Court Information
Court: Ontario Court of Justice
Date: 2017-03-29
Court File No.: Regional Municipality of Durham 132446
Parties
Between:
Her Majesty the Queen
— AND —
Patrick Anderson
Before the Court
Justice of the Peace: M. Coopersmith
Heard: June 22, 2016 and November 24, 2016
Reasons for Judgment Released: March 29, 2017
Counsel
For the Prosecution: Christine Cain
For the Defendant: Christopher Assie
Charges
On August 15, 2013, in Pickering, Ontario, Patrick Anderson was charged with:
Operating a motor vehicle on Highway 401 while performing a stunt, to wit, speeding 218 kilometres per hour in a posted 100 kilometres per hour speed zone, contrary to s. 172(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8;
Operating a motor vehicle on Highway 401 while racing a motor vehicle, to wit, driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed, contrary to s. 172(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8;
Driving a motor vehicle on Highway 401 while suspended from doing so by the legal suspension of his licence, contrary to s. 53 of the Highway Traffic Act, R.S.O. 1990, c. H.8; and
Operating (having care or control of) a motor vehicle with liquor readily available, contrary to s. 32(1) of the Liquor Licence Act, R.S.O. 1990, c. L.19.
Trial Overview
The trial took place over two days, June 22, 2016 and November 24, 2016. Ontario Provincial Police Officers Dominic Wong and Tim Lamont gave evidence on behalf of the prosecution. The defendant, Patrick Anderson, and his girlfriend, Kayla Salesman, testified on behalf of the defendant.
Issues
The following issues were addressed:
(a) Was the defendant performing a stunt?
(b) Was the defendant racing?
(c) Was the defendant driving while his driver's licence was suspended?
(d) Has the defence of necessity been satisfied on a balance of probabilities?
(e) Was the defendant operating a motor vehicle with open liquor readily available?
(f) Does the principle in Kienapple apply?
Background
The Incident
On August 5, 2013, the morning after Caribana, Kayla Salesman, the defendant's girlfriend, drove them to Markham Station, a restaurant in Scarborough. She drove a grey Mazda-3 motor vehicle. Mr. Anderson's cousin, Ricardo Wright, and his girlfriend drove a red Mustang motor vehicle and met the defendant and his girlfriend at the restaurant. Once their breakfast was ready, they exited the restaurant, carrying their food as they walked towards their vehicles parked in the restaurant parking lot.
As they approached their vehicles, they noticed that a green Audi motor vehicle, with three people inside, had parked between their two vehicles. The person in the front passenger seat jumped out of the Audi, at which time the defendant heard his cousin exclaim "What are you gonna do, shoot me? You gonna shoot me out here? You gonna shoot me?" The defendant called to his cousin to pass him the key to the Mustang. As soon as the cousin threw the key, the defendant jumped into the driver's seat and started the Mustang, as the defendant's cousin jumped into the passenger seat. As the defendant drove forward, the person from the Audi jumped out of the way. The defendant slowly made a U-turn and drove out of the parking lot and onto Markham Road. Seeing the Audi following close behind them, the defendant made his way onto Highway 401 eastbound, as the green Audi continued to follow.
The defendant could not say exactly at what speed he was driving on Highway 401, as he tried to get away from the Audi. Somewhere near Brock Street in Whitby, the defendant noticed the vehicle he was driving hardly had any gas. As he was exiting at Brock Street, he saw a police vehicle behind him with its lights on. He slowed and pulled over to the right. Mr. Anderson testified that, as soon as the police officer approached the defendant, he thanked the officer for saving his life.
Police Investigation
Ontario Provincial Police Officer Wong had been on radar speed enforcement the morning of August 5, 2013. He was located eastbound on the on-ramp to Highway 401 at Whites Road in Pickering. He had tested his Genesis VP directional radar device at 6 o'clock that morning, in accordance with the manufacturer's specifications. He tested it again at the end of his shift. He found the device to be functioning properly and accurately measuring the speed of moving motor vehicles. Officer Wong is trained in the use of that radar device.
At around 6:45 that morning, it was bright and sunny and the road was straight and level. It was Monday of the long August weekend, not a lot of commercial motor vehicles were on the highway and traffic was lighter than on a regular Monday morning. Officer Wong heard a "whoosh" and then observed a very distinct dark Ford Mustang GT or Shelby in the far left eastbound collector lane of Highway 401 at what appeared to be a very high rate of speed. Using the radar device, he targeted the vehicle and obtained a reading of 218 kilometre per hour in the posted 100 kilometres per hour maximum speed zone. Officer Wong followed the Mustang at a high rate of speed. As he rounded a curve in the road and with the rising sun shining in his eyes, he lost sight of the vehicle and radioed for other police officers to be on the lookout for this vehicle. At no time when he was following the Mustang did Officer Wong recall noticing a green Audi motor vehicle in the area. At around 6:50 am, another officer radioed back to inform Officer Wong that the vehicle he had described was exiting at Brock Street in Whitby.
While at the Whitby detachment, located just west of Brock Street and south of Highway 401, Ontario Provincial Police Officer Tim Lamont had heard Officer Wong's call to be on the lookout for the Mustang. He got into his police cruiser and entered Highway 401 on the Ontario Provincial Police's own eastbound ramp access to the highway. Almost immediately, he saw the red Mustang move from the far left lane, to the middle lane, to the right lane and then exit at Brock Street at a high rate of speed that he estimates was between 140 and 150 kilometres per hour. He activated his cruiser lights and effected a traffic stop about 20 metres before Consumers Drive on Brock Street. He identified the driver of the Mustang as Patrick Anderson. Officer Wong soon arrived to take over the investigation.
Officer Wong attended where the Mustang had stopped on the right side of the road and asked the driver for his licence, ownership and proof of insurance. The driver was unable to produce a licence, but verbally identified himself as Patrick Anderson, with a date of birth of April 22, 1987 – the defendant before the Court. After further investigation, Officer Wong was satisfied with this identification. Just after 7:30 am, Officer Wong arrested the defendant for dangerous operation of a motor vehicle. He later used discretion and released the defendant on the charges that bring Mr. Anderson before this Court. In a search incident to arrest, a started bottle of cognac was located on the back seat of the Mustang, readily available to the persons in the front seat. Shortly after Officer Wong arrived, the two girlfriends drove up in the Mazda. They were cautioned not to get involved in the traffic stop.
Although Officer Wong does not recall the defendant explaining that he was fleeing the people in the Audi motor vehicle and although Officer Wong followed the red Mustang for a short distance from Whites Road without observing an Audi, Officer Lamont recalls overhearing the defendant advise Officer Wong that he was fleeing.
Analysis and Findings
(a) Was the Defendant Performing a Stunt?
The defendant is charged under s. 172 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA"), for performing a stunt and for racing. Section 172 reads:
172(1) Racing, stunts, etc. prohibited – No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.
This section of the HTA creates three distinct offences: racing, performing a stunt and on a bet or wager: see e.g. R. v. Raham, 2010 ONCA 206. O. Reg. 455/07 expressly defines the activities where one or more persons engage in particular driving behaviours which will be captured by s. 172.
In the matter before the court, the following section of O. Reg. 455/07 relates to the offence of performing a stunt:
3.7. Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit.
The court is satisfied that the posted maximum speed limit on the section of Highway 401 near Whites Road in Pickering is 100 kilometres per hour. The court has found the defendant was travelling at a rate of speed of 218 kilometres per hour. This speed significantly exceeds the posted maximum speed limit by more than 50 kilometres per hour over this 100 kilometres per hour speed limit, that is, by 118 kilometres per hour over this maximum speed limit. The court is satisfied that all of the elements of driving while performing a stunt, contrary to s. 172 of the HTA and as described in s. 3.7 of O. Reg. 455/07 have been proven beyond a reasonable doubt. Patrick Anderson is claiming the defence of necessity, which is analyzed below.
(b) Was the Defendant Racing?
The second charge against the defendant is also found in s. 172 of the HTA for racing. As stated above, under section 172, "racing" is an offence distinct from the offence of "performing a stunt".
In the matter before the court, the following section of O. Reg. 455/07 is relevant to the charge of racing:
2(1).3. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,
ii. outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed,
On August 5, 2013, the roads were dry. Just after 6:00 am, the sun was rising in the east. It was not an ordinary Monday morning, as it was a long weekend, such that the traffic was lighter and large commercial motor vehicles scarce. There is no evidence that the defendant was swerving in and out of traffic as he drove at the excessive rate of speed of 218 kilometres per hour in the 100 kilometres per hour speed zone, eastbound on Highway 401. Nonetheless, the court is satisfied that travelling at such an excessive speed is, itself, driving without due care and attention and without reasonable consideration for other persons using the highway. At a rate of speed of 218 kilometres per hour, the defendant testified that he was attempting to outdistance the green Audi motor vehicle at a marked departure from the lawful 100 kilometres per hour rate of speed.
Relying on the evidence that the court does accept, the court is satisfied beyond a reasonable doubt that in the morning of August 5, 2013, the defendant was racing as he travelled eastbound along Highway 401 in Pickering, contrary to section 172(1) of the HTA. Again, he is claiming the defence of necessity.
(c) Was the Defendant Driving While His Driver's Licence Was Suspended?
Section 53(1) of the HTA states:
53 (1) Driving while driver's licence suspended – Every person who drives a motor vehicle or street car on a highway while his or her driver's licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,
(a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and
(b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000,
or to imprisonment for a term of not more than six months, or to both.
When stopped by the police on Brock Street in Whitby, the defendant was unable to provide a driver's licence. He identified himself verbally. Furthermore, Exhibit 1 to these proceedings is certified documentation from the Registrar of Motor Vehicles, Ministry of Transportation. The court is satisfied that this documentation relates to the defendant, Patrick Anthony Anderson, with a date of birth of April 22, 1987. This certified documentation shows that the defendant's licence was suspended effective October 19, 2012 for not paying a fine. The defendant was served notice of this suspension, as the Notice of Suspension of Driver's Licence was mailed to the defendant at the latest address on the records of the Ministry on October 19, 2012, as required under s. 52 of the HTA. As well, the certified documentation provides that this suspension was still in effect on August 5, 2013, the day the defendant was stopped for driving the red Mustang eastbound on Highway 401 at a rate of speed of 218 kilometres per hour. The court is satisfied that all of the elements of the offence against the defendant, of driving a motor vehicle on a highway while his licence was suspended, contrary to s. 53 of the HTA, have been proven beyond a reasonable doubt.
(d) Has the Defence of Necessity Been Satisfied on a Balance of Probabilities?
Limited Application of the Defence of Necessity
Performing a stunt and racing are strict liability offences. For classifications of regulatory offences, see R. v. Sault Sainte Marie (1978); for performing a stunt, see e.g. R. v. Raham, 2010 ONCA 206; and for racing, see e.g. R. v. Allan, [2009] O.J. No. 2389 (Ont. C.J.). The defence of necessity applies not only to absolute liability offences, but also to mens rea and strict liability offences.
Once it has been proven beyond a reasonable doubt that the defendant has committed the offences with which he has been charged, the defence of necessity is available to him to prove on a balance of probabilities. Patrick Anderson claims that he was fleeing from a green Audi, in which were individuals who he and his cousin, Ricardo Wright, feared were poised to shoot at them. For this reason, he had no choice but to jump into the driver's seat of the red Mustang and speed up to the excessive speed in order to get away from these people who followed them out of the restaurant parking lot and then eastbound along Highway 401.
Necessity is a difficult defence to satisfy on a balance of probabilities. It is well established that this defence must be of limited application and applied only in exceptional circumstances. In R. v. Perka, Dickson J., writing for the Supreme Court of Canada, states that the defence of necessity "must be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale." The underlying rationale to this defence is that the law "cannot hold people to the strict obedience of the laws in emergency situations where normal instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience". Conduct that may satisfy the defence of necessity may be perceived as a form of involuntariness, where an individual is under the compulsion of circumstance in which he/she finds himself/herself or where the actions are morally or normatively involuntary and there is no choice but to contravene the law.
In R. v. Latimer, 2001 SCC 1, the Court cites Perka and writes, at paragraph 27:
Dickson J. insisted that the defence of necessity be restricted to those rare cases in which true "involuntariness" is present. The defence, he held, must be "strictly controlled and scrupulously limited" (p. 250). It is well established that the defence of necessity must be of limited application. Were the criteria for the defence loosened or approached purely subjectively, some fear, as did Edmund Davies L.J., that necessity would "very easily become simply a mask for anarchy": Southwark London Borough Council v. Williams, [1971] Ch. 734 (C.A.), at p. 746.
Three Elements of the Defence of Necessity and the Standard to Apply to Each Element
To succeed with the defence of necessity, three elements must be satisfied:
(1) Imminent Peril or Danger: The peril must be on the verge of transpiring and virtually certain to occur. A foreseeable or likely peril is insufficient.
(2) No Reasonable Legal Alternative: The defendant must have no reasonable legal alternative to the course of action he or she undertook. If there was a reasonable legal alternative to breaking the law, there is no necessity.
(3) Proportionality: There must be proportionality between the harm inflicted and the harm avoided. At a minimum, the two harms must be of comparable gravity. The harm inflicted cannot be out of proportion to the peril to be avoided.
Beginning at paragraph 32 of Latimer, the Supreme Court of Canada has determined whether the standard is objective or subjective or if it is a modified objective test that falls between the two:
Before applying the three requirements of the necessity defence to the facts of this case, we need to determine what test governs necessity. Is the standard objective or subjective? A subjective test would be met if the person believed he or she was in imminent peril with no reasonable legal alternative to committing the offence. Conversely, an objective test would not assess what the accused believed; it would consider whether in fact the person was in peril with no reasonable legal alternative. A modified objective test falls somewhere between the two. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person. We conclude that, for two of the three requirements for the necessity defence, the test should be the modified objective test.
The first and second requirements -- imminent peril and no reasonable legal alternative -- must be evaluated on the modified objective standard described above. As expressed in Perka, necessity is rooted in an objective standard: "involuntariness is measured on the basis of society's expectation of appropriate and normal resistance to pressure" (p. 259). We would add that it is appropriate, in evaluating the accused's conduct, to take into account personal characteristics that legitimately affect what may be expected of that person. The approach taken in R. v. Hibbert, is instructive. Speaking for the Court, Lamer C.J. held, at para. 59, that
… it is appropriate to employ an objective standard that takes into account the particular circumstances of the accused, including his or her ability to perceive the existence of alternative courses of action.
While an accused's perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused, those perceptions remain relevant only so long as they are reasonable. The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must be a reasonable basis for the accused's beliefs and actions, but it would be proper to take into account circumstances that legitimately affect the accused person's ability to evaluate his situation. The test cannot be a subjective one, and the accused who argues that he perceived imminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given his circumstances and attributes. We leave aside for a case in which it arises the possibility that an honestly held but mistaken belief could ground a "mistake of fact" argument on the separate inquiry into mens rea.
The third requirement for the defence of necessity, proportionality, must be measured on an objective standard, as it would violate fundamental principles of the criminal law to do otherwise. Evaluating the nature of an act is fundamentally a determination reflecting society's values as to what is appropriate and what represents a transgression. Some insight into this requirement is provided by G. P. Fletcher, in a passage from Rethinking Criminal Law (1978), at p. 804. Fletcher spoke of the comparison between the harm inflicted and the harm avoided, and suggested that there was a threshold at which a person must be expected to suffer the harm rather than break the law. He continued:
Determining this threshold is patently a matter of moral judgment about what we expect people to be able to resist in trying situations. A valuable aid in making that judgment is comparing the competing interests at stake and assessing the degree to which the actor inflicts harm beyond the benefit that accrues from his action.
The evaluation of the seriousness of the harms must be objective. A subjective evaluation of the competing harms would, by definition, look at the matter from the perspective of the accused person who seeks to avoid harm, usually to himself. The proper perspective, however, is an objective one, since evaluating the gravity of the act is a matter of community standards infused with constitutional considerations (such as, in this case, the s. 15(1) equality rights of the disabled). We conclude that the proportionality requirement must be determined on a purely objective standard.
In summary, a modified objective standard, in which an objective standard takes into account the particular circumstances of the defendant, is applied to the first two elements. Too often, defendants claim the defence of necessity, and mistakenly and inappropriately apply a subjective test. The third element is measured on a purely objective standard, in order to reflect society's values and "community standards infused with constitutional considerations".
Determining if the Facts in This Matter Satisfy the Three Elements
The defendant viewed the Audi following him as the source of the imminent peril or danger. It was Patrick Anderson's testimony that had he not sped up, that the people in the green Audi would have shot at him and/or his cousin.
In examination in chief of the defendant:
Q. Okay, so you're trying to get away from him. Are you obeying the speed limit or – well, how fast are you going?
A. At that time I couldn't tell you exactly what speed limit I was doing but I know I was, I was driving thinking I was trying to get away, that was my main intention.
Q. Right. So you're, you're trying to get away. And at that point in time, what were you thinking when you were driving away?
A. I was just thinking to get away and see a next day because like I said, I don't know what, what it was, what started all this.
Q. Okay, you say "see a next day", can you just flush that out, what …
A. My intentions …
Q. … what …
A. My intentions – like I said, my cousin – I heard my cousin say, "What are you gonna do, shoot me, shoot me?" …
Q. Okay.
A. … so that means they're, they're trying to get at him for some apparent reason.
Q. Okay.
A. It's not like – there's three people there, it's not like somebody came after me and somebody went after him, somebody went after him and I, I jump in the car and I said, "Jump in," and he jumped in and I started to drive. I ended up on the 401 East and I'm driving east and while I'm driving east my main intention is to get away, like just to get away because at the same time there has been a lot of shooting where people are driving on the highway and people do shoot after cars, so at the, at the same time I'm saying to myself that I just need to get away and try to lose this green car behind me
The defendant may have subjectively believed people in the green vehicle behind him would shoot at him, leaving him no alternative but to speed up. However, applying the modified objective test, which "takes into account the situation and characteristics of the accused person", (see Latimer, supra) the court does not accept there is a reasonable basis for the defendants' beliefs and conduct. It is not reasonable to find that a motor vehicle following the defendant, as he slowly drove out of the restaurant parking lot, would then follow him onto Highway 401 and would wait until the defendant sped up on the highway to shoot at him. It is not reasonable to believe that a green Audi was pursuing the defendant on Highway 401 by the time Officer Wong was following the defendant eastbound near Whites Road, as the Officer testified he does not recall seeing any evidence of a green car behind the defendant's vehicle. It is not reasonable to believe there was no alternative except to accelerate to the excessive rate of speed, since Highway 401 in the area travelled by the defendant, after sunrise that morning, was built up on both sides and there were several police stations that the defendant passed along his way from Markham Road in Toronto to Brock Street in Whitby. These factors clearly distinguish the matter before the court from the situation where the defence of necessity to a charge of speeding 140 kilometres per hour in an 80 kilometres per hour zone was successful, where the defendant found himself on a lonely, dark road when a vehicle sped up behind him, as described in case law provided by defence: R. v. Card, [2000] O.J. No. 2333 (O.C.J.). And, although the defendant had been prohibited from possessing a cellular phone, his cousin, seated beside him in the front passenger seat, had one. Yet neither of them used that phone to call the police in the situation of imminent peril they may have believed they faced.
Moreover, Kayla Salesman, who followed in the grey Mazda, testified that she, too, did not use her cell phone to call the police. She testified that this was because she was not sure what was going on and she did not want to be involved, even though she heard Ricardo Wright exclaim "Don't shoot me, leave me alone". When pressed, a short time later she testified that it was a long time ago and "maybe my phone was dead, maybe I didn't even have a phone at that time where I wasn't able to call the police." Given her shifting evidence, the court can give her evidence little to no weight.
The defendant must be left with no legal alternative but to take the action he did to drive along Highway 401 at a rate of speed of 218 kilometres per hour. Given the defendant passed several police stations along the way, given that his cousin had a cell phone with which he could have called 911, the court finds that there were legal alternatives to breaking the law available to the defendant. He did not choose to afford himself of these legal alternatives, instead choosing to travel along the highway at the egregious speed of 218 kilometres per hour.
With the onus on the defendant to prove the defence on a balance of probabilities and having considered all of the surrounding facts, including the option the defendants chose, that is, to accelerate to an excessive speed in order to escape the green Audi motor vehicle, the court finds the modified objective test attaching to the first two elements of the defence of necessity fails with respect to the offences of performing a stunt and racing under s. 172 of the HTA. With other legal options readily available to the defendant, there is no defence of necessity.
Moreover, given the defendant testified in cross examination, "I didn't like sped [sic] out the parking lot, I just drove out and then I seen that the green car was pursuing.", the court finds the defendant did not know the green Audi was going to follow him until after he got into the driver's seat of the red Mustang and drove off. Given the defendant appeared to be in no hurry driving out of the restaurant parking lot and had not immediately ascertained that the green Audi would be following him, the option of having his cousin move to the driver's seat appears to be an available and reasonable legal alternative in this situation, instead of the defendant driving while his driver's licence was suspended. Again, the defendant has not satisfied the requirements for the defence of necessity as it applies to this charge against him.
(e) Was the Defendant Operating a Motor Vehicle with Open Liquor Readily Available?
The relevant portions of the Liquor Licence Act, R.S.O. 1990, c. L.19 ("LLA") read:
- (1) – Conveying liquor in vehicle, boat – No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit.
(2) Exception - Subsection (1) does not apply if the liquor in the vehicle,
(a) is in a container that is unopened and the seal unbroken; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.
Upon search of the motor vehicle the defendant had been driving eastbound on Highway 401, on the morning of August 5, 2013, the police officer located a started bottle of cognac lying on the back seat of the Mustang. There is no evidence that the bottle was packaged in baggage that was fastened closed. Hence, the court is satisfied that while the defendant was driving the red Mustang that day, a started or unsealed bottle of cognac was readily available to the defendant. The court is satisfied that all of the elements of s. 32(1) of the LLA have been proven beyond a reasonable doubt.
(f) Does the Principle in Kienapple Apply?
A defendant cannot be convicted of multiple offences with the same or substantially the same elements arising from the same transaction. Laskin J., writing for the majority in R. v. Kienapple, states:
The rationale of my conclusion that the charges must be treated as alternative if there is there should not be multiple convictions for the same delict against the same girl, has a long history in the common law. A convenient beginning is with the maxim expressed in Hudson v. Lee [(1589), 4 Co. Rep. 43 a, 76 E.R. 989], at p. 990, " nemo debet bis puniri pro uno delicto ", which although framed in terms of double punishment, has come to be understood as directed also against double or multiple convictions; in short, nemo bis vexari as well as nemo bis puniri. This was exemplified in the unanimous judgment of this Court in Cox and Paton v. The Queen, which involved, inter alia, convictions of the accused on two counts, numbered (1) and (3), for conspiracy to steal and conspiracy to defraud, both relating to the same money and securities. Cartwright J., as he then was, speaking for this Court, held that the Manitoba Court of Appeal had properly quashed one of the convictions. He put the matter in these words (at p. 516):
The reason that the convictions on counts 1 and 3 cannot both be supported is not that they are "mutually destructive", as was said of the counts in R. v. Mills [1959] Cr.L.Rev. 662, but rather that if both were allowed to stand the accused would in reality be convicted twice of the same offence. It is the same conspiracy which is alleged in the two counts and it would be contrary to law that the accused should be punished more than once for the same offence.
Of course, in a strict sense, Cox and Paton was no more a case of multiple convictions for the same offence than is the present case. Rather it was a case, as is the present one, of multiple convictions for the same matter.
Kienapple is distinct from double jeopardy and issue estoppel because these latter principles apply when a matter appears before a subsequent judicial officer. Kienapple applies in the cases of multiple counts tried before one judicial officer, as is the case here.
No one can be convicted of two different offences if there is (1) a factual nexus between charges, where the same act grounds each charge, as well as (2) a legal nexus between the offences. The legal nexus requires more than that the offences having one common element, but rather focuses on the presence or absence of additional distinguishing elements. [See R. v. Prince.]
For a factual nexus to exist in the matter before the court, the court asks whether the same acts of the defendant ground each of the charges. It is clear that the charges are founded upon the same acts along Highway 401, that being the excessive speed at which the defendant travelled eastbound on Highway 401 on August 5, 2013. The court is satisfied that the factual element of the Kienapple principle is satisfied.
To determine if there is a legal nexus between the offences of performing a stunt and racing, the court must determine whether substantially the same elements are needed to be proved for these offences. Notwithstanding that there is a single act, different delicts, causes or matters may sustain separate convictions. Hence, this nexus will be satisfied only if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle. [See Prince, supra, at paragraph 32.] Having said this, though, where offences are not equal in gravity, the principle in Kienapple may preclude a conviction for a lesser offence, despite additional elements in the graver offence for which a conviction has been registered, if the lesser offence has no distinct additional elements.
In determining whether an element of an offence is additional or distinct, the court looks to Dickson C.J., writing for the Court in Prince, supra, starting at paragraph 34:
I now turn briefly to the question of when an element of an offence sufficiently corresponds to another element so that it cannot be regarded as additional or distinct. When can it be said that elements are "substantially the same" or "alternative" the one to the other? This is a question which defies precise answers. Differences of degree are often important and, as La Forest J. has pointed out, abstract logic must be supplemented by an awareness of practical considerations in ascertaining Parliament's intention in creating different offences: Krug, supra, p. 269. Without purporting to be exhaustive, I believe that there are at least three ways in which sufficient correspondence between elements can be found, each of which is subject always to the manifestation of a legislative intent to increase punishment in the event that two or more offences overlap.
First, an element may be a particularization of another element. In Krug, the Court was called upon to consider not only the relationship between s. 83(1)(a) and s. 302(d), as described above, but also the relationship between s. 83(1)(a) and s. 84. Section 84 made it an offence to point a firearm at a person. Section 83(1)(a), it will be recalled, made it an offence to use a firearm while committing an indictable offence. The trial judge had characterized the element of "pointing at a person" as an ingredient additional to "use". This Court disagreed, saying, "It is obvious that pointing a gun is a manner of using it" (p. 268). Accordingly, the Court referred to pointing as a particularization of use. Under the circumstances, it was difficult to believe that Parliament intended "automatically to make the same objectionable behaviour the subject of two separate offences" (p. 270).
In general, the particularization in one offence of an element of another offence should not be regarded as a distinguishing feature that renders Kienapple inapplicable. Parliament may create offences of varying degrees of generality, with the objective (vis-a-vis the more general offence) of ensuring that criminal conduct will not escape punishment because of a failure of the drafters to think of each individual circumstance in which the conduct might be committed, or with the objective (vis-a-vis the more specific offence) of addressing with certainty particular conduct in particular circumstances. In the absence of some indication of Parliamentary intent that there should be multiple convictions or added punishment in the event of an overlap, the particularization of an element ought not to be taken as a sufficient distinction to preclude the operation of the Kienapple principle.
A second way in which elements may correspond relates to there being more than one method, embodied in more than one offence, to prove a single delict. In R. v. Gushue (1976), affirmed on other grounds, the accused was charged under s. 124 with giving evidence in a judicial proceeding that was contrary to his own previous evidence. He was also charged with perjury contrary to s. 121. The Court reached the conclusion that convictions under both offences would have infringed the Kienapple principle. I agree. Although s. 121 and s. 124 have different elements, the difference is clearly not a reflection of any Parliamentary intent to add extra punishment when both offences can be proven. Section 124 is designed merely to facilitate proof of false evidence having been given, notwithstanding that no one particular statement can be proven false. Parliament has merely succumbed to the imperatives of logic: if two contradictory statements are given, one of them must be false and the delict of giving false evidence must have been committed on one of the two occasions.
The third situation in which there is sufficient correspondence between elements to sustain the Kienapple principle is somewhat similar. It arises when Parliament in effect deems a particular element to be satisfied by proof of a different nature, not necessarily because logic compels that conclusion, but because of social policy or inherent difficulties of proof. The Kienapple case itself affords one example. There, as we have seen, the element of the victim's age served as a substitute for the element of non-consent. A girl of less than fourteen years of age could not in Parliament's opinion meaningfully consent to sexual intercourse. Another example is provided by Terlecki v. The Queen. Although the case largely dealt with a procedural issue, the Court's decision was predicated on the applicability of Kienapple as between the offences of impaired driving contrary to s. 234 and "over 80" contrary to s. 236. Impairment is inherently difficult to prove, and Parliament has deemed a certain proportion of alcohol in one's blood to constitute an impairment of driving ability. The differences between the elements of these offences are explained by an attempt to facilitate the apprehension by the police or the conviction by the courts of persons who are guilty of essentially the same wrongful conduct: see Leonoff and Deutscher, supra, at p. 261. I believe that elements which serve only as an evidentiary proxy for another element cannot be regarded as distinct or additional elements for the purposes of the rule against multiple convictions.
I emphasize that in applying the above criteria it is important not to carry logic so far as to frustrate the intent of Parliament or as to lose sight of the overarching question whether the same cause, matter or delict underlies both charges. For example, there exist offences aimed at a particular evil which (in certain circumstances) contain as an element the commission of some other offence directed toward an entirely different wrong. Such was the relationship between the offences in Lecky, Earle, Pinkerton and Pere Jean Gregoire. In these cases, it could be argued, a substantive offence was subsumed by a greater, generic offence: Klinck, supra, at pp. 301-02. To illustrate, the offence of breach of probation contains as an element the non-compliance with a Probation order which, as a matter of law, requires the accused to keep the peace and be of good behaviour: s. 663(2). The fact that breach of probation is an offence punishable by summary conviction (s. 666(1)) is a clear indication that Parliament cannot have intended a conviction for that offence to operate as a bar to a conviction for the substantive offence (which might attract a far more severe penalty) merely because the substantive offence might be regarded as a particularization of a failure to keep the peace and be of good behaviour. Plainly, breach of probation is an offence designed to protect the effective operation of the criminal justice system, a societal interest which is entirely different from that protected by an offence such as assault. Accordingly, Kienapple had no application in those four cases.
In the matter before the court, the court is satisfied that the act of speeding 218 kilometres per hour in the conditions that existed at the time, is sufficient to find that the defendant was "driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit", i.e. 118 kilometres per hour over the maximum speed limit, and this is sufficient to ground the conviction for performing a stunt, contrary to s. 172 of the HTA. At this rate of speed, the court has also found that the defendant was proceeding "without reasonable consideration for other persons using the highway" and also at that speed, he was "outdistancing or attempting to outdistance one or more other motor vehicles" as the court finds driving 218 kilometres per hour in a 100 kilometres per hour speed zone is "driving at a rate of speed that is a marked departure from the lawful rate of speed". The court is satisfied that there is "more than one method, embodied in more than one offence, to prove a single delict", and the legal nexus required in the Kienapple principle has been satisfied. In the case before the court, speeding in the circumstances that existed is one of the ways to prove the defendant was performing a stunt and this speeding is the proof required to find the defendants guilty of 'racing'. Moreover, when looking to the legal nexus between this charge of 'performing a stunt' and 'racing', the particularization of one element of 'stunt driving' to prove 'racing' in the matters before the court "should not be regarded as a distinguishing feature that renders Kienapple inapplicable". [See Prince, supra.]
Given the Kienapple principle applies, and the court has made findings of guilt of each of these two charges against this defendant, the court must determine the remedy. The defendant will be convicted on the more serious offence and a conditional stay, pending any appeal, will be entered on the less serious offence.
To determine which offence is the more serious one, the court turns to the respective penalties available to the Court upon sentencing. For a conviction of performing a stunt or racing under s. 172 of the HTA, the penalty is the same and the defendant is "liable to a fine of not less than $2000 and not more than $10,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her driver's licence may be suspended, (a) on a first conviction … for not more than two years; or (b) on a subsequent conviction … for not more than 10 years". Further, the officer shall request that the driver surrender his or her driver's licence and shall detain the vehicle for impounding. There are also administrative penalties of a seven-day licence suspension and a seven-day vehicle impoundment.
Since the consequences for 'performing a stunt' and for 'racing' are the same, and because the Kienapple principle forbids convictions on both of these charges, the court is staying the charge of 'racing'.
Conclusion
Based on careful review of the evidence and based on the evidence the court finds credible and reliable, the court is satisfied that all of the elements of the offences of performing a stunt and racing have been proven beyond a reasonable doubt. The defence of necessity has not been satisfied on a balance of probability. Applying the Kienapple principle, the court is staying the charge of 'racing', conditional upon the expiration of the appeal period or disposition of the matters at appeal.
The court finds Patrick Anderson guilty of performing a stunt, to wit, driving a motor vehicle, on Highway 401 in the Regional Municipality of Durham, at 218 kilometres per hour, which is a rate of speed that is more than 50 kilometres over the posted 100 kilometres per hour maximum speed limit, contrary to s. 172 of the HTA. There will be a conviction registered.
For the charge of driving while his driver's licence was suspended, again the defendant has failed to satisfy the defence of necessity. Therefore, the court finds Patrick Anderson guilty of driving a motor vehicle on a highway while his driver's licence was suspended, contrary to s. 53 of the HTA. There will be a conviction registered.
Finally, the court is satisfied that all of the elements of operating a motor vehicle with open liquor readily available, contrary to s. 32(1) of the Liquor Licence Act have been proven beyond a reasonable doubt. There will be finding of guilt to this charge and a conviction will be registered.
Released: March 29, 2017
Signed: Justice of the Peace M. Coopersmith