R. v. Brewer Date:, 2012 BCPC 239

Citation: R. v. Brewer Date: 20120606 2012 BCPC 0239 File No: 186395-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASON TERENCE BREWER RULING ON APPLICATION OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: L. O'Grady Counsel for the Defendant: K. Neurauter Place of Hearing: Surrey , B.C. Dates of Hearing: February 16, March 2, May 15, 2012 Date of Judgment: June 6, 2012

INTRODUCTION: [1] THE COURT: The accused, Jason Brewer, applies to withdraw his guilty pleas to two counts of criminal negligence causingbodily harm. These charges are based on the Crown's assertion that he deliberately drove his vehicle into oncoming traffic with theintention of killing himself. The accused admits that he told medical personnel at the hospital that he deliberately caused the accident inan attempt to kill himself, but says that these statements were not true.

The truth, he says, is that he caused the accident in a moment ofinadvertence. [2] Brewer says that when he pleaded guilty to the charges he did not know what the elements of the offence of criminalnegligence were; that is, he did not understand the nature of the charges to which he pleaded guilty. He further says that he felt pressuredby his lawyer to plead guilty in the hopes that in doing so he might get bail and might even get a conditional sentence. [3] The Crown opposes the application. The Crown points out that the accused was represented by a very experienced counsel.

Itwas obvious from the first time that the accused appeared in court on these charges that the essence of the Crown's case was that theaccused caused the collision by deliberately driving into oncoming traffic in an attempt to kill himself; thus, the Crown says that theaccused could not conceivably have had any misunderstanding about the nature of the charges he was facing. RELEVANT LEGAL PRINCIPLES: [4] The leading case in this area is R. v. Adgey, (SCC), [1975] 2 SCR 426, of the Supreme Court of Canada.

Atrial judge has a discretion to permit an accused to change his guilty plea if he can satisfy the court that there are valid grounds for himbeing permitted to do so. The onus of establishing valid grounds is on the accused. The court noted that there is no exhaustive norlimited list of such grounds. Mr. Justice Dickson for the court suggested two examples of such grounds; one, that the accused neverintended to admit a fact which is an essential ingredient of the offence with which he is charged, or he may have misapprehended theaffect of the guilty plea. [5] In the case of R. v.

Joseph 2000 BCJ No. 2850 of the B.C. Supreme Court, Mr. Justice Taylor set out some of the factors thatthe courts have suggested that a trial court or appeal court should consider in determining whether an accused should be permitted towithdraw a guilty plea. These are: 1. Was the accused represented by experienced counsel? 2. Was the accused apprised of his position in law based upon his disclosure of the facts to his counsel, and thus can be said to haveunderstood the nature of the charge to which he pled? 3.

Did the accused, on those facts have a defence, if proved, that would be consistent with a valid defence? 4. Was the plea given in circumstances that amounted to pressure upon him to do so, or was the decision to enter the plea one made incircumstances of reasonable time for contemplation? 5. What was the experience of the accused with the criminal justice system? 6. Was the plea entered by the accused himself, or simply by counsel appearing on his behalf? CIRCUMSTANCES: [6] The accused does not dispute the details of the events as contained in the Crown disclosure.

The incident occurred onNovember 15th, 2009 at about 3:19 p.m. The accused was driving a pickup truck eastbound on Highway 10 near 192nd Street. Awitness stated that the vehicle driven by the accused was travelling at perhaps a hundred kilometres an hour, or more. Brewer's vehicleswerved violently into the westbound lanes of Highway 10. First Brewer's vehicle hit an oncoming car in the front, passenger side, thenit collided head-on with a second vehicle, a GMC Jimmy occupied by the two victims.

The pickup then "barrel-rolled" over threevehicles which were travelling behind the GMC and then finally came to rest. [7] The most severe damage done was to the Jimmy. The front end was basically completely demolished. The occupants couldonly be removed by cutting the roof of the vehicle open. They both suffered devastating, permanent, life-long injuries. The accused wastrapped in the truck. He suffered a broken jaw and some other bruising and minor injuries. [8] When he was taken to the hospital the accused gave one version of the accident to the police and another to the doctors andnurses who treated him.

At the hospital he was arrested by a police officer for criminal negligence causing bodily harm. The officerinterviewed him briefly before he went to be x-rayed. Brewer told the officer that he had been doing drugs earlier that morning; crackcocaine. He said that he was not high when the accident happened; he said he was actually coming down.

When asked what happenedto cause the accident, he said, "I was one..." and then something indiscernible, "And then I went down to reach for my lighter and then Idid, I turned the wheel." He then said, "I closed my eyes and felt a whole bunch of weird feelings and then all of a sudden I woke up." [9] On the other hand, the notes made by hospital personnel who interviewed him indicated that the accused said that he causedthe collision in a suicide attempt. [10] The attending physician decided that Mr. Brewer should be referred for a psychiatric examination.

On a document entitled"Form 4 Medical Certificate" which is required for an involuntary admission to the psychiatric ward, and this document is datedNovember 15th, the physician states, "21-year-old man threatened suicide by significant MVA." [11] The discharge form states, "Endorsing suicidality on arrival." The doctor's admission history dated November 16th, 2009

states: Apparently last night he drove his pickup into an SUV, severely injuring five people while unrestrained. Says it was a suicide attempt. Today he says he doesn't remember the accident, remembers being in his smashed-up car afterwards. To me he says it might have been a suicide attempt but says he will deny this to police or his employer. The report also states that he was admitted for an assessment on an involuntary basis "due to multiple statements to ERP..." (I think that means emergency response personnel) "... re suicide." [ 12 ] He was assessed by a psychiatric nurse.

He told the nurse that he was high since Saturday. He also said that he used crack cocaine regularly, every second day. The nurse's notes also contain the following record of what he said to her: He stated that he got a new job with a landscaping company two days ago and that his boss lent him his truck for the following morning. Patient reports that he woke up five hours late for work and was feeling like shit. On his drive to work he planned on killing himself. He caused the head-on collision at 140 clicks per hour in an attempt to kill himself. Brewer was released from the hospital shortly afterwards.

The psychiatric nurse found that he had no current thoughts of suicide and was not a danger to himself or to others. COURT APPEARANCES: [ 13 ] It seems that the investigation took a considerable amount of time. No charges were sworn until March 2011. By then the accused had been on bail for charges of robbery committed weeks before the accident. He had also been in Alberta, working, for about a year. In any event, he was charged with two counts of criminal negligence causing bodily harm, and two counts of dangerous driving causing bodily harm.

The accused had not been in any further trouble since November 3rd, 2009; thus, the Crown consented to his release on bail with a $2500 surety posted by his mother. [ 14 ] The transcript of the bail hearing held on March 9th, 2011 shows that the prosecutor told the court that not only did the accused's driving conduct result in a serious accident, but that he had told medical personnel at the hospital that he had deliberately driven into oncoming traffic in an attempt to kill himself.

In making the bail order, the trial judge, and I was the trial judge, remarked specifically about the allegation that the accused had tried to kill himself by driving into traffic. I stated that if those statements given to the hospital personnel were proven to be accurate, that the accused would be facing a significant jail sentence. I must also note, however, that this was the accused's first appearance on these charges. Neither he nor his lawyer knew anything about them until he was arrested. [ 15 ] Things did not go well for Mr. Brewer on bail; one month later his surety rendered him.

She did so because she alleged that Mr. Brewer assaulted her with a knife. The accused was in fact charged with assaulting his mother with a weapon. Mr. Brewer has remained in custody ever since. [ 16 ] The Crown made disclosure to Mr. Bowen who was now representing Mr. Brewer on all three sets of charges. There is no dispute that the Crown made complete disclosure to Mr. Bowen. On May 15th, 2011, Crown counsel sent a letter to Mr. Bowen setting out the Crown's position on sentence. That position was that Mr.

Brewer should be sentenced to four to five years in prison consecutive to any sentence imposed on the robberies. The basis of the Crown's position, as stated in the letter, was that the accused had told people at the hospital that the collision was a failed suicide attempted, also that the accused had cocaine and marihuana in his body when the collision occurred, that the accident caused by the accused resulted in grave danger to those using the road, and caused devastating injuries to the two victims. [ 17 ] On June 5th, 2011, Crown counsel sent a draft admission of facts to Mr.

Bowen in anticipation of a guilty plea. On June 13th, 2011, Mr. Bowen appeared in court before me. He entered guilty pleas on both counts of criminal negligence causing bodily harm. (There were two other counts of dangerous driving causing bodily harm which were not pled to.) When he entered the guilty pleas to the charges of criminal negligence, the pleas were entered through Mr. Bowen; however, once he had told the court that the accused was pleading guilty to those counts, Mr. Bowen said to Mr. Brewer, "Is that correct, sir?" Mr. Brewer replied that it was. [ 18 ] The transcript shows that I asked Mr.

Bowen whether there was any dispute about the facts. He and Ms. O'Grady advised that they were working on an admitted statement of facts. Mr. Bowen said that he did not anticipate any problem, but that he had not yet had a chance to discuss the issue with his client. [ 19 ] I ordered that a pre-sentence report and a psychological report be prepared. Crown counsel said that she wanted the psychological report because the accused had told medical personnel that he had deliberately driven into oncoming traffic in a suicide attempt.

The matter was adjourned for sentencing. [ 20 ] The interview for the psychiatric assessment was conducted on August 30th, 2011. At that interview, Mr. Brewer denied that he caused the motor vehicle accident by trying to kill himself. He said that he lost control of his vehicle when he reached down to pick up a cigarette that had fallen on the floor. When he was interviewed for the pre-sentence report, Mr. Brewer told the probation officer that he felt that his behaviour was more of an accident caused by his "undue care and attention" which I think is a commonly mis-phrased concept.

I am sure that he meant the accident was caused by his negligence as opposed to something else, rather than it was his dangerous operation of a motor vehicle. (He did not mean that he exercised "undue" or too much care.) [ 21 ] Mr. Brewer next appeared in court on March 2nd, 2012 for sentencing. On that date Mr. Bowen withdrew as his lawyer. That

was clearly because Mr. Brewer had taken the position that his statements to the hospital personnel were untrue and that the collision was caused by his negligence, not by any deliberate act. EVIDENCE REGARDING APPLICATION TO WITHDRAW PLEA: [ 22 ] The accused filed an affidavit and was cross-examined on it. Mr. Bowen testified. Some aspects of Mr. Brewer's evidence were not credible; on the other hand, counsel really took no dispute with Mr. Bowen's version of events. The main point made by defence counsel was that Mr. Bowen agreed, now that he has learned that Mr.

Brewer suffered a number of head injuries during his teenage years, that he may not have understood the nature of the charges to which he pled guilty. [ 23 ] Mr. Bowen is an experienced and highly-respected criminal lawyer. He has practiced criminal law almost exclusively for 29 years. I am satisfied that he reviewed all of the evidence with Brewer, that he explained the nature of the charges to the accused and reviewed how the evidence would result in a guilty verdict, or, as Mr. Bowen phrased it, he explained how all the evidence would "dovetail" in proving the case against Brewer.

That evidence is: the horrific nature of the collision; head-on at a high speed in the opposite lane of travel; the devastating injuries to the victims; the admission that Brewer had been using drugs; and most importantly, statements to several people at the hospital that he drove into oncoming traffic as a suicide attempt. [ 24 ] I am also satisfied that Mr. Brewer never told Mr. Bowen that he denied trying to commit suicide and that he lied to the people at the hospital. I do not believe that he ever told Mr.

Bowen that his explanation for the collision was that he took his eyes off the road momentarily and inadvertently entered the opposite lane. That version of events is contained in Mr. Brewer's statement to the police officer at the hospital but it is completely overshadowed by the evidence I have referred to above. [ 25 ] There are, however, some aspects to his evidence which, while implausible in some respects, are plausible in others. For example, Brewer states that Mr. Bowen told him that he could likely get him a conditional sentence if he pled guilty. Mr. Bowen denied saying this. Mr.

Bowen is undoubtedly correct because a conditional sentence was not even available for indictable offences which involve violence or where bodily harm was caused.

Section 742.1 of the Criminal Code was amended to this effect in May of 2007 and came into force on November 30th, 2007. In any event, it is extremely unlikely to say the least, that a court would, even if it could, give a conditional sentence to a man convicted of three robberies, two counts of criminal negligence causing bodily harm, and an assault with a weapon. [ 26 ] However, I believe that it is quite likely that Brewer engaged in what I would call "wishful thinking" rather than lying deliberately or being deliberately untruthful.

For example, courts often see prisoners who believe, quite unreasonably, that they can get a conditional sentence on a particular offence or offences. They instruct their lawyers to proceed with such an application, thereby defying the odds, and find, only to their disappointment when the sentence is imposed, that the conditional sentence was never in the cards. My point is that it is sort of the nature of persons being in prison, and perhaps their situation, that leads them to think that the impossible might happen. [ 27 ] I note as well that Brewer believed that he might get bail pending his sentencing date.

That is corroborated by the transcript of the guilty plea. At its conclusion, Mr. Bowen advised the court that at some point in the future he intended to make a bail application on Mr. Brewer's behalf. That never happened, perhaps because the likelihood of getting someone other than his mother as a surety was more difficult than first imagined. My point here is that Mr. Brewer's mind was focused on getting out of jail. To do so, he had to deal with all of his charges together.

It is not implausible that he entered the pleas to the criminal negligence charges without much thought because he was so focused on dealing with all of his charges and somehow hoping that he would get released. [ 28 ] It is also important to note that Brewer was young, 22 or 23 years old, and had only a minor criminal record. He had never before been sentenced to prison.

Second, Brewer says that he never realized that the allegation of attempting to commit suicide was a central factor in the charges against him, yet the Crown in court made it clear whenever he appeared that this was the most important factor to them. He must have heard those comments and discussed the issue with Mr. Bowen. [ 29 ] But the concept of criminal negligence has not been easily defined or explained by the courts over the years. Courts have struggled for decades, trying to find a way to instruct juries about the difference between criminal negligence and dangerous driving.

Thus, "wanton and reckless disregard for the safety of others," which describes briefly what criminal negligence is, does not sound much different from "a marked departure from the standard of care to be expected of a prudent driver in the circumstances" which describes dangerous driving. At least I do not think it would sound like much of a difference to non-lawyers. [ 30 ] I note as well, in passing, that the probation officer who produced the PSR believed that Mr. Brewer had been convicted of dangerous driving.

That is, I believe that it is plausible that Brewer did not understand what the elements of criminal negligence causing bodily harm were despite Mr. Bowen's best efforts to explain them. [ 31 ] Third, Brewer may not have intended to admit an essential element of the charges, that is, that he deliberately caused the collision in an attempt to kill himself. As I have noted, he was motivated to deal with all of the charges. He hoped to get out of prison and be released on bail. He knew that he had caused terrible injuries by his actions. It is plausible, however, that he did not pay careful attention to Mr.

Bowen's explanations, may not have had the intellectual capacity to understand that he was specifically admitting to that fact as the essential element of the charge. That possibility is supported by his evidence that he had suffered several head injuries as a teenager. He also admitted to having a very poor memory. [ 32 ] While the Crown's case against Brewer is very strong, there is some support, aside from his own assertions, that support this possible defence; that is, he told the police officer a few hours after the collision that it was an accident caused by his momentary inattention.

When he was assessed by the psychiatric nurse on November 16th, the nurse found that he had no suicidal thoughts on that day and that he was not a danger to himself or others. That is, if he attempted suicide on the 15th, he was over it on the 16th; it was not a persistent condition. He was released from the psychiatric ward. It is also significant that after he was released from the hospital until he was eventually charged with the criminal negligence counts he did not commit any criminal offences, nor did he attempt to kill or otherwise harm himself.

[ 33 ] This is not to say that these circumstances in any way establish his innocence, but they do provide a basis for a cogent argument against the Crown's accusation that the collision occurred as part of a suicide attempt. If a trier of fact believed Brewer's evidence to this effect, or Brewer's evidence raised a reasonable doubt, he could not be convicted of criminal negligence causing bodily harm. Thus, while I do not accept some of Mr.

Brewer's evidence, I find that it is possible that he did not understand the nature of the charges against him and he never intended to admit an essential element of the Crown's case against him. [ 34 ] The whole point of this exercise that I have just gone through is to determine what should be done in the interests of justice. [ 35 ] It is fundamental to our system of criminal law that the Crown must prove the case against the accused to a standard of beyond a reasonable doubt.

It is equally fundamental that the accused person has the right to challenge the Crown's evidence and to try to persuade a judge or other trier of fact that the Crown has not met its burden. Where a person pleads guilty, he voluntarily waives this right. This is often considered a mitigating factor on sentence, but the law also is that a person cannot be punished just for putting the Crown to proof of its case. [ 36 ] In the case at bar, if I were to deny Mr.

Brewer's request I would be forcing him to proceed to sentence where he denies the essential element of the Crown's case and where the Crown has not actually proven it at a properly-constituted trial. These circumstances do not involve someone who has denied an objectively-verifiable fact. That is, Brewer does not deny that he made the statements to the hospital personnel; instead, he is saying that the words were not true and that he can explain why they were not.

In my view, the ends of justice require that he be given that opportunity. [ 37 ] These charges arose from events which occurred two-and-a-half years ago. However, the actual charges were not sworn until 16 months after the event. Thus, while the accused has caused some delay in these matters getting to trial, he cannot be responsible for all the time that passed before the charges were sworn. As well, although it may be that Mr. Brewer's version of what happened amounts to nothing more than a confession of dangerous driving as opposed to criminal negligence causing bodily harm, that is not certain. Thus, Mr.

Brewer's foolish conduct in the sentencing proceedings has not compromised the ability of the Crown to prove its case. In fact, it may be that with admissions made of the facts which he appears not to dispute, a trial of the essential issue, whether he lied to the hospital personnel or not, can be heard in a fairly expeditious manner. [ 38 ] I want to reiterate that I find no fault in Mr. Bowen's conduct of this case on behalf of the accused. He performed his duties in a highly professional and competent manner. He did everything he could. If there is any fault, the fault lies with me.

When the guilty plea was entered I was concerned with whether the accused would admit the essential point of the Crown's case.

Had I put directly to him the question, "Do you admit that you drove deliberately into oncoming traffic in an attempt to kill yourself?" it is likely that these proceedings would never have occurred. [ 39 ] I have struggled with this decision because of the horrific nature of the injuries to the two victims, but it is important that the court not let sympathy for the victims of a potentially callous and wanton act by Brewer to overshadow the need for justice to be done. [ 40 ] I therefore direct that the pleas of guilty to Counts 1 and 2 on the Information be struck, and that not guilty pleas be entered on all four counts. (RULING CONCLUDED)