ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
MILTON COURT FILE NO.: 49/12
DATE: 20121004
B E T W E E N:
HER MAJESTY THE QUEEN
KELLI FREW , for the Respondent/Crown
Respondent
- and -
PETER HOLLYOAKE
VOLGA BALKOVA PANKOU , for the Appellant
Appellant
HEARD: September 12, 2012
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable
Justice A. Zuraw, dated March 1, 2012]
DURNO, J.
[ 1 ] The appellant was convicted of dangerous operation as a result of his driving after he was stopped for speeding by a police officer. He appeals contending the verdict was unreasonable and the reasons for judgment deficient. For the following reasons, the appeal is allowed, the conviction quashed and a new trial ordered.
The Evidence
[ 2 ] The investigating officer, Constable Jon Williams, testified he was operating radar when the appellant’s car went by travelling 73 kilometres per hour (k/hr) in a posted 50 k/hr zone. He drove after the appellant for 450 metres with his lights and siren activated. The appellant stopped in the curb lane of the four lane road and the officer stopped behind him. The appellant got out of his car and walked back to the cruiser. When the appellant got to within about eight feet of the cruiser, the officer told him to get back into his vehicle. The appellant said, “I’ve lost my fucking phone. I’m leaving.”
[ 3 ] When the officer told him he was not leaving because he had been speeding, the appellant said, “Fuck you.” Constable Williams then moved his cruiser in front of the appellant’s vehicle in the curb lane. The appellant returned to his car and started to back up, all the while shouting obscenities out of his fully opened window. The officer got out of his cruiser, shut the door, stood in the passing lane with his cruiser to his left, extended his arm and shouted for the appellant to stop.
[ 4 ] After reversing for 30 metres, the appellant shouted, “Fuck you” out his open window, moved to the passing lane and began to drive towards the officer going about 20 to 30 kilometres an hour. P.C. Williams, believing he had no other options, drew his gun and aimed at the appellant’s face, screaming, “Stop or I will shoot.” After driving directly at the officer for about 20 metres over “a matter of seconds,” the appellant stopped. The officer arrested the appellant after he continued to shout and argue with the officer.
[ 5 ] The appellant testified that he was speeding back to a variety store after apparently leaving his cell phone at the store. When the officer pulled him over, he got out of his car and walked towards the cruiser because his window was broken and would not go down. He believed officers would get upset if a driver opened their door when the officer was standing at the door. He admitted the officer had him “dead to rights speeding” but he just wanted to retrieve his cell phone. When he approached the officer, P.C. Williams’ first words were to get back in the “fucking car.” When the appellant went to walk around the cruiser to give the officer his documents through the passenger’s window the officer asked, “Are you fucking hard of hearing? I told you to get back in your fucking car, asshole.”
[ 6 ] The appellant told the officer he wanted to drive to the variety store to get his cell phone and the officer could follow him. The officer said, “You’re not going anywhere” and pulled his cruiser diagonally across parts of both lanes of traffic in front of the appellant’s vehicle. The appellant reversed very slowly with the intention of going around the cruiser slowly and proceeding to the variety store with the officer following him.
[ 7 ] The appellant said Constable Williams jumped out of the car, pulled out his gun and ordered him to stop. The appellant complied. He denied ever leaving the curb lane or driving at 20 k/hr. Rather, as he started to turn out from the curb lane the gun was drawn and he stopped right away. The car was on a hill and rolled back to the curb lane where he turned the motor off because the officer was pointing a gun at him. When the appellant got out of his car, the appellant and the officer “got into it pretty good” verbally.
[ 8 ] The appellant disagreed with where the officer said he was standing. When P.C. Williams got out of the cruiser, he was standing at the rear of his cruiser, not beside it. To strike the officer he would have had to make a 90 degree turn and then another 90 degree turn, practically over the two lanes of traffic going in the opposite direction. There was absolutely no possibility he would have hit the officer because he had to go around the cruiser he was standing behind.
The Submissions
[ 9 ] Given the Crown’s submission that with an examination of the exchanges between the trial judge and both counsel the reasons become more meaningful and that both counsel rely on the exchanges, I will briefly examine that portion of the transcript.
[ 10 ] During submissions both counsel noted His Honour was going to have to apply R. v. W.(D.) , (1991), 63 C.C.C. (3d) 397 (S.C.C.) and make credibility findings.
[ 11 ] In the course of submissions, His Honour questioned whether dangerous driving was the appropriate charge as obstructing a police officer was obvious. His Honour had never seen this charge laid in this kind of situation, to him it was a “little novel.” The trial judge questioned whether not coming closer than 10 metres of the officer was dangerous driving and whether the officer’s evidence that the appellant drove two car lengths and had the vehicle up to 20 k/hr made any sense. It made no sense to him. His Honour questioned the effect of the officer stepping into the appellant’s lane. His Honour continued at the end of submissions and right before adjourning the case:
I find myself trying to look at a set of facts and seeing the extent that they can be twisted or interpreted, depending on how you look at it, to meet the test, if it does, of dangerous driving as opposed to other offences that are obvious. I’m – in backing up for some metres and then pulling out in an intent – with the intent of leaving the scene and not permitting the officer to conduct his investigation, and do what he’s required to do, that in itself is not proof of dangerous driving. There’s no indication of any driving that is out of the ordinary, unless and until we consider the point at which the officer gets into the lane with his drawn pistol, and within what has to be a fractional period of time the accused stops, and does so in a way that he’s 10 metres from the officer. So, on the basis of the driving itself being dangerous, I’m having a significant amount of trouble. The problem is that the driving is more than foreseeable as far as giving rise to danger. The question is whether or not the dangerous driving section was meant to cover that. The, the accused had to know that there would be an onus on the officer to stop him. It is the law in Ontario that you can’t just leave the scene when an officer is investigating and you’ve been required to stop. I don’t have the answer to it, so I have to think about it.
The Reasons for Judgment
[ 12 ] Unfortunately, the first date both counsel and His Honour were available for the judgment was about two and one half months after the evidence and submissions were heard. The Reasons for Judgment start with the wording of the charge, note the appellant plead not guilty and “the Crown and defence both called evidence.” The judgment continued:
On the evidence, I find that the accused was driving at a speed of 73 kilometers an hour in a posted 50 kilometer per hour zone. Constable John Williams, who was on duty in full uniform, captured this speed while operating radar in the area where the accused was driving. The officer followed the accused and had him pull over, and the accused, who had a passenger in his vehicle, stopped, but apparently upset at having left his cell phone at an earlier location refused to be cooperative. He was abusive to the officer using a foul language and told the officer in no uncertain terms that he was leaving. The officer had blocked the accused vehicle from going forward and so the accused backed his vehicle up and then moved forward with the obvious intention of driving around the police vehicle and leaving the scene. Now, the officer, obviously agitated, himself, got out of his vehicle with his gun drawn and ordered the accused to stop. The accused drove towards the officer, perhaps for a couple of car lengths at the most, and then stopped. It is clear on the evidence that the accused was agitated and hostile. His frustration led him to take actions which were dangerous. His attempt to leave the scene while the accused ( sic ) was investigating an offence involving this accused as the culprit, when directed to remain, led to the officer taking the very steps that he took, this occasion, a very dangerous set of circumstances.
Accordingly, I find that the accused’s driving actions in reversing his vehicle and driving towards the officer, with all that it entailed, were dangerous to the public, and accordingly, I find the accused guilty.
Was the verdict unreasonable?
The Law
[ 13 ] When considering unreasonable verdict grounds of appeal, an appellate court is not entitled to re-try the case and substitute its view of the evidence. Rather, the court must thoroughly re-examine and to an extent at least, reweigh and consider the effect of the evidence: R. v. W.(R.) (1992), 74 C.C.C. (3d) 134 (S.C.C.). The test is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris (2000), 2000 SCC 15 , 143 C.C.C. (3d) 1 (S.C.C.). The question is not whether it was the only reasonable verdict, but whether it was a reasonable verdict: R. v. Portillo (2003), 2003 5709 (ON CA) , 176 C.C.C. (3d) 467 (Ont. C.A.).
[ 14 ] Dangerous driving has most recently been defined by the Supreme Court of Canada in R. v. Roy 2012 SCC 26 at para. 28 as follows:
In Beatty , the majority of the Court spoke through the reasons of Charron J. which of course are the authoritative statement of the relevant principles. In brief, the Court decided as follows. The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place ( s. 249(1) ( a ) of the Criminal Code ). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances ( Beatty , at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). (Emphasis in original)
Analysis
[ 15 ] I am not persuaded the verdict was unreasonable. On the officer’s testimony there was some evidence upon which a properly instructed jury acting reasonably could convict. The officer said that as he was standing in the passing lane while his cruiser was completely in the curb lane. The appellant was driving directly at him at 20 k/hr and travelled 20 metres before stopping. Had the appellant not stopped when P.C. Williams drew his gun and pointed it at the appellant’s head threatening to shoot, the appellant would have either struck the officer or come very close to doing so. If these facts were established there was evidence upon which a verdict of guilt could be based because the appellant was driving his car directly at an officer ordering him to stop, albeit at a low rate of speed but a speed that created a danger for the officer.
Were the Reasons Adequate?
The Law
[ 16 ] Trial judges' reasons are not held to some abstract standard of perfection. It is neither expected nor required that the reasons provide the equivalent of a jury instruction. R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869 . That the trial judge did not refer to each and every issue raised by the defence is not fatal to the conviction. Nor does a trial judge err by not addressing every factual conflict in the evidence. R. v. Drabinsky , 2011 ONCA 582 .
[ 17 ] Reasons for judgment in criminal cases serve three main functions. First, reasons tell the accused, the Crown and the complainant(s) why the decision was made. They permit the parties to know the judge has heard and considered their arguments and that he or she has not taken into consideration any extraneous matters. Second, reasons provide public accountability of the judicial decision. Third, reasons permit effective appellate review. R. v. R.E.M. , 2008 SCC 51 at para. 11 .
[ 18 ] In R.E.M. , Chief Justice McLachlin addressed the requirement that reasons tell the parties why a decision was made and permit effective appellate review as follows:
These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey , [1995] O.J. No. 639, predates the decision of this Court establishing a duty to give reasons in Sheppard . But the description in Morrissey of the object of a trial judge's reasons is apt. Doherty J.A. in Morrissey , at p. 525, puts it this way: "In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision" (emphasis added). What is required is a logical connection between the "what" - the verdict - and the "why" - the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.
Explaining the "why" and its logical link to the "what" does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict. Doherty J.A. in Morrissey , at p. 525, states:
A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict . (emphasis added in original)
Analysis
[ 19 ] The Crown’s factum notes the trial judge essentially resolved contested facts in favour of the appellant. In effect, by doing so, The Crown argued there was no need to address credibility. I disagree. His Honour’s findings of fact are an amalgam of the conflicting evidence. The trial judge found the officer got out of his car with his gun drawn. The officer said he did not draw it until he was in the middle of the passing lane and the appellant would not stop when ordered to do so. It was at that time, P.C. Williams drew the gun. The appellant said P.C. Williams “jumped out of the car and he had – at that point when he had pulled his gun out – and he was ordering me to stop, which I did”. The trial judge’s findings appear to be closer but not exactly what the appellant said.
[ 20 ] The trial judge apparently accepted the officer’s evidence that it was the appellant who was belligerent, yelling and swearing. He does not mention the content of the appellant’s evidence at all so never addressed the appellant’s accusations regarding the officer’s conduct from the outset and throughout the incident. Nor did he address whether the appellant could have been yelling though an open window he testified could not be opened.
[ 21 ] Of greatest significance in light of the Crown’s position, His Honour found the appellant drove towards the officer for about two car lengths. The appellant testified he never drove at the officer and could not have struck him without making two ninety degree turns. The officer was not beside his vehicle, he was behind it. The appellant said he backed up and was starting to turn when the officer got out. The trial judge found the gravamen of the offence was backing up and driving at the officer. That is not accepting the appellant’s evidence that conflicted with the officer.
[ 22 ] The appellant testified the officer’s car was parked diagonally across parts of the two lanes so that striking the officer was not possible without two ninety degree turns. The trial judge never addressed where the cruiser was parked which impacted on whether the officer was beside or behind his cruiser.
[ 23 ] The Reasons reflect what His Honour found but fail to explain why he made the findings he did. There is no explanation why he rejected key aspects of the appellant’s evidence and no explanation on what basis he reached his conclusions where there was conflicting evidence. In addition, His Honour found several aspects of the case troubling during submissions, yet never mentioned how he resolved them during the reasons.
[ 24 ] In the Crown factum, the respondent asserts the trial judge set out his findings at the end of counsels’ submissions as noted at para. 13 above. While I am far from persuaded the comments could amount to findings of fact, assuming they do, there is no explanation why the conclusory findings were reached. Those comments suffer from the same problem as the reasons: there is no explanation why His Honour made the findings of fact he did and no analysis of the legal issues he found troubling during submissions.
[ 25 ] I am persuaded the reasons are deficient because they do not address why the trial judge reached the conclusions he did. Examining the submissions and the exchanges between His Honour and counsel does not assist in attempting to discern the requisite “why.” They fail to permit effective appellate review or explain to the parties why the conclusions were reached.
Conclusion
[ 26 ] The appeal is allowed and a new trial ordered. The appellant is ordered to appear in the Ontario Court of Justice at 491 Steeles Ave. East, Milton, on October 30, 2012 at 9 a.m. in Court #9 to set a new trial date.
Durno J.
Released: October 4, 2012
MILTON COURT FILE NO.: 49/12
DATE: 20121004
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: Her Majesty the Queen Respondent - and – Peter Hollyoake Appellant REASONS FOR JUDGMENT [On appeal from the judgment of the Honourable Justice A. Zuraw, dated March 1, 2012] Durno J.
Released: October 4, 2012