



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Best, 2012 ONCA
    421

DATE: 20120619

DOCKET: C53522

MacPherson, Armstrong and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Timothy Best

Applicant/Appellant

Robert Sheppard, for the appellant

Michael Medeiros, for the respondent

Heard and released orally: June 15, 2012

On appeal from the conviction entered on January 28, 2011
    and the sentence imposed on March 25, 2011 by Justice Bruce Thomas of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant participated in a hockey tournament in Tillsonburg on
    January 31, 2009.  After a game, he drank some beer and left the rink to drive 
    home to London.

[2]

Around 7:00 pm., while driving on Highway 401 in very snowy conditions,
    the appellant collided with a vehicle driven by Lisa Sheppard.  Ms. Sheppard
    was injured. The appellant did not stop.

[3]

A few minutes later, after exiting Highway 401, the appellant collided
    with a second vehicle (the Erny vehicle).  Again, he did not stop.

[4]

The appellant drove erratically through
    a residential area of London.  Finally, he stopped in a private driveway.  He
    got out of the car, decided to drink beer and then vodka, and then walked
    through the snow into nearby woods.  The police caught him in the woods.

[5]

The appellant was charged with six
    offences: Count 1  impaired operation of a motor vehicle causing bodily harm
    to Lisa Sheppard; Count 2  operation over 80 of a motor vehicle; Count 3  failing
    to remain at the scene of an accident causing bodily harm (Lisa Sheppard);
    Count 4  failing to remain at the scene of an accident (the Erny vehicle);
    Count 5  dangerous operation of a motor vehicle on Dorchester Road; and Count
    6  operation of a motor vehicle over 80 causing bodily harm to Lisa
    Sheppard.

[6]

At the trial, the appellant pleaded
    guilty to Count 4.  The jury found the appellant guilty on Counts 1, 3 and 5
    and not guilty on Counts 2 and 6.

[7]

Justice B. Thomas imposed a six-month
    custodial sentence consisting of: Count 1  three months; Count 3  one month
    consecutive; Count 4  one month consecutive; and Count 5  one month
    consecutive.  He also imposed a two-year driving prohibition.

[8]

The appellant appeals his conviction on
    Count 1.  If he is successful, he also appeals his sentence.

[9]

The sole basis for the appellants
    appeal of his conviction on Count 1 is that the jury verdict of guilty on this
    count is inconsistent with the not guilty verdicts on Counts 2 and 6, the two
    over 80 offences.  He contends that once the evidence relating to the
    appellants blood alcohol content (BAC) at the relevant time (the appellants
    breathalyser results were .13 and .14) is removed from the analysis, there was
    simply not enough evidence on which a jury could find that the appellants
    conduct amounted to impaired driving.

[10]

The test for setting aside a verdict on
    the basis of inconsistency is that no reasonable jury whose members had
    applied their minds to the evidence could have arrived at that conclusion: see
R. v. Pittiman
, [2006] 1 S.C.R. 381,
    at para. 6.

[11]

Impaired driving and driving over 80
    are separate criminal offences.  Operating a motor vehicle with a BAC over the
    legal limit is not an essential element of impaired driving.  Accordingly, it
    is logically and legally possible for a jury to acquit on an over 80 charge
    and convict on an impaired driving charge: see
R. v. Cunningham
(1999), 43 M.V.R. (3d) 39 (Ont. C.A.).

[12]

In this case, there was an abundance of
    evidence to support the jurys guilty verdict on Count 1, even against the
    backdrop of the jurys acquittals on the two over 80 charges. Taken as a
    whole, the evidence of the appellants prior drinking at the hockey rink, the
    evidence of his erratic driving both before and after the collision with the
    Sheppard vehicle (especially the evidence of Bryan Duross who managed to follow
    the appellants vehicle for 18 minutes), and the evidence of the appellants
    unusual behaviour consistent with impairment provided a logical route to a
    verdict of guilty on the count of impaired driving causing bodily harm.

[13]

The appeal from conviction on Count 1
    is dismissed.  It follows that the appeal from sentence does not arise.

J.C. MacPherson J.A.

Robert P. Armstrong J.A.

S.E. Pepall J.A.


