R. v. Harely, 2019 ONCJ 594

CITATION: R. v. Harely , 2019 ONCJ 594 COURT FILE No.: 0611-998-17-1361 DATE: August 26, 2019 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — ezra harely Before Mr. Justice Richard H.K. Schwarzl at Orangeville Heard on March 20 and 21, and August 19, 2019 Reasons released on August 26, 2019 Ms. Marie Balogh ................................................................................................. for the Crown Mr.

Leo Adler................................................................................................... for the Defendant SCHWARZL, J.: 1.0: INTRODUCTION [ 1 .] On September 8, 2017 the Defendant, Mr. Ezra Harely, was stopped by the police following a traffic complaint. He was charged with three criminal driving offences: impaired driving, driving with excess blood alcohol concentration, and dangerous driving. [ 2 .] A trial was held.

After the evidence was complete and after the matter was adjourned to allow the parties to prepare written submissions, the Crown invited me to dismiss the two drink/drive charges.

As a result, verdicts of not guilty were recorded on counts 1 and 2, leaving only the dangerous driving charge (count 3) to be decided. 2.0: ISSUE: WAS THE DRIVING “DANGEROUS”? 2.1: The Issue Stated [ 3 .] There is only one issue to be determined, namely whether or not the prosecution has proven beyond a reasonable doubt that the driving of the Defendant transcended civil carelessness to criminal dangerousness. 2.2: Positions of the Parties [ 4 .] The Defendant submits that of the two witnesses who gave evidence about the manner of driving, the citizen Mr.

Perry was an honest, but not particularly reliable witness, while the police officer, P.C. Williams should be believed when he said he thought the driving was merely careless. The defence submits that the carelessness might plausibly be explained by the Defendant eating while driving and/or needing to urinate.

They argue that neither the criminal act nor the criminal intent have been proved to the required standard. [ 5 .] The Crown submits that the evidence establishes a sustained pattern of bad driving that is a marked departure from what is expected in the circumstances and that the Defendant drove that way of his own volition notwithstanding his awareness of the risk to public safety. The submit that they have proven beyond a reasonable doubt that the driving was well beyond being simply careless and was, in fact, dangerous.

2.3: Relevant Legal Principles [6.] With respect to the criminal act of dangerous driving, it must be proven that the driving itself, and not its consequences, whenviewed objectively and in context of the surrounding events, was dangerous to public safety. Regard must be given to all thecircumstances including the nature, condition, and use of the place at which the motor vehicle was operated, and the amount of trafficthat was, or might reasonably be expected, to be at that place: R. v. Roy, 2012 SCC 26 , [2012] 2 SCR 60, R. v. Beatty, 2008SCC 5 , [2008] 1 SCR 49.

Speed, in and of itself, may, depending on all of the circumstances, be proof of danger operation of amotor vehicle: R. v. Marton, [2017] O.J. No. 3392 (S.C.J.); R. v. Laverdure, [2018] O.J. No. 3595 (C.A.). [7.] With respect to the mental element to be proven, there must be evidence beyond a reasonable doubt that the driving representeda marked departure from the standard of care that a reasonable person would have observed the Defendant’s circumstances. Absentdirect evidence of the driver’s state of mind, two questions should be asked.

The first question is whether, in light of all circumstances, areasonable person would have foreseen or been aware of the risk to public safety and taken steps to avoid it. If the answer to the firstquestion is yes, then the second question is whether the driver’s failure to see and takes steps to avoid the risk to public safety was amarked departure from the standard of care expected by a reasonable person in the driver’s circumstances: Roy, supra; Beatty, supra.

Ifthe answer to either question is no, then the mental element has not been proven. [8.] Evidence showing dangerous operation of the vehicle may be a factor in determining the "marked departure" fault element, butthat evidence may not be enough standing alone. The trier of fact must go on and examine all of the circumstances relating to thedefendant’s state of mind at the relevant time: R. v. Richards, 2013 ONCA 433 , [2013] O.J. No. 2933 (C.A.). [9.] Momentary lapses of attention or civil carelessness by a reasonably prudent driver cannot prove the mental element: Beatty,supra; Roy, supra.

Nevertheless, driving in a manner which is a marked departure from the standard expected of a reasonable person canoccur within seconds when considering all of the circumstances: R. v. Willock, (ON CA), [2006] O.J. No. 2451(Ont. C.A.). [10.] In

summary, when considering the mental intent element the trial judge must explain how and in what way the driving wentbeyond negligence or carelessness and reached the level of a marked departure from the standard of care that a reasonable person wouldhave exhibited: Roy, supra; Laverdure, supra; R. v. Reynolds, supra. 2.4: Application of Legal Principles to this Case [11.] With respect to the evidence of Mr. Perry, I found him to be an impressive witness.

Taking his evidence as a whole, he painted avivid picture of very bad driving by the Defendant from just south of Orangeville to just north of Brampton, a distance of manykilometers. His portrait of the driving was both credible and reliable. He was internally consistent. His evidence was externallyconsistent with the driving witnessed by P.C. Williams. Lapses in Mr. Perry’s memory and uncertainty in some details do not denigratefrom his overall reliability; to the contrary, his candour about not recalling everything enhanced his overall reliability. Mr. Perry, likeP.C.

Williams, was in a good position to view the driving and the considerable inattention of the driver to traffic, lanes, rules of the road,and speed. It was clear that Mr. Perry’s attention was zeroed in on the driving of the Defendant’s car and not the reactions, if any, ofother traffic. [12.] I also found P.C. Williams’ evidence on the subject of driving evidence to be reliable. He was in an independent observer whofollowed the Defendant’s car for several hundred metres before pulling it over.

The failure of the officer to report in his notes that theDefendant ignored the officer’s lights and sirens does not raise any concerns about the reliability of the officer’s evidence. This isbecause this evidence was both consistent with the officer’s other documented observations and it was consistent with the wholly similarand independent evidence of Mr.

Perry. [13.] Assessing the evidence regarding driving as a whole, I find the that the Crown has proven beyond a reasonable doubt that,viewed objectively, and in the context of the circumstances I shall describe as fact, the manner in which the Defendant drove wasdangerous within the meaning of the criminal law. [14.] The Defendant drove south on a four lane highway – two lanes southbound and two lanes northbound plus a centre turn lane -with a speed limit of 80 km/h except in the Village of Caledon where the limit was 50 and the hamlet of Victoria (Hwy 10 and KingStreet) where the limit was 60.

[ 15 .] At the time, the traffic was light going south but very heavy going north due to the rush hour. [ 16 .] At the time, the weather was clear, the road conditions were good, and the roads were free from obstructions, debris, and construction. [ 17 .] Mr. Perry first saw the Defendant’s car going southbound at Highpoint Side Road, which is just south of Orangeville. From there, Mr. Perry followed it all the way to just north of Old School Road, itself just north of Brampton. P.C. Williams started following the Defendant just south of Victoria.

The total distance of bad driving spanned many minutes and many kilometres. A check on Google Maps reveals that the distance between Highpoint Side Road and Old School Road is approximately 25 kilometres. Over that time and distance, the Defendant operated the motor vehicle as follows: (

a) The car was swerving all the way from the west shoulder over into the centre turn lane on southbound Hwy 10; (

b) Sometimes the swerving was smooth, other times jerky; (

c) The car continued to swerve in both smooth and jerky manners but was interspersed with driving straight and fully in its own lanes; (

d) At one point, the car went fully into the centre turn lane and nearly into the oncoming northbound lane; (

e) Once in the village of Caledon, the Defendant drove the correct speed and stopped for a red light, but he came within inches of striking the light standard; (

f) After leaving the village of Caledon and continuing southbound, the car continued to swerve all over the road, at one point nearly sideswiping another southbound car; (

g) As it continued southbound near the Forks of the Credit Road, the Defendant motor vehicle kept swerving from the shoulder to the centre turn lane, but sometimes it went nearly into the northbound lanes; (

h) Upon approaching and stopping at the red light at Hwy 10 and King Street in the hamlet of Victoria, the Defendant activated his right turn signal as if to turn west onto King Street, however not only did he not turn, but when the light changed to green the Defendant proceeded south with the turn signal still engaged; (

i) Other than in Victoria the Defendant never used a turn signal while driving; (

j) South of Victoria, a police Tahoe started following the car using its lights and sirens but the Defendant’s car kept driving south while swerving and jerking constantly within its lane; (

k) The Defendant’s car then veered into the other lane; (

l) The police car, while continuing to employ lights and sirens, pulled parallel with the Defendant’s car but he still didn’t pull over; (

m) Only after forcing the Defendant’s car to the right did it pull over to the west shoulder and come to a stop; (

n) When Mr. Perry followed the car to Victoria, it drove at inconsistent speeds most of the time, varying anywhere between 60 to 115 km/h; (

o) When P.C. Williams followed the car, it drove under the speed limit resulting in southbound vehicles passing; and (

p) Both Mr. Perry and P.C. Williams feared that due to the manner of driving the Defendant’s motor vehicle might strike another car in either direction. [ 18 .] P.C. Williams arrested the Defendant for careless driving under the Ontario Highway Traffic Act however I am well satisfied beyond a reasonable doubt that the driving was in fact criminally dangerous.

The Defendant failed to maintain his lane for a long stretch, he interfered with southbound traffic south of Caledon Village, he nearly entered the northbound lanes on more than one occasion, south of Victoria he drove at speeds below the traffic flow while ignoring the police causing other cars to go around, and he drove at erratic speeds. At all times, his driving created and maintained a significant risk to the safety of everybody on the road. The manner in which the Defendant drove while being pursued by P.C.

Williams was sufficient in and of itself to constitute dangerousness by creating a real risk of safety to both the officer and those passing them at the time. The fact that he obeyed traffic signals and that he did not actually strike anything or anyone does not raise a reasonable doubt. [ 19 .] With respect to the mental element, I am satisfied beyond a reasonable doubt that the prosecution has met its onus. [ 20 .] On the evidence I have accepted, a reasonable person in the Defendant’s circumstances would have foreseen or been aware of

the risk to public safety caused by the manner of driving and taken steps to avoid it. For a long time and distance the Defendant failed to maintain his lane and speed consistently while interfering with some traffic. Any reasonable person driving like he did would have been aware of it and would have corrected the correctable; that is by driving safely using a consistent speed and maintaining a lane while respecting the other traffic.

I agree with the witnesses that it was obvious for them to believe that in the circumstances of driving known to the Defendant, that there was a real risk of a collision with people or property. If it was obvious to them, it was obvious to the Defendant. [ 21 .] In this case, the Defendant’s failure to either see, or having seen, the risk to public safety and to take steps to avoid the risk was a marked departure from the standard of care expected of a reasonable person and the Defendant in these circumstances.

This was not a momentary lapse in attention; it was a substantial and extended pattern of patently unsafe driving in the extant conditions, including ignoring police lights, sirens, and attempts to pull him over. The Defendant deliberately drove across lanes where other traffic was present in both directions at erratic speeds over many kilometres in good weather and road conditions. As such, he thereby knowingly putting others at serious risk of harm. [ 22 .] It was argued that the driving could plausibly be explained either by the Defendant eating while driving, by being distracted by having to urinate, or both.

I reject this submission. While it true that when P.C. Williams opened the Defendant’s door he smelled greasy food and saw a food bag on the front passenger floor, there is no reason to believe or suspect that the Defendant was eating while driving, or if he was that it was during the relevant time. To find this as plausible is to invite speculation, not reasonable doubt.

What is more, if the Defendant was voluntarily eating or doing anything while driving that he knew would distract him for such a long time and in such a risky way, this would tend to elevate, not undermine, his “marked departure” and overall dangerousness. Similarly, the insistence by the Defendant to the police upon his arrest that he needed to urinate does not raise a reasonable doubt. If he knew he had to go so badly as to disturb his ability to pilot his car safely, there were places to stop in both Caledon and Victoria, as well as countless spots on the roadside.

If he was distracted by pressure on his bladder and drove in spite of this, he knowingly put the public at risk by not dealing with it prior to the police stopping him. 3.0: CONCLUSIONS [ 23 .] For these reasons, I find the Defendant guilty beyond a reasonable doubt of count #3, dangerous driving. ____________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice