



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Domanska, 2019 ONCA 893

DATE: 20191112

DOCKET: C66738

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Anna Domanska

Respondent

Davin Michael Garg, for the appellant

James Brennan Smart, for the respondent

Heard and released orally: November 5, 2019

On appeal from the acquittal entered on March 8, 2019 by
    Justice Malcolm McLeod of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The respondent, Anna Domanska, was charged with three counts each of
    criminal negligence causing bodily harm (
Criminal Code
, R.S.C. 1985,
    c. C-46, s. 221); dangerous driving causing bodily harm (s. 249(3)); impaired
    driving causing bodily harm (s. 255(2)); and causing bodily harm while being
    over 80 (s. 255(2.1)).

[2]

The respondent was driving her car westbound along Lakeshore Boulevard
    in Toronto when she approached a curve in the road veering north. Instead of
    negotiating this curve in the road, the respondent continued to drive straight
    and collided with a car traveling in the opposite direction causing serious
    injuries to its three occupants. The respondent also suffered a serious injury
    herself.

[3]

At the scene, the respondent told paramedics that she had consumed two
    glasses of wine. The respondent was taken to hospital where blood was taken,
    however, due to continuity concerns, the trial judge ruled that the blood
    alcohol level that was derived from this sample was unavailable to the Crown at
    trial. Moreover, the breathalyzer machine that was taken to the hospital to
    obtain a sample from the respondent malfunctioned and breath samples were not
    taken. Accordingly, there was no evidence as to the respondents alcohol
    consumption other than her own statements to paramedics at the scene.

[4]

The appellant was acquitted on all counts.

[5]

The Crown appeals. It does not challenge the trial judges continuity
    ruling with respect to the blood that was taken from the respondent. Instead,
    the Crown asserts that the trial judge erred by failing to consider all of the
    evidence as it related to:

i.

whether the respondent was impaired; and

ii.

whether her driving constituted a marked departure.

[6]

We disagree. The trial judges reasons reveal a thorough consideration
    of all of the evidence. We acknowledge that the trial judge may have erred in
    his analysis on the dangerous driving charges by operating on the assumption
    that only consumption leading to impairment could be considered. However, in
    the circumstances of this case, we are not persuaded that it had any impact on
    the trial judges ultimate conclusion that the Crown had failed to prove a
    marked departure beyond a reasonable doubt.

[7]

Accordingly, and despite Mr. Gargs able submissions, the appeal is
    dismissed.

David Watt J.A.

Grant Huscroft J.A.

Gary Trotter J.A.


