R. v. Holloway, 2015 NLCA 2

Date: 20150116 Docket: 13/88 Citation: R. v. Holloway , 2015 NLCA 2 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: JORDEN HOLLOWAY APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, White and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador, Clarenville Appeal Heard: December 8, 2014 Judgment Rendered: January 16, 2015 Reasons for Judgment by Harrington J.A. Concurred in by Rowe and White JJ.A. Counsel for the Appellant: Philip C. Whalen

Counsel for the Respondent: Iain R. W. Hollett Harrington J.A.: [ 1 ] Jorden Holloway appeals his conviction for dangerous driving causing bodily harm from the Provincial Court. For the following reasons, the appeal is dismissed. BACKGROUND [ 2 ] On July 31, 2013, Jorden Holloway was convicted of driving a motor vehicle in a manner dangerous to the public and thereby causing bodily harm contrary to s. 249(3) of the Criminal Code . He was also convicted of supplying liquor to a minor, a breach of s. 76(1) of the Liquor Control Act, RSNL 1990, c.

L-18. [ 3 ] On the evening of July 20, 2012, Jorden Holloway operated his pickup truck with a male acquaintance, Travis Webber, as a passenger in the front seat. They picked up the complainant, who was a minor of 17 years of age, at her boyfriend’s home. The complainant had had an argument with her boyfriend and called Jorden Holloway. As a result, she also became a passenger in Jorden Holloway’s truck. Jorden Holloway fetched three bottles of beer from his residence and placed them in the rear seat area where the complainant was sitting.

The complainant wanted to discuss the argument she had with her boyfriend. [ 4 ] However, Jorden Holloway and the complainant began arguing when he insisted that she accompany him and the passenger to Elliston to attend a local festival. The complainant said that she was responsible for the care of her five-year-old niece, who was at her boyfriend’s house. When Jorden Holloway refused to drive her home, the complainant called her boyfriend on her cell phone to report her situation and to request that he pick her up so that she could return home.

Jorden Holloway abruptly stopped his truck when the complainant advised him that her boyfriend was coming to pick her up. He told the complainant to get out on an uninhabited stretch of the Bonavista highway. The evidence confirmed that the area was “pitch black”. The complainant testified that she sat on the gravel shoulder with her chin resting on her knees. She continued speaking to her boyfriend on her cell phone but soon lost service. [ 5 ] Jorden Holloway resumed driving towards Elliston with Travis Webber and left the complainant on the roadside to await the arrival of her boyfriend.

The complainant and Travis Webber testified that Jorden Holloway was angry because the complainant would not accompany him to the festival and that her request to be driven home would have delayed his attendance. Within a short time period and with the urging of Travis Webber that the complainant should not be left at the side of the road, Jorden Holloway stopped his truck and began backing up along the highway in the direction of the place where the complainant had gotten out of his truck. Travis Webber testified that Jorden Holloway took no steps to ascertain exactly where the complainant was located.

The evidence indicated she was sitting on the shoulder of the road when the reversing truck struck her. She testified as summarized by the trial judge that her injuries from the impact were “a broken ankle, broken pelvic bone, broken shoulder blade, and a badly ruptured spleen together with a road rash or abrasions over part of her body, in particular her face, hands, and back” (see the trial judge’s oral reasons at page 265 of the transcript, lines 16-20).

Jorden Holloway and Travis Webber put the complainant in the truck and drove back towards Lethbridge to rendezvous with the complainant’s boyfriend who was en route to pick her up. Ultimately, the complainant’s boyfriend drove her to the hospital. [ 6 ] Jorden Holloway pleaded not guilty at trial. Four Crown witnesses testified: the complainant, the complainant’s boyfriend, Travis Webber, and the investigating officer. Jorden Holloway did not testify. Convictions were entered following a lengthy oral decision by the trial judge rendered on August 9, 2013.

On November 14, 2013, he was sentenced to six months imprisonment. [ 7 ] The notice of appeal was filed with respect to the conviction and sentence for dangerous driving. In the event the conviction appeal was unsuccessful, Jorden Holloway sought a reduction in sentence. The latter point has not been canvassed on appeal given that the sentence had been fully served when the appeal was heard. ISSUES [ 8 ] Jorden Holloway’s counsel describes the issues on the appeal as follows: (

i) Did the trial judge err in law in assessing the testimony of key witnesses, namely in misapprehending that the accused testified (when he did not) and inconsistently assessing the testimony of the complainant, the complainant’s boyfriend, and Travis Webber? (ii) Did the trial judge err in law by making findings of fact unsupported by the evidence, namely:

a) that the back window of Jorden Holloway’s truck was tinted despite unclear evidence on this point; and,

b) that Jorden Holloway did not take positive steps such as honking, looking through his back window, stopping, and/or calling out to avoid an accident when reversing his truck when there was no testimony regarding what, if any, precautions Mr. Holloway failed to take? (iii) Did the trial judge err in his application of s. 249(1) (

a) and (3) of the Criminal Code by:

a) failing to consider all the circumstances surrounding the accident;

b) incorrectly allowing the consequences of the accident to influence his assessment of Jorden Holloway’s “manner of driving”;

c) incorrectly expanding the meaning of “manner that is dangerous” under s. 249(1)(a); and/or

d) incorrectly finding legal causation as required by s. 249(3)? DECISION OF THE PROVINCIAL COURT JUDGE [ 9 ] The oral reasons of the trial judge included the following findings at pages 320 to 323 of the transcript:

The critical issue is the manner in which the accused operated his motor vehicle, hence, the necessity of considering the totality of the circumstances including the accused’s state of mind. The fault, if any, in the accused’s conduct lies in the absence of the required— requisite mental state of care.

A review of the evidence in this case clearly shows that on the evening in question the accused: 1) Was drinking alcohol before driving and brought alcohol to his motor vehicle for the use of both himself and the passengers, although the quantity was not sufficient to cause impairment, it is an indication of his attitude towards his duties as a driver and his attitude towards observance of well-known law. 2) He was loud, angry, obnoxious, and pissed off at the complainant and upset with her boyfriend. He believed that they were interfering with his intention of getting to the Puffin Festival.

His conduct was characterized by a determination not to be hindered in getting to the festival. 3) His manner of driving by speeding, squealing tires, backing up pretty fast, shows a continuous pattern of driving his motor vehicle inappropriately and with no respect for the law and for other users of the road. Although speed was not the sole cause of the incident or accident, it was one important factor. 4) His anger and frustration appeared to carry on for some time. It was not a momentary impulse or momentary lack of attention.

And even after dropping off the complainant it continued and was apparent in his conduct by backing up as he did. He needed to slow down and he was told by [Mr. Webber] that he should do so while backing up but did not listen. 5) By dropping the complainant by the side of the road on a pitch black night where, in his words, she could be eaten by wolves or coyotes indicates that he did not consider the personal safety of the complainant as relevant to his own personal pursuits.

Yet he, or they, changed their mind and came back but the evidence is clear that he came back still pissed off in that he squealed his brakes in stopping and he backed up faster than he should have without, I believe, taking any precaution or considering the safety of the complainant who he knew was there in the dark behind him.

There is no evidence, believable evidence, that he honked his horn, braked to slow down, or took any warning action, or that he looked into his rear view mirror, he was just going pretty fast and really fast into a dark night without looking behind him towards a person whose clothing was partly dark and who he did not know where she was behind him. There were serious visibility concerns but he did not act reasonably to address same. 6) The accused had time to assess the safety concerns but he did not. He merely backed up I believe without even thinking about the safety of the complainant.

This indicates a lack of good judgment and indicates that he embarked on backing up and continued to back up in a pretty fast manner in circumstances in which he knew or should have known that it was dangerous and there was a real risk of collision or hitting the complainant who he knew or should [have] known was behind him. We know from the evidence she was sitting on the gravel side of the road, he did not know whether she was sitting, standing, or where she was sitting or standing. He never checked.

In effect, his actions in the circumstances endangered the safety of the complainant. 7) The accused should have been alert to the dangers involved in backing up as he did deliberately and he should have taken reasonable [precautions] to do so safely without risk to the complainant by deliberately acting as he did, he exposed an innocent and scared young woman to a serious risk. In effect – in effect he compromised the safety of the complainant. This was not only poor judgment, it actually created a real risk to the complainant.

His actions in [backing] up as he did under the circumstances were deliberate and dangerous. 8) There is believable evidence that beer was consumed in the pickup that evening. … [ 10 ] The trial judge drew the following legal conclusions: … this is not a case of momentary lack of attention or a sudden and unexpected event.

Under the circumstances of this case, a reasonable and prudent driver ought to have and should have been aware that the complainant was behind him and such a person should have known the danger of reversing blind without notice and going pretty fast or really fast speed. … He may of – not of fully understood how truly dangerous his behavior and conduct was in backing up in the manner in which he did, but the circumstances of his behavior and conduct far exceeded that which a prudent person or prudent driver would have done in those circumstances.

The totality of the accused’s behavior that evening betrays, I believe, the accused’s cavalier and irresponsible attitude towards his responsibilities as a driver. And I believe that in this – that in his behavior in backing up, he was reckless, willfully blind, and he blithely ignored the risk that he exposed the complainant to. Under these circumstances, I find that his behavior was a marked departure from the standard of a prudent driver when he acted in the way he did. … This is not a case of mere departure from the norm or carelessness, but it is, I believe, a clear case of a marked departure from the norm.

It is a clear case of penal negligence and blameworthy conduct. … (Trial decision, transcript, pages 325-327.) ANALYSIS (

i) Misapprehension of Evidence [ 11 ] Counsel for Jorden Holloway submits that the trial judge misapprehended the evidence by stating on two occasions in his oral reasons for judgment that Jorden Holloway testified at trial. However, on one of the two occasions the trial judge immediately corrected the error. The accused and one of the Crown witnesses, the complainant’s boyfriend, had the same surname and similar first names, Jorden and Jonathan.

Specifically, the trial judge stated at page 310 of the transcript: The evidence of Johnny Holloway [the complainant’s boyfriend] corroborates the evidence of both the complainant and the accused – and [the passenger] as to his dealings with the accused and the complainant on the evening in question. (Emphasis added.)

[ 12 ] However, the Crown’s factum clearly demonstrates that the trial judge immediately corrected his error by indicating that he was referring to the complainant’s evidence as the rear seat passenger, and the passenger who sat in the front seat. Additionally, the Crown’s factum cites three statements in the oral reasons of the trial judge which clearly indicate that Jorden Holloway did not testify. [ 13 ] In R. v.

Sinclair , 2011 SCC 40 , [2011] 3 S.C.R. 3, LeBel J., writing for the majority, outlined the prerequisites necessary for an appellate court to order a new trial based on a miscarriage of justice arising from a misapprehension of the evidence: [53] … more is needed than an “apparent” mistake (e.g., an error that the trial judge may have committed) in the reasons. A court of appeal should not, in applying the Lohrer test, order a new trial unless the trial judge has made a real error; its decision cannot be speculative. The plain language or the thrust of the reasons must disclose an actual mistake.

When such errors are in fact committed, appellate courts have no difficulty in explaining why they caused the trial judge’s reasoning process to be fatally flawed and where they may be found in the reasons. In such situations, the errors are readily obvious. See also R. v. Vokurka , 2013 NLCA 51 , 339 Nfld. & P.E.I.R. 248 at paragraphs 20 and 21 , aff’d 2014 SCC 22 , [2014] 1 S.C.R. 498. [ 14 ] I conclude that Jorden Holloway has failed to demonstrate that the trial judge made a real error.

The “plain language and thrust of the reasons” do not disclose “an actual mistake”. [ 15 ] Counsel for Jorden Holloway submits that the trial judge erred by making any reference to a possibly tinted rear window that may have obscured his vision while backing up his truck when there was no evidence supporting such a reference.

However, I agree with the Crown’s submission that this error is not of such a palpable and overriding nature that it could have affected the result given that the trial judge stated in his reasons: … I have no evidence that the tinted window directly contributed to his lack of visibility … (transcript, page 318.) [ 16 ] Counsel for Jorden Holloway raised a further concern about the reliability of the complainant’s testimony regarding the speed of the truck prior to her eviction from the truck and the final process of backing up his vehicle and striking her.

He contends that she grossly over-estimated his speed initially to be 160-170 miles per hour and reduced that estimate to “at least 140 or something”. She was not a licensed driver and she admitted she could have been wrong which indeed she was. However, Crown counsel relies solely on the finding by the trial judge based on the evidence of Travis Webber that Jorden Holloway was driving at an excessive speed beyond the posted limit to support the allegation of dangerous driving.

I conclude that the trial judge did not misapprehend the evidence with respect to his key findings of fact regarding the driving behavior by Jorden Holloway. (ii) Sufficiency of Evidence of Dangerous Driving [ 17 ] It was clear from the evidence of the complainant and Travis Webber that Jorden Holloway was in an angry mood and driving above the speed limit before he stopped and ordered the complainant out of his truck at a remote and dark location on the Bonavista highway.

He was upset because the complainant insisted on returning home to care for her young niece which would delay his attendance at a festival he wanted her to attend in his company. Prior to commencing the drive, Jorden Holloway took three bottles of beer from his residence and placed them in his truck. Travis Webber admitted to having been drinking that evening and acknowledged that he was “fairly drunk”. He testified that Jorden Holloway became angry because the complainant only wanted to chat with him about her argument with her boyfriend and did not want to go for a drive with him.

There was no evidence at trial that Jorden Holloway drank beer while driving or was intoxicated at the time of the incident which injured the complainant. No such finding was made by the trial judge. [ 18 ] The complainant called her boyfriend and asked if he would come and pick her up. Travis Webber testified that “we just left her there and we started going, kept going down, we felt – Jorden felt bad … just leaving her on the side of the road, it was pitch black. It was late at night. No lights … and so we decided to come back” (transcript, page 89).

He testified that while Jorden Holloway was backing up, neither of them knew the complainant’s location. [ 19 ] An application by Crown counsel to have Travis Webber declared an adverse witness was granted arising from inconsistencies in the early portion of his evidence-in-chief and his statement to the police following the incident. The complainant testified that Jorden Holloway was speeding when he abruptly stopped his truck and told the complainant to get out.

Travis Webber admitted that there were inconsistencies between his evidence-in-chief and comments made in his statement to the police regarding Jorden Holloway’s manner of driving before and after he ordered the complainant out of his truck. [ 20 ] In further examination by Crown counsel, Travis Webber confirmed that the complainant had been “freaking out” with Jorden Holloway’s conduct of continuing to drive towards Elliston when she wanted to arrange to have her boyfriend pick her up.

He further admitted that he had told the investigating officer that Jorden Holloway had slammed on the brakes of his truck and told the complainant to get out because “we’re going on”. He acknowledged telling the officer that Jorden Holloway was “pissed off” when he told the complainant to get out of the truck. [ 21 ] Travis Webber testified that Jorden Holloway was exceeding the speed limit by approximately 20 kilometres per hour before he slammed on the brakes of his truck and ordered the complainant to get out. When Jorden Holloway was backing up his truck, Mr.

Webber admitted having told Jorden Holloway to “slow down” which he testified that he had been asking him to do “all night long” (transcript, page 143). [ 22 ] In his statement to the investigating officer, Mr. Webber described Jorden Holloway’s behavior when ordering the complainant out of his truck as follows: “He was just going … crazy like getting on drunk and that. He said I am going to leave her here and someone’s going to eat her or something is going to eat her.” Further, in answer to the question “and so you remember telling [the investigating officer] that he was just going crazy”, Mr.

Webber answered “Yeah” (transcript, pages 145-146).

[ 23 ] The trial judge found that while backing up his truck, Jorden Holloway acted “without … taking any precaution or considering the safety of the complainant who he knew was then in the dark behind him.

There is no evidence, believable evidence, that he honked his horn, braked to slow down, or took any warning action, or that he looked into his rear view mirror…”, “he took no positive action to ensure that he could back up safely”, “he never checked [the complainant’s location]”, there was no evidence that he “used his rear view mirror”, or that he stopped or called out before the rear of his truck struck the complainant causing serious injury requiring hospitalization (transcript pages 317 and 322-323). [ 24 ] The two decisions of the Supreme Court of Canada which have defined the actus reus and mens rea required for a conviction for the offence of dangerous operation of a motor vehicle causing death or bodily harm are R. v.

Beatty , 2008 SCC 5 , [2008] 1 S.C.R. 49 and R. v. Roy , 2012 SCC 26 , [2012] 2 S.C.R. 60. In Beatty , the accused was acquitted on a charge of dangerous driving causing death under s. 249(4) of the Criminal Code when his pick-up truck, for no obvious reason, crossed the solid centre line into the path of an oncoming vehicle, killing all three occupants. Mechanical failure and intoxicants were not factors. The Court of Appeal set aside the acquittal and ordered a new trial. The Supreme Court allowed the appeal and restored the acquittals.

The issue that divided the courts below and the Supreme Court of Canada was whether such a momentary act of negligence justified a conviction for dangerous driving causing death. [ 25 ] The Supreme Court was unanimous in upholding the setting aside of the conviction in Beatty . The majority reasons were written by Justice Charron. Concurring reasons were written by the Chief Justice. Charron J. distinguished between civil and penal negligence, the former being associated with apportionment of fault and the latter directed at punishing blameworthy conduct.

Charron J. for the majority held that this analysis was consistent with the principles of criminal law requiring that the law of penal negligence concern itself not only with conduct deviating from the norm but also with the offender’s mental state. [ 26 ] Charron J. elaborated on the objective mens rea applicable to this offence as follows: [48] However, subjective mens rea of the kind I have just described need not be proven to make out the offence because the mischief Parliament sought to address in enacting s. 249 encompasses a wider range of behaviour.

Therefore, while proof of subjective mens rea will clearly suffice, it is not essential. In the case of negligence-based offences such as this one, doing the proscribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite fault. The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a “marked departure” from that norm, the offence will be made out.

As stated earlier, what constitutes a “marked departure” from the standard expected of a reasonably prudent driver is a matter of degree. The lack of care must be serious enough to merit punishment. There is no doubt that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person. Nonetheless, as Doherty J.A. aptly remarked in Willock , “conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum” (para. 31).

Although Willock concerned the offence of criminal negligence, an offence which is higher on the continuum of negligent driving, this observation is equally apt with respect to the offence of dangerous operation of a motor vehicle. [49] If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need to pursue the analysis. The offence will not have been made out.

If, on the other hand, the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk created by this conduct.

If there is no such evidence, the court may convict the accused. [ 27 ] Professor Kent Roach in his text Criminal Law , 5th ed., (Toronto: Irwin Law, 2012) comments at page 168: In the context of Criminal Code offences based on negligence, the Supreme Court has indicated that there must be “a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.” In R. v.

Beatty , the Court arguably elevated the marked departure standard to a constitutional requirement when it warned: If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty. [ R. v.

Beatty , at para. 34 .] [ 28 ] In Roy , the Supreme Court unanimously acquitted an accused of dangerous driving causing death after entering a main highway from a secondary road into the path of a tractor-trailer at a troublesome intersection in foggy and wet road conditions. The Court affirmed the burden upon the Crown enunciated in Beatty that requires proof of a marked departure from a reasonable standard of care. At paragraphs 54 and 55, Justice Cromwell wrote: [54] … I accept that the driving, objectively viewed, was dangerous.

But it must be noted that there was no evidence that the driving leading up to pulling into the path of oncoming traffic was other than normal and prudent driving. The focus, therefore, is on the momentary decision to pull onto the highway when it was not safe to do so.

I do not think that the manner of driving, on its own, supports a reasonable inference that the appellant’s standard of care was a marked departure from that expected of a reasonable driver in the same circumstances. [55] … In my view, the appellant’s decision to pull onto the highway is consistent with simple misjudgment of speed and distance in difficult conditions and poor visibility. The record here discloses a single and momentary error in judgment with tragic consequences.

It does not support a reasonable inference that the appellant displayed a marked departure from the standard of care expected of a reasonable person in the same circumstances so as to justify conviction for the serious criminal offence of dangerous driving causing death. [ 29 ] In this appeal, it is clear that the trial judge found that Jorden Holloway’s state of mind while driving his vehicle was that of being irate and reckless causing him to drive at excessive speeds before and after the point where he ordered the complainant out of his truck with no regard for her safety.

This conclusion by the trial judge was largely grounded in Travis Webber’s evidence testifying as an

adverse Crown witness that Jorden Holloway was speeding during the entire drive towards Elliston followed by the process of backing up his truck and striking the complainant. He ordered the complainant out of the vehicle despite Travis Webber’s objections. He only returned to pick up the complainant at Travis Webber’s urging.

His evidence established that Jorden Holloway drove his truck in reverse at an excessive speed while failing to ascertain the complainant’s exact location notwithstanding she had been left at the side of the highway with reckless disregard for her safety at a remote, dark and unlit location following a number of his angry outbursts.

He could have turned his vehicle around, and cautiously driven towards the area in which the complainant had been left, relying on the vehicle’s headlights to illuminate the area. [ 30 ] The complainant suffered serious injuries requiring hospitalization which could have been avoided by due care and attention and a cautious state of mind on the part of Jorden Holloway.

Jorden Holloway’s behavior in operating his vehicle on the evening in question did not constitute a momentary lapse in the view of the trial judge, but rather constituted a marked departure from what a reasonable driver would observe in the appellant’s position. There is no basis on which to conclude that the trial judge erred in this conclusion.

SUMMARY AND CONCLUSION [ 31 ] In

summary, I conclude that the trial judge: (

i) did not err in any material way in assessing the testimony of key witnesses for the Crown, particularly with respect to the submission that he incorrectly believed Jorden Holloway had testified at trial; (ii) did not err by making findings of fact unsupported by the evidence regarding the manner of driving by Jorden Holloway; and (iii) did not err in his application of s. 249(1) (

a) and (3) of the Criminal Code in his assessment of the evidence in relation to Jorden Holloway’s manner of driving. [ 32 ] In the result, I would dismiss the appeal. _____________________________ M. F. Harrington J.A. I concur: _____________________________ M. H. Rowe J.A. I concur: _____________________________ C. W. White J.A.