DATE: 20010813 DOCKET: C33574
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. SARAH ELIZABETH LeBEAU (Appellant)
BEFORE:
CARTHY and CHARRON JJ.A. and McCOMBS J. ad hoc
COUNSEL:
Anil K. Kapoor,
for the appellant
Erika Chozik,
for the respondent
HEARD:
August 8, 2001
On appeal from her convictions by Justice B. Thomas Granger, sitting without a jury, on October 15, 1999 and from the sentence imposed on January 25, 2000
E N D O R S E M E N T
Overview
[1] The appellant appeals her convictions on four counts of criminal negligence causing death, one count of criminal negligence causing bodily harm, four counts of impaired driving causing death, and one count of impaired driving causing bodily harm. She also appeals the sentence imposed of four years imprisonment, and a 15 year driving prohibition under s. 259(2)(a) of the Criminal Code.
[2] The charges arose as a result of a tragic high-speed car crash which left four young occupants dead, and the other two occupants, including the appellant, seriously injured.
[3] We did not find it necessary to hear from the respondent, and concluded that the appeal of the convictions and sentence must be dismissed.
The Conviction Appeal
[4] The appellant raised a number of grounds of appeal from her convictions:
- The Warrants to Seize the Residual Blood Sample and Relevant Medical Records from the Clinton Public Hospital and the Medical File from the London Health Sciences Centre
[5] In our view, the information contained in the affidavits filed in support of the applications to obtain the warrants was sufficient to justify their issuance.
[6] The police officer conveyed, in his affidavit, the horrific circumstances of the crash; his belief that the appellant had been the driver; that she had been drinking at an all-night party; and that open liquor was found in the vehicle after the crash. In our view, these factors constituted sufficient information to justify the issuance of the warrants and we find no error in the trial judge’s ruling in this regard.
[7] We are also all of the view that the validity of the warrant is not affected by the officer’s failure to convey in his affidavit that he had been told by the appellant’s friends that they thought she was sober when she took the wheel of the vehicle. Given the other factors noted above, we are all of the view that the warrants would nevertheless have been properly issued if the omitted information had been included in the affidavit. The reasons of the trial judge show that he was alive to the test for quashing a search warrant, and it is implicit in his reasons on this issue that he was of the view that no material facts had been omitted. His finding in this regard is entitled to deference.
- The Assertion that the Verdicts Were Unreasonable
[8] When it is claimed that the verdict is unreasonable, the standard of review is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Biniaris (2000) 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.); R. v. G.(A.) (2000) 2000 SCC 17, 143 C.C.C. (3d) 46 (SC.C.).
[9] The central issue at trial was whether the Crown had proved beyond a reasonable doubt that the appellant was driving the vehicle at the time of the fatal accident. In our view, there was ample evidence supporting the trial judge’s conclusion that the appellant was the driver. In his careful review of the evidence, the trial judge identified a variety of factors which led him to that conclusion. Although it may have been a modest overstatement to have observed that the appellant’s evidence was “simply not consistent with the other evidence in the case”, it was nevertheless open to the trial judge to reject her evidence in light of the convincing evidence that she was the driver at the time of the accident.
[10] We conclude that the verdict was not unreasonable.
- The Alleged Misapprehension of the Evidence
[11] We are not satisfied that the trial judge misapprehended the evidence in any material way. While his observations concerning the difference between the Clinton and the London blood samples are not clear, we are nevertheless of the view that it was open to the trial judge to accept the evidence of the first blood sample. Moreover, any difference in the results of the two samples was not, in our view, material to the trial judge’s ultimate conclusion that the appellant’s ability to operate a motor vehicle was impaired by alcohol at the time of driving.
- The Failure to Preserve the Clinton Blood Sample
[12] The appellant asserts that the failure of the authorities to preserve a blood sample for independent testing deprived her of her right to make full answer and defence, a component of s. 7 of the Charter. We agree with the trial judge’s analysis of this issue. He concluded that because the Crown did not rely upon a certificate of analysis pursuant to the legislative scheme contained in s. 258 of the Criminal Code, there was no statutory obligation to preserve a separate blood sample for independent testing. The trial judge acknowledged a general duty, however, to preserve the fruits of an investigation. After applying the principles articulated in R. v. La (1997), 116 C.C.C. (3d) 97 (S.C.C.), he concluded that there was no impropriety on the part of the state, and that there was no violation of the appellant’s rights under s. 7 of the Charter. We see no basis to interfere with this finding.
- The Assertion that the Trial Judge Unfairly Characterized the Evidence of the Defence Witness, Dr. McLeod
[13] In our view, it was open to the trial judge on the evidence, to arrive at the conclusions that he did concerning the evidence of this witness. His conclusions as to the weight to be given to his evidence are entitled to deference from this court.
The Sentence Appeal
[14] The 23-page transcript of the trial judge’s reasons for sentence reveals that he gave careful consideration to the relevant factors. He concluded that because of the enormity of the tragic consequences of the appellant’s actions, his duty was to impose a sentence that would send a “clear and unequivocal message” emphasizing the principle of general deterrence. He concluded that a conditional sentence of imprisonment would “in no way act as a general deterrent or properly reflect society’s denunciation of the appellant’s actions”.
[15] We are unable to conclude that he erred in principle in imposing the sentence that he did.
Conclusion
[16] In the result, the appeal respecting the convictions and sentence is dismissed.
(signed) “J. J. Carthy J.A.”
(signed) “Louise Charron J.A.”
(signed) “D. McCombs J. (ad hoc)”