BARRIE COURT FILE NO.: CR-18-22-AP

DATE: 20180302

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TESSA-LYN WOOKEY

Applicant

Shannon Curry, for the Crown

Joseph Wilkinson, for the Applicant

HEARD: February 26, 2018

RULING ON APPLICATION FOR A STAY

HEALEY J.:

[1] The applicant is appealing her convictions for one count each of dangerous driving, operation of a motor vehicle while impaired, and refusing to comply with a breath demand. The trial judge imposed a driving prohibition pursuant to s. 259 of the Criminal Code for 18 months for the impaired conviction and 12 months for refusing to comply, to run concurrently.

[2] The applicant applies pursuant to s. 261(1) of the Criminal Code for a stay of the driving prohibition imposed by the trial judge.

[3] The applicant bears the burden of satisfying this court that she is able to meet a three-part test:

(a) The appeal has arguable merit;

(b) The applicant will experience hardship if the application is not granted; and,

(c) The applicant is not a danger to the public.

Merit

[4] The defence argues that the trial judge made at least two errors in convicting the applicant of impaired driving. First, the judge failed to explain how or whether he had factored in the evidence from a civilian witness, elicited on cross-examination that highway speeds reduced to 80 kilometres per hour in construction zones. Second, the trial judge failed to consider whether the applicant’s behaviour, as shown on an audio/videotape recording made by the applicant on her cell phone (the “recording”), raised a reasonable doubt regarding impairment.

[5] In convicting the applicant of failing to comply with a breath demand, her counsel argues that the trial judge failed to properly address a conflict in the testimony of the arresting officer with respect to whether the applicant had requested to blow into the device following a phone call to her father and subsequently, a lawyer, and whether the officer would have permitted her to provide a sample had she asked. Although a transcript of the evidence is not yet available, the applicant’s counsel, who was trial counsel, advised this court that the officer provided two varying answers when the question was posed to him at different times during his cross-examination. The judge’s reasons do not deal with that inconsistency. He also failed to consider evidence from the recording that suggests that the applicant had made a later request, which the officer ignored. The applicant seems to have an arguable position with respect to the conviction under s. 254(5) of the Criminal Code.

[6] The appeal of the conviction under s. 253(1) for impaired driving is on shakier footing. The trial judge’s reasons indicate that he had considered the evidence of the civilian witness, Mr. Couture, and notes that, “he was a careful witness and I accept his evidence.” Part of that accepted evidence was Mr. Couture’s rejection of defence counsel’s suggestion that the applicant’s driving behaviour, including her speed, could be explained by the fact that she was passing through construction zones on Highway 400 while he observed her. While it is true that the trial judge did not mention the behaviour of the applicant on the recording in reaching his decision on the impaired charge, there was other evidence that he averred to in reaching the conclusion that the applicant was impaired: an odour of alcohol in her car, combined with erratic driving patterns that included nearly side swiping three vehicles, among them a transport trailer, nearly rear-ending another vehicle on two separate occasions, and the fact that she came to a stop in the fast lane when he was pulling her over. Having accepted Mr. Couture’s evidence that the speed changes and erratic driving had nothing to do with construction zones, the trial judge convicted on the basis of evidence that he found reliable.

[7] There is no indication from the reasons that the trial judge was urged to find that the evidence provided by the recording should raise a reasonable doubt. Given the trial judge’s thorough review of both the evidence and defences raised, it is likely that such a position would have been set out had it been a focal point of the defence argument in relation to impairment. Instead, the focus of the evidentiary value of the recording appears to have been on the refusal charge. Nonetheless, I accept that the recording was evidence that was before the judge, that it may have been probative of the applicant’s condition, and yet was not mentioned by the trial judge when reaching his conclusion that he would convict on the s. 253(1) charge.

[8] In summary, the appeal is not frivolous or without merit.

Hardship

[9] I accept from the applicant’s evidence that her ability to earn her living by servicing clients who reside outside of Toronto has been affected. The applicant drives to locations surrounding Toronto to meet with clients, as a nutrition and health consultant. She has been building her client base for three years and deposed that she will lose that portion located outside of Toronto, which she estimated to be at least fifty percent. A loss of clients for someone in a self-employed or entrepreneurial career may constitute hardship. For the applicant, although housing is provided for her by her father, the loss of up to fifty percent of her clientele, combined with the associated expense of having to travel by public transit to perform her work, constitutes hardship.

Risk to the Public

[10] The applicant has no prior driving convictions and no criminal record at all. Following the ninety day post-arrest period, there were no incidents leading up to the trial.

[11] However, in this case the serious circumstances involved suggest that a court should be reluctant to grant the stay requested. The applicant has been found to be someone who, while impaired, drove on a busy highway at fluctuating speeds for a lengthy period of time and in a manner that risked the safety of numerous individuals. Those individuals include not just those whose lanes she drifted into or who she almost rear-ended, but those who could have been involved in any accident caused by her.

[12] I cannot conclude that the danger to the public is low, if the stay is granted. Even the imposition of a term by which the applicant’s blood alcohol content must be zero at all times while driving will not provide such reassurance, given that she appears to have driven on a 400 series highway in an impaired state even with well-publicized and strict drinking and driving penalties in place. Despite her lack of record, the potential for further risk to others is real, not hypothetical. The applicant has been unable to satisfy this court that she is not a danger to the public.

Conclusion

[13] For the above reasons, this court orders that the application is dismissed.

Madam Justice S.E. Healey

Released: March 2, 2018