Court Information

Ontario Court of Justice

Date: May 2, 2019

Court File No.: Brampton 18-6263

Parties

Between:

Her Majesty the Queen

— And —

Jeremy King

Before the Court

Justice I. Jaffe

Heard: April 3 and 4, 2019

Reasons for Judgment Released: May 2, 2019

Counsel

T. Sarantis — Counsel for the Crown

H. Saini — For the Defendant Jeremy King

Reasons for Judgment

JAFFE J.:

Facts

[1] On May 9, 2018, at approximately 1:27 a.m., while P.C. Dietrich and Sergeant Kokot, both officers with the OPP, were travelling northbound on highway 410 in an unmarked police vehicle, Jeremy King's silver Chrysler sped past them.

[2] P.C. Dietrich, the driver of the police vehicle, accelerated in an attempt to follow the Chrysler and eventually caught up to it on the Queen Street off ramp. Within seconds, Mr. King, the sole occupant of the Chrysler found himself under arrest for dangerous driving and driving while his abilities to do so were impaired by alcohol. Breath tests back at the police detachment revealed a blood alcohol concentration in excess of the legal limit and resulted in an over 80 charge.

[3] Mr. King seeks to exclude evidence on the basis that his s. 8, 9 and 10 Charter rights were violated at the roadside by the arresting officer P.C. Dietrich. The Charter application and trial proceeded in a blended fashion.

Summary of the Evidence

[4] Three witnesses testified. P.C. Dietrich, the arresting officer, her partner Sgt. Kokot, and the qualified breath technician P.C. Sikora.

[5] P.C. Dietrich, a 15 year veteran of the OPP, was the driver of the unmarked Chevy Tahoe. Her passenger was Sgt Kokot. P.C. Dietrich testified that at 1:27 a.m., she was travelling in the fast lane of highway 410, just north of highway 407, when she observed a silver Chrysler speed past her in the lane next to her at such a high rate of speed, she could not discern the full license plate number.

[6] Making the immediate decision to pursue the Chrysler, the officer accelerated to 194 km per hour, which is the maximum speed her police truck will travel. The officer estimated that the Chrysler must have been travelling "well over 200 km" because while she did not lose sight of the Chrysler, she was not gaining on the speeding car.

[7] The officer estimated that at the time she first observed the Chrysler she was travelling at a speed of between 120-130 kilometres per hour and the speeding Chrysler was travelling about 150-160 kilometres per hour.

[8] P.C. Dietrich testified that she observed the Chrysler change lanes just prior to the Queen Street exit. The officer followed, and as the Chrysler slowed down, she pulled her vehicle in front of the Chrysler blocking it between her truck and a large 18-wheel transport truck that was stopped in the lane immediately to the right of the Chrysler.

[9] She testified that as she was standing by the driver's side door, with its window down, she observed Mr. King to have bloodshot eyes and she detected an odour of alcohol coming from Mr. King's breath.

[10] She placed him under arrest for impaired and dangerous driving and began reading his rights to counsel at 1:30 a.m., approximately three minutes after she first observed him speed by her.

[11] The officer observed Mr. King make only one lane change (as he was preparing to exit the highway), and she observed no erratic driving, such as weaving in or between lanes or cutting off other drivers. She agreed that other than the speed, she observed nothing unusual about his driving.

[12] The officer testified that in her experience, a vehicle going that fast is usually stolen or the driver is impaired.

[13] P.C. Dietrich testified that as she was exiting her car, she had already made the decision that she was going to arrest the driver for dangerous driving.

[14] The officer agreed with defence counsel's suggestion that she was at Mr. King's car within a matter of seconds, and opened his driver's side door. She also clarified under cross examination that she detected the odour of alcohol after she opened Mr. King's driver side door. The officer also acknowledged that she then asked Mr. King some questions she believed would have some evidentiary value such as "why were you going so fast?"

[15] Though P.C. Dietrich had a functioning approved screening device (ASD) in her possession that night, she opted not to administer a screening test as she had already formed sufficient grounds to arrest Mr. King on a charge of impaired driving and make a breath demand.

[16] P.C. Dietrich disagreed with defence counsel's suggestion that her estimate of Mr. King's speed was exaggerated and that he was travelling at speeds closer to 150 kilometres per hour. The officer could not specifically recall the traffic conditions on the highway at the time though she assumed it was "light."

[17] Following the provision of rights to counsel, P.C. Dietrich read a standard caution which ended with the question "do you wish to say anything in answer to your charges?" Mr. King answered in the negative.

[18] P.C. Dietrich testified that once at the Port Credit OPP detachment, she relayed her grounds for making the breath demand to P.C. Sikora, the breath technician. Specifically, she told P.C. Sikora that she observed dangerous driving, the odour of alcohol on Mr. King's breath, and his bloodshot eyes.

[19] P.C. Sikora however, testified that the grounds he received from P.C. Dietrich included two other observations. Specifically, he testified that P.C. Dietrich told him that Mr. King had been observed weaving through traffic and admitted drinking. The inclusion of these two indicia is odd, because according to P.C. Dietrich, she did not see Mr. King weaving through traffic nor could she recall what Mr. King said at the roadside. She certainly did not testify that he made an admission of drinking.

[20] Sgt. Kokot, who was P.C. Dietrich's partner and passenger also observed the silver Chrysler speed past them at 1:27 a.m. when they were "within hundreds of meters" north of the 407. He testified that after P.C. Dietrich started to accelerate he noticed that the truck had maxed out at 194 km/hour and they were not gaining on the silver Chrysler. Sgt Kokot estimated that the Chrysler was travelling about 200 km an hour for the entire time of their pursuit.

[21] Unlike P.C. Dietrich, Sgt. Kokot recalled that there were "a handful" of other cars in the vicinity and that during their pursuit, the Chrysler made several lane changes to get around other vehicles, though the cars did not appear to be affected. Sgt. Kokot remembered seeing the transport truck on the off ramp, but he recalled that the truck was in front of the Chrysler in the same lane.

The Charter Arguments

[22] Mr. King seeks to exclude the breath readings and utterances on the basis that his s. 8, 9 and 10 Charter rights were violated at the roadside.

[23] It is argued that Mr. King was arbitrarily detained when P.C. Dietrich effectively blocked him on the off ramp and approached his car. He was then subjected to an unreasonable search and seizure when the officer opened his car door and detected the odour of alcohol on his breath.

[24] It is further argued that P.C. Dietrich lacked objectively reasonable grounds to make a breath demand and accordingly, Mr. King's s. 8 rights were further violated by the warrantless and unreasonable "seizure" of his breath samples.

[25] Mr. Saini argued that Mr. King's rights to counsel were breached in two ways at the roadside. First, when Mr. King was clearly detained but prior to being informed of his s. 10(b) rights, the officer asked him questions. Though the officer did not recall the answers he gave, she did recall detecting the odour of alcohol on his breath when he spoke. Secondly, after Mr. King expressed a desire to contact counsel, the officer ended her standard police caution by asking Mr. King if he had anything to say in answer to the charges. This was a breach of the officer's duty to hold off questioning Mr. King until he was afforded a reasonable opportunity to contact counsel.

Reasonable Grounds to Make an Arrest for Dangerous Driving

[26] Section 495(1)(a) of the Criminal Code authorizes a police officer to make a warrantless arrest where the officer believes on reasonable grounds that a person has committed an indictable offence. P.C. Dietrich testified that before exiting her vehicle, she had determined that she was going to arrest Mr. King for dangerous driving. The officer was of the view that the speed at which Mr. King was driving alone furnished her with sufficient grounds to do so.

[27] Counsel for Mr. King argued that speed alone, on a quiet highway with no indication of erratic or dangerous driving, did not constitute a sufficient basis upon which to make an arrest.

[28] The offence of dangerous driving requires the Crown to prove that the accused was driving in an objectively dangerous manner having regard to all the circumstances. Depending on the circumstances of a particular case, evidence of excessive speed, in itself, can prove the offence: R. v. Richards (2003), 174 C.C.C. (3d) 154 (Ont. C.A), at para. 11; R. v. M. (M.K.) (1998), 35 M.V.R. (3d) 319, at p. 319.

[29] If speed alone can ground a conviction, it stands to reason that speed alone, again depending on the circumstances, can furnish a reasonable basis upon which to arrest. After all, the standard for arrest does not require proof beyond a reasonable doubt, nor even the establishment of a prima facie case: R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127, at para. 36-37.

[30] I do have some reliability concerns relating to P.C. Dietrich and Sgt. Kokot's evidence stemming from some inconsistencies in their evidence. While Sgt. Kokot observed Mr. King changing lanes to get around other vehicles, P.C. Dietrich observed no other cars and only one lane change. While Sgt. Kokot observed the transport truck ahead of Mr. King's car in the same lane, P.C. Dietrich maintained that that truck was next to Mr. King's car and unknowingly assisted in boxing in Mr. King at the stop light.

[31] Nevertheless, both officers were consistent in their evidence concerning Mr. King's speed, explaining that hitting a maximum speed of 194 kilometres an hour in their police vehicle, they were making no gains on Mr. King's speeding car. On this point, the officer's evidence remained consistent and resistant to cross-examination.

[32] Regardless of the discrepancy in the officer's evidence concerning the amount of traffic on the highway at the time, I know for sure there were at least three vehicles on the road and in close proximity to each other. The police vehicle, Mr. King, and a transport truck. It is reasonable to expect traffic on a GTA highway even at 1:30 a.m. and those who travel at excessive speeds pose an objective risk to other motorists.

[33] In my view, the officers had a reasonable basis for believing that Mr. King's car was travelling at an excessively high rate of speed. A car the police believed was travelling upwards of 190 kilometres an hour on a live highway, provided P.C. Dietrich with an objectively reasonable basis to believe the driver was operating his car in a manner dangerous to the public. It is my view that P.C. Dietrich had sufficient grounds upon which to arrest Mr. King on a charge of dangerous driving. I have not been persuaded that Mr. King was arbitrarily detained when P.C. Dietrich essentially blocked him in and approached his car. Mr. King's detention was lawful.

[34] Having formed the grounds to effect an arrest on a charge of dangerous driving, I find that P.C. Dietrich's act of opening Mr. King's car door fell within the general scope of her common law duties to prevent crime, preserve the peace and protect life and property. This last duty includes the duty to control traffic on public roads: R. v. Dedman, [1985] 2 S.C.R. 2, at para. 65.

Reasonable Grounds to Make an Arrest for Impaired Driving and to Make a Breath Demand under s. 254(3)

[35] Though the applicant seeking Charter relief bears the burden of demonstrating a breach, where evidence was obtained without a warrant, the burden is on the Crown to demonstrate the reasonableness of the seizure. The first step is to demonstrate that the seizure was authorized by law: R. v. Collins, [1987] 1 S.C.R. 265.

[36] The law authorizing the seizure of Mr. King's breath samples at the time was s. 254(3) of the Code. The statutory pre-conditions to making a demand under s. 254(3) are identical to the constitutional preconditions to making a lawful search and seizure, namely reasonable and probable grounds: R. v. Sheppard, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 13. It is however, an error to conflate the two. Whereas the lawfulness of the arrest must be determined at the time of arrest, the lawfulness of the demand is determined at the point in time the demand is made. Accordingly, indicia that comes to light following an arrest, can support the validity of the breath demand: R. v. Rezansoff, 2014 SKCA 80 at paras. 25-27. In this case however, the indicia upon which P.C. Dietrich justified the arrest and her breath demand are identical.

[37] P.C. Dietrich testified that it was the combination of the speed, the smell of alcohol and Mr. King's bloodshot eyes that led her to arrest him for impaired driving and make the breath demand.

[38] Counsel for Mr. King argued that the officer was not entitled to rely on the odour of breath as an indicia of alcohol impairment as it was only detected while she was violating Mr. King's s. 8 and 10 rights.

[39] I will deal with the s. 8 argument first. I have found that Mr. King was lawfully arrestable when P.C. Dietrich approached his car and almost immediately thereafter, detected an odour of alcohol on his breath. The circumstances under which this odour was first noticed is unclear. In her evidence-in-chief, the officer explained that it was while standing next to Mr. King's driver's door while the window was open. In cross-examination however, the officer acknowledged that she opened Mr. King's driver's door and it was then that she detected the odour. It was during her initial interaction with Mr. King that the officer also noticed his bloodshot eyes. All of these events happened quickly, unfolding in a matter of seconds.

[40] Whether the odour of alcohol was detected before or after the officer opened the car door, in light of my earlier ruling regarding the lawfulness of P.C. Dietrich's act of opening the car door, I find that her observations of Mr. King and her detection of an odour of alcohol were lawfully obtained. As such, the officer was entitled to take into consideration the alcohol odour and bloodshot eyes when determining whether to effect an arrest for impaired driving, and whether to make a s. 254(3) demand.

[41] Turning to the s. 10 complaint, P.C. Dietrich's unchallenged evidence was that she noticed the odour of alcohol from the car first, then noticed it on Mr. King's breath. The speed of Mr. King's car, and the odour of alcohol emanating from within it furnished the officer with sufficient basis upon which to investigate Mr. King's sobriety in the course of which the brief temporary suspension of Mr. King's rights to counsel was constitutionally permissible: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3.

[42] I have not been persuaded that Mr. King's sections 8 and 10(b) rights were being violated at the point in time P.C. Dietrich was detecting the odour on his breath. P.C. Dietrich was therefore entitled to consider the odour of alcohol on Mr. King's breath, together with the speed of his car and his bloodshot eyes in forming her grounds for belief.

[43] In assessing the lawfulness of Mr. King's arrest on the charge of impaired driving and lawfulness of the breath demand, the test is whether, objectively, there were reasonable and probable grounds to believe Mr. King's ability to drive was even slightly impaired by the consumption of alcohol: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 64, at para. 48; R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd, [1994] 2 S.C.R. 478.

[44] I find that P.C. Dietrich subjectively believed that Mr. King's driving abilities were impaired. In addition to high speed, odour of alcohol and bloodshot eyes, P.C. Dietrich testified that in her personal experience driving at speeds of 200 kilometres an hour is usually associated with either an impaired driver or a stolen vehicle. Her confidence in her belief led her to forgo the administration of the ASD test which could have easily and quickly been performed at the roadside as the officer had a functioning device in her possession.

[45] The question is whether P.C. Dietrich's subject belief was objectively reasonable. In other words, whether a reasonable person, standing in the shoes of P.C. Dietrich, would have believed that reasonable and probable grounds existed: R. v. Storey, [1990] 1 S.C.R. 241, at p. 250; R. v. Shepherd, at para. 17; R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51.

[46] While the test for reasonable grounds is not an onerous test, it still requires some indicia, not only that the driver had consumed alcohol, but that the alcohol impaired, even slightly, his ability to drive. In this case, I am satisfied that P.C. Dietrich had objectively reasonable grounds to believe that the driver had consumed alcohol - the odour of alcohol and bloodshot eyes were objectively discernable facts that supported that belief.

[47] However, with no evidence about how much alcohol Mr. King had consumed at the time he was pulled over and how that alcohol could impair his ability to drive, the only objectively discernable fact of an impaired ability to drive was the speed at which Mr. King was driving.

[48] Whether I accept P.C. Dietrich's evidence that he was not changing lanes or Sgt. Kokot's evidence that he was, there is no evidence that his driving was erratic. In fact, P.C. Dietrich testified that driving at that speed requires concentration and precision in driving to keep the car on the road. From the perspective of both officers, Mr. King was possessed of those qualities insofar as he too was able to keep his car on the road, and exited without incident onto an off ramp, preparing for what appeared to be a normal stop at the stop light. Moreover, neither officer observed anything at the roadside which suggested that Mr. King had a reduced ability to perform complex motor functions.

[49] It is well settled that an officer's training and experience may provide an objective basis for her belief. In this case, I found that P.C. Dietrich's experience contributed to her belief that Mr. King was impaired. However, it does not follow that the officer's evidence concerning her past experience has objective value. In R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 47, the Court held that:

Evidence as to the specific nature and extent of an officer's experience and training is required so that the court may make an objective assessment of the probative link between the constellation of factors relied on by the police and criminality.

[50] Here we had no such evidence, so while P.C. Dietrich's experience may have contributed to her subjective belief, on the record before me, her experience did not objectively support that belief.

[51] Even if I were to find that Mr. King was driving close to 190 kilometres an hour, or even above, and this might suggest a lack of judgment, I am not of the view that his speed combined with the indicia of alcohol consumption objectively supported P.C. Dietrich's belief. She most certainly had an objectively reasonable suspicion but not belief.

The Caution and the 10(b) Breach

[52] Upon arresting Mr. King and immediately following his rights to counsel - in response to which Mr. King indicated a desire to call counsel, P.C. Dietrich read a standard police caution which culminates in the officer asking if Mr. King would like to say anything in answer to the charge. Mr. King replied "no."

[53] On February 19, 2018 in R. v. G.T.D., 2018 SCC 7, [2018] 1 S.C.R. 220, the Supreme Court held that this final question posed in many standard police cautions violates s. 10 of the Charter. Mr. Saini argued that standing alone, this particular breach might not warrant a s. 24(2) remedy however, in this case, it is one in a compilation of Charter breaches that cumulatively warrant the exclusion of evidence.

[54] The Crown suggested the impugned wording only amounts to a Charter breach if it elicits an inculpatory response. This argument picked on Justice Brown's statement in G.T.D. where it would seem as though the fact that G.T.D. made a statement was central to a finding that breach occurred. Specifically, His Honour said as follows at para. 2 of G.T.D.:

The first issue in this appeal is whether the question "Do you wish to say anything?," asked at the conclusion of the standard caution used by the Edmonton Police Service after G.T.D. had already invoked his right to counsel, violated this duty to "hold off." We are all of the view that it did, because it elicited a statement from G.T.D.

[55] I do not interpret these comments in the manner suggested by the Crown. A finding that the police breached s. 10 of the Charter should not turn on whether the breach led to the discovery of evidence, though the absence of such evidence may help inform what if any remedy is appropriate.

Section 24(2) Remedy

Seriousness of the Charter Infringing State Conduct

[56] Police conduct which results in Charter violations runs along a continuum with willful or egregious disregard for Charter rights on the one end, and minor breaches committed in good faith on the other. The more willful or deliberate the state conduct, the greater the Court's need will be to disassociate itself from the conduct: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 72 and 74.

[57] In this case Mr. King's rights were breached in two ways. The first resulted in the seizure of his breath samples following a demand premised on insufficient grounds (i.e. the taking of the breath samples was not authorized by law). A warrantless search in the absence of grounds is a serious breach.

[58] Good faith will be found when the police have acted in a manner consistent with what they subjectively and reasonably believed to be law: R. v. Washington, 2007 BCCA 540, 227 C.C.C. (3d) 214, at para. 78. In this case, I cannot find that the s.8 breach was committed in good faith.

[59] Though I found that P.C. Dietrich believed she had sufficient grounds to make the breath demand, I am also of the view that an officer with P.C. Dietrich's experience ought to have known that her grounds fell short of justifying a breath demand. Without more, the combination of speed and odour of alcohol does not reveal an impaired ability to drive, nor does it give insight into whether the driver has an unlawful level of alcohol in his system.

[60] With an ASD at her immediate disposal, the officer had a quick and easy method by which to substantiate her subjective belief of impairment. In my view, the officer's decision to forgo that easy investigative step compounds the seriousness of the breach. I did not find persuasive the explanation offered by her partner Sgt. Kokot that had an ASD test been performed, the officers have been faced with "forthwith" argument relating to the demand.

[61] The performance of an ASD when the device is at the scene consumes mere minutes. I highly doubt in most cases a court would seriously question the good faith of an officer who performs a roadside screening test with a readily accessible device, even if the court subsequently concludes that reasonable grounds existed irrespective of the ASD result.

[62] The breach in this case was not committed in good faith, nor however am I prepared to find that it was product of bad faith. The conduct of the officer is plotted along the continuum closer to good faith, though still resulting in a serious breach of Mr. King's s. 8 rights.

[63] Turning to the second Charter breach, the breach of Mr. King's 10(b) rights. P.C. Dietrich testified that she had been using the wording of the old caution for 15 years and the offending words at its conclusion were routine. Indeed similarly worded cautions as the one used by P.C. Dietrich had been used by police in Canadian jurisdictions since the Charter was adopted: G.T.D., 2017 ABCA 274, 355 C.C.C. (3d) 431, at para. 22, appealed allowed, 2018 SCC 7, [2018] 1 S.C.R. 220. Until the Supreme Court definitively pronounced its unconstitutionality, the caution was the subject of minimal, and conflicting, Charter scrutiny: G.T.D., at para. 22.

[64] P.C. Dietrich posed the offending question 2 ½ months after the SCC held that it was unconstitutional but before she had been advised of the Court's decision. Ideally the impact of a Supreme Court decision would have an immediate effect on policing, however, that is not always realistic. Sgt. Kokot testified that the police were not made aware of the impact of the G.T.D. decision until the end of 2018 when new caution cards were issued.

[65] The question is whether P.C. Dietrich was acting in accordance with what she reasonably believed to be law at the time. If the same caution was administered today, my answer to that question would be different. However, I am of the view that back in May 2018, P.C. Dietrich inadvertently and in good faith breached Mr. King's s. 10(b) rights when she administered what she reasonably believed to be the appropriate police caution.

The Impact of the Charter Violation on the Accused

[66] The procedure of taking breath samples has been recognized as being minimally intrusive: R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460, at paras. 29 to 32. There was also nothing that occurred during Mr. King's post-arrest detention that aggravated the impact of the breach. Mr. King was arrested at 1:30 a.m. and was released from custody less than two hours later at 3:21 a.m. The breath room video captured the positive interaction between Mr. King and the breath technician. Moreover, the fact that Mr. King was lawfully arrested for the offence of dangerous driving attenuates the impact of the breach and distinguishes this case from many others where the driver was detained solely for the purpose of the breath test.

[67] The actual impact of the 10(b) violation on Mr. King was minimal. Unlike in G.T.D where the Crown sought to tender the incriminating comment made by the accused in response to the unconstitutional question, Mr. King gave no response.

[68] A consideration of the impact of both breaches on Mr. King's Charter-protected interests favours admission under this branch of inquiry.

The Importance and Reliability of the Evidence to a Trial on the Merits

[69] Under this line of inquiry, the focus is on whether the truth-seeking function of this trial would be better served by admission of the evidence, or by its exclusion: Grant, at "over 80" charge.

[70] The evidence is also reliable, which is an important factor in the s. 24(2) analysis: Grant, at para. 81. Generally speaking, the reliability of bodily sample evidence, such as breath samples, will favour admission under this third line of inquiry: Grant, at para. 110. Under the circumstances, I find that the truth-seeking function of the criminal trial process would be better served by the admission of the breath test results, rather than by their exclusion.

[71] While the first line of inquiry favours exclusion, the second and third Grant factors tip the balance towards the admission of the evidence. Mr. King's application to exclude his breath readings under s. 24(2) is dismissed.

The Charges

Over 80 Charge

[72] At 2:30 a.m., one hour after his arrest, Mr. King's first breath sample revealed a blood alcohol concentration of 150 milligrams of alcohol in 100 milliliters of blood. His next sample 23 minutes later produced a truncated reading of 140. In light of the defence admission that Mr. King's breath readings reflect his BAC at the time of driving, I find Mr. King guilty on the over 80 charge.

Impaired Driving

[73] I will not repeat the comments I previously made respecting the shortfall in the grounds to arrest Mr. King for impaired driving. I will simply add that no signs of impairment came to light following his arrest. I could not discern any apparent signs of impairment in the breath room video, nor did the breath technician P.C. Sikora note any difficulties with Mr. King's movements or speech.

[74] While Mr. King's breath readings furnish evidence that he had consumed alcohol, in the absence of toxicological evidence, I cannot infer from those readings any impairment in his ability to drive: R. v. Letford, 51 O.R. (3d) 737, at para. 22. In the end, I am being asked to find impairment based on speed alone, which for reasons outlined later in this ruling, does not convince me beyond a reasonable doubt.

Dangerous Driving

[75] Mr. King's acquittal on the impaired charge is in no way determinative of the dangerous driving charge. Whereas the impaired driving charge focused on the ability of Mr. King to have operated his car, the dangerous driving charge relates to the manner by which he operated his vehicle: R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 64.

[76] The actus reus of the dangerous driving offence is lifted straight from the wording of s. 249(1) of the Code and is established with proof that the accused was 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:" R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 28.

[77] The mens rea requires proof beyond a reasonable doubt that the accused's conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. The accused's actual state of mind is not required to be proven by the Crown although it might be relevant to an assessment of the mens rea.

[78] A finding that the driving constituted an objectively marked departure from the normal standard of care, imports with it the presumption that the driver possessed sufficient mens rea, together with the presumption that a reasonable person in the position of the accused would have been aware of the risks created by the manner of driving: Beatty, at para. 37.

[79] However, a purely objective test which did not allow an accused to raise reasonable doubt concerning his or her actual state of mind, would be incompatible with criminal law. Accordingly, the objective test applied to a dangerous driving offence has been modified to accommodate evidence of the accused's actual state of mind which may raise a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by his driving: Beatty, at para. 37.

[80] Finally, the driving in question need not have persisted for a proscribed period of time to constitute a "marked departure." Driving that lasts only seconds can be a "marked departure."

Actus Reus: Was Mr. King's Driving Objectively Dangerous to the Public?

[81] By reference to the speed at which their police vehicle was travelling, both experienced officers estimated that he was travelling "well over" 200 km per hour.

[82] On behalf of Mr. King, Mr. Saini urges me to use basic math to conclude that the speed and distance evidence of both officers does not add up to a speed anywhere close to 200 kilometres an hour. I have taken him up on this invitation and I agree.

[83] P.C. Dietrich testified that she placed Mr. King under arrest three minutes after she first observed highway 407, and the Queen Street exit is 5.1 kilometres. Using these estimates results in an average speed of 102 kilometres an hour.

[84] However, the time of actual driving was less than three minutes. P.C. Dietrich testified it took her approximately 45 seconds from exiting her car to placing Mr. King under arrest. It follows that the officers may have been pursuing Mr. King for as little as two minutes. Assuming he travelled that distance in two minutes, his speed would have been 153 kilometres an hour.

[85] Both officers testified that Mr. King was already north of highway 407 when he sped past them, so in actual fact, he was pursued for less than 5.1 kilometres, further reducing the speed at which he would have been travelling.

[86] Apart from Mr. King's actual speed, there are other circumstances surrounding the alleged dangerous driving of which I remain uncertain. As a result of inconsistencies in the officer's evidence, I am left uncertain as to how many other vehicles were on the road, and whether Mr. King changed lanes multiple times while being pursued.

[87] It seems clear however that the road was dry and quiet and except for his speed, neither officer noticed anything unusual about the manner of Mr. King's driving.

[88] With the luxury of time and a calculator, I have concluded that the officer's estimates of speed, time and/or duration must have been off. This finding does not detract from the reasonableness of P.C. Dietrich's grounds to arrest Mr. King for dangerous driving. The officers may have perceived Mr. King travelling at 200 kilometres per hour, or perhaps they were correct about his speed and simply miscalculated the distance or time over which they pursued Mr. King. The point is while P.C. Dietrich had objectively reasonable grounds to believe Mr. King was driving dangerously, far more is required to prove the charge.

[89] Mr. King had consumed alcohol prior to getting behind the wheel of his car and intuitively, the combination of speed and alcohol might suggest an objectively dangerous conduct. No doubt the average citizen would be justifiably concerned that someone would consume alcohol and speed on a highway. However, in law, in the absence of toxicological evidence, I cannot make any finding regarding the effect of the alcohol on Mr. King and the risk it presented.

[90] That is not to say that alcohol consumption is irrelevant in determining whether the Crown has proven a dangerous driving charge. In R. v. Settle, 2010 BCCA 426, 261 C.C.C. (3d) 45, at para. 48, the Court held that the combination of an accused's voluntary alcohol consumption and his driving conduct, can establish a "pattern of disregard for the safety of other users of the highway that amounts to a marked departure from the standard of care of a reasonably prudent driver." In other words, alcohol consumption can be relevant in determining whether the mens rea element of the offence has been proven.

[91] In R. v. McLellan, 2016 ONCA 732, 343 C.C.C. (3d) 39, Justice McFarland of our Court of Appeal confirmed this principle at para. 25:

When dealing with a dangerous driving charge, it is not inappropriate in considering whether a driver's conduct is a marked departure from that of a reasonable driver in similar circumstances, to consider whether or not that person has consumed alcohol and if so to what degree before operating the motor vehicle - as I have said it goes to mindset and a willingness to assume risk.

[92] In determining whether the Crown in this case has proven the actus reus, I am focused on the speed at which Mr. King was travelling. 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. I am of the view that travelling at a speed of 200 kilometres an hour for any length of time on a highway, even in the middle of the night, and even in light traffic conditions, constitutes objectively dangerous conduct.

[93] In this case however, based on the evidence before me, I am not certain he was travelling close to that speed. Individual items of evidence need not be proven on the criminal standard of proof beyond a reasonable doubt. However in this case, the speed at which Mr. King was driving shoulders the full weight of the actus reus. Accordingly, I must be certain that the speed at which Mr. King was driving constituted objectively dangerous conduct. I cannot be certain of this. In light of this finding, I need not consider with whether the Crown has proven the mens rea. I find Mr. King not guilty on the dangerous driving.

Released: May 2, 2019

Signed: Justice I. Jaffe