Court of Appeal for Ontario

Date: 2019-11-12 Docket: C66738

Judges: Watt, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Appellant

and

Anna Domanska Respondent

Counsel

Davin Michael Garg, for the appellant

James Brennan Smart, for the respondent

Heard and released orally: November 5, 2019

On appeal from the acquittal entered on March 8, 2019 by Justice Malcolm McLeod of the Ontario Court of Justice.

Reasons for Decision

[1] The respondent, Anna Domanska, was charged with three counts each of criminal negligence causing bodily harm (Criminal Code, R.S.C. 1985, c. C-46, s. 221); dangerous driving causing bodily harm (s. 249(3)); impaired driving causing bodily harm (s. 255(2)); and causing bodily harm while being "over 80" (s. 255(2.1)).

[2] The respondent was driving her car westbound along Lakeshore Boulevard in Toronto when she approached a curve in the road veering north. Instead of negotiating this curve in the road, the respondent continued to drive straight and collided with a car traveling in the opposite direction causing serious injuries to its three occupants. The respondent also suffered a serious injury herself.

[3] At the scene, the respondent told paramedics that she had consumed two glasses of wine. The respondent was taken to hospital where blood was taken, however, due to continuity concerns, the trial judge ruled that the blood alcohol level that was derived from this sample was unavailable to the Crown at trial. Moreover, the breathalyzer machine that was taken to the hospital to obtain a sample from the respondent malfunctioned and breath samples were not taken. Accordingly, there was no evidence as to the respondent's alcohol consumption other than her own statements to paramedics at the scene.

[4] The appellant was acquitted on all counts.

[5] The Crown appeals. It does not challenge the trial judge's continuity ruling with respect to the blood that was taken from the respondent. Instead, the Crown asserts that the trial judge erred by failing to consider all of the evidence as it related to:

i. whether the respondent was impaired; and

ii. whether her driving constituted a marked departure.

[6] We disagree. The trial judge's reasons reveal a thorough consideration of all of the evidence. We acknowledge that the trial judge may have erred in his analysis on the dangerous driving charges by operating on the assumption that only consumption leading to impairment could be considered. However, in the circumstances of this case, we are not persuaded that it had any impact on the trial judge's ultimate conclusion that the Crown had failed to prove a marked departure beyond a reasonable doubt.

[7] Accordingly, and despite Mr. Garg's able submissions, the appeal is dismissed.

"David Watt J.A."

"Grant Huscroft J.A."

"Gary Trotter J.A."