Court File and Parties

Court File No.: SIOUX LOOKOUT 1360030

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Morris Barry Burt

Before: Justice Peter T. Bishop

Heard on: July 30, 2014 and September 23, 2014

Reasons for Judgment released: October 28, 2014

Counsel:

• Peter Keen, for the Crown
• I. Isenstein, for the accused Morris Barry Burt

BISHOP J.:

Charges

[1] Morris Barry Burt is charged with operating a motor vehicle with blood alcohol concentration in excess over the legal limit and impaired driving contrary to sections 253 (a) and (b) of the Criminal Code.

Evidence of Jason Deevy

[2] Constable Deevy is an Ontario Provincial Police Constable. He was returning from a prison run at 11:30 p.m. in the Jackfish Creek area on Highway 72 in the District of Kenora.

[3] He recorded that the temperature was -15 Celsius at the beginning of the shift. He observed an individual who turned out to be Mr. Kenneth Blake walking in the north bound lane and upon investigation found he was intoxicated. Mr. Blake had some blood on his hoody and explained that he had been drinking with the accused and had an argument and was walking to Sioux Lookout. This officer had no safety concerns and along with his partner returned to go south bound looking for any other individuals. Mr. Blake was dressed with warm clothing but was not arrestable.

[4] Constable Deevy patrolled south bound and observed a vehicle stuck in the snow in a driveway and stopped to investigate. The driver was the accused who was fumbling with his identification papers, his words were slightly slurred and he had alcohol on his breath. He admitted to drinking four to five beers. The motor vehicle was in a private drive almost at the entrance to Highway 72.

[5] Constable Deevy spoke to the passenger David Tarrant who was highly intoxicated, with slurred speech and also had alcohol on his breath. The officer witnessed skid marks all over the driveway and concluded that the driver's ability to drive was impaired by alcohol.

[6] Mr. Tarrant confirmed that he was a suspended driver.

[7] Mr. Burt was handcuffed arrested, read his rights to counsel and was taken directly to the detachment where he was lodged.

[8] In cross examination Constable Deevy reviewed the grounds for arrest and noted that the cumulative evidence, Mr. Burt in the driver's seat, fumbled with his wallet, exhibited slight slurred speech, had glassy eyes, left skid marks in the driveway and had alcohol on his breath which gave him reasonable and probable grounds to arrest the accused for impaired driving.

Evidence of David Gingerich

[9] Constable Gingerich was the partner of Constable Deevy and was returning from Thunder Bay in the Jackfish Creek area of Highway 72 and observed a male walking on the north bound lane of the highway. He had some fresh blood on his collar and had advised that he was in an altercation with his buddies. This officer confirmed that Mr. Blake was intoxicated but dressed for the weather and was not arrestable. Mr. Blake did not want help and did not want a ride.

[10] Constables Gingerich and Deevy turned around and came upon the accused in the driveway. He observed a heavy set male identified as the accused who got out of the vehicle from the driver's seat and walked with stutter steps, stumbled and had to catch his balance. He was taken to the back of the police cruiser and admitted that he consumed four or five beer and stated that he was going to find his friend. He had slurred speech, appeared tired and had a droopy face.

[11] Mr. Burt was placed in the police cruiser and was read his rights to counsel by Constable Deevy. Mr. Burt's motor vehicle was searched and a firearm which was seized. It was necessary to give Mr. Burt instructions two or three times to enter the cruiser and was physically pointed to sit in the police cruiser.

[12] In cross examination, Constable Gingerich confirmed that he observed Mr. Blake in the middle of the road who was under the influence of alcohol. Mr. Blake was dressed for the weather, did not want a ride and the officer confirmed that they almost ran over him.

[13] The court viewed the video of Mr. Burt in custody and an issue arose relating to the decision in R. v. Mok, 2014 ONSC 64.

[14] At the end of the Crown's case and before resuming the trial on September 23, 2014 the defence conceded that all technical requirements of both charges were met and that the only defence was that of necessity.

Evidence of Morris Barry Burt

[15] Mr. Burt is 38 years of age and employed in the carpentry business. He has two employees that were with him that night and they returned from Dryden to a friend's cabin with a plan on going back to Dryden the next day to complete the work. They stated that the weather was cold and there was some light snow and they began drinking and eating chili.

[16] He stated that co-worker Kenneth Blake was highly intoxicated and accused Mr. Tarrant of spiking his drink. Mr. Tarrant pushed him back and Mr. Blake fell to the floor and had a small injury to the back of his neck which was bleeding slightly.

[17] Mr. Blake said he was leaving and left the cabin. Mr. Burt was concerned that because of the cold weather that Mr. Blake may freeze to death and could be attacked by wolves. He felt that it was his responsibility to save his co-worker from and left the cabin to see if he could convince him to come back or the alternative to drive several kilometers to where cell service was available to call someone else or to alert to Mr. Blake's wife.

[18] In cross-examination Mr. Burt admitted that he left approximately one to three minutes after Mr. Blake had exited the cabin and that he appeared calm to the police when telling about his concern.

Evidence of David Tarrant

[19] Mr. Tarrant was a co-worker and friends with the accused and confirmed that there was no cell service available and that Mr. Blake had consumed approximately eighteen beer. He stated that Mr. Blake had a cut to his head and was wearing a hoody and a summer jacket. He was concerned about not wanting Mr. Blake to freeze to death.

[20] In cross examination he conceded that he really didn't remember what was said or happened due to his own degree of intoxication.

The Law

[21] The only issue before this court was whether the defence in necessity applies. The common law defence is preserved by Section 8(3) of the Criminal Code. The Supreme Court of Canada addressed this defence in the case of R. v. Perka, [1984] 14 C.C.C. (3d) 385. This was affirmed in as R. v. Latimer 2001 SCC 1, [2001] 1 S.C.R. 3.

[22] 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;

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

[23] 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.

[24] 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 the evidence beyond a reasonable doubt.

Analysis

[25] The first requirement is that there must be clear and imminent peril. In this case, Mr. Burt was concerned about Mr. Blake freezing to death because of the cold temperatures or being attacked by wild animals such as wolves. He candidly admitted there was no known case of a wild animal attacking any individual on Highway 72. Further, the evidence of the police officers was that Mr. Blake was properly dressed for the winter climate, was not arrestable and was not in any peril. In fact Mr. Blake told the police that he did not want any help and refused a ride. On a modified objective standard, the situation was not one of imminent peril or danger although a concern based on the speculation of the accused.

[26] The second requirement was that Mr. Burt had no reasonable legal alternative but to drive the automobile to assist Mr. Blake. He believed his presence there was necessary to prevent a tragedy. The obvious alternative was for Mr. Burt to walk or run after Mr. Blake as he had only been gone for one to three minutes before Mr. Burt decided to drive the automobile in an intoxicated state.

[27] The defence argues that there were no reasonable legal alternatives available to Mr. Burt. As, there was no cell phone service, there was no physical land line, there was no satellite phone, there were no known neighbors.

[28] Implicit in the defence position is that Mr. Burt acted on instinct and did not consider reasonable alternatives. The defence presented several cases which he asked the court to follow which were: R. v. Gyetvan [2005] O.J. No 5813 (O.C.J.); R. v. Desrosiers [2007] O.J. No 1985; [R. v. Murray 2010 A.J. No 1419; R. v. Costoff [2010] O.J. No 1261; R. v. Crocker [2004] O.J. No 4222; R. v. Bellerive [1990] O.J. No 3161; R. v. L.S. [2001] BCJ No 3062; R. v. Trencs [2011] O.J. No 224; R. v. Rajagopal [2008] O.J. No 1593; R. v. Ungar [2002] O.J. No 2915.

[29] All the cases provided by the defence are distinguishable on the facts as there was imminent peril or danger. In the present case there was mere speculation on Mr. Burt's part. Notwithstanding his concern for his co-workers safety, Mr. Burt ought to have considered walking, which was reasonable in the circumstances.

[30] The third requirement is that the harm inflicted (driving with blood alcohol concentration over the legal limit) must not be greater than harm avoided, which was driving trying to locate Mr. Burt to give assistance.

[31] There is a significant public interest in preventing drinking and driving. The risks associated with drinking and driving is very real. When an impaired driver begins driving, one does not know whether the trip will end in property damage, bodily harm or death. The risk is real and significant.

[32] Mr. Burt's blood alcohol concentration was 132 and 136 milligrams of alcohol per 100 millilitres of blood or approximately one and one half times the legal limit which is not insignificant.

[33] In considering the proportionality requirement, using an objective standard, is the harm and risk to harm associated with drinking and driving outweigh the potential harm to Mr. Blake. That harm that was never imminent as the evidence to the police was that he didn't want a ride or assistance and was not arrestable and in no danger. Mr. Burt could have used other legal reasonable alternatives.

[34] I conclude there is no air of reality to the defence of necessity and I do not believe Mr. Burt. He has a familial connection with both Messrs. Blake and Tarrant. The Crown has met its evidentiary burden of establishing a voluntary act beyond a reasonable doubt. There will be a finding of guilt.

Released: October 28, 2014

Signed: Justice Peter T. Bishop