ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P) 330/13
DATE: 2015-07-27

B E T W E E N:

HER MAJESTY THE QUEEN

R. Prihar, for the Crown

• and -

JANINA KRAUS

A. Forbes for the Applicant

HEARD: June 8-12, 15, 2015

REASONS FOR JUDGMENT

Baltman J.

Introduction

1Shortly after midnight on July 11, 2012, Ms. Kraus crashed her Jeep into another vehicle on the QEW. The Jeep ended up on its roof in the middle of the highway; the other car, containing a family of four, was found in a ditch. Zaheer Hassan, the father of that family, sustained a shoulder injury from the impact.

2Ms. Kraus faces two charges: impaired driving causing bodily harm, and dangerous driving causing bodily harm. The defence concedes that Ms. Kraus’ actions were at least a significant cause of the injury sustained by Mr. Hassan. However, it denies that her behaviour reaches the level of any criminal culpability.

The Legal Framework

3As Doherty J.A. observed in R. v. Ramage, 2010 ONCA 488, both impaired driving and dangerous driving address road safety, a vital social concern. However they focus on different dangers: impaired driving is concerned with the driver’s ability to operate the vehicle, while dangerous driving looks to the manner in which she actually operated the vehicle (para. 64). The following discussion elaborates on that theme.

1. Impaired Driving

4The offence of impaired operation of a motor vehicle is established if the Crown can prove even a slight degree of impairment of the ability to drive: R. v. Stellato, 1994 94 (SCC), [1994] S.C.J. No. 51.

5The Crown need only prove beyond a reasonable doubt that alcohol was a contributing factor in the impairment of the accused’s ability to drive; even if is accompanied by other factors such as fatigue or medication, the offence will be complete: R. v. Bartello, [1997] O.J. No. 2226 (C.A.); R. v. Spina, [1999] O.J. No. 5130 (S.C.), paras. 15-17.

6That said, Stellato does not mean that a person who has drunk any amount of alcohol and then drives commits an offence; the focus must be on whether the alcohol has impaired her ability to drive: R. v. Kresko, 2013 ONSC 1159, para. 133.

7Circumstantial evidence of impairment may include driving conduct and various physical symptoms. Items of circumstantial evidence are not to be viewed in isolation; the entirety of the evidence must be considered in determining whether the Crown has discharged its burden of proof: R. v. Elvikis, [1997] O.J. No. 234 (S.C.), para. 26.

8A strong odour of alcohol coming from a suspect is generally not determinative of impairment: R. v. Tavone, [2007] O.J. No. 3073 (S.C.), paras. 11-12. And without expert testimony, a court is usually not equipped to determine that the amount an accused admits to having drunk is sufficient to impair her: R. v. Court, [1999] O.J. No. 270 (Gen.Div.).

2. Dangerous Driving

9Dangerous driving is driving which involves a “significant” or “marked” departure from the standard of a reasonably prudent person. (R. v. Roy, 2012 SCC 26, R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49).

10The onus lies on the Crown to prove both the actus reus and the mens rea of the offence. In Beatty the Supreme Court stated that to establish the actus reus, the trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was 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” (para. 43).

11The 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 this assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s 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. This is referred to as a “modified objective test”. 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 the danger involved in the accused’s conduct. (Beatty, supra at paras. 43‑44).

12In both Roy and Beatty the Supreme Court cautioned against inferring mens rea simply from the fact that a motor vehicle had been operated in a dangerous manner. The offence will only be made out if the accused’s conduct constitutes a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Simple carelessness is generally not criminal. Nor are momentary lapses of attention. Even where the manner of driving is a marked departure from the norm, fault will not lie unless 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 (Roy, paras. 28, 37, and 40).

13The case law establishes that dangerous driving may be proven even where the distance travelled is very short, or where the driving in question is observed for only seconds: see R. v. Fragoso, [2003] O.J. No. 579 (S.C.), where the total distance involved was approximately 700 metres, and R. v. Willock, 2006 20679 (ON CA), [2006] O.J. No. 2451(C.A.) where the court stated at para. 31:

There can be no doubt that conduct occurring in a two to three second interval can amount to a marked departure from the standard of a reasonable person and demonstrate a wanton or reckless disregard for the life or safety of others. However, conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum. [emphasis added]

14In Beatty, supra, the Supreme Court endorsed the reasoning in Willock, and affirmed at para. 48 of its decision that dangerous driving could occur over the course of a few seconds:

The lack of care must be serious enough to merit punishment. There is no doubt that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person. Nevertheless, as Doherty J.A. aptly remarked in Willock, ‘conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum.” [emphasis added]

15The defence has conceded that the actus reus has already been established in this case, in that by going off the highway and then veering back across three lanes of traffic, Ms. Kraus’ driving was undeniably dangerous. However, it denies that she had the necessary mens rea.

Evidence and Findings

16I will begin with the facts which are not in dispute.

17The accident occurred in the eastbound lanes of the QEW, just east of Erin Mills Parkway. In that area there are three traffic lanes: the passing lane, the middle lane and the curb lane. Beside the curb lane is a paved shoulder, wide enough to permit emergency vehicles to travel. Further to the right is a narrow gravel shoulder, followed by a soft grassy ditch.

18The speed limit in that location is 100 kph. It was shortly after midnight and Ms. Kraus was driving alone in her Jeep, in the middle lane.

19On that evening the weather was good and the roads were clear. Traffic was light. No one near Ms. Kraus was driving erratically or improperly. However, for no apparent reason, her car suddenly moved to the right, over the curb lane and the paved shoulder and into the soft grassy area beyond. She then veered sharply and quickly to the left, travelling in a northerly direction (perpendicular to the eastbound traffic). She crashed into a sedan driven by Fahima Sabir, knocking that car out of control and into the ditch on the south side of the highway.

20Ms. Kraus’ vehicle continued travelling in a northerly direction until it struck the median, whereupon it flipped over onto its roof, leaving Ms. Kraus suspended upside down in her car.

21Another driver travelling close behind who witnessed the accident described it as a “freaky scene, like out of a movie”. He, along with other drivers in the area, stopped to offer assistance. Police and paramedics arrived on the scene within minutes.

22The police found numerous bottles of alcohol in the Jeep, including six empty Vex coolers and one bottle of white wine containing a small amount of alcohol. Several witnesses reported a distinct odour of alcohol emanating from the vehicle.

23Ms. Kraus was extricated from her Jeep. Shortly after police formed the opinion that she was impaired. She was taken to Credit Valley for assessment and treatment, and released later that day.

24Ms. Kraus is 52 years old and works on contract as a customs consultant. At that point in her life she was in transition, both at home and at work. She had moved out of her apartment on July 4th. She stowed most of her belongings in a storage facility in Burlington, but also kept various essentials in her car, including clothing, a computer, boxes of food, and her dog Monty. For a few days she stayed in Hamilton at the apartment of her sister, who was recovering from major surgery. However, on Sunday the 8th, following a disagreement with her sister, she left that apartment. At the time of the accident she was staying at a friend’s home in Mississauga, and was headed there when this accident occurred.

25Ms. Kraus had no contracts on the go and therefore spent most of July 10th (the day leading up to the accident) meeting with former clients, trying to drum up business. In the late afternoon she visited her storage locker to retrieve more items. She ended up spending several hours there reorganizing her belongings. It was late at night when she left and she was tired.

26Beyond this framework the parties disagree on several aspects of the driving at issue, particularly how much (if any) alcohol Ms. Kraus consumed, and whether or not she had fallen asleep just before the accident. Most of the relevant evidence on these points came from the lay witnesses who were travelling near the accident scene, the first responders in attendance, the treating nurse at Credit Valley, and from the accused herself.

27I shall deal first with the evidence relating to the charge of impaired driving.

1. Impaired Driving

28I heard evidence regarding various observations about whether Ms. Kraus’ ability to drive was impaired, which I will summarize as follows.

a) Driving Conduct

29Several other drivers in the immediate vicinity, including Meira Levi, Carlos Ferreira and Tasaddaq Hussein, testified about the manner of Ms. Kraus’ driving. They observed her first move into the curb lane and then continue over the paved shoulder toward the grassy area. She then veered left and cut perpendicularly across the lanes of traffic until she struck the Sabir vehicle. They estimated that at the point of impact she was travelling between 110 and 120 kph.

30Ms. Kraus testified that she initially moved into the curb lane because she was getting ready to exit the highway onto Hurontario Rd. However, suddenly her two right tires dropped off the curb lane directly into the soft shoulder. In an attempt to return to the paved roadway she overcompensated by turning the wheel sharply to the left. That’s the last thing she remembers before waking up, upside down in her Jeep.

31In my view this was an unexplained collision indicative of bad driving, in two respects; first, for no apparent reason Ms. Kraus swung her vehicle to the right, well beyond not only the three lanes designated for travelling, but also past the paved shoulder. She obviously failed to realize she had strayed not only beyond the paved shoulder – which is reserved for emergency vehicles – but also beyond the gravel shoulder and into the grass. She was way outside any kind of designated lane.

32Second, once she realized she was in error, she grossly overcorrected. Instead of stopping her vehicle by the side of the road or cautiously re-entering the curb lane traffic, she swung wildly to the left and careened at high speed on a diagonal across three lanes of oncoming traffic.

33I recognize that the entire incident occurred in a matter of seconds. However the driving conduct is so extreme that it strongly suggests that her judgment was impaired by alcohol.

b) Observations of Tasaddaq Hussein

34Mr. Hussein is a cab driver. That night he was alone in his car and travelling close behind Ms. Kraus. After the crash he stopped to help. He testified that he approached Ms. Kraus, who was still pinned in her car, and spoke with her. He concluded she was “drunk”, based on how she was speaking and the smell of alcohol coming from her mouth.

35Mr. Hussein acknowledged that in the written statement he signed for the police that day there is no mention that Ms. Kraus was drunk or that he smelled alcohol on her breath. He explained that he was so upset by the event that he signed the statement (written by the police officer) without reading it first.

36Despite that inconsistency I accept Mr. Hussein’s evidence at trial regarding his observations of Ms. Kraus. He struck me as a careful and honest witness. He has no motive to invent evidence as he was not implicated in the accident in any way and does not know any of the affected parties. Importantly, he explained that as a cab driver he has been in close proximity to many drunk people and is familiar with how they sound and smell. It makes sense to me that he could therefore recognize those signs in Ms. Kraus.

c) Evidence of Sherry Colman

37Colman was the nurse at Credit Valley who had primary care of Ms. Kraus. She assessed Ms. Kraus between 1:05 and 1:45 a.m., and then proceeded to document the highlights. As part of her neurological assessment she specifically asked Ms. Kraus whether she had consumed any drugs or alcohol. In her notes she reported that “patient states she drank 3 coolers all day but has not slept in 2 weeks, and thinks she fell asleep.”

38Colman acknowledged that her notes include only portions of her conversation with Ms. Kraus. However, I am satisfied that on the critical question of alcohol consumption her notes are accurate. Colman explained she would have carefully noted any contributing factors reported by Ms. Kraus, such as alcohol or lack of sleep, because that history would become important if she developed any neurological deficits.

d) Observations of Constable Duncan

39Duncan was the arresting officer. He arrived at the scene shortly after the accident and spent the next several hours in close proximity to Ms. Kraus. He was therefore in a good position to observe and assess her. He first interacted with her after she had been removed from her vehicle and was on a backboard speaking to the paramedics. At that point he was within a few feet of her and detected that her speech was slurred and her breath contained a “strong” odour of alcohol, amongst other indicators.

40I recognize that Kyle Waite, the attending paramedic, could not recall whether there was any odour of alcohol either in the vehicle or coming from Ms. Kraus. And Nurse Colman never mentions any such odour. However, as the investigating officer, Duncan’s focus was on indicia of impaired or dangerous driving. By July 2012 he had significant experience conducting arrests in impaired cases, and would have been on the alert to any signs of impairment.

41Moreover, as Hill J. observed in R. v. Censoni, [2001] O.J. No. 5189 (S.C.), at para. 47, “the fact that others at the scene may not smell the alcohol does not necessarily render the officer’s observations unreliable”.

e) Evidence of Ms. Kraus

42Ms. Kraus testified that she had not consumed any alcohol whatsoever since Saturday July 7th. That day she and her sister shared six Vex coolers and most of a bottle of white wine. Because her sister did not want to store the empty bottles in her apartment, Ms. Kraus put them in the back of her car on Sunday, before she left. At that point the coolers were empty but there was still a small amount of wine left in the bottle.

43After that she forgot about the bottles and so never got around to returning the empties to the liquor store. She says that’s why police found all of them in her car.

44As for the smell of alcohol in her car immediately after the collision, Ms. Kraus attributed that to her car overturning, spilling the remainder of the white wine inside.

45Ms. Kraus testified that she told Colman that she drank three coolers on the weekend, not that day. She denied telling Colman that she fell asleep before the accident.

46Ms. Kraus stated that although she was tired when the accident occurred, and had not been sleeping well in the preceding weeks, she had not fallen asleep and would not have said any such thing to Colman.

47I found Ms. Kraus’ explanation neither plausible nor credible, for several reasons. First, I find it strange that in the midst of moving to a new home Ms. Kraus would have agreed to store empty bottles of alcohol in her car for several days, rather than leaving them with the recycling at her sister’s apartment building or dropping them at a liquor store.

48Second, the small amount of alcohol remaining in the wine bottle - supposedly left over from Saturday - would likely have evaporated by early Wednesday morning, when this accident occurred.

49Third, her evidence that she last consumed alcohol on Saturday is contradicted by her admission to Colman that she had drunk three coolers that day. It makes no sense that Colman would have asked about or bothered to record any alcohol Ms. Kraus may have consumed four days earlier, as that was irrelevant to her assessment and treatment concerns. As I have already noted, I am fully satisfied that Colman carefully recorded Ms. Kraus’ admission regarding alcohol she consumed that day.

50Fourth, her testimony that she had not drunk any alcohol since Saturday was further contradicted by Mr. Hussain and Constable Duncan, both of whom smelled alcohol on her. I have already found credible their evidence on this point.

f) Conclusion re Impaired Driving

51In order to convict Ms. Kraus of impaired driving I must be satisfied on the totality of the evidence there is no reasonable doubt as to her guilt, in accordance with the three stage approach set out in W.(D). v. The Queen (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) Because of the deficiencies in the evidence advanced for the defence, which I have discussed above, I neither believe Ms. Kraus nor find that any of the evidence relied upon by the defence raises a reasonable doubt.

52Moreover, when I consider the rest of the evidence that I do accept, I am convinced beyond a reasonable doubt that on this occasion Ms. Kraus’ ability to drive was impaired by alcohol. The combination of the factors I have identified above persuades me that she not only consumed alcohol in the hours leading up to the collision, but that it also impaired her ability to drive. I refer in particular to:

• Her driving conduct;

• The odour of alcohol on her breath (detected by Hussein and Duncan);

• The admissions to Colman of alcohol consumption and fatigue;

• The open bottles of alcohol in her vehicle.

53While any one of these pieces of evidence might not, on its own, be sufficient to demonstrate that her ability to drive was impaired by alcohol, the totality of the evidence so satisfies me beyond a reasonable doubt.

2. Dangerous Driving

54As noted above, the defence has conceded that the actus reus of dangerous driving is made out; by driving off the highway and then veering across three lanes at high speed, Ms. Kraus’ driving was objectively dangerous in the circumstances.

55The issue is whether she had the necessary mens rea, i.e. whether her conduct amounted to a marked departure from how a reasonable person would behave in her circumstances.

56I recognize that the driving in issue here is of relatively short duration; likely less than 10 seconds elapsed from when Ms. Kraus’ jeep strayed off the highway until it crashed into the sedan and turned upside down. But that sequence involved at least two, in my view, marked departures from how a reasonable person might behave in the circumstances: first, Ms. Kraus not only wandered outside her lane (which even good drivers do on occasion), she also crossed over a paved shoulder and a gravel shoulder before realizing that she had dropped into the grassy ditch area. Second, whereas a reasonable person would then have recovered control of their vehicle, she instead wrenched the car at high speed across three lanes of oncoming traffic on a major highway until it collided with another vehicle and then crashed into the median.

57Moreover, this driving occurred in good weather and on a clear road, with only light traffic in the vicinity. There were no mitigating or contributing factors to explain the erratic behaviour.

58Finally and critically, I have found that at that time Ms. Kraus’ ability to drive was impaired by alcohol which, when combined with her driving manoeuvres, demonstrates a pattern of disregard for public safety that amounts to a marked departure from the standard of care of any reasonable driver. As the B.C. Court of Appeal stated in R. v. Settle, 2010 BCCA 426, at para. 48:

[E]vidence of an accused’s voluntary consumption of alcohol may be relevant in establishing the mens rea of the offence of dangerous driving. Where such conduct demonstrates a recklessness in creating a risk or danger to other users of the highway it may, when considered with the evidence of driving conduct, establish a pattern of disregard for the safety of other users of the highway that amounts to a marked departure from the standard of care of a reasonably prudent driver. [emphasis added]

59In other words, that combination of factors amounts to a pattern of conduct that goes well beyond a momentary lapse or misstep: see also paras. 49 and 55 of Settle, and para. 126 of R. v. Karafa, 2014 ONSC 2901.

60In sum, I am convinced beyond a reasonable doubt that the objectively dangerous conduct I have described above constitutes a marked departure from the norm. Nor is there any explanation for the conduct or evidence regarding the accused’s state of mind that might raise a reasonable doubt. For those reasons, and in accordance with the reasoning in Roy and Beatty, supra, a conviction of dangerous driving must follow.

Disposition

61For the foregoing reasons, I find Ms. Kraus guilty of impaired driving causing bodily harm and dangerous driving causing bodily harm.

Baltman J.