R. v. Broad, 2015 ONSC 1509

COURT FILE NO.: 137-14 AP

DATE: 2015/03/06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Kim Broad

BEFORE: Valin J.

COUNSEL: M. Venturi, for the Appellant

L. Mehkeri, for the Respondent Crown

HEARD: March 5, 2015

ENDORSEMENT

[1] Following a trial in the Ontario Court of Justice, the appellant was convicted of the offences of impaired driving, and operating a motor vehicle at a time when the proportion of alcohol in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. This is an appeal from the convictions on both counts.

[2] During the evening of May 29 and the early morning of May 30, 2013, the appellant attended at a bar in Espanola, and subsequently at a party at the private residence of Brad Collins. She testified at her trial that, by the time she decided to leave the Collins residence, she knew she was impaired, and thus decided to walk home, a distance she estimated as being a five to ten minute walk.

[3] The appellant testified that, before she departed the Collins residence, Mr. Collins offered to drive her vehicle to her home. She gave him the keys and got into the front passenger seat. The next thing she remembered was the vehicle hitting something. The accident occurred on Bass Lake Road around 5:00 a.m. The location of the accident was not on the route from the Collins residence to her home.

[4] The vehicle had struck a utility pole which appeared to have snapped in three places. The collision caused the air bags on the driver and passenger sides of the vehicle to deploy. The appellant testified that the horn was blaring and that Mr. Collins exited the driver’s side of the vehicle saying: “I’m sorry Kim, I’m sorry”.

[5] The appellant testified that she was not wearing her seat belt, that her leg was stuck under the dash board, and that she managed to extricate herself from the passenger seat into the driver’s seat. During cross-examination by Crown counsel, she admitted that she did not recall having tried to get out of the vehicle via the passenger door.

[6] Once in the driver’s seat, the appellant made efforts to disengage the blaring horn. Espanola Police Service Constables Huard and Stortz were dispatched to the accident scene. They found the appellant in the driver’s seat attempting to disable the blaring horn.

[7] Both officers observed that the passenger side of the vehicle was all smashed in. From their observations of the damage to the vehicle, they determined that it was impossible to get out of the vehicle on the passenger side.

[8] Brad Collins spoke to Constable Stortz at the scene and later that morning at the hospital. On both occasions, Mr. Collins admitted to the officer that he had been the driver of the vehicle.

[9] Brad Collins and the appellant were taken to the hospital for treatment of their injuries. Constable Huard observed that Mr. Collins had sustained lacerations to his right arm and right knee. The officer also noted that the appellant had sustained injuries to her left shoulder, forehead and right leg.

[10] Dale Perih, the appellant’s boyfriend at the time of the accident, observed shards of glass in the appellant’s hair and right ear on the afternoon of May 30, 2013. At the appellant’s request, he attended at the motor vehicle approximately two weeks after the accident and retrieved one of the appellant’s flip-flop sandals and her sunglasses. He found both items on the floor on the front passenger side of the vehicle, under the dash.

[11] During her testimony at trial, the appellant admitted that she had consumed an excessive amount of alcohol prior to the accident and that her ability to operate a motor vehicle was impaired. The sole issue in the trial was whether the Crown had proved beyond a reasonable doubt that the appellant had been the operator of the vehicle at the time of the accident.

[12] Section 686(1)(a) of the Criminal Code provides that, on an appeal by an accused person from conviction, the summary conviction appeal court may allow the appeal where it is of the opinion that: (i) the verdict is unreasonable or cannot be supported by the evidence; (ii) there is a wrong decision on a question of law; or (iii) there was a miscarriage of justice.

[13] In R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, the Supreme Court of Canada set out the test for appellate review. The test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, the Supreme Court of Canada reaffirmed that the test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence is the test set out in Yebes.

[14] During her testimony, the appellant testified that she was in the passenger seat in the vehicle when the collision occurred and that Brad Collins exited the vehicle from the driver’s door. She had no recollection of the route the vehicle took to the place where the accident occurred or whether she or Collins were wearing their seatbelts.

[15] Given that testimony, the decision of the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, obliged the trial judge to embark on a three-pronged analysis of the evidence at trial. Applying that analysis to this case, first, if the trial judge believed that the appellant was not operating the vehicle at the time of the accident, she was required to find the appellant not guilty. Second, even if the trial judge did not believe the appellant’s evidence, but was left with a reasonable doubt about whether she had been the operator of the vehicle at the time of the accident, the trial judge was obliged to find the appellant not guilty. Third, even if the appellant’s evidence did not leave the trial judge with a reasonable doubt about whether the appellant was operating the vehicle at the time of the accident, the trial judge may only convict the appellant if the rest of the evidence she did accept proved the guilt of the appellant beyond a reasonable doubt.

[16] The trial judge did not specifically refer to the route that the decision in W.(D.) compelled her to follow, nor did she adhere directly to the formula set out in that decision. However, in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23, the Supreme Court of Canada held that there is nothing sacrosanct about the formula set out in W.(D.), and that what matters is that the substance of that formula be respected.

[17] In R. v. Harper, 1982 CanLII 11 (SCC), [1982] 1 S.C.R. 2, at p. 14, the Supreme Court of Canada held that an appellate court has a duty to review the trial record to determine whether the trial court properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence, then it falls upon the appellate court to intercede.

[18] In this case, the trial judge did not believe the appellant’s evidence. Her decision was based largely on the evidence of the appellant’s extremely high breathalyzer readings. The trial judge concluded that the appellant’s testimony was not reliable and that she did not consider the appellant to be a credible witness due to large gaps in her memory of events leading up to and after the collision.

[19] However, rejecting the appellant’s evidence does not end the matter. At the second stage of the formula in W.(D.), the trial judge appears to have failed to instruct herself that, even if she disbelieved the appellant’s evidence, an acquittal must still result if, after having considered the evidence of the appellant, she had a reasonable doubt as to whether the appellant was driving the vehicle at the time of the accident.

[20] In R. v. Gavrilovic (1974), 1974 CanLII 1639 (BC CA), 18 C.C.C. (2d) 287 (B.C.C.A.), the British Columbia Court of Appeal held that testimony that is not shaken on cross-examination is to be given some weight. The Court stated that the question is not whether the accused is believed or disbelieved, but whether the testimony raises a reasonable doubt.

[21] In that regard, regardless of the appellant’s ability to recall precise details of events leading up to and after the accident, there was unchallenged evidence that:

• Brad Collins was in the motor vehicle;

• the collision caused two air bags to deploy;

• no person could exit through the front seat passenger side of the vehicle;

• the appellant had no reason to be on Bass Lake Road; and

• the blaring horn following the collision was a definitive feature in the testimony of every witness who testified at the trial who had attended at the scene of the accident; and

• the appellant was unaware of her injuries following the accident.

[22] The trial judge’s reasons for judgement make no reference to that unchallenged evidence in the context of considering whether, having rejected the appellant's evidence, she was left in reasonable doubt by it. Despite the able submissions of Crown counsel, I do not accept that the trial judge properly instructed herself with respect to the second stage in the W.(D.) formula.

[23] In the course of rejecting the appellant’s testimony, the trial judge referred to the appellant’s “urgent need to remove herself from the vehicle”. There was no evidence to support that finding.

[24] After rejecting the appellant’s evidence, the trial judge’s reasons state:

Well the fact that I reject her testimony is not the end of the matter. I am being asked to draw inferences from circumstantial evidence. The prosecution argues that this case can only be determined on the basis of indirect evidence. The case against Kim Broad is a formidable one. The circumstantial evidence is not consistent with her denial of operation. The imbedded glass in her ear and head does nothing really to corroborate her story. This in fact was an explosive crash in which the vehicle sustained heavy damage. The photo exhibits filed at trial depict shards of glass all over the dash including glass in the immediate vicinity of the steering wheel and air bag.

The logical and most compelling inference to be drawn from the circumstantial evidence is that Kim Broad was the driver. The cumulative effect of the evidence including the abrasions to her left side, her injuries, the blood on the driver’s air bag, her resistance to assistance, the location to the injuries to Collins; to his right side of the body including his abrasion over his left shoulder and the non-existence of any blood injury to him persuades me that the Crown has met its heavy onus of proving that she was the operator of the motor vehicle at the relevant time. Are you prepared to move to sentencing?

[25] In R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538, the Ontario Court of Appeal held that a misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake concerning the substance of the evidence, or the failure to give proper effect to the evidence.

[26] A trial judge is entitled to draw factual inferences which are reasonably and logically drawn from a fact or group of facts established by the evidence. Conversely, an inference that does not flow reasonably and logically from established facts is not permissible and is often denounced as speculation or conjecture.

[27] There was no direct evidence identifying the appellant as the operator of the motor vehicle at the time of the accident. The Crown’s case with respect to the identity of the operator was based solely on circumstantial evidence. In those circumstances, an accused person should only be found guilty if the trial judge is satisfied that the guilt of the accused is the only reasonable conclusion to be drawn from the whole of the evidence.

[28] There was no expert evidence or accident reconstruction to assist the trial judge with respect to how the accident happened or to the mechanics of what happened to the occupants of the vehicle as a consequence of the collision.

[29] One must remain mindful that there was no onus on the appellant to prove anything. The onus was on the Crown to prove beyond a reasonable doubt that the appellant was operating the vehicle at the time of the accident.

[30] Although she listed the evidence from which she inferred the guilt of the accused, the trial judge did not appear to have assessed the totality of the evidence. While noting that the appellant had glass embedded in the right side of her head and in her ear, it does not appear that the trial judge considered the fact that the appellant sustained greater injuries to her person than Mr. Collins, a fact which coincides with the fact that the vehicle sustained greater damage on the right passenger side.

[31] The trial judge made no mention in her reasons for judgement of the evidence of the appellant’s boyfriend who testified that, approximately two weeks after the accident, he retrieved the appellant’s sunglasses and flip-flop sandal from the floor of the vehicle under the dash on the passenger side.

[32] I agree with counsel for the appellant that the reference to blood on the driver’s side air bag is problematic. There was no evidence that the blood had to have found its way to the airbag on impact. There is no dispute that the appellant occupied the driver’s seat at some point after the accident occurred. However, it is not disputed that Collins and the appellant were both occupants of the vehicle at the time of the accident. Both of them sustained lacerations that resulted in bleeding. The blood on the driver side air bag was submitted for analysis, but the sample was not satisfactory and no results were obtained. The inferences drawn by the trial judge that the blood on the air bag belonged to the accused and that she was therefore operating the vehicle at the time of the accident are not the only logical inferences that can be drawn from the proven facts in this case.

[33] The reasons for judgment of the trial judge make reference to the appellant’s resistance to assistance at the accident scene. However, the trial judge failed to mention that Brad Collins also resisted assistance from the rescue workers at the scene.

[34] The trial judge’s reasons for judgment fail to mention or consider how Brad Collins exited the vehicle if he was in the passenger seat. During his testimony, Constable Huard confirmed the appellant’s thought that exit through the passenger door was not possible. The appellant provided the only evidence about how Brad Collins exited the vehicle.

[35] While the trial judge may have had good reason to disbelieve the appellant’s testimony, she was not entitled to give that conclusion positive evidentiary value when she went on to decide that the Crown had proved beyond a reasonable doubt that the appellant was operating the vehicle at the relevant time. In addition, her misapprehension of some of the evidence upon which she relied in determining the appellant’s guilt suggests that the trial judge failed to consider whether the evidence as a whole established the guilt of the appellant.

[36] In those circumstances, this court must intercede. I find that the trial judge’s decision was based on a misapprehension of the evidence. It follows that the appellant did not receive a fair trial and was a victim of a miscarriage of justice. The appeal is allowed. The convictions on both counts are quashed. A new trial is ordered.

The Honorable Mr. Justice G. Valin

Date: March 10, 2015