Court Information and Parties

Information No.: 3711-999-14-1012-01 and 3711-999-14-1012-02

Ontario Court of Justice East Region

Her Majesty the Queen v. Brandon Lundquist and Gabriel Begin

Before: The Honourable Mr. Justice Grant Radley-Walters

Heard: April 13th, August 31st, September 4th, September 24th, and November 6th, 2015 in Pembroke

Released: January 22nd, 2016

Charge

Dangerous driving while racing, contrary to section 249.4(2) of the Criminal Code of Canada

Appearances

Anya Kortenaar – Counsel for the Crown

Michael March – Counsel for Brandon Lundquist

Anna Brylewski – Counsel for Gabriel Begin

Reasons for Judgment

Introduction

[1] The defendants, Brandon Lundquist and Gabriel Begin are charged jointly on a single Information with operating a motor vehicle in a race with another vehicle on a street, to wit, Forrest Lea Road in a manner that was dangerous to the public, contrary to section 249.4(2) of the Criminal Code of Canada.

[2] The charge against each of the individuals arises out of allegations on the 26th day of August, 2014 at the Township of Laurentian Valley, in the County of Renfrew. The Crown elected to proceed by summary conviction and each of the accused persons pled not guilty.

[3] The accused persons made various submissions at the outset of the trial. Brandon Lundquist admitted that he was the driver of a Ford pick-up truck on the date in question. Gabriel Begin admitted that he was the driver of a Ford Mustang on the date in question. Both accused persons admitted the geographical jurisdiction as well as the date in question.

[4] The first day of this trial took place on April 13th, 2015. The second date of the trial took place on August 31st, 2015. The third day of the trial took place on September 4th, 2015. The fourth day of the trial took place on September 24th, 2015 and finally the matter was concluded on November 6th, 2015.

Facts

[5] Both accused persons testified in this trial and acknowledged that they were friends of one another and both worked at Garrison Petawawa for the Canadian Forces. Mr. Begin had been living in the home of Mr. Lundquist and his spouse. On August 26th, 2014, the two accused persons decided to go for a drive in their separate vehicles. There was no particular destination in mind when they left their residence. Mr. Lundquist was trying to sell his half ton truck and thought that he would go for one of the last drives in that vehicle before it was sold. The two accused persons travelled down highway 417 to the intersection of Forrest Lea Road. They turned in a southerly direction on that road. Both vehicles were driving beyond the speed limit on Forrest Lea Road. Mr. Begin drove his Mustang motor vehicle through the intersection of Forrest Lea Road and Doran Street without stopping. Mr. Lundquist rolled his half ton truck in the area of the north east corner of Forrest Lea Road and Doran Street.

[6] In addition to the two accused persons testifying, several civilians testified as well as two police officers and a collision reconstruction expert.

Witness Testimony

[7] Mary Ann Taman testified for the Crown that she was at the Forest Lea Stables on Forest Lea Road. She confirmed that she boards her horse at these stables and she was walking from the farm house area to the barn to attend to her horse. She confirmed that in the course of walking to the barn, she looked over her left shoulder and heard the revving of engines and the squeal of tires. She testified that prior to hearing the vehicles squeal their tires, she had seen the two motor vehicles occupying both the southbound lane heading towards Doran Street as well as occupying the northbound lane. Both vehicles were pointed in the southerly direction. She confirmed that the two vehicles were stationary for a few minutes during the period of time that she walked from the farm gate towards the barn. While the two motor vehicles were stationary the two drivers were talking with one another. She testified that both motor vehicles were accelerating quickly in the southerly direction and were side by side for approximately 600 feet until she lost sight of them. In cross-examination Ms. Taman was contradicted on a number of elements of her testimony. The first issue was whether or not the motor vehicles were stopped when the two drivers were having a conversation with one another. On three separate occasions, Ms. Taman testified that she was "pretty sure" that the motor vehicles were stopped. In re-examination she testified that the motor vehicles were stopped. With respect to the description of the vehicles, Ms. Taman testified that in her police statement she identified the Mustang motor vehicle as having a bumble bee pattern of stripping which would have been from side to side. In her examination-in-chief she clarified this and said that the stripes went length wise from the front of the vehicle to the back of the vehicle. With respect to the pick-up truck, Ms. Taman described it as a four door vehicle in examination-in-chief but had to admit that it was a two door half ton truck when she saw the photo of it in cross-examination. On the issue of timing and Ms. Taman's attention to what she observed, in cross-examination she confirmed that she did not stop and watch them having their conversation but she was simply walking towards the barn. She also confirmed that when she saw the two motor vehicles accelerating, it was fast and it would have taken a matter of seconds. In cross-examination by Mr. Begin's counsel, Ms. Taman was asked how long do you think that the conversation took place between the drivers. Ms. Taman responded that she might have taken a number of steps as she was walking towards the barn. Finally, Ms. Taman acknowledged that as a result of her observations she did not do anything in terms of contacting the police initially. It was only when a pedestrian came to the area of the Forest Lea Stables sometime later and recounted that an accident had taken place at the corner of Forest Lea Road and Doran Road that Ms. Taman went down to the accident scene and advised the police as to what she had seen.

[8] I find that the contradictions in the testimony of Ms. Taman lead me to limit significantly the weight that I can place on her evidence. In addition, her testimony is contradicted by the Accident Reconstruction Expert, the Motor Vehicle Accident Report as well as the testimony of a civilian witness, Collinda Elliott. I find that the evidence of the Reconstruction Expert, Constable Luc Poirier, as well as the Motor Vehicle Accident Report which identifies the location of various skid marks from the two motor vehicles lead me to find beyond a reasonable doubt that the two motor vehicles were travelling one behind the other as opposed to side by side in the area just before the intersection of Forest Lea Road and Doran Road. The civilian, Collinda Elliott, who was travelling in a westerly direction on Doran Street, saw the Mustang blow through the intersection at Forest Lea Road and Doran Street, followed by a few seconds later with the half ton truck rolling in the ditch near Forest Lea Road. The evidence of these two witnesses confirmed to me that the two motor vehicles in question were not racing side by side for an extended period of time on Forest Lea Road but that the Mustang was leading the half ton truck while both vehicles were driving quickly. This is consistent with the testimony of the two accused persons.

[9] Blair Walton testified that he was the owner of a house located on the corner of Forest Lea Road and Doran Road. He testified that he heard screeching tires and saw the grey half ton truck coming into his yard and flipping over onto its roof. He confirmed that the tire marks on Forest Lea Road were not present before the accident in question but that they were there after the accident. Mr. Walton attended to the accused, Brandon Lundquist, who he identified as the driver of the half ton truck. Mr. Lundquist admitted to Mr. Walton that he did not see the stop sign at the intersection of Forest Lea Road and Doran Road until it was too late. Mr. Walton testified that the driver of the Mustang was the accused, Gabriel Begin, and that after the accident he came over to check on the accused, Brandon Lundquist to ensure that he was all right.

[10] Sergeant Chris Pinkerton of the Ontario Provincial Police testified that he arrived on the scene shortly after the accident in question and he assisted in preparing a motor vehicle accident report. He measured the three skid marks which are identified in the accident report which was entered as exhibit #2 in this trial. Those skid marks that were measured by Sergeant Chris Pinkerton formed the foundation of the accident reconstruction report of Constable Luc Poirier. I am prepared to accept that the skid marks in question were marks left by the motor vehicle of the accused, Brandon Lundquist and the accused, Gabriel Begin.

[11] Constable Luc Poirier was qualified as a Collision Reconstruction Expert on consent. He prepared a report which was introduced as Exhibit #5 in the trial. He did not rely on any witness statements for his report, but only the physical evidence. He testified that based on the skid marks and the scientific principle of, "coefficient of friction" that he was able to establish the deceleration of each of these motor vehicles. He was able to testify with certainty that Mr. Lundquist's half ton truck decelerated in speed by 103 kilometres per hour from the commencement of the skid mark until the half ton truck moved to the left and entered the southbound ditch and ultimately flipped onto its roof and collided with a tree.

[12] Constable Luc Poirier was also able to testify with certainty that the other two skid marks confirmed that the second motor vehicle decelerated by at least 107 kilometres per hour between the commencement of the skid mark and the conclusion of the skid mark. He also testified that that particular motor vehicle would not have been able to stop before entering the intersection of Forest Lea Road and Doran Road based on when the driver of that motor vehicle first applied the brakes. Constable Poirier was not able to confirm the sequence of the two motor vehicles and where they were in relation to one another based on the physical evidence of tire marks on the road.

[13] As noted above, Collinda Elliott testified that she was driving in a westerly direction on Doran Street approximately two to three hundred feet before the intersection in question. She was turning right onto Forest Lea Road and proceeding in a northerly direction on Forest Lea Road. She observed a Mustang motor vehicle blow through the intersection very quickly at a high rate of speed. She acknowledged that if she had been at the intersection sooner, she could have been hit. She further testified that approximately one to two seconds later, she saw a half ton truck off the travel portion of the road near the intersection rolling. She testified that she saw the Mustang motor vehicle travel in a southerly direction on Forest Lea Road and later return to the intersection where it stopped. She saw the driver of the Mustang vehicle get out of his vehicle and speak with the driver of the half ton truck. She confirmed that she did not at any point in time see the two motor vehicles at exactly the same time. Based on her testimony which I accept, I am satisfied beyond a reasonable doubt that the accused, Gabriel Begin, was driving a Mustang motor vehicle at a high rate of speed on Forest Lea Road in a southerly direction followed by the accused, Brandon Lundquist.

Defence Testimony

[14] Both the accused, Brandon Lundquist and the accused, Gabriel Begin, testified in their defence at this trial. The accused, Brandon Lundquist, testified that he owned the two-door Ford F-150, 2004 half ton truck. He confirmed that the brakes were not the best in that particular truck and it had a stiff suspension. He confirmed that he had owned it for two years before the accident. He confirmed that he had recently purchased a 2013 Ram 1500 pick-up truck and as a result of that he was in the process of advertising the Ford truck for sale and attempting to sell it. He confirmed that Gabriel Begin was a friend of his and in fact was residing in his house in August 26th, 2014. Mr. Lundquist testified that he and Mr. Begin decided to go for a ride in their separate motor vehicles. He testified that they left the Petawawa area on Doran Road and turned left on Highway 17 towards Pembroke. In a passing lane, Mr. Lundquist confirmed that he passed Mr. Begin and then turned right in a southerly direction on Forest Lea Road. He confirmed that he was not too familiar with the roads on the right side of Highway 17. Mr. Lundquist testified that he slowed down on Forest Lea Road to allow Mr. Begin to come along side of him in the northbound lane. They had a short conversation at that time in which Mr. Begin indicated that he knew the route home and instructed Mr. Lundquist to follow him. Mr. Lundquist testified that they did not come to a complete stop. Mr. Lundquist acknowledged that he was not paying attention to the road signs while driving on Forest Lea Road and that he was just trying to keep up with Mr. Begin. He confirmed that he did not look at his speedometer but did notice Mr. Begin's brake lights on his motor vehicle coming up abruptly. He realized that there was a stop sign and he locked on his brakes. He felt the rear portion of his motor vehicle bounced around and so he took his foot off the brake and veered his motor vehicle to the left into a residential lawn. The motor vehicle went down the ditch into the lawn and rolled ultimately stopping after it hit a tree. He confirmed that he had not consumed any alcohol or drugs prior to the motor vehicle accident and there is no evidence of any other witness that he had consumed alcohol or drugs. He confirmed that subsequent to the accident that he did not make a claim against his insurance company for the loss that he suffered in the destruction of his truck. He confirmed that he was approximately 50 to 70 feet behind Mr. Begin's motor vehicle when he applied his brakes. He disagreed with the evidence of Ms. Taman that they came to a full stop when he was speaking with Mr. Begin but that they were simply rolling slowly side by side. He also disagreed that both motor vehicles were accelerating side by side. In cross-examination, Mr. Lundquist acknowledged that he should have paid more attention to both his speed and his surroundings on the date in question. He confirmed that he was not familiar with the roads in that area. He acknowledged that he could have been going 120 kilometres per hour on a road that he did not know. He confirmed that it was "dumb" to go that speed.

[15] Gabriel Begin testified in his own defence and his testimony effectively matches that of Brandon Lundquist. He confirmed that he did not see the warning sign for the stop sign which was approximately 250 metres north of the intersection of Forest Lea Road and Doran Road because he thought he was looking in the rear view mirror at that time. He also acknowledged that he could have been going 120 kilometres per hour.

Credibility Assessment

[16] Since this is a case in which the two accused persons testified in their own defence, I must assess their credibility and reliability. The Supreme Court of Canada in the decision of R. v. W.(D.), [1991] 1 S.C.R. 742, has provided some guidance to trial judges in cases such as the present one before the court on the issue of credibility and reliability.

[17] That case stands for the proposition that when an accused person testifies and that testimony raises a defence and the trial judge accepts the testimony then the trial judge must acquit the accused.

[18] The second stage of the analysis relates to the scenario whereby the trial judge rejects the testimony of the accused. In those cases, the Crown still has a positive obligation to prove beyond a reasonable doubt all of the essential elements of the charge against the accused. If the Crown fails in this task or the trial judge is left in a state of doubt, then the trial judge must again acquit the accused. It is only in the case where the Crown has proven beyond a reasonable doubt, all of the essential elements of the charge against the accused that the trial judge may convict the accused.

[19] I find that both the accused persons, Brandon Lundquist and Gabriel Begin, generally were credible and reliable in their testimony, but I do accept the testimony of the Accident Reconstruction Expert as well as the testimony of Collinda Elliott over their individual testimony when those two testimonies conflict. I also accept the admissions of Brandon Lundquist and Gabriel Begin that they were driving too fast and that neither of them were paying appropriate attention to the Highway Traffic Act signs.

Issues

[20] Has the Crown proven beyond a reasonable doubt all of the essential elements of the charge against the two accused persons?

[21] Specifically has the Crown proven that each of the accused persons operated a motor vehicle in a race with another motor vehicle on Forest Lea Road?

Analysis

Legal Framework for Dangerous Driving

[22] The leading case dealing with the offence of dangerous driving has for some times been the case of R. v. Hundal, [1993] 1 S.C.R. 867. The Supreme Court of Canada considered the case of R. v. Hundal in the decision of R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49. Madam Justice Charron delivered the majority decision in the Beatty case. In paragraph 41 she stated:

[41] In Hundal, Cory J. summarized the analytical framework for applying the modified objective test in the following oft-quoted passage (at pp. 888-89):

It follows then that a trier of fact may convict if 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 such place and the amount of traffic that at the time is or might reasonably be expected to be on such place". In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation.

Madam Justice Charron also stated in paragraph 43:

[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.

Definition of Racing

[23] The Court of Appeal of Alberta has written on the issue of dangerous driving while street racing in the case of R. v. Gould, 2012 ABCA 339. The Court stated in that case as follows in paragraphs 3, 4 and 5.

[3] The trial judge gave extensive written reasons found at R v Gould, 2011 ABPC 164. One of the main issues at trial was whether the appellant was involved in a street race. The trial judge referred to the definition of "street racing" set out in section 2 of the Criminal Code:

"street racing" means operating a motor vehicle in a race with at least one other motor vehicle on a street, road, or highway or other public place;

[4] The word "race" is not defined in the Code. The trial judge at para 245 referred to the following definition from R v Menezes, [2002] OTC 118, 50 CR (5th) 343 at para 83 (Sup Ct Just):

It is important not to be hyperfocused on whether the drivers' conduct actually amounted to a race within the exact definitional contemplation of a dictionary or the provincial highway traffic legislation. Frequently, there is no racetrack, no agreed‑upon finish line, and certainly no regard for the hazards created. We have come to accept as a matter of common sense that the synchronized or in‑tandem movements of two motor vehicles marked by high speed and close proximity over a material distance, often accompanied by abrupt lane changes, blocking, or bold manoeuvres in and out of traffic, amounts to racing behaviour even though all the trappings of a drag race may not be present.

[Emphasis added by trial judge]

[5] The trial judge also referred to a list of non‑exhaustive factors set out in R v Machado, 2010 ONSC 277, 92 MVR (5th) 58, intended to provide guidance in assessing whether the Crown has established that an accused was racing. In that case, the court stated at para 18:

In the absence of direct evidence of a race, the following non‑exhaustive list from Menezes and the other cases noted earlier will provide some guidance in assessing whether the Crown has established that aggravating factor beyond a reasonable doubt. That one, two or even most of the items listed are absent will not necessarily result in a finding a race has not been established:

(1) two vehicles travelling at excessive speeds; (2) two vehicles being driven aggressively in tandem; (3) two vehicles in close proximity to each other over a material distance; (4) one vehicle tailgating the other or other vehicles; (5) abrupt and unsafe lane changes; (6) blocking; (7) bold manoeuvres in and out of traffic; (8) jockeying for position; (9) high‑risk passing manoeuvres; (10) acts or gestures between the drivers; (11) lay witness' opinions that the drivers appeared to be racing although a conclusory statement that the drivers were racing is of minimal evidentiary value without the bases upon which the witness reached that conclusion. It would be akin to seeking to establish dangerous driving where the only evidence was a witness who said, "I was sitting on my porch and the accused drove his car down the road in a dangerous manner."

Application to the Facts

[24] For the reasons that follow, I find that the Crown has not proven beyond a reasonable doubt that the two accused persons were operating a motor vehicle in a race with one another. I do however find beyond a reasonable doubt that they were operating their motor vehicles in a manner that was dangerous to the public by virtue of the fact that they were travelling far too quickly on a rural road that they did not know well and they were not paying attention to the highway traffic signs on that road. I am also making a finding that the offence of dangerous driving is a lesser and included offence in the charge under section 249.4(2) of dangerous driving while racing.

[25] On the issue of racing, I make the following findings of fact. As noted above, the two accused persons were driving their respective motor vehicles on Highway 17 and turned south on Forest Lea Road. At that point, the accused, Lundquist was in front of the accused, Begin. Lundquist slowed his motor vehicle down in the area of the Forest Lea Stables. The accused, Begin pulled up beside the accused, Lundquist and they had a short conversation in which they agreed to return home. Since the accused Lundquist was unsure of the directions in this area, the two of them agreed that the accused, Begin would lead the way home and the accused, Lundquist would follow him. I find that from the point from Forest Lea Road adjacent to the Forest Lea Stables to the intersection of Forest Lea Road and Doran Road, is less than one kilometre. That intersection is marked by a large stop sign. In addition, preceding that stop sign by approximately 250 metres there is another highway traffic sign warning that the intersection is ahead. The accused, Begin accelerated his motor vehicle and pulled in front of the accused, Lundquist's vehicle. They both accelerated quickly on Forest Lea Road with the accused, Begin in the front and the accused, Lundquist following him. I find that both vehicles accelerated to speeds in excess of 110 kilometres per hour in an 80 kilometre zone. Based on these speeds, I find that the accused, Lundquist was following too closely to the accused, Begin. I find that the two accused persons were not racing in the sense that the accused, Lundquist was not trying to over-take the accused, Begin. In addition, I find that the accused, Lundquist was not trying to arrive at a specific destination ahead of Begin. Referring to the list of potential factors noted above, in the case of R. v. Gould, supra, I find that neither of the accused persons engaged in abrupt or unsafe lane changes, neither of the accused persons attempted to block one another or engaged in bold manoeuvers in and out of traffic. They did not attempt to jockey for position and they did not engage in high risk passing manoeuvers. I am not satisfied beyond a reasonable doubt that these two accused persons were engaged in racing within the meaning of section 249.4(2).

[26] With respect to the issue of dangerous driving, I find that both of the accused persons were driving far too quickly on a rural road that they did not know well. The accused, Lundquist was following too closely behind the accused, Begin given their high rates of speed. Neither of the accused persons were paying attention to the road signs such that neither of the accused persons saw the warning sign alerting to them to the fact that there was an intersection and stop sign ahead. The accused, Begin saw the stop sign too late to avoid going through the intersection even though he had slammed on his brakes in an attempt to stop before the intersection. I am satisfied beyond a reasonable doubt that each of the accused persons' conduct amounted to a marked departure from the standard of care that a reasonable person would observe in their individual circumstances. I accept the evidence of Collinda Elliott that if she had arrived at that intersection merely seconds before she actually did, that she could have been involved in an accident with the accused, Begin. In addition, I accept the evidence of Mary Ann Taman that a lady was walking her baby carriage along Forest Lea Road sometime after the accused persons were driving on Forest Lea Road. In addition, there is typically traffic on that road. Collinda Elliott also testified that there was a man on a bicycle on Doran Road who arrived shortly after the accident in question. I am therefore satisfied beyond a reasonable doubt that the driving of the two accused persons was dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of Forest Lea Road and the amount of traffic, it might reasonably be expected to be on Forest Lea Road and Doran Road at that time. I am also satisfied beyond a reasonable doubt that each of the accused person's objectively dangerous conduct was accompanied by the required mens rea. I am satisfied beyond a reasonable doubt that a reasonable person who acknowledged that they were unfamiliar with the geographical area on Forest Lea Road would have driven at a reduced rate of speed and paid attention to road signs in order to reach their ultimate destination safely.

Lesser Included Offence

[27] On the issue of whether the offence of dangerous driving under section 249(1) of the Criminal Code is a lesser included offence of the offence of dangerous operation of a motor vehicle while street racing, contrary to section 249.4, I am satisfied that it is a lesser and included offence. The law regarding lesser and included offences is set out in the case of R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371. Mr. Justice Binnie for the majority stated at paragraphs 25 through 30.

E. The Law Governing "Included" Offences

25. An offence is "included" if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself. The test is strict. It must "necessarily" be included, per Martland J. in Lafrance v. The Queen, [1975] 2 S.C.R. 201, at pp. 213-14:

. . . the offence created by s. 281 [joy-riding] is not necessarily included in the charge of theft . . . and it is not included in the count as charged in the present case. [Emphasis added.]

What is not "necessarily included" is excluded. See also Fergusson v. The Queen, [1962] S.C.R. 229, [page 386] at p. 233; Barton v. The King, [1929] S.C.R. 42, at pp. 46-48.

26. The strict interpretation of s. 662 is linked to the requirement of fair notice of legal jeopardy, as emphasized by Sheppard J.A. in R. v. Manuel (1960), 128 C.C.C. 383 (B.C.C.A.):

Further, to be an included offence the inclusion must form such an apparent and essential constituent of the offence charged that the accused in reading the offence charged will be fairly informed in every instance that he will have to meet not only the offence charged but also the specific offences to be included. Such apparent inclusion must appear from "the enactment creating" the offence or "from the offence as charged in the count"; either of those two may be considered under [s. 662(1)] but not the opening by counsel or the evidence. [Emphasis added; p. 385.]

27. Martin J.A. of the Ontario Court of Appeal also insisted on making clear to an accused the precise extent of his or her legal jeopardy:

The offence charged as described either in the enactment creating the offence, or as charged in the count, must contain the essential elements of the offence said to be included. . . .

. . . the offence charged, as described either in the enactment creating the offence or as charged in the count, must be sufficient to inform the accused of the included offences which he must meet. [Emphasis added.]

(R. v. Simpson (No. 2) (1981), 58 C.C.C. (2d) 122, at p. 133 (leave to appeal refused, [1981] 1 S.C.R. xiii); see also R. v. Harmer and Miller (1976), 33 C.C.C. (2d) 17 (Ont. C.A.), at p. 19.)

28. The principles set out in Martin J.A.'s encyclopaedic reasons for judgment in Simpson (No. 2) have since been adopted and applied across Canada, including the Quebec Court of Appeal in R. v. Drolet (1988), 14 M.V.R. (2d) 50, aff'd , [1990] 2 S.C.R. 1107; R. v. Allard (1990), 36 Q.A.C. 137; R. v. Colburne (1991), 66 C.C.C. (3d) 235. See also: R. v. Morehouse (1982), 65 C.C.C. (2d) 231 (N.B.C.A.), leave to appeal refused, [1982] 1 S.C.R. xi; R. v. Angevine (1984), 61 N.S.R. (2d) 263 (S.C., App. Div.); Plank; R. v. Taylor (1991), 66 C.C.C. (3d) 262 (N.S.S.C., App. Div.); R. v. Webber (1995), 102 C.C.C. (3d) 248 (B.C.C.A.); R. v. Rowley (1999), 140 C.C.C. (3d) 361 (Ont. C.A.); R. v. Beyo (2000), 144 C.C.C. (3d) 15 (Ont. C.A.), leave to appeal refused, [2000] 2 S.C.R. vi.

29. At common law, where an offence consisted of several ingredients ("divisible") the jury could convict of any offence "the elements of which were included in the offence charged, subject to the rule that on an indictment for felony the jury could not convict of a misdemeanor" (Simpson (No. 2), at p. 132). The subject is now governed by statute, and s. 662 authorizes convictions for "included" offences in only three categories:

(a) offences included by statute, e.g., those offences specified in s. 662(2) to (6), and attempts provided for in s. 660;

(b) offences included in the enactment creating the offence charged, e.g., common assault in a charge of sexual assault;

(c) offences which become included by the addition of apt words of description to the principal charge.

In none of these categories is there reference to the "sufficiency" of the factual particulars of the transaction underlying the charge. That is a wholly different subject and is dealt with in s. 581 of the Code.

30. In terms of the need for fair notice, "included" offences in the first category can be ascertained from the Criminal Code itself: see, e.g., R. v. Wilmot, [1940] S.C.R. 53. Cases in the second category also meet the test of fair notice because "an indictment charging an offence also charges all offences which as a matter of law are [page 388] necessarily committed in the commission of the principal offence as described in the enactment creating it" (Harmer and Miller, at p. 19 (emphasis added)). See also: R. v. Quinton, [1947] S.C.R. 234, at p. 240; R. E. Salhany, Canadian Criminal Procedure (6th ed. (loose-leaf)), at para. 6.4650; R. v. Lucas (1987), 34 C.C.C. (3d) 28 (Que. C.A.); R. v. Lépine, [1993] R.J.Q. 88 (C.A.).

[28] I find that in each case, the accused persons were charged that they operated a motor vehicle in a race with another vehicle on a street in a manner that was dangerous to the public. I am satisfied that the two accused persons had been fairly informed by the information that they would have to meet not only the charge of 249.4(2) but also 249(1), and that they have not been prejudiced in any manner.

Conclusion

[29] I am satisfied beyond a reasonable doubt that the Crown has proven all of the essential elements of the lesser but included offence of dangerous driving contrary to section 249(1) of the Criminal Code against each of the accused persons. There will be convictions registered against each of the accused persons under section 249(1) of the Criminal Code.

The Honourable Mr. Justice G. Radley-Walters