



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Eden, 2021 ONCA 733

DATE: 20211020

DOCKET: C68564

Paciocco, Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brooke Eden

Appellant

Jessica Zita, for the appellant

Katie Doherty, for the respondent

Heard:  October 13, 2021 by videoconference

On appeal from the conviction entered on June 21, 2019
    and the sentence imposed on February 7, 2020 by Justice Joseph Nadel of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

Ms. Eden appeals from her convictions for Impaired Operation Causing
    Death, Impaired Operation Causing Bodily Harm, and Failing to Remain, for which
    she received a global sentence of five years. The appellant also seeks leave to
    appeal the sentence.

[2]

The basic facts are that the appellant was operating her mothers motor
    vehicle when she collided with a vehicle ahead of her that had stopped at an
    intersection. The appellants vehicle careened off the vehicle that she hit,
    moved into the opposite lane, and struck a motorcycle heading in the opposite
    direction. The driver of the motorcycle was killed, and his passenger was
    seriously injured.

[3]

The appellant fled on foot from the accident. She was arrested a short
    time later about two kilometres from the accident. The arresting officer
    noticed the odour of alcohol on the appellants breath and that her eyes were
    bloodshot. Subsequent Intoxilyzer readings, extrapolated by an expert for the
    passage of time, put the appellants blood alcohol readings at the time of the
    accident in a range between 70 milligrams to 135 milligrams of alcohol per 100
    millilitres of blood. An analysis of information from the vehicle, that the
    appellant had been operating, established that the speed of the vehicle just before
    the accident was 113 to 114 kph. The posted speed limit on the road was 80 kph.

[4]

The appellant pled guilty to the offences. However, there was an issue
    regarding her mental health and fitness. The trial judge inquired about these
    matters at the time of the plea and was told that a fitness assessment had recently
    been conducted and that the appellant had been found to be fit. The trial judge
    was also told by the appellants counsel that he had conducted a full plea
    inquiry and that he had reviewed the agreed facts with her. The appellant then
    entered a plea of guilty to each of the three offences.

[5]

While the appellant was represented at the time of her guilty plea, by
    the time of sentencing, she had fired her lawyer and was unrepresented. The
    appellant said that she wanted to proceed with sentencing without a lawyer. The
    trial judge cautioned the appellant against proceeding without a lawyer, but
    the appellant insisted.

[6]

The trial judge explained the process to the appellant. He then heard
    the Crowns submissions on sentence and heard the victim impact statements. The
    trial judge adjourned the matter for two months so that the appellant could
    have more time to prepare her submissions.

[7]

The appellant then brought a number of motions, the significant one of
    which was a motion that appeared to seek to strike the guilty plea. The judge
    conducted a hearing on that motion, that included hearing from the appellants
    former counsel. He dismissed the motion as he did not find a basis for any
    suggestion that the plea had been involuntary or uninformed. In particular, the
    appellant asserted that she had pled guilty under duress, but the trial judge
    found that there was no evidence to support that assertion.

[8]

The matter proceeded to sentencing. After hearing submissions from the
    appellant, the judge imposed a global sentence of five years: four years on the
    impaired operation causing death conviction; one year concurrent on the impaired
    operation causing bodily harm conviction; and one year consecutive for the fail
    to remain conviction.

[9]

The appellant has failed to identify any legal error in the trial
    judges reasons for rejecting the motion to strike the guilty plea. More
    particularly, the appellant has failed to demonstrate any error in the trial
    judges conclusion that the plea was neither involuntary nor uninformed. We do
    not accept that the conduct of the appellant after the guilty plea provides any
    reliable evidence as to the appellants understanding of the events at the time
    that the guilty pleas were entered which, we would reiterate, occurred when she
    was represented and had been found fit to stand trial. Put simply, it is not
    sufficient to set aside a guilty plea on the basis that the accused has simply
    changed their mind after the fact.

[10]

In
    terms of the sentence appeal, the sentencing hearing was conducted fairly. The
    trial judge confirmed repeatedly that the appellant wished to represent herself
    and ensured that she understood the process, the law and the Crowns arguments.
    The trial judge was not required to adjourn matters, nor to appoint
amicus
.
    The sentence imposed by the trial judge was entirely warranted by the facts of
    the case and the appellants prior driving record. In terms of the complaint
    that the trial judge did not provide any
Downes
credit, that is a
    matter of discretion for the trial judge. The appellant has failed to show any
    basis for us to interfere with his exercise of that discretion. In saying that,
    we would note that the subject and terms of the bail were negotiated between
    counsel in a situation where the appellants entitlement to bail, given her
    breaches of prior bail orders, was certainly a live issue. We also note that
    the bail terms imposed did not represent the most onerous form of house arrest.

[11]

The
    conviction appeal is dismissed. While leave to appeal sentence is granted, the
    appeal is dismissed.

David M. Paciocco
    J.A.

I.V.B. Nordheimer
    J.A.

J.A. Thorburn J.A.


