R. v. Button, 2011 ABQB 673

Court of Queen ’ s Bench of Alberta Citation: R. v. Button, 2011 ABQB 673 Date: 20111104 Docket: 101081115S1 Registry: Wetaskiwin Between: Her Majesty the Queen Respondent - and - Tyler Blain Button Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Tyler Blain Button was convicted of impaired driving and of dangerous driving in the Provincial Court. He appeals. The Evidence at Trial [ 2 ] On the evening of Sunday, July 19, 2009, Mr.

Button was driving on Main Street, Daysland, Alberta from the golf course to his parents’ home. Two friends with whom he had spent the early evening golfing were in the vehicle ahead of him. He passed his friends’ vehicle in the right lane and attempted to turn right at an intersection. His vehicle failed to complete the right turn. It proceeded across the street onto which Mr. Button was attempting to turn, across a strip of grass about 5 feet wide paralleling the street, and crashed into the Post Office building.

[ 3 ] Mr. Button and his two friends had started their golf game at about 6:30 p.m. that evening. One of his friends, Carly Dawn Lockhart, testified that when they met at the golf course she perceived that Mr. Button had been drinking before they met. She said he was not sober but not drunk when they began their golf game. She testified as well that during the golf game she, her boyfriend and Mr. Button drank a case of beer. If each had the same amount, they drank 4 beers each. [ 4 ] When the trio was finished golfing, around 8:00 p.m., Ms. Lockhart and her boyfriend got in one car and Mr.

Button got in another car to drive the short distance from the golf course to Mr. Button’s parents’ residence. When asked her impression of Mr. Button’s sobriety at the conclusion of the golf came she said, “Not sober”. When asked what sorts of things she observed in that regard while they were still at the golf course, she said that before they got in their respective cars, Mr. Button indicated he did not want to drive and asked her to drive his car. She declined because she had been drinking. She testified that in her opinion at that point Mr. Button’s ability to drive was probably impaired.

They left the golf course sometime between 8:00 and 8:30 p.m. [ 5 ] Ms. Lockhart testified that Mr. Button “sped past” the car she was in about a block from the intersection where the accident occurred. She estimated that the vehicle in which she was traveling was going 30 k.p.h. when he passed. She estimated Mr. Button was traveling at least 60 k.p.h. when he passed. [ 6 ] Within seconds of passing, Mr. Button’s vehicle collided with the Post Office building. Ms. Lockhart testified that Mr.

Button slowed down before the intersection, that it looked like he was going to turn at the intersection, but after starting to turn, he slid through the intersection and into the Post Office. [ 7 ] She testified that there was no other traffic and no pedestrians in the area. It was light and the road conditions were good. [ 8 ] Asked about her observations of Mr. Button’s condition after the accident, Ms. Lockhart said he was scared. [ 9 ] Ms.

Lockhart and her boyfriend left the scene to go buy Chinese food. [ 10 ] Sherrilynn Grove who lives very near the Post Office went to the scene of the accident about 10 minutes after the impact occurred. She saw Mr. Button outside the driver’s side of his vehicle, leaning on the vehicle. Mr. Button came over to her as she approached. He was swaying back and forth as he talked to her. She perceived immediately that he was “inebriated”. He said he was not happy with his choices that day - about how fast he was going, that he had been speeding, and that he knew better. He was upset.

She observed him emptying possessions out of the trunk of his car. He said he was doing so because he expected the car would be impounded. He changed his footwear as she watched. He weaved back and forth trying to get his feet properly into the sandals he was putting on. He made a call on his cell phone. [ 11 ] It did not appear to Ms. Grove that Mr. Button had been injured at all in the accident. When she first encountered him she noticed his nose was red and she asked if he had been hurt by the air bag.

He said, “No, that’s an old wound.” In cross-examination she acknowledged that in her police statement she said that it seemed to her that Mr. Button “was in shock a little bit”. She referenced his swaying back and forth and his disappointment with himself as the basis of her perception that he “was in shock a little bit”. Her statement to the police also included reference to her perception that Mr. Button was inebriated. [ 12 ] Ms. Grove noticed nothing “incredibly unusual” about Mr. Button’s speech.

She testified that there may have been slurring, but that she “really wasn’t paying a whole lot of attention to that”. [ 13 ] Clint Downie, the Town’s volunteer Deputy Fire Chief lived nearby, heard the impact, and went toward the scene of the collision to observe. From a third of a block away he saw Mr. Button move his vehicle back from the point of impact about 10 feet. Given his experience with car accident scenes, Mr. Downie was looking for signs of impairment in Mr. Button’s actions. He saw Mr. Button stand back to observe the damage and noted that he was wavering as he did so. He saw Mr.

Button as he moved around his vehicle and thought he was unsteady and had difficulty moving. He had the sense that Mr. Button was impaired. He noted as well that the driver’s side air bag was deployed in Mr. Button’s vehicle. In his experience attending other accident scenes, drivers of vehicles

whose air bags have deployed in an accident are rarely up and about after the air bag is deployed but he was unable to say whether in his experience the dazed and confused behaviour of such drivers is due to the bag or to other injuries. [ 14 ] A short time later Ms. Lockhart and her boyfriend returned to the scene and Mr. Button’s possessions were transferred into Ms. Lockhart’s boyfriend’s vehicle. [ 15 ] Mr. Button and the driver of the other vehicle drove away from the scene. Ms. Lockhart, stayed at the scene. The police arrived. Shortly thereafter Mr. Button returned to the scene on foot. [ 16 ] R.C.M.P.

Constable James Murphy responded with Constable Sheldon Shah to the scene of the collision. He received the call at about 8:30 p.m. while in Killam, Alberta and drove to Daysland. They arrived at the scene when Mr. Button and Ms. Lockhart’s boyfriend were away from the scene and only Ms. Lockhart was there. When Mr. Button returned on foot, he spoke to Constable Murphy. [ 17 ] Constable Murphy testified that Mr. Button seemed to keep his face directed away from Constable Murphy as he spoke. His eyes were red and a bit glazed. Constable Murphy could smell beer in the vehicle.

Constable Murphy noticed a strong “odour of liquor” on Mr. Button’s breath. Mr. Button was quite quiet and nervous. He did not appear to have any injury. When Constable Murphy asked him if he was injured he said he was fine. Later, when he dealt with Mr. Button at the R.C.M.P. Detachment in Killam, Constable Murphy could still detect the smell of liquor on his breath and his eyes were still glazed. [ 18 ] Constable Sheldon Shah dealt with Mr. Button at the police cells at 10:08 p.m. He detected a “pretty strong” odour of liquor on Mr. Button’s breath. The Decision under Appeal [ 19 ] In finding Mr.

Button guilty of impaired driving the Provincial Court Judge considered the following features of the evidence: - Ms. Lockhart’s evidence that Mr. Button had been drinking shortly before the collision and that in her view he was not sober when he drove away from the golf course. Her conclusion was based on her observations of what he had had to drink and how he acted after the drinking, including asking her to drive his vehicle. This permitted the inference that Mr. Button was conscious of his own impairment. - Ms. Grove’s assessment from her observations that Mr. Button was inebriated after the collision.

He had difficulty with balance. He was weaving back and forth. The weight of this evidence was enhanced by the fact it was consistent with Ms. Lockhart’s who knew Mr. Button and had been present when he was drinking. - Mr. Downie’s observations that Mr. Button had balance problems as he examined the damage to his vehicle after the collision. The Provincial Court Judge acknowledged this evidence was entitled to less weight than that of the others because Mr.

Downie had been a third of a block away when he made his observations. - The evidence of the two police officers that they noticed a strong odour of liquor on Mr. Button’s breath. - The manner in which Mr. Button was driving, in particular that he passed the vehicle Ms. Lockhart was riding in which was going 30 k.p.h. and was unable to negotiate the corner safely with the result that he collided into the Post Office building. [ 20 ] In finding Mr. Button guilty of dangerous driving, the Provincial Court Judge said this about the applicable test:

Count number 3 alleges dangerous driving. Of course, impairment is not necessary to found dangerous driving. The marked departure from the norm, which Mr. Prithipaul relies on as the test, is one description of that test by the courts, but the courts also say that the

section itself defines the test. And the test is that a motor vehicle that is operated in a manner that is 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 the place. [ 21 ] In applying that test to find Mr. Button guilty of dangerous driving the Provincial Court Judge relied on the following evidence: - Ms. Lockhart’s evidence that Mr. Button passed the vehicle in which Ms.

Lockhart was driving at a rate of speed which was high: - given the place in which he was driving (in the area of a school zone within the town of Daysland where even though it was a summer Sunday evening, one could expect children to be playing) - given the fact that he could not successfully negotiate a right hand turn and collided into the Post Office Building - a place where it is reasonable to expect people to be - The evidence that Mr.

Button’s ability to operate a motor vehicle was impaired. [ 22 ] The Provincial Court Judge concluded: I’m satisfied, given that [the high speed], together with what I find is the impairment of his ability to operate a motor vehicle, in its totality, constitutes dangerous driving, and accordingly, I find him guilty on count number 3 as well. The Appeal as to Impaired Driving [ 23 ] On this appeal Mr. Button first submits that the Provincial Court Judge erred in his assessment of Mr. Button’s impairment. He submits that the Provincial Court Judge employed evidence of physical symptoms, indicating that Mr.

Button’s self-control was slightly impaired, to conclude that his ability to drive was impaired. [ 24 ] I reject this submission. The Provincial Court Judge employed evidence that Mr. Button had consumed a significant amount of alcohol shortly before driving, evidence that Mr.

Button himself was reluctant to drive thereafter, evidence of three observers who concluded from his behaviour that he was “not sober”, “inebriated” and “impaired”, evidence that the smell of alcohol was on his breath, and evidence that he had been unable to negotiate a simple right turn onto a street with which he must have been familiar, after slowing down to turn, in near perfect road, light and weather conditions, without colliding into a building located across the street, to conclude that, beyond a reasonable doubt, his ability to drive was impaired by alcohol.

In my view there is no basis for concluding that the Provincial Court Judge erred in doing so. [ 25 ] Mr. Button’s second submission on the appeal of the impaired driving conviction is that the Provincial Court Judge erred in referring to expert medical evidence that was not before him. This is a reference to the following passage from the Provincial Court Judge’s reasons: . . . Mr. Prithipaul has suggested in his questioning that [Mr. Button’s weaving back and forth, his difficulty with balance] should be attributed to shock. Quite frankly, I have no evidence of shock.

It is not always that somebody who is in an accident is in shock. Indeed, I harken to another case that I have just decided, where there was a death involved, where a medical doctor examining a woman who had

hit head-on another car and was coming out, said, there was no shock. So without some evidence that there was shock, I am notprepared to attribute the balance problems that Ms. Grove noticed to shock. [26] Mr. Button submits that in fact there was evidence before the Provincial Court Judge that Mr. Button was suffering fromshock after the accident. He points to evidence that Ms. Grove told the police that it seemed to her that Mr. Button was “in shock a littlebit” which impression she confirmed in cross-examination. Mr.

Button submits further that the Provincial Court Judge’s reference towhat he had learned in another trial, in particular, that people can endure significant motor vehicle accidents without suffering shock, wasimproper. [27] I also reject this submission. Ms. Grove’s statement to police that it seemed to her that Mr. Button was in shock was rightlygiven little or no weight by the Provincial Court Judge. Other features of the evidence, in particular that Mr.

Button changed hisfootwear, unloaded his damaged car, left the scene with his friend, and walked back to the scene, and said, when specifically asked byboth Ms. Grove and the police officer, that he was not injured, together with the fact that it was not suggested that Ms. Grove had anymedical expertise whatsoever, justify the Provincial Court Judge’s conclusion that Ms. Grove’s mention of shock was not evidence ofshock. [28] The Provincial Court Judge’s reference to what he had learned in another case was not reliance on evidence not before theCourt.

It was no more than a way of underlining that the conclusion that a person has suffered shock in the absence of some reliableevidence to support it does not give foundation for a reasonable doubt in the face of other convincing evidence that the person’s ability todrive was impaired by alcohol. The Appeal as to Dangerous Driving [29] As to the dangerous driving conviction, Mr. Button submits that in his statement of the test to be applied, the ProvincialCourt Judge erred. The Provincial Court Judge’s reference to the test derived from the relevant

section of the Criminal Code (driving ina manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place atwhich 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)is the test for the actus reus of the offence of dangerous driving. In addition, the Court must be satisfied beyond a reasonable doubt thatthe mens rea of the offence has been proved.

In order to do so, the Court: . . . should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that theconduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’scircumstances. per Charon J. for the majority of the Supreme Court of Canada in R. v. Beatty, 2008 SCC 5 , [2008] 1 S.C.R. 49 at para. 43 [30] Mr. Button submits that both in his statement of the relevant test and in his assessment of the evidence the Provincial CourtJudge failed to assess whether Mr.

Button’s driving was in fact a marked departure from the standard of care that a reasonable personwould observe. [31] The Crown submits in response that the Provincial Court Judge recognized both the mens rea test and the actus reus test andshould not be read as suggesting that the tests were alternatives. In any event, the Crown submits, referring to the submissions ofcounsel before the Provincial Court Judge, that whether mens rea was established was not a “live issue”.

Further the Crown says theevidence at trial was clearly sufficient to establish the presence of the required mens rea beyond a reasonable doubt and refersparticularly to the evidence of Ms. Grove that Mr. Button expressed disappointment with his actions to her. [32] I agree with Mr. Button’s submissions in this context. It is not clear from the reasons of the Provincial Court Judge that herecognized that the two tests he referred to must both be satisfied, one to establish the presence of the mens rea beyond a reasonabledoubt and the other to establish the presence of the actus reus beyond a reasonable doubt.

The Provincial Court Judge’s reasons seem toindicate that he considered the tests to be alternatives. This indication is confirmed in the part of his reasons where the Provincial CourtJudge applies the test. He makes no reference to evidence other than evidence which goes to the actus reus. He does not, in particular,

assess the evidence of Ms. Grove as to Mr. Button’s subjective mental state. [ 33 ] In my view, in a criminal prosecution whether or not mens rea has been proved beyond a reasonable doubt is always a live issue. Failure of counsel to do more than refer to the mens rea test is not a concession that mens rea has been proved. Nothing less than such a concession could render the presence of mens rea not a live issue. [ 34 ] In my view, Mr.

Button is entitled to reasonable certainty that the determination that he is guilty of dangerous driving has been made after an assessment of the evidence by a trial judge who has correctly instructed himself as to the legal test to be applied. [ 35 ] The Provincial Court Judge’s reasons here do not, in my view, provide that reasonable certainty. They contain an error of law. The standard of review in respect of an issue of law is correctness. Applying that standard, Mr.

Button’s appeal succeeds in respect of the dangerous driving conviction. [ 36 ] I allow the appeal in respect of the dangerous driving conviction and order a new trial. [ 37 ] I confirm the impaired driving conviction and dismiss the appeal in respect of it. Heard on the 22 nd day of September 2011. Dated at the City of Edmonton, Alberta this 4 th day of November 2011. Brian R. Burrows J.C.Q.B.A. Appearances: Luke Faught for the Crown Respondent Vernon G. Eichorn for the Appellant