Court File and Parties

Court of Appeal for Ontario Date: 20211020 Docket: C68564

Paciocco, Nordheimer and Thorburn JJ.A.

Between: Her Majesty the Queen Respondent

And: Brooke Eden Appellant

Counsel: Jessica Zita, for the appellant Katie Doherty, for the respondent

Heard: October 13, 2021 by videoconference

On appeal from the conviction entered on June 21, 2019 and the sentence imposed on February 7, 2020 by Justice Joseph Nadel of the Ontario Court of Justice.

Reasons for Decision

[1] Ms. Eden appeals from her convictions for Impaired Operation Causing Death, Impaired Operation Causing Bodily Harm, and Failing to Remain, for which she received a global sentence of five years. The appellant also seeks leave to appeal the sentence.

[2] The basic facts are that the appellant was operating her mother’s motor vehicle when she collided with a vehicle ahead of her that had stopped at an intersection. The appellant’s vehicle careened off the vehicle that she hit, moved into the opposite lane, and struck a motorcycle heading in the opposite direction. The driver of the motorcycle was killed, and his passenger was seriously injured.

[3] The appellant fled on foot from the accident. She was arrested a short time later about two kilometres from the accident. The arresting officer noticed the odour of alcohol on the appellant’s breath and that her eyes were bloodshot. Subsequent Intoxilyzer readings, extrapolated by an expert for the passage of time, put the appellant’s blood alcohol readings at the time of the accident in a range between 70 milligrams to 135 milligrams of alcohol per 100 millilitres of blood. An analysis of information from the vehicle, that the appellant had been operating, established that the speed of the vehicle just before the accident was 113 to 114 kph. The posted speed limit on the road was 80 kph.

[4] The appellant pled guilty to the offences. However, there was an issue regarding her mental health and fitness. The trial judge inquired about these matters at the time of the plea and was told that a fitness assessment had recently been conducted and that the appellant had been found to be fit. The trial judge was also told by the appellant’s counsel that he had conducted a full plea inquiry and that he had reviewed the agreed facts with her. The appellant then entered a plea of guilty to each of the three offences.

[5] While the appellant was represented at the time of her guilty plea, by the time of sentencing, she had fired her lawyer and was unrepresented. The appellant said that she wanted to proceed with sentencing without a lawyer. The trial judge cautioned the appellant against proceeding without a lawyer, but the appellant insisted.

[6] The trial judge explained the process to the appellant. He then heard the Crown’s submissions on sentence and heard the victim impact statements. The trial judge adjourned the matter for two months so that the appellant could have more time to prepare her submissions.

[7] The appellant then brought a number of “motions”, the significant one of which was a motion that appeared to seek to strike the guilty plea. The judge conducted a hearing on that motion, that included hearing from the appellant’s former counsel. He dismissed the motion as he did not find a basis for any suggestion that the plea had been involuntary or uninformed. In particular, the appellant asserted that she had pled guilty under duress, but the trial judge found that there was no evidence to support that assertion.

[8] The matter proceeded to sentencing. After hearing submissions from the appellant, the judge imposed a global sentence of five years: four years on the impaired operation causing death conviction; one year concurrent on the impaired operation causing bodily harm conviction; and one year consecutive for the fail to remain conviction.

[9] The appellant has failed to identify any legal error in the trial judge’s reasons for rejecting the motion to strike the guilty plea. More particularly, the appellant has failed to demonstrate any error in the trial judge’s conclusion that the plea was neither involuntary nor uninformed. We do not accept that the conduct of the appellant after the guilty plea provides any reliable evidence as to the appellant’s understanding of the events at the time that the guilty pleas were entered which, we would reiterate, occurred when she was represented and had been found fit to stand trial. Put simply, it is not sufficient to set aside a guilty plea on the basis that the accused has simply changed their mind after the fact.

[10] In terms of the sentence appeal, the sentencing hearing was conducted fairly. The trial judge confirmed repeatedly that the appellant wished to represent herself and ensured that she understood the process, the law and the Crown’s arguments. The trial judge was not required to adjourn matters, nor to appoint amicus. The sentence imposed by the trial judge was entirely warranted by the facts of the case and the appellant’s prior driving record. In terms of the complaint that the trial judge did not provide any Downes credit, that is a matter of discretion for the trial judge. The appellant has failed to show any basis for us to interfere with his exercise of that discretion. In saying that, we would note that the subject and terms of the bail were negotiated between counsel in a situation where the appellant’s entitlement to bail, given her breaches of prior bail orders, was certainly a live issue. We also note that the bail terms imposed did not represent the most onerous form of house arrest.

[11] The conviction appeal is dismissed. While leave to appeal sentence is granted, the appeal is dismissed.

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”

“J.A. Thorburn J.A.”