COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Best, 2012 ONCA 421

DATE: 20120619

DOCKET: C53522

MacPherson, Armstrong and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Timothy Best

Applicant/Appellant

Robert Sheppard, for the appellant

Michael Medeiros, for the respondent

Heard and released orally: June 15, 2012

On appeal from the conviction entered on January 28, 2011 and the sentence imposed on March 25, 2011 by Justice Bruce Thomas of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant participated in a hockey tournament in Tillsonburg on January 31, 2009. After a game, he drank some beer and left the rink to drive home to London.

[2] Around 7:00 pm., while driving on Highway 401 in very snowy conditions, the appellant collided with a vehicle driven by Lisa Sheppard. Ms. Sheppard was injured. The appellant did not stop.

[3] A few minutes later, after exiting Highway 401, the appellant collided with a second vehicle (the Erny vehicle). Again, he did not stop.

[4] The appellant drove erratically through a residential area of London. Finally, he stopped in a private driveway. He got out of the car, decided to drink beer and then vodka, and then walked through the snow into nearby woods. The police caught him in the woods.

[5] The appellant was charged with six offences: Count 1 – impaired operation of a motor vehicle causing bodily harm to Lisa Sheppard; Count 2 – operation “over 80” of a motor vehicle; Count 3 – failing to remain at the scene of an accident causing bodily harm (Lisa Sheppard); Count 4 – failing to remain at the scene of an accident (the Erny vehicle); Count 5 – dangerous operation of a motor vehicle on Dorchester Road; and Count 6 – operation of a motor vehicle “over 80” causing bodily harm to Lisa Sheppard.

[6] At the trial, the appellant pleaded guilty to Count 4. The jury found the appellant guilty on Counts 1, 3 and 5 and not guilty on Counts 2 and 6.

[7] Justice B. Thomas imposed a six-month custodial sentence consisting of: Count 1 – three months; Count 3 – one month consecutive; Count 4 – one month consecutive; and Count 5 – one month consecutive. He also imposed a two-year driving prohibition.

[8] The appellant appeals his conviction on Count 1. If he is successful, he also appeals his sentence.

[9] The sole basis for the appellant’s appeal of his conviction on Count 1 is that the jury verdict of guilty on this count is inconsistent with the not guilty verdicts on Counts 2 and 6, the two “over 80” offences. He contends that once the evidence relating to the appellant’s blood alcohol content (BAC) at the relevant time (the appellant’s breathalyser results were .13 and .14) is removed from the analysis, there was simply not enough evidence on which a jury could find that the appellant’s conduct amounted to impaired driving.

[10] The test for setting aside a verdict on the basis of inconsistency is that “no reasonable jury whose members had applied their minds to the evidence could have arrived at that conclusion”: see R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 6.

[11] Impaired driving and driving “over 80” are separate criminal offences. Operating a motor vehicle with a BAC over the legal limit is not an essential element of impaired driving. Accordingly, it is logically and legally possible for a jury to acquit on an “over 80” charge and convict on an impaired driving charge: see R. v. Cunningham (1999), 43 M.V.R. (3d) 39 (Ont. C.A.).

[12] In this case, there was an abundance of evidence to support the jury’s guilty verdict on Count 1, even against the backdrop of the jury’s acquittals on the two “over 80” charges. Taken as a whole, the evidence of the appellant’s prior drinking at the hockey rink, the evidence of his erratic driving both before and after the collision with the Sheppard vehicle (especially the evidence of Bryan Duross who managed to follow the appellant’s vehicle for 18 minutes), and the evidence of the appellant’s unusual behaviour consistent with impairment provided a logical route to a verdict of guilty on the count of impaired driving causing bodily harm.

[13] The appeal from conviction on Count 1 is dismissed. It follows that the appeal from sentence does not arise.

“J.C. MacPherson J.A.”

“Robert P. Armstrong J.A.”

“S.E. Pepall J.A.”