Court File and Parties

Court File No.: Central West Region 14-2743 Date: October 6, 2016 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jerome Kwak

Before: Justice Alan D. Cooper

Heard on: August 18, 2016

Reasons for Judgment released on: October 6, 2016

Counsel:

• Andrea Camilletti for the Crown
• Kevin K. McCallum for the accused Jerome Kwak

Cooper J.:

Case History

[1] Jerome Kwak is charged with committing the offence of dangerous driving on the Queen Elizabeth Way on September 17, 2014.

The Crown Evidence

[2] Officer Robert Conant, of the Ontario Provincial Police, was driving a marked police cruiser westbound on Trafalgar Road at 7:31pm when he noticed a silver car enter the highway from an onramp. It was going 140 kilometers per hour in a 100 kilometers per hour zone. The roads were dry, the weather clear, and dusk was approaching but it was not yet dark. The usual heavy rush hour traffic was now over.

[3] There are three general lanes of traffic in this location, plus a high occupancy vehicle [HOV] lane which is on the very left of the highway. The car drove from the far right lane to the far left one in one motion, and then accelerated. This caused two vehicles to brake. Officer Conant was also in the left lane and now behind the silver car.

[4] The car then went back to the right lane, all in one motion and without employing any car signals. It then went back to the left lane in one motion and without signals. More vehicles had to brake.

[5] Past 3rd Line, the car went into the HOV lane on the far left side of the highway, and so did the pursuing officer, who was driving at 160 kilometers per hour. He was unable to keep up with the speed of the silver car.

[6] At Burloak Drive, the car went from the HOV lane to the left lane and cut off a car which had to brake to avoid a collision. After passing a car which had been ahead in the HOV lane, the car went back into the HOV lane. Again, in order to get ahead of a car in front, the car went into the left lane again and then back into the HOV lane. No signals were utilized and another car had to brake.

[7] Officer Conant got behind the car and activated his emergency lights and siren in order to stop the vehicle. The car sped up but then braked hard and went from the HOV lane to the right shoulder and onto the offramp at Appleby Line, and cut off a tractor-trailer which had to brake to prevent an accident.

[8] The driver was Jerome Kwak, the defendant. He was arrested for the offence before the court and his silver Audi car was towed from the scene.

[9] Under cross-examination, officer Conant testified that no other cars were passing his cruiser. He used his odometer to clock the defendant's speed, and said that he drives the same vehicle every day he is on duty. He gave evidence that the whole incident took three minutes, at most.

Defence Evidence

[10] No defence evidence was called.

The Law

[11] The onus is on the Crown to prove the guilt of the defendant beyond a reasonable doubt.

[12] Section 249(1) of the Criminal Code states that "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"

[13] In R. v. Roy, 2012 SCC 26, Cromwell J., for the court, stated as follows:

28 In Beatty, the majority of the Court spoke through the reasons of Charron J. which of course are the authoritative statement of the relevant principles. In brief, the Court decided as follows. The actus reus of the offence 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 (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused's was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). 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 (para. 48).

29 It will be helpful to reiterate the main elements of the majority reasons in Beatty.

(2) The Importance of the Fault Requirement for Dangerous Driving

30 A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

31 From at least the 1940s, the Court has distinguished between, on the one hand, simple negligence that is required to establish civil liability or guilt of provincial careless driving offences and, on the other hand, the significantly greater fault required for the criminal offence of dangerous driving (American Automobile Ins. Co. v. Dickson, [1943] S.C.R. 143). This distinction took on added importance for constitutional purposes. It became the basis for differentiating, for division of powers purposes, between the permissible scope of provincial and federal legislative competence as well as meeting the minimum fault requirements for crimes under the Canadian Charter of Rights and Freedoms (O'Grady v. Sparling, [1960] S.C.R. 804; Mann v. The Queen, [1966] S.C.R. 238; Hundal). Thus, the "marked departure" standard underlines the seriousness of the criminal offence of dangerous driving, separates federal criminal law from provincial regulatory law and ensures that there is an appropriate fault requirement for Charter purposes.

32 Beatty consolidated and clarified this line of jurisprudence. The Court was unanimous with respect to the importance of insisting on a significant fault element in order to distinguish between negligence for the purposes of imposing civil liability and that necessary for the imposition of criminal punishment. As Charron J. put it on behalf of the majority, at paras. 34-35:

If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.

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. [Emphasis added.]

(3) The Actus Reus

33 Beatty held that the actus reus for dangerous driving is as set out in s. 249(1)(a) of the Code, that is, 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" (para. 43).

34 In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, "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" (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. 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.

35 To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving.

(4) The Mens Rea

36 The focus of the mens rea analysis is on 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 para. 48). 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.

37 Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in Beatty, put it this way: "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy" (para. 34). The Chief Justice expressed a similar view: "Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving" (para. 71).

38 The marked departure from the standard expected of a reasonable person in the same circumstances -- a modified objective standard -- is the minimum fault requirement. 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 (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).

(5) Proof of the "Marked Departure" Fault Element

39 Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused's actual state of mind (para. 43).

40 Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty, at para. 37.

41 In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference 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.

42 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). 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.

[14] The factual situation in R. v. Roy is set out below:

A. Overview of the Facts

5 The appellant pulled his motor home out from a stop sign onto a highway and into the path of an oncoming tractor-trailer. In the collision that resulted, the appellant's passenger was killed. The appellant was convicted of dangerous driving causing death and his appeal to the Court of Appeal was dismissed. The facts are as simple as they are tragic.

6 On an afternoon in late November 2004, the appellant and Mark Anthony Harrington decided to return home after work at a sawmill near Vavenby, a town north of Kamloops, British Columbia. They left work together in the appellant's motor home to head back to a trailer park where they lived. They took a shortcut via the Harmon Road to reach Highway 5, the Southern Yellowhead Highway, and then planned to head south on the highway to the trailer park. The Harmon Road is an unpaved back road which becomes relatively steep as it approaches the intersection with the highway. The appellant knew the Harmon Road well, having driven it to and from Highway 5 about 500 times before.

7 The Harmon Road intersects with Highway 5 in such a way that vehicles intending to turn from the road onto the highway to head south, as the appellant did to return to the trailer park, usually first veer towards the north in order to come squarely to the intersection. This enables them to better see the oncoming northbound traffic and better determine when it is safe to turn left, and cross the northbound lanes to head south. Constable Campbell testified that to turn onto the highway, he has "to turn towards the right so I can come square at the intersection so I can see both ways". That afternoon, visibility was limited due to fog and the Harmon Road was snow-covered and slippery.

8 On the afternoon of the accident, Michael McGinnis, accompanied by his daughter Darlene, was driving a tractor-trailer northbound on the highway. As he was approaching the Harmon Road intersection at about 3:00 p.m., the fog was thickening and the visibility was poor. The trial judge accepted Mr. McGinnis's evidence that the weather conditions led him to decrease his speed to between 75 and 80 kilometres per hour. That was the speed he was driving when, from a distance, he noticed the headlights of what we now know to have been the appellant's vehicle pointing towards him from what Mr. McGinnis assumed was the shoulder of the highway or the top of the side road. Although the trial judge did not make a specific finding on the point, both Mr. McGinnis and his passenger thought that the appellant's vehicle had stopped before proceeding onto the highway, although his passenger was not sure. Mr. McGinnis also testified that when he first saw the lights of the appellant's vehicle, he guessed that it was about 300-400 feet away but that it could have been as little as 100 feet.

9 When Mr. McGinnis saw the headlights, he took his foot off the accelerator. When he then realized that the appellant's vehicle was proceeding onto the highway, he applied his brakes, but it was too late. His truck violently collided with the appellant's vehicle, killing Mr. Harrington. The appellant survived, but the collision left him with no memory of either its circumstances or of the surrounding events.

[15] In R. v. Richards, it was held that "depending on the context in which it occurred, excessive speed can amount to a marked departure from the standard of care of a prudent driver."

Analysis

[16] In R. v. Roy (supra), the actus reus was made out because the act of pulling out from a side road onto a highway in front of an oncoming tractor-trailer was, viewed objectively, dangerous to the public in all the circumstances. However, because of the road and weather conditions, the driving, despite the death of a passenger, was found to be simple negligence and not a marked departure from the standard expected of a reasonable person in the same circumstances. The requisite mens rea was not established.

[17] In the present case I accept the evidence of officer Conant as precise and accurate. The driving of the defendant was, viewed objectively, dangerous to the public in all the circumstances, so that the actus reus has been established beyond a reasonable doubt. He wanted to get ahead of other vehicles and changed lanes without signalling and travelled at an extremely high rate of speed in order to do so.

[18] Even though officer Conant said the driving occurred in a period of three minutes or less, he described a series of manoeuvres which a reasonable person would have foreseen the risks of, and not engaged in at all. The driving was clearly a marked departure from the standard of care expected of a reasonable person in the accused's circumstances. Therefore, the objective mens rea has been established beyond a reasonable doubt.

[19] There was no evidence of any personal attributes of the defendant which might have affected his capacity to appreciate or avoid the risk.

[20] I find as a fact that the defendant, by deliberately driving in the manner he did, had to know the danger he was creating, and yet chose to continue driving as he did, even if it was for no more than three minutes. Therefore his subjective mens rea has also been established beyond a reasonable doubt. The speed he was travelling at was in excess of 160 kilometers per hour in a 100 kilometer per hour zone, on a busy major highway, just after 7:30pm on a week night, and was, in itself, dangerous driving in my view.

Conclusion

[21] I find the defendant guilty, beyond a reasonable doubt, of the offence before the court.

Released: October 6, 2016

Signed: "Justice Alan D. Cooper"