Court File and Parties
Ontario Court of Justice
Date: 2018-04-26
Court File No.: North Bay Cert. 6710808B
Between:
The Corporation of the City of North Bay
— and —
Ronald Viens
Before: Justice of the Peace J.G. McMahon
Heard on: January 4, 2018
Reasons for Judgment released on: April 26, 2018
Counsel
Christina A. Murphy ………………………………… Counsel for the prosecution
Gordon V. Meakings …………………………………... for the defendant Ronald Viens
Judgment
JUSTICE OF THE PEACE J.G. McMAHON
[1] Charge
[1] Mr. Ronald Viens is charged with driving a motor vehicle left of centre while upon a curve in the roadway, contrary to s. 149(1)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA").
[2] Facts
[2] In the afternoon of April 17, 2017, Ms. Toni Dougherty was a passenger in a motor vehicle travelling southbound on Highway 11 between Temagami and North Bay, Ontario. In this region, Highway 11 is a two-lane highway. Ms. Dougherty called police to report that she had just witnessed the transport truck travelling directly in front of her motor vehicle briefly cross into the opposing southbound lane thereby forcing an oncoming transport truck onto the shoulder of the highway. She testified that the incident occurred at approximately 2:00 p.m. on a curve in the highway.
[3] Constable Kim Bowes, of the Ontario Provincial Police, testified she was dispatched to investigate the complaint at 2:48 p.m. She identified and stopped the transport truck described by Ms. Dougherty at approximately 3:30 p.m. in North Bay. Mr. Viens was the driver. He was cooperative and would have advised Constable Bowes that he remembered crossing the line at the time he had reached down for a Kleenex.
[4] Mr. Viens testified at trial. He did not challenge the evidence of the prosecution witnesses. He admitted that the transport truck he was driving briefly crossed into the opposing lane of traffic on a curve in the highway. Counsel for the defendant, however, says that Mr. Viens is not guilty because the act of crossing into the opposing lane of traffic was involuntary.
[5] Mr. Viens testified that he was driving southbound when he suddenly began to repeatedly sneeze and his eyes became watery. As a result, he had to reach over to grab a tissue (i.e. a Kleenex) to wipe his eyes clear (and nose) and on doing so he noticed that his motor vehicle had crossed into the opposing lane of traffic.
[6] After getting the vehicle back into its proper lane he continued southbound towards North Bay. In cross-examination, Mr. Viens indicated that he continued to sneeze after the incident, but that it then went away. He added that his condition improved, but that he was still not feeling well. He stated his eyes were still watery when he was stopped by Constable Bowes. When he reached North Bay, he stopped and bought over-the-counter medication for his allergy.
[7] Mr. Viens provided, inter alia, the following relevant testimony:
He is allergic to dust and he takes over-the-counter medication each day (one pill per day), but he did not specify the name of the medication.
On the morning of April 17, 2017, he left his home at about 2:30 a.m., but forgot to take his allergy medication.
He started to suffer from his allergy right after leaving New Liskeard, but he later qualified his statement by stating that he started to sneeze where he crossed into the opposing lane of traffic, which was about one hour after leaving New Liskeard.
Mr. Viens attributes the onset of the sneezing (on April 17, 2018) to dust entering into the cab of his transport while he was parked at New Liskeard truck stop a short time earlier.
I. THE PRINCIPLE OF VOLUNTARINESS
[8] The principle of voluntariness is deeply rooted in our justice system. In R. v. Daviault, [1994] 3 S.C.R. 63, Cory J., for the majority, confirmed voluntariness as Charter-protected principle. At p. 91, he confirmed that it "cannot be taken away by a judicially developed policy". At p. 91 and 92, he stated its elimination would violate s.11(d) and s. 7 of the Charter.
[9] The actus reus of an offence must be voluntary to "attract findings of guilt": R. v. Stone, [1999] 2 S.C.R. 290, at paras. 169 and 170. E. Colvin and S. Anand, Principles of Criminal Law, 3d ed. (Toronto: Thomson Canada Limited, 2007), at p. 50, explain the principle of voluntariness, as follows:
It is a precondition of blaming a person that the person could have acted differently. No one can be held at fault for what they could not help doing. The conduct must therefore have been under the mental control of the actor. It must have been directed by the actor's reasoning mind, through some exercise of mental choice. [Footnotes omitted]
[10] The traditional view is that the actus reus includes a minimal mental component—the voluntariness requirement. A concise explanation was provided by McLachlin J. (as she then was) in R. v. Théroux, [1993] 2 S.C.R. 5, at p. 17 (also cited in Stone, at para. 34; Daviault, at p.74):
The term mens rea, properly understood, does not encompass all of the mental elements of a crime. The actus reus has its own mental element; the act must be the voluntary act of the accused for the actus reus to exist. Mens rea, on the other hand, refers to the guilty mind, the wrongful intention, of the accused. Its function in criminal law is to prevent the conviction of the morally innocent – those who do not understand or intend the consequences of their acts. Typically, mens rea is concerned with the consequences of the prohibited actus reus.
[11] If the conduct (act or omission) is involuntary there can be no actus reus and therefore no offence: R. v. King, [1962] S.C.R. 746 at p.749.
[12] Where voluntariness is at issue—the mechanics of a trial for a regulatory offence would be governed by the following principles:
The prosecution must always prove the actus reus of the offence – beyond a reasonable doubt: R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 248; R. v. Sault Ste Marie, [1978] 2 S.C.R. 1299. This requirement applies for all regulatory offences: full mens rea regulatory offences; strict liability offences; and absolute liability offences. It should be noted that for full mens rea regulatory offences the prosecution must also prove the mens rea beyond a reasonable doubt (as is the case for criminal offences).
The prosecution must therefore prove voluntariness – beyond a reasonable doubt: R. v. Rabey, [1980] 2 S.C.R. 513, per Dickson J. (dissenting) at p. 522 (cited in R. v. Parks, [1992] 2 S.C.R. 871 per La Forest J. at p. 896; Daviault, at p.74-75); Stone at para. 171).
The prosecution may, however, rely on the presumption that a person acts voluntarily: Stone, at para. 171.
The defendant must therefore raise the issue of voluntariness by pointing to trial evidence that rebuts the presumption (i.e. an evidential burden). A mere assertion with nothing more will not suffice: Stone, at para. 183. That evidence may come from a prosecution witness, a defence witness or the defendant if he or she chooses to testify: R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 68.
The evidential burden will be met (and the presumption of voluntariness rebutted) when there is evidence that puts the issue of involuntariness "in play". The test has been described as follows—[a]nd the defence will be in play whenever a properly instructed jury could reasonably, on account of the that evidence, conclude in favour of the accused.": Fontaine, at para.74. Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada Inc., 2018) at p. 213, summarizes the test as follows:
Put differently, assuming the evidence on the record is most favourable to the accused, is the evidence capable of raising a reasonable doubt? [Footnote omitted]
- Where the defendant rebuts the presumption, the prosecution must prove the requirement of voluntariness—beyond a reasonable doubt. In other words—in the end—the defendant need only raise a reasonable doubt on the question of voluntariness to avoid liability.
[13] The principle of voluntariness and the associated legal framework appear relatively clear and straight forward. The case law and legal commentary, however, disclose that the principle and framework have often proven difficult to apply and generated significant disagreement in the courts and legal community. This has led to some challenges in their application in the context of regulatory offences. Some effort to clarify matters may be helpful.
There are different forms of involuntariness
[14] The different ways that involuntariness can manifest itself can impact the required analysis. In R. v. Fontaine, 2017 SKCA 72 ("R. v. Fontaine 2017"), the Saskatchewan Court of Appeal stated at para. 28:
Claims of involuntariness can arise in or from a variety of situations and causes including ailments such as stroke or epilepsy; extreme intoxication; psychological shock; being stung by a swarm of bees; drugs; concussion; being propelled by the actions or grasp of another person; and somnambulism. See: Don Stuart, Canadian Criminal Law, 6th ed (Scarborough: Carswell, 2011) at 115-116; R v Hundal, [1993] 1 SCR 867 at 875-876; R v Jiang, 2007 BCCA 270 at para 20.
[15] It is essential to identify the type of involuntariness at issue because this is an area of law which is heavily influenced by policy considerations and special rules can apply depending on the nature of the involuntariness at issue, notably with respect to involuntariness related to automatism: Stone, at paras. 173 to 179. Morris Manning and Peter Sankoff, Manning Mewett & Sankoff-Criminal Law, 4th ed. (Toronto: LexisNexis Canada Inc., 2009), at p. 109, framed the problem as follows:
To be sure, cases of physical voluntariness are relatively straight-forward. If a drunk driver forces you onto the left side of the road then it is clear that you did not voluntarily drive there. Similarly, a driver who has a sudden heart attack or epileptic seizure cannot be said to have voluntarily committed any "dangerous" acts of driving. The accused was not more in control of his physical faculties than if he had been pushed.
Where matters become a great deal more complicated is when the involuntary conduct is said to come from a mental or self-induced state, for example, some form of insanity, disassociative state or impairment arising from drug or alcohol….
[16] The present case—a purported episode of sudden sneezing and watery eyes—can be best characterized as a type of physical involuntariness as described above. In R. v. Fontaine 2017, at para. 23, the Court used the words "acting reflexively" to describe the situation where a man struck his spouse on "being startled from sleep in an aggressive fashion". R. v. Ariganello, [2013] O.J. No. 211, an appeal decision, is more directly on point. In that case, the defendant testified he lost control of his vehicle during a severe coughing incident. The Court characterized the situation as follows, at para. 70:
This is a case of an involuntary physical reaction to a coughing/choking episode, which through no fault of the Appellant, resulted in his eyes closing for a matter of seconds.
The rules for automatism in criminal offences do not apply to all types of involuntariness
[17] Much of the leading case law and legal commentary on the principle of voluntariness deals with automatism in criminal cases. The present case is neither a criminal case nor a case of automatism.
[18] In many of those cases, the accused were charged with serious offences of violence and advanced automatism to avoid conviction: see Rabey; Parks; Daviault; Stone. For example, in Daviault, the Supreme Court had to decide the question of the legal liability of the accused who voluntarily gets intoxicated and commits a sexual assault.
[19] There is no doubt that such automatism cases raise substantial legal, Charter and policy considerations. In the end, a slim majority of the Supreme Court in Stone confirmed a move away from the traditional legal framework to carve out special rules for all criminal cases where automatism is at issue, which includes, inter alia, that the accused adduce psychiatric evidence and the imposition the persuasive burden on the accused person to establish automatism, on a balance of probabilities.
[20] Automatism, however, is "a sub-set of the voluntariness requirement": Parks, at p. 896; Stone, at para. 170. Physical involuntariness differs from automatism and does not necessarily invite the same policy considerations and concerns. In my view, physical involuntariness has not yet been the object of the refined analysis and Charter considerations that prompted a slim majority of the Supreme Court to confirm a new framework for all cases of automatism in criminal matters.
[21] To that end, in R. v. Fontaine 2017, the Court conducted a detailed analysis of the case law and concluded that the legal framework for automatism set out in Stone does not apply to non-automatism types of involuntariness. The Court stated, at para. 34:
Thus, automatism as addressed by R. v. Stone is best seen for present purposes as a particular sort of voluntary action. It is not as the Crown suggests, an entirely general term that includes every possible kind of such action. In my view, circumstances involving reflex actions do not fall within the ambit of the approach prescribed by Bastarache J.
[22] In reaching this conclusion, the Court cited R. v. Luedecke, 2008 ONCA 716, at para. 54, where the Appeal Court for Ontario confirmed that automatism is "one specific kind of involuntary action".
[23] With the exception of automatism—the case law would appear to confirm that the traditional legal framework for voluntariness has not been displaced. As noted above, policy considerations play a significant role in this area of the law. In the appropriate case, judicial review of the framework is always a possibility. A complete evidentiary record and full argument on the legal, Charter and policy considerations with respect to any recalibration would likely be required for such a review. In the present case, neither prosecution nor defence challenged the existing legal framework in such manner.
Mens rea and the principle of voluntariness
[24] As discussed above, the traditional view is that the voluntariness requirement is a component of the actus reus. The Supreme Court has, however, indicated that in certain circumstances involuntariness can also negate mens rea: see Daviault; R. v. Hundal, [1993] 1 S.C.R. 867. There is some obvious logic to this idea. If an individual does not possess the minimal mental element to establish voluntariness with respect to the actus reus it makes sense that he or she does not possess the degree of wrongful intention (mental element) needed to establish the mens rea.
[25] Whether the voluntariness requirement is considered part of the actus reus or mens rea should not make much of a difference with respect to criminal and full mens rea regulatory offences because the prosecution must prove both the actus reus and mens rea of those offences—beyond a reasonable doubt. Stated otherwise, the prosecution would have to prove the voluntariness requirement (subject to the presumption that a person acts voluntarily)—beyond a reasonable doubt—whether it attaches to the actus reus or mens rea.
[26] The situation is different in the case of a strict or absolute liability offence where the prosecution need only prove the actus reus of the offence. In absolute liability offences the defendant cannot raise the absence of mens rea to escape liability. In strict liability offences, once the prosecution proves the actus reus the mens rea is presumed unless a defence of due diligence is made out. It is therefore legitimate to ask if and how a defendant could raise the issue of involuntariness in the context of absolute and strict liability offences if the requirement of voluntariness attaches only to the mens rea? It should not surprise that Lamer C.J. in Daviault, at p. 71, stated that he preferred associating voluntariness with the actus reus "so that the defence clearly be available in strict liability offences…"
[27] Notwithstanding these concerns, in my view, the traditional view continues to apply in regulatory matters. First, in Stone, the majority clearly confirmed that the requirement of voluntariness is a component of the actus reus. Second, I have not been directed to case law that clearly displaces the traditional view with respect to regulatory matters. Third, to displace the traditional view would require full argument on the legal, Charter and policy considerations associated with such a significant change. Such a case was not advanced in this present trial. Fourth, as already noted, the majority in Daviault confirmed that the requirement of voluntariness cannot be taken away by judicial policy and elimination of the requirement would infringe s. 11(d) and s. 7 of the Charter. Sixth, in Stone, the majority emphasized the need to have consistency in approach with respect to all forms of automatism. The traditional view offers such consistency in regulatory matters as well as the clarity that the requirement of voluntariness applies for strict and absolute liability regulatory offences.
II. APPLICATION TO THE PRESENT CASE
[28] In submissions, both prosecution and defence adopted the view that s. 149(1)(a) of the HTA is a strict liability offence. I agree.
[29] Absent a clear contrary legislative intent, a regulatory offence is presumed to be a strict liability offence: see Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc., 2006 SCC 12, [2006] 1 S.C.R. 420, at paras. 16 to 19. The provision at issue does not contain the words "wilfully", "with intent", "knowingly" or "intentionally" which would signal the legislature's intent to create a full mens rea offence: Sault Ste Marie, at p. 1326. Application of the criteria for the classification of offences also leads, in my view, to the conclusion that the legislator did not intend to create an absolute offence (i.e. that guilt would simply follow proof of the proscribed act). The presumption of a strict liability offence is therefore not displaced.
Analysis of the trial evidence
[30] At the outset, it is again important to note that Mr. Viens admitted to driving left of centre (on a curve) and into the opposing lane of traffic. He, however, asserts that his conduct was involuntary because of sudden and repeated sneezing and watery eyes.
[31] Sneezing, allergies and watery eyes are all common human experiences. I have no reason to question that a sudden and intense episode of repeated sneezing (and watery eyes) can rise to the level to provoke temporary involuntary physical reactions whether caused by an allergy or otherwise. The issue, in this case, is whether there is sufficient evidence that sneezing and watery eyes were of a degree to make Mr. Viens' act of driving into the opposing lane of traffic involuntary. For greater certainty, "sufficient evidence" means—does the totality of the admissible trial evidence leave the trier of fact with a reasonable doubt on the issue of voluntariness? The defendant cannot be found guilty, if I, as the trier of fact, am not satisfied—beyond a reasonable doubt—that the actus reus was voluntary.
[32] Assertions of physical involuntariness are far from common in regulatory driving cases. Each case will necessarily turn on its own facts. Given the variety of forms of physical involuntariness, there is not pre-set categories of factors that should limit the considerations of the trier of fact. Even in cases of automatism where special requirements apply (e.g. the need for psychiatric evidence) there are no determinative factors or closed categories of relevant factors: Stone, at para. 192.
[33] After reviewing the trial evidence, a number of issues drew my attention, inter alia, the following:
Mr. Viens was the only witness to provide evidence about his physical condition on April 17, 2017. There was no independent evidence as to his physical condition (sneezing, watery eyes, allergies) before, during or after the vehicle crossed into the opposing lane.
Mr. Viens testified that the sneezing episode was sudden and intense, but he did not pull over and stop following the episode. He kept on driving southbound even though he stated he was sneezing for a time after the incident. He stopped to buy allergy medication when he reached North Bay.
When stopped by Constable Bowes, some 1.5 hours after the incident, Mr. Viens testified that his eyes were still watery. Constable Bowes did not testify as to any "watery eyes", but in fairness I did consider that, at trial, she was not directly asked to comment on Mr. Viens' physical condition.
Constable Bowes testified that Mr. Viens made a statement at roadside (voluntariness was conceded at trial) to the effect that he remembered crossing the line at the time he was reaching for a Kleenex, but there was no mention of sneezing or watery eyes.
[34] The evidence in relation to involuntariness is almost all from Mr. Viens. It is certainly to be expected that the defendant would be in the best position to provide such evidence. Corroborating evidence is, of course, helpful to any case, but it is not a requirement and the lack of corroborating evidence is not determinative. It is the totality of the evidence that matters. Oftentimes, the testimony of one trial witness will carry the day.
[35] In my view, however, Mr. Viens' testimony on the issue involuntariness was not compelling in terms of sufficiency. He provided limited details on how the allergy, sneezing and watery eyes specifically impacted on his physical reactions and made his conduct temporarily involuntary. In cross-examination, the prosecution rightly questioned the accuracy of his account because Mr. Viens first stated that he began suffering from his allergy right after leaving New Liskeard. He then qualified the statement by stating that he began sneezing at the point the vehicle crossed into the opposing lane, which would have occurred approximately one hour after leaving New Liskeard.
[36] In addition parts of Mr. Viens' evidence—notably that he continued to drive without interruption after crossing into the opposing lane—appears to be at odds with having just experienced an intense sneezing episode (and watery eyes) that he asserts rendered his actions involuntary. In the often cited case of Faryna v. Chorny, [1952] 2 D.L.R. 354, O'Halloran J.A. stated, inter alia, that:
.... In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…
[37] The present case is also distinguishable from Ariganello. In Ariganello the defendant lost control of his vehicle during an intense coughing episode. The Court considered, inter alia, the following evidence: the intense coughing was described as choking; the defendant said he was dizzy; there was some evidence of the defendant trying to slow the vehicle; the defendant reported the coughing episode to the 911 operator; the investigating police officer observed the defendant coughing after the collision; and a co-worker confirmed the defendant was coughing during the day.
[38] After considering the totality of the trial evidence, I concluded that the actus reus of the offence, including that Mr. Viens' conduct was voluntary, was established beyond a reasonable doubt. For greater certainty, the trial evidence, including Mr. Viens' testimony with respect to the allergy, sneezing and watery eyes, did not leave me with a reasonable doubt on the voluntariness of his conduct while he was driving on Highway 11 on April 17, 2017.
[39] The offence at issue is a strict liability offence. Even though the prosecution has established the actus reus of the offence beyond a reasonable doubt, the defendant can avoid a finding of guilt if he can establish a defence of due diligence, on a balance of probabilities. The trial evidence does not disclose a defence of due diligence in accordance with that standard of proof.
Substituting elements of the actus reus
[40] In submissions, the prosecution advanced the position that a defence of involuntariness is not available to a defendant who engages in or continues to engage in conduct when he or she knows or ought to know that there is a real risk that a state of involuntariness could arise. The prosecution relies on Hundal and R. v. Jiang, 2007 BCCA 270, [2007] BCJ No. 928 (CA).
[41] I need not address this argument because I have already made a finding that the evidence has established the actus reus of the offence, including voluntariness—beyond a reasonable doubt. The issue, however, is important and I offer some very brief comments.
[42] The prosecution's argument appears to touch upon the authority to substitute elements of the actus reus. In Daviault, a majority of the Court confirmed the problems associated with such substitutions. At p. 102 and 103, Cory J. wrote:
A person in a state of automatism cannot perform a voluntary willed act since the automatism has deprived the person of the ability to carry out such an act. It follows that someone in an extreme state of intoxication akin to automatism must also be deprived of that ability. Thus a fundamental aspect of the actus reus of the criminal act is absent. It would equally infringe s. 7 of the Charter if an accused who was not acting voluntarily could be convicted of a criminal offence. Here again the voluntary act of becoming intoxicated cannot be substituted for the voluntary action involved in sexual assault. To do so would violate the principle set in Vaillancourt, supra. Once again to convict in the face of such a fundamental denial of natural justice could not be justified under s.1 of the Charter. [Emphasis added]
III. DISPOSITION
[43] For the reasons stated herein, there will be a finding of guilt. The sentencing of Mr. Viens can proceed on April 26, 2018 or another date agreed upon by the prosecution and defence.
Released: April 26, 2018
"J.G. McMahon"