Court File and Parties

Ontario Court of Justice

Date: October 22, 2013

Court File No.: Halton 1943/13

Between:

Her Majesty the Queen

— and —

Toby Clarke

Before: Justice F.L. Forsyth

Heard: October 7, 2013

Reasons for Judgment Released: October 22, 2013

Counsel:

• Harutyun Apel, Counsel for the Crown
• Julia De Filippis, Counsel for the Defendant Toby Clarke

FORSYTH J.:

Charges and Procedural Background

[1] Toby Clarke was charged with one count contrary to s. 249(1)(a) of the Criminal Code and four or five counts of breaching probation orders contrary to s. 733.1 of the Criminal Code arising out of an incident on July 1, 2013. The Crown proceeded on only three of the 733.1 counts. The Crown elected to proceed summarily on all counts and Mr. Clarke had a trial on the dangerous driving charge only because it was understood that the breach of probation charges were for allegedly breaching the condition of keeping the peace and being of good behaviour of which he would only be guilty if the Court finds Mr. Clarke guilty of the dangerous driving. Mr. Clarke retained Ms. De Filippis for his trial and the Crown was represented by Harutyun Apel.

Crown's Evidence

Police Constable Alex Soucie's Testimony

[2] The Crown called P.C. Alex Soucie as his first witness. P.C. Soucie testified in Chief, after his notes were qualified and he was allowed to refresh his memory from them, that he is a member of the Ontario Provincial Police and has been an officer since August of 2011. On July 1st, 2013 he was operating a marked OPP Tahoe cruiser on highway patrol. At 1:28 p.m. while he was driving northbound on the Queen Elizabeth Highway on the Skyway Bridge in Burlington he made observations of a light silver-coloured vehicle that was driving in lane number three. He described the highway at that point as having four lanes of travel with a 100 kilometre per hour speed limit. Lane number one is designed in OPP terms as the passing lane and two, three and four would be the lanes immediately to the right of traffic travelling in that direction. The officer said that he was travelling at approximately 102 kilometres per hour and it was Canada Day, being July 1. Therefore, he said, the traffic on the bridge was busy.

[3] He said that he observed this silver vehicle passing other traffic driving northbound on the bridge at approximately 130 kilometres an hour. The officer was quick to admit that the 130 was simply his own estimate at a time when he was doing about 110 kilometres per hour and began to make an attempt to catch this vehicle by pursuing it.

[4] He further testified that he attempted to catch the vehicle and, while doing so, he observed it to make several "aggressive" lane changes. He explained that by aggressive he meant a darting sort of motion of the vehicle across lanes with no directional signal illuminated. He said that the vehicle moved from lane number three to lane number one in that fashion and back and forth repeating the same type of behaviour. He said that this driving pattern caused other northbound vehicles to brake heavily and that he himself had to do so on one occasion because of all of the other vehicles braking. He also testified that some vehicles actually "swerved" in order to avoid striking the silver vehicle as it crossed the lanes. There is no issue in this trial that the silver vehicle was being driven by the accused, Toby Clarke.

[5] P.C. Soucie then said that the accused crested the Skyway Bridge and began to descend the other side and exhibited the same type of behaviour of quick darting lane changes moving from lane number three to lane number one and back and forth on three or four separate occasions over a distance of approximately three to three-and-a-half kilometres.

[6] When the accused's vehicle reached the bottom of the Skyway Bridge with the officer in close pursuit, P.C. Soucie said that he was able to get the rear licence plate number and he provided it to his dispatch supervisor who then dispatched back-up cruisers to assist him in this pursuit. After the accused's vehicle had reached the bottom of the bridge he said that it was in lane number two and it was slowing down to about 80 kilometres per hour which also was the approximate speed of the flow of traffic at that point.

[7] P.C. Soucie followed the accused to the point where he exited the QEW at the Highway 407 exit and followed the vehicle eastbound while he waited to detect signs of the back-up cruisers arriving. He said that eventually the back-up cruisers arrived and by this time, including his own cruiser, there were five OPP cruisers engaged in this traffic stop. Therefore, they were able to box in the accused's vehicle and the accused, of course, stopped. When P.C. Soucie approached the vehicle, the driver was the accused before the court.

Cross-Examination of P.C. Soucie

[8] In cross-examination the officer agreed with the suggestion of Ms. De Filippis that the traffic on the bridge throughout his path of travel following the accused's vehicle indeed was quite congested. He also quickly agreed that his estimate of 130 kilometres per hour as the speed of the accused's vehicle when he first tried to catch up to the accused was just a gross estimate. He said that most of the other traffic was travelling at approximately 110 kilometres an hour.

[9] Ms. De Filippis asked him how any driver could make a lane change under those congested traffic conditions. The officer said that it was possible because the congestion was in "groupings". In other words, there would be a group of vehicles close together travelling and then there would be enough space between that group and the next group so that a lane change could be made.

[10] He agreed with Ms. De Filippis' suggestion that he had not noted in exact words all of his observations to which he had testified in Chief. For example, he had not made a specific note that the accused had changed his lanes three or four times back and forth as he had described in his evidence. He also agreed that the term "swerving" was not in his notes with respect to the evidence that he had given about other traffic having to swerve to avoid the accused's vehicle as it crossed lanes. However, he insisted that he had no difficulty remembering that particular observation and he pointed out that he uses his notes more to refresh his memory as opposed to dictate to his memory.

[11] Ms. De Filippis asked the officer if he would agree that under normal driving conditions any driver might touch his brake in a reflexive fashion as another vehicle happened to be crossing lanes in front of him. It seemed to the Court that Ms. De Filippis was asking the officer if this could happen even without unsafe or inconsiderate maneuvers being made by the vehicle that was changing lanes in front of that driver. Given that hypothetical question, P.C. Soucie agreed that it was possible that any driver might do that under those circumstances, but he again emphasized that he had observed vehicles braking heavily as if they were worried about avoiding collision with the accused's vehicle as it made its quick darting maneuvers.

[12] He agreed with the suggestion that the accused and he had made eye contact when the accused slowed his vehicle down to approximately 80 kilometres per hour at the bottom of the bridge as the officer caught up to him.

Re-Examination of P.C. Soucie

[13] In re-examination he said that he had created the synopsis for the Crown brief, as well as his own notes in his notebook. The Crown then referred him to his notes and his synopsis and actually read portions from both of those documents to the officer and asked him if he agreed that he had drafted those comments. Having listened to the contents of his synopsis and also his notes, I am satisfied that the officer provided details in one or the other of those documents that I would conclude were tantamount to those details that he provided in his trial evidence even if not absolutely identical, as Ms. De Filippis had demonstrated.

[14] At the conclusion of this re-examination Mr. Apel closed the case for the Crown and Ms. De Filippis indicated that she was calling the accused as the only witness in the case for the defence.

Defence Evidence

Toby Clarke's Testimony

[15] Toby Clarke testified in Chief and immediately admitted that he has a significant criminal record. That record was filed as Exhibit Number 1. It contains 7 separate disposition dates on multiple offences as a youth under the YCJA between 2006 and 2013 with the most serious offences being robbery. He has also been convicted on 3 separate occasions between 2010 and 2012 as an adult and was on probation for some of those offences on July 1 2013. There are no convictions for dangerous driving.

[16] Mr. Clarke testified that the traffic on the Skyway Bridge was indeed very heavy on Canada Day and that most of the vehicles were not able to even attain the speed limit of 100 kilometres per hour. He said that he was driving friends home to the Brampton area and he estimated that he was doing about 80 to 90 kilometres per hour on the bridge.

[17] Of importance to this Court's analysis, Mr. Clarke totally and categorically denied switching lanes at all on the Skyway Bridge portion of the QEW as the officer has testified. In other words, he not only denied switching lanes in any sort of aggressive or quick darting fashion, but he actually denied making any lane changes whatsoever until he moved over to access Highway 407 and enter that highway.

[18] Mr. Clarke pointed out that the officer had not given any evidence of other vehicles honking at his vehicle while he allegedly made the lane changes that had been testified about by P.C. Soucie. He asked the Court to find that that should have happened if indeed he was driving in the manner described by the officer.

[19] He concluded by simply saying that, as far as he was concerned, he was not driving in a manner dangerous to the public and was simply proceeding at the approximate speed of all of the rest of the traffic while driving over the Skyway Bridge and up to the exit to Highway 407.

Cross-Examination of Toby Clarke

[20] In cross-examination the Crown asked him if his passengers were present in order to testify on this trial. Mr. Clarke said that none of the passengers were present due to requirements to be at work and also, with respect to one of them, he said that he had some kind of outstanding criminal charges and Mr. Clarke did not feel that that person's evidence would seem credible to the Court given the fact that he had these other charges.

[21] Again, he simply confirmed for Mr. Apel that he absolutely categorically denies any of the lane changes or the manner of lane changes that were described in the evidence of P.C. Soucie in the case for the Crown.

[22] Ms. De Filippis closed the case for the defence after the evidence of Mr. Clarke.

Position of the Defence

[23] Ms. De Filippis reminds the Court to apply the principles of R. v. W.D., the well-known decision of the Supreme Court of Canada that has instructed trial judges for more than 20 years about the proper approach to the assessment of evidence where the accused and witnesses for the Crown may be in conflict. When the Court engages in that analysis, Ms. De Filippis urges the Court to be circumspect about the fact that P.C. Soucie did not include the specific words in his notes or in his will-say statement about some of the traffic having to "swerve" to avoid colliding with the accused's vehicle and also the fact that the specific number of times that the accused had made the lane changes alleged by the officer were not noted in the same manner in which he had testified in Chief. Ms. De Filippis submits that the Court should accept Mr. Clarke's evidence of denial of P.C. Soucie's testamentary observations of his driving. Of course if the Court accepts Mr. Clarke's evidence, then the Court would obviously find him not guilty of dangerous driving.

[24] From a legal analysis standpoint, Ms. De Filippis submits that the Court should not find Mr. Clarke guilty of dangerous driving beyond a reasonable doubt if the only evidence supporting the case for the Crown is excessive speed. Ms. De Filippis makes this argument even considering the particular circumstances of the traffic that both the accused and the officer agree was heavy on the Skyway Bridge on July 1st of 2013.

[25] In support of her argument, Ms. De Filippis supplied the Court with a number of precedents. One of them was the case of R. v. Hill, a decision of the British Columbia Provincial Court in 1999 cited as [1999] B.C.J. No. 933. In that case, the learned Provincial Court Judge de Villiers was dealing with a fact situation where Mr. Hill had been observed by the investigating officer driving his motor vehicle at 140 kilometres an hour in a 90 kilometre zone. The officer followed Hill and testified that he continued at the same speed in a 70 kilometre zone later. He was described as dangerously passing a truck that had just turned onto the same street. The officer stopped and arrested Mr. Hill at Mr. Hill's father's mill which, it turned out, was on fire at the time. Mr. Hill told the officer that he was speeding in order to get to his father's mill as quickly as possible because of the fire. He claimed that he did not stop at first for the officer because he thought that the officer's vehicle was also responding to the fire.

[26] Mr. Justice de Villiers acquitted Mr. Hill, finding that he was travelling at a speed in which he would safely travel given the circumstances at the time, and emphasized that he had been able to keep control of his vehicle and also that he was travelling over a familiar route. The learned Justice also noted that the officer had been able to drive at the same speed in pursuing Hill and did not have any incident with other traffic. However, Justice de Villiers also found specifically that Mr. Hill had established the defence of necessity under the facts that he accepted.

[27] At para. 13 of the Hill case, Mr. Justice de Villiers specifically found that, apart from the incident relating to passing the truck, there was no evidence that Mr. Hill had ever endangered any other user of the road at that time or that he at any time had lost control of his vehicle.

[28] At para. 30 Mr. Justice de Villiers stated:

The mere fact that a driver drives at an illegal speed is not enough to prove that his driving was dangerous: In R. v. Quesnel, [1996] B.C.J. No. 1137, B.C.C.A., Mr. Justice Hollinrake said:

"While evidence of speed standing by itself will not necessary [sic] lead to a finding of dangerous driving it may well do [sic] where as here the surrounding circumstances add a component to that speed that brings the driving up to the criminal level of dangerous driving. Here those surrounding circumstances are the fact that this vehicle was not one owned and ordinarily driven by the appellant, the speedometer was not working at the time, it was a very black evening with no artificial lighting whatever, and the appellant was unfamiliar with the highway itself.

[29] At para. 32 he stated:

I find that the Defendant drove in a manner that was negligent, but I am not convinced beyond a reasonable doubt that, in the circumstances, his driving constituted such a marked departure from the norm as to have reached the criminal standard of being dangerous to the public in the circumstances that prevailed at the time.

[30] Another decision referred to by Ms. De Filippis was R. v. Krochek. This was a judgment of Mr. Justice Day of the Ontario Superior Court of Justice in 2002 cited as [2002] O.J. No. 1800. The headnote of that decision indicates that the facts that were being considered by Mr. Justice Day on a summary conviction appeal were that the trial judge had found Mr. Krochek guilty on evidence that he had been driving at 2:30 a.m. on an expressway passing other vehicles without signalling and reaching speeds of more than 160 kilometres per hour. The trial judge found that these actions alone were a marked departure from the standard of care required of drivers and constituted the criminal offence of dangerous driving. Mr. Justice Day found that the context of circumstances surrounding the speed of the accused were insufficient to support the conviction.

[31] Mr. Justice Day stated at para. 15:

As noted above the trial judge found that "Speed is not only relative, it is absolute". This pre-empts the notion of a marked departure from the standard of care that a reasonable person would observe in the accused's situation, as this statement in the trial judge's findings disallows comparatives.

[32] He also stated at paras. 21 and 22:

21 In the case at bar, there are no such contextual elements. The only suggested context was the braking of other drivers, either to accommodate the accused's passing or in response to the police vehicle's flashing lights or both. The trial judge's decision is based entirely upon his finding that speed, in and of itself, can sustain a dangerous driving conviction. Such a finding is only supportable within a sufficiently defined context, such as that in R. v. M. (M.K.).

22 Furthermore, the trial judge found that speed is not relative. Rather, speed is an absolute. He found that driving at 150 kms. per hour on a highway with other cars is a marked departure from the standard of care required, regardless of the number of people who may do so. Again, the trial judge falls back to his finding that excessive speed, on its own, can sustain a dangerous driving conviction. The case law in this area does not support such reasoning.

[33] I must note that I am not being asked by Mr. Apel for the Crown to find that the estimated speed at which Mr. Clarke was travelling on the Queen Elizabeth Highway and Skyway Bridge under the prevailing circumstances at the time would be sufficient in and of itself to substantiate a case for the Crown on this charge of dangerous driving.

[34] In any event, in conclusion, Ms. De Filippis asks this Court to find that I should have a reasonable doubt that the Crown has satisfied the standard of proof required by the Supreme Court of Canada decisions of R. v. Hundal and R. v. Beatty. Therefore, she submits that the Court should find that the Crown has not proven this charge beyond a reasonable doubt and Mr. Clarke should be found not guilty.

Position of the Crown

[35] First of all, of course, Mr. Apel submits that there is no evidentiary foundation upon which the Court could be justified in rejecting all of the evidence of P.C. Soucie with respect to his observations of the driving of Mr. Clarke that constitute this charge of dangerous driving simply because he did not include either in his notes or in his will-say statement identical words to describe the driving pattern of the accused that he used in his trial testimony. Mr. Apel submits that the cumulative context of his observations which he recorded in his notes and in its will-say statement as read to him in re-examination by the Crown should allow the Court to find that his evidence was both credible and reliable.

[36] On the other hand, Mr. Apel submits that the accused's outright and categorical denial of making any lane changes whatsoever, even absent the issue of whether or not such lane changes were made dangerously under the circumstances, should not be considered to be reliable evidence by the Court, at least not to the extent of allowing the Court to find that the evidence of the accused is capable of raising a reasonable doubt in the context of the totality of the evidence which includes the evidence of P.C. Soucie.

[37] Therefore, Mr. Apel asks this Court to accept from a factual standpoint the evidence of P.C. Soucie and, if so, then Mr. Apel submits that the driving pattern of Mr. Clarke on the Skyway Bridge meets the standard of proof required of the Crown by the Supreme Court of Canada as clearly enunciated in R. v. Hundal, supra, and R. v. Beatty, supra. He submits that the Court should find that the Crown evidence has met the modified objective test which was prescribed by the Supreme Court of Canada in R. v. Beatty, supra. Mr. Apel, therefore, submits that the Court should find that the Crown has proven this charge by establishing beyond a reasonable doubt that the accused's driving at that time constituted a marked departure from the norm and the accused should be found guilty as charged.

Analysis

The Factual Foundation

[38] After a careful analysis in accordance with the principles of R. v. W.D., supra, I find that the accused's evidence, in the context of the totality of the evidence, which of course includes the evidence of P.C. Soucie, is simply not capable of belief by this Court. In arriving at that conclusion, I have agreed with the Crown's argument that P.C. Soucie's evidence should not be considered to be unreliable simply because he did not use the same precise language with respect to his description of various driving maneuvres of the accused in either his notes or his will-say statement as he did in his trial testimony. Having drawn that conclusion and feeling comfortable in accepting the officer's evidentiary observations of the accused's driving pattern, in order to accept the accused's evidence I would have to reject in its entirety all of the evidentiary observations of the officer about the pattern of the accused's driving other than the one area where they both agree that the traffic was congested and heavy on the Skyway Bridge. I am not prepared to do so.

[39] Having considered the second arm of W.D., I also find that the accused's evidence on a factual basis, which I have now rejected, is incapable of raising a reasonable doubt with respect to the finding of the Court of the manner in which he was driving his vehicle on the Skyway Bridge.

[40] With respect to the third arm of the W.D. analysis, I have carefully examined the evidence, as I have previously indicated, of P.C. Soucie in the context of the totality of the evidence, and I do not find that it has any inherent problems or inconsistencies that would cause me to find that I would have a reasonable doubt on a factual basis of just exactly how Mr. Clarke drove his vehicle on the Skyway Bridge.

The Legal Test

[41] Having thus found that I accept the evidence of P.C. Soucie with respect to the pattern of the accused's driving, in particular on the Skyway Bridge, I have applied the principles enunciated by the Supreme Court of Canada with respect to the standard of proof required for a charge of dangerous driving in R. v. Hundal, supra, and R. v. Beatty, supra.

[42] Section 249(1)(a) reads:

Every one commits an offence who operates (a) a motor vehicle in a manner that is 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.

[43] At para. 33 of Beatty, Madam Justice Charron stated:

The Court in Hundal, however, made it clear that the requisite mens rea may only be found when there is a "marked departure" from the standard of care expected of a reasonable person in the circumstances of the accused. This modification to the usual civil test for negligence is mandated by the criminal setting. It is only when there is a "marked departure" that the conduct demonstrates sufficient blameworthiness to support a finding of penal liability. One aspect of driving, "the automatic and reflexive nature of driving", particularly highlights the need for the "marked departure" requirement in a criminal setting. Cory J. described this aspect as follows (at p. 884-85):

Second, the nature of driving itself is often so routine, so automatic that it is almost impossible to determine a particular state of mind of a driver at any given moment. Driving motor vehicles is something that is familiar to most adult Canadians. It cannot be denied that a great deal of driving is done with little conscious thought. It is an activity that is primarily reactive and not contemplative. It is every bit as routine and familiar as taking a shower or going to work. Often it is impossible for a driver to say what his or her specific intent was at any moment during a drive other than the desire to go from A to B.

[44] And further at para. 35:

In a civil setting, it does not matter how far the driver fell short of the standard of reasonable care required by law. The extent of the driver's liability depends not on the degree of negligence, but on the amount of damage done. Also, the mental state (or lack thereof) of the tortfeasor is immaterial, except in respect of punitive damages. In a criminal setting, the driver's mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice. The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment.

[45] And further at para. 36:

For that reason, the objective test, as modified to suit the criminal setting, requires proof of a marked departure from the standard of care that a reasonable person would observe in all the circumstances. As stated earlier, it is only when there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability. With the marked departure, the act of dangerous driving is accompanied with the presence of sufficient mens rea and the offence is made out. The Court, however, added a second important qualification to the objective test - the allowance for exculpatory defences.

[46] In her discussion of the re-statement of the test in Hundal, Madam Justice Charron stated at para. 43:

As we have seen, the requisite mens rea for the offence of dangerous driving was the sole issue before the Court in Hundal, and the test was expressed accordingly. In order to clarify the uncertainties I have mentioned, it may assist to restate the summary of the test in terms of both the actus reus and the mens rea of the offence. I respectfully disagree with the Chief Justice that the test for the actus reus is defined in terms of a marked departure from the normal manner of driving (para. 67). The actus reus must be defined, rather, by the words of the enactment. Of course, conduct that is found to depart markedly from the norm remains necessary to make out the offence because nothing less will support the conclusion that the accused acted with sufficient blameworthiness, in other words with the requisite mens rea, to warrant conviction. In addition, it may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused's manner of driving, evidence about the accused's actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea. I would therefore restate the test reproduced above 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".

(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 actual 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.

[47] In her discussion concerning the determination of the actus reus of a s. 249(1)(a) charge, Madam Justice Charron stated at paras. 45 and 46:

[45] I deal firstly with the actus reus. The offence is defined by the words of the legislative provision, not by the common law standard for civil negligence. In order to determine the actus reus. The conduct must therefore be measured as against the wording of s. 249. Although the offence is negligence-based, this is an important distinction. As we have seen, conduct that constitutes dangerous operation of a motor vehicle as defined under s. 249 will necessarily fall below the standard expected of a reasonably prudent driver. The converse however is not necessarily true - not all negligent driving will constitute dangerous operation of a motor vehicle. If the court is satisfied beyond a reasonable doubt that the manner of driving was dangerous to the public within the meaning of s. 249, the actus reus of the offence has been made out. Nothing is gained by adding to the words of s. 249 at this stage of the analysis.

[46] As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The consequence, as here where death was caused, may make the offence a more serious one under s. 249(4), but it has no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. Again, this is also an important distinction. If the focus is improperly placed on the consequence, it almost begs the question to then ask whether an act that killed someone was dangerous. The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving. The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public. This Court explained this distinction in R. v. Anderson, [1990] 1 S.C.R. 265, as follows:

In the circumstances of this case, the unfortunate fact that a person was killed added nothing to the conduct of the appellant. The degree of negligence proved against the appellant by means of the evidence that he drove after drinking and went through a red light was not increased by the fact that a collision occurred and death resulted. If driving and drinking and running a red light was not a marked departure from the standard, it did not become so because a collision occurred. In some circumstances, perhaps, the actions of the accused and the consequences flowing from them may be so interwoven that the consequences may be relevant in characterizing the conduct of the accused. That is not the case here. [Emphasis added; p. 273.]

[48] Further, at para. 48 Madam Justice Charron stated in part:

...The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a "marked departure" from that norm, the offence will be made out. As stated earlier, what constitutes a "marked departure" from the standard expected of a reasonably prudent driver is a matter of degree. The lack of care must be serious enough to merit punishment. There is no doubt that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person. Nonetheless, as Doherty J.A. aptly remarked in Willock, "conduct that occurs in such a brief time frame in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum" (para. 31). Although Willock concerned the offence of criminal negligence, an offence which is higher on the continuum of negligent driving, this observation is equally apt with respect to the offence of dangerous operation of a motor vehicle.

[49] With respect to the mens rea element of a s. 249(1)(a) charge, Madam Justice Charron stated at para. 49:

If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need to pursue the analysis. The offence will not have been made out. If, on the other hand, the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by this conduct. If there is no such evidence, the court may convict the accused.

[50] With respect to the mens rea of Mr. Clarke, his testimony was not one of explanation for the driving conduct that had been observed by P.C. Soucie, but rather was a simple and categorical denial of having driven in that fashion. I, therefore, do not find it necessary to engage in an analysis of the accused's state of mind with respect to how that might have affected his driving at the time.

[51] While I found the accused's opinion that one or more of those other drivers who the officer testified were affected by his 'darting' lane changing manoeuvres should have honked at him to be an interesting point, I do not find that the absence of evidence of such honking is capable of raising a reasonable doubt in my mind about the reliability and accuracy of the officer's evidence of the description of the accused's driving. I find that there could be reasonable explanations for the lack of honking such as the speed at which these lane changes were occurring and the affected drivers simply only reacting to the sudden apprehended danger by braking suddenly.

[52] I agree with Ms. De Filippis that mere speed alone cannot sustain a finding of guilt on a dangerous driving charge in the absence of contextual factors that would objectively support a conclusion that other drivers at the time could have been, or were, endangered by an accused's driving pattern. However, I find that the precedents upon which she relied in this case can be factually significantly distinguished from the facts which I have found to have been contextually prevailing in this case.

[53] Specifically, I accept P.C. Soucie's evidence that the accused executed the 'darting' and 'swerving' lane changes that he described on repeated occasions while driving at 80 to 110 kph on a very busy multiple lane highway that was in the form of a bridge. I also find that other drivers were affected by these actions to the extent that they braked heavily with some taking evasive action to avoid a potential collision with the accused's vehicle.

[54] Therefore, given these contextual factors, occurring as they did at highway speeds on a congested major multi-lane highway, I find that the Crown has proven beyond a reasonable doubt that the accused's driving meets the standard of proof required for a charge contrary to s. 249(1)(a) of the Criminal Code as established by the Supreme Court of Canada in Beatty and Hundal, supra. I therefore find Mr. Clarke guilty as charged and a conviction is registered.

[55] I do thank both counsel for their very capable and succinct presentation of this case, and in particular, I am grateful to Ms. De Filippis for her research of relevant precedents for the court to consider in the context of the established common law standard of proof for a dangerous driving charge that has been enunciated by the Supreme Court of Canada.

Released: October 22, 2013

Signed: "Justice F.L. FORSYTH"