Court File and Parties

Court File No.: 100963 Date: June 20, 2012 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jeffrey Davis

Before: Justice D. DiGiuseppe

Heard: June 28, 2011

Oral Reasons for Judgment: Released August 24, 2011

Written Reasons for Judgment: Released June 20, 2012

Counsel:

• Gordon Fillmore, for the Crown
• Gilbert Labine, for the accused Jeffrey Davis

DIGIUSEPPE J.:

A. OVERVIEW

[1] Jeffrey Davis is charged with operating a motor vehicle with a blood alcohol concentration in excess of the legal limit. The trial was conducted on June 28th, 2011. Written argument was filed and the matter adjourned to today's date for judgment.

B. THE EVIDENCE

[2] The Crown's case was read into the record by agreed statement of facts. At 12:59 a.m. on January 29th, 2010, Constable Gajda of the Ontario Provincial Police pulled over a vehicle driven by Mr. Davis at the intersection of John Street and Thunder Bay Expressway for a traffic violation. Mr. Davis had turned left across the expressway, onto John Street on a red light. Mr. Davis explained to the officer that he was in a hurry following an ambulance to see his wife at the hospital. Constable Gajda noted a strong odour of alcohol on Mr. Davis's breath and a flushed face. Mr. Davis said he had been drinking alcohol.

[3] Mr. Davis complied with a demand to provide a breath sample into an approved screening device; he registered a fail. He was arrested at 1:18 a.m. and read his rights to counsel, cautioned and given a breath demand. He was escorted to the police station where he provided samples of his breath into an approved instrument, operated by a qualified technician. The readings were, at 2:21 a.m., 119 milligrams of alcohol in 100 millilitres of blood, and at 2:43 a.m., 120 milligrams of alcohol in 100 millilitres of blood. Mr. Davis was cooperative with police. He was then driven by police to the Thunder Bay Health Sciences Centre where his wife had been taken by ambulance, suffering a leg injury.

[4] Mr. Davis testified. He is 64 years of age and a retired broadcaster. On the date in question, he and his wife, Sandra Pehkonen, were at their home on Copenhagen Road, on the outskirts of the city of Thunder Bay. They had supper and had retired for the evening.

[5] Mr. Davis had consumed four glasses of rye with his meal. He did not intend to leave his residence or drive that evening. Mr. Davis and his wife reside in a rural area of Thunder Bay. They are isolated and the neighbours are widespread; they are perhaps a two to five minute car ride away.

[6] Shortly after midnight, Ms. Pehkonen suffered a fall and injured her leg. She was in considerable pain and quite distraught. Mr. Davis called an ambulance. It arrived within one half hour. The attendants took Ms. Pehkonen out of the house on a stretcher, loaded her into the ambulance and left for the hospital. Mr. Davis followed the ambulance in his own vehicle. The Thunder Bay Regional Health Sciences Centre, where Ms. Pehkonen was being transported, is approximately 10 miles from Mr. Davis's residence, or 20 minutes by car.

[7] Ms. Pehkonen also testified. She says she was in extreme pain after the fall, and may have lost consciousness en route to the hospital. She recalls awakening in the hospital bed. She was too upset, she says, to give instructions about her healthcare. She eventually had surgery sometime later to repair the fracture.

[8] Mr. Davis testified that he believed he had no alternative but to follow the ambulance in his own vehicle. Calling a cab would have taken an additional 20 minutes for the cab to arrive at his residence. The ambulance attendants did not offer him a ride in the ambulance, nor did he ask for one. He does not believe his neighbours could have assisted. He knows the neighbours by their names on their mailboxes. He did not know their phone numbers and did not think to check the phonebook.

[9] Mr. Davis' son lives on Riverdale Road, on the other side of the city. In cross-examination, Mr. Davis believed it would have taken his son longer to get to him than the cab. He agreed that his son was a 20 minute drive from the hospital and could have met the ambulance there, but he was not familiar with his wife's health care needs. Mr. Davis believed he needed to be at the hospital to help with her admittance and answer questions, particularly with respect to her medications. He was unsure if his wife would have been able to respond to these questions and provide the necessary information.

C. THE LAW

[10] The only issue before this court is whether the defence of necessity applies. The common-law defence of necessity is preserved by Section 8(3) of The Criminal Code. The Supreme Court of Canada addressed this defence in the case of Regina v. Perka, [1984] 14 C.C.C. 3rd 385. Both counsel, in very complete and helpful written submissions, set out the legal test with respect to the defence of necessity, as set out in Perka, and affirmed by the Supreme Court of Canada in Regina v. Latimer, 2001 SCC 1, [2001] 1 SCR 3.

[11] Simply stated, there are three elements to the defence:

1. there must be a requirement of imminent peril or danger; the harm must be unavoidable and near;

2. the accused must have no reasonable alternative to the course of action he undertook; this requires a realistic appreciation of the alternatives available; and

3. there must be proportionality between the harm inflicted and the harm avoided.

[12] The appropriate test for the first two requirements, namely, imminent peril and no reasonable alternative is a modified objective standard, which takes into account the situation and circumstances of the accused. The appropriate test in considering the proportionality requirement is an objective standard.

[13] The burden rests with the Crown to establish a voluntary act, in this case, the driving, beyond a reasonable doubt. Normally, voluntariness is presumed. However, if there is an air of reality to the defence of necessity, whether raised by the defence evidence or in cross-examination of Crown witnesses, the onus is on the Crown to meet that evidence beyond a reasonable doubt.

D. ANALYSIS

[14] The first requirement is that there be imminent peril. In this case, Ms. Pehkonen suffered a serious leg injury. She was in excruciating pain. Mr. Davis called an ambulance. Trained paramedics responded, took charge of Ms. Pehkonen's care and transported her to the hospital. Mr. Davis was still concerned for his wife's well-being, and understandably so. There was however, nothing he could do to contribute to her immediate care. He testified that he wished to go to the hospital as soon as possible to be able to assist his wife during the admissions procedure and to answer any questions the attending physician might have. In my view, while this was important, it does not rise to the level of imminent peril or danger, especially since the trained medical professionals now had charge of Ms. Pehkonen's care. It might be viewed differently if Mr. Davis could not contact an ambulance and was compelled to take her to the hospital himself. On a modified objective standard, given Mr. Davis's concerns at the time, once the paramedics were involved, the situation was no longer one of imminent peril or danger, albeit still quite serious.

[15] The second requirement is that Mr. Davis had no reasonable alternative but to drive to the hospital himself. He believed his presence there was necessary to assist his wife in communicating with her care providers. There were a number of options or alternatives available to Mr. Davis.

1. He could have ridden in the ambulance, or at least asked to do so.

2. He could have called a taxi, but that would have taken him an additional 20 minutes, 20 minutes Mr. Davis was not prepared to wait, given the circumstances.

3. He could have sought the help of a neighbour, although he was not familiar with his neighbours and they were not reasonably nearby. He did not have their telephone numbers, and chose not to, or did not consider looking up their telephone numbers in the telephone directory.

4. He could have called his son and asked that he pick him up, or go to the hospital himself. Mr. Davis' son lives on the other side of the city, approximately 20 minutes from the hospital.

5. Even if some of these alternatives would take more time than Mr. Davis was willing to wait, he could have telephoned the hospital or his son to advise of any concerns, particularly with respect to medications, or left this information with the paramedics and then travelled to the hospital by taxi or with his son.

[16] The defence argues that there were no reasonable legal alternatives available to Mr. Davis. At page three of their submissions:

"Mr. Davis was faced with his wife's significant injury, the fear that she would be experiencing, and all of the unknowns that accompany such an injury, such as how serious it is, whether she suffered injuries in addition to the broken leg, whether surgery would be required, whether she would lose consciousness, whether the doctors would need background information or consent to proceed. In those circumstances, acting on his natural instincts to protect his wife, Mr. Davis did not have the luxury of time or reflection, and it was reasonable for him to determine, in the moment, that following her in his car was the only reasonable choice at the time."

[17] Implicit in these submissions is that Mr. Davis acted on instinct and did not even consider reasonable alternatives. That aside, the defence submits that on a modified objective test, given all that was happening at the time, Mr. Davis had no reasonable legal alternative. The defence relies on the case of Regina v. Trencs, [2011] OJ 224. This was an appeal from an acquittal at trial. In that case, the accused was disqualified from operating a motor vehicle. He and his elderly father, who was in poor health, were at a mall and it appeared to the accused that his father was having a seizure. He drove him to the hospital. In that case, Justice Gray of the Ontario Superior Court decided as follows, at paragraph 22 and 23:

"In assessing whether there were reasonable alternatives available to the accused, it will be necessary to have regard for the particular situation in which the accused found himself. In this particular situation, Mr. Trencs was confronted with what he regarded as a medical emergency on the part of his 85 year old father, and in his judgment, it was necessary to get him to the hospital as quickly as possible. To do that, he had to drive the car. Other possibilities, such as seeking assistance from other people in the mall, or using a cell phone, perhaps to call 9-1-1, were not considered reasonable by the trial judge, having regard to the particular circumstances. I do not disagree. Either alternative would have meant further delay, and Mr. Trencs would have been required to deal with lay-persons, who would not have had an immediate grasp of the medical problem or what was required. While it is easy to second-guess Mr. Trencs's actions with the luxury of time and reflection, it is impossible in my view to conclude that he was wrong in taking the action that he did at the time."

[18] Trencs is clearly distinguishable from the case before me. In Trencs, there were no medical personnel available at the time, and trying to call someone would have caused further delay, unacceptable in those circumstances given Mr. Trencs's father's advanced age, his medical conditions (he suffered from Alzheimer's and Parkinson's) and the nature of the emergency (it was apparent that he was having a seizure). In this case, Ms. Pehkonen was in the care of paramedics and was being transported to hospital. There was nothing further Mr. Davis could have done at that time. Notwithstanding his compassion and concern for his wife's health, in these circumstances, Mr. Davis ought to have considered other alternatives, all of which were reasonable in the circumstances.

[19] The third requirement is that the harm inflicted (driving with the blood alcohol concentration over the legal limit) must not be greater than the harm avoided (attending at the hospital quickly to assist his wife).

[20] There is a significant public interest in preventing drinking and driving. The risks associated with drinking and driving are very real. There are countless examples of the tragedies that have occurred throughout this country when people drink and drive. As Crown counsel put in his submissions, when a driver begins to drive under the influence of alcohol, one cannot know whether the trip will end in property damage, bodily harm or death. The risk is real and significant. In this case, Mr. Davis acknowledged that he did not intend to drive that evening. When he did drive, he made a left hand turn on a red light, thankfully without tragic consequences. His blood alcohol concentration at the time of driving was one and one-half times the legal limit, not insignificant.

[21] I agree with Crown counsel that when considering the proportionality requirement, using an objective standard, the harm and risk of harm associated with drinking and driving outweigh the potential harm to Ms. Pehkonen; a harm that was no longer imminent, was being addressed by medical professionals, and could have been addressed by Mr. Davis using other legal, reasonable alternatives.

[22] I conclude that there is no air of reality to the defence of necessity and the Crown has met its evidentiary burden of establishing a voluntary act, beyond a reasonable doubt.

[23] There will be a finding of guilt.

Released: June 20, 2012

Signed: "Justice D. DiGiuseppe"