R. v. Andrews-Somers, 2020 ONCJ 286

ONTARIO COURT OF JUSTICE CITATION: R. v. Andrews-Somers , 2020 ONCJ 286 DATE: 2020 06 10 BETWEEN: HER MAJESTY THE QUEEN — AND — ROSE ANDREWS-SOMERS Before Justice G.R. Wakefield Heard on February 28, 2020 Ruling on the Constitutionality of s. 255(2.1) released on June 10, 2020 D. Parke........................................................................... counsel for the Crown E. Neubauer.......................... counsel for the defendant Rose Andrews-Somers WAKEFIELD J.: [ 1 ] Rose Andrews-Somers has been convicted of two counts of Over 80 resulting in bodily harm, contrary to s. 255(2.1) of the Criminal Code of Canada . The Defendant has brought an application asserting this

section is unconstitutional. [ 2 ] Yet again, I must assess the applicability of a reactive piece of legislation to combat the carnage caused by drinking and driving as opposed to legislation which focuses on pre-emptive requirements to enjoy the privilege of operating a motor vehicle. In a judgment rendered a decade ago I called for legislation to mandate an Interlock type device for all motor vehicles.

In that decade, my vehicle has evolved to now include collision warning systems, additional airbags for driver and passenger safety, and my vehicle even chats with me when accessing telephone calls, entertainment and navigation systems. [ 3 ] Yet we still rely on driver self-awareness as to whether the driver has consumed more alcohol than permitted by law, when we know that alcohol reduces the ability to make sound judgments, thereby still putting others in vehicles as well as pedestrians at risk of death or life changing injuries. [ 4 ] I commend both counsel for working together to produce an agreed statement of fact saving considerable court time and inconvenience to the witnesses.

Again, on the Constitutional challenge, both counsel prepared impressive facta demonstrating a careful consideration of the involved legal principles. I agree with the Defendant that the sentencing consequences are sufficiently important that the subsequent repeal of the

section does not make this application in any way moot. [ 5 ] In essence, the Agreed Statement sets out that the two Complainants were in the same vehicle stopped behind a taxi cab at an intersection facing a red light. The defendant’s vehicle rear ended the couple’s vehicle with sufficient force to propel the complainant’s vehicle 8 to 10 feet forward into the rear of the stopped taxi in front of them.

The complainants were aware of the defendant’s car approaching them for approximately five seconds before impact. [ 6 ] The defendant did attend the complainant’s vehicle to check on their safety and apologizing, advising that she was looking down at the time of the collision without specifying why. The defendant apparently left the scene after locking her car for a brief period and then seen walking towards them. It is not clear for how long the defendant was gone or for what distance.

The defendant is not charged with leaving the scene. [ 7 ] Both complainants suffered whiplash injuries, with the driver also suffering permanent and non-major nerve damage together

with a swollen spiral disc requiring medication and physiotherapy.

The complainant vehicle was damaged so severely as to no longer beroad-worthy. [8] There was an earlier application to quash the information which was denied for reasons separately rendered. [9] On the trial proper, I acquitted the Defendant on the two counts of Impaired Bodily Harm in that the evidence did not amount toproof beyond a reasonable doubt that the Defendant demonstrated even the slightest degree of impairment, however I convicted on thetwo counts of Over 80 Bodily Harm. [10] With respect to the two convictions, the Defendant brought application to have section 255 (2.1) declared unconstitutional.Despite being subsequently repealed and replaced by the enactment of Bill C-46, s. 255 (2.1) was the governing

section at the time ofthese offences. [11] Unlike the charge of Impaired care and control, s. 255 (2.1) does not require proof of a causal connection between the alcoholconsumption and the consequential bodily harm, but rather requires the crown to prove beyond a reasonable doubt that a Defendantcaused an accident from which a victim suffered bodily harm while the Defendant had a blood alcohol concentration in excess of 80milligrams of alcohol in 100 millilitres of blood. [12] The Defendant asserts the impact of s. 255(2.1) is to “treat the legally guilty and the legally innocent alike”. Specifically, theattack on the

section is due to it lacking “a sufficient fault requirement, so as to confirm with the principles of fundamental justice and isoverbroad in requiring the conviction of those who are not legally responsible”. As such, the defendant asserts the

section infringes s. 7of the Charter, and is not saved by s. 1. [13] In analyzing the impugned section, the Defendant commences with a review of the Parliamentary record of the predecessor Billsin which Parliament was clearly made aware of concerns regarding the lack of causation between the consumption of alcohol andresulting bodily harm.

The thrust of the commentary looked at the impropriety of a suspect refusing to provide a breath sample wheninvolved in an accident in which victims suffered bodily harm or death thereby defeating a clear connection to the level of the BAC andthe accident causing injuries and being in a more favourable position should the Crown be unable to prove impairment beyond areasonable doubt. [14] I accept the Defendant’s assertion that s. 255(2.1) created a new offence separate from that of s. 253(1)(b), the over 80 simplicitersection, as it is solely indictable with increased limit of imprisonment of up to ten years, with the consequential impact on the availabilityof a record suspension or the availability of a conditional sentence.

The discretion of the Crown’s choice for election is not available forthis charge, though any Defendant has an option of mode of trial that did not exist before without the Crown electing by way ofindictment. The Defendant’s jeopardy is on a very different level than if charged with over 80 simpliciter facing a different criminalityanalysis. [15] Then again, I note that in R. v. Muzzo, 2016 ONSC 2068 , [2016] O.J. No. 1506, Justice Fuerst sentenced Mr. Muzzo oneach of the impaired cause bodily harm offences to concurrent five-year penitentiary terms.

While a ten-year maximum sentence is avery severe consequence, in light of the Muzzo case, it is not a maximum which is excessive given the severity of injuries which can becaused to an innocent victim of a drinking driver. [16] Additionally, as I understand the section, the offence is different in nature as the offence arises from a driver causing a motorvehicle accident resulting in bodily harm and at the time of the accident the driver had the prohibited BAC.

The initial focus is onaccident causation and medical consequences, with the BAC being an additional aggravating component of the charge. [17] I am aware of course that in any Over 80 simpliciter or Impaired simpliciter in which there is a motor vehicle collision withresulting bodily harm, the sentence imposed will usually reflect the increased seriousness of those aggravating factors, as well as being afactor in the Crown’s election discretion. In s. 255(2.1), the effect of this

section is to reflect the seriousness of such aggravating factors. What is the legal causation required in s. 255(2.1)? There is not any guidance from our Court of Appeal. However, in R. v.

Ranger, 2015ONSC 1158 at paras 43 – 44, stated the required elements of the offence as follows: 43 For me to find Mr Ranger guilty of operating a motor vehicle with an excessive blood alcohol concentration, causing an accidentresulting in bodily harm, Crown counsel therefore must prove each of the following four essential elements beyond a reasonable doubt: i. that Mr Ranger operated a motor vehicle; ii. that Mr Ranger intended to operate a motor vehicle after he had consumed alcohol; iii. that when Mr Ranger was operating that motor vehicle, his blood alcohol concentration exceeded 80 milligrams of alcohol inone hundred millilitres of blood; and iv. that Mr Ranger, while intentionally operating a motor vehicle after consuming alcohol such that his blood alcohol concentrationexceeded 80 milligrams of alcohol in one hundred millilitres of blood, caused an accident resulting in bodily harm to another person. 44 Proof of the first three essential elements beyond a reasonable doubt would suffice to warrant a finding of guilt in relation to the lesserand included offence of driving with an excessive blood alcohol concentration, pursuant to s.253(1)(b).

However, proof of all fouressential elements beyond a reasonable doubt is required to warrant a finding of guilt in relation to the offence of driving with anexcessive blood alcohol concentration and causing an accident resulting in bodily harm, pursuant to s. 255(2.1). [18] As expressed in Crown submissions, I would clarify the requirement that the crown must prove the defendant legally at fault forcausing the accident as opposed to merely being involved in an accident.

[19] Similarly in R. v. Koma, 2015, SKCA 92 para 27, the Saskatchewan Court of Appeal set out the elements in this charge with thespecific

interpretation that “ The Crown must prove a temporal link between an accused’s prohibited blood alcohol concentration and theoccurrence of an accident that has resulted in bodily harm to another, but it need not establish a causal link between those two elements”.Again, in my view, that occurrence of an accident must be shown to be the legal fault of the accused. [20] I am aware of the appellate decision from New Brunswick in R. v. Jagoe, 2012 NBCA 72, but do not find that

interpretationrequiring a causal connection between the BAC and the motor vehicle accident persuasive, given the facts of that case. The victimessentially caused his own fatal injuries by jumping on the accused’s vehicle as opposed to any legal causation by the accused.

In thisregard, Jagoe is an apt example of the need for a legal causation requirement for the accident in this section, as opposed to merely beinginvolved in an accident. [21] As the Crown submits, the required accident causation must amount to morally blameworthy conduct in which the manner of theaccused’s driving is the significant contributing cause for the accident. Obviously, the proof of that blameworthy conduct must reach acriminal standard of proof beyond a reasonable doubt.

Each element of the offence requires the Crown to prove the mental faultnecessary to meet the Charter s. 7 standard. [22] The risk of harm from a collision whenever an automobile is in motion is both objectively and subjectively (when sober)completely foreseeable.

Each year all drivers and car owners have an annual subjective reminder of that foreseeable risk when renewingor taking out liability insurance together with the requirement of carrying proof of such insurance when operating a motor vehicle. [23] Obviously, the specific cause of harm in each accident may not be foreseeable, but the risk of an accident which can result ininjury should be of no surprise to anyone in our community, especially when involving a drinking driver, even before R. v.

McVeigh(1985), (ON CA), 22 CCC (3rd) 145 at p.150, when the Ontario Court of Appeal asserted that “every drinking driver isa potential killer” and affirmed a jail sentence for an otherwise productive member of the community. That warning to society was issuedalmost a half century ago. [24] Lacking interlock type devices in all vehicles, drinking to excess and driving is a hidden crime absent an accident, a RIDE stop ora concerned citizen calling police regarding suspicious driving.

Consequently, the need then for deterrent criminalization isoverwhelming. [25] That is the context of the decades long legislative history of Parliament’s attempts to deter drinking to excess and driving in orderto reduce the carnage such drivers cause. For example, in assessing the constitutionality of previous amendments to these sections of theCode, the Supreme Court of Canada in R. v.

St-Onge Lamoureux, 2012 SCC 57 at para. 33 noted that the objective of those amendments“was to give the reliability of the test results a weight consistent with their scientific value”. [26] I take this to be the core understanding that gave rise to the current s. 255(2.1) in that Parliament criminalized those whovoluntarily drank to excess so as to have a BAC over 80 and while committing the Over 80 offence also legally caused an accident whichresulted in bodily harm, since Parliament is both entitled and mandated to look at and rely upon experts setting out the “scientific value”of the impact of consumption of alcohol and drugs on the ability to drive. [27] In my view, the lack of indicia of impairment of an accused who caused an accident yet resulted in an acquittal is not a“loophole”, but the natural consequence when an expert testifies that while their opinion is that everyone is impaired at those BAClevels, they cannot testify whether such a BAC would impair a particular defendant without appropriate individual testing, and indeedcannot testify that it is impossible that such a defendant’s ability to drive would not be impaired.

The case at bar is the exact example ofsuch expert evidence in conjunction with the investigating officer asserting this defendant lacked any indicia of impairment beyond thecollision itself resulting in the Defendant’s acquittal on the impaired causing bodily harm counts. [28] I find that the legislative objective of this

section is to deter drinking and drug using drivers from causing accidents during whichbodily harm results, as opposed to creating a direct causal link between the alcohol or drug use and the bodily harm, thereby subjectingthe driver to the same penalties for impaired causing bodily harm (House of Commons Debates, 39-1, No. 99 January 30, 2007). Whilethe quotes cited by both Crown and Defence from Parliament sometimes show confusion over the causation relationship to the bodilyharm, the

section itself is in my view quite clear that the causation relationship is to the accident with the additional components forconviction being the BAC of the driver at the time of the accident. [29] Given this rigorous fault standard, I find that the impugned

section has the Charter

section 7 fault requirement in order to passCharter muster. I also find that the focused elements of the offence are not overly broad as a conviction arises from a required proof ofspecific legal responsibility for voluntarily consuming alcohol then voluntarily operating a motor vehicle during which the driver is thelegal cause of a motor vehicle collision causing bodily harm whilst the driver’s BAC is “Over 80”.

Each element of the offence isfocused with specific evidentiary pre-requisites for culpability to attach to the accused driver. [30] In other words, I find that there is a very real, concrete connection between the purpose of the section, which is to deter driverswho cause accidents with resulting bodily harm while having consumed an excess of alcohol and its effect of focusing on those driverswho drink and drive yet do not display indicia of impairment. The impact of the

section wording does relieve the Crown ofdemonstrating specific proof that the BAC caused the accident but replaced that connection with the connection of having legally causedthe accident. [31] I find that those specific pre-requisites take the offense

section well out of the realm of criminalizing provincial driving laws aseach element carries with it a defence to the charge, as opposed to creating either a strict or absolute liability offence. [32] I do not accept that the “reasonable hypotheticals” proposed by the Defendant apply to this section. Each is based on the proof ofaccident causation being no more than a civil standard “but for” analysis, such as “but for” the defendant driving at that time there wouldnot have been an accident. The first two of the defendant’s hypotheticals have the driver reacting to external causations of the impendingaccident.

[33] The third hypothetical, that of a driver causing a collision resulting in bodily harm when accidentally having a foot slide off abrake pedal while assessing windshield defrosting is the more difficult example to apply to the section. In my view the determiningfactor for the trier of fact is to decide whether the circumstances, if believed, of the foot sliding off the brake pedal onto the acceleratorresulted from a sequence arising from moral blameworthiness or an external consequence beyond the control of the driver moving tocheck the windshield.

If the latter, then the crown will not have proven the essential element of morally blameworthy actions causing theaccident. Some of these factual determinations will not be clear cut and if the trier of fact is uncertain, then obviously an acquittal wouldresult. [34] My view is that there must be a proven legal causation, such as the circumstances in the case at bar in which the Defendantadmitted glancing down just before the collision.

There was not any hint of any other causation other than the lack of driver attentionresulting in the rear-ending impact on the victims’ vehicle. [35] Parliament’s legislative history of deterring drinking and driving has been ongoing for generations now. Yet the carnagecontinues. There has been an evolution in this class of legislation which has had the effect of removing barriers to conviction for drinkingdrivers. s. 255(2.1) is not even the most recent legislative response. [36] In my view, the

section is constitutionally valid. [37] However, if I am in error on this point, in my view the

section would still be saved by s. 1 of the Charter, as legislation whichimposes reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [38] R. v. Oakes, (SCC), [1986] S.C.J. No. 7 sets out the two stage test as to assessing whether the impugnedlegislation can be saved by s. 1.

Firstly, does the law pursue an objective that is sufficiently important to justify limiting a Charter right,and then secondly whether the law utilizes means which are reasonable and demonstrably justified. [39] In that analysis, I commence with the observation that it is now trite law that driving is a privilege and not a right.

Driving iscertainly an important activity for the majority of Canadians, with limited alternatives in many rural areas, and economic consequencesflowing from the inability to drive, however, driving is not a right. [40] It is also trite in this analysis that drinking and driving causes continuous carnage and after decades of Parliamentary efforts, hasnot stopped. [41] Drinking drivers cause death and life changing injuries to innocent victims. Given driving is a privilege, in my view such anactivity is accorded a lesser level of Charter protection than if driving on streets, roads and highways was a necessity.

Protecting suchinnocent victims is an extremely important purpose well within Parliament’s purview and jurisdiction. [42] The very challenge of proving a causal connection between the BAC readings and the bodily harm as opposed to proving theimpairment caused the bodily harm is exampled in the reasoning I used in acquitting this defendant of impaired bodily harm. How can anexpert testify that the BAC caused impairment of this specific defendant’s ability to operate a motor vehicle?

My acquittal resulted fromthe expert in this trial conceding she could not testify as to this particular defendant’s impairment and in circumstances in which theinvestigating officer refused to charge Impaired Bodily Harm given the lack of reasonable and probable grounds in his opinion of anyimpairment of this Defendant. [43] However, in my view, Parliament can and should rely upon experts to justify a BAC component to the charge. Experts do assertthat over a certain BAC, one’s ability to operate a motor vehicle becomes impaired.

Parliament is entitled to rely on such expertise incrafting legislative responses to the significant risk or danger created by drinking drivers. As such, there is a rational connection betweenthe

section and its purpose. [44] Could Parliament have drafted legislation which was less of an infringement to an individual’s potential defenses?

In my view,each of the Defendant’s suggestions revert back to searching for proof of the alcohol consumption causing the bodily harm, which wouldonly maintain the current regime of those drivers not exhibiting signs of impairment being exempt from the consequences of their choiceto drink and drive. [45] The impugned section, while maintaining the obligation on the crown to prove beyond a reasonable doubt each element of thecharge, places the accused driver on the same level as the driver whose indicia of impairment is so obvious it amounts to proof beyond areasonable doubt. [46] Additionally, this

section does maintain the distinction between Parliament’s intention to create two classes of offences:impairment and blood alcohol concentration. [47] The

section demonstrates a proportional response between the effect of the

section and the legislative objective. Was there analternative mechanism to obtain the same effect? I have previously suggested a proactive response as opposed to a reactive, deterrentresponse, namely developing an interlock type device which would be required in all motor vehicles. [48] However, I accept that such a mandate would mean an increased cost to all vehicle owners, and while victims might suggest anycost is preferable to death or a lifetime of debilitating injuries, it is an unknown both as to cost and the time to development.

S. 255(2.1)is a proportionate criminal response today and no more intrusive as is necessary to effect the objective, especially given that onecomponent of the offence is to already have committed the current Over 80 offence. [49] As such, if I am in error on the constitutionality of the section, I find that it would be saved pursuant to s. 1 of the Charter. Released: June 10, 2020

Signed: Justice G.R. Wakefield