ONTARIO COURT OF JUSTICE

CITATION: R. v. Harnett, 2022 ONCJ 65

DATE: 2022 02 18

COURT FILE No.: Toronto 20-15005346

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Bonnie Cleopatra HARNETT

Before Justice B. Brown

Heard on December 1, 2, 3 and 6, 2021

Reasons for Judgment released on February 18, 2022

Ms. M. Goldenberg............................................................................. counsel for the Crown

Mr. N. Fakih.................................. counsel for the defendant Bonnie Cleopatra Harnett

BROWN J.:

Introduction:

[1] Ms. Bonnie Harnett stands charged with two driving offences related to allegations on July 20, 2020, in the City of Toronto. Firstly, she is charged with dangerous driving cause bodily harm, contrary to s. 320.13(2) of the Criminal Code. Secondly, she stands charged with operating a conveyance on Adelaide Street West, Toronto and knowing or being reckless as to whether the conveyance had been involved in an accident that caused bodily harm to Ashley Haggar, did without reasonable excuse fail to stop to give her name and address contrary to s. 320.16(2) of the Criminal Code . The Crown proceeded summarily. There were no Charter applications. The Crown called three witnesses, incl the complainant Ashley Haggar, Danielle Merrill and Justin Schoenermack. The defence called Ms. Harnett to give evidence. There was an order excluding witnesses. Essentially the defence has argued that the Crown has failed to prove beyond a reasonable doubt that Ms. Harnett was driving dangerously, and failed to prove the requisite element of knowledge of the accident and mens rea for the fail to remain charge. In addition, the defence has argued that Ms. Harnett had a reasonable excuse for not stopping at the accident scene.

Uncontradicted evidence :

[2] There is no doubt that on July 20, 2020, Ms. Haggar suffered serious bodily harm as a result of the collision where Ms. Harnett drove her vehicle over Ms. Haggar’s left foot, left ankle and/or her left leg. As a result of Ms. Harnett driving her vehicle over Ms. Haggar, Ms. Haggar’s left foot was broken, her left ankle was shattered, and her left tibia (leg) was broken. She did not require surgery, she was told, because it was a clean break, but that meant it would take a really long time to heal. She was in a full leg cast for 2 or 3 weeks, then in a half leg cast over the knee for 5 months, then in half a cast, then a walking boot using a cane. Afterwards, she was in physiotherapy for a year. She testified that it still hurts “here and there”, and that it is still continuing to heal.

[3] There is no issue that these injuries were caused by the Ms. Harnett driving her vehicle over Ms. Haggar’s body.

[4] The complainant Ashley Haggar, the defendant Bonnie Harnett, and the witness Danielle Merrill, all knew each other and were previously friends. They knew each other from Petawawa, Ontario. At the time of the allegations, Ms. Haggar was living with her boyfriend Justin Schoenermack, and his roommate. They lived in downtown Toronto, in a house on Adelaide Street West. Ms. Harnett had continued to live in Petawawa. A plan was made for Ms. Harnett to pick up their mutual friend, Danielle Merrill, in Oshawa. Ms. Harnett and Ms. Merrill then decided to continue to travel to Toronto to visit Ms. Haggar. The plan was for the two women to stay overnight at Ms. Haggar’s residence and sleep on the couch in the living room. Ms. Harnett arrived with Ms. Merrill at Ms. Haggar’s residence, at some point in the afternoon on July 20, 2020.

[5] The three women spent time together exploring downtown Toronto, and made their way back to Ms. Haggar’s residence. At some point in that afternoon, the three women began to drink in the residence. Ms. Haggar and Ms. Merrill consumed twisted tea drinks, an alcoholic drink, together with wine. Ms. Harnett consumed vodka soda drinks, and in addition beer. The complainant Ms. Haggar’s boyfriend, Justin Schoenermack was also present at the residence. He drank with the three women.

[6] At some point in the evening, Ms. Harnett removed her bra, which she had worn under her clothing, and put it in some conspicuous location. It was either placed on a table or on the floor in the living room or somewhere in the kitchen. Ms. Haggar was upset to see this bra lying in the open and found out that it belonged to Ms. Harnett. At the time, Ms. Haggar’s boyfriend was in the residence, and Justin’s two sons were also present.

[7] Although some of the details are disputed, the fact that Ms. Harnett left her bra lying out in the open of the residence of Ms. Haggar was upsetting to Ms. Haggar. Ms. Haggar had a conversation with Ms. Harnett about it. At some point, the complainant and defendant had a confrontation, which escalated and turned physical. It was in the area of the living room of the residence, in the course of which Ms. Harnett pulled Ms. Haggar’s hair. Shortly thereafter, Ms. Harnett decided to leave the residence.

[8] At one point, Ms. Harnett, Ms. Haggar and Ms. Merrill were all outside the residence in the area of Ms. Harnett’s car. Ms. Harnett went in her parked vehicle, on Adelaide Street West, and closed and locked her door. The windows were up. Ms. Haggar did not want Ms. Harnett to drive away from her home, as Ms. Harnett had been drinking alcohol. Ms. Haggar was trying to stop Ms. Harnett from leaving by banging on her driver’s door window, and also leaning around to the driver’s window, to get the attention of Ms. Harnett and to tell her to stay. At the time, their mutual friend Ms. Merrill was at the rear of Ms. Harnett’s vehicle.

[9] At one point, Ms. Harnett put her vehicle in motion. There is a dispute over exactly where Ms. Haggar’s feet were at that point in time. Ms. Harnett’s steering wheel was turned to the left. There is a dispute as to what Ms. Harnett might have heard said by Ms. Haggar. (Ms. Haggar’s evidence was that she was screaming to Ms. Harnett that the car was on her foot. The evidence of Ms. Merrill, is that she stated loudly to Ms. Harnett “you are on her foot”. The evidence of Ms. Harnett is that she heard Ms. Haggar swearing at the time.) Moments later, Ms. Haggar was on the ground, and she was in that position as Ms. Harnett drove her car over Ms. Haggar’s left foot, ankle and/or leg.

[10] Ms. Harnett did not stop her vehicle after the screaming. Ms. Harnett drove away from the scene.

[11] Moments later, Ms. Merrill and Mr. Schoenermack succeeded in bringing Ms. Haggar into the residence. The number 911 was called. Emergency personnel attended including EMT and the police. They attended to Ms. Haggar, who was positioned on her sofa. While she was in this position, Ms. Harnett returned to the residence, and picked up her phone, which had been left behind at the residence. Moments later Ms. Harnett left the residence.

[12] Ms. Haggar was taken to the hospital where she was treated for her injuries.

[13] It is interesting that neither the Crown nor defence put in evidence the type of vehicle being driven by Ms. Harnett.

[14] In terms of her relationship with Ms. Harnett, Ms. Haggar testified that “everybody has their ups and downs”, but that Ms. Harnett was there for her, to help if she needed anything. She felt really bad that her relationship with Ms. Harnett ended. She indicated that she really wished the incident never happened.

Consideration of the evidence of Bonnie Harnett:

[15] The court reviews the testimony of Ms. Harnett. She is 51 years of age and she lives in Petawawa, Ontario. She works as the administrative assistant for a community kitchen.

[16] On July 20, 2020, she drove to Oshawa to pick up her friend, Danielle Merrill. The two decided to go and visit Ms. Haggar, and after having lunch, Ms. Merrill texted Ms. Haggar from the car about their plan to drive to Toronto to visit Ms. Haggar. She thought they arrived at the residence at approximately 3 p.m., or 4 p.m. She was not keeping track of time. She parked on the street in front of Ms. Haggar’s residence, parallel to the sidewalk, just slightly off from the front door of the residence. She testified that they unpacked the car, indicating that the plan was for Ms. Merrill, who was trained as an esthetician, to “do the eyelashes” of the other two women. No mention was made elsewhere in the evidence as to whether that ever happened.

[17] The three women went for a walk downtown, and they went to the CN tower. On the way back they stopped at the LCBO store where they picked up alcoholic beverages. Ms. Harnett purchased four vodka soda beverages for herself. Then they returned to Ms. Haggar’s residence. They all had some dinner, and then started to drink their alcoholic beverages.

[18] They were outside on the balcony a lot, an area Ms. Harnett described as small, with a barbeque, two chairs, and barely enough room for the four of them. She testified she spoke to the next door neighbour quite frequently through the night and spent a lot of time talking with them. Meanwhile Justin Schoenermack and the “girls” talked among themselves. She testified that she was tired, and she asked Ashley for a t-shirt because she wanted to remove her bra. She had consumed all of her drinks, and obtained a tall can of beer from Justin.

[19] At that point, everyone was getting ready for bed. Ms. Harnett removed her bra and put it on the table in the livingroom. She then went outside on the deck. At that point Ms. Haggar came out on the balcony and asked “why is your bra on my table?” Ms. Harnett responded “what? what ?”. Ms. Harnett’s response to this question was somewhat telling, she pushed Ms. Haggar aside and went in the house. She testified that she did not know what was exchanged between them on the balcony. Ms. Harnett testified she sat on the sofa, and Ms. Haggar followed her inside. She testified that she has PTSD from when she was a child and she was assaulted by her biological parents. She testified that she has learned in the last year and a half (slightly longer than the time since the incident) that she lives most of her time in “fight or flight” mode. Then she added that when Ms. Haggar asked the question about the bra, Ms. Haggar was “really angry” and it showed on her face. Ms. Harnett testified that she was instantly afraid, had to get up and leave because she was “terrified”, and she went in the house.

[20] After pushing Ms. Haggar, Ms. Harnett went on the couch to try to calm down. In cross-examination, she was then asked if she was so afraid why did she not leave the residence. Her response was that she did not think that it would continue on the way it was going. Ms. Merrill also came in and sat on another part of the sectional couch. Ms. Harnett testified that Ms. Haggar stood over her. In cross examination Ms. Harnett indicated that it was “only a split second” between the time she left that chair (on the balcony) and sat on the couch, that Ashley was over her. Ms. Harnett admitted that she pulled Ms. Haggar’s hair.

[21] Then Ms. Harnett testified that after pulling Ms. Haggar’s hair, “I don’t remember anything”. Ms. Harnett never testified that Ms. Haggar touched her or assaulted her. Ms. Harnett did admit pushing and pulling the hair of Ms. Haggar. She indicated in cross examination that she expected that Justin Schoenermack or Danielle might try to “calm down Ashley” but they did not do so.

[22] Ms. Harnett testified she just wanted to get out of there, she screamed that she wanted to go, to leave. She testified that Justin grabbed her and held her down on the other side of the sofa. She testified that “maybe he held me down to get me away from Ashley, to keep us apart”. She would not agree that Justin had pulled her off of Ms. Haggar. She indicated he was there, she did not remember him pulling her off, she just remembered being on the couch and he was holding her down. Then she testified that she would guess he pulled her, “not off”. She maintained that she was under Ms. Haggar, he did not pull her off of Ms. Haggar.

[23] Ms. Harnett testified that when Justin was holding her down she had visions of her father holding her down. She indicated that she was far gone in her “fight or flight” mode and that she needed to get out of there. She said it was a fight. Yet, interestingly, Ms. Harnett made no mention of Ms. Haggar striking her, or applying force to her. All she mentioned of a physical nature was her admission she had earlier pushed Ms. Haggar, and then moments later she had pulled Ms. Haggar’s hair. The court found some of the evidence of Ms. Harnett regarding that sequence to be questionable. For instance, when asked in cross-examination about the fact that “Ashley never touched you”, she responded she couldn’t even say that because in that moment she was just afraid. The court found that evidence to be odd or self-serving, if a person is afraid and has no perception of whether they were assaulted or not. Clearly, Ms. Harnett did not want to admit that Ashley never laid a hand on her, while Ms. Harnett had previously pushed her and later pulled her hair.

[24] Ms. Harnett testified that after Justin Schoenermack held her down on the couch, she “just ran out of the house”. The image she painted in her testimony was that she immediately ran out the door of the house to her car in that moment. She indicated she did not know where her keys were, she assumed on her person. She did not know where her wallet was, she asked, “with me?”, “I guess”. Then she indicated looking back, the wallet was on the passenger seat of her car, quite possibly where she left it when they arrived at Ashley’s place and she parked the car. She clearly indicated that she did not grab her bra, that she “did not grab anything” on her way out. She admitted that she would have got her footwear, flip flops, at the front door as she left the house. When asked in cross-examination if she ran or walked when she went outside, she sarcastically answered that she could have been flying at that moment and would not have known. She got in her car, and turned it on. She locked her doors. She agreed that in that moment, in her car, with her doors locked, she felt safer.

[25] She testified that “no one” was at her car. She turned her wheel to the left to leave, and that is when Ms. Haggar appeared at her window and Ms. Harnett “stopped”. At one point she testified that Ms. Haggar went first to the passenger door, then changed that to say she went first to the driver’s door. She testified that Ms. Haggar was pounding profusely on her driver’s door window. She was “right in my eye view looking out my driver’s window”. She testified that Ms. Haggar was angry, and Ms. Harnett was scared. She testified that her window does not work properly any longer. (In cross examination she testified that she never repaired the window.)

[26] Prior to driving away she testified she was able to hear Ms. Haggar hollering at her, calling her a “bitch”, but that there was not a lot she could make out. Ms. Harnett volunteered that Ms. Haggar was not asking her to get out of the car. Ms. Haggar was maybe a foot from Ms. Harnett when she was “pounding” on the driver’s window. Ms. Harnett then turned on the air conditioning in the car, which seemed to interfere with her ability to hear Ms. Haggar. Ms. Harnett said she could not make out words other than just profanities mostly.

[27] It is interesting that all three witnesses to the driving, Ms. Harnett, Ms. Haggar and Ms. Merrill, were in agreement that the car was in an angle to the sidewalk at this stage, facing out from the sidewalk.

[28] Ms. Merrill was at the back of the vehicle, probably 4 or 5 feet behind the vehicle. Ms. Harnett testified that she saw Ms. Merrill out her rearview mirror and she kept looking for her. (This evidence was in the early part of examination in chief). Later she admitted she did not look for her after the first time she saw Ms. Merrill there. She testified that she was hoping that Ms. Merrill would come and take Ms. Haggar but she did not. In cross examination, she testified she did not open the passenger window to ask Ms. Merrill for help, to do anything with Ms. Haggar, and she had no explanation as to why she did not do that, she never thought of it. She could not tell if Ms. Merrill was saying anything or screaming since she was behind Ms. Harnett’s vehicle.

[29] Ms. Harnett had 33 years driving experience, from the time she was 18 years of age. When she drives, she agreed that “most of the time” she uses the mirrors, whether the side mirrors, rear view mirrors, there for safety reasons. Her car also has a camera. She also agreed, in cross examination, that she would use all options to check around as she is driving, looking in surrounding areas before driving, or before making any left or right turns.

[30] It is important that Ms. Harnett testified that when she was moving and turning her vehicle to the left, she did not look out all of her mirrors. The only time she looked at her rearview mirror was when she initially looked back and saw Ms. Merrill standing there. At that point Ms. Haggar was standing at her driver’s window. She agreed that the safe way to drive before making any maneuver is to look out her windows, but qualified that would be in normal situations. She testified this was not a normal situation.

[31] She maintained that Ms. Haggar was never ahead of her driver’s side mirror, she was never ahead of the windshield.

[32] When she drove away, she testified that she did not know if her speed was fast or slow. She indicated “I’m getting out of there”.

[33] After she left Adelaide St. W., she testified that she then drove to the 401 Highway. She indicated that she then returned to Ashley’s place, she agreed that she was still in the “flight” mode she had been in. This was the mode she testified she was in when she ran out of the house and tried to leave right away after being upset in the house. At the point of her return, she saw flashing lights, for a police car or an ambulance. She went inside the residence and saw Ashley on the couch screaming, and Mr. Justin Schoenermack there. Ashley might have been with a paramedic. She asked Justin what happened and he told her to just leave, she replied she needed her cellphone. She testified that upon seeing Justin again it was “fight or flight” again. Justin went to get Ms. Harnett’s phone and then she left, within a minute or two. She testified that she drove most of the night and pulled over at one point near Peterborough to rest, on the side of the road, as she was exhausted.

[34] The court at this time summarizes concerns it has with the testimony of Ms. Harnett in this trial. In cross-examination, she was very argumentative, and at times, combative. This pattern of responding to questions in cross examination continued despite the instructions from the court which were initially gentle and patient, but which were not heeded. This was followed by numerous warnings the court gave her to not interrupt the questions, and the proper procedure for responding to questions.

[35] In addition, Ms. Harnett changed key aspects of her testimony over the course of her evidence. For instance, as it related to her actions immediately before she drove from the scene, Ms. Harnett testified she waited until Ms. Haggar was away from her car to leave. She testified she figured Ms. Haggar had stepped back from her car, because she could no longer see her in her driver’s side window. When asked in cross-examination if she recalled Ms. Haggar saying “you’re on my foot”, rather than answer the question, she stated that she was never on her foot, that she was never near her tire, it was impossible. When asked how she could explain how Ms. Haggar’s leg got broken she responded she could not tell, she did not know that her leg got broken. She agreed that when Ms. Haggar was pounding on her driver’s window she was very close to her vehicle, but she stated right by the driver’s handle. She disagreed that was close to the side mirror. She maintained that Ms. Haggar was never near her front tire. Then her evidence was that Ms. Haggar was pounding on her window, and never left that area until the moment when Ms. Harnett looked and she was no longer at the driver’s window. Then she testified she never moved from that spot. At that point, Ms. Harnett left.

[36] In cross-examination, Ms. Harnett stated that she “saw Ashley away from” her car and then Ms. Harnett pulled away. At this point in her cross-examination, when she gave that evidence, she also stated that Ashley was a distance back from her car. In this evidence, Ms. Harnett modified her earlier evidence, which was essentially that Ashley was at her driver’s window, and then she was gone. At no earlier point in her evidence did she say she could see where Ashley was, whereas at this point in cross-examination she stated she saw Ashley and she was away from the car. Several questions later, she answered that Ms. Haggar had moved back away, she was not on the sidewalk. She would not answer if she was standing on the street, by just responding “I was in my car driving off”. This is a critical inconsistency, as a key issue in this case is whether Ms. Harnett saw Ms. Haggar when she drove away. This change to her version is indicative of knowing where she was, but that she was “a distance back” from Ms. Harnett. When asked if she was screaming, Ms. Harnett replied she had no idea, she left, she drove away. Ms. Harnett just looked straight ahead, and it appears from her evidence that she did not look anywhere else.

[37] According to her evidence, Ms. Haggar was last seen in an area not straight ahead, and it appears that Ms. Harnett did not look in the position where she last saw Ms. Haggar when she drove away. She refused to answer various questions about whether she saw Ms. Haggar’s position when she drove away, clearly reluctant to incriminate herself.

[38] Finally she agreed that she could not physically see the position of Ms. Haggar as she was driving away. Essentially it was her evidence that it was safe for her to drive away, that she “thought” that she was away from her car.

[39] Later in cross-examination, when the Crown asked her for more details as to where Ms. Haggar had moved to, Ms. Harnett clearly changed her version again, back to her original evidence. At that point she testified that she did “not” see Ms. Haggar move away. She indicated at this point that when she looked, Ms. Haggar was not in the position she was last seen (by the driver’s door), so Ms. Harnett “assumed” she moved away. She said she “assumed she had moved away from her car”. Throughout a lot of the cross-examination Ms. Harnett was argumentative, interrupting the questions. The court regularly and frequently interjected and asked her not to interrupt the questioner, but Ms. Harnett continued to do so, over and over again.

[40] It is clear, throughout, that Ms. Harnett admits that she did not check her mirrors or windows to make sure of the locations of anyone on the street before driving away. She agreed that the safe and prudent option before driving off, when a person had been standing so close to her vehicle, would be to look around the area to make sure the person was not in her pathway, but only in “normal circumstances”. She qualified that she was being attacked by someone as she was in her vehicle and she just wanted to leave. She also could not tell where Ms. Merrill was when she drove off. She agreed that it is possible since she said she was in flight mode, that her speed was that she “peeled” out of the area. She drove straight ahead, and did not look around her vehicle as she was driving.

[41] This dramatic change in her version of events, on the most key point in this case, is significant.

[42] Ms. Harnett’s version of events, of leaving the residence in “fight or flight” mode that night, was challenged in cross-examination. It was a key part of the defence version, that she ran out of the residence as quickly as she could. It is apparent that she had her keys with her. She did not seem to recall where they were as she was heading out of the residence. She was asked if she went to get her purse. She responded by questioning whether the wallet was with her. She guessed, but it was on the passenger seat of the car. Later it was apparent that she stopped on the way out to get her flip flops at the front door. She did not get her bra, and left that behind. She maintained that she continued to be in this “fight or flight” mode as she drove all the way from Adelaide Street in downtown Toronto, to the 401 Highway. Then she testified that she realized that she had left her phone at the residence. Still being in this “fight or flight” mode, she nonetheless rationalized she would return to the location and people she had run away from, to get her phone, so she could check in with her daughter on the phone on the way home.

[43] Her evidence as to this realization that she did not have her cell phone with her, was odd in terms of timing. For instance, she testified that she did not realize she was without her cell phone until she had made it to the 401 Highway, from Adelaide Street West in downtown Toronto. This is a significant distance away, both geographically and in time to drive a vehicle. She agreed in her earlier evidence that this would have taken her approximately 40 minutes to get to that location. At that point, her evidence is that she turned around, to return to the very location from which she had just fled. It seemed that it took a similar time to return to the house. It was only in cross-examination when confronted with the nature of what she said in her evidence, that at a point of approximately 1 hour and 20 minutes after she had driven away, that the EMS would still be there with Ms. Haggar and Justin, that she indicated she did not know if it was 40 minutes and it might have been another time. While it does not particularly matter if it actually was 40 minutes in a one way direction or not, it is obviously a very long drive from the residence in downtown Toronto to get to the 401 Highway. She maintained she was still in a flight response which had started from inside the house, yet she seemed able to defy that in order to return to pick up the phone she had left in the residence to call her daughter. There are two aspects of this evidence that the court finds problematic. First, it is her evidence that she continued to be in a flight response, scared, getting out of there as soon as she could. And yet, she made a conscious decision to return and did not appear to through her actions to be acting in that type of state of mind. According to her testimony, even though she saw the flashing lights of police or an EMS vehicle outside the residence, she returned and entered the residence, seeing the parties there. Justin Schoenermack was with Ms. Haggar who was lying on the couch, screaming in pain, while she was tended to by the paramedic. Even though Justin Schoenermack was the man that reminded her of the PTSD that she had experienced as a child, she asked him to go and get her phone. He gave her the phone and then asked her to leave, which she did. She did not flee, or leave in “fight or flight” mode, as previously. That was not the evidence of Ms. Harnett at that point. Secondly it would have been much later if she was actually on the 401 Highway than a short period of minutes. In that respect the court wonders if she was actually all the way up to the 401 Highway, or if she is mis-stating that portion of the evidence. She was also heading home, to the area of Petawawa, towards Ottawa. It was a very long drive, and she testified that earlier in the night she was tired and going to go to bed. She admitted she had consumed 5 alcoholic drinks. She was very reluctant to admit and refused to admit she was anything other than sober.

[44] Ms. Harnett’s evidence was that the following morning she returned to the residence again, the place from where she had experienced the PTSD that put her in the “fight or flight” mode causing her to flee. She went there to pick up Ms. Merrill, to drive her back to Oshawa. In particular, she maintained through examination in chief and the early stages of cross examination, that on the day following the incident, she returned to Ms. Haggar’s residence to pick up Ms. Merrill and drive her back to Oshawa. In cross examination when she was asked about going back to Ashley’s residence to pick up Danielle the next day, she agreed. When later challenged in cross-examination about why she would have returned to this place the next day, her evidence changed in a clear way. This is a very key point in the consideration of her evidence, as her defence revolved around a theme that she was in a fight or flight response after she left the residence the night before. It was not until fairly late in her cross examination that she completely changed this evidence, as the Crown cross-examined her about why she would have returned to the very place from which she fled the night before. The implicit suggestion was that it would not make sense to return to that very same residence the next morning. In response to a question in cross-examination about whether she said “oh my gosh I don’t want to go back there, can we meet somewhere?” that Ms. Harnett dramatically changed her version and said she did not go to Ashley’s residence to pick up Danielle, that she went down the road from Ashley’s house to pick Danielle up. This was a clear inconsistency, another instance of Ms. Harnett changing her version to line up with her position that she was in a fear or flight mode when she drove away the night before. At that point, she changed her evidence and stated she did not return to the residence, that she picked up Danielle Merrill, from another location. That was a key inconsistency.

[45] When asked in cross-examination why she had not asked more questions about whether Ashley was okay when she returned to Ashley’s residence to get her phone, and saw what was happening, Ms. Harnett responded no, that she had just had a fist fight. The court found that evidence extremely odd as there was no fist fight that night between Ms. Harnett and Ms. Haggar, nor involving anyone, from any witness including Ms. Harnett. She was clearly at this point changing her version to create a “fist fight” scenario, as an explanation for not asking about the welfare of her friend, surrounded by Justin Schoenermack and a paramedic, with the flashing lights of a police or EMS vehicle outside. She maintained that she was still scared at that point, but nonetheless went back and returned inside the residence (where the same people were present, Ashley, Danielle and Justin) to get her phone.

[46] Also the court notes the description of events by Ms. Harnett earlier in the night. The court looks for any type of reference in Ms. Harnett’s evidence to a “fist fight”. At no point in her recital of events earlier in her evidence, did she testify that she was in a fist fight. As indicated above, she never indicated that Ms. Haggar touched or struck her. There is no evidence that Ms. Merrill touched or struck her. Her own evidence is that Justin Schoenermack. held her down, after pulling her from Ms. Haggar. Again, there was no evidence that he in any way struck or assaulted her.

[47] Ms. Harnett was very reluctant to admit that Ms. Haggar never applied force to her. For instance, as noted above, Ms. Harnett made no mention of Ms. Haggar striking her, or applying force to her. All that Ms. Harnett mentioned of a physical nature was her admission she had earlier pushed Ms. Haggar, and then moments later she pulled Ms. Haggar’s hair. The court found some of the evidence of Ms. Harnett regarding that sequence to be questionable. For instance, when asked in cross-examination about the fact that “Ashley never touched you”, she responded she couldn’t even say that because in that moment she was just afraid. The court found that evidence to be odd or self serving, if a person is afraid and has no perception of whether they were assaulted or not.

[48] Clearly, Ms. Harnett did not want to admit that Ashley never laid a hand on her, while Ms. Harnett had previously pushed her and later pulled her hair.

[49] Ms. Harnett was prone to put herself in a favourable light in answering questions. This occurred, for instance, even when she did not know the information related to those answers. For instance, when asked about the nature of the vodka soda drinks, four in total which she consumed before driving, she stated that she does not really know the alcoholic content. She stated that she never really looks at the alcohol on the can. Then she went back to her position in examination in chief, that there is 4.5 % alcohol in the Vodka soda drinks. When faced with the suggestion by the Crown that the alcoholic content was greater than that, she said she is pretty sure that is what it is, she just cannot guarantee that is it. Clearly her evidence as it related to the incriminating nature of the amount of alcohol she consumed was something that she did not know, yet wanted to minimize.

[50] Ms. Harnett was reluctant to admit anything that would have put her in an unfavourable light. For example, she clearly was of the view that it would be appropriate, or at least not inappropriate, for her to remove her bra and leave it out in the open in a person’s living room, if she would be sleeping in that room later. She testified she had nowhere else to put it. Yet she said she put the shirt she had worn on the table as well. There was no indication that she chose to cover the bra with the t-shirt or not.

[51] On smaller points, she seemed prone to exaggeration. She indicated that she was drinking with her female friends, then at another point she was talking (more than others at the residence) to neighbours on a small balcony where very few people could fit. Then at another point she testified that she was playing with Justin’s kids all night. She indicated that she played video games with them all evening. While she might have done all of those types of activities, she exaggerated, she could not have spent most of the night playing with children if she was doing all of those other things. Nothing turns on the content of that evidence, but it is demonstrative of her desire to give her evidence in that fashion of her being very sociable and friendly with everyone the whole night.

[52] Another problematic area of her evidence related to her consumption of alcohol prior to the driving incident. In the early part of cross examination, Ms. Harnett testified that she would not have drank that night if she was planning on driving home that night. Later in cross-examination, she changed this answer and stated that if she knew she was going to drive she would not have consumed any more than two drinks. The plan for the night, according to Ms. Harnett, was to sit around, have a few drinks and go to bed early. She testified that she drank her four vodka and soda drinks and a beer from Justin. She indicated that she pretends to drink all night, that she stays hydrated by drinking a lot of water through the night. She estimated that she had an equivalent or greater amount of water as compared to the drinks. She testified “I do not think I was drunk” and “I know I was not drunk.” She testified she felt in control while they were partying, “bubbly and happy” as she always is. Towards the end of cross-examination, as to whether she should not have been driving after drinking 5 drinks, she disagreed.

[53] Ms. Harnett stated that she was fine to drive, and explained she had also been drinking water. The court observed that she offered this evidence to suggest that the consumption of water would have lowered her blood alcohol level. (There was no expert or other evidence to that effect in this trial.) She stated she was okay to drive. Then she stated that if the plan was for her to drive that night, she would have had a couple of drinks, not five drinks. She finally agreed that would have been too much to drive late at night. Then later she added the qualifier “in normal circumstances”. Later she stated that she did not feel intoxicated when she drove away. It is also noteworthy that previous to leaving, she testified that she was tired. It was her evidence that she and the others were getting ready for bed before she fled, and as well that she had done a lot of driving earlier in the day from Petawawa to Oshawa, and then Oshawa to downtown Toronto. She decided to drive away in her car after drinking, and according to her evidence had to pull over near Peterborough to rest, before continuing on to Petawawa.

Consideration of the rule in Browne v. Dunn :

[54] One of the issues raised by the Crown, which the court must consider, is in relation to the substance of testimony of Ms. Harnett not put to the relevant Crown witness(es). The Crown relies on the rule in Browne v. Dunn as the authority for this submission.

[55] The court considers the numerous instances where the subject of testimony of Ms. Harnett was not put to the complainant Ms. Haggar or other Crown witnesses pursuant to the rule in Browne v. Dunn. In particular, the Crown has submitted that numerous aspects of testimony of Ms. Harnett on key points were not put as suggestions to Crown witnesses on key issues. One issue raised by the Crown was the failure of defence counsel to put to Ms. Haggar (and Ms. Merrill) questions related to the key point regarding whether Ms. Harnett was in “fight or flight” response after she was on the sofa with Ms. Haggar. In that regard, the evidence of Ms. Harnett was that she fled outside the home first, before anyone else was outside the house. The very clear evidence of both Ms. Haggar and Ms. Merrill was that the two of them were outside the house first, before Ms. Harnett, as Ms. Merrill wanted to get her things from the car before Ms. Harnett left the residence. The evidence of the Crown witnesses was that Ms. Harnett had to get her keys, etc. in the house before coming out to leave. That was a very key difference in the evidence that would have been contrary to the defence evidence of an immediate flight response and leaving the house without getting anything. This was not put to Ms. Haggar nor Ms. Merrill in cross-examination. In addition, Ms. Haggar and Ms. Merrill were not cross-examined as to whether Ms. Merrill’s belongings had been brought into the house when she first arrived in the afternoon, a key point as it would have negated the need for Ms. Merrill to go outside to get those things before Ms. Harnett left the residence. In addition, Ms. Harnett testified that the day after the incident, Ms. Haggar told her what had happened. This was not put to Ms. Haggar in cross-examination. In addition, Ms. Harnett testified that when she returned to the house on the night of the incident, Mr. Schoenermack told her to leave, after he gave her the phone. That was not put to Ms. Schoenermack in cross-examination and it is important potentially to the charge of fail to remain, because she had returned to the scene. The court would note as well that Ms. Harnett told the court that Ms. Haggar told her not to come back, not to go to the police station. Finally, but although of lesser importance to this court, the Crown submitted that the defence should have put to both Ms. Haggar and Ms. Merrill that all that was being said by Ms. Haggar to Ms. Harnett in the car was yelling profanities, as distinct from yelling about Ms. Harnett’s vehicle being on Ms. Haggar’s foot.

[56] This rule arose in the 1893 House of Lords case of Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (U.K. H.L.). The rule stated in that case is as follows:

Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.

[57] The Supreme Court of Canada in R. v. Lyttle, 2002 SCC 9, [2002] S.C.J. No. 8, confirmed the application of the rule in Browne v. Dunn. The rule is grounded in common sense and it is not an absolute rule. It is based upon fairness to the witness and to the parties. Where counsel fails to confront a witness in cross-examination before impeaching the witness by contradictory evidence, the trial judge must consider the way in which the matter should be handled. In considering the matter, it is clear that the rule does not require that counsel to go through every single minor detail on which a witness' testimony may differ from that of the accused. The rule dictates that a witness should be confronted with matters of substance upon which the accused seeks to impeach his or her credibility and upon which the witness has not been given an opportunity to comment. Where that does not take place, the judge must consider an appropriate response. The response of the judge to the failure to comply with this rule is a matter for the discretion of the trial judge. Various options have been considered by courts, including permitting counsel to recall the witness whose evidence was impeached, to respond to the subsequent evidence. Another option includes giving lesser weight for the subsequent evidence which challenges that evidence. This rule is not triggered where the subsequent contrary evidence arose only in cross-examination of the subsequent witness.

[58] In McWilliams’ Canadian Criminal Evidence, 5^th Edition, 21:113, the rule is summarized as follows:

“Simply put, the witness should be confronted in cross-examination with any material point on which his or her credibility is to be challenged. A failure to do so may detract from the strength of the party's case or entitle the party who called the witness to a remedy.² This, in a nutshell, encapsulates the nature and impact of the so-called rule in Browne v. Dunn as it operates today.”

[59] In R. v. Dexter, 2013 ONCA 744 Justice Weiler highlighted the rationale to prevent the witness from being “ambushed”, at para. 19:

The rule is also a rule of common sense. By enabling the trial judge to observe and assess the witness when he or she is confronted with contradictory evidence and given an opportunity to explain his or her position, the rule promotes the accuracy of the fact-finding process. In doing so, it enhances public confidence in the justice system.

[60] In R. v. Quansah, 2015 ONCA 237, [2015] O.J. No. 1774 (Ont. C.A.), leave to appeal refused [2016] S.C.C.A. No. 203 (S.C.C.) Watt J.A. emphasized that the rule in Browne v. Dunn is rooted in fairness. He summarized the fairness considerations as follows, at para. 77:

i. Fairness to the witness whose credibility is attacked:

The witness is alerted that the cross-examiner intends to impeach his or her evidence and given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted: R. v. Dexter, 2013 ONCA 744, 313 O.A.C. 226, at para. 17; Browne v. Dunn, at pp. 70-71.

ii. Fairness to the party whose witness is impeached:

The party calling the witness has notice of the precise aspects of that witness' testimony that are being contested so that the party can decide whether or what confirmatory evidence to call; and

iii. Fairness to the trier of fact:

Without the rule, the trier of fact would be deprived of information that might show the credibility impeachment to be unfounded and thus compromise the accuracy of the verdict.

[61] As the case law has evolved, courts have also noted that the failure to provide the witness with an opportunity to respond leaves the judge without information to assess whether the credibility attack is founded or not, and thus impact undermining the truth-finding function of the court. Unwarranted harm may result if the party whose witness was not confronted is denied the opportunity for a proper response. Moreover, and most appropriately in this day and age, it can interfere with the orderly calling of witnesses, if the remedy is to be re-calling witnesses, and this causes the waste of court resources and unduly complicates issues.

[62] One of the factors that a trial judge can consider when this issue is raised, is whether the subjects not touched on in cross-examination are of little significance given the issues in the case and the resolution of critical issues. If the matter is of minor importance, the harm done might be considered less by the trial judge. The rule requires confrontation on important, significant or essential matters. The exercise is fact-driven, in each case.

[63] The factors to be considered by the trial judge, as set out in R. v. Dexter, supra, at para. 20, and R. v. Quansah, supra, at para. 77, include the following :

• The seriousness of the breach;
• The context in which the breach occurred;
• The stage in the proceedings when an objection to the breach was raised;
• The response by counsel, if any, to the objection;
• Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation;
• The availability of the witness to be recalled; and
• In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained.

[64] Typically counsel in cross-examination pose questions to witnesses where they expect that witnesses to be called in their case might give a contrary version of events. In this case it came up where the Crown called three witnesses, who were not asked questions in cross-examination with respect to evidence expected to be called by the accused (in examination in chief), contrary to what those witnesses had stated in their evidence.

[65] The situation was communicated by the Crown to the defence and to the court, at the conclusion of the evidence of the only defence witness, Ms. Harnett. At that time the Crown indicated that she intended to make submissions regarding the rule in Browne v. Dunn. At that stage, the defence did not respond. There was no mention made of any request to re-call any Crown witnesses. At no time has the defence suggested that the Crown witnesses be re-called to respond to this contrary evidence. The Crown indicated that it did not wish to recall the complainant, given that she had a difficult time emotionally in giving her evidence. The court recognizes that the complainant found the exercise of testifying about these matters difficult, particularly in cross-examination.

[66] In this case, neither party sought to re-call the earlier witnesses. That process would have caused further delay and disruption of the trial. The court has considered the nature of the areas of concern. Overall, the court finds that it would be appropriate, and the court does apply a remedy of giving less weight to Ms. Harnett’s testimony on the significant issues of “fight or flight” (whether the belongings of Ms. Merrill and Ms. Harnett were removed from the car when they arrived at the residence, and whether Ms. Harnett was the first person to leave the residence that night), and whether she was asked to leave the residence when she returned for her phone. Mr. Schoenermack was cross-examined over two days, but he was not asked about whether he asked Ms. Harnett to leave when she returned to get her phone. This is something that the defence clearly should have asked in cross-examination. Although the defence did not challenge Ms. Haggar and Ms. Merrill about whether there were only profanities yelled, and not statements as to the vehicle being on Ms. Haggar’s foot, the nature of that evidence, in the context of all the evidence in this case, including the cross-examination of Ms. Haggar, was such that the Crown would have known that the defence would challenge the credibility of the evidence of what Ms. Haggar was screaming at the time. In the context of not cross-examining Ms. Haggar and Ms. Merrill about whether Ms. Haggar only yelled or screamed profanities at Ms. Harnett as she sat in her car, the court declines to apply a remedy of giving less weight to that evidence of Ms. Harnett.

[67] In any event, in the circumstances of the consideration of the evidence of Ms. Harnett, as noted herein, the court finds the testimony of Ms. Harnett, where not corroborated by other credible evidence, to not be believable. This includes the evidence she has given that she was in a “fight or flight” response in leaving the house, that she was in a state of fear while in the driver’s seat of the car and left, and that she was asked to leave the residence when she returned for her phone. The court’s rejection of the evidence of Ms. Harnett on those points, finding that evidence to not be believable, is before applying any lesser weight to that evidence pursuant to a remedy arising from the infringement of the rule in Browne v. Dunn. The court’s consideration of the credibility and reliability of that evidence of Ms. Harnett, has been assessed prior to applying any lesser weight to that evidence.

[68] Overall, the court finds the evidence of Ms. Harnett to be lacking in credibility for the reasons noted above in the consideration of her evidence. The court has made this assessment also based on the evidence of the other witnesses in this case, which the court accepts as noted below. Specifically, as noted below in the findings of fact, the court rejects and has no reasonable doubt with respect to Ms. Harnett’s evidence that she was in a “fight or flight” mode of needing to immediately leave the residence and drive away, that she acted in a state of fear after Ms. Haggar banged on her driver’s window, and that she did not see Ms. Haggar positioned in the area of her mirror and front driver’s wheel. The court also specifically rejects her evidence that Ms. Haggar had moved away from the car to another location when she drove away. In terms of whether Ms. Harnett only heard profanities being screamed by Ms. Haggar at her driver’s window, and her evidence she did not hear well, the court does not believe that evidence. She volunteered that Ms. Haggar was not asking her to stay, which clearly suggests she could hear what Ms. Haggar was saying. In terms of the content of other things screamed by Ms. Haggar, the court considers that evidence below. Further findings of fact of the court are noted below, after the court sets out and relates its consideration of the other evidence in this trial.

Consideration of the evidence of Complainant Ms. Ashley Haggar:

[69] Ms. Haggar indicated that her friends Ms. Merrill and Ms. Harnett arrived at her residence between approximately 1:00 p.m. and 4:00 p.m. on July 20. After the three women went for a walk to see the CN tower, they went to the liquor store to bring alcohol back to the residence. She and Ms. Merrill were drinking twisted teas and Ms. Harnett was drinking spritzers, two or possibly one other that she had purchased. Ms. Haggar was not watching how many drinks Ms. Harnett was consuming at her residence. She described her consumption as knowing of three, but that there “could have been more”. They were just hanging out, everyone was drinking, the plan was for her two friends to sleep over as they were drinking.

[70] Ms. Haggar testified that at one point she and Ms. Harnett got into an argument. This argument was over Ms. Harnett having removed her bra and put it in the living room, on the floor, in the open. This argument took place when Ms. Harnett was outside on the balcony, with Ms. Merrill and Justin Schoenermack. Ms. Haggar was in the doorway between the residence and the balcony outside. Ms. Harnett, according to Ms. Haggar, “freaked out” in response and got mad at Ms. Haggar for being upset about the bra being left there. Ms. Haggar testified that Ms. Harnett pushed Ms. Haggar backwards into the house. This caused Ms. Haggar to be moved from the doorway, back inside the residence. Ms. Harnett came in the residence. Ms. Harnett pushed Ms. Haggar backwards onto the couch, into a seated position. Then Ms. Harnett got on top of Ms. Haggar facing her. Ms. Harnett’s hands were on Ms. Haggar’s head, and she was pulling Ms. Haggar’s hair. Ms. Haggar did not want to fight with Ms. Harnett. She said “Bonnie, please get off of me, Bonnie please get off of me”. Ms. Haggar thought that Ms. Merrill was trying to assist by pulling Ms. Harnett off of Ms. Haggar.

[71] Then Ms. Harnett indicated that she wanted to leave. Ms. Merrill did not want to leave with Ms. Harnett, she did not want to be in a vehicle with Bonnie (notwithstanding that she had been her ride from Oshawa to Toronto). Ms. Harnett said she was leaving, and at that point Ms. Haggar and Ms. Merrill went outside to get Ms. Merrill’s stuff from Ms. Harnett’s vehicle. Ms. Harnett could not find her keys at that point, right away. She also went to get her cell phone and she had to gather her belongings.

[72] While Ms. Haggar and Ms. Merrill were outside, Ms. Harnett came outside and to get into her vehicle. While Ms. Harnett was walking to her car, Ms. Haggar said to her twice “you’re being ridiculous leaving the house, you can stay, you are drunk. You do not need to drive”. Ms. Harnett went inside her vehicle and started her vehicle. Ms. Haggar asked her not to drive away because Ms. Haggar knew that Ms. Harnett had been drinking alcohol. Ms. Harnett did not drive right away. In response, Ms. Harnett rolled up her window and said that she was leaving anyway. Ms. Haggar said “please, please, please don’t”, “you can stay at the house”, “please don’t drive”, that Ms. Harnett could stay upstairs and she could leave in the morning. Ms. Haggar was begging Ms. Harnett not to drive. Initially after Ms. Harnett was in her vehicle, Ms. Hagger was at the driver’s door window area, speaking with her. Ms. Haggar made admissions against interest, that she was banging on the driver’s side window as she was speaking to Ms. Harnett asking her not to drive. Then Ms. Haggar banged on the front window, “please don’t”. Ms. Haggar then took a step forward to position her body in front of the windshield. She was leaning forward to the driver windshield, seeing Ms. Harnett through the windshield, saying “Bonnie you can stay at my house, like we don’t need to argue about this”. Ms. Haggar was speaking loudly, yelling. Ms. Haggar was not lying on the front windshield, she was standing on her tippy toes leaning over with her shoulders. Her face was not against the windshield, but she did admit, against interest, that she was banging on the windshield to get Ms. Harnett to get out, to not drive, to come inside. At that time, Ms. Haggar was touching the driver’s area of the vehicle with her body. She was begging Ms. Harnett not to drive, she did not want Ms. Harnett to drive from her house drunk. Ms. Haggar believed at that time that Ms. Harnett was drunk. Ms. Haggar was hoping that Ms. Harnett was going to turn the car off and come inside the house.

[73] Ms. Haggar then stepped back to position herself beside the driver’s door and window area, near the side view mirror. Her right hip would have been at the side view mirror, her left foot in front of the driver’s front tire. Her torso was facing the driver’s side door. She was not touching the vehicle at that time. Ms. Harnett kept her driver’s window closed. Ms. Harnett shook her head once or twice, then turned up the radio or something on the controls of the car. Ms. Haggar testified that Ms. Harnett looked at her once or twice, then got mad that Ms. Haggar would not just leave her alone. That is when Ms. Haggar testified that Ms. Harnett turned up the music inside the car, and proceeded to turn the steering wheel. In cross-examination, Ms. Haggar readily admitted that the knob Ms. Harnett turned might not have been for the radio, but rather another knob inside the car. She also readily admitted that she could only hear some of what Ms. Harnett was saying, as far as wanting to leave, but that hearing was enhanced by her reading the lips of Ms. Harnett. Ms. Harnett screamed that she was going home, she was leaving, although Ms. Haggar testified she could not say with 100% certainty that those were the words she used, she was also reading her lips. At that time, Ms. Haggar could see Ms. Harnett, she had her two hands ready to drive away. Ms. Haggar thought Ms. Harnett was trying to scare her to leave her alone.

[74] It is notable that although it was dark outside, this was Adelaide Street, a well-lit area by streetlights. There was one streetlight in particular very close to Ms. Harnett’s vehicle. As Ms. Haggar indicated in her evidence, this area is so bright that one could drive without headlights. The inside of Ms. Harnett’s car had dash lights on when it was turned on, before she drove away.

[75] Ms. Harnett started slowly driving away, with Ms. Haggar in that position close to her vehicle. At that point, the vehicle tire “caught” Ms. Haggar’s left foot, which was positioned at the front of the front driver’s tire. Ms. Haggar described it as her left toes being first caught by the tire. She explained that if Ms. Harnett had not turned her tire to the left “probably none of this would have really even happened”. Ms. Haggar’s hips at that time were touching the car, as she leaned over to get Ms. Harnett’s attention through the driver’s side of the windshield. The two women were approximately ten inches apart at that time. Ms. Haggar screamed when the tire was on her toes “Ow”, and at that point Ms. Harnett stopped her vehicle. Ms. Haggar had the impression that Ms. Harnett did not believe her. Ms. Haggar testified that she actually tried to “for some reason, push the car backwards”. She tried to slide her foot out but she could not get it away from under the tire. Ms. Haggar was in bare feet, she was wearing no footwear at the time her foot was under the car tire.

[76] Ms. Haggar said to Ms. Merrill “she’s on my foot, she’s on my foot”, and Ms. Haggar started screaming at Ms. Harnett “you’re on my foot”. At this point, Ms. Haggar’s evidence is that she was still standing, visible, in a vertical position. Ms. Harnett stopped, but the car was over her whole foot. Ms. Harnett turned to the left, looking in the area where Ms. Haggar was standing. Ms. Haggar looked at Ms. Harnett and made eye contact with her. Ms. Haggar was very sure that Ms. Harnett was looking at her.

[77] With Ms. Harnett’s front driver’s tire already on Ms. Haggar’s foot, Ms. Harnett then turned the wheel to the left, to get out of the parking spot. She then drove in a forward motion with the wheel turned to drive to the left. This put further pressure on Ms. Haggar, catching her foot, pushing on her leg, and Ms. Haggar then went down on the ground. She started screaming in pain, on the ground, and she blacked out. On the uncontradicted evidence, the action of Ms. Harnett in turning her vehicle to the left, and driving ahead over Ms. Haggar, caused serious and severe injuries including breaking her leg, ankle, and foot.

[78] In cross-examination, Ms. Haggar acknowledged she had been having financial difficulties and was in bankruptcy, and admitted she would be scared if she had to pay for the physiotherapy and other losses. However she clearly indicated that anyone would be scared if they had to pay such expenses out of their own money, a situation that this court found quite believable. Although the defence endeavoured to cross-examine Ms. Haggar with her prior statement to the police, the court found that there were no inconsistencies shown in this statement. Whether the bra was placed in the living room, or the kitchen, this court would find, was of no particular consequence in this case. Either location was in the open, in a common public space in the residence. She testified that Ms. Harnett was accusing her of suggesting she was trying to sleep with her boyfriend, and that Ms. Harnett just kind of lost it. She also indicated that Ms. Harnett was accusing her of taking her bra off in front of her boyfriend. It is clear throughout the testimony of Ms. Haggar that she did not suspect Ms. Harnett of making any maneuvers towards Ms. Haggar’s boyfriend. She was cross-examined as to whether she had a better memory at the time of the police statement or her testimony, and she indicated she did not really know, that she remembered it well both then and now. It is notable that there were no inconsistencies this court found in the comparison of the testimony and prior statement. Counsel also did not lead evidence as to when the statement to the police was made, relative to her injuries and time in the hospital. The defence took the position that Ms. Haggar was inconsistent in at one time indicating that Ms. Harnett did not acknowledge her while she was in the car, and at another point indicating that she looked at her once or twice. The court finds that there were no inconsistencies, both happened, at different points in the sequence. Ms. Haggar maintained that even when Ms. Harnett looked at her once or twice, a few times, she tried to ignore her at the same time. However she looked right at the area of Ms. Haggar as she was at the driver’s window, and Ms. Haggar made eye contact with her. She thought Ms. Harnett was looking at her, she could not understand what else she might have been looking at as she was positioned in that area where Ms. Harnett was looking. Ms. Haggar was less than an arms length away from Ms. Harnett.

[79] Ms. Haggar was cross examined about the response of Ms. Harnett to being asked about leaving her bra out, that Ms. Harnett proceeded to run at her, jump on her back and pull her hair. (The court notes that what was put to Ms. Haggar in this cross examination question was not the evidence). The evidence of Ms. Haggar was that Ms. Harnett pushed her from the balcony back into the residence, backwards onto the sofa, where Ms. Haggar ended up in a seated position. Ms. Harnett then got on top of Ms. Haggar and started pulling her hair, that was her evidence. However, Ms. Haggar indicated it was not an unusual response from Ms. Harnett, as Ms. Haggar has seen Ms. Harnett get mad at people before. Then, to minimize Ms. Harnett’s conduct, Ms. Haggar volunteered “everyone gets mad at people” to almost justify or minimize the odd reaction of violence of Ms. Harnett towards Ms. Haggar. All of this was happening when Ms. Haggar clearly did not want to fight Ms. Harnett. None of the witnesses in this trial, including Ms. Harnett, testified that Ms. Haggar struck Ms. Harnett, or anyone. Ms. Haggar also explained “I wanted to like her, I don’t know why she got mad at me”. She also testified that Danielle was the one who removed Ms. Harnett off of Ms. Haggar. The court would note in passing that this is fairly consistent with the testimony of Mr. Justin Schoenermack that when he came in the residence, he saw Danielle Merrill and Bonnie Harnett on Ms. Haggar, and essentially pulled them away.

[80] In cross-examination, Ms. Haggar maintained that Ms. Harnett was drunk when she went in her car. Ms. Haggar has seen Ms. Harnett when she is sober. She explained that while she did not count the number of drinks consumed by Ms. Harnett that night, she had a drink in her hand the whole time they were hanging out. Ms. Harnett acted drunk, she believed she was drunk. She was acting distraught, she was accusing Ms. Haggar of things she was not doing. She was acting differently than when she is sober.

[81] Ms. Haggar described her own alcohol consumption and the effect it had upon her as “I was drunk”. There is no doubt that the ingestion of alcohol, to the amount and degree of the witnesses in this trial, can adversely affect the perception of the witnesses, and the reliability of the memory of the witnesses. Ms. Haggar readily admitted the degree of impairment or intoxication, which the court accepts as affecting the reliability of her evidence.

[82] Overall, the court found the testimony of Ms. Haggar to be relatively consistent. Although the court notes that her ingestion of alcohol would have affected her perception and the reliability of her testimony, it was relatively consistent. She was not shaken to any notable extent in cross-examination. The few inconsistencies were not material and were more in the nature of an elaboration of more information, or alternate inferences as to thoughts, such as what Ms. Harnett was thinking. The court found that she was trying her best to be helpful and fair, including at various points in time volunteering that she did not think that Ms. Harnett intended to drive over her. At times she tried to minimize what Ms. Harnett was doing, and not portray her unfavourably. It is clear that she was previously a friend of Ms. Harnett, she declined saying anything bad about their prior relationship, and clearly was disappointed that they are no longer friends. This is all in the context of her former friend, Ms. Harnett, whom she tried to prevent her from driving after drinking, then proceeding to drive a car over her which caused significant injuries and a great impact on Ms. Haggar over a lengthy period of time following this incident. Ms. Haggar made multiple admissions against interest, as noted above, including the amount of alcohol she had consumed that night and the impact it had upon her, and with respect to her banging on the driver’s window and windshield. While the defence in cross examination tried to suggest in effect a motive to lie or misrepresent arising from a desire to be reimbursed for her one year of physiotherapy expenses arising from this collision, it is clear that she was aware of the nature of insurance coverage. The court does not accept that she reported this incident in order to get reimbursement for her medical expenses, for what was a very significant series of injuries. If anything, she initially did not want to have Ms. Harnett charged for what she did. She volunteered that she was not suspicious of Ms. Harnett doing anything improper with her boyfriend Justin. Ironically, Ms. Haggar did not seem to be aware of the incident that night related to the court in the evidence of her boyfriend Justin Schoenermack. This related to the action of Ms. Harnett in trying to kiss him earlier in the evening, before the argument and Ms. Harnett choosing to leave the residence. She was also very fair in not overstating her ability to hear, see and remember various aspects of the events, and she was quick to say when she could not answer some questions put to her. She was clearly in shock after Ms. Harnett drove over her, and unable to recall much of anything that happened after that, including whether Ms. Harnett stopped or returned to the scene to offer assistance to her. She did not overstate her ability to perceive and recall that portion of events. Her evidence was believable and made sense, including the portion where Ms. Harnett’s car was on her foot, and she admitted she unrealistically tried to push the car back off of her foot. She was clearly panicking, yelling at Ms. Harnett to get her car off her foot, and the court has no doubt that she was yelling this as loud or louder than other statements she had made to Ms. Harnett to not drive away.

[83] Overall, the court finds the evidence of Ms. Haggar to be credible, and notes as well that in many areas is consistent with the evidence of Ms. Merrill, and Mr. Schoenermack on various points.

Consideration of the evidence of Danielle Merrill:

[84] Ms. Merrill was friends with both Ms. Harnett and Ms. Haggar. She described Ms. Haggar as her best friend, they had been neighbours in Petawawa. She met Ms. Harnett through Ms. Haggar. After the events surrounding the incident, Ms. Merrill has not spoken to Ms. Harnett.

[85] On July 20, 2020, Ms. Harnett picked up Ms. Merrill from Oshawa. They planned to go visit Ashley Haggar at her residence in Toronto. They arrived sometime in the afternoon. After walking around in Toronto they returned to Ms. Haggar’s residence, and she consumed twisted tea and wine. She described Ms. Harnett as having consumed drinks with the two of them, she did not remember how many but stated no more than 5 drinks for Bonnie. In cross examination she testified that she does not know how many drinks Ms. Harnett consumed, it could have been less, it could have been more, than the 5 drinks. Ms. Merrill believed she (herself) had 8 or 9 drinks. Ms. Merrill described the impact of the alcohol she consumed, stating that she was drunk. She believed they were all drinking wine and twisted tea. She described events leading up to an argument, when everyone was “buzzed”, close to bedtime. At that time they were getting ready for bed, and Ms. Harnett removed her bra and put it on the kitchen counter or on a table. Ms. Haggar was upset as you don’t do that at someone’s house. At that point, Ms. Merrill stated that all of them were drunk. Ms. Haggar had stated that it was time for bed. Of the three women witnesses in this trial, the court would find that the evidence of Ms. Merrill, according to her assessment of herself, was probably the most affected by the consumption of alcohol, at least as it related to the events prior to the driving incident.

[86] The plan was for Ms. Harnett and Ms. Merrill to stay over at Ms. Haggar’s residence. After the argument between Ms. Harnett and Ms. Haggar, Ms. Merrill went outside. She believed that Ms. Haggar followed her outside. She was not sure when Ms. Harnett was there, it might have been within 5 seconds later. Ms. Harnett had to unlock the vehicle for Ms. Merrill to get her bags from the back seat. Ms. Merrill got her bags out of Ms. Harnett’s car, and as they were outside, Bonnie was “like okay I’m gonna leave”. She described that Bonnie wanted to go because Ashley was upset. Ms. Haggar went to her and told her not to go. Ms. Haggar said to Ms. Harnett “no you are drunk, you should not be driving drunk, you should not be leaving”.

[87] Ms. Harnett then went in the car, shut the door and locked it. Ms. Merrill described Ms. Haggar as being in the front of the car, telling Ms. Harnett not to go. She testified that Ashley was on the left driver side of the car, towards the corner, she was in the front a little bit. Then Ms. Merrill saw the car start to move, so Ms. Haggar started to move. Ms. Haggar moved to the driver side of the car. Ms. Haggar was banging on the window with her hand, like don’t drive, and then Ms. Harnett drove the vehicle ahead. (In cross examination when she was asked if Bonnie was scared she said “I guess”, then explained she got in her car and tried to leave, scared, I don’t know. Ms. Merrill agreed that it would have scared Ms. Merrill.) She testified that she did not think that the banging by Ms. Haggar on the window would have broken it. At that time Ms. Haggar was at the front, but the car was moving slowly. Ms. Harnett was yelling at Ms. Haggar to get out of the way. Ms. Haggar was at the side to open the door to stop Ms. Harnett, saying get out of the car, to come back inside, we don’t want you driving while you are drunk.

[88] Ms. Merrill screamed to Ms. Harnett “you are on top of her foot”. At the time Ms. Haggar’s tip of her foot or shoe was under the car, under the front driver’s tire of the car. Ms. Merrill described the car being on top of her foot for probably a good 5 seconds or so. Ms. Merrill described Ms. Haggar as screaming “bloody murder” for 5 seconds, that Ms. Harnett was on part of her foot. The front driver side tire was on her foot. When the car drove over Ms. Haggar’s foot, Ms. Haggar was in the same position relative to the car. Ms. Haggar went down on the ground when the car drove further, and Ms. Harnett drove away. Ms. Merrill testified that Ms. Harnett drove off kind of fast. She testified that Ms. Harnett wanted to get away, she was upset. Ms. Merrill had been yelling that the vehicle was on Ashley’s foot. Ms. Merrill was clear in her evidence that she heard a “crack” when Ms. Harnett’s car drover over Ms. Haggar. It was a traumatizing event for Ms. Merrill, she experienced it with her own eyes, she picked up her friend who was screaming bloody murder and she dragged her.

[89] Ms. Merrill tried to pick up Ms. Haggar, Ms. Haggar was screaming. She testified that she ended up getting her up the staircase, she clearly had a broken leg, you could see the leg was displaced.

[90] Ms. Harnett drove away, she did not stop and get out of the vehicle. She returned when the ambulance was there, but did not talk to Ms. Haggar or Ms. Merrill as they were dealing with the paramedics. Ms. Harnett left, she had forgotten her phone or something.

[91] Although Ms. Merrill testified that she had been drinking, she indicated that alcohol did not have any effect on her recalling the part of the night regarding the vehicle and Ashley’s leg, that this part of the evening was “pretty vivid”.

[92] Although Ms. Merrill drew a diagram of the placement of Ms. Harnett’s car relative to Ms. Haggar’s residence, there is no doubt that it was completely out of line with the viva voce evidence she had given, and the evidence of the witnesses. The court finds that the diagram is a piece of evidence which is unreliable. It is not clear whether the problem was the drawing ability of Ms. Merrill that contributed to this faulty diagram or not, but it is so faulty the court does not consider it as reliable evidence regarding the events that appear to be portrayed on it.

[93] The day after the incident, Ms. Harnett picked up Ms. Merrill to take her home. She told Ms. Harnett that Ms. Haggar had broken her leg. Ms. Merrill testified that Ms. Harnett was in shock, that she didn’t realize that happened. It seemed that was the first time Ms. Harnett was hearing about the injury. The court would note that evidence was at odds with Ms. Harnett’s evidence that she found out about the injury prior to this, in text messages from Ms. Haggar.

[94] Ms. Merrill admitted that she was drunk and that she remembers bits and pieces of the night before the car incident. Although aspects of her testimony were affected by the consumption of alcohol that night, the court would note her reflection that her memory of the actual driving incident was vivid in her memory. In this respect, also noting its consistency with portions of the evidence of Ms. Haggar, it is more reliable than potentially her evidence of the less significant events that occurred prior to that inside the residence. Having made that observation, the court would note that on the important points, her evidence prior to the driving conduct was consistent with most of the evidence of Ms. Haggar and Mr. Schoenermack. On some points it was also consistent with the evidence of Ms. Harnett.

[95] As far as her evidence outside the residence with Ms. Harnett and her car, she related the trauma of seeing the car drive over her friend, just after yelling that the car was on her friend’s foot. She also experienced the trauma of hearing a “crack” noise as the car drove over her friend. The court accepts her evidence that the nature of this portion of events that night was something she really paid attention to, and created a stronger memory for details. The court accepts the reliability and credibility of her viva voce evidence relating to Ms. Harnett driving over Ms. Haggar, and away from the scene. The evidence of the portion of events outside the residence that night of Ms. Merrill was by and large consistent and not shaken in cross-examination.

Consideration of the evidence of Justin Schoenermack:

[96] Ms. Haggar’s boyfriend at the time, fiancé at the time of the trial, Mr. Justin Schoenermack testified. He had not given a statement to the police initially, but provided one a little less than a month before the trial. He commenced his evidence on the afternoon of the first day of trial and continued on the morning of the second day of trial. He has been in the Canadian Armed Forces for 15 years. He works as an armoured crew commander for tanks. He was living with Ms. Haggar on the day of the incident and was present in the residence for portions of the interactions among the three women. He also knew Ms. Harnett.

[97] He did not see the events outside the residence when Ms. Harnett drove over Ms. Haggar’s foot and leg. After she was brought inside the house, 911 was called. He could tell from the first aid he administered to Ms. Haggar that her leg was broken. Approximately 30 minutes after Ms. Haggar was brought into the house injured, Ms. Harnett returned just to pick up her phone. Then Ms. Harnett left the home.

[98] Earlier in the night, the three women and he were drinking, and he indicated they were all intoxicated. He believed that Ms. Harnett was intoxicated because they were all drinking that night. At one point, he testified that he was waiting to use the washroom, and Ms. Harnett came out and tried to kiss him and he said no. He went to the couch and she followed him to the couch, and he told her she probably should go to bed. Then Ms. Harnett removed her bra and laid down. He went outside, to what appears was the balcony, to have a smoke. Ms. Harnett followed him outside for a smoke. He remained outside when Ms. Harnett went back inside, and it seems that was the portion of time when there was an argument about Ms. Haggar finding Ms. Harnett’s bra. When Mr. Schoenermack went back inside, he found Danielle and Bonnie on top of Ashley. He did not know what was going on, but Danielle was trying to get Bonnie off of Ashley. He did not see how the three women came to be in that position.

[99] The defence cross-examined Mr. Schoenermack in the afternoon of the trial, about not giving the police a statement on an earlier date. He testified that he does not want to talk to the police, that he gets severe anxiety talking to police. His statement to the police was not audio recorded, and was noted as a series of questions and answers, that were not verbatim, on 4 sheets of paper. This was not presented to the witness, nor the court, as it was not available to the court at the time. The defence was concerned that there was no mention of a kiss in that series of questions and answers. Mr. Schoenermack testified that he thought he had mentioned the kiss in the statement, but clearly he did not. He commented that he might not have wanted to say it with his fiancé there. He was clearly bothered by the fact that it happened, although he indicated that he is not ashamed, it is what it is. It is clear that his testimony is not that they actually kissed, but rather that Ms. Harnett tried to kiss him and he did not permit that to happen. He was somewhat concerned though that his location at the time of his interview with the police was in a residence with “paper thin walls”, he was not sure if Ms. Haggar could hear him as he spoke to the officer. There was a problem in the way Mr. Schoenermack was cross- examined about this statement as he was not shown the statement until the next day. Before he was shown the statement he was asked if he was not being truthful to the officer, if it was not included. The court has real concerns about the way in which this happened, and raised it with counsel, in that it wondered if the series of questions posed to the witness, given his lack of involvement in the subject incident, and knowledge of only peripheral matters, would have triggered the forthcoming information about an attempted kiss. While both counsel had this statement, neither the court nor the witness were provided with this before the defence counsel got deeply into the cross-examination about his not mentioning the attempted kiss on an earlier date.

[100] On the second day of testimony, Mr. Schoenermarck volunteered at the beginning of his evidence, before being questioned, and without being asked, a statement. He indicated that at the end of the questions, he was asked by the officer if he wished to bring up anything else and there was not anything else he had thought of at the time. It was not until after Mr. Schoenermack made that statement, that he was shown the statement by defence counsel. It is notable that each time the defence counsel asked Mr. Schoenermack about this part of evidence, defence counsel called it “the kiss”. The court was loathe to interfere with the cross-examination, but very alive to the situation that the defence constantly referred to what the witness had referred to an attempt by his client to kiss this witness, which did not culminate in a kiss, as “the kiss”. He continued in this line of questioning of the fiancé of the complainant, where it was clear that the complainant did not know that Ms. Harnett had done this on the evening in question in relation to the attempted kiss. Further, the questions posed to the witness by the officer, for this prior statement, was targeted. It was about who was at the residence, if there was a dispute between Bonnie and Ashley and he indicated not really, and the rest was about what happened outside with the car and Ashley being injured and Bonnie returning for her phone. When Mr. Schoenermack saw the record of this statement, being the series of questions and answers, he indicated in cross-examination that is what he needed to have seen the day before during his evidence (that he was not shown at that time). He had not seen the statement since it was written. As the defence was scrolling down the copy of the statement on zoom, Mr. Schoenermack volunteered that he had said “yep” but that was a rude, disrespectful thing to say, that he is trying to get away from using that word as he should use the word “yes” instead. He said “please” to defence counsel and he was very polite. Then he referred to the text conversation from Ms. Harnett to Ms. Haggar’s phone, asking, seemingly in reference to why is there this trial, why is this even a “thing” right now ? He testified she already said sorry this should not have happened, etc. The court then intervened and said it was a determination to be made by the court, and that he was present as a witness, and to just listen to the questions and then answer them. He apologized. Then counsel went back to asking him about “the kiss” and that he had given two reasons for not mentioning “the kiss” in this statement to the officer in the earlier day of his testimony. At that point Mr. Schoenermack made statements regarding the personality of defence counsel, and the court intervened and told the witness this is not going to help, to listen to the question and answer it. He apologized. He said the other reason was that he did not want Ashley to hear him. He explained that it was because Bonnie and Ashley were best friends, and he volunteered that Bonnie is one of the favourite people he has met in his life. He has nothing bad to say about her, that night was a “one-off”, he testified and it “sucks”. But he then said what she did was wrong, you don’t just run over somebody.

[101] The court noted through his evidence he mentioned more than once comments that put “Bonnie” in a favourable light, such that there does not appear to be any ill will he has towards Ms. Harnett, notwithstanding what happened to his fiancé that night.

[102] Then the defence pursued further why he would have felt ashamed as Ms. Haggar’s boyfriend related to the attempted kiss, that he had done what a boyfriend should do of preventing the kiss from happening. He said he was not ashamed, but he knows what is going to happen, when two girls figure out, if he was kissing Bonnie and Ashley found out she would hate her. He did not want the two to hate each other. Then Mr. Schoenermack tried to explain in his answer how it would be if there was a kiss between the wife of defence counsel and the witness. Mr. Schoenermack said he is not ashamed, the issue is he did not want to break Ashley’s heart with what her best friend Bonnie had done to her, referring to the attempted kiss. In his mind he said he would drop it, just leave it there. Defence counsel said to the witness that he was not answering the question, the court intervened that he had answered the question. Then Mr. Schoenermack lost patience and asked if he could have another lawyer ask him questions. The court then interjected and told Mr. Schoenermack that this is the procedure in court, and the witness apologized again. The court indicated that a witness must be patient and gave him further instructions. He apologized again. The court again stated that the answer was responsive to the question. Defence counsel then asked again the same question the court stated had already been addressed with a responsive answer. The witness then asked him to ask the next question. He explained the shame was an embarrassing moment, of a 40 year old woman come on to you, she is not a bad looking woman, the shame to me was that it even happened, that he was in a situation that he should not have been in, what did he do to make that happen ? Then when Mr. Schoenermack was asked why he tries not to deal with the police, he testified that he had a rough upbringing as a child, his Mom left when he was 12, situations with his brothers, that his father had to take care of him when his brothers were disabled, and his Dad was put in a situation where he had to talk to the police. It was not fair to his Dad. That is why he does not like to make statements to the police. It is like PTSD when he talks to the police. Questions continued to be put to him about being nervous around the police, especially since he works in the armed forces. He maintained he feels nervous around the police, including the military police. Mr. Schoenermack then asked defence counsel if he had ever been in a situation of being in front of the police, referring to the feeling that creates. The court told Mr. Schoenermack to not ask defence counsel a question. He apologized. Defence counsel asked no further questions in cross-examination.

[103] In submissions at the end of the trial, defence counsel made the submission that Mr. Schoenermack was “high” on the second day of his evidence. The court saw Mr. Schoenermack testify and watched him very closely. There was no indication in his presentation that he was “high” or under the influence of any substance during his evidence. Defence counsel in no way asked him if he had taken any substances. There is no doubt, this court would find, that the process of cross-examination and the way questions were put to this witness caused a response by the witness that was in some ways understandable to the court. The witness lost patience with the way the questions were repeated, covering the same areas. The area opened up regarding PTSD and the police further upset the witness in terms of his experience as a child.

[104] The evidence of Mr. Schoenermarck was no doubt, as with the other witnesses in this trial, affected by his ingestion of alcohol that night, which affects perception and memory. The court finds that had an impact on the reliability of his evidence. However, it is noteworthy that his evidence was largely consistent with the evidence of Ms. Haggar and Ms. Merrill, and in various aspects that of Ms. Harnett on some points. It is also noteworthy that he clearly liked, and likes, Ms. Harnett. He volunteered evidence which put her in a positive light. He wondered why she had been charged and is accused in this trial. He clearly had no animus towards Ms. Harnett, even though she had driven her car over his then girlfriend, now fiancé, and caused the serious injuries she suffered from for a long time. Although his evidence is peripheral in this case, and does not relate to the driving charges, it is nonetheless credible. The court rejects the negative suggestions of the defence that he testified while under the influence of a substance, and finds that the nature of the way in which he was questioned in cross-examination explains the nature of his responses to that process. For instance, he clearly had a difficult childhood and this was pursued in a way which clearly upset this adult male who is now in the armed forces. Overall, the court found his evidence to be credible, particularly where it was confirmed by Ms. Haggar and Ms. Merrill.

Analysis and Findings of Fact :

[105] The court considers R. v. W.D. (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) Considering the defence evidence, the court would note that it does not believe the evidence of Ms. Harnett. The court specifically rejects her evidence that she was in a “fight or flight” response, that she ran out of the house immediately in that response and was scared and drove away in that state. The court found her evidence to not be believable. The court finds, as noted herein, that Ms. Harnett was not afraid, but rather was angry, after being asked about her bra. She essentially assaulted Ms. Haggar after that point, by pushing her back into the residence (from the balcony), then pushing her down on the sofa, and then getting on top of Ms. Haggar and facing her. Ms. Harnett put her hands on Ms. Haggar’s head and pulled Ms. Haggar’s hair. Ms. Haggar responded “Bonnie, please get off of me” two times. Ms. Merrill intervened to assist and get Ms. Harnett off of Ms. Haggar, and Mr. Schoenermack intervened to get Ms. Harnett away. Shortly after that Ms. Harnett made the decision to leave, took steps to gather her property and went outside to her car. She was angry as she went to her car, even though Ms. Haggar did not want her to drive because she had been drinking. This court finds that she was not in fear as Ms. Haggar pleaded with her not to drive, but rather was still mad and determined to leave the area, regardless of the conditions with Ms. Haggar and Ms. Merrill around her car. The court does not have a reasonable doubt arising from Ms. Harnett’s evidence.

[106] The court has considered the other evidence in this trial. As noted above, the court found the evidence of Ms. Haggar to be credible. Although it was affected by her consumption of alcohol, overall it was reliable evidence. It was also confirmed in material ways as far as the driving incident, and by the evidence of Ms. Merrill which the court found to be credible. Relying upon the evidence and the version of events in particular related by Ms. Haggar regarding Ms. Harnett’s actions in her car, the court accepts Ms. Haggar’s evidence as an accurate version of the events which took place in relation to the car.

[107] The court notes the uncontradicted fact that Ms. Harnett drove her car over Ms. Haggar’s foot, and ankle/ leg area causing the bodily harm that is admitted in this case. The court accepts the evidence of Ms. Haggar and Ms. Merrill that the car, the front driver’s side tire of the car, was on Ms. Haggar’s foot. The court accepts the evidence that Ms. Haggar shouted or screamed at Ms. Harnett that her car was on her foot, and Ms. Merrill shouted similar comments. Although Ms. Harnett’s ability to hear those comments was adversely affected by the actions of Ms. Harnett in rolling up her window, and then later turning on her air conditioning, the court finds that she could hear Ms. Haggar. Ms. Harnett, even on her own evidence, admitted hearing Ms. Haggar, although in her version stated that she was shouting profanities. Ms. Harnett testified that Ms. Haggar was “not” asking her to stay, so she heard more than profanities. The court finds that Ms. Harnett heard the comments about the car being on Ms. Haggar’s foot. If Ms. Harnett heard Ms. Haggar yell profanities, then she would have heard the more significant yells that the car was on her foot. The court finds that Ms. Harnett was mad at Ms. Haggar, she had decided she was not going to stay at her house, and that she was going to leave. The court finds that Ms. Harnett saw Ms. Haggar in close proximity to her driver’s door and driver’s windshield area, and that she was positioned in a way where Ms. Haggar’s foot or feet would have been close to Ms. Harnett’s car. The court finds that Ms. Harnett saw Ms. Haggar in that close proximity to the driver’s side when she turned her wheel to the left and started to drive. The court finds that the process of driving from that position caused the vehicle to go onto Ms. Haggar’s foot, and when Ms. Harnett persisted moments later in driving forward. This caused Ms. Haggar to go down on the ground. The court finds that Ms. Harnett then persisted in driving forward without any concern or regard for the safety of Ms. Haggar, then on the ground under her car, or Ms. Merrill, who had earlier in the process been just behind her car. On her own evidence, Ms. Harnett admitted she did not look to the side or behind as she drove forward and away. Ms. Harnett only had regard for herself, and no one else on the street, as she drove away, at a greater speed, without looking back to see what happened to Ms. Haggar, or potentially Ms. Merrill. Those are the findings of fact made by this court, as noted at this point.

[108] To determine whether the Crown has proven beyond a reasonable doubt either or both of the two charges, the court considers the law regarding the offences.

Dangerous Driving cause bodily harm offence :

[109] The offence of dangerous driving, and as it relates to bodily harm, is set out in the Criminal Code as follows :

• 320.13(1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.

[110] This provision amended the prior offence of dangerous driving, by amendment 2018, C.21, s. 15, which was assented to on June 21, 2018. This new provision governs the allegations in this case, in 2020. The prior wording of the offence was considered in numerous prior cases which have considered dangerous driving. The most notable aspect of this new provision is that it has omitted the wording, after consideration of regard to all the circumstances, of “including the nature, conditions 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”. In particular, the prior wording of the offence was as previously set out in s. 249 of the Criminal Code :

249 (1) Every one commits an offence who operates

• (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

• (3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

[111] The appellate case law put before this court by counsel dealing with the offence of dangerous driving, relates to the prior wording of the s. 249 offence. Both Crown and defence in this case take the position that the wording under the new s. 320.13 offence is meant to capture the same conduct as set out in the previous s. 249 offence. The court has found no published judgment that takes a different view. Accordingly, in the case at bar, this court takes the position that the new provision is an inclusive one, such that the court is to consider “all of the circumstances”, which would include those set out in the previous s. 249, and potentially other circumstances.

[112] The Supreme Court of Canada has written numerous judgments related to the offence of dangerous driving. This court has considered all of the cases put before the court by counsel, and additional cases which this court has read and considered as stated herein.

[113] In R. v. Hundal, 1993 120 (SCC), [1993] S.C.J. No. 29, the Court set out a modified objective test for the offence of dangerous driving. The Court explained that this standard is appropriate for a number of reasons. At para 30, the Court noted :

30 First, driving can only be undertaken by those who have a licence. The effect of the licensing requirement is to demonstrate that those who drive are mentally and physically capable of doing so. Moreover, it serves to confirm that those who drive are familiar with the standards of care which must be maintained by all drivers. There is a further aspect that must be taken into consideration in light of the licensing requirement for drivers. Licensed drivers choose to engage in the regulated activity of driving. They place themselves in a position of responsibility to other members of the public who use the roads.

31 As a result, it is unnecessary for a court to establish that the particular accused intended or was aware of the consequences of his or her driving. The minimum standard of physical and mental well-being coupled with the basic knowledge of the standard of care required of licensed drivers obviate that requirement. As a general rule, a consideration of the personal factors, so essential in determining subjective intent, is simply not necessary in light of the fixed standards that must be met by licensed drivers.

[114] The Court set out the standard as follows in para 35. It is not what the accused subjectively intended, but rather, whether viewed objectively, the accused exercised the appropriate standard of care. The court noted that it is not overly difficult to determine when a driver has fallen markedly below the acceptable standard of care. There is a continuum of negligent driving from momentary lack of attention with civil responsibility, through careless driving under provincial legislation, to dangerous driving under the Criminal Code . In the end, as set out in para. 43, the Crown is required to prove beyond a reasonable doubt, viewed objectively, that the accused drove in a manner that was dangerous to the public, having regard to all the circumstances. For proof of dangerous driving, there must be conduct which amounts to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.

[115] In R. v. Beatty, 2008 SCC 5, [2008] S.C.J. No. 5, in the majority judgment of Charron, J., the Court affirmed its prior determination of a modified objective test for negligence-based criminal offences, such as dangerous driving. It modifies the objective norm for civil negligence, by requiring a “marked departure” from the civil norm. A mere departure from the standard expected of a reasonably prudent person meets the test for civil negligence, but not penal negligence. It is a difference of degree. Secondly, if an accused raises a reasonable doubt whether a reasonable person in her position would have been aware of the risks arising from the conduct, there must be an acquittal. Allowances are made for incapacity and mistake of fact. In that case the Court considered a situation where the accused had been driving properly, but then for a matter of seconds crossed the centre line, for reasons not known. The trial judge characterized it as a loss of awareness, a situation of negligence that would attract civil liability, not a marked departure from the standard of care of a prudent driver. The Court went on to consider potential exculpatory defences, quoting the Hundal case examples of a driver without prior warning who suffers a totally unexpected heart attack, epileptic seizure or detached retina. As a result of the sudden onset of a disease or physical disability the manner of driving would be dangerous, yet those circumstances could provide a complete defence despite the objective demonstration of dangerous driving. The similar situation of taking a prescribed medication which suddenly and unexpectedly affects the driving could also establish a good defence even though the charge had been objectively established. In terms of mistake of fact, the Court referred to the potential situation of a welder advised and honestly and reasonably believing that there were no combustible materials nearby, being able to rely upon that scenario as a defence to a charge arising from an explosion. It is to be noted, following the Court’s earlier judgment in Tutton, that the court is not to add to the analysis personal characteristics of the accused, such as youth, mental development and education. There is for example no fluctuating standard comparing a young and inexperienced accused with a reasonably prudent young and inexperienced driver. The test incorporates the context of the events surrounding the incident, as the Court set out in para 39, not the personal characteristics of the accused. The standard against which the conduct is viewed is always the same, the conduct expected of the reasonably prudent person in the circumstances. This reasonable person must be put in the circumstances in which the accused found herself. Applying the examples of unexpected medical and related situations, the court would consider the reasonable person who was subjected to those unexpected situations.

[116] The Court n Beatty restated the test in terms of actus reus and mens rea, in para 43:

The Actus Reus

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, 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".

[117] In consideration of the actus reus, it is the manner of driving, not the consequences of the driving which is relevant for the offence of dangerous driving

(b)The Mens Rea

The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

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[118] In terms of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind such as intent, recklessness or wilful blindness. If it so happened that the accused had an intent to create a danger for other users of the highway, this deliberate action may well constitute a marked and substantial departure from the norm.

[119] The Court also stated that conduct that only occurred in a 2 to 3 second interval could meet the requirement for dangerous driving.

[120] In essence, at para 49, the Court stated that the first requirement is to determine if there is proof beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, then the trier of fact must consider whether the actual state of mind of the accused raises a reasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk created by the conduct.

[121] In Beatty, the Court found that in terms of mens rea, there was a momentary lack of attention during a few seconds of lapsed attention. In the end the Court agreed with the trial judge that there was insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver. In that respect, the mens rea for the offence was not proven.

[122] In R. v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26, the Court noted at para 34 :

In terms of the actus reus, the SCC in Roy stated that the focus is on the risks created by the accused’s manner of driving, not the consequences such as the accident. The driving can be qualified as dangerous when it endangers the public. The risk of damage or injury created by the manner of driving is relevant. In making this enquiry, it is notable that driving is an inherently dangerous activity, but it is legal, and it has social value.

[123] In para. 36, the Court further considered the mens rea component of dangerous driving, whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstance, see Beatty at para. 48. The Court approached the issue by asking two questions:

1.) Whether in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible;

2.) If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.

[124] As noted in para 40, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault (or mens rea) from the manner of driving. The underlying premise for finding fault is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity.

[125] In Roy, the court found that the accused had simply misjudged speed and distance in difficult conditions and poor visibility. It was a single and momentary error in judgment. The actions of Mr. Roy did not support a reasonable inference that he displayed a marked departure from the standard of care expected of a reasonable person in the same circumstances. An acquittal was entered.

[126] The Court of Appeal for Ontario in R. v. Ibrahim, 2019 ONCA 631, considered a case which had received some notoriety at the time. Mr Ibrahim was driving his taxi, when he collided with the victim on his longboard, in downtown Toronto, killing the victim. He was charged with murder, and found guilty by the jury, of manslaughter. In the course of the court’s consideration of the issues, the court considered the potential liability for manslaughter based on the unlawful act of dangerous driving. The Court held that the nature of the instruction to the jury was deficient in that it failed to appreciate how the defence evidence could raise a reasonable doubt. At the time of the allegations in that case, s. 249 of the Criminal Code set out the offence of dangerous driving. The issue in that court was whether the trial judge had given a proper instruction to the jury, in consideration of R. v. W.D. as it would relate to the modified objective standard requisite for dangerous driving.

[127] In R. v. Chung, 2020 SCC 8, [2020] S.C.J. No. 8, the Supreme Court of Canada applied and clarified a number of its earlier judgments with respect to dangerous driving. It is the Court’s most recent word on dangerous driving, and it provides excellent guidance to this court in reconciling issues raised in earlier appellate judgments. The Court considered a case where the trial judge had acquitted the accused on a dangerous driving count, primarily arising from the aspect of the driving which formed the basis of the charge being of less than 5 seconds in duration, spanning a distance of less than a block. While the trial judge found that the driving was objectively dangerous and that the actus reus had been established, the judge found that the evidence fell short of the mens rea component. The judge focused on the momentariness of the speeding to find that the evidence fell short of the mens rea or fault requirement. The Supreme Court of Canada agreed with the Court of Appeal, that the trial judge’s focus on the momentariness of the nature of the speeding was an error of law. In essence the Court found that there can be mens rea even when the speeding was of the short duration found in this case.

[128] In this case, the Court reconciled its earlier judgments on this point. The Court stated, beginning at para. 21 :

21 The trial judge erred in focussing on the momentary nature of Mr. Chung's conduct, rather than analyzing whether the reasonable person would foresee the dangers to the public from the momentary conduct. A brief period of rapidly changing lanes and accelerating towards an intersection is not comparable to momentary mistakes that may be made by any reasonable driver, like the mistimed turn on to a highway in Roy, the momentary loss of awareness in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, or the sudden loss of control in Willock.

22 Although this Court in Roy and Beatty determined that momentary lapses in attention and judgment would usually not raise criminal liability, this was because momentary lapses often result from the "automatic and reflexive nature of driving" (Beatty, at para. 34) or "[s]imple carelessness, to which even the most prudent drivers may occasionally succumb" (Roy, at para. 37). These are examples of conduct that, when assessed in totality against the reasonable person standard, only represent a mere departure from the norm. Momentary conduct is not assessed differently from other dangerous conduct. Conduct that occurs over a brief period of time that creates foreseeable and immediate risks of serious consequences can still be a marked departure from the norm (Beatty, at para. 48). A reasonable person would have foreseen that rapidly accelerating towards a major intersection at a high speed creates a very real risk of a collision occurring within seconds. This is what actually occurred in Mr. Chung's case. Risky conduct at excessive speeds foreseeably can result in immediate consequences. Therefore, the fact that foreseeable consequences occur within a short period of time after someone engages in highly dangerous behaviour cannot preclude a finding of mens rea for dangerous driving.

23 Second, I find that the trial judge did not apply the correct legal test in Roy. In his reasons, he failed to determine whether a reasonable person in Mr. Chung's circumstances would have foreseen the risk from accelerating rapidly and speeding into that major intersection and taken actions to avoid it. This is not merely a matter of the trial judge failing to write out his thought process, but rather a matter of the trial judge not turning to the core question at issue: "whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances" (Roy, at para. 36 (emphasis added)). The trial judge's reasons, interpreted as a whole, reveal that he failed to undertake this analysis.

24 Although trial judges are not required to set out their analysis in any particular way, the two questions in Roy, at para. 36, are helpful and emphasize the need to compare the accused's conduct to the conduct of a reasonable person in their circumstances, and by reference to all relevant evidence. This is essential for determining objective mens rea. At some point in the mens rea analysis, the trial judge must work with the facts as found and consider whether, in the totality of the circumstances, a reasonable person would have foreseen the risk and taken the same actions as the accused. Only when there has been an active engagement with the full picture of what occurred can the trial judge determine whether the accused's conduct was a marked departure from the conduct of a reasonable and prudent driver.

25 Instead of focussing on what a reasonable person would have foreseen and done in the circumstances, the trial judge engaged in reasoning focussed on the type (speeding) and duration (momentariness) of Mr. Chung's conduct, to the exclusion of the full picture. His analysis focussed on distinguishing cases where excessive speeding had been found to be a marked departure from the circumstances of this case, rather than examining the risks created by Mr. Chung's speeding. In other words, he focussed on what Mr. Chung did not do in comparison to these other cases, rather than asking the correct legal question and assessing what risks a reasonable person would foresee arising from Mr. Chung's momentary speeding in the circumstances.

V.Conclusion

28 A reasonable person understands that driving is an inherently risky activity. It is made all the more risky the faster we drive, the harder we accelerate, and the more aggressively we navigate traffic. Although even careful driving can result in tragic consequences, some conduct is so dangerous that it deserves criminal sanctions.

29 On the facts as found by the trial judge, over a one block span, Mr. Chung moved into the curb lane, passed at least one car on the right, and accelerated to 140 km/h in a 50 km/h zone while approaching a major urban intersection and being aware of at least two other cars in the intersection. There is no evidence that the accused lost control of his vehicle. Concerning the required mental element, it is not necessary to find that Mr. Chung was subjectively aware of the risk of his conduct and intentionally created this risk. The test for mens rea is based on the reasonable person. A reasonable person would have foreseen the immediate risk of reaching a speed of almost three times the speed limit while accelerating towards a major city intersection. Mr. Chung's conduct in these circumstances is a marked departure from the norm.

[129] In the recent case of R. v. Berto, 2021 ONCA 839, the Court cited the Supreme Court of Canada cases noted herein. It also stated that conduct over a brief two to three second interval can amount to a marked departure, but if it is in the course of driving that is otherwise proper in all respects, as in Willock noted herein, is more suggestive of civil rather than criminal negligence. The Court nonetheless upheld a conviction for dangerous driving causing bodily harm in a case where the Appellant drove into a crowd of people in a parking lot, then turned and exited the parking lot, hitting a person and seriously injuring him.

[130] In the case at bar, there is also clear evidence, even from Ms. Harnett, that she had consumed 5 alcoholic drinks in the late afternoon and evening prior to getting behind the wheel of the car and driving over Ms. Haggar. While there is no evidence as to any blood alcohol testing, or any sobriety tests for impaired ability to operate a motor vehicle, it is important to keep in mind the nature of the conduct for a reasonable and prudent driver. The nature of the act of driving, and the skills, both physical and cognitive, have been considered by the courts in cases dealing with charges of impaired driving. While this court is well aware of the fact that it is not dealing with an impaired charge, the nature of the activity of driving is important to bear in mind. In the oft-quoted judgment of Justice Casey Hill in R. v. Censoni, [2001] OJ No. 5189, the court stated in para 47 that “it must be remembered that slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like.”

[131] The decision of a driver to drink alcohol before getting behind the wheel of a motor vehicle and driving, is a relevant consideration as it relates to the standard of a reasonable and prudent driver. It is relevant to the mindset of the driver to willingly take the risk of driving in that condition. The ingestion of 5 alcoholic drinks by Ms. Harnett before driving is a relevant factor for this court to consider.

[132] In R. v. Stennett, [2021] O.J. No. 2156 (C.A.), Watt, J.A., speaking for the court, considered the trial judge’s comments at para. 36, that driving is “a complex task involving divided attention, choices, reaction time, and judgment of speed and distance”. In that case, the court had evidence as to impaired ability at readings of 50 mgs of alcohol per 100 mls. of blood, which impairment increases as readings increase. In the case at bar there is no evidence as to blood alcohol readings. The court noted that what is important is not physical evidence of impairment, but rather mental impairment, of the ability to perform the complex task of driving a motor vehicle.

[133] On the issue of dangerous driving, the Court in Stennett considered in para 91 and following :

91 In considering the issue of the fault element, it is helpful to ask two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If the answer to the first question is "yes", the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in equivalent circumstances: Roy, at para. 36.

92 As a general rule, a trier of fact may infer the required objective fault element or mens rea from the fact that an accused drove in a manner that constituted a marked departure from the norm. But this is an inference, not a presumption. And even where the manner of driving is a marked departure from the norm, the trier of fact must examine all the circumstances to decide whether it is appropriate to draw the inference of fault from the manner of driving: Roy, at para. 40.

93 The fault element or mens rea of dangerous operation can be established by momentary excessive speeding on its own, provided, in light of all the circumstances, it supports an inference that the driving was the result of a marked departure from the standard of care that a reasonable person would have exhibited in the same circumstances: R. v. Chung, 2020 SCC 8, 386 C.C.C. (3d) 523, at para. 19; Roy, at para. 41.

94 Finally, it is not permissible to infer the marked departure simply from the fact that an accused's driving, viewed objectively, was dangerous: Roy, at para. 44.

[134] In the prior judgment of the Court in R. v. McLennan, 2016 ONCA 732, the Court stated at para 23:

23 The fact that a person voluntarily consumes some alcohol, albeit short of the point of impairment, is a factor -- and only that -- that can be considered in determining whether the necessary mens rea has been made out. It is an indication of a mindset, in my view, of a willingness to assume a degree of risk -- a risk that the amount they have consumed will not rise to level where it impairs their ability to operate a motor vehicle. The offences of impaired driving and dangerous driving are directed at different risks.

… 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.

[135] Prior to that judgment, in R. v. Ramage, 2010 ONCA 488, at para. 64, Doherty, J.A. speaking for the Court, distinguished the offences of impaired driving and dangerous driving, noting :

The driver's impairment may explain why he or she drove the vehicle in a dangerous manner, but impairment is not an element of the offence. Both impaired driving and dangerous driving address road safety, a pressing societal concern. They do so, however, by focussing on different dangers posed to road safety. Impaired driving looks to the driver's ability to operate the vehicle, while dangerous driving looks to the manner in which the driver actually operated the vehicle.

[136] In the trial court judgment in R. v. Kresko, 2013 ONSC 1159, the court noted :

73 In certain circumstances, excessive speed alone can constitute the offence of dangerous driving: see R. v. Richards, 2003 48437 (ON CA), [2003] O.J. No. 1042 (C.A.), at paras. 10-11. Alternatively, other contributing factors, including tiredness or alcohol, may take the accused's driving to a level that constitutes dangerous driving even in the absence of sufficient evidence of high speed: see R. v. Mason, [1990] B.C.J. No. 2052, leave to appeal to S.C.C. dismissed, [1990] S.C.C.A. No. 373.

[137] In R. v. Poisson, 2019 ONSC 1462, de Sa, J. stated at para. 161:

“ [161] It is much like the situation where a driver who is in an extreme state of unrest, yet continues to drive, presents a danger to other pedestrians by doing so. In such circumstances, the choice to continue to drive in the face of extreme fatigue would be sufficient to make out the offence of dangerous driving. This was specifically addressed in R. v. Jiang, 2007 BCCA 270, at paras. 17 and 22. The court explained:

In my view, a sleeping driver is not driving of his or her own volition and acts committed while in that automatic state of mind cannot form the actus reus of dangerous driving. That is not to say that a sleeping driver can never be convicted of dangerous driving. The actus reus of the offence may consist not of driving while in a state of sleep, but of embarking on driving or in continuing to drive in the face of a real risk of falling asleep. As McLachlin J. (now C.J.C.) explained in R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3 at 73, 83 C.C.C. (3d) 346, the actus reus of crimes of penal negligence “may consist in carrying out the activity in a dangerous fashion, or in embarking on the activity when in all the circumstances it is dangerous to do so.”

…… such a driver may be convicted of dangerous driving if the trier of fact is satisfied beyond a reasonable doubt that the driver embarked on driving or continued to drive in circumstances in which he knew or ought to have known that it was dangerous to do so because there was a real risk that he would fall asleep at the wheel.[Emphasis added]

[138] The court has considered the case of R. v. Willock, 2006 20679 (ONCA). The court finds the driving conduct in that case quite different from the driving in the case at bar. The case at bar was not one of momentary lapse of attention, which was very brief in the midst of evidence of driving otherwise proper in all respects. The court has also considered the case of R. v. Diallo, [20210 O.J. No. 6475, which related to the driver of a double-decker Ottawa bus colliding with a station. In that case the trial judge asked how the conduct was sufficiently worthy of blame that notably exceeds the civil standard and is deserving of criminal sanction, before acquitting the accused.

[139] The court in the case at bar specifically considers the evidence with respect to Ms. Harnett’s drinking of alcohol before driving. Ms. Harnett testified that she consumed 5 alcoholic drinks, although she maintained she knew she was not drunk. She described herself as “bubbly and happy”. She stated that she was okay to drive, that she did not feel intoxicated. She finally agreed that the five drinks she consumed would have been too much, for her to drive late at night, but qualified that would be in normal circumstances. It was not clear what she meant by “normal circumstances” to justify driving with that amount of alcohol in her system, although the court did consider her evidence that she was in a state of fear, “fight or flight” mode, needing to leave the area. In terms of Ms. Haggar’s opinion of Ms. Harnett’s state, it is notable that Ms. Haggar stated to Ms. Harnett twice walking on the way from the residence to the car “you can stay, you are drunk”. She later begged Ms. Harnett not to drive, she did not want her to drive from her house drunk. She believed Ms. Harnett was drunk. Ms. Haggar testified that in the residence, Ms. Harnett acted drunk, she was acting distraught, accusing Ms. Haggar of doing things she was not doing. Ms. Haggar testified that Ms. Harnett was acting differently than when she is sober. Ms. Merrill stated that everyone was “buzzed” close to bedtime, she stated that all of them were drunk.

[140] But Ms. Harnett’s drinking of alcohol is not the only relevant additional factor for this court to consider regarding the offence of dangerous driving. The court also considers the element of fatigue. It is apparent that just prior to driving, Ms. Harnett and the other people were getting ready for bed. Ms. Harnett testified that she was “tired” before that point. Ms. Harnett then removed her bra, and put on a t-shirt. Ms. Harnett had driven all the way from Petawawa to Oshawa, then Oshawa to Toronto, earlier in the day. Earlier in the night, before leaving Ms. Haggar’s residence, she testified that she was tired and going to bed. After she left Ms. Haggar’s residence and was driving, she pulled off the highway to rest on the side of the road as she was “exhausted”. She was clearly tired.

[141] In considering whether the Crown has proven the offence of dangerous driving, this court is mindful of the principle that the consequences of the driving are not indicative of the offence of dangerous driving. The court bears in mind the principles in Beatty, and the subsequent comments of Trotter, J., as he then was, in the judgment of R. v. Karafa, 2014 ONSC 2901, at para. 124:

[124] The warning in Beatty about inferring dangerousness from consequences is especially important in this case. It would be very tempting to infer that the devastation must have been the result of dangerous driving. This is not a permissible line of reasoning.

[142] This court would note that observation as well in the case at bar, the fact that the complainant in this case sustained a broken foot, smashed ankle and broken leg should not drive the analysis to infer that it was caused by dangerous driving, and this court does not follow that prohibited inference in this case.

[143] The court considers as well the principles with respect to the consideration of evidence in this case. The court follows R. v. W.D., supra.. The court first considers the defence evidence. In this case, the court has noted above its reasons for not believing a large portion of the evidence of Ms. Harnett, where it is not corroborated by other evidence which is credible. The court would note as well that her evidence does not leave the court with a reasonable doubt, as to what happened in this case. After that consideration, the court must go on to consider, based upon all the evidence which the court accepts, and bearing in mind also the defence evidence, whether the Crown has proven Ms. Harnett’s guilt beyond a reasonable doubt, in relation to the two charges before the court.

[144] As noted above, the court does not believe the evidence of Ms. Harnett, where it is not corroborated by other credible evidence. The court specifically rejects her evidence that she was in some kind of “fight or flight” mode in needing to leave the residence immediately after being asked about her bra or prior to her assaulting Ms. Haggar, or that she was in a state of fear which caused her to drive away immediately. The court finds that for whatever reason Ms. Harnett was mad at Ms. Haggar, whether for being singled out for leaving her bra out in the open or some other unknown reason. Perhaps Ms. Harnett felt embarrassed for being pointed out for leaving out her bra. She responded to Ms. Haggar’s comments about her bra in the open, by pushing Ms. Haggar back into the residence, then pushing her down on the sofa, and then attacking Ms. Haggar getting on top of her and by pulling her hair. Ms. Harnett was not in fear for her personal safety. Ms. Harnett was angry or mad. She decided to leave the residence because she was mad. She left relatively quickly after she obtained some personal belongings, and was still angry as she approached and went inside her car. The court finds that Ms. Harnett heard the screams of Ms. Haggar and Ms. Merrill. Although she might have not heard Ms. Merrill because she was screaming from the rear of the vehicle, the court finds that she could hear enough of the screams of Ms. Haggar to realize that the car was on her foot. The court rejects Ms. Harnett’s evidence that she only heard profanities from Ms. Haggar. She heard a lot of what Ms. Haggar was saying, and tried to ignore her. She saw that Ms. Haggar was right beside her driver’s window, in the range of a foot away, and that she was turned facing her window. Although it was dark at that hour, there is no doubt that the street is well-lit and that Ms. Harnett’s vehicle was very close to a street light. She could see both Ms. Haggar at her driver’s window, and initially Ms. Merrill at the rear of her vehicle through the rear-view mirror. It appears, even on the evidence of Ms. Harnett, that after initially seeing Ms. Merrill right behind her car, she never looked again to see where she was located. While Ms. Harnett might not have been able to see that Ms. Haggar’s foot was on the ground close to the driver’s wheel, Ms. Haggar’s body was extremely close to the car and at risk of being in contact with the car as it moved. The court finds that Ms. Harnett did not look to see where Ms. Haggar was positioned as she turned left towards Ms. Haggar, then drove forward, and then drove away. In terms of the two pedestrians on the street, Ms. Haggar and Ms. Merrill, both had been drinking alcohol that afternoon and night, which could potentially affect balance and coordination. She also did not look to see the position of Ms. Merrill as she drove forward and then away. The two women outside the vehicle were yelling at her to get her to stop. They yelled that her vehicle was on Ms. Haggar’s foot. And in the face of those circumstances, Ms. Harnett, having consumed 5 alcoholic drinks and being tired, chose to drive her vehicle blindly ahead, driving over Ms. Haggar on the street. The court is not left in a reasonable doubt by her evidence.

[145] The court considers the evidence which it accepts, as noted above, from Ms. Haggar and Ms. Merrill (as it related to the driving incident).

[146] In relation to the dangerous driving cause bodily harm charge, the court asks itself two relevant questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances

[147] The court specifically finds and considers the following. A reasonable person would have foreseen the risk of having 5 alcoholic drinks over the afternoon and evening, and choosing to go outside and drive while tired, just before getting ready for bed, and later being so tired she had to stop at the side of the road to rest. A reasonable person would have chosen not to drive in an area where her two female friends were standing right close to her car, after they had been drinking alcohol over the same period of time with Ms. Harnett. It is trite to say that the balance of a person who described herself as drunk, would be potentially affected when standing near a vehicle, be it stopped or moving. A reasonable person would not have driven the car to move while the two women who had been drinking, were in the immediate vicinity, without ascertaining that they were out of the range of risk before driving. A reasonable person would have looked out of all of her mirrors before driving, an action Ms. Harnett admitted she did not do immediately before driving away. She testified she just looked straight ahead as she drove away, not anywhere else. A reasonable person would not have continued to drive after one woman was yelling about her foot, when the vehicle was on her foot, and left the scene. A reasonable person would have foreseen the risks of driving causing movement of the vehicle so close to these other two women on the street. A reasonable person would have avoided the risk by not driving in all of the circumstances. The risk of injury to either woman on the street was foreseeable and avoidable. She then drove at a speed described by Ms. Merrill as driving off “kind of fast”. In cross-examination Ms. Harnett agreed that since she was in “flight” mode she “peeled out” of the area. Ms. Haggar did not give any evidence regarding speed as she was on the ground and did not note what happened after the vehicle ran over her. The driving actions of Ms. Harnett, in the circumstances, are sufficient to demonstrate a clear pattern of disregard for safety of the two women standing near the vehicle that night and constitute a marked departure from the standard of a reasonably prudent driver in the circumstances. A reasonable person in the circumstances would have foreseen the obvious risks to Ms. Haggar and Ms. Merrill, standing near the vehicle, associated with the actions of accused. Ms. Harnett’s failure to foresee this risk and take steps to avoid it, by not driving from that area at that time, and choosing to drive as she did without proper lookout, was a marked departure from the standard of care to be expected of a reasonable person in her circumstances. The court has also considered specifically the evidence of Ms. Harnett as to her state of mind, her fear arising from Ms. Harnett having been banging on her driver’s side window. The court specifically considers whether a reasonable person in the position of Ms. Harnett, where Ms. Haggar had been banging on the window, and choosing to drive away would have been aware of the risk created by this conduct. There was no need for Ms. Harnett to drive her vehicle in that place at that time near two women standing on the street, who had been drinking alcohol. A reasonably prudent driver would have remained in the stationary position, in the safety of a locked vehicle with windows rolled up, while surrounded by the two women pedestrians outside the car, and would not have moved the car. The court does not have any reasonable doubt arising from a potential state of fear of a driver in a locked vehicle with all windows up, after a female friend had been banging on the window, potentially wanting to leave the area as a result. The court does not have a reasonable doubt arising from Ms. Haggar banging on the driver’s window. A reasonably prudent driver faced with Ms. Haggar banging the window, would not have chosen to drive or move the vehicle in all of the circumstances, and the court does not have a reasonable doubt in that regard. Further, this was not a case of simple negligence, or driving without due care and attention. It was a marked departure from the standard of care of a reasonably prudent driver in the circumstances to choose to drive ahead and to the left, in the immediate area where Ms. Haggar had been located, and proceed driving away “kind of fast”, or “peeling out” of the area.

[148] On all of the evidence accepted by this court, and in light of all of the evidence heard in this trial, the court finds that the Crown has proven beyond a reasonable doubt the guilt of Ms. Harnett on the dangerous driving cause bodily harm charge.

Fail to remain offence, where bodily harm resulted :

[149] The offence of fail to remain is set out in s. 320.16 of the Criminal Code , and where the offence relates to an accident with a person where bodily harm resulted, s. 320.16(2) as alleged in this case. This provision was the result of an amendment to the prior wording for this offence, which was revised at the same time the dangerous driving offence was revised, as set out above, in 2018, by C.21, s. 15, which received assent on June 21, 2018. It governs the allegations in this case, in 2020.

320.16 (1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance.

[Accident resulting in bodily harm]

(2) Everyone commits an offence who commits an offence under subsection (1) and who at the time of committing the offence knows that, or is reckless as to whether, the accident resulted in bodily harm to another person.

[150] The prior offence wording is relevant to the consideration of cases which have considered the prior offence.

• 252 (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with

  • (a) another person,

  • (b) a vehicle, vessel or aircraft, or

  • (c) in the case of a vehicle, cattle in the charge of another person,

and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

(1.1) Every person who commits an offence under subsection (1) in a case not referred to in subsection (1.2) or (1.3) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.

(1.2) Every person who commits an offence under subsection (1) knowing that bodily harm has been caused to another person involved in the accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.

• R.S., 1985, c. C-46, s. 252

• R.S., 1985, c. 27 (1st Supp.), s. 36

• 1994, c. 44, s. 12

• 1999, c. 32, s. 1(Preamble)

[151] One key distinguishing feature of the new offence is that it no longer requires “with intent to escape civil or criminal liability”. In the new provision, the offence requires a mental element which is “knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person…” as it relates to the allegations in this case. Also, the requirement of “fail to stop” is replaced with “fail, without reasonable excuse, to stop”. This is important to bear in mind when looking at the case law which related to charges under the former provision.

[152] In this particular case, it is important to bear in mind that there is no issue with respect to the fact that bodily harm was caused to the complainant in this case arising from Ms. Harnett driving her car over the complainant. Ms. Harnett did not stop, did not provide her name and address. The complainant was injured and required assistance, there is no issue in that regard in this case. There is no issue with respect to the matter of causation. The key issue in this case is whether Ms. Harnett was aware, or was reckless as to whether, her car had been involved in an accident with the complainant, at the time that she drove away from the scene. Accordingly the defence has also implicitly challenged the element of knowledge of Ms. Harnett that the complainant had sustained bodily harm. There is no issue with respect to the fact that she did not stop and offer assistance to the injured complainant. Pursuant to R. v. Roche, 1983 130 (SCC), [1983] 1 S.C.R. 491, the Crown need only prove the failure of one of the three obligations for the charge (fail to give one’s name, fail to give one’s address, fail to offer assistance). Accordingly the mens rea for this offence is a key issue in this trial. The defence has also argued that Ms. Harnett had a reasonable excuse for failing to remain at the scene.

[153] Related to the element of mens rea, and in particular whether the Crown has proven that Ms. Harnett had knowledge that, or was reckless as to whether, the accident resulted in bodily harm to the complainant, the court considers a number of cases. The parties have put before the court a number of cases dealing with this offence, and the court has reviewed additional case law.

[154] In the notable case on wilful blindness, of R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, the Court considered the defence of mistake of fact, in what was then a case of rape. The Court distinguished recklessness from wilful blindness as follows, at para. 22 :

Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry.

[155] In R. v. Doyon (CA Que.), [1994] JQ No. 334, the Court considered the former provision of fail to remain, and a statement from the appellant that he said he “heard a “boom” but that he did not stop. He thought he had hit a dog.” In that case, a 14 year-old girl struck by the motor vehicle died from multiple trauma. The Court, at para. 8, noted that the trial judge had concluded that the appellant could not remain insensitive to the suspicions which touched him without seeking further, to engage in simple research in order to find out the truth. The trial judge had followed the Sansregret case and the Court of Appeal upheld the conviction.

[156] Subsequently, in R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55, the Court considered the offence of knowingly selling obscene material, and stated at para. 102 and following:

…It is well established in criminal law that wilful blindness will also fulfil a mens rea requirement. If the retailer becomes aware of the need to make further inquiries about the nature of the videos he was selling yet deliberately chooses to ignore these indications and does not make any further inquiries, then the retailer can be nonetheless charged under s. 163(2)(a) for "knowingly" selling obscene materials. Deliberately choosing not to know something when given reason to believe further inquiry is necessary can satisfy the mental element of the offence.

103 A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge? Retailers who suspect that the materials are obscene but refrain from making the necessary inquiry in order to avoid being contaminated by knowledge may be found to have been wilfully blind. The determination must be made in light of all the circumstances. In Sansregret v. The Queen, 1985 79 (SCC), [1985] 1 S.C.R. 570, this Court held that the circumstances were not restricted to those immediately surrounding the particular offense but could be more broadly defined to encompass, for example, past events.

[emphasis added]

[157] The concept of “wilful blindness” has evolved into one which was been characterized as deliberate ignorance, see R. v. Duong, 1998 7124 (ON CA), [1998] O.J. No. 1681 (C.A.), at para 23, where Doherty, J.A. speaking for the court, stated:

These authorities make it clear that where the Crown proves the existence of a fact in issue and knowledge of that fact is a component of the fault requirement of the crime charged, wilful blindness as to the existence of that fact is sufficient to establish a culpable state of mind. Liability based on wilful blindness is subjective. Wilful blindness refers to a state of mind which is aptly described as "deliberate ignorance" (D. Stuart, Canadian Criminal Law, 3rd ed. (1995) at p. 209). Actual suspicion, combined with a conscious decision not to make inquiries which could confirm that suspicion, is equated in the eyes of the criminal law with actual knowledge. Both are subjective and both are sufficiently blameworthy to justify the imposition of criminal liability.”

[emphasis added]

[158] In R. v. Baker, [2006] O.J. No. 2329 (C.A.), the Court considered the previous provision relating to a collision involving a boat. A key issue related to the trial judge’s instructions to the jury related to knowledge of Mr. Baker as to whether he had been involved in an accident with another vessel, and knowledge that someone was injured or appeared in need of assistance. The Court acknowledged that the trier of fact cannot determine an accused’s state of mind, and must infer that state of mind from accepted facts. The Court condoned the trial judge’s use of the phrase of the accused having “good reason to believe”, related specifically to the accused’s state of mind. The mental element is not whether an objective person might have good reason to believe there had been an accident. The Court noted the overwhelming evidence to support the inference that the accused knew he had been involved in an accident with another boat, or had a real suspicion he had been so involved and chose not to make an inquiry. This court will not consider the element of intent to escape civil or criminal liability given that it is considering the new offence provision.

[159] In R. v. Kresko, [2013] O.J. No. 1523 (S.C.), the trial court considered various offences, including failure to remain at the scene of an accident, and stated :

214 Knowledge of the accident is an essential element of this offence; however, there is a role to be played by wilful blindness in the case of an accused who failed to turn his mind to the possibility of an accident in spite of awareness of the need for this inquiry.

[160] The court followed Duong. The court went on to state :

218 Thus, the Crown may prove the requisite intent by showing that the accused suspected the truth (that there was an accident involving another person or vehicle), knew that he should have inquired further, and deliberately refrained from doing so.

219 The issue of wilful blindness may also be relevant to the question of knowledge of the injury resulting from the accident. For the Crown to succeed on the charge of s. 252(l.2) of the Criminal Code, the Crown must also prove knowledge of bodily harm suffered. When the evidence is not sufficient to prove knowledge or recklessness as to whether death may result from the injuries under s. 252(1.3), the accused may still be convicted under s. 252(l.2) of the Criminal Code: see R. v. Avery, [2011] O.J. No. 2173, at paras. 76-77.

[161] Applying the law to the evidence and findings of fact in this case, this court would note that it has found that Ms. Harnett could hear the screaming of at least Ms. Haggar, and as well screaming with respect to the vehicle on her foot. While at one point in her evidence Ms. Harnett stated that she could only hear profanities from Ms. Haggar at that time, at another point she volunteered that Ms. Haggar was not asking her to get out of the car. Clearly, she would not have known that unless she could actually hear what Ms. Haggar was saying to her. The court has also found that Ms. Harnett turned her steering wheel to the left (the direction of the location where she had seen the complainant), and proceeded to drive ahead in that direction. A moment later, Ms. Haggar went down on the ground, out of sight of the driver’s window of Ms. Harnett’s vehicle. This court finds that Ms. Harnett knew the nature of the accident was such that Ms. Haggar, a woman who had been drinking with her throughout the night, had been very close to her vehicle, both at the driver’s door side, and at the front driver’s wheel of the vehicle. She had been screaming at Ms. Harnett about her foot. No investigation took place on the part of Ms. Harnett in response. Rather, she engaged in further driving to turn left in the direction of where Ms. Haggar had been standing. When Ms. Haggar went down on the ground, as a result of Ms. Harnett driving over her foot, Ms. Harnett made no enquiries. She would have realized that she was in an accident with Ms. Haggar. This court finds that she was wilfully blind, deliberately ignorant, of the fact that the car had been on the complainant’s foot, and then drove into that area where the complainant had been previously located, and fell down to the ground. She consciously, this court finds, chose to make no enquiries as to the nature of any injuries caused to Ms. Haggar resulting from her vehicle driving onto her foot, and then driving further ahead into that area when she went down on the ground. She chose to be deliberately ignorant of the resulting injuries to Ms. Harnett. Accordingly, this court specifically finds that Ms. Harnett had knowledge that, or was reckless as to whether, the accident resulted in bodily harm to the complainant. This court finds that any accident where a vehicle drives over a person could result in the bodily harm that actually resulted in this case.

[162] Another issue which arises in this case, relates to “reasonable excuse”. The offence is for failure to stop “without reasonable excuse”. Essentially the defence argument is that Ms. Harnett was in a state of “fight or flight”, arising from the time she left the residence. She felt she had to leave, immediately. Further, the defence position is that the actions of the complainant in banging on the driver’s window, when she urged Ms. Harnett to not drive because she had been drinking, caused a state of fear in Ms. Harnett. As a result, the defence submission essentially is that Ms. Harnett had to leave the scene right away as a result of that fear. The defence submission is also that Ms. Harnett suffers from PTSD, over the last 18 months or so of her life, arising from incidents when she was a child and was assaulted by her parents.

[163] As noted above, the court has rejected the evidence of Ms. Harnett that she was in a state of “fight or flight” response arising from leaving the residence and wanting to drive away in her car. The court has found that Ms. Harnett was mad, she was angry after Ms. Haggar spoke to her about the bra. Ms. Harnett responded to this, as noted above, by pushing Ms. Haggar backwards from the balcony, into the house. This caused Ms. Haggar to be moved from the doorway, back inside the residence. Ms. Harnett came in the residence. Ms. Harnett pushed Ms. Haggar backwards onto the couch, into a seated position. Then Ms. Harnett got on top of Ms. Haggar facing her. Ms. Harnett’s hands were on Ms. Haggar’s head, and she was pulling Ms. Haggar’s hair. Ms. Haggar did not want to fight with Ms. Harnett. She said “Bonnie, please get off of me, Bonnie please get off of me”. Ms. Haggar thought that Ms. Merrill was trying to assist by pulling Ms. Harnett off of Ms. Haggar. It was Ms. Harnett, if anyone, that was in an attack mode. No one assaulted Ms. Harnett. Ms. Harnett was the aggressor, and she was angry. Yes, she wanted to leave. But it was not out of fear, it was out of anger. As noted above, the court has found that she heard the screams of Ms. Haggar that the car was on her foot, and chose to drive away. Even when she saw that Ms. Haggar was no longer at her car window, even though she had been there immediately before, she looked no further to see where she had gone. She chose to continue driving, “peeling away”, or driving “kind of fast”. She did not look around to make any visual or other enquiries, and deliberately remained ignorant of what had happened to Ms. Haggar. She was not motivated by a state of fear. Even though Ms. Haggar had been banging on her driver’s window, Ms. Harnett was safely ensconced in her locked car with the windows up. She was at no risk of personal injury. She could have remained on the scene. The court rejects that Ms. Harnett left in a state of fear. There was no compelling reason for her to leave, this court would find. Likewise, she had no “reasonable excuse” for leaving the scene of an accident.

[164] This case is to be distinguished from the facts in R. v. Wells, 2020 ONCJ 294. In that case, the accused testified that after the collision with the complainant on his bicycle, the complainant punched him hard in the face, knocking off his glasses, injuring him. The complainant admitted that he had assaulted the accused and damaged his vehicle. In that case, the accused claimed he was afraid and therefore left the scene. In the case at bar, the court has found as a fact that Ms. Harnett was not assaulted, and was not acting in fear in leaving the scene. This court has also considered the case of R. v. D.(M.), 2007 BCPC 347; aff’d other grounds 2010 BCCA 162, where the accused was set upon by multiple assailants and suffered injuries. He was in a locked vehicle, and the assailants did not have weapons. He later drove on the sidewalk and hit one of the parties, after which he drove away from the scene.

[165] While the court has considered the evidence and finds that the complainant was banging on Ms. Harnett’s driver’s window to get her attention, to stop her from driving after drinking, the court specifically finds that Ms. Harnett did not drive away in fear. Rather she drove away in anger, a state of anger that had commenced when she was in the residence, and it remained in place throughout as she drove away. Accordingly the court finds that Ms. Harnett had no “reasonable excuse” for leaving the scene of the accident.

Conclusion :

[166] Accordingly, Ms. Harnett is found guilty of dangerous driving causing bodily harm, contrary to s. 320.13(2), and failure to remain at the scene of an accident where bodily harm was caused, contrary to s. 320.16(2).

Released:

February 18, 2022

Signed: Justice Beverly A. Brown