Court File and Parties
Barrie Court File No.: CR-18-0000022-00AP Date: 2018-10-02 Superior Court of Justice - Ontario
Re: R. v. Tessa-Lyn Wookey
Before: Justice J. Di Luca
Counsel: K. Hull, Counsel for the Crown, Respondent J. Wilkinson, Counsel Ms. Wookey, Appellant
Heard: August 27, 2018
Endorsement
[1] Following a trial before Gattrell J., the appellant, Ms. Wookey, was convicted of Dangerous Driving, Impaired Driving and Refuse Breath Sample. She was sentenced to a fine of $2,500 as well as a driving prohibition of 18 months. She appeals against her convictions and sentence.
[2] In support of her appeal, she argues the following:
a. The verdicts were unreasonable; b. The reasons for conviction were inadequate due to their failure to reveal a consideration of all the evidence including conflicting evidence; and, c. The length of the driving prohibition was excessive in the circumstances of this case.
[3] In response, the Crown argues that the conviction appeal amounts essentially to a request to have this court re-try the case and come to different conclusion. The Crown also argues that there is no error in principle in the global sentence imposed, nor is the sentence outside of the range.
[4] For the reasons that follow, I agree that the convictions in relation to the charge of Dangerous Driving and Impaired Driving are tainted by legal error as revealed in the Reasons. In my view, a new trial is required on these counts. However, I see no error in the trial judge’s findings and analysis in relation to the Refuse Breath Sample offence and I would dismiss the appeal on that count. In the circumstances, I need not address the sentence appeal, and I note that the sentence imposed by the trial judge on the Refuse Breath Sample offence, which was a fine of $1,000 and a 12-month driving prohibition, is fit and appropriate for the offence.
Background Facts
[5] At around 8:00 a.m. on the morning of July 16, 2016, the appellant was driving her vehicle northbound on Highway #400 towards Barrie. She was followed by Mr. Couture, a professional truck driver. During a period of approximately 20 minutes, Mr. Couture made a number of observations about the appellant’s driving.
[6] In particular, he observed the appellant’s vehicle to be swerving within her lane. On a few occasions he saw her vehicle cross approximately half way into another lane. The appellant’s speed was between 75 km/h and 105 km/h, but it was not varying in accordance with the flow of traffic which was heavy. The appellant almost “sideswiped” other vehicles, almost rear ended a vehicle twice and caused one vehicle to take evasive action to avoid a collision.
[7] The driving concerned Mr. Couture and he contacted 911 to report his concerns. A police officer, Cst. Crowe, was dispatched to the area and he followed the appellant briefly before putting on his emergency lights. It took the appellant approximately 500 metres to bring her car to a stop and she did so in the far left live lane of the highway.
[8] While stopped in the live lane of the highway, Cst. Crowe spoke with the appellant. He noted a smell of alcohol coming from the appellant’s mouth and made a demand for a breath sample to be provided into a roadside screening device. The appellant refused outright on two occasions and was arrested for the offence of Refuse Breath Sample.
[9] The appellant was taken to a nearby ONroute Service Centre just off the highway. Once there, the appellant was provided with her rights to counsel. The appellant was again asked to provide a breath sample and she again refused. A short time later, she asked to speak with her father. The request was accommodated and she was eventually put in touch with counsel, who provided standard legal advice appropriate in the circumstances.
[10] While at the ONroute Service Centre, Cst. Crowe spoke with Mr. Couture who advised of his observations of the appellant’s driving. On the basis of that discussion, the appellant was also arrested for Dangerous Driving and Impaired Driving. Cst. Crowe also searched the appellant’s vehicle and located a partially consumed bottle of white wine in the back seat area of the vehicle.
Dangerous Driving
[11] The trial judge made a number of findings of fact that were open to him to make on the record before him. In particular, he accepted the evidence of the truck driver, Mr. Couture, who testified about his observation of Ms. Wookey’s vehicle. On the basis of this evidence, he accepted that Ms. Wookey’s vehicle weaved and drifted in and out of its lane a number of times; that Ms. Wookey’s speed varied between 75 km/h and 105 km/h in a manner that was not responsive to the flow of traffic; and that on three occasions Ms. Wookey’s vehicle almost “side-swiped” other vehicles, causing one of those vehicle to take evasive action. He also accepted the evidence of the arresting officer, Cst. Crowe, who testified that he followed Ms. Wookey with his emergency lights on for approximately 500 metres before she stopped in the far left live lane of traffic on Highway #400.
[12] The trial judge correctly summarized the legal test for dangerous driving and made the following findings on the actus reus of the offence:
I accept the evidence of Mr. Couture and Constable Crowe with respect to the manner of driving. These were not momentary lapses or isolated incidents. This was a continuing course of conduct on a busy highway where the speed limit is 100 kilometres per hour. Ms. Wookey nearly sideswiped three vehicles. One had to take evasive action. She nearly rear-ended a motor vehicle on two separate occasions. She was a hazard on the highway that day. The manner of her driving was dangerous to the public, having regard to all the circumstances including the nature, condition and use of the place at which her motor vehicle was being operated.
[13] The entirety of the trial judge’s analysis of the mens rea of the offence is as follows:
I am satisfied beyond a reasonable doubt that her driving conduct amounted to a marked departure from the standard of care that a reasonable person would have observed in the circumstances. There will be a finding of guilt on the charge of dangerous driving.
[14] In the recent decision of R. v. Laverdure, 2018 ONCA 614, the Court of Appeal discussed the necessity of conducting a separate analysis of the mens rea component of the offence of dangerous driving. The need to address the fault component separately is required in order to avoid simply finding intent on the basis of the completed actus reus of the offence. In this regard, the Court of Appeal explained at paras. 23 and 25-26:
The offence of dangerous driving is not proved by showing only that the accused drove in a manner that was dangerous to the public. There is a fault element. The Crown must prove that the manner of driving amounted to a marked departure from the standard of care that a reasonable person would observe if placed in the circumstances in which the accused found himself. The fault component of dangerous driving focuses on the conduct of the accused and is intended to distinguish driving that is sufficiently egregious in all of the circumstances to warrant criminalization from other less serious forms of bad driving, such as careless driving: see R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at paras. 36-43, 47-49.
The trial judge moved from a description of the requisite mens rea to an application of the law to the facts as he found them. In doing so, he considered at length whether the driving was dangerous to the public in all of the circumstances. Having found that it was dangerous in all of the circumstances, the trial judge did not engage in a similar analysis of the evidence as it related to the mens rea issue. Rather, the trial judge appears to have concluded that the act of driving dangerously necessarily constituted what he referred to as a “marked departure from what a reasonable person would expect in the circumstances”. He did not identify the ‘how and in what way’ the appellant’s driving went beyond negligence or carelessness and reached the level of a marked departure from the standard of care that a reasonable person would show in the same position: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 30; R. v. Reynolds, [2013] ONCA 433, at para. 18.
The trial judge’s reasons reveal a full appreciation of the evidence and the nature of the mens rea requirement for the offence. Unfortunately, the trial judge’s relating of the evidence and the facts as he found them to the fault component of the offence, does not provide an explanation for “how and in what way” the nature of the appellant’s driving showed the necessary marked departure from the standard of care that a reasonable person would show in the same circumstances.
[15] The Court of Appeal found that in some cases, the driving would be sufficiently egregious as to permit a finding of the requisite degree of fault without any additional analysis of the evidence that relates to mens rea. However, they did not find on the facts in that case that the conclusion was warranted.
[16] In my view, the trial judge in this case committed the same error as the trial judge in Laverdure. After reviewing the evidence in support of the finding that the driving was dangerous, he simply concluded that the driving also demonstrated a marked departure. He did not explain the “how and why”.
[17] There was a real issue in this case as to whether the driving was negligent or careless as opposed to dangerous. Finding that the driving went beyond a momentary lapse was not a sufficient basis upon which a finding of “marked departure” could necessarily rest. The requisite degree of fault could not simply be inferred or assumed from the nature of the driving as found by the trial judge.
[18] Much like the Court of Appeal in Laverdure, I am satisfied that the failure to analyze the evidence relating to the fault component of the offence constitutes an error in law. In my view, the evidence required to establish the mens rea in this case was very thin. Nonetheless, there was a basis on which a trier of fact could be satisfied beyond a reasonable doubt that Ms. Wookey was driving dangerously with the requisite degree of intent. In the circumstances, while I quash the conviction, I order a new trial instead of ordering an acquittal.
Impaired Driving
[19] The trial judge correctly identified the test for impaired driving, noting that any degree of impairment by alcohol of the ability to drive could suffice for conviction if proven beyond a reasonable doubt. In this case, apart from the poor driving, there was little evidence of impairment. The appellant presented with an odour of alcohol on her breath and some slight confusion, but none of the other traditional indicia of impairment were present. The trial judge did not rely on the presence of the bottle of wine to support an inference of impairment.
[20] In his Reasons, the trial judge acknowledged the sparse evidence of impairment. He stated “…there is no other physical evidence of impairment. Ms. Wookey walked and talked without anything untoward being noticed. No bloodshot eyes, no swaying, nothing”.
[21] The trial judge went on to analyze the nature of the driving and he concluded as follows:
Here we have terrible driving over a 20 minute period, although not aggressive driving, as was pointed out. That type of driving might be explained as intentional in the absence of impairment, but no one would intentionally choose to drive as Ms. Wookey did, varying speeds from 75 kilometres per hour to 105 kilometres per hour, weaving out of her lane, almost sideswiping or rear-ending other vehicles. Something was interfering in a significant way with her ability to drive and/or with her perception and judgment. Stopping in a live lane on a busy 400 series highway showed extremely bad judgment.
In all the circumstances, the obvious explanation is that her ability to operate a motor vehicle was impaired by alcohol and I so find beyond a reasonable doubt…
[22] The appellant argues that this finding is unreasonable. She notes that the finding of impairment was not the only reasonable conclusion available on the evidence. She also argues that in arriving at this finding, the trial judge failed to address the video recording taken by the appellant of her interaction with the arresting police officer after her arrest. The appellant argues that the video is positive evidence of a lack of impairment and, as such, it was incumbent on the trial judge to specifically address this evidence in his Reasons.
[23] I agree with the defence that the trial judge erred in his analysis of the issue of impairment. The trial judge started with the premise that no one would intentionally drive in the manner the appellant did. He then turned to the nature of the driving and held that in the absence of other evidence explaining the driving, the only reasonable and available explanation was that the appellant’s ability to drive was impaired. The difficulty with this reasoning is that the trial judge also convicted the appellant of dangerous driving in relation to the same driving without making any reference to her impairment. While it would have been open for the trial judge to rely on the appellant’s state of impairment in his analysis of the dangerous driving charge, he did not do so. The result, in my view, is that contrary to the trial judge’s finding, there was another possible explanation for the appellant’s driving, she could have been driving dangerously or, as argued by the defence, carelessly or negligently. In my view, it was incumbent on the trial judge to address these possibilities prior to concluding that the only reasonable explanation for the driving was impairment. This error taints the conviction.
[24] Having said that, I am not satisfied that the verdict is unreasonable. The combination of the smell of alcohol, the decision to stop the car in a live lane, the nature of the driving and any possible inferences that might arise from the failure to provide a breath sample, could readily form a sufficient basis for a conviction. [1] Moreover, the test for impaired driving only requires a slight degree of impairment of the ability to drive and the impairment need not be the only cause of the bad driving. In the circumstances, an acquittal is not appropriate. Rather, a new trial is required.
[25] While I need not address the issue, I will add that in my view, the trial judge made no error in relation to the video. The trial judge acknowledged that apart from the driving, the only evidence of impairment was the smell of alcohol. The video did not undermine that finding. There was no need for the trial judge to specifically address the video in relation to his finding of impairment in these circumstances.
Refuse Breath Sample
[26] In his Reasons, the trial judge accurately reviewed the evidence in relation to the appellant’s various refusals to provide breath samples. He noted that the appellant clearly and unequivocally refused to provide a breath sample at the scene of her initial stop on the highway. The trial judge also noted that the appellant again refused to provide a breath sample once she had been taken to the ONroute Service Centre, after the rights to counsel had been given but before she had asked to exercise her rights. The trial judge made a finding that this further refusal occurred between 8:31 and 8:40 a.m., some 15 to 20 minutes after the initial stop on the highway. At approximately 9:05 a.m., Ms. Wookey indicated that she wished to speak to her father to arrange for a ride. She also asked to speak to counsel, and at approximately 9:33 a.m. she spoke to her counsel. At approximately 9:40 a.m., as Cst. Crowe was preparing release documents, Ms. Wookey used her cell phone to record her discussion with the officer. In the recording, Ms. Wookey states “and you are refusing to let me do the Breathalyzer test.”
[27] In cross-examination, defence counsel asked the officer a number of questions about giving detained persons additional opportunities to provide breath samples. The officer candidly agreed that he often provided additional opportunities as he found that people would change their mind after either the passage of time or following consultation with counsel.
[28] Prior to being confronted with the video, Cst. Crowe testified that if the appellant had ultimately asked to provide a sample he “probably” would have given her an opportunity to provide one. That said, he initially indicated that he could not recall whether she ever asked to provide a sample.
[29] The video taken by the appellant was played for the officer, and it was suggested to him that the appellant’s comments supported an inference that she had asked to provide a sample at some point prior to the video. The officer maintained that he had no recollection and indicated that if she had, he would have said it was “too late” as he had given her a number of chances. In re-examination, he suggested a recollection of the request by the appellant and indicated that he declined to provide a further opportunity as he had already provided sufficient opportunities.
[30] The trial judge referred to the “last chance” line of authority and acknowledged that while the line of authority generally applied in cases where there was a series of incomplete or partial attempts to provide a sample, it could apply in circumstances where an extended or renewed opportunity to provide a breath sample was initiated by the police officer.
[31] The trial judge made a factual finding that the officer had not renewed or extended an opportunity to the appellant to provide a breath sample after her third refusal at the ONroute Service Centre. He noted that the appellant may well have raised the issue at a later point, but that would have been approximately one hour after her last refusal. On that basis, he concluded that the appellant had not forthwith complied with the demand for a breath sample.
[32] On appeal, Ms. Wookey argues that the trial judge failed to properly assess the evidence that could have given rise to a reasonable doubt that Cst. Crowe led the appellant to believe that they were engaged in an ongoing discussion about providing a breath sample, thereby necessitating the need for a “last chance” warning.
[33] In response, the Crown notes that the trial judge made factual findings that are dispositive of the complaint.
[34] I agree with the Crown. The appellant clearly and unequivocally refused to provide a breath sample upon detention at the roadside and again after her arrival at the ONroute Service Centre. In accordance with R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 at para. 45, drivers upon whom roadside screening demands are made are required to comply forthwith or immediately, “and not later, at a time of their choosing, when they have decided to stop refusing!”
[35] The offence in this case was complete, more than once, before the appellant asked to speak with her father and ultimately spoke with counsel.
[36] The officer’s evidence on his practice of providing further opportunities to provide breath samples was neither clear nor consistent. That said, the trial judge made a factual finding that after the third refusal, the officer did not initiate a renewed discussion about providing a breath sample. On this record, that finding was open to him to make. His reasons on this issue, while not lengthy, are sufficient to permit appellate review and demonstrate that he was alive to the issue of the officer’s developing recollection.
[37] In the absence of the officer re-initiating a discussion about providing a breath sample, the completed offence of refuse breath sample remained precisely that, a completed offence of refuse breath sample. This is not a case where the “last chance” line of authority discussed by Durno J. in R. v. Grant, 2014 ONSC 1479, applies.
[38] This ground of appeal fails.
Conclusion
[39] The conviction appeals in relation to the Dangerous Driving and Impaired Driving counts are allowed and new trials are ordered. The conviction appeal in relation to the Refuse Breath Sample count is dismissed.
[40] In view of the new trial order, I need not consider the global sentence appeal. The sentence appeal as it relates to the sentence imposed on the refuse Breath Sample Count is dismissed. There was no suggestion of any error in relation to that sentence standing alone.
Justice J. Di Luca Date: October 2, 2018
[1] The Crown did not argue the proviso in its factum or in oral submissions. This is understandable as the appeal was framed on the basis of an unreasonable verdict argument. Nonetheless, in the absence of a request by the Crown to consider the proviso, I decline to consider its applicability in the circumstances of this case, see R. v. P.G., 2017 ONCA 351.