Court File and Parties

Ontario Court of Justice

Date: 2019-07-31

Court File No.: Guelph 18-1315

Between:

R

— AND —

Pieter Wyminga

Before: Justice of the Peace M A Cuthbertson

Heard on: 8 May 2019

Reasons for Judgment released on: 31 July 2019

Counsel:

• C. Cull for the prosecution
• M. Lawrie for the defendant

JUSTICE OF THE PEACE CUTHBERTSON:

1. OVERVIEW

[1] After analyzing the points of contention and the defences offered by Mr Wyminga, I am satisfied that the prosecution has proven the essential elements of the offence under s. 172(1) of the Highway Traffic Act of Ontario. I come to that conclusion due to the following.

[2] First, the defendant was followed for a distance of approximately 3½ kilometres travelling at a high rate of speed by Officer Griffin. A radar reading of 150 kph in a posted 80 kph zone confirmed the speed of the defendant's motor vehicle.

[3] Second, the issues of concern expressed by the defendant about the officer's testimony do not provide a reasonable doubt, in my opinion.

[4] Third, the issues of concern raised by the prosecution about Mr Wyminga's testimony do not solely provide a basis to register a conviction. However, the evidence which is not in dispute between the parties provide proof that the actus reus of the offence was committed by the defendant.

[5] Fourth, the defendant does not, on a balance of probabilities, have a defence of due diligence, a defence of necessity nor a defence of automatism.

[6] As my reasons below will articulate, I have no reasonable doubt in this matter. A conviction for the offence alleged will be registered against Mr Wyminga.

2. BACKGROUND

[7] On Monday, 26 February 2018 at about 10:54 PM, OPP Officer B Griffin and Mr P Wyminga approached Highway 6 Northbound (commonly called the Hanlon Expressway) at Highway 401 from opposite directions. Mr Wyminga exited first onto Hwy 6 N and proceeded towards his ultimate destination of Elora. Officer Griffin, shortly after Mr Wyminga's exit from the 401, also entered Hwy 6 N.

3. FACTS NOT IN DISPUTE

[8] The following facts, in the events that followed, are not in dispute:

• Mr Wyminga was driving a Mazda 3 motor vehicle (Licence Plate BWWZ892) on Highway 6. He was ahead of Officer Griffin.

• The Hanlon expressway is a 4 lane highway with 2 northbound and 2 southbound lanes separated by a centre grass median. It was in darkness with no artificial lighting in the areas travelled by the defendant and officer.

• There were no other northbound vehicles between or in the area of the officer and Mr Wyminga.

• Officer Griffin never lost sight of Mr Wyminga's vehicle.

• Officer Griffin was a qualified operator of the radar device he used to measure the speed of Mr Wyminga's vehicle. He properly tested the device against the manufacturer's specifications both before and after the traffic stop and found it to be working correctly.

• Mr Wyminga was unaware of the speed at which he was driving when Officer Griffin pulled him over.

• Officer Griffin clocked Mr Wyminga's speed at 154 kph and then locked it in at 150 kph in a posted 80 kph zone on the radar device.

• Mr Wyminga was ultimately stopped by the officer. He pulled over at the Laird Rd exit.

• Mr Wyminga suffers from Attention Deficit Disorder (ADD).

4. EVIDENCE IN DISPUTE

[9] Officer Griffin initially testified that he first saw Mr Wyminga's car by its red taillights some 200 to 300 metres ahead of him in the area of Maltby Rd. Maltby Rd., according to the officer is about 1 to 1 ½ kilometres from the 401. Later, in his testimony, the officer was unsure how far Mr Wyminga's vehicle was ahead of him when he first saw the taillights. He was unaware of where the vehicle entered Hwy 6, as it was on Highway 6 before him. Mr Wyminga stated that the officer told him, when he was stopped, that he followed him from the 401. Based on his observations, the officer formed the opinion the vehicle was travelling at a high rate of speed which was above the posted 80 kph. He stated it was still pulling away from him when he began his pursuit to catch up to it.

[10] Officer Griffin stated he followed Mr Wyminga in lane 2 (right lane). Mr Wyminga stated he was in lane 1 (left lane – closest to the centre median) when he was being followed by the vehicle which turned out to be driven by Officer Griffin.

[11] Mr Wyminga testified that he saw the headlights of the approaching vehicle in his rear view mirror. That vehicle closed the distance to his car until it was approximately 10 to 15 metres or 1 to 2 seconds behind. This closeness caused him to be uncomfortable and to 'hyper focus', due to his ADD. Officer Griffin stated that he closed to within 25 to 50 metres in order to get a speed reading but may have been closer. Once he locked in his speed reading, he pulled the vehicle over.

[12] Mr Wyminga testified that it took him about 15 to 20 minutes to travel from the 401 to Laird Rd, which he estimated to be a distance of approximately 5 kilometres.

[13] Officer Griffin stated that when he first entered onto Hwy 6 that he was travelling at about 80 kph but did not know his speed when he caught up to Mr Wyminga.

5. ISSUES BEFORE THE COURT

[14] The following issues must be considered to decide this matter:

a) When did Officer Griffin first see the defendant's vehicle?

b) What lane was Mr Wyminga driving in?

c) What was the speed of Officer Griffin when he was behind Mr Wyminga?

d) How far did Officer Griffin travel to catch up to Mr Wyminga?

e) How long did it take for Mr Wyminga to travel from the 401 to Laird Rd?

f) Has the actus reus of the offence under s. 172(1) of the Highway Traffic Act been proven by the prosecution?

[15] If the offence has been proven does Mr Wyminga have a defence of:

• Due Diligence, or

• Necessity, or

• Automatism?

6. ANALYSIS

6.1 When did Officer Griffin first see the defendant's vehicle?

[16] Officer Griffin was inconsistent in this area of his testimony despite having his notes to refresh his memory. He also stated that he had a recollection of the events. He varied from initially seeing the defendant's vehicle 200 to 300 metres ahead to being unsure as to the distance. He did state that he first saw it between Maltby Rd (about 1 to 1 ½ km from the 401) and Laird Rd. He did not change his testimony on that. The defendant did not offer any views on the issue as he did not initially see the officer's vehicle until it began to approach his vehicle. I accept the officer's statement that he observed a set of red taillights accelerating away from him at a high rate of speed. There is no evidence to the contrary. There is no dispute that Mr Wyminga's car was the only vehicle ahead of him. Officer Griffin stopped that vehicle at Laird Rd. I accept that the officer's initial observation of the taillights was generally when that vehicle was in the area of Maltby Rd. In my view, nothing turns on just when the officer first saw the taillights. As a result, the inconsistency in Officer Griffin's testimony is not fatal to the prosecution's case.

[17] On the issue of whether the officer stated that he had followed Mr Wyminga from the 401, I note that the officer did state that he did not see Mr Wyminga's vehicle until 'well after the 401'. Further, the officer was clear that he had no idea whether Mr Wyminga had entered onto Hwy 6 from the 401 or possibly from County Rd 34, which is the first intersection north of the 401 on Hwy 6. It makes no sense that he would say he followed Mr Wyminga from the 401 if he did not know where Mr Wyminga entered Hwy 6. Further, Mr Wyminga did not see the officer until he saw the fast approaching headlights in his rear view mirror which occurred between Maltby and Laird Roads. I note that Mr Wyminga's statement was convenient to his narrative of being followed for an extended period of time but I do not accept Mr Wyminga's recollection that the officer stated he had been following him from the 401.

6.2 What lane was Mr Wyminga driving in?

[18] The officer did not have a note on this issue. His memory was that the defendant was in lane 2. Mr Wyminga was adamant that he was in lane 1. In my view, both witnesses were telling me the truth as they recalled it on this point. Nothing sways my view as to the correctness of either position. There is no dispute that Mr Wyminga was followed by the officer. Out of an abundance of fairness, I will accept Mr Wyminga's version on this point. Once again, nothing turns on which lane Mr Wyminga was in, to decide this matter.

6.3 What was the speed of Officer Griffin when he was behind Mr Wyminga?

[19] Officer Griffin testified that he was originally travelling at about 80 kph but then accelerated to catch up to the motor vehicle that was still accelerating away from him. He stated that he needed to get close (he estimated 25 to 50 metres or less) in order to get a valid speed reading. Common sense suggests that at significant speeds where the short distances between the vehicles could result in a collision had Mr Wyminga suddenly braked. Consequently, the officer's attention was required to be on the vehicle ahead instead of his speedometer. In addition, he also needed to monitor his radar device to lock in the speed reading. It is obvious to me that since he locked the speed of Mr Wyminga's vehicle at 150 kph and was effectively pacing that vehicle, the officer was also travelling at approximately 150 kph when he was immediately behind the defendant's vehicle. Again, in my opinion, nothing turns on the speed of the officer's vehicle at that point. The real issue was the speed at which Mr Wyminga was driving.

6.4 How far did Officer Griffin travel to catch up to Mr Wyminga?

[20] Based on my analysis above, he travelled from about Maltby Rd to about Laird Rd to catch up to Mr Wyminga. Based on the estimates also noted above that would be a distance of about (5 km to Laird Rd from 401 – 1 ½ km to Maltby Rd from 401) 3 ½ km.

6.5 How long did it take for Mr Wyminga to travel from the 401 to Laird Rd?

[21] Mr Wyminga initially stated that it took him about 15 to 20 minutes to travel the approximately 5 km from the 401 to Laird Rd. He knew this route well having travelled it frequently. His uncontested rate of speed which was locked on the officer's radar was 150 kph. He testified that as the car behind him approached he had to continually increase his speed to create a safe distance between the two vehicles. When I consider all of this, I conclude that it is illogical to have taken that amount of time for him to go about 5 km. However, I note that later in his testimony he retracted his original time estimate. I accept that he had made an honest mistake with his first time estimate.

6.6 Has the actus reus of the offence under s. 172(1) of the Highway Traffic Act been proven by the prosecution?

[22] As noted earlier, Mr Wyminga did not know the speed he was going when the officer was behind him. He did not dispute the officer's testimony that the radar device locked his speed at 150 kph. Therefore, I find that Mr Wyminga was travelling at 150 kilometres per hour in a posted 80 kilometres per hour zone. The actus reus of the offence has been proven by the prosecution.

6.7 Does Mr Wyminga have a Due Diligence Defence?

[23] Section 172(1) of the Highway Traffic Act, commonly called Stunt Driving, is a strict liability offence. Therefore, the defendant has the right to provide a due diligence defence whereby a defence of reasonable belief in a mistaken set of facts or the defence or reasonable care is available (see R v Sault Ste Marie). Mr Wyminga relies on the second branch of reasonable care (due diligence) for a defence. The test for this defence is on a balance of probabilities.

[24] Mr Wyminga testified that when he saw the headlights approaching at high speed in his rear view mirror that he began to hyper focus due to his ADD. He stated that when hyper focussed, he considers only one source of action and cannot rationally consider reasonable alternatives. This situation can occur when he is stressed and/or uncomfortable by external events, such as the approaching vehicle behind him.

[25] He provided two examples of how this scenario had impacted him in the past. While in school, when trying to solve a problem he would become hyper focussed on only one way to solve the problem and would try over and over again to use the same failed approach as his ADD would not allow him to consider other possible solutions. He also stated that more recently while driving on the 401 in heavy traffic which made him feel stressed and uncomfortable that he became hyper focussed and wanted to speed away to escape the traffic. He explained that the presence of the other vehicles around him prevented him from doing so.

[26] In this matter, he acknowledged that had he been thinking rationally, he should have pulled over from lane 1 into lane 2 and simply let the vehicle pass rather than constantly increasing his speed in an unproductive attempt to get ahead of the vehicle following him. However, he was not thinking rationally due to the effects of his ADD. He therefore believes that the effects of his ADD prevented him from taking all reasonable steps for his due diligence defence.

[27] He testified that only when he recognized the headlights of the pursuing vehicle were those of a Dodge Charger (a hobby which he enjoys is to know such details of cars) which are common police vehicles did he snap out of his hyper focus and begin to slow. It was apparently at this point that Officer Griffin noticed his reduction of speed from 154 kph to 150 kph.

[28] Mr Wyminga's due diligence defence is an interesting and unique one but for the following reasons it cannot succeed.

[29] Mr Wyminga expressed how the hyper focus caused by his ADD made him feel. However, he did not provide any expert medical evidence as what the effects of ADD might be and how they specifically impacted on him in the circumstances of 26 February 2018. Without such evidence, I cannot accept solely his explanation of the impact of his condition. His explanation alone is insufficient to support a due diligence defence. This issue is further discussed below in the context of a defence of automatism.

[30] I do not accept that the standard for a defence of due diligence applies only to his immediate actions surrounding the specific events leading to the charge Mr Wyminga faces. Rather, Mr Wyminga had full prior knowledge of how the hyper focus made him feel and its results, from the earlier experiences he described and should have taken reasonable steps to avoid putting himself in circumstances which triggered his feelings of hyper focus.

[31] To be more precise, the defendant stated that he had been on medication for his ADD but ceased taking it due to its side effects. He knew that in difficult traffic situations that he hyper focussed and yet he provided no evidence that he had sought any medical advice about the cessation of the medication or possible alternatives to that/those particular medication(s) in an effort to avoid the debilitating feelings caused by his ADD, in driving situations. In my view, his impulse to try to speed away from heavy traffic on the 401 caused by his hyper focus should have caused him reasonably to know that without the ADD being under control he could be a danger to himself or others on the roads of Ontario should be become distressed or uncomfortable. Instead of seeking further medical assistance with his condition, he apparently did nothing to address his issues with ADD.

[32] In the absence of taking proper medication or seeking further medical advice for his condition, a very reasonable and appropriate step, in my opinion, would have been for him to choose not to drive to avoid the very circumstances which he knew would trigger his condition and lead to him hyper focus.

6.8 Does Mr Wyminga have a Defence of Necessity?

[33] In R v Kruchkowsky, 2008 ONCJ 704, I had occasion to consider the defence of necessity and the law surrounding it. Several of the paragraphs of that decision are helpful to describe the appropriate law. Those paragraphs from Kruchkowsky are:

17 In R v Perka, the Supreme Court of Canada considered the rationale for the defence of necessity. Dickson J, writing for the majority stated:

'At the heart of the defence is the perceived injustice of punishing violations of law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable.'

The Court accepted the view of necessity as "compulsion of circumstance" where the actions constituting the actus reus of the offence must be involuntary, thereby providing an excuse for the action.

18 In Perka, the Court used an example of involuntariness with similarities to the case at bar. It stated:

The lost alpinist who on the point of freezing to death breaks open an isolated mountain cabin is not literally behaving in an involuntary fashion. He has control over his actions to the extent of being physically capable of abstaining from the act. Realistically, however, his act is not a "voluntary" one. His "choice" to break the law is no true choice at all; it is remorselessly compelled by normal human instincts. This sort of involuntariness is often described as "moral or normative involuntariness".

19 The Perka decision also determined that the onus of proof lies with the Crown to prove the act was voluntary. If the act was voluntary then the defence of necessity cannot succeed.

20 In R v Latimer, 2001 SCC 1, the Supreme Court of Canada ruled that three elements must exist for a defence of necessity. They are:

a) There must be imminent peril or danger.

b) The absence of a reasonable legal alternative to the course of action the defendant undertook.

c) There must be proportionality between the harm inflicted and the harm avoided which must be measured on an objective standard.

21 The first two of these tests must be measured by a modified objective standard as set out in R v Hibbert, by the Supreme Court of Canada. Lamer CJC, stated at paragraph 59:

This Court has previously indicated that when assessing the reasonableness of an accused's conduct for the purposes of determining whether he or she should be excused from criminal responsibility, 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.

[34] I will first apply the three tests set out in Latimer, supra:

(a) Was there imminent peril or danger?

[35] While Mr Wyminga testified that he was stressed and uncomfortable by the closeness of the following vehicle to his own, he did not describe any hostile actions taken by that vehicle which would rise to the level of imminent peril or danger. For example, the vehicle behind him did not try to impact with his vehicle rather it never approached closer than 15 to 20 metres. The vehicle did not attempt to pass him or interfere with his vehicle. Nor did the vehicle place itself in front of his vehicle and then brake hard to cause Mr Wyminga's vehicle to strike it. By any objective standard, this test was not met.

(b) Was there a reasonable legal alternative to the course of action the defendant undertook?

[36] Yes, he could have moved to the right and let the vehicle pass on his left. I acknowledge his statements about how his ADD made him feel leading to his hyper focus. Nonetheless, a reasonable legal alternative existed to the actions he undertook.

[37] Further, I rely on my findings above regarding a due diligence defence on the actions which he did NOT take prior to the events of 26 February 2018. Based on those findings, in my view he had additional reasonable legal alternatives of which he failed to avail himself. Again, by any objective standard this test was not met.

(c) Was there proportionality between the harm inflicted and the harm avoided?

[38] As I noted in Kruchkowsky (see para 28) the harm must be measured from the perspective of community standards. The community has the right to expect that people who wish to exercise the privilege of driving on Ontario's highways must do so within the laws set out in the Highway Traffic Act and elsewhere. Driving at 70 kph above the posted speed limit is an affront to the sensibilities and the laws of the community. It puts members of the community who may be driving or walking in the area of the Hanlon Expressway at significant risk. Fortunately, no harm came to any person from the excessive and dangerous speed at which Mr Wyminga was driving.

[39] Mr Wyminga did not avoid any harm by driving at those speeds. Simply put, there was no evidence presented that there was any harm present to avoid. As a result, this test was not met.

[40] Therefore, Mr Wyminga does not have a defence of necessity.

6.9 Does Mr Wyminga have a defence of automatism?

[41] Both sides referenced several cases to assist with my consideration of this matter.

[42] The parties provided Saadati v Moorhead, 2017 SCC 28, as relevant. With respect, I disagree. In my view, Saadati is distinguishable from the case at bar, as it dealt with an issue of the law of negligence not a regulatory offence as Mr Wyminga faces. As well, the issue before that court dealt with a medical injury caused by a collision between vehicles and the resulting change in personality of Mr Saadati. In the matter at bar, Mr Wyminga's ADD was a pre-existing condition to the events of 26 February 2018. Further, Brown J, writing for the Supreme Court clearly stated in para 2 that proof of a recognizable psychiatric illness is not a precondition for proving mental injury.

[43] If I am in error on the relevance of Saadati, I now consider its possible application. Mr Lawrie submitted that Saadati supported Mr Wyminga's position that it is not always necessary to have expert medical evidence for the court to find that evidence of a mental disorder exists rather a trial justice is in a position to make such a finding. I note the following statement of the Supreme Court in para 38:

To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury.

In Mr Wyminga's matter, no other evidence was submitted rather he relied solely on his own assertions. This is not acceptable pursuant to R v S.H., 2014 ONCA 303 (see para 70), which sets out "that a mere assertion of involuntariness will not be enough to meet the evidentiary burden: Stone at para 183".

[44] I do accept based on Mr Wyminga's statements that he has ADD. I also accept his comments about how it made him feel during the incident before me. This meets the 'air of reality' test pursuant to R v Cinous, 2002 SCC 29, that there exists evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true (see para 82). The question then is whether the evidence can be believed.

[45] I now turn to R v Stone, of the Supreme Court of Canada, to consider whether the evidence can be believed and ether it constitutes a defence of automatism. I have reviewed the Supreme Court's prerequisites for this defence, which are set out in the head notes as follows:

Per L'Heureux-Dubé, Gonthier, Cory, McLachlin and Bastarache JJ.: Two forms of automatism are recognized at law. Non-insane automatism arises where involuntary action does not stem from a disease of the mind and entitles the accused to an acquittal. Insane automatism, on the other hand, arises only where involuntary action is found, at law, to result from a disease of the mind and is subsumed by the defence of mental disorder. A successful defence of insane automatism will trigger s. 16 of the Criminal Code and result in a verdict of not criminally responsible on account of mental disorder.

The law presumes that people act voluntarily. Since a defence of automatism amounts to a claim that one's actions were not voluntary, the accused must establish a proper foundation for this defence before it can be left with the trier of fact. This is the equivalent of satisfying the evidentiary burden for automatism. Once the evidentiary foundation has been established, the trial judge must determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism.

A two-step approach should therefore apply to all cases involving claims of automatism. First, the defence must establish a proper foundation for automatism. This burden is only met where the trial judge concludes that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. In all cases, this will require that the defence make an assertion of involuntariness and call confirming psychiatric evidence. Other relevant factors to be considered in determining whether this defence burden has been satisfied include: the severity of the triggering stimulus; corroborating evidence of bystanders; corroborating medical history of automatistic-like dissociative states; whether there is evidence of a motive for the crime; and whether the alleged trigger of the automatism is also the victim of the automatistic violence. No one factor is determinative. The trial judge must weigh all of the available evidence on a case-by-case basis. Placing this burden on the defence, while constituting a limitation of an accused's s. 11(d) Charter rights, is justified under s. 1.

[46] There has been no suggestion by either side that 'non-insane automatism' was at play in this matter, so I must consider involuntariness on a balance of probabilities.

[47] Pursuant to Stone, Mr Wyminga has not provided, for the reasons detailed below, all that is required for a proper foundation for automatism as no supporting psychiatric or other relevant expert medical evidence was presented.

[48] In this matter, there was no corroborating evidence of bystanders as there were none. No evidence of a medical history of automatistic-like dissociative states was presented but I do acknowledge Mr Wyminga's comments about the two incidents from his school years and while driving in heavy traffic on the 401 as indicators of his challenges. However, without specific expert medical evidence those incidents do not rise to the level of corroborating evidence.

[49] It seems to me that the issue of the severity of the triggering stimuli is highly subjective. On the face of it, the approach of headlights at high speed behind a driver does not seem to be a compelling trigger, however, Mr Wyminga stated that it was for him. In my view, My Wyminga had an obligation to provide expert evidence to support his contention. No such expert evidence was provided.

[50] In S.H., the Court of Appeal, at paras 69 and 70, re-iterated the requirements in Stone for a defendant to discharge his burden, as discussed above. At para 79, the Court held that relevant expert medical evidence is admissible for a judge to determine whether a condition constitutes a disease of the mind. Therefore, relevant expert medical evidence other than only psychiatric or psychological evidence may be considered by a court, in such matters. Mr Wyminga presented no such evidence.

[51] In R v L.(P.R.), 2013 ONCJ 322, Justice of the Peace Quon considered a defence of automatism where a letter from a consulting psychiatrist was tendered as evidence that the defendant suffered from bipolar disorder and manic psychosis. His Worship found at para 146 that none of the required expert evidence, was provided to the court as to whether the bi-polar disorder and manic psychosis were factors on the date of the charges before him. I am persuaded by HW Quon's decision. Similarly, as noted earlier, no expert evidence was presented as to how Mr Wyminga's ADD affected him on 26 February 2018.

[52] As a result of the above analyses, I am satisfied Mr Wyminga has not met his burden. Therefore, he does not have a defence of automatism.

7. CONCLUSION

[53] I find that on 26 February 2018 Mr Wyminga was driving a motor vehicle on Highway 6 N at a speed of 150 kilometres per hour in a posted 80 kilometre per hour zone.

[54] The prosecution has proven the essential elements of the offence beyond a reasonable doubt.

[55] A conviction will be registered.

Released: 31 July 2019

Signed: "Justice of the Peace M A Cuthbertson"