WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court File and Parties

Court File No.: Central East - Newmarket 4911-998-12-05327-00

Date: 2013-04-19

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Andrew King

Before: Justice K.P. Wright

Heard on: March 18, 19, 20, 25, 26, 2013 and April 8, 2013

Reasons for Judgment released on: April 19, 2013

Counsel:

B. Juriansz, for the Crown

H. Bassi, for the accused A. King

WRIGHT J.:

[1] Charges and Incident

Andrew King is charged with the following offences: criminal negligence causing death, criminal negligence causing bodily harm, impaired driving cause death, impaired driving cause bodily harm, dangerous driving causing death, dangerous driving cause bodily harm, operating a motor vehicle while disqualified and failing to comply with a recognizance, contrary to the Criminal Code. All of these charges are alleged to have been committed on June 26, 2012, at approximately 4:45 p.m., when Mr. King made a left hand turn into the path of and colliding with an oncoming motorcycle, killing the driver and causing serious injury to the passenger.

[2] Election and Preliminary Inquiry

Mr. King elected a trial before a judge and jury and proceeded before this court with a preliminary inquiry which commenced on March 18, 2013.

[3] Defence Concessions

At the outset defence counsel made the following concessions for the limited purposes of the preliminary hearing:

• the date of the collision; June 26, 2012;
• the location of the collision; Park Road and Smith Boulevard in the Town of Georgina;
• the identity of Mr. King as the driver of the pickup truck;
• that the collision caused the death of James Kerswill;
• that the collision caused Judit Kapronczai injuries and that those injuries amount to bodily harm;
• the statement made by Mr. King to the police was voluntary;
• that the approved screening device was in proper working order; and
• the expertise of the forensic toxicologist, Robert Langille.

Position of the Parties

[4] Crown's Position

At the conclusion of the evidence, Crown counsel, Mr. Juriansz advised that he would not be seeking committal on the one count of drive disqualified, as no evidence was called in relation to it. Accordingly Mr. King will be discharged on count 8, driving while disqualified.

[5] Crown's Argument on Remaining Counts

On the remaining counts, Mr. Juriansz argued there is some evidence upon which a reasonable jury properly instructed could return a verdict of guilty and as such Mr. King should be committed to trial on them.

[6] Defence Concession on Recognizance Count

Mr. Bassi, on behalf of Mr. King, concedes committal on the one count of failing to comply with a recognizance. Accordingly Mr. King will be committed to trial on count 1, fail to comply with a recognizance.

[7] Defence Position on Serious Charges

However, he strenuously resists committal on the charges of criminal negligence and dangerous driving. He argues that there is insufficient evidence upon which a jury could conclude that Mr. King was criminally negligent or driving dangerously. Although he opposes committal on the impaired driving charges, he concedes that his argument on those counts is not as strong.

Overview of the Evidence

[8] Introduction

I will now give a brief overview of the evidence and further develop it when necessary in my analysis.

[9] The Collision Scene and Circumstances

The Crown led evidence that on June 26, 2012, at approximately 4:45 p.m., Mr. King was the sole occupant and driver of a Ford pickup truck that was travelling northbound on Park Road in the Town of Georgina.

[10] Weather and Road Conditions

The weather was warm and sunny and the roadway was dry and clear.

[11] Road Description

Park Road is a two lane paved roadway with a painted center line separating the southbound and northbound lanes. The roadway was in good condition.

[12] Vehicles Behind Mr. King

Three vehicles were travelling behind Mr. King's as he proceeded northbound on Park Road. All three testified that he was driving normally and within the speed limit.

[13] Approach to Intersection

As Mr. King approached the intersection of Park Road and Smith Boulevard he slowed his vehicle down to make a left turn onto Smith Boulevard. George Dyke testified that he was two cars behind Mr. King's and he recalls him bringing his vehicle to a complete stop. Megan Rogers, who was directly behind Mr. King's vehicle, does not know if Mr. King came to a complete stop, nor does Rose Charpentier, who was the third vehicle back.

[14] Turn Signal

None of these drivers could recall if Mr. King had his turn signal on, but all seemed to be aware that he was going to make a left hand turn.

[15] Megan Rogers' Observations

Megan Rogers testified that as she came up behind Mr. King's vehicle she could clearly see a motorcycle proceeding southbound on Park Road and she believed that it was travelling at a normal rate of speed. She said she thought Mr. King was going to wait for the motorcycle to pass by before making his left hand turn.

[16] Mr. King's Statement to Police

Mr. King in his statement to police says that he did not see the motorcycle approaching and that he was looking to his right, in the direction of a friend's residence, while he was making his left hand turn onto Smith Boulevard.

[17] The Collision

It was then that Mr. King's pickup truck collided with the motorcycle.

[18] Death of Motorcycle Driver

James Kerswill, the driver of the motorcycle, succumbed to his injuries at the scene of the collision.

[19] Injury to Passenger

Judit Kapronczai was the passenger on the motorcycle and was seriously injured as a result of the collision.

[20] Breath Sample Results

At 1804 hours Mr. King provided a sample of his breath, upon request, into an approved screening device and registered a warning. The warning means that Mr. King's blood alcohol concentration was between 50 – 99 milligrams of alcohol in 100 millilitres of blood.

[21] Absence of Visible Impairment

None of the witnesses, be it police or civilian, reported Mr. King demonstrating any outward signs of impairment.

[22] Mr. King's Admissions Regarding Alcohol

Mr. King admits in his statement to police that he had consumed one beer approximately one hour before driving his truck that day. He also acknowledges that at the time of this collision he was on a bail that disentitled him from driving a motor vehicle after consuming alcohol.

[23] Expert Evidence on Impairment

Dr. Langille was permitted to give evidence as an expert in the field of forensic toxicology. He testified that in his expert opinion an individual's ability to operate a motor vehicle would be impaired with a blood alcohol concentration of 50 milligrams of alcohol in 100 millilitres of blood. He explained that even in the absence of outward or obvious signs of impairment, the ability of an individual to divide their attention, judge speed and distance and asses risk becomes significantly impaired with a blood alcohol concentration of 50 milligrams of alcohol in 100 millilitres of blood and increases from there onward. He further explained that the more obvious signs of impairment like slurred speech and unsteadiness on ones feet are demonstrated only when the person is well past the point of being able to operate a motor vehicle.

The Legal Principles

The Test for Committal

[24] Standard for Committal

The combined effect of s. 548(1) of the Criminal Code and United States of America v. Sheppard, [1977] 2 S.C.R. 1067, requires a committal where there is any evidence upon which a reasonable jury, properly instructed, could convict. It is not a question of whether a properly instructed jury, acting reasonably, would infer guilt from the evidence adduced at a preliminary inquiry, only whether they could do so.

The Role of the Preliminary Inquiry Judge

[25] Direct vs. Circumstantial Evidence

The test is the same whether the evidence is direct or circumstantial. The nature of the task of the preliminary inquiry justice varies however, depending on whether the Crown's case is based entirely on direct evidence or whether the Crown's case relies on circumstantial evidence. Where there is direct evidence of all of the essential elements of the offence, the task of the preliminary hearing justice is straightforward; there must be a committal for trial. The task becomes more complicated when the Crown relies on circumstantial evidence: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21, paras. 22-23 (S.C.C.).

[26] Limited Weighing of Circumstantial Evidence

When the evidence is circumstantial, the test will involve a limited weighing of the evidence: R. v. Arcuri, supra; R. v. Charemski (1998), 123 C.C.C. (3d) 225 (S.C.C.). As a preliminary hearing judge, I must be satisfied that the evidence is rationally capable of supporting the inferences that the Crown seeks to have drawn from it. It is for the jury to determine whether or not to draw the inferences, provided that the preliminary hearing judge is satisfied that the inference is one that can be legitimately drawn: Charemski, supra, at para. 33.

[27] Reasonable Inferences vs. Speculation

I remind myself that there is a difference between drawing a reasonable inference from the evidence and conjecture or speculation. Inferences must be reasonable and logical, they must be grounded in and flow from the evidence: R. v. Munoz (2006), 205 C.C.C. (3d) 70 (Ont. S.C.J.). Inferences based on speculation or conjecture are impermissible and hold no legal value. I am mindful that even an educated guess, no matter how plausible or reasonable it may seem, amounts to nothing more than conjecture and has no place in this equation: U.S.A. v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont. C.A.) at 307; R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209; C.P.R. Co. v. Murray, [1932] S.C.R. 112 at 117; R. v. Osborne, [2007] O.J. No. 5255 at para.17.

[28] Rational Connection to Evidence

Although the inference does not have to be a compelling one, or easily drawn, it nonetheless must be rationally and logically connected to the evidence: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635; Charemski, supra, at para. 33.

[29] Competing Inferences

As the preliminary inquiry judge, I am not entitled to choose among competing inferences; such inferences must be resolved in favour of the Crown. See R. v. Coke, [1996] O.J. No. 808, paras. 10-11.

[30] Final Analysis

In the final analysis, as a preliminary inquiry judge, if I find there is sufficient evidence upon which a reasonable and properly instructed jury could convict, I must commit the accused to stand trial. Guilt or innocence is to be determined at trial: R. v. Sazant, supra, as per Major J. at paras. 14-16.

Analysis

Impaired Cause Death / Impaired Cause Bodily Harm

Counts 4 and 7

[31] Introduction

I will now turn to my analysis regarding the charges of impaired driving cause death and impaired driving cause bodily harm.

[32] Defence Argument

Mr. Bassi argues that the evidence offered by the forensic toxicologist amounts to nothing more than speculation and cannot support an inference that Mr. King was impaired by alcohol at the time of the collision.

[33] Court's Response

I disagree, and here is why.

[34] Expert Evidence and Impairment

Robert Langille offered an expert opinion based on years of scientific research and experience. His designation as an expert for the purposes of the preliminary hearing was not opposed by defence counsel. His expert opinion, in combination with Mr. King's admission of consumption, registering a warning on the approved screening device, and the left turn across a live lane of traffic while looking in the opposite direction, in my view amount to some evidence of impaired driving. Certainly enough to satisfy the test that a jury, properly instructed, could find Mr. King guilty of impaired driving cause death and bodily harm.

[35] Committal on Impaired Charges

Accordingly Mr. King will be committed for trial on impaired cause death and impaired cause bodily harm.

Dangerous Driving Cause Death / Dangerous Driving Cause Bodily Harm

Counts 2 and 5

[36] Introduction

I will now turn to my analysis regarding the charges of dangerous driving cause death and dangerous driving cause bodily harm.

[37] Legal Components of Dangerous Driving

There are two legal components attached to a charge of dangerous driving:

1. That the accused was driving in a manner dangerous to the public, having regard to all of the circumstances; and

2. That the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances.

[38] Manner of Driving vs. Consequences

I am mindful that it is not the consequences of the driving that are at issue in this analysis, but the manner in which the motor vehicle was operated. It is easy to be overwhelmed by the devastating consequences in this case. One person lost their life and another was seriously injured. Nonetheless, the distinction is an important one and cannot be overlooked: see R. v. Anderson, [1990] 1 S.C.R. 265; R. v. Beatty 2008 SCC 5, [2008] 1 S.C.R. 49.

[39] Relevant Evidence

In determining whether or not there is sufficient evidence to making a finding that Mr. King was driving dangerously I have considered all of the evidence, including the following:

• the weather on this day was not a factor; it was sunny and clear;
• the roadway was dry and paved;
• visibility was good;
• the vehicle behind Mr. King saw the oncoming motorcycle approaching;
• Mr. King's admission that he was looking in the opposite direction, at a friend's home, when he made his left hand turn across a live lane of traffic; and
• that Mr. King had a minimum blood alcohol concentration of 50 milligrams of alcohol in 100 millilitres of blood and that his ability to operate a motor vehicle would be impaired at that level.

[40] Actus Reus

Having regard to all of the circumstances of this case I agree with Crown Counsel that the risk attached to making a left hand turn across a live lane of traffic without looking provides ample evidence of the actus reus necessary to support a conviction of dangerous driving.

[41] Mens Rea – Marked Departure Standard

In order to fulfill the mens rea component there must be some evidence to support a finding that the degree of care exercised by Mr. King was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. The test is an objective one: see R. v. Hundal, [1993] 1 S.C.R. 867.

[42] Defence Argument on Momentary Lapse

Mr. Bassi argues that the facts of this case fall short of such an inference. He argues that Mr. King's admission that he was looking in the opposite direction for 30 seconds when he made the left hand turn amounts only to a momentary lapse of judgment that does not support a finding of a marked departure.

[43] Court's Analysis of Competing Inferences

The difficulty with Mr. Bassi's argument is it is only one of two possible inferences that can be drawn from the evidence. While it certainly may be possible to convince a jury that the 30 seconds that Mr. King looked away while making the left hand turn was only a momentary lapse in judgement, it is, however, an equally logical inference that it was not. I find that it is equally open for a jury to conclude, based on the totality of the circumstances, including that Mr. King recalled intentionally looking at his friend's home long enough to appreciate the garage doors were closed and to conclude that his friend was not home whilst making the left hand turn across a live lane of traffic, after consuming alcohol, to be sufficient evidence upon which a jury could objectively find that such conduct constitutes a marked departure from the standard expected from a reasonable prudent driver and that a reasonable person in similar circumstances would have been aware of the risk and danger involved.

[44] Role of Preliminary Inquiry Judge

As the preliminary inquiry judge it is not for me to choose between these two competing inferences.

[45] Committal on Dangerous Driving

Accordingly, I find that there is ample evidence upon which a jury properly instructed could find Mr. King guilty of both dangerous driving causing death and dangerous driving causing bodily harm. He will be committed on both counts.

Criminal Negligence Cause Death / Criminal Negligence Cause Bodily Harm

Counts 3 and 6

[46] Introduction

I will now turn to the charges of criminal negligence causing death and criminal negligence causing bodily harm.

[47] Definition of Criminal Negligence

Criminal negligence is defined as conduct that demonstrates a wanton or reckless disregard for the lives or safety of other persons: see R. v. Tutton, [1989] 1 S.C.R. 1392; R. v. Anderson, supra.

[48] Criminal Negligence in Driving Context

In the case of driving related charges, an accused may be convicted of criminal negligence upon proof that the driving amounted to a marked and substantial departure from the standard of care of a reasonable driver, in circumstances where the accused either recognized and ran an obvious and serious risk to the lives and safety of others or, alternatively, gave no thought to such a risk: R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.).

[49] Moral Blameworthiness

Criminal negligence constitutes a much higher degree of moral blameworthiness than the charge of dangerous driving: R. v. Anderson, supra.

[50] Relevant Evidence

In determining whether there is sufficient evidence to commit Mr. King to trial on these charges I take into account all of the evidence, including the following:

• the weather on this day was not a factor; it was sunny and clear;
• the roadway was dry and paved;
• visibility was good;
• the vehicle behind Mr. King saw the oncoming motorcycle approaching;
• that Mr. King made a left hand turn across a live lane of traffic while looking in the opposite direction;
• that prior to driving Mr. King had, by his own admission, consumed alcohol;
• that Mr. King, by his own admission, was aware that he was not entitled to consume alcohol and operate a motor vehicle by virtue of a recognizance that he was bound by;
• that Mr. King's blood alcohol concentration at the time of the collision was between 50 – 99 milligrams of alcohol in 100 millilitres of blood;
• that an individual's ability to operate a motor vehicle is impaired with a blood alcohol concentration of 50 milligrams of alcohol in 100 millilitres of blood or more; and
• that Mr. King admitted that he was looking over at his friend's residence to determine if the friend was at home while making the left hand turn.

[51] Manifestly Dangerous Act

On the basis of this evidence, I find that it is open for a jury to conclude that making a left hand turn across a live lane of traffic, without looking, as Mr. King did on this occasion, is a manifestly dangerous act where the risk of immediate and substantial harm is reasonably foreseeable.

[52] Elevated Risk from Impairment

It is further open to a jury to find that the risk in this case was elevated by Mr. King's blood alcohol concentration which, if one accepts the opinion of the forensic toxicologist, rendered his ability to operate a motor vehicle impaired.

[53] Violation of Bail Conditions

The fact that Mr. King was bound by a recognizance that prohibited him from consuming alcohol and driving a motor vehicle, and that he blatantly disregarded that term, exacerbates the element of risk that a jury could attach to this case.

[54] Rejection of Momentary Lapse Argument

For reasons stated earlier, I do not accept Mr. Bassi's argument that the only logical inference supported by the evidence is that of a momentary lapse in judgment by Mr. King when he looked away as he was making the left hand turn.

[55] Quality and Circumstances of Conduct

Mr. King admits that he purposely looked to his friend's house and did so long enough to observe that the garage doors were closed and conclude that his friend was not home and that all of this took approximately 30 seconds. Under these circumstances I agree with Crown counsel that it is not so much a matter of timing as it is the quality and circumstances surrounding that decision that are in issue.

[56] Wanton or Reckless Disregard

On the basis of the evidence presented, and the logical inferences that flow from them, I find that there is some evidence upon which a jury, properly instructed, could find that Mr. King, by driving after consuming alcohol while prohibited, at a level that impaired his ability to operate a motor vehicle, and making the left hand turn across a live lane of traffic while looking in the opposite direction, was not only a marked and substantial departure from the norm, but also demonstrated a pattern of conduct amounting to a blatant and reckless disregard for the lives and safety of other motorist using the roadway on this occasion.

[57] Committal on Criminal Negligence

As such I find the Crown has met its onus, and Mr. King will be committed to trial on criminal negligence causing death and criminal negligence causing bodily harm.

Released: April 19, 2013

Signed: "Justice K.P. Wright"