Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Clifton Phillips and Davannal Phillips
Before: Justice of the Peace M. Coopersmith
Heard: June 6, 2016
Reasons for Judgment released: November 23, 2016
Counsel:
- Mr. G. Hendry, for the prosecution
- Mr. P. Alexiu, for the defendant Clifton Phillips
- Mr. R. Tatangelo, for the defendant Davannal Phillips
JUSTICE OF THE PEACE COOPERSMITH:
Introduction
1In the early afternoon of September 27, 2014, in the Regional Municipality of Durham, Ontario, Clifton Phillips and Davannal Phillips were each charged with:
Operating a motor vehicle on Highway 401 while performing a stunt, to wit, speeding 180 kilometres per hour in a posted 100 kilometre per hour speed zone, contrary to s.172(1) of the Highway Traffic Act;
Operating a motor vehicle on Highway 401 while racing, to wit, driving a motor vehicle without due care and attention without reasonable consideration for other persons using the highway or in a manner that may endanger any person by outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed, contrary to s.172(1) of the Highway Traffic Act; and
Unlawfully driving a motor vehicle carelessly upon Highway 401, contrary to s.130 of the Highway Traffic Act.
2Prior to the commencement of this trial, the parties requested that all of the charges against both defendants be tried together. As provided by subsection 38(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, I am satisfied that "the ends of justice" are met by this arrangement, as the charges against both defendants are identical and they all arose out of the same September 27, 2014 incidents on Highway 401.
I. ISSUES
3Several issues were raised in these proceedings. I have addressed the following:
(a) Was Officer Cameron's evidence a result of a blending of factual situations with the passage of time?
(b) Was the patrol vehicle speedometer accurately measuring steady speeds over a measured level distance during the officer's pacing of the defendants' vehicles?
(c) What are the credibility and reliability issues and applying R. v. W.D.?
(d) Were the defendants driving carelessly?
(e) Were the defendants performing a stunt?
(f) Were the defendants racing?
(g) Has the defence of necessity been satisfied on a balance of probabilities?
(h) Does the principle in Kienapple apply?
II. EVIDENCE
4For the prosecution, Ontario Provincial Police Officer Kevin Cameron testified. Both defendants, Clifton Phillips and Davannal Phillips, testified.
(a) Testimony of Ontario Provincial Police Officer Kevin Cameron:
5In the early afternoon of September 27, 2014, Officer Cameron conducted a traffic stop on the eastbound shoulder of Highway 401 near Westney Road in Ajax, for offences he had observed near Brock Road in Pickering. When he was in the left lane of the eastbound collector lanes, east of Whites Road in the Liverpool Road area, his attention was drawn to the defendants as they travelled in the left lane of the core or express lanes. One defendant was driving a white 2014 Honda motorcycle and the other was driving a blue 2012 Suzuki motorcycle. Using his patrol vehicle's digital speedometer, which is stamped "certified calibrated", the officer paced the defendants between forty-five seconds to less than a minute travelling 140 kilometres per hour in the posted 100 kilometre per hour speed zone. They slowed down as they approached a medium amount of traffic that had slowed as a result of another police officer who had pulled another vehicle over to the side of the road. Once past the slower traffic, Clifton Phillips was in the lead. He looked back over his right shoulder and nodded at his son, Davannal Phillips, and they accelerated to a rate of speed in excess of 180 kilometres per hour as they travelled along Highway 401 past the area of Brock Road. Using the speedometer in his vehicle, Officer Cameron paced the defendants at this speed for approximately 500 metres. The speed indicated on the patrol vehicle's certified calibrated speedometer confirmed the officer's visual observations.
6The officer testified that he was well aware that the speed should not fluctuate up and down, but that he had to get a steady pace in order to determine the speed of the vehicles. He also agreed that there was no horseplay in the defendants' driving behaviour and they were not swerving or weaving in their lane, nor were they jockeying for position or changing lanes. They did not cut off any other vehicles. Their speed was fairly steady. Officer Cameron described them as outdistancing the regular flow of traffic at a seriously marked departure from the speed limit, as they passed other vehicles in the other lanes of the highway. It was the officer's testimony that it was this excessive speed that made the defendant's driving behaviour careless and unsafe.
7Eventually, the officer was able to get into the lane beside Davannal Phillips with his emergency lights activated. Once this defendant saw the officer, he immediately decelerated and pulled to the left shoulder. Clifton Phillips looked back to see what had occurred with his son, Davannal Phillips. He then fairly quickly stopped approximately 200 to 300 metres ahead on the left shoulder. Another officer came from behind and Officer Cameron asked her to go ahead to stop Mr. Clifton Phillips, which she did. After dealing with Davannal Phillips, Officer Cameron drove up to speak with Clifton Phillips. Both defendants were cooperative and identified with photo Ontario driver's licences and ownership documents for their respective motor vehicles.
8When cross examined on pacing, Officer Cameron advised that it was a method approved by the Ontario Provincial Police, but not taught. He had used 'pacing' to determine speeds of motor vehicles many times over many years working in traffic enforcement on the highways. Moreover, the officer was trained and qualified to operate a laser and radar and, in order to do this, he was required to visually observe a vehicle at a high rate of speed and then confirm the observed speed with the laser or radar.
(b) Testimony of the defendant, Davannal Phillips:
9September 27, 2014 was Davannal Phillips' birthday. He and his father were going to a bike show in Whitby, travelling east along Highway 401, with Clifton Phillips taking the lead ahead of his son. Traffic was heavy and as they approached an officer who had pulled someone over on the left side of the express lanes, the defendant stated that he came to a "dead stop", travelling between 60 to 80 kilometres an hour. In cross examination, despite claiming to be quite familiar with the feel of his bike, the defendant explained that traffic that was travelling at 100 to 120 kilometres per hour and slowed to 60 to 80 kilometres per hour felt like "pretty much a dead stop". Despite claiming to be able to estimate his speed, this defendant agreed that his estimate was off by about 60 kilometres per hour and, furthermore, he had not distinguished between moving and not moving.
10Once past this slowed traffic, due to the vehicles that were approaching from behind at an excessive speed, Davannal Phillips accelerated to stay ahead of them. People were "literally on my bumper" and this defendant testified that he felt his life was in danger and he could not change lanes to get out of their way. Hence, he accelerated to between 120 and 140 kilometers per hour. Claiming again to be familiar with his motorcycle, he knew he was not going any faster than that. To this defendant, this was not an excessive speed, which to him would be over 150 kilometres per hour. He stated that he could not slow down for fear that the cars behind him would have run right into the back of him. The defendant also stated that the traffic was extremely dense, so that he could not risk making an unsafe lane change to move out of the way of the vehicle behind him.
11Clifton Phillips looked back and saw what was occurring. He accelerated in order to give his son room to accelerate to a safe distance ahead of the vehicle behind him. Past Brock Road and before Westney, Davannal Phillips saw the officer who stopped him. At that moment, he looked down at the speedometer on his 2012 Suzuki GSXR motorcycle to find he was travelling 120 kilometres per hour.
(c) Testimony of the defendant, Clifton Phillips:
12After enjoying lunch together, Clifton Phillips and Davannal Phillips headed to Whitby. Traffic was getting pretty heavy as they approached Kingston Road, until near Brock Road. The defendants chose to drive in the express lanes of the eastbound 401, as Clifton Phillips estimated that the traffic in the collector lanes that merged into the express lanes at Brock Road was travelling around 10 to 20 kilometres per hour. This would have made it impossible for Officer Cameron to travel at 140 kilometres per hour in these collector lanes. At Brock Road, a different officer, not Officer Cameron, had a motor vehicle pulled to the side of the road in the express lanes, which had added to the back-up of the traffic in the express lanes and slowing it to about 60 kilometres an hour.
13Once past the vehicle stopped on the side of the road, traffic picked up to 120 kilometres per hour. Clifton Phillips was driving his 1000 Honda CBR motorcycle, repeatedly checking his speedometer to determine his rate of speed and repeatedly testifying that he did not speed. He was late accelerating when traffic picked up again, leaving some space between him and the vehicles ahead of him. He looked back to notice a car extremely close behind his son's motorcycle, which he perceived as a safety issue wherein his son could get rear ended and killed. Hence, with a medium flow of traffic proceeding at highway speeds and with room in front of him, he accelerated to 140 kilometres per hour, as shown on his speedometer, so that his son could catch up with him and they could maintain a safe distance between them and this other vehicle. Having created space between Davannal Phillips and the motor vehicle behind him, they then slowed to 120 kilometres per hour. Cars were following each other closely and there was no room to the right of the defendant to switch lanes. He claimed it was not possible for Officer Cameron to travel 180 kilometres per hour because the traffic on the highway was too dense.
14Just past Brock Road, Clifton Phillips saw the lights from the police officer's vehicle come on, at which time the defendant pulled over to the left side of the road to find out what was going on with his son. Another officer stopped where Clifton Phillips had stopped, but did not charge this defendant with anything. After dealing with Davannal Phillips, Officer Cameron came over to where Clifton Phillips was and charged him with the offences that bring him before this court.
15Clifton Phillips questioned why Officer Cameron did not move from the collector lanes to the express lanes to stop the defendants when the officer said they were going 140 kilometres per hour. When asked if there was a lane leading from the collectors to the express lanes, Clifton Phillips said there was not. However, he said there was a lane allowing vehicles to move from the express lanes to the collector lanes, and the officer could have used this break in the barrier between the two sets of lanes to move from the collector lanes into the express lanes. This would necessitate the officer backing up on the highway, to move through this gap in the barrier from the collector lanes, to then go forward into the right lane of the express lanes. This defendant testified that he had seen this done two or three times previously.
III. ANALYSIS AND FINDINGS
16I have carefully reviewed and considered all of the evidence and submissions in this matter. Below are my analysis of and findings for the relevant issues.
17There is no dispute that early in the afternoon of September 27, 2014, Clifton and Davannal Phillips were driving their motorcycles in the left express lane of the eastbound Highway 401 from Pickering towards Whitby when they were stopped by Ontario Provincial Police Officer Cameron near Westney Road in Ajax. The maximum speed limit on this part of Highway 401 is posted at 100 kilometres per hour. There is not agreement, however, on the speed at which the defendants were travelling. The defendants claim that at no time did they exceed 140 kilometres per hour, while Ontario Provincial Police Officer Cameron testified that he paced them travelling in excess of 180 kilometres an hour.
(a) Was Officer Cameron's evidence a result of a blending of factual situations with the passage of time?
18Mr. Tatangelo submits that Officer Cameron did not write down specific notes of the incident upon which he could rely at trial twenty months later. He indicated that the officer's evidence lacked details and specificity with respect to the elements of a proper pace. There was no note on the location of other vehicles in relation to where the defendants were, whereas the defendants had testified that the lane adjacent to them was too busy to allow them the opportunity to switch lanes. There was no note of the distance between the officer and the defendants, but in his viva voce evidence he provided an estimate based on the number of lanes between him and the defendants and the width of each lane. There was nothing in the officer's notes that indicated that the pace at 180 kilometres per hour was over a distance of five hundred metres.
19Mr. Tatangelo likened this lack of detail to the situation in R. v. Dinh, 2010 ONJC 540, where, at paragraph 35, Justice Vaillancourt writes:
The administration of a roadside test is the kind of exercise that would tend to have a fairly repetitive theme. This repetitiveness, in turn, would lend itself into a blending of factual situations with the passage of time. Therefore, contemporaneous note-taking is crucial to allow officers to recall with precision the particular case in question as opposed to the generic recalling of facts as demonstrated in the case at bar.
The evidence in this case falls dismally short of reliable/credible and I cannot find that such evidence is capable of forming the basis to prove Mr. Dinh guilty beyond a reasonable doubt. Accordingly, the charge will be dismissed.
20Given the roadside charge of speeding or stunt driving would be fairly repetitive in nature for Officer Cameron, it is Mr. Tatangelo's submission that the officer got the five hundred metre pacing distance from a blending of facts. The prosecutor, however, submits that this distance was based on and grounded by the marks along the road in terms of the exits and knowing where the pace started and ended, during which time the officer kept a consistent pace behind the defendants.
21I accept the prosecutor's argument and that R. v. Dinh is easily distinguishable from the circumstances before this court, as that drinking and driving case involved the testimony of two officers with strikingly different versions of events and neither of whom were perceived by the justice as viewing accurate note taking as a beneficial exercise. Officer Cameron recalls the events of September 27, 2014 and took sufficiently thorough notes to distinguish the events that transpired in the matters before me. I find that Officer Cameron's evidence is not based on a blending of factual situations with the passage of time.
(b) Was the patrol vehicle speedometer accurately measuring steady speeds over a measured level distance during the officer's pacing of the defendants' vehicles?
22Mr. Tatangelo submits that the jurisprudence supports the finding that speedometers measure accurately unless there is evidence to the contrary. Following the reasoning in Nicholas v. Penny, in paragraph 16 of R. v. Bland (1974), 6 O.R. (2d) 54, Arnup J.A. writes for the court:
In short, I would hold that where evidence is given that over a measured level distance the speedometer recorded steadily at 95 m.p.h., this is prima facie evidence that the offence of driving at 90 m.p.h. was committed, in the absence of some evidence, elicited either on cross-examination or by defence witnesses, which would suggest that the speedometer on the police vehicle was inaccurate.
23Mr. Tatangelo argues that the officer could not advise the Court who certified the speedometer, but only that he had no reason to doubt the certification. He continued that the officer did not know how many other officers use that particular police vehicle, could only guess that it had summer and not winter tires on it in September 2014 and was unaware of the tire size or tread depth – all factors that affect the speedometer. Furthermore, the officer would have to keep a steady distance between his vehicle and the target vehicle, but instead the officer was five lanes away, in heavy traffic and switching from collectors to where both the express and collector lanes merge on Highway 401. Mr. Tatangelo compared the facts before this Court to those found in the appeal judgment rendered by Justice Chisvin in R. v. Lukawski, [2014] O.J. No. 6270 (O.C.J.). In that case, the officer could not say over what distance he paced the defendant, nor how long he paced the vehicle. He could only guess on the amount of the actual distance and said the pace was no more than a few seconds.
24I find that the facts in Lukawski, supra, are easily distinguishable from what is before me. In that case, at trial, the Justice of the Peace based her conclusion on misapprehended evidence. The evidence before me is clear. I cannot accept that the defence has provided evidence showing the officer's speedometer could not be relied upon. I find I cannot rely on Mr. Tatangelo's submission that "The officer had only a guess of whether it had the snow tires or the summer tires, he had no tire size, no tread depth, all of that I would submit effects the speedometer. Speedometers run off the tires." The officer testified that the Ontario Provincial Police keeps its fleet of vehicles in good repair. He advised that the summer tires were on the officer's vehicle; there is no evidence to the contrary. Without some indication of the measurements of the tread depth, it is mere speculation that the tires were in such a state of disrepair as to affect the accuracy of the vehicle's speedometer. In addition to the speculative nature of these submissions, Mr. Tatangelo gave no indication of how multiple drivers of a vehicle, the number of kilometres on the vehicle, tire size or tread depth would affect the speedometer; for example, whether these factors would cause speedometer readings above or below the actual speed.
25Furthermore, I am not satisfied that an inaccuracy in the speedometer, which I do not accept, would account for Davannal Phillips testifying that he was travelling 60 to 80 kilometres per hour when Officer Cameron stated he paced the defendants at 140 kilometres per hour. Similarly, it would not account for the disparate testimonies in the rates of speed, wherein the defendants said they were travelling 120 to 140 kilometres per hour when Officer Cameron paced them at 180 kilometres per hour.
26Mr. Alexiu added further to Mr. Tatangelo's argument regarding the operation and validity of the officer's speedometer. He provided the appeal judgment of Zabel J. in R. v. Koumoudouros, [2005] O.J. No. 5055 (O.C.J.), in which a reasonable doubt about the accuracy of the speedometer was raised when there was no certificate of calibration for the speedometer and the officer was not able to say when and by whom the speedometer was certified. The matter before me is easily distinguishable by the fact that Officer Cameron testified that there is a certified sticker that is affixed to the speedometer behind a transparent covering that cannot be removed without resort to tools and disassembling of the speedometer casing. More importantly, Koumoudouros, supra, is void of any statements of law or binding principles with respect to the calibration or accuracy of the speedometer evidence. Hence, its precedential value to subsequent Court decisions is significantly limited and I find that it is insufficient to bind this or any other Court under the principle of stare decisis. In R. v. Sibio, [2010] O.J. No. 3242 (Ont.C.J.), at paragraph 9, Bellefontaine J. writes:
The appellant has also argued that the justice erred in not applying Regina v. Koumoudouros [2005] O.J. No. 5055. His Worship considered the decision to be of no assistance to him as there was no analysis of the facts, no summary of the law and no analysis to support the brief decision. In my view Justice of the Peace Boychyn was correct to not read into Regina v. Koumoudouros, any statement of law or binding principle as to whether or under what circumstances calibration or certification of a speedometer would be required. No legal principle or test is articulated in the decision and there is no discussion of which of the facts in the case lead to a reasonable doubt being created to an extent appellant intervention was warranted. No consideration is expressed of the duty on the Appellate court to defer to a trial judge's findings on a question of mixed fact and law. See Singer v. Hamilton [2009] O.J. No. 2909 (O.C.A.) and R. v. R.E.M. 2008 SCC 51 , [2008] S.C.J. No. 52 and R. v. Canada Brick [2005] O.J. No. 2978. I view Regina v. Koumoudouros to be an example of a not fully considered decision that was given to expeditiously deal with that case alone. I view the two-sentence oral decision to demonstrate that it was not intended by the learned justice to have precedential value, and accordingly the principles of stare decisis did not bind Justice of the Peace Boychyn with respect to it. Holmes v. Jarrett, [1993] O.J. No. 679. It was completely appropriate for the Justice of the Peace to rely on the Ontario Court of Appeal decision in Regina v. Bland (1975), 6 O.R. (2d) 54 which considered the legal principles to be applied in cases such as this. In Regina v. Bland, our Court of Appeal relied on Nicholas v. Penny where the evidence of the testing of the speedometer was found to have been inadmissible, but the Court held unanimously that no evidence was required as to the accuracy of the speedometer in order to establish a prima facie case, but that the evidence might be shaken on cross-examination or by contrary evidence as to the speed.
27Moreover, Officer Cameron satisfied the pacing requirements enunciated in Bland, supra, when he clearly testified that he paced the defendants for less than a minute travelling 140 kilometres per hour in the posted 100 kilometre per hour speed zone. Taking judicial notice of a concept especially familiar to drivers, I find that distance travelled is a relatively simple calculation of multiplying speed times time travelled. This pace was followed a short time later with another pace travelling at 180 kilometres per hour over a level distance of approximately 500 metres, again using the speedometer in the patrol vehicle. The officer knew which lane he was in and which lane the defendants were in, as he followed behind them at a consistent pace. I am satisfied that each of these two readings satisfy the need, while undertaking a pace, to obtain a steady speed over a sufficiently level measured distance.
28In the circumstances of this case, for the reasons I have provided, in the absence of any acceptable evidence that would suggest that the officer's speedometer was inaccurately measuring speeds, I find the speed readings obtained by Officer Cameron can be relied on and the prosecutor need not prove the speedometer was otherwise in proper working order. Furthermore, I am satisfied that twice over two different measured distances, Officer Cameron conducted a bona fides steady pace in order to measure the speed of the defendant's motor vehicles. His visual observations of the rates of speed were confirmed by the speedometer readings over these distances.
(c) What are the credibility and reliability issues and applying R. v. W.D.?
29The defendants state that they were travelling between 60 and 80 kilometres per hour when Officer Cameron said they were doing 140 kilometres an hour. The defendants state that they were travelling between 120 and 140 kilometres per hour when the officer said they were doing 180 kilometres per hour.
30As issues of credibility and reliability have arisen, I have considered the general guideline regarding credibility as set out by Justice Cory, writing for the majority in R. v. W.D., [1991] 1 S.C.R. 742. It provides:
(1) If I accept the evidence of the defendant as it is a complete denial of an essential element of the offence, I would dismiss the charge;
(2) Further, even if I did not accept the defence evidence, I would have to go on to consider whether or not it raised a reasonable doubt and, if so, again, I would dismiss the charge;
(3) It would be only if I rejected the defence evidence as there was convincing credible evidence that it was untruthful or unreliable, that I would go on to the third step in R. v. W.(D.) and consider all of the un-rejected evidence in this matter, to ensure there was evidence that I did accept that established the defendant's guilt on the charge before the Court beyond a reasonable doubt.
31These are applications of our basic principles that everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt, that the burden rests on the prosecution throughout to prove that guilt, and that there is a very high burden to establish the defendant's guilt. I am also cognizant of the prohibition against turning this into a credibility contest between the police office and the defendants and simply accepting the evidence of the officer, thereby necessarily rejecting that of the defendants. I have given all of the evidence fair consideration.
32Officer Cameron gave unwavering evidence in a clear and forthright manner. Over the years, he has conducted many paces to determine the speed of a moving motor vehicle and I find no reason to reject his evidence on the paces in the matter before me. For the reasons given above, I accept that his vehicle's speedometer was accurately registering speeds. Officer Cameron's evidence is that the defendants were paced first at 140 kilometres per hour and later at 180 kilometres per hour.
33Some of the evidence of the defendants, on the other hand, was not always consistent. For example, Davannal Phillips described himself as familiar with his motorcycle and a good judge of the speed at which he was travelling. He did not look at his speedometer, but simply estimated his speed. Yet he likened travelling approximately 60 to 80 kilometers per hour to feeling as though he was at a "dead stop".
34On a couple of occasions, Clifton Phillips said one thing and then changed his evidence to say something else, retracting what he originally said. For example, on several occasions, he testified that he was not speeding when travelling 120 to 140 kilometres per hour in a 100 kilometre per hour speed zone; he then changed his evidence to state that he was speeding, but that it was a matter of necessity. He also testified that the officer could have changed from the collector lanes to the express lanes by passing through the break in the barrier between these two sets of lanes, which break was designed for vehicles moving from the express lanes to the collector lanes. This would necessitate Officer Cameron stopping just past the break in the barrier on left side of the collector lanes of the highway, and then backing up westbound in heavy traffic along the access lane designed to accommodate eastbound express traffic switching into the collector lanes, and then once through to the other side of the barrier, driving forward eastbound into the express lanes of Highway 401. As Officer Cameron backed up going westbound through the highway access lane, he would have to hope no one from the eastbound express lanes would be using this same access lane for what it was designed to do. In the conditions that existed at the time, thinking that such a manoeuver may be undertaken safely strains credibility.
35The defendants claim that the heavy traffic would not have allowed them to travel more than 120 to 140 kilometres per hour. However, it was Clifton Phillips' own testimony that showed he had left a gap between himself and the vehicle in front of him when he hesitated to pick up speed once past the slower traffic. From this testimony, I reasonably can infer that such a gap would be one factor allowing the defendants to attain speeds higher than the flow of traffic in the left or 'fast' lane of Highway 401.
36Officer Cameron testified that he began observing the defendants eastbound on Highway 401 somewhere in the vicinity of Liverpool Road in Pickering. He was in the collector lanes and the defendants were in the express lanes. Due to an officer having a vehicle pulled over to the side of the road in the express lanes, Clifton Phillips stated that the traffic in the collector lanes had slowed to around 10 to 20 kilometres per hour, while the express lanes moved at approximately 60 kilometres per hour. I do not accept this evidence, as I find no reason to reject Officer's Cameron's clear and consistent testimony that he observed the defendants from Liverpool Road to the traffic stop near Westney Road. Such differences in the speed of traffic in the collector lanes from that in the express lanes would not have allowed Officer Cameron to make such observations.
37For these reasons, I accept the evidence of Officer Cameron that Davannal Phillips and Clifton Phillips were travelling 140 kilometres per hour and then sped up to 180 kilometres per hour as they drove eastbound along Highway 401 in Durham.
(d) Were the defendants driving carelessly?
38Both defendants are charged under s.130 of the Ontario Highway Traffic Act with "careless driving". That section reads:
130 Careless Driving – Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six month, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years.
39In determining the requisite standard of care and skill required of a motorist facing a charge of careless driving, I look to the often cited Ontario Court of Appeal judgment, R. v. Beauchamp, [1953] O.R. 422, in which the standard is not one of perfection. Instead, Justice MacKay, writing for the court, sets out the appropriate legal test as follows:
… It is whether it is proved beyond a reasonable doubt that this accused, in the light of existing circumstances of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care would have used or given in the circumstances? The use of the term "due care", which means care owing in the circumstances, makes it quite clear that, while the legal standard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factual standard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably be expected, and any other conditions that ordinary prudent drivers would take into consideration. It is a question of fact, depending on the circumstances in each case. [Emphasis added.]
40In his endorsement in R. v. Shergill, 2016 ONCJ 163 , [2016] O.J. No. 4294, MacFarland J.A. rejects the moving party's argument that the appeal judge's decision, setting aside the acquittal of the moving party, represents a departure from the settled law in Beauchamp, supra, save and except in one respect, which is that for careless driving, it does not have to be proved that the conduct be "deserving of punishment". Starting at paragraph 3, he writes:
Here, the moving party argues that the appeal judge in effect by his ruling "overruled" the leading case on careless driving which is this court's decision in R. v. Beauchamp, [1952] O.J. No. 495 (C.A.).
I do not accept this submission. The appeal judge in his reasons accepts Beauchamp as authoritative in all but one respect and that is the need for the Crown to prove the conduct giving rise to the charge be "deserving of punishment". In his reasons, the appeal judge carefully considers the jurisprudence that has followed Beauchamp including R. v. Beatty, 2008 SCC 5 , [2008] 1 S.C.R. 49 and R. v. Roy, 2012 SCC 26 , [2012] S.C.J. No. 26.
He concluded at para. 22:
In light of the jurisprudence since Beauchamp it would now appear to be settled law that careless driving is a strict liability offence and, since mens rea is not a relevant factor for consideration, that the count ought not to look at the conduct to determine whether it is "blameworthy and deserving of punishment". To the extent that Beauchamp added that consideration as an element of the charge it has, in my view, been effectively overruled.
It will be recalled that Beauchamp was decided in 1952, some years before the Supreme Court's seminal decision in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 which put it beyond dispute that careless driving was a strict liability defence.
In her factum at para. 22 Ms. Lai also notes that Beauchamp preceded the Supreme Court's decision in R. v. Hundal, [1993] 1 S.C.R. 867 by some forty years and where that court:
... clarified the degree of negligence required for criminal and quasi-criminal liability. The subsequent Supreme Court jurisprudence to which the appeal judge adverted, distils the essence of the inquiry as (i) whether the impugned driving constitutes a departure from the standard of a reasonably prudent driver in the circumstances and (ii) if so, whether the departure of significant degree to "deserve" the liability at issue -- from the marked and significant" departure that constitutes criminal negligence, to the "marked" departure that constitutes dangerous careless driving to the "mere" departure that constitutes careless driving or attract civil liability. The appeal judge's reasons do no more than to recognize that this continuum of driving negligence already incorporates the necessary degree of blameworthiness, rendering any stand-alone consideration of this factor inappropriate and redundant.
I accept this submission.
41Defence submits that speed alone is insufficient to ground a conviction for careless driving. I agree, as it is necessary to consider the rate of speed together with all the circumstances, such as the road conditions, visibility, weather, traffic conditions and any other conditions that ordinary prudent drivers would take into consideration: see e.g. R. v. Yolles, [1958] O.R. 786, reversed in part , [1959] O.R. 206 on somewhat different facts.
42On September 27, 2014, the roads were dry and the weather was clear. Officer Cameron testified that the defendants were not weaving or swerving or making lane changes, but that the excessive speed of 180 kilometres per hour in the 100 kilometre per hour speed zone on Highway 401, in the traffic that existed was sufficient to charge the defendants with careless driving. However, it is from the defendants' own testimony that I find factors that ordinary prudent drivers would consider in respecting reasonable consideration for other persons using the highway. I am not satisfied that the ordinary prudent driver would travel at a rate of speed of 180 kilometres per hour in traffic that was "extremely dense", as described by Davannal Phillips. Nor would the prudent driver travel at that rate of speed when cars in other lanes were following each other very closely, as described by Clifton Phillips.
43I accept that speed alone does not ground a conviction for driving carelessly, but that all of the circumstances need to be considered. Based on the circumstances that existed and that have been presented by the defendants, I find that Davannal Phillips and Clifton Phillips did not give reasonable consideration for other persons using the highway, as they travelled at the egregious rate of speed of 180 kilometres per hour in dense traffic in which motor vehicles around them were following each other so closely as to not allow lane changes. I am satisfied that all of the elements of driving carelessly as provided by s.130 of the Highway Traffic Act have been proven beyond a reasonable doubt. The defendants claim the defence of necessity, which I will consider below.
(e) Were the defendants performing a stunt?
44Both defendants are charged twice under s.172 of the Highway Traffic Act, R.S.O. 1990, c. H.8, for "performing a stunt" and for "racing". Section 172 reads:
172(1) Racing, stunts, etc. prohibited – No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.
45This section of the Highway Traffic Act creates three distinct offences: racing, performing a stunt and on a bet or wager: see e.g. R. v. Raham, 2010 ONCA 206 , [2010] O.J. No. 1091.
46O. Reg. 455/07 expressly defines the activities where one or more persons engage in particular driving behaviours which will be captured by s. 172. In the matter before me, the following section of O. Reg. 455/07 relates to the offence of "performing a stunt":
3.7. Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit.
47I am satisfied that the maximum speed limit on the section of Highway 401 from Pickering to Whitby is 100 kilometres per hour. I also have found the defendants driving their motorcycles at a rate of speed of 180 kilometres per hour. Their speed significantly exceeds the posted maximum speed limit by more than 50 kilometres per hour over this 100 kilometre per hour speed limit. I am satisfied that all of the elements of driving while performing a stunt, contrary to s. 172 of the Highway Traffic Act and as described in s. 3.7 of O. Reg. 455/07 have been proven beyond a reasonable doubt. Again, Davannal Phillips and Clifton Phillips are claiming the defence of necessity, which I will address below.
(f) Were the defendants racing?
48The second charge against the defendants is found in s.172 of the Highway Traffic Act, R.S.O. 1990, c. H.8, for "racing". As stated above, under section 172"racing" is an offence distinct from the offence of "performing a stunt".
49In the matter before me, the following section of O. Reg. 455/07 is relevant to the charge of "racing":
2(1).3. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,
ii. outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed,
50In my analysis and findings relating to the offence of careless driving, I have found that the defendants drove "without reasonable consideration for other persons using the highway". There is also credible and reliable evidence from the officer that the defendants were passing other vehicles in the other lanes of the highway. This is consistent with Clifton Phillips' evidence that he had hesitated to speed up once passed the other officer that had a vehicle stopped on the side of the road and, consequently, he had left a gap through which he accelerated to catch up with the traffic in the left lane of the highway. I also find that the defendants' speed of 180 kilometres per hour was a serious marked departure from the speed limit of 100 kilometres per hour.
51Relying on the evidence that I do accept, I am satisfied beyond a reasonable doubt that all of the elements of the offence have been satisfied and that in the afternoon of September 27, 2014, the defendants were racing as they drove eastbound along Highway 401 from Pickering towards Whitby, contrary to section 172(1) of the Highway Traffic Act. They are claiming the defence of necessity.
(g) Has the defence of necessity been satisfied on a balance of probabilities?
52Careless driving, performing a stunt and racing are strict liability offences. For classifications of regulatory offences, see R. v. Sault Sainte Marie (1978), 40 C.C.C. (2d) 353; for careless driving, see e.g. R. v. McIvor, [1965] O.J. No. 998; for performing a stunt, see e.g. R. v. Raham, 2010 ONCA 206 , [2010] O.J. No. 1091; and for racing, see e.g. R. v. Allan, [2009] O.J. No. 2389 (Ont. C.J.). The defence of necessity applies not only to absolute liability offences, but also to mens rea and strict liability offences.
53Once it has been proven beyond a reasonable doubt that the defendants have committed the offences with which they have been charged, the defence of necessity is available to them to prove on a balance of probabilities. Clifton Phillips and Davannal Phillips claim that the car behind Davannal Phillips was so close behind him that they feared it would run over Davannal Phillips and kill him. For this reason, they had no choice but to speed up to make room between them and the motor vehicle that was travelling right behind.
i. Limited application of the defence of necessity:
54Necessity is a difficult defence to satisfy on a balance of probabilities. It is well established that this defence must be of limited application and applied only in exceptional circumstances. In R. v. Perka, [1984] 2 S.C.R. 232, Dickson J., writing for the Supreme Court of Canada, states that the defence of necessity "must be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale." The underlying rationale to this defence is that the law "cannot hold people to the strict obedience of the laws in emergency situations where normal instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience". Conduct that may satisfy the defence of necessity may be perceived as a form of involuntariness, where an individual is under the compulsion of circumstance in which he/she finds himself/herself or where the actions are morally or normatively involuntary and there is no choice but to contravene the law.
55In R. v. Latimer, 2001 SCC 1 , [2001] 1 S.C.R. 3, the Court cites Perka, supra, and writes, at paragraph 27:
Dickson J. insisted that the defence of necessity be restricted to those rare cases in which true "involuntariness" is present. The defence, he held, must be "strictly controlled and scrupulously limited" (p. 250). It is well established that the defence of necessity must be of limited application. Were the criteria for the defence loosened or approached purely subjectively, some fear, as did Edmund Davies L.J., that necessity would "very easily become simply a mask for anarchy": Southwark London Borough Council v. Williams, [1971] Ch. 734 (C.A.), at p. 746.
ii. Three elements of the defence of necessity and the standard to apply to each element:
56To succeed with the defence of necessity, three elements must be satisfied:
There is the requirement of imminent peril or danger. The peril must be on the verge of transpiring and virtually certain to occur. A foreseeable or likely peril is insufficient.
The defendant must have no reasonable legal alternative to the course of action he or she undertook. If there was a reasonable legal alternative to breaking the law, there is no necessity.
There must be proportionality between the harm inflicted and the harm avoided. At a minimum, the two harms must be of comparable gravity. The harm inflicted cannot be out of proportion to the peril to be avoided
57Beginning at paragraph 32 of Latimer, supra, the Supreme Court of Canada has determined whether the standard is objective or subjective or if it is a modified objective test that falls between the two:
Before applying the three requirements of the necessity defence to the facts of this case, we need to determine what test governs necessity. Is the standard objective or subjective? A subjective test would be met if the person believed he or she was in imminent peril with no reasonable legal alternative to committing the offence. Conversely, an objective test would not assess what the accused believed; it would consider whether in fact the person was in peril with no reasonable legal alternative. A modified objective test falls somewhere between the two. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person. We conclude that, for two of the three requirements for the necessity defence, the test should be the modified objective test.
The first and second requirements -- imminent peril and no reasonable legal alternative -- must be evaluated on the modified objective standard described above. As expressed in Perka, necessity is rooted in an objective standard: "involuntariness is measured on the basis of society's expectation of appropriate and normal resistance to pressure" (p. 259). We would add that it is appropriate, in evaluating the accused's conduct, to take into account personal characteristics that legitimately affect what may be expected of that person. The approach taken in R. v. Hibbert, [1995] 2 S.C.R. 973, is instructive. Speaking for the Court, Lamer C.J. held, at para. 59, that
it is appropriate to employ an objective standard that takes into account the particular circumstances of the accused, including his or her ability to perceive the existence of alternative courses of action.
While an accused's perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused, those perceptions remain relevant only so long as they are reasonable. The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must be a reasonable basis for the accused's beliefs and actions, but it would be proper to take into account circumstances that legitimately affect the accused person's ability to evaluate his situation. The test cannot be a subjective one, and the accused who argues that he perceived imminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given his circumstances and attributes. We leave aside for a case in which it arises the possibility that an honestly held but mistaken belief could ground a "mistake of fact" argument on the separate inquiry into mens rea.
The third requirement for the defence of necessity, proportionality, must be measured on an objective standard, as it would violate fundamental principles of the criminal law to do otherwise. Evaluating the nature of an act is fundamentally a determination reflecting society's values as to what is appropriate and what represents a transgression. Some insight into this requirement is provided by G. P. Fletcher, in a passage from Rethinking Criminal Law (1978), at p. 804. Fletcher spoke of the comparison between the harm inflicted and the harm avoided, and suggested that there was a threshold at which a person must be expected to suffer the harm rather than break the law. He continued:
Determining this threshold is patently a matter of moral judgment about what we expect people to be able to resist in trying situations. A valuable aid in making that judgment is comparing the competing interests at stake and assessing the degree to which the actor inflicts harm beyond the benefit that accrues from his action.
The evaluation of the seriousness of the harms must be objective. A subjective evaluation of the competing harms would, by definition, look at the matter from the perspective of the accused person who seeks to avoid harm, usually to himself. The proper perspective, however, is an objective one, since evaluating the gravity of the act is a matter of community standards infused with constitutional considerations (such as, in this case, the s. 15(1) equality rights of the disabled). We conclude that the proportionality requirement must be determined on a purely objective standard.
58In summary, a modified objective standard, in which an objective standard takes into account the particular circumstances of the defendant, is applied to the first two elements. Too often, defendants claim the defence of necessity, and inappropriately apply a subjective test. The third element is measured on a purely objective standard, in order to reflect society's values and "community standards infused with constitutional considerations".
iii. Determining if the facts in this matter satisfy the three elements:
59The defendants viewed the closeness of the vehicle driving behind Davannal Phillips as the source of the imminent peril or danger. It was Davannal Phillips' testimony that had he not sped up, that car would have driven into him. In examination in chief he stated:
I accelerated because the people who were behind were literally on my bumper. I'm – I'm on my bike here, I don't want to risk anyone running into the back of me or nothing. Traffic was dense, I could not change lanes to – to get out of their way. I couldn't, I accelerated.
60In cross examination Davannal Phillips testified:
I'm just saying, like, he knows – my father knows, he's not going to let his son be killed by another car running into the back of him, so he accelerated to give me some distance, some space.
But for my life in danger, you would – you would accelerate yourself, sir.
61In examination in chief, Clifton Phillips stated:
… As soon as we got past the officer, the police officer that was pulled over on the side, traffic picked up and we accelerated and I looked back and noticed that there was a car extremely close behind my son's bike. So, I accelerated to 140 kilometres an hour to that he could catch up with me so that we could maintain that distance between the vehicle where we were travelling. I made that decision for our safety. There was no room on our right to switch lanes.
Well, the other car was right on his tail and it make – makes me very, very nervous to see how close he was behind Davannal. So, I – I sped up so he could create some space between him and the car and that happened for a split second. After that, we were down back to 120 kilometres an hour.
62In Clifton Phillips' cross examination, the following exchanges took place:
Q. All right and that your son – your son's life was not in danger that day, correct, sir?
A. Oh, for sure. That's the reason why I accelerate. It was a definite safety issue.
Q. Well, there's – there's a difference between safety issues and there being danger for your lives – for your son's life, sir, you agree with me on that?
A. Yeah, oh yeah.
Q. Right?
A. Yeah.
Q. So, it wasn't a situation where it was a – your son was about to get rear ended and killed. That – that's not what was happening that day. It says you thought it was prudent to get a little – go a little faster and get some distance, sir, right?
A. I was worried about both.
Q. Okay. So, sir, this was not a situation where you looked back and in your mind you're going, oh my god, my son's about to get killed. That's – that's not what's going through your mind.
A. That's what was going through my mind.
Q. Well, what I'm going to suggest is what really went through your mind is you looked back and you were like, yeah, we better get a little bit more distance here, right? Better be safe than sorry, right?
A. Yeah, all that's what was being thought about.
Q. Well – well, there's – well, I'm proposing two different things.
A. Mm-hmm.
Q. Just so that we're clear and it's fair to you. The one is, looking back and your heart dropping into your stomach and you're like, oh my god, my son's going to die, right? Now, I'm suggesting that's not what was the case, do you agree or disagree?
A. I disagree with that.
63Both defendants may have subjectively believed the vehicle behind Davannal Phillips would drive over him, leaving them no alternative but to speed up, as traffic prevented them from switching lanes. However, applying the modified objective test, which "takes into account the situation and characteristics of the accused person", (see Latimer, supra) I do not accept a reasonable basis for the defendants' beliefs and conduct exists. It is not reasonable to find that a motor vehicle speeding along the highway would run over a motorcyclist plainly visible in front of him or her. It is not reasonable to believe there was no alternative but to accelerate to the excessive speed, as neither defendant had difficulty pulling over to the left shoulder of the road when Officer Cameron turned on his vehicle's emergency lights. Moreover, I cannot accept that speeding up could change the level of peril, as there was nothing stopping anyone who is driving closely on Davannal Phillips' tail from speeding up along with the defendants. In fact, Clifton Phillips testified that the drivers on the road were anxious to move quickly once they cleared the slowed traffic.
64Clifton Phillips' legal representative, Mr. Alexiu, himself, perceived this danger regarding the vehicle rear-ending Davannal Phillips to be speculation, as opposed to a reasonable basis for imminent peril. In cross examination, when the prosecutor was exploring Clifton Phillips state of mind, Mr. Alexiu interrupted:
MR. ALEXIU: Objection, objection, Your Worship. I believe this is becoming speculation here. I mean, are we asking his – are we specifically relating to the – to what was – what was the situation speculating to what – what could have or couldn't have occurred? I'm trying to understand where my …
COURT: Where was the speculation?
MR. ALEXIU: With respect to the – whether he's getting rear ended by the vehicle behind him or …
65There is another factor that comes into play here: the Rule in Browne v. Dunn (1893), 6 R. 67 (U.K.H.L.). This rule applies when one of the parties intends to contradict something said in the testimony of a witness by evidence to be given by a subsequent witness. The party intending to enter such evidence must put the contradictory evidence to the other party's witness in cross examination, to allow him or her the opportunity to provide an explanation.
66In the matters before me, the defence at no time cross examined Officer Cameron about the location of vehicles around the defendants and, in particular, the vehicle alleged to be directly behind Davannal Phillips. In light of the significant role the defence representatives give to this testimony in presenting the defence of necessity, in applying the Rule in Browne v. Dunn, and in assessing credibility, I cannot give full weight to the defendants' testimony that a vehicle behind Davannal Phillips was following so closely as to create an imminent peril.
67With the onus on the defendants to prove the defence of necessity on a balance of probabilities and having considered all of the surrounding facts, including the option the defendants chose, that is, to accelerate to an excessive speed in order to escape the vehicle behind Davannal Phillips, I find the modified objective test attaching to the first two elements of this defence of necessity fails.
(h) Does the principle in Kienapple apply?
68A defendant cannot be convicted of multiple offences with the same or substantially the same elements arising from the same transaction. Laskin J., writing for the majority in R. v. Kienapple, [1975] 1 S.C.R. 729, states:
The rationale of my conclusion that the charges must be treated as alternative if there is there should not be multiple convictions for the same delict against the same girl, has a long history in the common law. A convenient beginning is with the maxim expressed in Hudson v. Lee [(1589), 4 Co. Rep. 43 a, 76 E.R. 989], at p. 990"nemo debet bis puniri pro uno delicto", which although framed in terms of double punishment, has come to be understood as directed also against double or multiple convictions; in short, nemo bis vexari as well as nemo bis puniri. This was exemplified in the unanimous judgment of this Court in Cox and Paton v. The Queen, [1963] S.C.R. 500, which involved, inter alia, convictions of the accused on two counts, numbered (1) and (3), for conspiracy to steal and conspiracy to defraud, both relating to the same money and securities. Cartwright J., as he then was, speaking for this Court, held that the Manitoba Court of Appeal had properly quashed one of the convictions. He put the matter in these words (at p. 516):
The reason that the convictions on counts 1 and 3 cannot both be supported is not that they are "mutually destructive", as was said of the counts in R. v. Mills [1959] Cr.L.Rev. 662, but rather that if both were allowed to stand the accused would in reality be convicted twice of the same offence. It is the same conspiracy which is alleged in the two counts and it would be contrary to law that the accused should be punished more than once for the same offence.
Of course, in a strict sense, Cox and Paton was no more a case of multiple convictions for the same offence than is the present case. Rather it was a case, as is the present one, of multiple convictions for the same matter.
69Kienapple is distinct from double jeopardy and issue estoppel because those principles apply when a matter appears before a subsequent judicial officer. Kienapple applies in the cases of multiple counts tried before one judicial officer, as is the case here.
70As stated by Dickson C.J., writing for the Court in R. v. Prince, [1986] 2 S.C.R. 480, no one can be convicted of two different offences if there is:
(1) a factual nexus between charges, and
(2) a legal nexus between the offences.
i. Factual nexus:
71For a factual nexus to exist in the matter before me, I ask whether the same acts of the defendants ground each of the charges. It is clear that the charges are founded upon the same acts along Highway 401, that being the manner in which each of the defendants drove his motorcycle eastbound on Highway 401, in the conditions that existed in the early afternoon of September 27, 2014. I am satisfied that the factual nexus of the Kienapple principle is satisfied.
ii. Legal nexus:
72The legal nexus requires more than the offences having one common element, but rather focusses on the presence or absence of additional distinguishing elements. To determine if there is a legal nexus between the offences of "careless driving""performing a stunt" and "racing", I must determine whether substantially the same elements are needed to be proved for these offences. Notwithstanding that there is a single act, different delicts, causes or matters may sustain separate convictions. Hence, this nexus will be satisfied only if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle. [See R. v. Prince, supra, at para. 32.]
73In determining whether an element of an offence is additional or distinct, I look to Dickson C.J., writing for the Court in Prince, supra, at paragraphs 34 to 39. He identified "at least three ways in which sufficient correspondence between elements can be found, each of which is subject always to the manifestation of a legislative intent to increase punishment in the event that two or more offences overlap." First, an element may be a particularization of another element. Such particularization should not be perceived as a distinguishing feature that would render Kienapple inapplicable. Second, there may be more than one method embodied in more than one offence to prove a single delict. Third, legislators may deem a particular element satisfied by proof of a different nature, not necessarily because logic compels it, but because of social policy or inherent difficulties of proof.
74In R. v. R.K., [2005] O.J. No. 2434, Justice Doherty writes at paragraph 38:
Dickson C.J.C. in Prince at pp. 51-54 further elucidated the legal nexus inquiry by referring to three factors that will defeat any claim that different offences have a sufficient legal nexus to warrant the application of the Kienapple rule. These factors do bear repeating in these reasons. First, where the offences are designed to protect different societal interests, convictions for both offences will not offend the Kienapple rule. Second, where the offences allege personal violence against different victims, Kienapple will not foreclose convictions for offences relating to each victim. Third, where the offences proscribe different consequences, the Kienapple rule will not bar multiple convictions.
75In the matter before me, the three different charges are designed to protect the same society issue, that being public safety on our roadways. Secondly, different victims are not being alleged, as broadly speaking, the victims are the other persons using the highway. Finally, the Highway Traffic Act provides similar consequences for contravention of these three offences.
76I am satisfied that the act of speeding 180 kilometers per hour in the conditions that existed at the time, is sufficient to find that the defendants were driving "without reasonable consideration for other persons using the highway", thereby grounding a conviction for "careless driving" under s.130 of the Highway Traffic Act. As well, at this same rate of speed, the defendants are "driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit", that is, 80 kilometres per hour over the maximum speed limit, which is sufficient to ground the conviction for "performing a stunt", contrary to s.172 of the Highway Traffic Act. Finally, at this rate of speed, I have found that the defendants are proceeding "without reasonable consideration for other persons using the highway" and also at that speed, they are "outdistancing … other motor vehicles" in the other lanes of traffic and I also find driving 180 kilometres per hour in a 100 kilometre per hour speed zone is "driving at a rate of speed that us a marked departure from the lawful rate of speed", all of which ground the conviction for "racing" under s.172 of the Highway Traffic Act. In these circumstances, I am content that the Kienapple principle has been satisfied.
iii. Remedy:
77Given the Kienapple principle applies and I have found the defendants guilty of each of the three charges, I must determine the remedy. The defendants will be convicted on the more serious offence and a conditional stay, pending any appeal, will be entered on the less serious offences.
78To determine which of the offences is more serious, I turn to the respective penalties available to the Court upon sentencing. Upon conviction for careless driving under s. 130 of the Highway Traffic Act, the defendant is liable "to a fine of not less than $400 and not more than $2,000, or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years." For a conviction of performing a stunt or racing under s.172 of the Highway Traffic Act, the defendant is liable "to a fine of not less than $2000 and not more than $10,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her driver's licence may be suspended, on a first conviction … for not more than two years, or on a subsequent conviction … for not more than 10 years". Further, the officer shall request that the driver surrender his or her driver's licence and shall detain the vehicle for impounding. Additionally, a seven-day licence suspension and a seven-day vehicle impoundment serve automatically as administrative penalties.
79The consequences of a conviction under s. 172 are much more severe than under s.130 of the Highway Traffic Act. For this reason, I find 'careless driving' to be the less serious offence and I am staying that charge. Since the consequences for 'performing a stunt' and for 'racing' are the same, and because the Kienapple principle forecloses convictions on both of these charges, I am staying the charge of 'racing'.
IV. CONCLUSION
80Based on my careful review of the evidence and based on the evidence I find credible and reliable, I am satisfied that all of the elements of the offences of 'careless driving', 'performing a stunt' and 'racing' have been proven beyond a reasonable doubt against both of these defendants. Neither defendant has satisfied the defence of necessity on a balance of probability. Applying the Kienapple principle, I am staying the charges of 'careless driving' and 'racing', conditional upon the expiration of the appeal period or disposition of the matters at appeal.
81I find that Davannal Phillips and Clifton Phillips are each guilty of performing a stunt, to wit, driving their motor vehicles, on Highway 401 in the Regional Municipality of Durham, at 180 kilometres per hour, which is more than 50 kilometres per hour over the posted 100 kilometre per hour maximum speed limit, contrary to s. 172 of the Highway Traffic Act. For each of these defendants, there will be a conviction registered.
Released: November 23, 2016
Signed: "Justice of the Peace M. Coopersmith"