Court File and Parties

Court File No.: Central East – Newmarket – 4911-998-14-05282 Date: 2015-11-02 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Aravinthan Ratnasingam

Heard: June 17, September 16, 2015

Before: Justice Peter Tetley

Counsel:

• S. Kumaresan / J. Lee for the Crown
• H.D. Locke for the accused, Aravinthan Ratnasingam

Reasons for Judgment

Released on November 2, 2015

Background

[1] As a result of a July 1, 2014 police investigation conducted by Constable Mark Cornett of the York Regional Police Service, the defendant, Aravinthan Ratnasingam, was charged with failing to comply with an approved screening device demand, contrary to section 254(5) of the Criminal Code, and dangerous operation of a motor vehicle, contrary to section 249(1).

[2] Constable Cornett, who was the sole Crown witness, testified that he observed the defendant to be operating what the officer described as a "12-cylinder" gray Bentley Continental GT automobile on Alden Road in the City of Markham in the early-morning hours of July 1, 2014. Constable Cornett's attention was drawn to the Bentley as its tires squealed as the vehicle rapidly accelerated away from a controlled intersection. During the ensuing two-minute period, the Bentley was observed to be operated at very high rates of speed. At one point, the investigating officer activated the radar in his cruiser and determined that the Bentley was travelling at 186 kilometres an hour in the posted 50 kilometre an hour zone. The vehicle was also observed to cross the centre line into oncoming traffic forcing another vehicle that was travelling in the opposite direction to move into the curb lane to avoid a collision. Constable Cornett noted that the Bentley was travelling at such a rapid rate of speed that it appeared to "bottom out" as the vehicle's suspension appeared to strike the surface of the roadway.

[3] On speaking to the defendant, who was the operator of the Bentley automobile, the investigating officer indicated he could "immediately detect a strong odour of an alcoholic beverage coming from the accused's breath".

[4] At 2:20 a.m., based on the referenced odour of alcohol and the defendant's admission of drinking, the officer testified that he formed "a reasonable belief" that the accused had alcohol in his blood. An approved screening device demand was then read to the defendant.

[5] Constable Cornett testified that the approved screen device, a Drager Alcotest 6810, was in proper working order. The officer demonstrated how a sample was to be provided and told the defendant to wrap his lips around the mouthpiece and blow into the mouthpiece until he was told to stop.

[6] The investigating officer advised that over the course of the next six minutes, he provided the defendant with 12 opportunities to provide a sample of his breath for screening purposes.

[7] The first attempt by the defendant to provide a sample resulted in a breath interruption error being displayed by the approved screening device. The next three attempts were also unsuccessful as the defendant did not place his lips all the way around the mouthpiece. These attempts also resulted in breath interruption errors being displayed as the defendant was observed not to be blowing into the mouthpiece. The officer testified that he could not hear any air coming through the mouthpiece during the course of the first four attempts.

[8] At 2:23 a.m., the defendant was cautioned with respect to the consequences of failing to provide the roadside sample of his breath. Eight more unsuccessful attempts ensued. The investigating officer testified that in each case, the approved screening device noted error messages relating to either insufficient volume or breath interruption as the cause of the failed attempts.

[9] At 2:26 a.m., the defendant was arrested for failing to provide a breath sample and the offence of dangerous driving.

[10] The investigating officer confirmed that the screening device was functioning properly and displayed an error message during each of the 12 "attempts". The defendant was not noted to be suffering from any medical disability or to be out of breath. Mr. Ratnasingam made no complaint of illness or offered any other reason for non-compliance with the demand.

[11] The investigating officer advised that he was satisfied that the approved screening device was in proper working order based on the self-test that he had administered. That test resulted in a reading of 0 milligrams of alcohol in 100 millilitres of blood, accurately reflecting the fact the investigating officer did not have any alcohol in his body.

[12] Under cross-examination, the investigating officer testified that he told the defendant how to perform the roadside test. The defendant was instructed to wrap his lips around the mouthpiece of the device and form a tight seal. The defendant was also instructed to blow into the mouthpiece until the officer told him to stop.

[13] Constable Cornett conceded that he made no note of the wording of the warning he provided to the defendant as to the consequences of non-compliance with his request for a roadside sample of breath and made no note of his verbal exchanges with the defendant, if any, through the course of the failed attempts.

[14] The investigating officer conceded that he did not provide a so called "last chance warning" before he arrested the defendant following the 12th attempt to secure a sample of the defendant's breath. The investigating officer was not asked if the defendant requested one final opportunity to provide a sample of his breath.

[15] Aravinthan Ratnasingam testified as the sole defence witness. He advised that he had borrowed his cousin's automobile in order to drive home several friends from a wedding celebration and was functioning in the capacity of a "designated driver" on the night in question.

[16] The defendant testified that the total distance travelled during the period of observation was approximately one kilometre. This distance was verified by resort to Map Quest and by replicating the route of travel (within the posted speed limit) on a subsequent occasion. The defendant acknowledged that he may have been speeding during the period of observation related in the testimony offered by the investigating officer but denied travelling at speeds in excess of 130 kilometres an hour.

[17] The defendant stated that the Bentley was subject to some sort of speed governing device at the time of this incident that rendered the vehicle incapable of travelling at a rate of speed greater than 140 kilometres an hour.

[18] The defendant explained that he had occasion to glance at his speedometer on a couple of occasions during the observed period of travel. Aravinthan Ratnasingam stated that he slowed down once he realized he was travelling at between 120 to 130 kilometres an hour.

[19] The defendant advised that he had slowed the vehicle down before approaching the bend as he was aware of the presence of Constable Cornett's police cruiser by that point in time and was travelling at approximately 70 kilometres an hour as he negotiated the bend. The defendant denied making a wide turn on the bend and similarly denied travelling into oncoming traffic forcing another motorist to take evasive action.

[20] The defendant advised that he was given only five attempts to provide a sample of his breath for screening purposes and not twelve as the officer had testified. He could not recall exactly what happened on the first attempt noting that the officer requested that he do the test again. On attempts two through five, the defendant testified he was trying hard to blow into the machine and was doing his best to comply with the officer's request.

[21] The defendant denied that he was ever informed of the consequences of failing to comply with the officer's request for a breath sample and stated that he requested a final opportunity to provide a breath sample. That request was denied.

Submissions of Counsel

[22] On behalf of Mr. Ratnasingam, Mr. Locke submits that the Crown has failed to establish proof of either offence charged on the basis of proof beyond a reasonable doubt.

[23] In relation to the offence of dangerous driving, the defence references the fact that the actual distance of observed travel is 1.1 kilometre. The defence notes that the investigating officer testified in relation to a two-minute period of observation of the defendant's driving (2:15 - initial observation to 2:17 - time of the stop). The defence submits that it would not have taken two minutes for the defendant's motor vehicle to traverse the 1.1 kilometre distance of observed travel if the vehicle were travelling at rates of speed as high as 186 kilometres an hour.

[24] The defence submits that the officer's observation of a "bottoming out" of the defendant's motor vehicle during the observed period of travel is unlikely as evidence advanced by the defence confirms the roadway in question to be relatively smooth and without significant undulation.

[25] Mr. Locke notes that absence of any efforts by the investigating officer to stop the defendant from operating his motor vehicle in the manner described, the absence of a stunt driving charge under the Highway Traffic Act, and his client's denial with respect to the wide turn into oncoming traffic as factors of significance undermining the reliability of the officers account of events and proof of the charge of dangerous driving.

[26] Mr. Locke submits the officer should have offered a further opportunity to the defendant to comply with the roadside breath demand. In the absence of definitive proof of criminal intention, the section 254(5) charge is contended not to have been substantiated.

The Crown's Position

[27] On behalf of the prosecution, Ms. Lee submits that the investigating officer had reasonable grounds to suspect the defendant had alcohol in his body at the time he was found to be operating a motor vehicle. These grounds formed the lawful basis for the demand for a roadside sample of the defendant's breath pursuant to the provisions of section 254(b).

[28] In attempting to secure the roadside sample, the investigating officer employed an approved screening device and advised the defendant as to how the breath sample was to be provided.

[29] The defendant is submitted to have failed to comply with the officer's instructions without a "reasonable excuse".

[30] The approved screening device was established to be in proper working order. It had been calibrated and the officer had performed a self-test to confirm that the device was functioning appropriately. The error codes that followed each of the failed attempts by the defendant were similarly noted by the officer to be appropriate.

[31] The defendant was accorded 12 separate opportunities to provide the requested sample of his breath and was warned of the consequences of non-compliance according to the testimony offered by the officer.

[32] The defence is submitted as having failed to establish a reasonable excuse for the defendant's non-compliance with the officer's demands despite the defendant's representation that he tried to provide the sample as requested. In the absence of any established medical impediment or other reasonable excuse, the defendant's assertion that he thought the device might not be working properly, in the absence of any evidence to substantiate that belief, is submitted as being insufficient to create a lawful basis for non-compliance.

[33] In relation to the count of dangerous driving, the defendant's evidence is submitted as not being reliable or credible. The defendant's acknowledgement of consumption of alcoholic beverages prior to driving is viewed as potentially undermining the reliability of the defendant's recollection of the events in issue.

[34] The defendant's uncorroborated assertion that the vehicle was incapable of travelling at a rate of speed in excess of 140 kilometres an hour is seen as self-serving and disingenuous with the defendant acknowledging, by his own admission, that he operated the motor vehicle at a rate of speed of more than two and-a-half times the posted limit.

[35] The Crown submits the combination of the following enumerated factors constitute the offence of dangerous driving:

• Excessive rate of speed;
• Veering into oncoming traffic, forcing another vehicle to take evasive action as a result;
• The fact the driving took place at night, while the defendant had alcohol in his system and two passengers in his vehicle;
• The fact the vehicle was observed to be travelling at a rate of speed that may have caused it to "bottom out" on occasion.

[36] The extreme speed, combined with veering into oncoming traffic while the defendant had alcohol in his system, is contended to constitute the offence of dangerous driving. The fact the officer did not stop the defendant's motor vehicle before he did does not detract from that assessment and is submitted as being understandable based on the officer's testimony that he wished to avoid the safety risk a pursuit at such high speeds might entail.

[37] The Crown submits the observed driving does not reflect a momentary lapse of attention but rather a prolonged intentional act, albeit over a relatively short distance.

Applicable Legal Considerations

The Failure to Comply with the Approved Screening Device Demand

[38] Section 254(2) of the Criminal Code authorizes a police officer to make a demand for a sample of a driver's breath if that officer has reasonable grounds to suspect the driver has consumed alcohol or drugs and has operated a motor vehicle within the preceding three hours. Section 254(2)(b) requires that the operator of the motor vehicle, in those circumstances, provide a sample of breath "forthwith". The sample must be sufficient to enable a proper analysis to be made by means of an approved screening device. The police officer determines whether the sample is sufficient. This subsection directs that the driver may be required to accompany the police officer to facilitate the testing process.

[39] Section 254(5) of the Criminal Code provides that everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

[40] The trial record establishes that the defendant did not provide a sample of his breath for screening purposes. Despite clear instructions from the officer and repeated opportunities, no suitable sample was obtained.

[41] I accept the officer's representations that he accorded 12 separate opportunities to comply with the section 254(2)(b) demand. I also accept the officer's explanation as to why the sampling process on each occasion proved to be unsuccessful. The evidentiary record establishes that the defendant failed to comply with the officer's instructions to form a tight seal around the mouthpiece and/or failed to continue to blow into the mouthpiece until he was told to stop.

[42] I am not left in a state of uncertainty regarding the number of attempts offered by virtue of the testimony offered by the defendant. I believe the defendant's recollection may have been compromised by a combination of alcohol and his desire for self-preservation. While the officer's notes lack detail in terms of the circumstances of each attempted sampling of the defendant's breath, I nevertheless accept the officer's representation that he made 12 separate attempts to have the defendant comply with the section 254(2)(b) demand, all to no avail.

[43] The defendant's account in this regard is concluded to be uncertain, lacking in detail and dubious in my estimation. I do not accept this aspect of the defendant's testimony and conclude it to be unreliable.

Absence of a "Last Chance" Warning

[44] The defendant testified that he requested one final opportunity to comply with the officer's request for a screening sample of his breath. This request was reportedly declined by the investigating officer. As previously referenced, Constable Cornett did not note the details of his verbal exchanges with the defendant during the attempts to secure a breath sample. The investigating officer conceded that he was unable to refute the assertion that the defendant may have made a request for a final opportunity to blow on being advised that he was being arrested for failure to comply with the officer's demand. He acknowledged in his testimony that he did not give a "last chance" warning before he arrested the defendant for failing to comply with the section 254(2)(b) demand. The absence of this warning, on consideration of the totality of the circumstances here, is contended by the defence to create a circumstance in which the failure by the accused to comply with the demand cannot be concluded to be final and unequivocal.

[45] In support of this position, the defence cited a number of authorities where the failure of the arresting officer to provide a final "last chance" opportunity to comply with the roadside demand was concluded to raise a doubt in relation to the issue of willful or intentional non-compliance with the officer's demand.

[46] In R. v. Woods, 2005 SCC 42, the Court held as follows:

45 The "forthwith" requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediate response by the [page 218] person to whom that demand is addressed. To accept as compliance "forthwith" the furnishing of a breath sample more than an hour after being arrested for having failed to comply is in my view a semantic stretch beyond literal bounds and constitutional limits.

45 Finally, on this point, the Crown contends that the respondent's breath sample was obtained "forthwith" in the sense of "as soon as reasonably possible in the circumstances", since the respondent failed to comply sooner with the officer's roadside demand. Putting the submission this way is sufficient to demonstrate its incongruity. Drivers upon whom ASD demands are made are bound by s. 254(2) to comply immediately -- and not later, at a time of their choosing, when they have decided to stop refusing ! [emphasis in original]

[47] In R. v. Domik, [1979] O.J. No. 1050 (H.C.J.), affirmed [1980] O.J. No. 642 (C.A.) at paragraph 5, Grange J., on appeal by way of stated case, ordered a new trial in a case involving consideration of a purported failure to comply with an intoxilyzer breath demand. In addressing the requirement of certainty in refusal cases, Grange J. stated the following:

5 I do not read these cases as establishing that in all circumstances a refusal separated in time from a later assent constitutes a crime. What I do gather from the cases is that the circumstances of the refusal and assent, the time between them and perhaps the availability of technician and machine are relevant considerations. Section 235 is drastic legislation interfering with the usual rule against self-incrimination. I do not think it unreasonable for a lay person or indeed anyone unskilled in criminal law at first to react negatively to an invitation to give the police incriminating evidence. I cannot imagine that Parliament intended to make such a refusal followed almost immediately by an assent, criminal. Moreover, I would not define such conduct as a refusal any more than I would that of Byron's lady who

"A little still (she) strove and much repented And whispering I will ne'er consent, consented."

[48] In R. v. Howland, Lalonde J. concluded that the lack of a last chance warning could be the determining factor in assessing whether the Crown had established that the accused intended to refuse to provide a breath sample on the basis of proof beyond a reasonable doubt. The trial judge in Howland, [2002] O.J. No. 5631, referenced the absence of a specific last chance warning in concluding that a doubt had been raised as to whether the accused intended to refuse to provide a breath sample.

[49] Durno J., in R. v. Grant, 2014 ONSC 1479, considered circumstances where the appellant had been given 30 opportunities to provide a sample of her breath into an intoxilyzer. She had been told how to provide a sample and been warned as to the consequences of refusal. A period of 20 minutes had elapsed between the officer's initial attempt to secure a breath sample from the appellant and her arrest for the offence of failing to comply with the officer's breath demand. The appellant was not given a "last chance" warning.

[50] Durno J. concluded, on consideration of the totality of circumstances under review in this summary conviction appeal, that the investigating officer was not required to give a last chance warning "given the multitude of chances the appellant had to provide a suitable sample as well as her attitude throughout" (see paragraph 85).

[51] Addressing what has come to be known as the "last chance doctrine", Durno J. noted as follows:

80 I am not persuaded that there is an obligation on the demanding officer in every case to tell the driver that it is his or her last chance to provide a suitable sample. Nor am I persuaded that whenever a driver is told he or she is going to be charged with refusing to provide an Intoxilyzer sample, that simply asking for another chance means the offence has not been completed. Were it as the appellant appears to contend, the procedure could never end.

81 What is required in each case is a fact-specific analysis to determine whether the elements of the offence have been established beyond a reasonable doubt by the Crown. Those elements are: i) a valid demand, ii) the failure or refusal of the detainee to provide a suitable breath sample, and iii) that the detainee intended to refuse to provide a suitable breath sample.

82 The determination of whether the last element above, the mens rea component, is satisfied beyond a reasonable doubt will require a case-specific analysis of all the circumstances, including the following:

(i) the words and actions of the detainee from which the officer concluded he or she intended to refuse to provide a suitable sample;

(ii) the number of opportunities the officer provided to the detainee;

(iii) the instructions provided to the detainee by the officer including any reference to the applicable law, how to provide the sample, and whether the detainee was told they were being given one last chance to provide the breath sample;

(iv) the detainee's state of intoxication and attitude;

(v) the availability of the technician and Intoxilyzer; and

(vi) where the detainee has been told that he or she has refused to provide a suitable sample and will be charged and indicates they want another opportunity, the time between being told of the charge and the offer, the number of opportunities to provide a breath sample and previous "last chance" offers, and the manner in which the offer is made. These criteria will assist in determining whether the request was bona fide.

83 Where the detainee offers to provide a "last chance" sample, it will be for the officer initially, and at trial for the trial judge to determine whether the post-charge offer was bona fide and whether the refusal and the subsequent offer were part of "one transaction."

[52] Applying these considerations to the circumstances of this prosecution, I note the following:

(i) Any verbal exchanges between the defendant and the investigating officer in relation to the various attempts to secure a suitable sample were not recalled, recorded or otherwise memorialized by the investigating officer;

(ii) The officer did not record or note the various error messages as they occurred apart from noting that they either collectively referenced circumstances where the volume of air was insufficient or the defendant did not blow long enough;

(iii) The number of opportunities to comply provided by the officer to the defendant is disputed. As previously noted, the investigating officer testified that he accorded the defendant 12 separate opportunities to comply with the defendant stating that he was only provided five opportunities to respond to the officer's demand;

(iv) The investigating officer advised that he informed the detainee as to how he was to provide the sample, instructed the defendant of the consequences of non-compliance after the fourth failed attempt and, as noted, did not advise the defendant that there would be one last chance to provide the requested breath sample;

(v) The defendant's state of intoxication, general health or attitude was not such that any of those considerations might account for the failure to comply;

(vi) The roadside screening device was readily available;

(vii) There is a factual debate as to whether the defendant requested a "last chance" opportunity to provide the requested breath sample. The investigating officer had no recollection of such a request being made and made no note of being asked by the defendant for one final opportunity to comply, the officer was, however, unable to discount that possibility.

[53] While the officer's notes of the details of the attempts to secure a sample of the defendant's breath for screening purposes could have been more detailed, I accept that the defendant was cautioned as to the consequences of refusing to provide a suitable sample and given eight further opportunities to comply with the officer's demand. I accept the investigating officer's representations that between 2:20 a.m. through to 2:26 a.m., a total of 12 opportunities were provided to the defendant to comply with the officer's request for a sample of the defendant's breath for screening purposes for the reasons previously stated.

[54] I am similarly satisfied that the investigating officer advised the defendant why he was encountering difficulties as the defendant "attempted" to comply with the officer's demand. I accept that the defendant was informed that he was either not blowing hard enough, or alternatively, was not blowing long enough.

[55] In these circumstances, the officer's decision to terminate the breath sampling process can hardly be viewed as precipitous. That said, the lack of detail in the officer's notes during the course of the breath sampling process and the fact that the officer was unable to definitively state that the defendant did not make a request for one final opportunity to comply, creates the possibility that the defendant may have made a "post-charge offer" that was bona fide, immediately upon being informed that he was being arrested for failing to comply with the officer's demand.

[56] The circumstances in issue here are strikingly similar to those in R. v. Tynkaluk, (Ontario District Court), [1989] O.J. No. 957. In page 5 of that decision, Conant D.C.J. noted as follows:

In the case at bar, the accused was given eight opportunities to provide a proper sample of his breath, and he failed to do so on each of these occasions. The time that elapsed between the first attempt and the request by him for another chance was approximately ten minutes. As well, the officer and the testing apparatus were clearly still available. Further, the evidence indicates that the accused's offer to try again followed immediately on the heels of the arrest. I agree with Judge MacKinnon in Stowe (R. v. Stowe, (1983), 22 M.V.R. 275) (B.C. County Court) that there must come a time when a person can reasonably conclude that there has been a failure to comply, and this case comes very close to that point as the accused was given a number of opportunities to comply. However, the entire incident took place over a period of just over ten minutes, and there was no problem with the availability of the required equipment. As well, there was no warning given to the accused at any point that his next attempt would be his last opportunity to provide a suitable sample. In response to the accused's "pleading" for another chance, which appears to have followed immediately upon the arrest, the officer should have given him one final opportunity to give an adequate sample.

[57] On review of the entirety of the trial record, I am unable to discount the possibility that the defendant offered to provide a "last chance" blow into the roadside testing device. The uncertainty in this regard could have been overcome by more detailed note-taking by the officer and/or a last chance final warning as to the consequences of non-compliance before the arrest was made. As the officer is unable to refute the possibility that the defendant may have made a final offer to comply that may not have been facilitated, I conclude that opportunity ought to have been afforded to the defendant. The request, according to the defendant's recollection of events, was made in a timely fashion upon being told that he would be arrested for non-compliance. The roadside testing device was available as was the officer who could have easily facilitated the accused's request by offering him one final opportunity to comply.

[58] While I appreciate an accused will lose the opportunity to comply at some point, I conclude the Crown has failed to prove the essential element of criminal intent or mens rea on the basis of proof beyond a reasonable doubt based on consideration of the following factors:

• The fact the arresting officer did not warn the defendant, before the 12th and last attempt, that it would be his last chance to comply with the officer's demand by providing a suitable breath sample;

• The fact the defendant may have requested another opportunity to blow after the 12th attempt had been made with this factual assertion unable to be discounted by the investigating officer;

• Testimony offered by the defendant that he made this request immediately upon being advised that he was being arrested for failure to comply with the officer's demand while he was in the direct company of the investigating officer who was in possession of an approved screening device at the scene of the arrest;

• Accepting this portion of the defendant's testimony at its highest, the defendant's request for a final opportunity to provide a breath sample is concluded to effectively be part of a single transaction in relation to the breath sampling interchange between himself and the arresting officer.

[59] In concluding that the Crown has failed to establish, on the basis of proof beyond a reasonable doubt, that the defendant's conduct amounted to a refusal and/or failure to comply with the officer's approved screening device demand, I acknowledge that the defendant may well have intentionally failed to provide the requested breath sample by simply not blowing long enough or hard enough as directed. As referenced, any modest uncertainty in that regard could have been resolved by a last chance warning and a final opportunity to blow. Those procedural steps would have definitively addressed the legitimacy of the defendant's purported request for a final opportunity to provide a suitable sample of breath and removed any uncertainty regarding the issue of intention.

[60] As some uncertainty exists as to whether the appellant's conduct amounts to an intentional refusal and/or failure to comply with the investigating officer's demand in absence of that final opportunity to comply, I conclude the defendant is entitled to the benefit of the doubt in relation to the issue of criminal intention. The defendant shall therefore be found not guilty of the fail to comply with the approved screening device demand charge and that charge will be noted dismissed.

Dangerous Driving

[61] In R. v. Roy, 2012 SCC 26, the Supreme Court of Canada reviewed the essential elements of the offence of dangerous driving and considered the Court's previous analysis of the elements of dangerous driving in R. v. Beatty, 2009 SCC 5.

[62] In Beatty, the Court concluded that the actus reus of the offence, or offending action, is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic, that at the time was or might reasonably have been expected to be at that place (section 249(1)(a) of the Criminal Code). The mens rea, or criminal intent, is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at paragraph 43).

[63] As noted by Cromwell J. for the Court in Roy at paragraph 28:

The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (Beatty, at paragraph 48).

[64] In determining whether the driving in issue is dangerous "the trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness" (Roy, at paragraph 30).

[65] R. v. Roy directs that the driving be viewed objectively and a determination made based on that objective view as to whether the driving was dangerous to the public.

[66] As Cromwell J. notes at paragraph 34 of Roy:

It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.

[67] The focus of the inquiry into criminal intent or mens rea is directed to a determination as to whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at paragraph 48).

[68] As noted in paragraph 36 of Roy:

It is helpful to approach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

[69] Simple carelessness in the manner of operation of a motor vehicle is generally not criminal. What is required to establish the offence of dangerous driving is "the marked departure from the standard expected of a reasonable person in the same circumstances". This marked departure has been characterized as "a modified objective standard". It is the minimum fault required to establish the offence.

[70] Cromwell J., for the Court, in Roy states at paragraph 38:

The modified objective standard means that, while the reasonable person is placed in the accused's circumstances, evidence of the accused's personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused's incapacity to appreciate or to avoid the risk (see Beatty, para. 40). Of course, proof of subjective mens rea -- that is, deliberately dangerous driving -- would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86).

[71] In determining whether the Crown has proven that the manner of driving in question constitutes a "marked departure" from the norm, all of the factual circumstances must be considered and a determination reached that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited (paragraph 41 in Roy).

[72] Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88 of Beatty). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference (Roy, at paragraph 42).

Application of the Principles in Beatty and Roy

[73] In considering the actus reus of the offence, I note the following considerations:

• The excessive rate of speed – I accept the investigating officer's evidence that at some point during the period of observed driving over the distance of more than 1 kilometre, the defendant was operating the motor vehicle at a rate of speed of 187 kilometres an hour. I accept the investigating officer's trial testimony that he ascertained the speed by deployment of a speed measuring radar device. This rate of speed is almost four times the posted limit;

• Veering into oncoming traffic – I similarly accept the investigating officer's trial testimony that at some point during the course of observed travel, the motor vehicle being operated by the defendant was observed to veer into oncoming traffic forcing another vehicle to take evasive action to avoid being struck. I do not accept the defendant's denial of this factual assertion and I am not left in a state of reasonable doubt as a consequence of that denial;

• The driving took place at night under artificial lighting conditions creating a circumstance where visibility may reasonably be inferred to be less than optimum;

• The defendant was operating a motor vehicle while he had alcohol in his system although he displayed no indicia or readily discernable indicators or symptoms of impairment;

• The defendant had two passengers in his motor vehicle;

• The vehicle was being operated at a very high rate of speed that caused the investigating officer to conclude that the vehicle had "bottomed out" or the chassis had come in contact with the surface of the road as a consequence.

[74] Considering all of these factors, I conclude the Crown has established the actus reus of the offence by proving that the defendant drove in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place. While the driving took place very early in the morning, I accept the officer's representation that there was other traffic on the road including a motor vehicle that was required to take evasive action as the Bentley crossed into oncoming traffic.

[75] I am also satisfied that the Crown has established proof of the mens rea of the offence on the basis of proof beyond a reasonable doubt. In my estimation, the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at paragraph 43).

[76] The absence of reasonable care can be inferred from the manner in which the defendant drove the vehicle. The observed driving constitutes a marked departure from the norm of a reasonably prudent driver. This is not a circumstance involving the consideration of a mere departure from the standard of care that would justify civil liability. The extremely excessive speed, veering into oncoming traffic, the presence of alcohol in the defendant's system, and placing the lives and safety of others at risk, are factors that combine to constitute a marked departure from what one might expect from a reasonably prudent driver. These factors demonstrate that the defendant displayed a lack of care sufficient to warrant criminal punishment (see Beatty, at paragraph 48).

[77] Consideration of the totality of the aforementioned factors leads me to conclude that the defendant intentionally drove the motor vehicle in a way that "goes markedly beyond mere carelessness" (see Roy, paragraph 30).

[78] In these circumstances, I conclude the Crown has established that the driving, when viewed objectively, was dangerous to the public. Driving at such a high rate of speed, with alcohol in his system, placed the lives and safety of the defendant, his two passengers and other motorists at risk. It is reasonable to assume that the excessive speed was at least a contributing factor to the momentary veering into oncoming traffic as the defendant attempted to negotiate a bend in the roadway during the period in which his vehicle was under observation by the investigating officer. This placed the lives and safety of other motorists at risk and caused at least one vehicle to take evasive action. As a consequence of the manner of operation of the defendant's motor vehicle, risk of damage or injury to others was created.

[79] A reasonable person would have foreseen the risk and taken steps to avoid such a circumstance.

[80] On consideration of all of the factors characterizing the manner of operation on the night in question, I conclude it was simply a matter of good fortune that no one was injured, or worse, and no property damaged. I conclude the appellant was aware of the risk he was creating and deliberately chose to run that risk. While the offending driving behaviour took place over a relatively short period of time, it cannot be concluded that it was the product of a momentary error in judgment or inadvertence.

[81] I accept that there was no evidence that the driving leading up to the offending conduct was other than normal and prudent driving. The manner of driving thereafter, on its own, supports a reasonable inference that the standard of care exhibited by the defendant was a marked departure from that expected of a reasonable driver in the same circumstances.

[82] In reaching this conclusion, I am mindful that the defendant denied travelling at the rate alleged by the investigating officer and that he refutes the assertion that he travelled into oncoming traffic. I reject the defendant's factual assertions on these two issues. The officer's utilization of a radar measuring device provides empirical verification of the rate of travel at some stage of the observed period of driving. I am also satisfied that the officer's proximate vantage point provided an unimpeded view of the path of travel of the vehicle operated by the defendant.

[83] For the aforementioned reasons, I am not left in a state of reasonable doubt by the defendant's recollections as to the speed of travel or his denial of the observed drifting into the path of an oncoming car. I do not believe his representations on those matters. While the defendant may have had occasion to glance at the Bentley's speedometer, it is difficult to accept his representations as to the rate of speed in the face of compelling evidence to the contrary. Even at the rate of speed acknowledged by the defendant, it is not difficult to envision that some difficulty might be encountered in negotiating a bend in a street late at night on a roadway governed by a 50 kilometre per hour speed limited, the defendant's representations to the contrary notwithstanding.

[84] For the aforementioned reasons, I am therefore satisfied that the Crown has established proof of the offence of dangerous driving on the basis of proof beyond a reasonable doubt and the defendant shall accordingly be found guilty of that charge.

Justice P.D. Tetley

Released: November 2, 2015