CITATION: R. v. McKerness, 2007 ONCA 452
DATE: 20070620
DOCKET: C45964
COURT OF APPEAL FOR ONTARIO
FELDMAN, GILLESE and ARMSTRONG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
(Respondent)
and
DARLENE McKERNESS
(Appellant/Applicant)
Darlene McKerness, in person Assisted by Michael Dineen (duty counsel)
John Pearson for the respondent
Heard: February 12, 2007
On appeal from the convictions entered on June 27, 2006 and the sentence imposed on August 30, 2006 by Justice J. Ritchie of the Ontario Court of Justice.
Armstrong J.A.:
[1] The appellant was convicted of dangerous driving causing bodily harm (two counts), impaired driving, obstructing a peace officer by falsely reporting the theft of her motor vehicle, failing to stop her vehicle after an accident and public mischief.
[2] The appellant was sentenced to twelve months concurrent on each of the dangerous driving offences, the impaired driving offence and the failing to stop offence. She was sentenced to thirty days concurrent on the charge of obstructing a peace officer and the charge of public mischief. She was placed on probation for two years and was prohibited from driving for a period of two years.
[3] The appellant appeals both conviction and sentence.
The Evidence
(i) The Crown’s Case
[4] The main crown witness was Stephen Patchett, an acquaintance and friend of the appellant and her sons. Mr. Patchett testified that at about 12:00 noon on Sunday, June 13, 2004, he went to the appellant’s apartment in Sutton and shared some marijuana with the appellant and one of her sons. Mr. Patchett testified that in the afternoon, he drove with the appellant and her younger son to Newmarket where she delivered her younger son to the Children’s Aid Society. On their return from Newmarket, the appellant purchased a 12-pack of beer. The appellant and Mr. Patchett drank beer as they drove back to the apartment and Mr. Patchett threw the empties out of the window.
[5] When they got back to the appellant’s apartment, Mr. Patchett, the appellant, Glen Murray and Trevor Wilson (another son of the appellant) decided to drive to Kingston. This was about 5:00 or 6:00 p.m. on June 13, 2004. The appellant was the driver. Glen Murray sat in the front passenger seat and Mr. Patchett and Trevor Wilson sat in the rear seat.
[6] Mr. Patchett testified that the appellant purchased a 28-bottle case of beer. All of the occupants of the car drank beer as they travelled in the car. The appellant was speeding and weaving in and out of traffic as she drove the car eastbound on Highway 401. As the car approached the Kennedy Road exit, she lost control of the car and collided with a red Honda Accord.
[7] Mr. Patchett immediately advised the appellant to leave the scene because she had been drinking. She followed the advice and together with her son, Trevor Wilson, headed down the highway embankment and across a field towards Kennedy Road.
[8] Both Mr. Patchett and the driver of the Honda Accord suffered physical injury in the accident and required medical attention. Mr. Patchett suffered soft tissue injury and the driver of the Honda suffered cracked ribs and a cut ear.
[9] Mr. Patchett was interviewed by Constable Brown of the Ontario Provincial Police at the scene and Mr. Patchett told him that he did not know the driver of the car. He said that he was hitchhiking to Kingston. P.C. Brown also spoke to Mr. Murray who was not co-operative. It was only several weeks later that Mr. Patchett gave a statement to the police in which he identified the appellant as the driver of the car.
[10] Glen Joseph, an independent witness, was driving eastbound on Highway 401 and saw the accident. He observed the appellant’s car (a blue Neon) sliding at 90 degrees to the flow of traffic and strike a maroon Honda. He also had observed the blue Neon weaving in and out of traffic before the collision. He stopped his car after the collision and observed four people in the blue Neon. A female was seated in the driver seat. The three other passengers were males. He saw the female and a young male walk away through a field towards Kennedy Road.
[11] Dean Langille was also driving in his own car eastbound on Highway 401 on June 13, 2004 and he observed through his rear view mirror a car “zipping in and out” of two left lanes. He later observed the car bounce off a guardrail and collide with another car. Mr. Langille stopped his car. He went to a blue car and observed four people in it and smelled alcohol – three males and one female. He saw the female and someone else run down the embankment towards Kennedy Road.
[12] Neither Mr. Joseph nor Mr. Langille were able to identify the appellant in a subsequent police photo line-up.
[13] At about 7:45 p.m. on July 13, 2004, the blue Neon car was reported stolen to the York Regional Police.
(ii) The Appellant’s Defence
[14] The appellant testified that ten or eleven friends gathered on June 13, 2004 in the parking lot in front of her apartment building and discussed what they were going to do that day. They decided that they were going to go to the beach at De Lasalle Park about ten minutes away. They left about 12:00 noon or 1:00 p.m. Her car was parked in its usual parking spot in the parking lot, unlocked, with the car keys in the console. She went to the park in the van of a friend. Mr. Patchett was initially part of the group but he did not go to the beach. He was not welcome because he was drunk and behaving badly, including urinating on one of the cars in the parking lot.
[15] The group stayed at the park until 6:00 or 7:00 p.m. Before the appellant left the park, she phoned her son, Tyler, and asked him to go to her car and see if her cell phone was in the car. Her son looked out the window and told his mother that her car was not in the parking lot. She thought her son was joking. However, in the event that he was not joking, she told him to call the police and report the car as stolen which he did.
[16] The defence called Glen Murray as a witness. Mr. Murray testified that at about 4:00 or 4:30 p.m., he was walking on a road out of Sutton. Mr. Patchett came along in a car (Patchett was a passenger) and stopped and offered Mr. Murray a lift home. A female, who was aged 19 or 20, was driving the car. He got into the car and sat in the back seat behind the driver. As they drove along they decided to go for a drive and “party”. Mr. Patchett and Mr. Murray drank beer which Mr. Patchett had in the trunk of the car. They headed south on Highway 404 and then east on Highway 401. Mr. Patchett and the female driver of the car also smoked marijuana.
[17] As they were approaching Kennedy Road the car went out of control. It collided with another car and ended up on a shoulder of the highway with the car facing the wrong way. Mr. Patchett told the woman to leave the scene which she did. The police arrived and eventually Mr. Murray made his way home by hitchhiking and taking a bus. He said he got home at about 4:00 or 5:00 a.m.
[18] Mr. Murray said that he started a relationship with the appellant in the summer of 2005. At the time of the trial in 2006, he had been living with the appellant for about a year. At the time of the accident on June 14, 2004, he did not know the appellant although two of her sons had been working for him in the moving business.
[19] Mr. Murray testified that the appellant was not the driver of the car. He also testified that he sat behind the female driver of the car for about two to two and a half hours but was unable to give any kind of a description of her other than a vague description of the colour of her hair.
[20] He was unaware that the appellant had been charged with the various offences arising out of the incident on June 13, 2004 until he attended a court appearance with her in Toronto many months later.
(iii) The Video Statement of the Appellant and John David
[21] At about 12:45 a.m. on June 14, 2004, P.C. Brown, the investigating officer from the OPP, spoke to the appellant on the telephone and she told him that her car had been stolen.
[22] That evening, she had also received a telephone call from Mr. Patchett who was at the hospital. Patchett told her he had taken the car and would arrange to pay for the damage.
[23] At about 2:20 a.m. on July 14, 2004, P.C. Brown attended at the appellant’s apartment. The appellant was with John David who was a friend who lived in the apartment building. P.C. Brown then placed the appellant and Mr. David in the back seat of his police cruiser and took a video statement from them.
[24] During the taking of the video statement, the appellant did not tell P.C. Brown that she had received a call from Mr. Patchett in which he told her that he was taking responsibility for the damage to her car. Mr. Patchett showed up at the appellant’s apartment after P.C. Brown left and apologized to the appellant. He told her that he had been with two males and a female. The next day, the appellant told Mr. Patchett that he better “own up” and he said he would take care of it.
The Trial Judge’s Reasons
[25] The trial judge reviewed the evidence of all of the witnesses. In respect of Mr. Patchett, he observed that there was a genuine issue of his credibility. He noted that he had been brought to court in custody following his arrest on a material witness warrant – having previously failed to respond to a subpoena on at least two occasions. He also emphasized that Mr. Patchett had originally told P.C. Brown that he did not know the driver of the blue Neon car. Nevertheless, he concluded:
It was clear from Mr. Patchett’s evidence at trial that he is not a pillar of the community and that he will never win a “citizen of the year” prize. However, Mr. Patchett gave completely honest and reliable testimony at this trial.
The trial judge found that Mr. Patchett was unshaken in cross-examination and that there were no inconsistencies that were of any probative significance in his evidence. He was forthcoming and not evasive. The trial judge concluded:
Very significantly, Mr. Patchett’s testimony was strongly corroborated by other evidence at trial. Ms. McKerness’ videotaped statement to Officer Brown confirmed that she had gone to Newmarket with her son that afternoon, as Mr. Patchett testified, and not to the beach, as Ms. McKerness testified.
[26] The trial judge referred to certain evidence from the two independent witnesses, Glen Joseph and Dean Langille, which corroborated Mr. Patchett’s testimony. The trial judge also referred to certain evidence of the independent witnesses that was inconsistent with the testimony of Mr. Patchett. He found these inconsistencies to be relatively minor and not of significance.
[27] The trial judge referred to P.C. Brown’s observation of broken beer bottles and a two-thirds case of beer in the blue Neon as corroboration of Mr. Patchett’s evidence as well as the odour of alcohol coming from both Mr. Patchett and Mr. Murray.
[28] In his review of the appellant’s evidence, the trial judge concluded that there were major inconsistencies and contradictions in her testimony. A number of the contra-dictions arose as a result of the difference between her evidence at trial and what she had said on the videotaped statement taken at 2:20 a.m. on June 14, 2004. The trial judge made specific reference to many of these inconsistencies.
[29] The trial judge concluded his review of the appellant’s evidence as follows:
When Ms. McKerness testified on direct examination, she had obviously forgotten the details of the videotaped state-ment that she had given to Officer Brown in the early morning hours of June 14, 2004. When the defendant was confronted with the glaring discrepancies, she was agitated and upset and had no plausible answers. I conclude that the defendant’s testimony was fabricated and was not truthful. I reject it.
[30] In respect of the evidence of Mr. Murray, the trial judge reviewed his testimony and concluded:
Glen Murray was not a truthful witness. He testified that there were three persons in the blue Neon, whereas Mr. Patchett and Glen Joseph (one of the independent witnesses) said that there were four persons. Mr. Murray testified that the female driver was alone when she fled the scene, which was contradicted by Mr. Patchett and both of the independent witnesses. Mr. Murray’s inability to describe the female driver was not believable. He was allegedly in the vehicle with her for two to two and a half hours. It is interesting to note that Mr. Murray told Officer Brown (when the officer was investigating the accident on-scene) that he thought the name of the person who had been driving the blue Neon started with the letter “D”. Mr. Murray changed his testimony to say that the driver had blonde hair. Then he gave waffling explanations, such as “brunette, blonde, it’s basically the same”. … Mr. Murray’s testimony was evasive on some issues, such as the driver’s hair colour. I considered Mr. Murray’s demeanour as well. I reject his testimony.
[31] The trial judge also rejected the evidence of the two other defence witnesses as the product of fabrication and collusion.
[32] The trial judge concluded his reasons for judgment as follows:
I have borne in mind that the onus does not shift to the defendant under any circumstances. The defence submitted that I should accept Ms. McKerness’s testimony or, if I rejected it, that I should be left with a reasonable doubt, in accordance with the second branch of the ruling in R. v. W.D. [1991 93 (SCC), [1991] 1 S.C.R. 742]. I have considered Ms. McKerness’s testimony in the context of the evidence as a whole, and her testimony does not leave me with a reasonable doubt.
In all criminal prosecutions, the burden rests solely on the Crown to prove all elements of the offences beyond a reasonable doubt. I have considered the totality of the evidence and the submissions of Counsel. I am satisfied that the Crown has discharged the burden in this case. There will be findings of guilty on all counts.
The Appeal from Conviction
[33] The appellant raised a number of matters in her inmate notice of appeal including:
(i) the sufficiency of the evidence against her;
(ii) the bias of the Crown; and
(iii) the lack of credibility of the main Crown witness, Stephen Patchett. Here the main complaint appears to be that the trial judge preferred his evidence.
The appellant is really asking us to retry the case which we cannot do. I do not see any merit in the issues raised by the appellant on her own behalf.
[34] On the argument of the appeal, the appellant was assisted by duty counsel who raised the following issues:
(i) the appellant did not have sufficient opportunity to review the video statement in order to refresh her memory;
(ii) the trial judge erred in admitting the appellant’s video statement for the truth of its contents;
(iii) the trial judge erred in relying on innocuous differences between her video statement close to the time of the events and her trial testimony; and
(iv) the trial judge erred in not invoking the Kienapple principle in respect of staying either count three or count four in the information.
(i) Lack of sufficient opportunity to review the video statement
[35] The transcript at trial indicates that counsel for the Crown advised counsel for the appellant on May 5, 2006 of the availability of the video tape. Apparently there was some misunderstanding or miscommunication on the part of defence counsel and he did not respond to the Crown’s offer to make the tape available. Defence counsel made it clear that he attributed no fault to the Crown. An opportunity was afforded to the appellant to review the video tape in the presence of her counsel before she was cross-examined on the understanding that she would not discuss the statement with her lawyer. Defence counsel made no objection to this manner of proceeding and readily agreed to it. In these circumstances, I see no reasonable basis for complaint.
(ii) Did the trial judge err in admitting the appellant’s video statement for the truth of its contents?
[36] At the outset, I should observe that the video statement was not admitted as part of the Crown’s case. Also, no issue was taken as to its voluntariness.
[37] It is apparent, at least in part, that the trial judge relied upon the appellant’s video taped statement for the truth of its contents. A clear example of this is the following excerpt from his reasons for judgment referred to above in para. 25:
Very significantly, Mr. Patchett’s testimony was strongly corroborated by other evidence at trial. Ms. McKerness’ videotaped statement to Officer Brown confirmed that she had gone to Newmarket with her son that afternoon, as Mr. Patchett testified, and not to the beach, as Ms. McKerness testified.
In my view, the trial judge was in error in relying upon the above part of the appellant’s statement for its truth. A prior inconsistent statement, not adopted by the appellant, only serves to impeach her credibility: see J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed, 1999) at 16.134. Such a statement is not admissible for its truth. The counsel for the Crown conceded that to the extent the trial judge relied upon the appellant’s videotaped statement for its truth, he erred.
[38] Duty counsel also submits that the trial judge ought not to have used the video-taped statement to contradict one of the defence witnesses (Fabian Slatcher) as follows:
Additionally, the videotaped statement Ms. McKerness gave to Officer Brown (respecting the visitation with her son Kyle and returning him to Newmarket that afternoon), contradicted Mr. Slatcher’s version of events.
Again, the trial judge appears to have used the videotaped statement for the truth of its contents. In so doing, he erred.
[39] Duty counsel also complained that the trial judge used John David’s statement to contradict the appellant. In this respect, the trial judge said:
Dave [John David], who had participated in the videotaped statement, told Officer Brown that they had walked to the beach, and it took more than 40 minutes, because they had the kids with them. When questioned about that, the defendant answered, “I don’t know why he made that statement. He might have said it because I said it.”
In my view, the trial judge ought not to have relied on the videotaped statement of John David. Mr. David was not a witness in the trial and was not available for cross-examination.
[40] The question for this court is whether the errors made by the trial judge in his use of the appellant’s videotaped statement are serious enough to require a new trial. In my view, they are not. There were very significant contradictions in the videotaped statement of the appellant which clearly reflected adversely on the credibility of her evidence at trial. The trial judge quite properly took note of these contradictions in assessing her evidence. In my view, the appellant’s credibility was clearly shaken and, absent the errors made, the result would still have been the same. This was an extremely strong Crown case.
(iii) Did the trial judge err in relying on innocuous differences between the appellant’s video statement close to the time of the events and her trial testimony?
[41] I would not give effect to this ground of appeal. As indicated above, there were significant differences between her video statement and trial testimony which the trial judge was, in my view, fully justified in taking into account. The fact that she did not tell Officer Brown during the video statement that she had received a telephone call from Mr. Patchett earlier that evening that he had taken her car, but she still persisted in alleging that the car had been stolen, represented a major blow to her credibility in itself.
(iv) Did the trial judge err in not invoking the Kienapple principle in respect of staying either count three or count four in the information?
[42] Count four in the information contains the charge of obstructing a police officer engaged in the execution of his duty. Count six in the information contains the charge of public mischief. The gravamen of the two offences was the appellant’s false report to the police. Counsel for the Crown concedes that in accordance with the principle articulated in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729 one of the two counts should have been stayed by the trial judge.
Disposition of the Conviction Appeal
[43] For the above reasons, I would allow the appeal in respect of count four and stay the conviction under that count in accordance with the Kienapple principle. I would otherwise dismiss the appeal as to conviction.
Sentence Appeal
[44] The inmate’s notice of appeal does not contain any grounds of appeal in respect of sentence. Having read the trial judge’s reasons, I can find no error in principle. The sentence appears to be a fit sentence. The offences for which the appellant was convicted are extremely serious. She was speeding on Canada’s busiest highway and weaving in and out of traffic, having consumed a considerable amount of alcohol. She was fortunate that the consequences of her actions did not result in far greater personal injuries or death. She left the scene of the accident and falsely reported her vehicle as stolen. Her conduct in this respect is also reprehensible. I would therefore grant leave to appeal sentence but would dismiss the sentence appeal.
RELEASED: “JUN 20 2007” “Robert P. Armstrong J.A.”
“KNF” “I agree K. Feldman J.A.”
“I agree E.E. Gillese J.A.”