Court File and Parties
CITATION: R. v. Armstrong, 2011 ONCA 709
DATE: 2011-11-15
DOCKET: C52558
COURT OF APPEAL FOR ONTARIO
Weiler, Cronk and Watt JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Jacquelynn Armstrong Appellant
Counsel: Joseph Di Luca and Kevin Tilley, for the appellant Emile A. Carrington, for the respondent
Heard: September 7, 2011
On appeal from the conviction entered by Justice Anne Mullins of the Superior Court of Justice, sitting with a jury, on July 10, 2010.
Reasons for Decision
Watt J.A.:
[1] A jury convicted Jacquelynn Armstrong of dangerous driving and flight from a pursuing police officer. She appeals her convictions on grounds of misdirection about the essential elements of each offence and inadequate answers to questions from the jury both during the trial and during their deliberations. She also contends that the jury’s verdict of guilty of the lesser and included offence of dangerous driving was unreasonable because it was inconsistent with the jury’s verdict of not guilty of the offence charged, dangerous driving causing bodily harm.
[2] The jury heard two widely divergent versions of events that occurred after a uniformed police officer pulled the appellant over for speeding. The verdict of the jury is indicative of their acceptance of the core (but not all) of the officer’s evidence and their rejection of the appellant’s account.
[3] The trial was brief, the evidence uncomplicated. The appellant’s position at trial was that after the traffic stop, the complainant police officer bid her adieu. She claimed that she had no reason to evade the police and didn’t know she was being pursued until immediately prior to her voluntary stop and apprehension. According to the appellant, the events alleged by the officer, being struck or dragged along by the appellant’s vehicle as the appellant began to drive away without warning, never occurred.
[4] The trial judge prepared draft final instructions and invited counsel to make submissions about their content. Counsel did so. The trial judge’s final instructions were the product of these discussions and elicited no objections from either counsel. At the suggestion of counsel, the trial judge also provided the jurors with decision trees for their use during deliberations. Once again, counsel agreed on their content.
The Jury Instruction Grounds
[5] The appellant contends that the trial judge’s final instructions contained two errors:
i. the instructions on the flight offence confused “reasonable excuse” with the essential elements of the offence, and thus reversed the onus of proof; and
ii. the instructions failed to adequately distinguish between the conduct requirement and the fault element of the offence of dangerous driving causing bodily harm.
[6] I do not agree.
The Flight Offence and the Instructions about “reasonable excuse”
[7] To determine the validity of the appellant’s complaint about the instructions on “reasonable excuse” in connection with the flight offence, it is helpful to begin with a summary of the appellant’s version of the events that underpin the allegation and a reminder about the nature of an excuse in criminal law.
[8] The appellant testified that she was unaware that she was being pursued by the police. She saw no emergency lights and heard no sirens, thus she neither evaded nor intended to evade a peace officer. Put in another way, the appellant denied both the conduct requirement and fault element of the offence in s. 249.1(1) of the Criminal Code.
[9] A claim of “reasonable excuse” by a person charged with a flight offence is not a denial of the essential elements of that offence. A “reasonable excuse” refers to something outside the essential elements of an offence. An excuse speaks to whether an accused should be held accountable for what otherwise would be a crime: R. v. Taraschuk, 1975 CanLII 37 (SCC), [1977] 1 S.C.R. 385, at p. 388; and R. v. Moser (1992), 1992 CanLII 2839 (ON CA), 7 O.R. (3d) 737 (C.A.), per Doherty J.A., concurring in the result, at pp. 748-749.
[10] In her final instructions, the trial judge separated out the essential elements of the flight offence, converted each into a question and advised jurors of the consequences of an affirmative or negative response to each question. The questions were repeated in the same words and sequence in the decision tree that the jurors had with them in their jury room during their deliberations.
[11] In combination, the instructions and decision tree made it clear that it was for the Crown to prove beyond a reasonable doubt that the appellant knew she was being pursued by the police and intended to evade the officer who was pursuing her. The jurors were instructed that if the appellant had a reasonable excuse for the manner in which she operated her motor vehicle, she was to be found not guilty because she had committed no offence. The trial judge described the excuse advanced as a lack of awareness of the police pursuit.
[12] The combination of the final instructions and decision tree made it clear that a reasonable doubt about the appellant’s awareness of the police pursuit or her intention to evade police required a finding of not guilty. By their verdict, the jurors were satisfied beyond a reasonable doubt that the appellant was aware of the police pursuit and drove as she did with the intention of evading her pursuer.
[13] The appellant’s position at trial amounted to a denial of two essential elements of the offence: awareness of the police pursuit and an intention to evade it. Neither could amount to a “reasonable excuse” in law. The jury rejected her denials when they found the essential elements of the flight offence had been proven beyond a reasonable doubt.
[14] The trial judge reviewed her proposed instructions with counsel before she charged the jury. Not only did counsel for the appellant at trial not object to the instructions on the flight offence, she expressly asked for the instruction about which complaint is now made.
[15] This ground of appeal fails.
Dangerous Driving and Instructions about the Fault Element
[16] The essence of the appellant’s complaint about the instructions on the offence of dangerous driving is that those instructions conflated the actus reus of the offence with the requisite mens rea, and thus left it open to the jury to convict the appellant on the basis of her conduct alone without any determination of whether the required fault element had been established.
[17] I would not give effect to this ground of appeal.
[18] Once again, a return to the evidence adduced at trial is important.
[19] The appellant’s testimony about her first dealings with the police officer who stopped her for speeding was that the events described by the officer never occurred. According to the appellant, the officer simply warned her (the appellant) about speeding and returned to her police car. The appellant never refused the officer’s request for her ownership and insurance information, or her driver’s licence and did not drive away with the officer hanging on and reaching into the van. As a result, the principal issues for the jury to determine were whether the actus reus of the offence of dangerous driving had been proven and whether the appellant’s operation of her motor vehicle caused the officer bodily harm.
[20] The ground of appeal advanced here was never raised at trial and is fundamentally at odds with the appellant’s testimony about the circumstances of the offence. Trial counsel made no objection to the proposed jury instructions about the elements of the offence before the instructions were given, or after they were delivered.
[21] The trial judge’s final instructions tracked Final 249-B of the Ontario Specimen Jury Instructions (Criminal). Those instructions are based on the principles elucidated in R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867. The appellant says that those principles, at least so far as the fault element is concerned, have been modified if not overtaken by R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49.
[22] In Beatty, Charron J. described the test for mens rea in these terms in paragraph 43:
(b) The Mens Rea
The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.
[23] She added in para. 49:
If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need to pursue the analysis. The offence will not have been made out. If, on the other hand, the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk created by this conduct. If there is no such evidence, the court may convict the accused.
[24] In this case, the appellant does not complain about the adequacy of the charge on the actus reus or external circumstances of the offence. On the basis of that instruction, the jury found that the appellant’s operation of her motor vehicle, when initially involved with the officer, constituted a marked departure from the standard expected of a reasonably prudent driver. The record is bereft of any evidence about the appellant’s then state of mind. Absent such evidence, and in accordance with Beatty, I see no reason why the failure to provide any further direction constitutes error.
[25] This ground of appeal fails.
The Unreasonable or Inconsistent Verdict Ground
[26] The appellant argues that the jury’s verdict, which found the appellant guilty of dangerous driving simpliciter, is unreasonable because it is inconsistent with their finding that the appellant was not guilty of dangerous driving causing bodily harm.
[27] Again, I do not agree.
[28] The onus of establishing that a jury verdict is unreasonable because it is inconsistent with another verdict of the same jury is difficult to discharge. After all, the jury, the sole judges of the facts, has a very wide latitude in its assessment of evidence: R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7. The onus is the same whether the alleged inconsistency arises from verdicts rendered on separate counts in a multi-count indictment or from verdicts on individual counts that give rise to included offences.
[29] In this case, the principal offence, dangerous driving causing bodily harm, required proof of the lesser offence of dangerous driving simpliciter and two further elements:
i. causation; and
ii. bodily harm.
By their verdict, the jury was satisfied that the prosecutor had proven the essential elements of dangerous driving simpliciter. The jury had a reasonable doubt, however, about one of the additional requirements of causation and bodily harm.
[30] The chief source of the evidence about causation and bodily harm was the complainant police officer. She testified that she suffered muscle bruising and a tear in one of the tendons in her shoulder. She paid little attention to her injury as events unfolded, but later went to hospital and followed a course of rehabilitative therapy. She was off work for three months. This was the second time she had injured or had suffered an injury to the same arm or shoulder.
[31] It was common ground at trial that the jury should be instructed about the included offence of dangerous driving simpliciter in the event that they had a reasonable doubt that it was the appellant’s operation of her motor vehicle that caused any injury to the officer (as opposed to the officer’s own conduct), or that the injury amounted to “bodily harm” as defined in s. 2 of the Criminal Code.
[32] The verdicts of the jury on the dangerous operation causing bodily harm count, finding the appellant not guilty as charged but guilty of dangerous driving simpliciter, are not irreconcilable. They are not verdicts such that no reasonable jury, properly instructed, could possibly have rendered on the evidence introduced at trial: Pittiman, at para. 10.
[33] In this case, the jury could have concluded that the appellant drove dangerously because she drove away with the police officer in very close proximity to the van, but that it was the officer’s own conduct in hanging on to the van that caused her injuries. Alternatively, the jury may have concluded that the officer had a pre-existing condition and that her encounter with the appellant did not amount to “bodily harm”. Either finding was available to the jury on the evidence.
[34] I would reject this ground of appeal.
The Jury Questions
[35] The appellant also takes issue with the trial judge’s response to two questions asked by the jury. The first question was asked before the evidence had been completed and the second emerged during the jury’s deliberations.
The Mid-Trial Question
[36] At the end of the first day of trial, after all prosecution witnesses had testified, the trial judge received a written question from a juror:
Can the accused be guilty of evading and innocent of police assault?
[37] Before the jury returned to the courtroom the following morning, the trial judge took up their question with counsel. The lawyers agreed that the trial judge should simply tell the jurors that they should focus their attention on the evidence rather than upon questions of law about which they would receive complete instructions later. The trial judge answered the question in accordance with the submissions of counsel.
[38] The appellant says that the mid-trial question reflected a clear misunderstanding of the nature of the proceedings: the indictment contained no count of assaulting a police officer.
[39] In my view, the appellant makes too much of this mid-trial question.
[40] The question was asked at the end of the first day of trial. We cannot assume that it reflected any unanimity of thought among the jurors or anything beyond a query by an individual juror. It occurred at the end of a day in which at least one witness indicated that the appellant had been arrested on a charge of “assault police”. The answer provided was satisfactory to trial counsel and responsive to the juror’s question. Nothing more was said about any allegation of assault for the remainder of the trial.
[41] This ground of appeal lacks substance.
The In-deliberation Question
[42] About two hours after the jurors had begun their deliberations, they asked this question:
Can we get a legal definition of dangerous operation of a motor vehicle? A sane and prudent behaviour can be dangerous, is there a definition of dangerous that gives us a sense of what behaviour this applies to. A sane and prudent person might not do it, but does it require someone be injured? Does someone have to know what they are doing is dangerous?
[43] The trial judge answered the question in the manner in which trial counsel agreed that it should be answered and provided the jurors with an amended decision tree on the dangerous driving count.
[44] The complaint here is that the trial judge should have first clarified the question posed by the jury before attempting to respond to it.
[45] It was open to the trial judge to invite the jury foreperson to clarify the question asked during deliberations. Curiously, counsel conducting the trial did not invite the trial judge to do so and expressed their satisfaction with the judge’s proposed response. Nothing the trial judge said was unresponsive to the jury’s question, legally wrong or foreclosed the jury from asking further questions if unsatisfied with the judge’s answer.
[46] I would not give effect to this ground of appeal.
Conclusion
[47] For these reasons, I would dismiss the appeal.
RELEASED: November 15, 2011 “KMW”
“David Watt J.A.”
“I agree K.M. Weiler J.A.”
“I agree E.A. Cronk J.A.”