Court File and Parties
COURT FILE NO.: CR-21-000000046-00AP
DATE: 20220324
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
ARIANA YOO
Respondent
Joanne Bruno, Crown counsel for the Appellant
Mark Halfyard, Counsel for the Respondent
HEARD: January 14, 2022
RULING - SUMMARY CONVICTION APPEAL
BOUCHER J.:
[1] The respondent was acquitted by Justice Botham of the Ontario Court of Justice on June 16, 2021, of three charges: refuse a demand for a roadside sample, contrary to s.320.15, failing to stop after an accident, contrary to s.320.16, and dangerous operation of a motor vehicle, contrary to section 320.13. The Crown’s appeal relates only to the acquittal on the dangerous driving charge.
[2] The allegation of dangerous driving relates to the respondent’s conduct in driving away from the scene of an accident, where she had just driven through the lobby window of a condo building. Only the post-accident driving evidence was alleged to be dangerous, and the accident itself was characterized by the Crown as outside the considerations for the dangerous driving charge. The dangerous driving evidence consisted of the respondent backing in and out of the lobby of the building, the respondent stopping and picking glass off her windshield, the respondent veering near a parked car on exiting in the alley and making a turn into the oncoming lane on the street, witnesses testifying that they saw some of the driving and that they perceived the car to be driving fast and described the car as going in and out of lanes. There was evidence of the car not handling well after the accident, which then prompted the respondent to park the car in a nearby parking lot.
[3] On appeal, the Crown argues that the trial judge erred in law in her analysis of the actus reus and mens rea. The Crown argues the judge conflated the tests for determining the actus reus and the mens rea. As a result, the Crown says the trial judge did not consider all the circumstances in assessing the actus reus, and that the trial judge further erred in failing to properly apply the mens rea test and the required risk analysis.
[4] The respondent says that the Crown is putting the wording of the trial judge’s reasons under the microscope and reading it out of context, contrary to the guidance of the Supreme Court of Canada. Read as a whole, the trial judge’s reasons are argued to demonstrate understanding and application of the governing caselaw cited by the parties during the trial. The respondent reminds the court that there is no unreasonable acquittal argument available to the Crown, and that the Crown has not challenged the factual findings of the trial judge that supported the acquittal.
Dangerous driving: what are the elements of the offence?
[5] The offence of dangerous driving is found at s.320.13 of the Criminal Code.
Dangerous operation
320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.
[6] As with all criminal offences, the offence of dangerous driving has two components, the prohibited conduct, or the actus reus, and the fault element, or mens rea.
[7] The prohibited conduct is operating a motor vehicle in a manner that is dangerous, having regard to all the circumstances. The relevant circumstances include the nature, condition, and use of the place where the motor vehicle was operated, as well as the reasonably expected amount of traffic for the location, and the actual traffic conditions. See R. v. Roy, 2013 SCC 26 at para. 33; R. v. Beatty, 2008 SCC 5 at para. 34.
[8] In assessing the conduct, the trial judge must be mindful that not all driving errors are deserving of criminal liability. Driving is an inherently dangerous activity, with simple carelessness and momentary lapses of attention from even the most prudent drivers potentially causing significant risk or consequences. In assessing dangerous driving, the trial judge must not cast the net of criminal liability too widely by leaping to conclusions about dangerousness from the consequences of driving. Rather, the trial judge must engage in “a meaningful inquiry into the manner of driving”, with the focus of the inquiry on the manner of driving and the risks created by the manner of driving. Beatty paras. 34-35, 46; Roy paras. 34-37.
[9] The separate mens rea or fault element permits the trier to draw inferences about intent from the prohibited conduct. The court must use a modified objective test, that of whether the conduct was a marked departure from the standard of care of the reasonable person. Fault is then determined by drawing inferences from all the circumstances, including any evidence about the accused’s actual state of mind. Beatty paras. 32-43; Roy para. 39.
[10] In Roy, the Supreme Court suggested that it might be helpful to approach the issue of fault by asking two questions: 1) “whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible”; 2) if so, “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”. This two-question format is not a mandated template for analysis, but rather serves as a helpful tool to analyze the modified objective test. In essence, the trial judge may draw inferences about the accused’s intent by considering whether the accused’s conduct constituted a marked departure from the standard of care expected in all the relevant circumstances including consideration of any evidence about the accused’s state of mind or any explanation from the accused.
Did the trial judge err in assessing the prohibited conduct?
[11] The Crown argues that the trial judge conflated the actus reus and mens rea by not conducting distinct analyses of each element, and by using the marked departure standard to assess the actus reus instead of looking at the circumstances relevant to assessing the dangerousness of the driving.
[12] Several principles must be borne in mind in analyzing an oral decision of a trial judge. First, trial judges are assumed to know “the law with which they work day in and day out” (R. v. Sheppard, 2002 SCC 26) and are not required to articulate the law upon which they rely (R. v. Chevers 2011 ONCA 570); this is true particularly with regard to trite concepts like all criminal offences having distinct mental and physical elements. Second, a trial judge’s reasons must be considered in their entirety, with impugned passages construed in light of other passages and in the context of the whole trial proceeding, including the issues at trial and the parties’ submissions. (R. v. R.D.S. 1997 CanLII 324 (SCC), [1997] 3 SCR 484; R. v. REM 2008 SCC 51, [2008] 3 SCR 3; R. v. HSB, 2008 SCC 52, [2008] 3 SCR 32). Third, reasons function to explain to the parties why the decision was made, to provide public accountability, and to permit effective review by appellate courts, all in showing why the judge arrived at the decision rather than how. (R. v. REM [2008] 3 SCR 3; R. v. HSB, [2008] 3 SCR 3.)
[13] The trial judge did not use the terms actus reus or mens rea or prohibited conduct or fault element in her analysis. However, the trial judge is presumed to have understood that there was a fault element and a prohibited conduct element to the offence. The application of that presumption is justified here particularly because at the outset of the analysis, the trial judge recited the Criminal Code section, which describes the content of the actus reus, followed by the judge reading a passage from Beatty, the controlling authority cited by the parties, that described the mental element of the offence. Reasons for Judgment pp.21-22.
[14] For the actus reus portion of the offence, the judge must engage in a meaningful inquiry into the manner of driving. Here, after citing the relevant law, the trial judge analyzed the evidence relevant to the dangerous driving offence, as had been outlined by the parties in submissions. The trial judge focused on the evidence of two witnesses who saw the respondent driving at the relevant time in light of the qualifications on that evidence from cross and re-examination, and as juxtaposed against the objective video evidence of the driving.
[15] While there were other circumstances that could have factored into the trial judge’s inquiry, like the respondent backing out and driving in the accident scene again, or picking off glass from the windshield, the importance of those pieces of evidence is not clear, given the judge’s finding that people were not close to being impacted at that time, and specific evidence of danger flowing from that action was not apparent from the witness evidence. The trial judge also did not mention that the respondent drove the vehicle in a damaged state. However, it must be borne in mind that the trial judge had not found facts linking driving the vehicle in a damaged state to danger: rather, the findings were that there was no specific evidence of danger from the state of the car until it was noticed by the respondent herself that it was not handling well, which then prompted the respondent to park the car and stop driving.
[16] The trial judge’s focus was on some of the more problematic allegations regarding the driving, including that the respondent veered near a parked car, the turn into the oncoming traffic lane and the evidence of going in and out of lanes, as well as the issue of speed. In assessing those allegations, the trial judge concluded as facts that the respondent came close to a parked car but did not hit it, and that the respondent simply made a wider than normal turn that was quickly corrected without impact. The trial judge effectively found that the evidence about the respondent’s driving in and out of lanes was too unclear to form part of the evidentiary basis to support dangerousness. The trial judge found that neither the lane evidence, nor the elevated speed described would have created dangerousness, particularly when viewed against the trial judge’s own observations from the video evidence that the respondent drove at normal speed on the recording. Those factual findings are not challenged on appeal.
[17] The evidence inquiry summarized above is capable of being read as constituting the trial judge’s “meaningful inquiry into the manner of driving” for assessing the prohibited conduct. In that inquiry, the trial judge considered the relevant factors outlined in the case law and highlighted by the parties as relevant to the issue of dangerousness, apart from a few factors that, in the context, were less important to the issue and not determinative. The trial judge assessed the speed of the vehicle with reference to the video and the witnesses, the alleged problematic driving conduct in turning and veering, the relative state of the area late at night, the relative reduction of traffic at that time of day as evident in the video and from the witness evidence. Read in context, the trial judge performed the meaningful inquiry needed to assess the actus reus element, and in the end concluded that the driving was not demonstrated to be either dangerous or a marked departure. Reasons, p.24.
[18] While the trial judge referred to “marked departure” in assessing the evidence of driving, this did not mean the trial judge only engaged in a fault analysis. The trial judge explicitly referred to conclusions about both the dangerousness issue and the marked departure issue at the end of the analysis of the circumstances. The judge had to assess the same circumstances for both the dangerousness analysis and the fault analysis, because the fault needed to relate to the relevant driving circumstances.
[19] Read in context, given the issues at the proceeding, the submissions, the surrounding passages, and the factual findings, the trial judge’s reasons reflect no error in her conclusions about the prohibited conduct element of the offence.
Did the trial judge err with respect to the fault element?
[20] With respect to the fault element, the Crown argues that the trial judge did not follow the set format from the Supreme Court’s decision in Roy, and so improperly assessed the mens rea by failing to do a correct risk assessment.
[21] As I noted above, the Roy two-question formula is a helpful suggested method to determine the issue of fault, but not a required format. In any event, at trial, the parties did not argue the intent issue using the Roy two-question format and relied on the Beatty formulation of the marked departure standard, so it is understandable that the judge did not use that formulation.
[22] The Crown argues though that, by not asking the Roy questions, the trial judge failed to engage in the “risk analysis” required for the mens rea, that is whether a reasonable person would have “foreseen the risk and taken steps to avoid it if possible” and whether the accused’s failure to foresee the risk and take steps to avoid it was “a marked departure” from that reasonable person standard. The Crown argues the trial judge used instead more of a “no harm/no foul” analysis.
[23] While it is true the trial judge did not set up a detailed hypothetical of what the reasonable person would have done in the circumstances, the reasonable person hypothetical was implicit in the trial judge’s findings about the reasonableness of the conduct. Ultimately, the trial judge did not need to set up a hypothetical because the trial judge did not view the driving as risky or dangerous because of her factual findings about the driving and the relevant conditions at the time. The judge reviewed the video footage and concluded the driving was not “unusual”, that while Tim Horton’s area could have been busy if open, there was no evidence the store was open. The actual conditions were not particularly busy with traffic. The factual findings underlying those conclusions are not challenged on appeal. The trial judge’s assessment of the driving, based on those findings, was effectively a conclusion that the driving was within the scope of reasonable driving for the circumstances, and not rising to the level of criminality.
[24] The appellant also argues that there was a “conflation” error between the proof requirements for the mens rea and the actus rea, citing R. v. Reynolds, 2013 ONCA 433. Reynolds was a defence appeal from conviction where the court determined that the accused was convicted without the court explicitly considering the accused’s explanation that he had driven prudently. The Court determined there was no meaningful assessment of the mens rea in the circumstances, which ultimately prevented the Court of Appeal from assessing “whether the evidence gave rise to a reasonable doubt about whether the Crown had established the mental element.” Reynolds at para. 22. The appellant here similarly argues that the trial judge improperly melded the inquiry as to dangerousness with the inquiry for the fault element. However, in this situation, it is not clear that considering the same factors for both issues led to error that impacted the decision to acquit.
[25] For the analysis in this case, the factual circumstances that the trial judge needed to consider were common to both the mental and physical elements of this offence. This is not unusual in dangerous driving offences because trial judges typically need to draw some inferences about intent directly from their conclusions about the factual circumstances of the driving. See Beatty, Roy.
[26] Further separating the mens rea and actus reus considerations would not have a made difference in the analysis here. The trial judge adequately assessed the circumstances and risks most relevant for both inquiries, the relevant time, whether the actions, the turns and speeds were dangerous given the descriptive evidence about those issues, and then concluded that the driving was not dangerous in the context and that the evidence would not support a finding that there was a marked departure from the standard of care expected in the circumstances.
[27] In the context of the trial judge’s reasons, it was logical for the trier to have concluded that there was no marked departure, given the parallel conclusion that the driving was not itself dangerous. An accused could not be convicted of this offence based on intent alone, so once the trial judge had concluded the driving not to be dangerous, the inquiry was effectively over.
Conclusion
[28] Read in context, the trial judge’s reasons reveal no error with respect to the prohibited conduct or fault element that would require intervention. The reasons are capable of being read as having analyzed the factors relevant to the applicable legal standard. The appeal is dismissed.
Justice S. Boucher
Released: March 24, 2022
COURT FILE NO.: CR-21-000000046-00AP
DATE: 20220324
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ARIANA YOO
RULING – SUMMARY CONVICTION APPEAL
Boucher J.
Released: March 24, 2022