COURT FILE AND PARTIES

COURT FILE NO.: CR-11-80 (Milton)
DATE: 2012-09-18
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Austin Elson

BEFORE: Ricchetti, J.

COUNSEL:
L. Jago, for the Crown
J. Navarrete, for the Accused

HEARD: September 10 and 11, 2012

REASONS FOR JUDGMENT

[ 1 ] Mr. Elson is charged with:

a) Failing to stop at an accident ( s. 252 of the Criminal Code , R.S.C. 1985, c.C-46 (the Code) );

b) Criminal negligence in the operation of a vehicle causing bodily harm ( s. 221 of the Code );

c) Dangerous driving causing bodily harm ( s. 249(3) of the Code ).

[ 2 ] The trial was heard on September 10 and 11, 2012.

[ 3 ] At the commencement of trial, Counsel agreed that the following was admissible evidence at trial without further proof:

a) The evidence at the Preliminary Hearing which took place on March 21 and March 22, 2011 (Exhibit 1 and 2);

b) The evidence given by Mr. Elson to Constable Buys as set out in the transcript of the videotaped statement of June 18, 2010 (Exhibit 3);

c) The evidence at the Preliminary Hearing which took place on June 13, 2011 (Exhibit 4);

d) The Crown's Synopsis (Exhibit 5); and

e) Hand drawn map (Exhibit 6).

[ 4 ] Counsel agreed on the following facts without further proof:

a) Ms. Nancy Gallone suffered the following injuries in the collision with Mr. Elson's vehicle:

• Cracked ribs;

• Spleen removed;

• Collapsed lung;

• Broken collarbone; and

• Cuts to her head and foot.

b) Ms. Nancy Gallone required physiotherapy. She was unable to work for a period of time and suffered a loss of mobility and independence.

c) Mr. James Hays suffered some injuries which included an air bag burn and bruising.

[ 5 ] The Defence admitted the Crown has established the actus reus of the offences beyond a reasonable doubt.

[ 6 ] The Defence takes no issue that bodily harm ensued from Mr. Elson's driving.

[ 7 ] The only issue is whether the Crown had established the necessary mens rea of the offences.

[ 8 ] The Crown called no further evidence.

[ 9 ] The Defence called Mr. Elson and, an expert, Dr. Jerald Bain.

The Facts

[ 10 ] Mr. Elson was 62 years old at the time of the accident.

[ 11 ] Mr. Elson has been a diabetic since 1977. He has been and is aware of hypoglycaemia - low blood sugar level. Mr. Elson controls his medical condition through the use of insulin and diet.

[ 12 ] Mr. Elson was and is aware that a low blood sugar level could put him in a dangerous position if the blood sugar level got too low. As a result, if his measured blood sugar level is low or he starts to feel his blood sugar level becoming low, he eats or drinks something to increase his blood sugar level.

[ 13 ] Mr. Elson has been driving for more than 40 years.

[ 14 ] Mr. Elson works at Bacardi Rum in Brampton. Mr. Elson lives in Brampton. The drive home usually takes some 15 to 20 minutes.

[ 15 ] On May 27 th , 2010, Mr. Elson, after completing his shift at Bacardi Rum, left for home at approximately 3:40 p.m.

[ 16 ] I am not persuaded work on this day involved any more physical exertion than normal for Mr. Elson or that the changeover (meaning the filling line is stopped and retrofitted for resumption for filling another type of product) is relevant to the issues to be decided in this case. There was a changeover on May 27, 2010. However, this was not unusual as Mr. Elson testified a changeover is only a "little" more physically demanding and changeovers occur as often as several times a day or as little as once every 2-3 days.

[ 17 ] Mr. Elson got into his vehicle to drive home. He was feeling normal when he did so.

[ 18 ] At some point during the drive home, Mr. Elson felt his blood sugar level become low. He decided, while continuing to drive, to eat a Nature bar and ½ a bun leftover from lunch. Mr. Elson decided not to pull over of stop his vehicle despite knowing that it usually takes "within 5 minutes" to feel better after eating a Nature bar and longer for food like a sandwich. Clearly, Mr. Elson knew that he would be continuing to drive for some time while his blood sugar level remained low.

[ 19 ] I reject Mr. Elson's evidence that he couldn't pull over and stop his vehicle until his blood sugar returned to normal level because of traffic. Mr. Elson made a conscious decision to keep driving as he had done on prior occasions. I say a conscious decision because Mr. Elson was:

• sufficiently aware that his blood sugar had become low,

• sufficiently aware of the heavy traffic he was in,

• sufficiently aware to realize he needed to eat something,

• sufficiently aware to reach over, grab, unwrap and eat a Nature bar,

• sufficiently aware to reach over and eat ½ a bun,

• sufficiently aware that he had missed his turn towards home on Queen St., and

• sufficiently aware that he had missed his second turn towards home.

[ 20 ] Mr. Elson did not testify that he was too disoriented during the time he did the above actions to know what he was doing. As a result, the evidence leaves me with no reasonable doubt that, for a period of time after Mr. Elson was aware his blood sugar level had become low, he nevertheless made a conscious decision to continue to drive.

[ 21 ] Mr. Elson admitted he did not wait for the food he had eaten to take effect but instead kept driving. He said he might have given thought to pulling over. He told Constable Buys he thought "Even if I started [to] feel too low I could, you know, make it home no problem." Mr. Elson made this decision to continue driving, despite acknowledging that, if blood sugar levels become too low, it is worse that drunk driving. He may have believed he could make it home safely and may have done so in the past, but continuing to do this with a known low blood sugar level, was a conscious decision and a know risk at the time.

[ 22 ] Mr. Elson continued to drive. It is not clear when, but certainly it was after he missed his second turn towards home, he became disoriented and "blacked out." He is not sure what happened until he was awakened by the EMS attendants.

[ 23 ] Mr. Elson had driven to Georgetown while in this disoriented and confused state.

[ 24 ] Other evidence shows what occurred during Mr. Elson's drive to Georgetown.

[ 25 ] Ms. S. Murnaghan approached John St. and Mountainview. This is a four way stop sign intersection. Mr. Elson, was travelling on John Street “quickly,” went through the stop sign and slammed on his brakes as he entered the intersection. Half way through the intersection Mr. Elson turned sharply to the right onto Mountainview Road, narrowly missing a vehicle stopped waiting to make a left turn. Fortunately, no accident occurred at this intersection.

[ 26 ] Ms. S. Murnaghan was able to make further observations of Mr. Elson's vehicle. Both vehicles continued along Mountainview Road to the next intersection, Maple St. This is a very busy intersection with traffic lights. Ms. Murnaghan's vehicle stopped at the red light. When the lights turned green, Ms. Murnaghan was about to go when Mr. Elson’s vehicle went through the intersection at “high speed,” skidded halfway through the intersection and turned sharply to the right. Mr. Elson's vehicle collided with Ms. Meadus’ vehicle, which had been stopped on Maple Avenue waiting to make a left hand turn. Ms. Meadus suffered a whiplash type injury to her neck and her back resulting in her being off work for a period of time.

[ 27 ] After hitting Ms. Meadus' vehicle, Mr. Elson put his vehicle into reverse, backed up a few feet and drove away down Maple Avenue quickly.

[ 28 ] Mr. Pettitt also observed Mr. Elson hitting Ms. Meadus' vehicle. He called 911 when Mr. Elson drove away. Ms. Meadus decided to follow Mr. Elson’s vehicle to get a license plate number. Mr. Pettitt observed Mr. Elson's vehicle, as it drove away, pass another vehicle by swerving around it, possibly by going over a median.

[ 29 ] Ms. Tiesma was sitting on her balcony and observed the same accident involving Ms. Meadus.

[ 30 ] Mr. Elson's vehicle hit Ms. Gallone's vehicle at Mapleview and Guelph causing a number of other serious accidents. As Ms. Meadus described the scene: she saw “carnage everywhere.” There were 5 or 6 vehicles involved in the accident. Mr. Elson's vehicle was on the grass.

[ 31 ] Mr. Elson appeared, to one of the police officers at the accident scene, to know what was going on but was a bit disoriented.

[ 32 ] Mr. Elson was trapped for about 15 minutes in his vehicle before being freed by the EMS workers. One of the EMS workers saw something, like crumbs on his lap or the seat of the vehicle. Mr. Elson said to one of the EMS workers: “I think my sugar was low and I had a snack, I think.” Mr. Elson had no idea how he had gotten to Georgetown.

[ 33 ] Mr. Elson was given oxygen and several tests were conducted. Because Mr. Elson was pale, warm to the touch and sweaty, one of the EMS workers tested his glucose level and found it to be – 4.1 millimoles per litre. This reading is borderline “of being on the low side in the normal range." The EMS' consider any reading between 4 – 7 as a normal blood sugar level reading not requiring administration of any medication. By the end of the testing, Mr. Elson’s alertness level returned to normal.

The Issue

[ 34 ] The Defence relies on Chief Justice McLaughlin's statements in R. v. Creighton 1993 SCC 61 , [1993] 3 S.C.R. 3 (at paras. 144 -145 ) in this case.

The next question is whether the mens rea is established. As is the case with crimes of subjective mens rea , the mens rea for objective foresight of risking harm is normally inferred from the facts. The standard is that of the reasonable person in the circumstances of the accused. If a person has committed a manifestly dangerous act, it is reasonable, absent indications to the contrary, to infer that he or she failed to direct his or her mind to the risk and the need to take care. However, the normal inference may be negated by evidence raising a reasonable doubt as to lack of capacity to appreciate the risk. Thus, if a prima facie case for actus reus and mens rea is made out, * * it is necessary to ask a further question: did the accused possess the requisite capacity to appreciate the risk flowing from his conduct? If this further question is answered in the affirmative, the necessary moral fault is established and the accused is properly convicted. If not, the accused must be acquitted.

(emphasis added)

[ 35 ] To put the question in this case, using Chief Justice McLaughlin's words: Did Mr. Elson appreciate the risk of continuing to drive after he felt his blood sugar low become low?

[ 36 ] The Defence submits that Mr. Elson was disoriented and confused when his blood sugar level became low and was at that time too disoriented or confused to know that continuing to drive would at risk the lives and safety of the public.

Analysis

[ 37 ] According to the expert, Dr. Bain, Mr. Elson has 3 to 4 low blood sugar level events a year. Mr. Elson is generally aware of impending low blood sugar level episodes. When Mr. Elson eats something "he would feel better within 5 minutes."

[ 38 ] About 20 years ago, Mr. Elson had a very serious low blood sugar level reaction. He left the operations line at work, became confused and disoriented. At some point he blacked out, fell and seriously injured himself, resulting in a hospital stay of one week. Mr. Elson said it was one of those things that could happen anytime.

Mr. Elson's low blood sugar level and driving

[ 39 ] Mr. Elson admits that his blood sugar level has become low while driving in the past. This has occurred some three or four times. On one occasion Mr. Elson was able to complete his drive home without out any food. On the other occasions, he was able to eat or drink something in the vehicle to raise his blood sugar level. On one occasion he may have stopped his vehicle. In each case, no accident occurred. However, that does not mean that Mr. Elson did not, on each of those occasions, place the lives and safety of the public at risk. It simply means there were no consequences on those occasions.

[ 40 ] Mr. Elson admitted that, when he feels his blood sugar become low while driving, he could have something to eat or to pull over. He acknowledged that eating the food would take time for his blood sugar level to return to normal. He can "feel it get better."

[ 41 ] Mr. Elson admitted he has never gotten into his vehicle when he felt his blood sugar level was low. Mr. Elson obviously knows the danger that a low blood sugar level causes that he understands not to drive in that condition. He admitted he should not drive when his blood sugar level is low and, if you are driving, you "probably shouldn't continue to drive."

Mr. Elson's low blood sugar level and working

[ 42 ] Mr. Elson admitted that when he has low blood sugar level at work , he stops working, takes a few minutes off the line, eats some food and waits for the food to take effect - raise his blood sugar level.

Mr. Elson's low blood sugar level and home

[ 43 ] At home , Mr. Elson would sit and eat something when he felt his blood sugar level was low. He would do this until he felt better.

Expert evidence on how quickly symptoms like disorientation arise

[ 44 ] Dr. Bain was asked how quickly the symptoms (which include sweating, disorientation, palpitations, tremors, loss of consciousness etc.) of low blood sugar levels could arise. He responded it varied on the person and circumstances. When pressed as to how quickly the symptoms could arise after a feeling of low blood sugar level, Dr. Bain responded "minutes." Dr. Bain stated that it normally takes between 5-15 minutes to raise blood sugar levels. Clearly, "minutes" would give a diabetic driver plenty of time to pull over or, if necessary, to simply stop his or her vehicle if he felt his blood sugar level become low. Dr. Bains evidence is particularly on point - if a diabetic is driving and they start to feel their blood sugar level is low, they should pull over or stop, eat something and not resume driving until the food "kicks in" or the symptoms disappear.

[ 45 ] Even Dr. Bain would not suggest that a diabetic could immediately and without warning go into a disoriented or confused state without the prior feeling of low blood sugar level. This opinion is consistent with the evidence of Mr. Elson that he was aware of his low blood sugar level, the need for food, the surrounding traffic and the two missed turns before he lapsed into disorientation and loss of memory.

The Evidence of Dr. Bain

[ 46 ] There is no doubt Dr. Bain is a qualified expert to give evidence with respect to diabetes and the effects of diabetes. His knowledge of the area is unquestionable. I do not accept his evidence on Mr. Elson's condition on the day in question. With respect to Dr. Bain, I reject his opinion because of the following reasons:

a) Dr. Bain's first opinion was given on January 23, 2012. He had not seen Mr. Elson by that time. While he was given some materials by the Crown, he could not recall having reviewed Mr. Elson's statement to Constable Buys - a crucial piece of information in determining Mr. Elson's condition on the date and time in question. Dr. Bain really had little or no information on the timing of the feeling of a low blood sugar level and the accident - a crucial piece of information regarding the timing and extent of the low blood sugar levels. Dr. Bain made some assumptions that were simply not supportable - a witness saw Mr. Elson wipe his hand through his hair from which Dr. Bain concluded Mr. Elson must have been sweating due to a low blood sugar level. Dr. Bain's first report concludes that Mr. Elson suffered "diabetic shock" during the accident but it fails to answer the only significant issue in this case, which is the awareness or ability to appreciate the risk Mr. Elson was taking when he felt the blood sugar level become low while driving NOT whether he was in "diabetic shock" at the time of the accident, some 40-50 minutes later;

b) Dr. Bain's second opinion is set out in his letter of July 23, 2012. By this time he had interviewed Mr. Elson and had more information. Dr. Bain concluded that "Sometime after 3:30 p.m. on the day of the accident, while driving his car, Mr. Elson developed symptoms characteristic of a low blood sugar level reaction. The symptoms ultimately dissipated after eating…." All of this is uncontroversial. The symptoms did arise sometime after Mr. Elson started to drive. The symptoms were gone by the time the EMS workers arrived. Dr. Bain's conclusion was that the low blood sugar level episode "came quickly and unannounced". If Dr. Bain is referring to the moment Mr. Elson felt his blood sugar level become low, then his evidence is inconsistent with Mr. Elson's evidence that he became aware of his sugar low and for sometime afterwards was aware of his surroundings, ate something, thought about pulling over and was aware he had missed his turns. If Dr. Bain is referring to the onset of the symptoms arising sometime after the second missed turn, perhaps "minutes" after Mr. Elson felt his blood sugar level become low, then it is consistent with Mr. Elson's evidence but does not assist in the issue this court must decide.

[ 47 ] At trial, both counsel focused many of their questions on the timing of when the symptoms of low blood sugar levels would arise and the timing of such symptoms with the onset of the awareness of a low blood sugar level. When focused in this fashion, Dr. Bain's evidence was fatal to Mr. Elson's defence:

a) Assuming that the low blood sugar level symptoms came on very rapidly , there would have been at least "minutes" between the awareness of the low blood sugar level and the low blood sugar levels symptoms; and

b) When a diabetic becomes aware of his low blood sugar level when driving, the diabetic should immediately pull over or stop driving and not resume driving until the diabetic has eaten something and has returned to normal.

The crux of the Defence

[ 48 ] The Defence admitted the crux of the defence was that Mr. Elson was so disoriented and confused he could not appreciate or was not aware of the risk he was taking by not pulling his vehicle over or stop. Unfortunately, the evidence of Mr. Elson and Dr. Bain do not support this defence. The confusion and disorientation occurred, at the earliest, minutes after Mr. Elson felt his blood sugar level had become low giving him ample time, while being aware, to either pull his vehicle over or stop. The only evidence is that, for a period of time, Mr. Elson was conscious and aware after his blood sugar level had become low, the same period he chose to continue to drive. I am also satisfied beyond a reasonable doubt that, when Mr. Elson decided to continue to drive home knowing his blood sugar level was low, he was aware he was placing the safety of the public in jeopardy. The defence evidence does not leave me with a reasonable doubt on this issue.

Count #1 Failing to Stop

[ 49 ] The Crown candidly and fairly acknowledged that the specific intent required - to escape civil or criminal liability- was not established on the evidence. I agree. The evidence suggests that by the time the accident with Ms. Meadus occurred, Mr. Elson was disoriented or confused due to low blood sugar levels.

[ 50 ] There will be a finding of Not Guilty on Count #1.

Count #2 Criminal Negligence

[ 51 ] The Crown must establish that Mr. Elson showed a wanton or reckless disregard for the lives or safety of others. Mr. Elson's conduct must be more than just carelessness, it must be a marked and substantial departure from what a reasonably prudent person would have done in the same circumstances.

[ 52 ] Essentially, the question in this case was whether Mr. Elson was aware of the danger or risk to the lives or safety of others by continuing to operate his vehicle after he felt his blood sugar level had become low.

[ 53 ] In this case, I am satisfied, beyond a reasonable doubt, Mr. Elson was aware of the danger or risk to the lives and safety of others and was reckless when he decided to continue driving after he felt the onset of a low blood sugar level:

a) By his own evidence he was aware of his low blood sugar level while driving;

b) Dr. Bain's evidence confirms that low blood sugar levels symptoms do not arise for several minutes after becoming aware of a low blood sugar level;

c) By Mr. Elson's own evidence he knew he should not continue to drive when he had a low blood sugar level and even thought about pulling over; and

d) Mr. Elson had had many prior experiences with low blood sugar and that, at least on one occasion, it resulted in him blacking out and causing serious harm to himself. Mr. Elson knew not to continue activities at home or continue to work with a low blood sugar level. He knew he shouldn’t get into a vehicle to drive or to continue to drive when his blood sugar level was low;

[ 54 ] There will be a finding of guilt on Count #2.

Count #3 Dangerous Driving

[ 55 ] As recently set out by the Supreme Court of Canada in R. v. Roy 2012 SCC 26 , the mens rea component of dangerous driving requires that a degree of fault as follows:

• the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in all the circumstances. The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances.

[ 56 ] Without repeating what was said above, for the same reasons Mr. Elson was aware that the risk he undertook by continuing to drive is well below the standard of care expected of a reasonably prudent driver in the circumstances.

[ 57 ] There will be a finding of guilt on Count #3.

Ricchetti J.

Date: September 18, 2012

COURT FILE NO.: CR-11-80 (Milton)

DATE: 2012-09-18

SUPERIOR COURT OF JUSTICE - ONTARIO RE: Her Majesty the Queen v. Austin Elson BEFORE: Ricchetti J. COUNSEL: L. Jago, for the Crown J. Navarrete, for the Accused ENDORSEMENT Ricchetti J.

DATE: September 18, 2012