Durham (Regional Municipality) v. Anderson, 2017 ONCJ 222

ONTARIO COURT OF JUSTICE CITATION: Durham (Regional Municipality) v. Anderson , 2017 ONCJ 222 DATE: 2017 03 29 COURT FILE No.: Regional Municipality of Durham 132446 BETWEEN: HER MAJESTY THE QUEEN — AND — PATRICK ANDERSON Before Justice of the Peace M.

Coopersmith Heard on June 22, 2016 and November 24, 2016 Reasons for Judgment released on March 29, 2017 Christine Cain............................................................................................ for the prosecution Christopher Assie ……………………………..…. for the defendant Patrick Anderson JUSTICE OF THE PEACE COOPERSMITH: [ 1 ] On August 15, 2013, in Pickering, Ontario, Patrick Anderson was charged with: 1. operating a motor vehicle on Highway 401 while performing a stunt, to wit, speeding 218 kilometres per hour in a posted 100 kilometres per hour speed zone, contrary to s.172(1) of the Highway Traffic Act , R.S.O. 1990, c.

H.8; 2. operating a motor vehicle on Highway 401, while racing a motor vehicle, to wit, driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed, contrary to s.172(1) of the Highway Traffic Act , R.S.O. 1990, c.

H.8; 3. driving a motor vehicle on Highway 401, while suspended from doing so by the legal suspension of his licence, contrary to s.53 of the Highway Traffic Act , R.S.O. 1990, c. H.8; and 4. operating (having care or control of) a motor vehicle with liquor readily available, contrary to s. 32(1) of the Liquor Licence Act , R.S.O. 1990, c. L.19. [ 2 ] The trial took place over two days, June 22, 2016 and November 24, 2016. Ontario Provincial Police Officers Dominic Wong and Tim Lamont gave evidence on behalf of the prosecution.

The defendant, Patrick Anderson, and his girlfriend, Kayla Salesman testified on behalf of the defendant. I. ISSUES: [ 3 ] Several issues have arisen in these proceedings. I have addressed the following: (a.) Was the defendant performing a stunt?

(b.) Was the defendant racing? (c.) Was the defendant driving while his driver’s licence was suspended? (d.) Has the defence of necessity been satisfied on a balance of probabilities? (e.) Was the defendant operating a motor vehicle with open liquor readily available? (f.) Does the principle in Kienapple apply? II. BACKGROUND: [ 4 ] On August 5, 2013, the morning after Caribana, Kayla Salesman, the defendant’s girlfriend, drove them to Markham Station, a restaurant in Scarborough. She drove a grey Mazda-3 motor vehicle. Mr.

Anderson’s cousin, Ricardo Wright, and his girlfriend drove a red Mustang motor vehicle and met the defendant and his girlfriend at the restaurant. Once their breakfast was ready, they exited the restaurant, carrying their food as they walked towards their vehicles parked in the restaurant parking lot. [ 5 ] As they approached their vehicles, they noticed that a green Audi motor vehicle, with three people inside, had parked between their two vehicles. The person in the front passenger seat jumped out of the Audi, at which time the defendant heard his cousin exclaim “What are you gonna do, shoot me?

You gonna shoot me out here? You gonna shoot me?” The defendant called to his cousin to pass him the key to the Mustang. As soon as the cousin threw the key, the defendant jumped into the driver’s seat and started the Mustang, as the defendant’s cousin jumped into the passenger seat. As the defendant drove forward, the person from the Audi jumped out of the way. The defendant slowly made a U-turn and drove out of the parking lot and onto Markham Road.

Seeing the Audi following close behind them, the defendant made his way onto Highway 401 eastbound, as the green Audi continued to follow. [ 6 ] The defendant could not say exactly at what speed he was driving on Highway 401, as he tried to get away from the Audi. Somewhere near Brock Street in Whitby, the defendant noticed the vehicle he was driving hardly had any gas. As he was exiting at Brock Street, he saw a police vehicle behind him with its lights on. He slowed and pulled over to the right. Mr.

Anderson testified that, as soon as the police officer approached the defendant, he thanked the officer for saving his life. [ 7 ] Ontario Provincial Police Officer Wong had been on radar speed enforcement the morning of August 5, 2013. He was located eastbound on the on-ramp to Highway 401 at Whites Road in Pickering. He had tested his Genesis VP directional radar device at 6 o’clock that morning, in accordance with the manufacturer’s specifications. He tested it again at the end of his shift. He found the device to be functioning properly and accurately measuring the speed of moving motor vehicles.

Officer Wong is trained in the use of that radar device. [ 8 ] At around 6:45 that morning, it was bright and sunny and the road was straight and level. It was Monday of the long August weekend, not a lot of commercial motor vehicles were on the highway and traffic was lighter than on a regular Monday morning. Officer Wong hear a “whoosh” and then observed a very distinct dark Ford Mustang GT or Shelby in the far left eastbound collector lane of Highway 401 at what appeared to be a very high rate of speed.

Using the radar device, he targeted the vehicle and obtained a reading of 218 kilometre per hour in the posted 100 kilometres per hour maximum speed zone. Officer Wong followed the Mustang at a high rate of speed. As he rounded a curve in the road and with the rising sun shining in his eyes, he lost site of the vehicle and radioed for other police officers to be on the lookout for this vehicle. At no time when he was following the Mustang did Officer Wong recall noticing a green Audi motor vehicle in the area.

At around 6:50am, another officer radioed back to inform Officer Wong that the vehicle he had described was exiting at Brock Street in Whitby. [ 9 ] While at the Whitby detachment, located just west of Brock Street and south of Highway 401, Ontario Provincial Police Office Tim Lamont had heard Officer Wong’s call to be on the lookout for the Mustang. He got into his police cruiser and entered Highway 401 on the Ontario Provincial Polices’ own eastbound ramp access to the highway.

Almost immediately, he saw the red Mustang move from the far left lane, to the middle lane, to the right lane and then exit at Brock Street at a high rate of speed that he estimates was between 140 and 150 kilometres per hour. He activated his cruiser lights and effected a traffic stop about 20 metres before Consumers Drive on Brock Street. He identified the driver of the Mustang as Patrick Anderson.

Officer Wong soon arrived to take over to take over the investigation. [ 10 ] Officer Wong attended where the Mustang had stopped on the right side of the road and asked the driver for his licence, ownership and proof of insurance. The driver was unable to produce a licence, but verbally identified himself as Patrick Anderson, with a date of birth of April 22, 1987 – the defendant before the Court. After further investigation, Officer Wong was satisfied with this identification. Just after 7:30am, Officer Wong arrested the defendant for dangerous operation of a motor vehicle.

He later used discretion and released the defendant on the charges that bring Mr. Anderson before this Court. In a search incident to arrest, a started bottle of cognac was located on the back seat of the Mustang, readily available to the persons in the front seat. Shortly after Officer Wong arrived, the two girlfriends drove up in the Mazda.

They were cautioned not to get involved in the traffic stop. [ 11 ] Although Officer Wong does not recall the defendant explaining that he was fleeing the people in the Audi motor vehicle and although Officer Wong followed the red Mustang for a short distance from Whites Road without observing an Audi, Officer Lamont recalls overhearing the defendant advise Officer Wong that he was fleeing. III. ANALYSIS AND FINDINGS: [ 12 ] I have carefully reviewed all of the evidence, the submissions of the parties and the case law presented to me in this matter.

Below, are my analysis and findings for the issues that have been raised. [ 13 ] There is no dispute that around 6:30am on August 5, 2013, the defendant, Patrick Anderson, was driving a red Mustang motor vehicle eastbound on Highway 401 from Markham Road to Brock Street. The defendant did not know at what speed he was travelling. The maximum speed limit is posted at 100 kilometres per hour. As the defendant passed through Pickering near Whites Road, Ontario

Provincial Police Office Wong used his radar device to find the defendant was travelling at a rate of speed of 218 kilometres per hour.

Although Officer Wong did lose sight of the defendant’s vehicle along the way, given the testimony of Officer Wong and that of thedefendant, I am satisfied that it was the defendant’s vehicle that Officer Wong targeted at this high rate of speed near Whites Road inPickering and I accept Officer Wong’s testimony that the defendant was travelling at 218 kilometres per hour. [14] Furthermore, there is no dispute that the defendant was driving the motor vehicle on Highway 401 the morning of August 5,2013 while his driver’s licence was suspended. [15] The defendant claims the defence of necessity and that he was fleeing people in a green Audi motor vehicle.

He feared theymight shoot him or his cousin, Ricardo Wright. I will address the defence of necessity below. [16] There is also no dispute that an opened bottle of cognac was found on the back seat of the red Mustang when the police pulledthe defendant over at the traffic stop on Brock Street in Whitby. (

a) Was the defendant performing a stunt? [17] The defendant is charged under s.172 of the Highway Traffic Act, R.S.O. 1990, c. H.8 [“HTA”], for performing a stunt and forracing.

Section 172 reads: 172(1) Racing, stunts, etc. prohibited – No person shall drive a motor vehicle on a highway in a race or contest, while performing a stuntor on a bet or wager. [18] This

section of the HTA creates three distinct offences: racing, performing a stunt and on a bet or wager: see e.g. R. v. Raham,2010 ONCA 206 , [2010] O.J. No. 1091 (C.A.). O. Reg. 455/07 expressly defines the activities where one or more personsengage in particular driving behaviours which will be captured by s.172. [19] In the matter before me, the following

section of O. Reg. 455/07 relates to the offence of performing a stunt: 3.7. Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit. [20] I am satisfied that the posted maximum speed limit on the

section of Highway 401 near Whites Road in Pickering is 100kilometres per hour. I also have found the defendant was travelling at a rate of speed of 218 kilometres per hour. This speed significantlyexceeds the posted maximum speed limit by more than 50 kilometres per hour over this 100 kilometres per hour speed limit that is, by118 kilometres per hour over this maximum speed limit. I am satisfied that all of the elements of driving while performing a stunt,contrary to s.172 of the HTA and as described in s.3.7 of O. Reg. 455/07 have been proven beyond a reasonable doubt. Patrick Andersonis claiming the defence of necessity, which I will analyze below. (

b) Was the defendant racing? [21] The second charge against the defendant is also found in s.172 of the HTA for racing. As stated above, under

section 172,“racing” is an offence distinct from the offence of “performing a stunt”. [22] In the matter before me, the following

section of O. Reg. 455/07 is relevant to the charge of racing: 2(1).3. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway orin a manner that may endanger any person by, … ii. outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a markeddeparture from the lawful rate of speed, [23] On August 5, 2013, the roads were dry. Just after 6:00am, the sun was rising in the east.

It was not an ordinary Mondaymorning, as it was a long weekend, such that the traffic was lighter and large commercial motor vehicles scarce. There is no evidencethat the defendant was swerving in and out of traffic as he drove at the excessive rate of speed of 218 kilometres per hour in the 100kilometres per hour speed zone, eastbound on Highway 401. Nonetheless, I am satisfied that travelling at such an excessive speed is,itself, driving without due care and attention and without reasonable consideration for other persons using the highway.

At a rate ofspeed of 218 kilometres per hour, the defendant testified that he was attempting to outdistance the green Audi motor vehicles at a markeddeparture from the lawful 100 kilometres per hour rate of speed. [24] Relying on the evidence that I do accept, I am satisfied beyond a reasonable doubt that in the morning of August 5, 2013, thedefendant was racing as he travelled eastbound along Highway 401 in Pickering, contrary to section 172(1) of the HTA. Again, he isclaiming the defence of necessity. (

c) Was the defendant driving while his driver’s licence was suspended? [25] Section 53(1) of the HTA states: 53(1) Driving while driver’s licence suspended – Every person who drives a motor vehicle or street car on a highway while his or herdriver’s licence is suspended under

an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction isliable,

(

a) for a first offence, to a fine of not less than $1,000 and not more than $5,000; and (

b) for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000, or to imprisonment for a term of not more than six months, or to both. [26] When stopped by the police on Brock Street in Whitby, the defendant was unable to provide a driver’s licence. He identifiedhimself verbally. Furthermore, Exhibit 1 to these proceedings is certified documentation from the Registrar of Motor Vehicles, Ministryof Transportation. I am satisfied that this documentation relates to the defendant, Patrick Anthony Anderson, with a date of birth of April22, 1987.

This certified documentation shows that the defendant’s licence was suspended effective October 19, 2012 for not paying afine. The defendant was served notice of this suspension, as the Notice of Suspension of Driver’s Licence was mailed to the defendant atthe latest address on the records of the Ministry on October 19, 2012, as required under s.52 of the HTA. As well, the certifieddocumentation provides that this suspension was still in effect on August 5, 2013, the day the defendant was stopped for driving the redMustang eastbound on Highway 401 at a rate of speed of 218 kilometres per hour.

I am satisfied that all of the elements of the offenceagainst the defendant, of driving a motor vehicle on a highway while his licence was suspended, contrary to s.53 of the HTA, have beenproven beyond a reasonable doubt. (

d) Has the defence of necessity been satisfied on a balance of probabilities? [27] Performing a stunt and racing are strict liability offences. For classifications of regulatory offences, see R. v. Sault Sainte Marie(1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.); for performing a stunt, see e.g. R. v. Raham, 2010 ONCA 206 ,[2010] O.J. No. 1091 (Ont. C.A.); and for racing, see e.g. R. v. Allan, [2009] O.J. No. 2389 (Ont. C.J.).

The defence of necessity appliesnot only to absolute liability offences, but also to mens rea and strict liability offences. [28] Once it has been proven beyond a reasonable doubt that the defendant has committed the offences with which he has beencharged, the defence of necessity is available to him to prove on a balance of probabilities. Patrick Anderson claims that he was fleeingfrom a green Audi, in which were individuals who he and his cousin, Ricardo Wright, feared were poised to shoot at them.

For thisreason, he had no choice but to jump into the driver’s seat of the red Mustang and speed up to the excessive speed in order to get awayfrom these people who followed them out of the restaurant parking lot and then eastbound along Highway 401. i. Limited application of the defence of necessity: [29] Necessity is a difficult defence to satisfy on a balance of probabilities. It is well established that this defence must be of limitedapplication and applied only in exceptional circumstances. In R. v.

Perka, (SCC), [1984] 2 S.C.R. 232, Dickson J.,writing for the Supreme Court of Canada, states that the defence of necessity “must be strictly controlled and scrupulously limited tosituations that correspond to its underlying rationale.” The underlying rationale to this defence is that the law “cannot hold people to thestrict obedience of the laws in emergency situations where normal instincts, whether of self-preservation or of altruism, overwhelminglyimpel disobedience”.

Conduct that may satisfy the defence of necessity may be perceived as a form of involuntariness, where anindividual is under the compulsion of circumstance in which he/she finds himself/herself or where the actions are morally or normativelyinvoluntary and there is no choice but to contravene the law. [30] In R. v. Latimer, 2001 SCC 1 , [2001] 1 S.C.R. 3, the Court cites Perka, supra, and writes, at paragraph 27: Dickson J. insisted that the defence of necessity be restricted to those rare cases in which true "involuntariness" is present.

The defence,he held, must be "strictly controlled and scrupulously limited" (p. 250). It is well established that the defence of necessity must be oflimited application. Were the criteria for the defence loosened or approached purely subjectively, some fear, as did Edmund Davies L.J.,that necessity would "very easily become simply a mask for anarchy": Southwark London Borough Council v. Williams, [1971] Ch. 734(C.A.), at p. 746. ii. Three elements of the defence of necessity and the standard to apply to each element: [31] To success with the defence of necessity, three elements must be satisfied:

(1) There is the requirement of imminent peril or danger. The peril must be on the verge of transpiring and virtually certain tooccur. A foreseeable or likely peril is insufficient.

(2) The defendant must have no reasonable legal alternative to the course of action he or she undertook. If there was a reasonablelegal alternative to breaking the law, there is no necessity.

(3) There must be proportionality between the harm inflicted and the harm avoided. At a minimum, the two harms must be ofcomparable gravity. The harm inflicted cannot be out of proportion to the peril to be avoided [32] Beginning at paragraph 32 of Latimer, supra, the Supreme Court of Canada has determined whether the standard is objective orsubjective or if it is a modified objective test that falls between the two: Before applying the three requirements of the necessity defence to the facts of this case, we need to determine what test governsnecessity. Is the standard objective or subjective?

A subjective test would be met if the person believed he or she was in imminent perilwith no reasonable legal alternative to committing the offence. Conversely, an objective test would not assess what the accused believed;it would consider whether in fact the person was in peril with no reasonable legal alternative. A modified objective test falls somewherebetween the two. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particularaccused person.

We conclude that, for two of the three requirements for the necessity defence, the test should be the modified objectivetest.

The first and second requirements -- imminent peril and no reasonable legal alternative -- must be evaluated on the modified objectivestandard described above. As expressed in Perka, necessity is rooted in an objective standard: "involuntariness is measured on the basisof society's expectation of appropriate and normal resistance to pressure" (p. 259). We would add that it is appropriate, in evaluating theaccused's conduct, to take into account personal characteristics that legitimately affect what may be expected of that person. Theapproach taken in R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973, is instructive.

Speaking for the Court, Lamer C.J. held, atpara. 59, that … it is appropriate to employ an objective standard that takes into account the particular circumstances of the accused, including his orher ability to perceive the existence of alternative courses of action. While an accused's perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused,those perceptions remain relevant only so long as they are reasonable.

The accused person must, at the time of the act, honestly believe,on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must be areasonable basis for the accused's beliefs and actions, but it would be proper to take into account circumstances that legitimately affectthe accused person's ability to evaluate his situation.

The test cannot be a subjective one, and the accused who argues that he perceivedimminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given hiscircumstances and attributes. We leave aside for a case in which it arises the possibility that an honestly held but mistaken belief couldground a "mistake of fact" argument on the separate inquiry into mens rea. The third requirement for the defence of necessity, proportionality, must be measured on an objective standard, as it would violatefundamental principles of the criminal law to do otherwise.

Evaluating the nature of

an act is fundamentally a determination reflectingsociety's values as to what is appropriate and what represents a transgression. Some insight into this requirement is provided by G. P.Fletcher, in a passage from Rethinking Criminal Law (1978), at p. 804. Fletcher spoke of the comparison between the harm inflicted andthe harm avoided, and suggested that there was a threshold at which a person must be expected to suffer the harm rather than break thelaw. He continued: Determining this threshold is patently a matter of moral judgment about what we expect people to be able to resist in trying situations.

Avaluable aid in making that judgment is comparing the competing interests at stake and assessing the degree to which the actor inflictsharm beyond the benefit that accrues from his action. The evaluation of the seriousness of the harms must be objective. A subjective evaluation of the competing harms would, by definition,look at the matter from the perspective of the accused person who seeks to avoid harm, usually to himself.

The proper perspective,however, is an objective one, since evaluating the gravity of the act is a matter of community standards infused with constitutionalconsiderations (such as, in this case, the s. 15(1) equality rights of the disabled). We conclude that the proportionality requirement mustbe determined on a purely objective standard. [33] In

summary, a modified objective standard, in which an objective standard takes into account the particular circumstances ofthe defendant, is applied to the first two elements. Too often, defendants claim the defence of necessity, and mistakenly andinappropriately apply a subjective test. The third element is measures on a purely objective standard, in order to reflect society’s valuesand “community standards infused with constitutional considerations”. iii.

Determining if the facts in this matter satisfy the three elements: [34] The defendant viewed the Audi following him as the source of the imminent peril or danger. It was Patrick Anderson’stestimony that had he not sped up, that the people in the green Audi would have shot at him and/or his cousin. [35] In examination in chief of the defendant: Q. Okay, so you’re trying to get away from him. Are you obeying the speed limit or – well, how fast are you going? A.

At that time I couldn’t tell you exactly what speed limit I was doing but I know I was, I was driving thinking I was trying to getaway, that was my main intention. Q. Right. So you’re, you’re trying to get away. And at that point in time, what were you thinking when you were driving away? A. I was just thinking to get away and see a next day because like I said, I don’t know what, what it was, what started all this. Q. Okay, you say “see a next day”, can you just flush that out, what … A. My intentions … Q. … what … A.

My intentions – like I said, my cousin – I heard my cousin say, “What are you gonna do, shoot me, shoot me?” … Q. Okay. A. … so that means they’re, they’re trying to get at him for some apparent reason. Q. Okay. A. It’s not like – there’s three people there, it’s not like somebody came after me and somebody went after him, somebody wentafter him and I, I jump in the car and I said, “Jump in,” and he jumped in and I started to drive.

I ended up on the 401 East and I’mdriving east and while I’m driving east my main intention is to get away, like just to get away because at the same time there has been alot of shooting where people are driving on the highway and people do shoot after cars, so at the, at the same time I’m saying to myself

that I just need to get away and try to lose this green car behind me [36] The defendant may have subjectively believed people in the green vehicle behind him would shoot at him, leaving him noalternative but to speed up. However, applying the modified objective test, which “takes into account the situation and characteristics ofthe accused person”, (see Latimer, supra) I do not accept there is a reasonable basis for the defendants’ beliefs and conduct.

It is notreasonable to find that a motor vehicle following the defendant, as he slowly drove out of the restaurant parking lot, would then followedhim onto Highway 401 and would wait until the defendant sped up on the highway to shoot at him. It is not reasonable to believe that agreen Audi was pursing the defendant on Highway 401 by the time Officer Wong was following the defendant eastbound near WhitesRoad, as the Officer testified he does not recall seeing any evidence of a green car behind the defendant’s vehicle.

It is not reasonable tobelieve there was no alternative except to accelerate to the excessive rate of speed, since Highway 401 in the area travelled by thedefendant, after sunrise that morning, was built up on both sides and there were several police stations that the defendant passed alonghis way from Markham Road in Toronto to Brock Street in Whitby.

These factors clearly distinguish the matter before me from thesituation where the defence of necessity to a charge of speeding 140 kilometres per hour in an 80 kilometres per hour zone wassuccessful, where the defendant found himself on a lonely, dark road when a vehicle sped up behind him, as described in case lawprovided by defence: R. v. Card, [2000] O.J. No. 2333 (O.C.J). And, although the defendant had been prohibited from possessing acellular phone, his cousin, seated beside him in the front passenger seat, had one.

Yet neither of them used that phone to call the policein the situation of imminent peril they may have believed they faced. [37] Moreover, Kayla Salesman, who followed in the grey Mazda, testified that she, too, did not use her cell phone to call the police. She testified that this was because she was not sure what was going on and she did not want to be involved, even though she heardRicardo Wright exclaim “Don’t shoot me, leave me alone”.

When pressed, a short time later she testified that it was a long time ago and“maybe my phone was dead, maybe I didn’t even have a phone at that time where I wasn’t able to call the police.” Given her shiftingevidence, I can give her evidence little to no weight. [38] The defendant must be left with no legal alternative but to take the action he did to drive along Highway 401 at a rate of speedof 218 kilometres per hour.

Given the defendant passed several police stations along the way, given that his cousin had a cell phone withwhich he could have called 911, I find that there were legal alternatives to breaking the law available to the defendant.

He did not chooseto afford himself of these legal alternatives, instead choosing to travel along the highway at the egregious speed of 218 kilometres perhour. [39] With the onus on the defendant to prove the defence on a balance of probabilities and having considered all of the surroundingfacts, including the option the defendants chose, that is, to accelerate to an excessive speed in order to escape the green Audi motorvehicle, I find the modified objective test attaching to the first two elements of the defence of necessity fails with respect to the offencesof performing a stunt and racing under s.172 of the HTA.

With other legal options readily available to the defendant, there is no defenceof necessity. [40] Moreover, given the defendant testified in cross examination, “I didn’t like sped [sic] out the parking lot, I just drove out andthen I seen that the green car was pursuing.”, I find the defendant did not know the green Audi was going to follow him until after he gotinto the driver’s seat of the red Mustang and drove off.

Given the defendant appeared to be in no hurry driving out of the restaurantparking lot and had not immediately ascertained that the green Audi would be following him, the option of having his cousin move tothe driver’s seat appears to be an available and reasonable legal alternative in this situation, instead of the defendant driving while hisdriver’s licence was suspended. Again, the defendant has not satisfy the requirements for the defence of necessity as it applies to thischarge against him. (

e) Was the defendant operating a motor vehicle with open liquor readily available? [41] The relevant potions of the Liquor Licence Act, R.S.O. 1990, c. L.19 [“LLA”] read: 32.(1) – Conveying liquor in vehicle, boat – No person shall drive or have the care or control of a motor vehicle as defined inthe Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor,except under the authority of a licence or permit.

(2) Exception - Subsection (1) does not apply if the liquor in the vehicle, (

a) is in a container that is unopened and the seal unbroken; or (

b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. [42] Upon search of the motor vehicle the defendant had been driving eastbound on Highway 401, on the morning of August 5,2013, the police officer located a started bottle of cognac lying on the back seat of the Mustang. There is no evidence that the bottle waspackaged in baggage that was fastened close. Hence, I am satisfied that while the defendant was driving the red Mustang that day, astarted or unsealed bottle of cognac was readily available to the defendant. I am satisfied that all of the elements of s. 32(1) of the LLAhave been proven beyond a reasonable doubt. (

f) Does the principle in Kienapple apply? [43] A defendant cannot be convicted of multiple offences with the same or substantially the same elements arising from the sametransaction. Laskin J., writing for the majority in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, states: The rationale of my conclusion that the charges must be treated as alternative if there is there should not be multiple convictions for thesame delict against the same girl, has a long history in the common law. A convenient beginning is with the maxim expressed in Hudsonv. Lee [(1589), 4 Co.

Rep. 43a, 76 E.R. 989], at p. 990, "nemo debet bis puniri pro uno delicto", which although framed in terms ofdouble punishment, has come to be understood as directed also against double or multiple convictions; in short, nemo bis vexari as wellas nemo bis puniri. This was exemplified in the unanimous judgment of this Court in Cox and Paton v. The Queen [

(SCC), [1963] S.C.R. 500], which involved, inter alia, convictions of the accused on two counts, numbered (1) and (3), for conspiracy tosteal and conspiracy to defraud, both relating to the same money and securities. Cartwright J., as he then was, speaking for this Court,held that the Manitoba Court of Appeal had properly quashed one of the convictions. He put the matter in these words (at p. 516): The reason that the convictions on counts 1 and 3 cannot both be supported is not that they are "mutually destructive", as was said of thecounts in R. v.

Mills [1959] Cr.L.Rev. 662, but rather that if both were allowed to stand the accused would in reality be convicted twiceof the same offence. It is the same conspiracy which is alleged in the two counts and it would be contrary to law that the accused shouldbe punished more than once for the same offence.

Of course, in a strict sense, Cox and Paton was no more a case of multiple convictions for the same offence than is the present case.Rather it was a case, as is the present one, of multiple convictions for the same matter. [44] Kienapple is distinct from double jeopardy and issue estoppel because these latter principles apply when a matter appearsbefore a subsequent judicial officer.

Kienapple applies in the cases of multiple counts tried before one judicial officer, as is the case here. [45] No one can be convicted of two different offences if there is (1) a factual nexus between charges, where the same act groundseach charge, as well as (2) a legal nexus between the offences. The legal nexus requires more than that the offences having one commonelement, but rather focusses on the presence or absence of additional distinguishing elements. [See R. v.

Prince, (SCC),[1986] 2 S.C.R. 480.] [46] For a factual nexus to exist in the matter before me, I ask whether the same acts of the defendant ground each of the charges. Itis clear that the charges are founded upon the same acts along Highway 401, that being the excessive speed at which the defendanttravelled eastbound on Highway 401 on August 5, 2013.

I am satisfied that the factual element of the Kienapple principle is satisfied. [47] To determine if there is a legal nexus between the offences of performing a stunt and racing, I must determine whethersubstantially the same elements are needed to be proved for these offences. Notwithstanding that there is a single act, different delicts,causes or matters may sustain separate convictions.

Hence, this nexus will be satisfied only if there is no additional and distinguishingelement that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle. [SeePrince, supra, at paragraph 32.] Having said this, though, where offences are not equal in gravity, the principle in Kienapple maypreclude a conviction for a lesser offence, despite additional elements in the graver offence for which a conviction has been registered, ifthe lesser offence has no distinct additional elements. [48] In determining whether an element of an offence is additional or distinct, I look to Dickson C.J., writing for the Court in Prince,supra, starting at paragraph 34: I now turn briefly to the question of when an element of an offence sufficiently corresponds to another element so that it cannot beregarded as additional or distinct.

When can it be said that elements are "substantially the same" or "alternative" the one to the other?This is a question which defies precise answers. Differences of degree are often important and, as La Forest J. has pointed out, abstractlogic must be supplemented by an awareness of practical considerations in ascertaining Parliament's intention in creating differentoffences: Krug, supra, p. 269.

Without purporting to be exhaustive, I believe that there are at least three ways in which sufficientcorrespondence between elements can be found, each of which is subject always to the manifestation of a legislative intent to increasepunishment in the event that two or more offences overlap. First, an element may be a particularization of another element. In Krug, the Court was called upon to consider not only the relationshipbetween s. 83(1)(

a) and s. 302(d), as described above, but also the relationship between s. 83(1)(

a) and s.

Section 84 made it anoffence to point a firearm at a person. Section 83(1)(a), it will be recalled, made it an offence to use a firearm while committing anindictable offence. The trial judge had characterized the element of "pointing at a person" as an ingredient additional to "use". This Courtdisagreed, saying, "It is obvious that pointing a gun is a manner of using it" (p. 268). Accordingly, the Court referred to pointing as aparticularization of use.

Under the circumstances, it was difficult to believe that Parliament intended "automatically to make the sameobjectionable behaviour the subject of two separate offences" (p. 270). In general, the particularization in one offence of an element of another offence should not be regarded as a distinguishing feature thatrenders Kienapple inapplicable.

Parliament may create offences of varying degrees of generality, with the objective (vis-a-vis the moregeneral offence) of ensuring that criminal conduct will not escape punishment because of a failure of the drafters to think of eachindividual circumstance in which the conduct might be committed, or with the objective (vis-a-vis the more specific offence) ofaddressing with certainty particular conduct in particular circumstances.

In the absence of some indication of Parliamentary intent thatthere should be multiple convictions or added punishment in the event of an overlap, the particularization of an element ought not to betaken as a sufficient distinction to preclude the operation of the Kienapple principle. A second way in which elements may correspond relates to there being more than one method, embodied in more than one offence, toprove a single delict. In R. v. Gushue (1976), (ON CA), 32 C.C.C. (2d) 189 (Ont.

C.A.), affirmed on other grounds, (SCC), [1980] 1 S.C.R. 798, the accused was charged under s. 124 with giving evidence in a judicial proceeding thatwas contrary to his own previous evidence. He was also charged with perjury contrary to s. 121. The Court reached the conclusion thatconvictions under both offences would have infringed the Kienapple principle. I agree.

Although s. 121 and s. 124 have differentelements, the difference is clearly not a reflection of any Parliamentary intent to add extra punishment when both offences can be proven.Section 124 is designed merely to facilitate proof of false evidence having been given, notwithstanding that no one particular statementcan be proven false. Parliament has merely succumbed to the imperatives of logic: if two contradictory statements are given, one of themmust be false and the delict of giving false evidence must have been committed on one of the two occasions.

The third situation in which there is sufficient correspondence between elements to sustain the Kienapple principle is somewhat similar.It arises when Parliament in effect deems a particular element to be satisfied by proof of a different nature, not necessarily because logiccompels that conclusion, but because of social policy or inherent difficulties of proof. The Kienapple case itself affords one example.There, as we have seen, the element of the victim's age served as a substitute for the element of non-consent.

A girl of less than fourteenyears of age could not in Parliament's opinion meaningfully consent to sexual intercourse. Another example is provided by Terlecki v.

The Queen, (SCC), [1985] 2 S.C.R. 483. Although the case largely dealt with a procedural issue, the Court's decisionwas predicated on the applicability of Kienapple as between the offences of impaired driving contrary to s. 234 and "over 80" contrary tos. 236. Impairment is inherently difficult to prove, and Parliament has deemed a certain proportion of alcohol in one's blood to constitutean impairment of driving ability.

The differences between the elements of these offences are explained by an attempt to facilitate theapprehension by the police or the conviction by the courts of persons who are guilty of essentially the same wrongful conduct: seeLeonoff and Deutscher, supra, at p. 261. I believe that elements which serve only as an evidentiary proxy for another element cannot beregarded as distinct or additional elements for the purposes of the rule against multiple convictions.

I emphasize that in applying the above criteria it is important not to carry logic so far as to frustrate the intent of Parliament or as to losesight of the overarching question whether the same cause, matter or delict underlies both charges. For example, there exist offencesaimed at a particular evil which (in certain circumstances) contain as an element the commission of some other offence directed towardan entirely different wrong. Such was the relationship between the offences in Lecky, Earle, Pinkerton and Pere Jean Gregoire.

In thesecases, it could be argued, a substantive offence was subsumed by a greater, generic offence: Klinck, supra, at pp. 301-02. To illustrate,the offence of breach of probation contains as an element the non-compliance with a Probation order which, as a matter of law, requiresthe accused to keep the peace and be of good behaviour: s. 663(2).

The fact that breach of probation is an offence punishable bysummary conviction (s. 666(1)) is a clear indication that Parliament cannot have intended a conviction for that offence to operate as a barto a conviction for the substantive offence (which might attract a far more severe penalty) merely because the substantive offence mightbe regarded as a particularization of a failure to keep the peace and be of good behaviour.

Plainly, breach of probation is an offencedesigned to protect the effective operation of the criminal justice system, a societal interest which is entirely different from that protectedby an offence such as assault. Accordingly, Kienapple had no application in those four cases. [49] In the matter before me.

I am satisfied that the act of speeding 218 kilometres per hour in the conditions that existed at the time,is sufficient to find that the defendant was “driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over thespeed limit”, i.e. 118 kilometres per hour over the maximum speed limit, and this is sufficient to ground the conviction for performing astunt, contrary to s.172 of the HTA.

At this rate of speed, I also have found that the defendant was proceeding “without reasonableconsideration for other persons using the highway” and also at that speed, he was “outdistancing or attempting to outdistance one ormore other motor vehicles” as I find driving 218 kilometres per hour in a 100 kilometres per hour speed zone is “driving at a rate of speedthat is a marked departure from the lawful rate of speed”. I am content that there is “more than one method, embodied in more than oneoffence, to prove a single delict”, and the legal nexus required in the Kienapple principle has been satisfied.

In the case before me,speeding in the circumstances that existed is one of the ways to prove the defendant was performing a stunt and this speeding is the proofrequired to find the defendants guilty of ‘racing’’.

Moreover, when looking to the legal nexus between this charge of ‘performing astunt’ and ‘racing’, the particularization of one element of ‘stunt driving’ to prove ‘racing’ in the matters before me “should not beregarded as a distinguishing feature that renders Kienapple inapplicable”. [See Prince, supra.] [50] Given the Kienapple principle applies, and I have made findings of guilt of each of these two charges against this defendant, Imust determine the remedy.

The defendant will be convicted on the more serious offence and a conditional stay, pending any appeal,will be entered on the less serious offence. [51] To determine which offence is the more serious one, I turn to the respective penalties available to the Court upon sentencing. For a conviction of performing a stunt or racing under s.172 of the HTA, the penalty is the same and the defendant is “liable to a fine ofnot less than $2000 and not more than $10,000 or to imprisonment for a term of not more than six months, or to both, and in addition hisor her driver’s licence may be suspended, (

a) on a first conviction … for not more than two years; or (

b) on a subsequent conviction …for not more than 10 years”. Further, the officer shall request that the driver surrender his or her driver’s licence and shall detain thevehicle for impounding. There are also administrative penalties of a seven-day licence suspension and a seven-day vehicleimpoundment. [52] Since the consequences for ‘performing a stunt’ and for ‘racing’ are the same, and because the Kienapple principle forbidsconvictions on both of these charges, I am staying the charge of ‘racing’. IV.

CONCLUSION: [53] Based on my careful review of the evidence and based on the evidence I find credible and reliable, I am satisfied that all of theelements of the offences of performing a stunt and racing have been proven beyond a reasonable doubt. The defence of necessity has notbeen satisfied on a balance of probability.

Applying the Kienapple principle, I am staying the charge of ‘racing’, conditional upon theexpiration of the appeal period or disposition of the matters at appeal. [54] I find Patrick Anderson guilty of performing a stunt, to wit, driving a motor vehicle, on Highway 401 in the RegionalMunicipality of Durham, at 218 kilometres per hour, which is a rate of speed that is more than 50 kilometres over the posted 100kilometres per hour maximum speed limit, contrary to s. 172 of the HTA.

There will be a conviction registered. [55] For the charge of driving while his driver’s licence was suspended, again the defendant has failed to satisfy the defence ofnecessity. Therefore, I find Patrick Anderson guilty of driving a motor vehicle on a highway while his driver’s licence was suspended,contrary to s. 53 of the HTA. There will be a conviction registered. [56] Finally, I am satisfied that all of the elements of operating a motor vehicle with open liquor readily available, contrary to s. 32(1)of the Liquor Licence Act have been proven beyond a reasonable doubt.

There will be finding of guilt to this charge and a conviction willbe registered. Released: March 29, 2017

Signed: Justice of the Peace M. Coopersmith