would not accede to this ground of appeal.
Ground #3: Circular Reasoning
[100] The final ground of appeal converts elements of its two predecessors into a complaint that the convictions rested on circular reasoning. The appellant drove dangerously because his ability to drive was impaired by alcohol, and because he drove dangerously, his ability to operate a motor vehicle was impaired by alcohol. In other words, dangerous operation proved impairment and impairment, dangerous operation.
The Arguments on Appeal
[101] The appellant says that the evidence of the forensic toxicologist was generic, based on statistical models. She acknowledged that she could not provide an opinion about impairment of any individual’s ability to operate a motor vehicle after consuming alcohol without testing that person. She did not perform any tests on the appellant, who showed no physical signs of impairment. Not everybody with a blood alcohol concentration of 50 milligrams of alcohol in 100 millilitres of blood will be impaired. Yet the trial judge found, based on this generic evidence, that the appellant’s ability to operate his motor vehicle was impaired by his consumption of alcohol.
[102] According to the appellant, he could not be found guilty of impaired operation solely on the basis of his own blood alcohol concentration and the expert’s generic opinion about impairment at blood alcohol concentrations of 50 milligrams of alcohol in 100 millilitres of blood and beyond. Case-specific information was required. The trial judge found the appellant guilty of impaired operation based on his conclusion that the appellant had driven dangerously. That he drove dangerously proved his ability to operate a motor vehicle was impaired by alcohol. But, the appellant continues, the trial judge also reasoned that the appellant drove dangerously because he drove while impaired when he found as follows: “He was driving while his ability to judge safe speed and react to road conditions was impaired by alcohol consumption which is a departure from the standard of care”. This reasoning is circular. In the result, neither conviction can stand.
[103] The respondent takes the position that the trial judge did not engage in circular reasoning in reaching his conclusion that the essential elements of each offence were proven beyond a reasonable doubt.
[104] In the respondent’s submission, the trial judge recognized that impairment was not only an essential element of one offence, but also relevant to proof of an essential element of the other. The judge was aware that there was a conflict between the observations of those who saw the appellant before, at the scene, and after the accident and the testimony of the forensic toxicologist. No one saw any physical signs of impairment or intoxication. Yet the toxicologist testified that impairment of the ability to operate a motor vehicle begins at a blood alcohol concentration of 50 milligrams of alcohol in 100 millilitres of blood.
[105] The respondent says that the trial judge dealt with these apparent inconsistencies. There were differences between the physical indicia of impairment and impairment of the mental faculties required to drive safely. Impaired operation only requires proof of the latter. The judge also referred to the toxicologist’s evidence that although a person with the appellant’s blood alcohol concentration might be able to successfully drive between two points on a familiar roadway without becoming involved in a collision, their ability to operate their motor vehicle would be impaired nonetheless. This impairment would affect their ability to recognize and respond correctly to any unusual circumstance they encountered.
[106] In this case, the trial judge drew reasonable inferences from the evidence. His finding on the conduct element of the dangerous operation count was not based on any finding of impairment, but rather on a finding that the appellant lost control of his vehicle because he was driving at a speed well in excess of what the circumstances permitted. The reference to the appellant’s impairment was only considered in relation to the fault element where it was relevant to the question of whether the appellant’s conduct amounted to a marked departure from the standard of care a reasonably prudent driver would exercise in equivalent circumstances.
The Governing Principles
[107] The appellant recruits no specific authority to advance this ground of appeal. Nor does the respondent in answer.
[108] Whether the essential elements of any offence have been proven beyond a reasonable doubt requires an assessment of all the evidence tendered to establish them. Sometimes, an item of evidence may assist in proof of one or more elements of an offence or of other offences. That it does so does not involve circular reasoning.
[109] Evidence of the impairment of a person’s mental processes caused by the consumption of alcohol is relevant to both the offences of dangerous operation of a motor vehicle and of impaired operation of a motor vehicle.
[110] Evidence of an accused’s actual state of mind may be relevant to determine whether the objective fault element in dangerous operation of a motor vehicle has been proven beyond a reasonable doubt: Beatty, at para. 43; Roy, at para. 39. It is well settled that evidence of impairment by consumption of alcohol is relevant in determining a person’s state of mind.
[111] In prosecutions for impaired operation of a motor vehicle, the essential element of impairment is proven if the evidence establishes any degree of impairment ranging from slight to great: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), at p. 384, aff’d, [1994] 2 S.C.R. 478.
The Principles Applied
[112] In my respectful view, this ground of appeal cannot succeed.
[113] The findings of guilt entered in this case are not the product of circular reasoning. Evidence that the appellant’s ability to operate a motor vehicle was impaired by the consumption of alcohol was relevant to proving an essential element of the impaired operation offence. That same evidence was also relevant in proof of the objective fault element on the count of dangerous operation. The mere fact the same evidence is relevant and admissible in proof of both elements exemplifies multiple relevance or admissibility, not circular reasoning.
The Sentence Appeal
[114] The appellant submits that the victim surcharges the trial judge imposed on the appellant were made under a regime that the Supreme Court of Canada later held to be unconstitutional, so that the surcharge order should be quashed. The respondent agrees that the surcharges should be quashed.
[115] As the victim surcharge regime has been ruled unconstitutional, I agree that the victim surcharges should be set aside.
Disposition
[116] For these reasons, I would dismiss the appeal from conviction. I would grant leave to appeal sentence and allow the appeal from sentence to the extent of setting aside the victim surcharges.
Released: April 26, 2021 David Watt J.A. I agree. Fairburn A.C.J.O. I agree. Thorburn J.A.
