Court File and Parties

Court File No.: Sudbury 11279 Date: 2012-04-03 Ontario Court of Justice

Between: Her Majesty the Queen — and — Brian Willick

Before: Justice Randall W. Lalande

Heard: March 5, 2012

Reasons for Judgment Released: April 3, 2012

Counsel:

• Leonard Kim, for the Crown
• Danielle Vincent, for the accused Brian Willick

Reasons for Judgment

1: Introduction

[1] Mr. Brian Willick, age 49 years, entered a plea of not guilty to a single count of dangerous driving contrary to section 249(1)(a) of the Criminal Code. The circumstances giving rise to the charge are alleged to have occurred on Thursday, June 16, 2011.

[2] Mr. Willick was involved in a single motor vehicle accident at approximately 1:50 a.m. He was the operator of an Ontario plated 2010 white Ford F-150 truck owned by his employer. The accident occurred at or near the intersection of Highway 17 and Ella Road. Highway 17 is a main provincial highway designed for two-way traffic. There is a long sweeping curve to the right which straightens out just west of the Ella Road intersection. Mr. Willick was travelling westbound.

[3] Mr. Willick's vehicle "the Ford" entered the right hand curve then crossed into and beyond the eastbound oncoming lane. The Ford proceeded across the intersection of Highway 17 and Ella Road, drove off the roadway and went airborne into the south side ditch. The Ford kept moving along the bank of the ditch, drove back up onto a slanted rock cut, slid or rolled off the rock cut and ended up on its right side in the ditch area with its wheels against the face of the rock cut. The distance travelled from the intersection of Ella Road where it briefly went airborne to its final resting place was approximately 65 meters.

[4] As a result of the accident, Mr. Willick was seriously injured. He was initially taken by ambulance to hospital at Espanola. He was transferred from Espanola to the hospital at Sudbury the same day where he was admitted for two weeks under the care of Dr. Mantle. His injuries included a mild concussion, fractures of the C3 cervical spinal vertebra and an acute fracture of the sternum with evidence of blood around the aorta. He was treated by means of a cervical collar, a lumbar extension brace, narcotic pain medication and gastric suction. He also suffered other miscellaneous more minor injuries including a lost front tooth.

2: Background

[5] Mr. Willick resides at Crystal Beach within the municipality of Fort Erie. He is employed as a general foreman by Aluma Systems which is a company based in Stoney Creek near Hamilton. The company erects and installs scaffolding on an industrial scale. Mr. Willick was stationed at Sudbury on a job contract with Vale. The worksite was located at Creighton Mine.

[6] Mr. Willick had put in a full day at work on June 16, 2011. He finished working that day after a night shift at 6:30 a.m. He then went home and went to sleep. Later in the day, he went back to his work office until about 5:30 p.m. He then went shopping and afterwards, as planned, drove to Mr. John Corey's residence for drinks, a spaghetti dinner and importantly to watch the final NHL playoff game between Boston and Vancouver.

[7] Mr. John Corey and Mr. Willick have worked together for 15 years. Mr. Corey lives in a mobile home trailer just off Dill Lake Road south of Sudbury. He said that during the evening he noticed Mr. Willick consuming not more than two beers. The beer being consumed was Coors Light. He never saw Mr. Willick consume beer after 9:00 p.m. After the game, he confirmed that Mr. Willick did his laundry before leaving the residence. Mr. Corey had no concerns about Mr. Willick's ability to drive.

[8] Mr. Willick admitted that he would have been tired that day. There was some physical labour involved on the shift he worked underground. He had only, during the day, managed to capture four hours sleep. He did say that it was not unusual for him to function while tired. In his own words: "I've being doing it for years".

[9] Officer Helena Hall was dispatched at 1:51 a.m. and arrived at the scene at 2:13 a.m. Despite his injuries, Mr. Willick was standing inside the Ford with his head peering out the passenger side window. She detected a strong smell of alcohol from his breath. She noted that his speech was slow but not exceptionally slurred. He fumbled while retrieving his documents from his wallet so she helped him do this. He did state to her that his back was sore. It was very noticeable that he was injured.

[10] Mr. Willick was taken to hospital by ambulance. Officer Hall rode with him in the ambulance. She had arrested him at 2:17 a.m. within about 4 minutes of her arrival at the scene. He was arrested for impaired driving.

[11] Constable Chris Jones arrived almost at the same time as Officer Hall. He also confirmed that Mr. Willick was in pain. He was able to detect a strong odour of alcohol on his breath. Sergeant Yves Forget arrived at the scene at 2:15 a.m. just after Officers Hall and Jones. He detected an odour of alcohol but said it was coming from inside the vehicle.

[12] No evidence was called to confirm that Mr. Willick ever provided or attempted to provide a breathalyser test. Officer Hall indicated that she spoke to Dr. Bertrand at the hospital. As a result of her discussion with Dr. Bertrand, she thought that from a medical viewpoint Mr. Willick was able to provide a breath sample. It is to be noted, however, that Dr. Mantle, who was able to fully assess Mr. Willick's injuries at hospital over a several week period, confirmed that it would be entirely expected that because of Mr. Willick's extensive chest trauma, he would not have been able to generate enough air pressure on exhalation to provide a suitable sample.

[13] Although Mr. Willick is not facing drinking or driving related charges, it must be remembered that the Crown has highlighted the issue of his consumption of alcohol as one of the key factors in support of the argument that he was driving dangerously. In other words, according to the Crown, the fact that he consumed alcohol coupled with other factors including speed, night visibility, tiredness and the accident itself, demonstrates a marked departure from the norm in terms of Mr. Willick's driving.

[14] Mr. Willick testified on his own behalf. He medically suffers from non-alcoholic cirrhosis and for that reasons says he is not a heavy drinker and will, in social settings, avoid consuming more than three drinks. He arrived at Mr. Corey's residence at 7:30 p.m. He acknowledged consuming two beers and also eating a spaghetti dinner. After dinner and during and after the game he did his laundry. The game ended at between 11:00 and 11:30 p.m. Subsequent to the game he finished his laundry and left. Before leaving Mr. Corey's residence and at around 1:00 a.m., he put three bottles of beer in a small cloth bag and placed them under the Ford vehicle's seat. He said that he was bringing the three bottles of beer to the cottage for his son. There is no allegation that he consumed alcohol in the vehicle but it appears one or more of the bottles broke as a result of the accident. Defence counsel argued that this caused or at least contributed to the smell of alcohol inside the vehicle as testified to by Sergeant Yves Forget.

[15] Mr. Willick was on his way to the cottage where he was going to stay at Cutler Lake located about one hour and 10 minutes from Sudbury. He had travelled approximately 65 kilometres when the accident occurred. He estimated having been on the road for 30 to 40 minutes.

[16] Mr. Willick explained that following the accident, he had no immediate recollection of how it occurred. During his convalescence and within several weeks, his memory improved and he was able to reconstruct the circumstances of the accident in his mind.

[17] Mr. Willick testified that as he was entering the sweeping right hand curve, a vehicle which was travelling eastbound toward him crossed into his lane of travel. In order to avoid a collision, he steered his vehicle to the left and ended up crossing the Ella Road intersection and landing in the ditch.

3: The Law

[18] Section 249 of the Criminal Code makes it an offence to operate a motor vehicle in a manner that is dangerous. To determine if the driving is dangerous, the court must consider all of the circumstances including the nature, condition and use of the place at which the motor vehicle was operated and the amount of traffic that at the time was or might have reasonably been expected. It is unnecessary for the Crown to prove that the lives or safety of others were actually endangered. The offence is proved where the Crown establishes that the driving complained of was within the definition of the Code dangerous to the public.

[19] Counsel made reference to several decisions including the decision of R. v. Beatty, [2008] 1 S.C.R. 49, decided by the Supreme Court of Canada. In that case, the Supreme Court fully considered the requisite mens rea and actus reus as follows:

a) The Actus Reus

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place".

It should be noted that it is the manner in which the vehicle was operated that is in issue not the consequences of the driving. While the consequence may assist in assessing the risk involved, it does not answer the question of whether or not the vehicle was operated in a manner dangerous to the public.

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 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.

Subjective mens rea of intentionally creating a danger for other users of the highway will always constitute a marked departure from the standard expected of the reasonably prudent driver. Subjective mens rea, however, is not necessary. The objective test becomes modified as above noted by factoring in the reasonable person approach.

[20] The Crown made reference to the decision R. v. Settle, 2010 BCCA 426, 261 C.C.C. (3d) 45, decided by the British Columbia Court of Appeal in September 2010. In that case, the appellant court held that the trial judge did not err in considering the accused's consumption of alcohol in deciding if he was guilty of the offence of dangerous driving. The court held that the accused's actual state of mind was a relevant factor in determining whether the Crown had established the mens rea of the offence. It was proper for the court to consider the accused's consumption of alcohol coupled with his driving conduct and all other relevant circumstances in order to objectively determine whether there was a marked departure from the standard care of the reasonably prudent driver.

[21] The Crown also made reference to the decision of R. v. Richards, [2002] O.J. No. 1042, 169 O.A.C. 339, decided by the Ontario Court of Appeal in 2003. In that case, Mr. Richards had lost control of his vehicle causing it to leave the road, cross onto a grass medium dividing traffic lanes and hitting a concrete pillar. Two passengers in the vehicle driven by Mr. Richard died upon impact. Mr. Richards' vehicle was travelling at a minimum of 119 kilometres per hour in a 100 kilometre zone. The trial judge held that evidence of speed alone was not sufficient to sustain a conviction. The appeal was allowed and a new trial ordered. The Court of Appeal determined that the trial judge had erred in his determination that evidence of speed alone could not found a conviction. In essence, the court held that under certain circumstances, excessive speed alone may be sufficient to constitute dangerous driving. The court also held that the accused's actual rate of speed remained a live issue.

4: Analysis

[22] In Ms. Vincent's submission, Mr. Willick provided a viable and believable explanation of how the accident occurred. She emphasized that Mr. Willick should be regarded as a credible witness. During his testimony, he was not prone to exaggerating or embellishing his evidence. Further, the explanation he provided mostly coincides with the findings of the investigation.

[23] Ms. Vincent asked that court to accept that Mr. Willick did his best to avoid an accident. Essentially he saw the other vehicle come toward him in his lane of travel and reacted appropriately. He straightened or sufficiently turned the steering wheel of his vehicle to avoid a collision. This resulted in him losing control of his vehicle.

[24] In reference to the objective modified test and circumstances relevant thereto, defence counsel emphasized that Mr. Willick's physical slowness or demeanour is fully understandable. The fact that he was seriously injured is not in dispute. Although he was conscious and standing when approached by police, he was suffering from severe trauma and it is difficult if not impossible to attribute any of his symptoms to the consumption of alcohol.

[25] Defence counsel also emphasized that speed would not in and of itself in this case constitute dangerous driving. Moreover, although the accident happened at night, there is evidence that there was not a lot of traffic on the road.

[26] In defence counsel's argument, it cannot within the circumstances of this case be determined that Mr. Willick had the necessary intent or mens rea within the objective modified test.

[27] The Crown advanced an impressive argument based on what he described as "red flags". The Crown submitted that the court must consider the cumulative effect of a number of factors including the following:

• By his own admission, Mr. Willick had consumed alcohol;
• Mr. Willick was tired. He had only slept for about four hours;
• The odour of alcohol detected by police on Mr. Willick's breath was noted as being "strong". This militates against Mr. Willick's story about only having consumed two beers at an earlier time at or around supper time;
• Mr. Willick was driving at night time. Night time represents reduced visibility which in turn requires the exercise of more caution;
• Mr. Willick's speed was over the limit and determined at a minimum to be 108 kilometres per hour at the low end;
• Mr. Willick's explanation of having to avoid an accident does not coincide with Constable Brown's reply evidence. Constable Brown testified that had Mr. Willick turned his vehicle abruptly to change lanes, tire marks would be expected to be seen on the pavement because of his vehicle's sudden weight shift.

[28] In Mr. Kim's submission, the evidence when taken as a whole indeed shows a marked departure from the standard of care that a reasonable person would observe in Mr. Willick's circumstances.

5: Decision

[29] The court should first ask itself whether Mr. Willick committed the actus reus of the offence. The evidence clearly indicates that he was exceeding the posted speed limited of 90 kilometres per hour. Officer Brown's reconstruction report entered as exhibit 6 concludes Mr. Willick's vehicle to have been travelling at a speed of at least 108 kilometres per hour and possibly faster depending on certain variables affecting the calculation.

[30] Mr. Willick failed to negotiate a right hand curve and drove off the highway. Road and weather conditions were not a factor. It was night time. There was no artificial lighting although it was a moonlit night. Viewed objectively, Mr. Willick's failure to confine his vehicle to its own lane of travel was, in all of the circumstances, dangerous to other persons lawfully using the highway.

[31] The more difficult question is whether Mr. Willick had the necessary mens rea. There is no evidence that he deliberately created a danger for other users of the highway. The question of mens rea in this case turns on whether Mr. Willick's manner of driving, viewed on an objective basis, constitutes a marked departure from the norm.

[32] Mr. Willick testified that he suffers from cirrhosis of the liver not related to alcoholism and that he is not a heavy drinker. He admitted consuming two beers, namely Coors Light. He also ate a spaghetti dinner following which he did his laundry while at Mr. Corey's residence. Mr. Corey, although not entirely focused on Mr. Willick's drinking did say that he did not notice Mr. Willick drinking more than two beers.

[33] Two officers indicated that at the scene they detected a strong odour of alcohol coming from Mr. Willick's breath. A third officer detected an odour emanating from the vehicle. Each of the two officers who smelled alcohol from Mr. Willick's breath agreed it is not possible to determine how much alcohol a person has consumed or when the alcohol was consumed by smelling or detecting an odour of alcohol from a person's breath. In addition, there may have been a broken beer bottle in the cab of the vehicle also causing an odour of alcohol as detected by one of the officers.

[34] The evidence indicated that Mr. Willick only slept four hours after coming off a long and tough work shift. He did say that it is not unusual for him to function if tired, he often does it and has been doing it for years. The court has no way of measuring Mr. Willick's natural resistance or whether he is able to adequately function with a modest amount of sleep. In other words, a court cannot make assumptions specifically applicable to Mr. Willick on the issue of whether he was too tired to drive. People function at different energy levels and it may well be that the issue of tiredness in the circumstances of Mr. Willick's case represents nothing more than a moderate factor.

[35] Mr. Willick was speeding. He was driving at night time but it was a moonlit night and Officer Brown did not suggest that visibility was an issue. The court does accept, based on Officer Brown's report that Mr. Willick exceeded the speed limit by at least 18 kilometres per hour. There are, however, no indicators in the circumstances of this case that the excess speed was a factor negatively impacting on Mr. Willick's actual manner of driving before the accident. There is no evidence of previous erratic driving or bad driving outside the framework of the accident. The road was in good condition, the weather was favourable, the traffic was light, the accident occurred within a relatively short distance and short space of time.

[36] Mr. Willick provided an explanation for having left his lane of travel. As already indicated, within several weeks of having incurred serious injuries, Mr. Willick's memory, by his own account, improved. In his recollection he was faced with an emergency situation caused by a vehicle which had crossed over into his lane of travel. In order to avoid the collision, he had to take evasive action which ultimately resulted in him ending up in the ditch. The court is sceptical about Mr. Willick's delayed recollection but remains mindful that he spent two weeks in hospital where he received ongoing medical attention and was treated with narcotic pain medication. According to Dr. Mantle, he probably lost consciousness at the time of impact and suffered a mild concussion.

[37] Therefore, although Mr. Willick's testimony relating to delayed recollection may at first blush appear suspicious, the court must in assessing this evidence, measure it against the backdrop of the significant injuries Mr. Willick sustained as well as the absence of him ever having given a conflicting story.

[38] In looking at the totality of the evidence, especially Mr. Willick's demeanour, the court cannot discount the explanation he has advanced. The court remains mindful that Officer Brown testified that he would have expected tire markings on the roadway. The issue of possible tire markings on the roadway as a result of Mr. Willick taking evasive action would understandably depend on when and how abruptly Mr. Willick actually switched lanes. Officer Brown's report did not include an analysis on this topic. He was in his reply evidence, solely basing his opinion on Mr. Willick's general verbal description of what happened. Officer Brown did his best outside the ambit of a full analysis to indicate what he would have expected in terms of markings on the roadway. All he had to work with was Mr. Willick's broad description of how he took evasive action to avoid a collision. The court did not assume that Officer Brown was saying that it would not have been possible for Mr. Willick to have steered away from a potential collision without having left markings on the highway.

[39] In essence the court does not disbelieve Mr. Willick's explanation and based on all of the evidence, cannot conclude that a reasonably prudent driver would have assessed the risk differently or would have acted much differently in the circumstances. Expressed differently, the court is not persuaded that the evidence cannot support a conclusion other than the conclusion that the manner of Mr. Willick's driving was a marked departure from the standard of care of a reasonable driver in a similar situation. In the final analysis, the court cannot conclude that the impugned conduct giving rise the charge represents a marked departure from the norm.

[40] For there to be a conviction, it would be necessary to find that Mr. Willick's manner of driving and conduct constituted a marked departure from the norm. In the absence of such a finding, it cannot reasonably be inferred that Mr. Willick acted with the objective mens rea which is an essential element of the offence. Because the totality of the evidence does not support a finding that the mens rea of dangerous driving has been established, there cannot be a finding of guilty.

[41] Mr. Willick shall be found not guilty and the charged marked "dismissed".

Released: April 3, 2012

Signed: Justice Randall W. Lalande