COURT FILE NO.: CR-12-2123-00

DATE: 20131204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

WILSON AKUAMOAH-BOATENG

Appellant

SCOTT LATIMER, for the Respondent/Crown

JAMES SILVER, for the Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable M.F. Khoorshed,

dated July 30, 2012]

DURNO J.

1. The appellant was driving home after visiting a friend when his car struck the median and two signs in the construction area around the intersection, went through a red light and continued on. There was conflicting evidence whether he went through two further red lights. He drove home and was later arrested for dangerous operation and failing to remain at the scene of an accident after a police officer went to his home and the appellant took him to his damaged car.

2. At his trial on a count of dangerous operation, the appellant testified and admitted that because of his work schedule he knew he was exhausted when he was driving but believed he was alright to drive.

3. The trial judge found the pattern of driving was dangerous and that the appellant knew he should not have been driving. He convicted the appellant and imposed a $4,000 fine and prohibited him from driving for 18 months.

4. The appellant appeals from his conviction contending the trial judge's Reasons for Judgment are conclusory and inadequate to permit appellate review and that the trial judge: failed to reconcile or explain conflicting evidence, failed to explain why he made the conclusory findings, failed to make findings in relation to the manner of driving, failed to conduct any analysis of the mens rea of the offence, either misapprehending the appellant’s evidence or failing to explain why he reached the conclusion he did and erred in relying on evidence that was never introduced at trial.

5. In the alternative, he contends the sentence of a $4,000 fine and an 18 month driving prohibition were both excessive.

6. The Crown submits that while the reasons are brief they do not cross the line beyond which appellate review is not possible. Mr. Latimer submits that the findings of fact can be inferred from the reasons. He accepts that the trial judge erred in relying on the contents of the appellant’s statement to police which was never introduced into evidence but submits the error was harmless because the trial was not a credibility case as the appellant’s evidence did not afford a defence. Accordingly, any errors occasioned no substantial wrong or miscarriage of justice.

7. For the following reasons, the appeal is allowed and a new trial ordered.

The Evidence

The Crown's Evidence

8. The appellant was driving westbound on Steeles Avenue approaching Bramalea Road in the lane marked for traffic turning left although he was not turning. He struck the centre median as he approached the intersection. With two tires on the median and two on the roadway, he drove over two five foot tall hazard warning signs before moving back onto the roadway, narrowly missing at least one nearby vehicle. The appellant then drove through a traffic light that had been red for roughly 20 seconds.

9. Constable David Lumi was dealing with another investigation when he heard a bang and saw the appellant's car jump the median and run a red light. He contacted dispatch.

10. At roughly 9:00 p.m. on March 27, 2011, Patrick Chen was traveling westbound on Steeles Avenue when he saw the appellant's vehicle go past him on the left. It was not going fast. There was road work taking place at the intersection with part of Steeles dug up while the remainder was still asphalted. The car then went on the median. Mr. Chen heard a banging noise and saw sparks from underneath the car caused by one or two hazard signs which were under the car. Chen assumed the appellant had knocked down the signs. This occurred right in front a police cruiser that had stopped another car. He said the median had no curbs but was marked with yellow lines. The car went off the median and went through a red light at the intersection.

11. He followed as the vehicle continued westbound on Steeles to Torbram Road where it went through another red light. While he did not know the name of the next intersection, he was able to see the appellant go through another red light while Chen remained stopped at Bramalea Road. There were roughly 550 to 700 metres between the three lights.

12. Chen agreed that in his written statement given to the police the day after the incident he only mentioned the appellant driving through one red light – at Bramalea Road.

13. Robert Baird was driving westbound on Steeles at Bramalea with his son. He was stopped for a red light when he heard the appellant’s car skid by him to the left almost hitting him and then proceed through a red light. He followed the car after Bramalea because it was all over the road. Mr. Baird felt there was something physically wrong with the driver or he had fallen asleep. He drove up beside the appellant to see if he was okay and noticed his head was bobbing up and down. He described the appellant as swerving back and forth with a wobbly tire on the driver’s side rear.

14. Mr. Baird told his son who was with him to call 9-1-1. They followed the appellant for three or four kilometres before the 9-1-1 operator told them not to continue after him. Throughout that time the lights were green at every intersection the appellant went through. He was pretty sure the appellant bounced off the curb once which Mr. Baird attributed to the wobbly tire. Throughout the three for four kilometres the appellant was driving very slow and cautiously. Mr. Baird’s statement given to police several months after the incident did not include any reference to the appellant’s car being all over the road or about moving from lane to lane.

15. Jesse Baird, age 15, was in his father’s car stopped for the red light at Bramalea when a car came past them to the left and almost hit them before going through the red light. One of the car’s wheels was almost falling off. When his father drove up beside the appellant he could barely hold his head up and looked almost like he was about to fall asleep. He estimated they followed the appellant for five minutes from Bramalea to the 410 highway. While they followed the appellant he was almost like stop and start and was moving within his lane.

16. At 10:02 p.m. Constable Eric Boateng went to the appellant's apartment and asked to see his car. When he did so, he observed very extensive damage on the front fender around the driver’s side and also the tire on the front fender. The appellant was arrested for dangerous operation and failing to remain at the scene of an accident.

The Appellant's Evidence

17. The appellant, age 58, was working two jobs Monday to Friday and studying for an exam to qualify him to teach English as a second language. His first job, in Mississauga, was from 6:00 a.m. to 2:30 p.m. His second, in Toronto started at 3:00 p.m. and ended at midnight. He would get home around 12:30 a.m., go to bed around 2:00 a.m. and get up at 5:00 a.m.

18. On Saturday, March 26, 2011, he woke up at 8:00 a.m. and went to bed around 10:00 p.m. On Sunday, March 27, 2011, after 8 hours sleep, he went to church with his family and returned home around 3:00 p.m. At 8:00 p.m. he left home to meet with a friend at a Tim Horton’s. At roughly 9:15 p.m. he felt he needed to get home so that he had sufficient sleep because he had not slept well that weekend.

19. As he was driving westbound along Steeles when he reached Bramalea there was construction work on the road and the car started shaking when he hit a bump. The whole car was shaking like he was driving on a rough road. While going through the intersection the shaking stopped. He thought it was because they had removed the asphalt. When he got back on the asphalt everything was okay. Because he felt “somehow dizzy, like sleepy” he started shaking his own body and trying to sing to himself to keep himself awake for the rest of the journey home. When he went through the traffic light at Bramalea, he knew it was green and did not see a red light.

20. He got into the right lane and drove to his home where he parked his car and went to his apartment. Once there he had two bottles of Guinness “as an appetite” so that he could have something to relax his muscles and have a sound sleep. When the officer arrived he showed him his car and was arrested. He had not noticed any damage to his vehicle until it was pointed out to him by the officer. The damage, a dent in the rim, cost him $200 to repair.

21. In cross-examination, the appellant admitted that he was generally very sleep-deprived. In addition, that weekend he had not slept well so he was extremely exhausted. He had less than 24 hours sleep in the previous seven days. He agreed that when sleep deprived it was almost like being in a state of intoxication or impairment. However, he knew that he was alert on the date of the incident when he drove his family to church and home again. He still had the strength to go to his friend’s home and drive back despite being exhausted, but not to the extent that he could not drive. As he had been sitting with his friend he was in a relaxed mood, similar to sleeping so he had some rest and knew he would have the energy to drive home. At the time he left his friend he knew he had enough time to sleep and get up to go to work. The appellant agreed that although he was exhausted he took the risk of driving home but reiterated that knew he could drive.

22. He admitted that it was very dangerous to be driving when he was dizzy but he had shaken his head so that he could reach home. He admitted that he should have pulled over, what he did was dangerous. The reason he did not realize he had hit the signs and curbs and ran the red light was he was so tired he was not paying attention to how he was driving. However, when he left his friend on Islington he felt alright to drive.

23. He realized that he should have pulled over. He could not tell if he had gone through three red lights because he did not see red lights. Beyond Bramalea Road, everything was smooth because he slowed down and was very conscious of all that was happening. The shaking helped him become very conscious for the rest of the drive home. He agreed that it was possible he struck two signs and ran over a curb but did not realize it. He was so tired he was not able to pay attention to how he was driving. However, the appellant reiterated that until the incident he felt okay to drive. He denied he was in and out of consciousness. He only lost focus once. The bumps he felt occurred at Bramalea.

24. The Crown cross-examined the appellant on the statement he gave to the officer on the night of his arrest. At the start of the trial the Crown advised the trial judge that “while the Crown is not relying on it for the truth of its contents,” he understood that voluntariness was conceded. Defence counsel agreed.

25. Crown counsel suggested the appellant never told the police he was dizzy. The appellant said he told them “somewhere along the line.” He admitted telling the officer there was no incident on the way home, that it was a smooth drive. He did so because he did not know there was any damage to his car until he saw it with the officer. When it was suggested that he had never told the officer about the car shaking, the appellant said he did tell them at the station.

Reasons for Judgment

26. At the outset of the Reasons, His Honour noted that the “evidence in this particular case is very necessary to be looked at carefully because there are several factors which have to be carefully analyzed.”

27. His Honour outlined the evidence and the defence arguments. In the course of his review of the appellant’s cross-examination he said, “He did give a statement to the police and he says that he felt dizzy but that is not in the statement.”

28. The trial judge read the following excerpt from the court summary of the concurring judgment of McLachlin C.J.C. in R. v. Beatty 2008 SCC 5, [2008] 1 S.C.R. 49:

A momentary lapse of attention without more cannot establish … actus reus of the offence of dangerous driving, and more particularly the requirement of a marked departure from the standard of care of a reasonably prudent driver necessary to establish … actus reus.

29. His Honour continued:

Nobody is disagreeing with this. The fact is here, the driving is so enormously dangerous and the complete ignoring of his own condition which he was totally aware of. It is not that it came as a surprise to him. He knew all along that the way he was driving was extremely dangerous.

I have been given the Charlton[^1] case and I’ve looked at that case. All these cases talk about behaviour that momentary lapse should not matter. The Beatty case, is it a momentary lapse when a person drives in such a dangerous manner? Goes straight through three traffic lights, goes over the curb? Sparks coming out of his vehicle, his vehicle is damaged, he knows he is very exhausted and tired, he does not stop, admits that he should have. It is not the consequence as defence counsel’s own case law indicates that is of consequence, it is the behaviour pattern.

I feel sorry for the gentleman that he has to work so hard to make a living but the danger in which he put the rest of the public under these specific circumstances by his driving has to be looked at. Under these circumstances, the Crown has proved his case beyond a reasonable doubt. I find him guilty as charged.

Analysis

Did the appellant’s evidence provide a defence to the charge?

30. Before addressing the grounds of appeal raised by the appellant, it is appropriate to deal with the Crown’s arguments that the appellant’s evidence did not afford a defence to the charge of dangerous operation. Accordingly, any errors were inconsequential. Since this issue would be dispositive of the appeal, I will address it first.

31. In R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, the Supreme Court of Canada set out the appropriate test in determining whether the Crown had established the fault element as follows:

30 A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

32. The Court also noted the importance of insisting on a significant fault element in order to distinguish between negligence as a basis of civil negligence and that necessary to impose criminal punishment. at para. 32

33. The focus of the mens rea analysis is on 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. Two questions should be asked: 1) whether in light of all the circumstances, a reasonable person would have foreseen the risk and taken steps to void it if possible, and 2) 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. At para. 36

34. The minimum fault requirement, the marked departure noted above involves a modified objective test. Accordingly, while the reasonable person is placed in the accused’s circumstances, the personal attributes of the accused such as age, experience and education are irrelevant unless it goes to the accused’s capacity to appreciate or avoid the risk. If the driving was deliberately dangerous, the subjective mens rea would establish the offence although such proof is not required. At para. 38

35. Determining if the fault element has been established will generally involve drawing inferences from all the circumstances, including any evidence about the accused’s actual state of mind. At para. 39 That the accused drove with the requisite mens rea may be inferred from the fact the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure, the trial judge must examine all the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The underlying premise for drawing the inference based on objectively dangerous conduct that constitutes a marked departure is that a reasonable person in the accused’s position would have been aware of the risk posed by the manner of driving and would not have undertaken to drive. at para. 40

36. Driving which objectively viewed is simply dangerous will not support the inference on its own that the accused departed markedly from the standard of care of a reasonable person in the circumstances. Proof of actus reus, without more, does not support a reasonable inference that the fault requirement was established. Only driving that constitutes a marked departure from the norm may reasonably support the inference. at para. 42

37. Finally, a momentary lapse of attention without more supports neither the actus reus nor the mens rea. That is not to say that additional evidence may not show a larger pattern that when considered with the momentary lapse establishes the marked departure. A momentary lapse caused by alcohol consumption or by engaging in an activity that is incompatible with maintaining control of the vehicle. It would be open to the trial judge to conclude is such a case that considering the total driving pattern in all the circumstances, the marked departure from the norm was established. R. v. Beatty 2008 SCC 5, [2008] 1 S.C.R. 49 at para. 72

38. Applying this case law, I am persuaded the appellant’s trial evidence afforded a defence. The appellant testified that while he was exhausted he felt he was alright to drive. He drove his family to church earlier, he had driven to meet his friend and sat visiting with him. The incident occurred on a Sunday when he had more sleep than he normally has. He said he did not see red lights at Bramalea or after. Beyond Bramalea everything was smooth because he slowed down and was very conscious of what was happening. He only lost focus once. While he admitted he should have stopped that was in hindsight, not based on how he felt at the time he was driving. If the trial judge accepted or had a reasonable doubt about his account he could have been acquitted.

39. I note as well that the trial judge never said the appellant was guilty on his own evidence, nor did he ever say he rejected the appellant’s evidence.

40. While the Crown was required to establish the appellant committed the act of dangerous operation with the requisite mens rea, the main triable issue was whether the appellant had been shown beyond a reasonable doubt to have the requisite mental state. The appellant admitted that, applying hindsight, his driving was dangerous but throughout insisted that he believed he was alright to drive. The defence argued that what occurred was a momentary lapse and accordingly, the appellant was not guilty.

41. No doubt the defence position was premised on what had been disclosed to the appellant before trial. That disclosure revealed the civilians were going to testify that Mr. Akuamoah-Boateng drove through one red light. When Mr. Chen said for the first time at trial that he had also gone through two other red lights, the momentary lapse argument lost its viability because going through three red lights hundreds of metres apart could not have been a momentary lapse.

42. As is apparent from the evidence summary, there was conflicting evidence regarding the nature and duration of the abhorrent driving between the Crown’s witnesses and between the Crown’s witnesses and the appellant. In addition, the two main Crown civilian witnesses gave evidence that was not included in their witness statements. Accordingly, the trial judge was required to determine, first, the nature and duration of the abhorrent driving and second, whether the Crown had established the requisite mens rea. While it was open to His Honour to infer the mens rea as noted above, in order to do so, he was required to make findings of fact regarding the driving and explain why the findings were made.

Reasons for Judgment

43. Since several of the grounds of appeal relate to the Reasons for Judgment, I will examine the obligations on trial judges with regard to reasons at the outset.

44. 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. Reasons permits 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, 2008 S.C.C. 51 at para. 11. All three areas are in dispute here.

45. 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.

46. However, reasons must tell the parties affected by the decision why it was made and also permit effective appellate review. R.E.M., supra, at para. 11 and 12. At para. 17, after outlining the functions of reasons, Chief Justice McLachlin wrote:

17 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 CanLII 3498 (ON CA), [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".

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.

18 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.

Did the trial judge err in providing conclusory findings and failing to explain conflicting evidence?

47. The appellant first submits that the trial judge's findings of fact are conclusory. He gave the "bottom line" of what he found without explaining why he made the decision. The respondent/Crown, while conceding that the Reasons are brief, submits they do not cross the line to insufficiency. Mr. Latimer submits the findings of fact can be inferred from the evidence.

48. After reviewing the evidence, in relation to the nature and duration of the driving, His Honour found the driving was “so enormously dangerous,” that he went through three traffic lights, over a curb, had sparks coming out of his vehicle, and the vehicle was damaged. With the exception of the three traffic lights, there are no findings of fact regarding the duration of the driving or whether the finding was based only on the driving at Steeles and Bramalea plus the three red lights or whether he found aberrant driving beyond that. I am not persuaded by the Crown that the findings of fact can be inferred from those comments.

49. The appellant’s evidence was that he suffered a momentary lapse in attention that amounted to a mere departure from the standard of care and not a marked departure. He lost focus only once at Steeles and Bramalea, from that point after he began to shake his head and sing, he and his driving were fine. Without making findings of fact except for the red lights the trial judge reached the above-noted conclusions. His Honour failed to say what he found other than the conclusory statements.

50. While His Honour never says he finds the appellant went through three traffic lights the only reasonable inference to be drawn from the fact it was mentioned was that he found the appellant did as Mr. Chen testified. As noted above, this finding of fact was fatal to the defence advanced at trial yet there is no explanation why the trial judge accepted Chen's evidence over that of Robert Baird who testified the second and third lights were green for the appellant. In his statement to police Chen made no reference to the appellant going through more than one red light. Baird's evidence was straightforward and clear that the lights after Bramalea were green.

51. It may have been that there was a reasoned analysis, the “why” referred to by Chief Justice McLachlin, that led His Honour to make this important factual determination. None is readily apparent and neither the appellant nor this Court knows why that important conclusion was reached. This was confusing and contradictory evidence upon which the trial judge was required to provide insight as to why he reached the conclusion he did. R. v. D.R. 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291.

Do the Reasons preclude effective appellate review in relation to the mens rea issue?

52. The appellant submits that the Reasons preclude appellate review because there is no meaningful analysis of the mens rea issue as mandated by the cases noted earlier. There is no reference to the two part test in Beatty noted earlier, first, whether a reasonable person would have foreseen the risk and taken steps to avoid it, and second, whether the failure to take steps to avoid it, was a marked departure.

53. The Crown submits that the reference from Beatty indicates His Honour conducted the correct analysis and properly found the requisite mens rea was established.

54. The trial judge read from the court summary in Beatty and found that while driving the appellant ignored his own condition of which he was totally aware. That he knew all along that the way he was driving was extremely dangerous.

55. First, I am not persuaded reading from a court summary shows the trial judge engaged in the correct analysis when that analysis is not in the judgment. The question is not whether he set out the test, it is whether the trial judge applied the correct test.

56. Second, while it was open to His Honour to make those findings, there is no explanation why he reached that conclusion. It is not apparent whether he thought the appellant testified he knew all along that he was driving dangerously. If he did, he misapprehended the evidence. Assuming for the sake of this argument that His Honour did not reject the appellant’s evidence, the trial judge misapprehended his testimony. If the trial judge rejected the appellant’s evidence and reached those conclusions, he failed to explain why he reached that conclusion.

57. I am persuaded the Reasons in relation to the mens rea issue preclude effective appellate review. Given the failure to properly identify the extent of the driving conduct noted earlier, the trial judge failed to engage in the exercise of identifying how and in what way the appellant failed to foresee and respond to the risk amounted to a departure from the standard that goes markedly beyond mere carelessness. R. v. Reynolds, 2013 ONCA 433 at para. 19. While His Honour addresses the mens rea, he did so either by misapprehending the evidence or failed to explain why he reached the critical factual findings he did.

Did the trial judge err in relying on evidence that was never introduced?

58. The appellant next contends the trial judge relied on extraneous matters, not properly placed in evidence. The Crown does not contest that His Honour erred by referring to evidence that had never been introduced but submits the error was harmless as the appellant's evidence did not provide a defence, an argument I have already rejected.

59. The appellant admitted at the outset of the trial that his statement to police was given voluntarily. He did not admit the contents of the statement accurately reflected what he told police. He was cross-examined on the statement, admitting parts and denying others.

60. In his Reasons for convicting, the trial judge noted the appellant testified that he became dizzy but that was not in his statement to police although the statement was never introduced. If as the Crown contends, the appellant’s credibility was not found wanting, I question why the police statement was referred to. If the trial judge rejected the appellant’s testimony, he erred in relying on “evidence” that was never introduced or admitted.

61. I am persuaded the trial judge erred in considering evidence that was never introduced in relation to the appellant’s evidence.

Do the Reasons for Sentence reflect a misapprehension of the facts?

62. The appellant argued that the trial judge’s reference to endangering “other passengers” shows a further misapprehension of the evidence because the appellant was alone in his car. I am not persuaded the comment in oral reasons supports the appellant’s argument. The trial judge misspoke and was referring to other drivers.

Conclusion

63. I am persuaded that based on the cumulative effect of the identified errors noted above, that a new trial must be ordered. The Crown has not persuaded me that any errors occasioned no substantial wrong or miscarriage of justice. The appellant’s evidence could have resulted in there being a reasonable doubt at least in relation to his mens rea. The factual basis upon which His Honour found it did not, is not apparent in the Reasons. Neither is it apparent why the conclusions were reached. I am not persuaded the errors were harmless.

64. The appeal is allowed, the conviction quashed and a new trial ordered. The appellant is ordered to appear in courtroom 104 on December 18, 2013 at 9:30 a.m. to set a new trial date.

Durno J.

Released: December 4, 2013

COURT FILE NO.: CR-12-2123-00

DATE: 20131204

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

WILSON AKUAMOAH-BOATENG

REASONS FOR JUDGMENT

[On appeal from the judgment of the

Honourable M.F. Khoorshed,

dated July 30, 2012]

Durno J.

Released: December 4, 2013

[^1]: R. v. Charlton (2011), 10 M.V.R. (6th) 12 (Ont. S.C.J.)