





CITATION:
R. v. Armstrong, 2011
          ONCA 709



DATE: 20111115



DOCKET: C52558



COURT OF APPEAL FOR ONTARIO



Weiler, Cronk and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Jacquelynn Armstrong



Appellant



Joseph Di Luca and Kevin Tilley, for the appellant



Emile A. Carrington, for the respondent



Heard:
September 7, 2011



On appeal from the conviction entered by Justice Anne Mullins
          of the Superior Court of Justice, sitting with a jury, on July 10, 2010.







Watt J.A.:

[1]

A jury convicted Jacquelynn Armstrong of dangerous driving and flight
    from a pursuing police officer. She appeals her convictions on grounds of
    misdirection about the essential elements of each offence and inadequate answers
    to questions from the jury both during the trial and during their deliberations.
    She also contends that the jurys verdict of guilty of the lesser and included
    offence of dangerous driving was unreasonable because it was inconsistent with
    the jurys verdict of not guilty of the offence charged, dangerous driving causing
    bodily harm.

[2]

The jury heard two widely divergent versions of events that occurred
    after a uniformed police officer pulled the appellant over for speeding. The
    verdict of the jury is indicative of their acceptance of the core (but not all)
    of the officers evidence and their rejection of the appellants account.

[3]

The trial was brief, the evidence uncomplicated. The appellants
    position at trial was that after the traffic stop, the complainant police
    officer bid her adieu. She claimed that she had no reason to evade the police
    and didnt know she was being pursued until immediately prior to her voluntary
    stop and apprehension.  According to the appellant, the events alleged by the
    officer, being struck or dragged along by the appellants vehicle as the appellant
    began to drive away without warning, never occurred.

[4]

The trial judge prepared draft final instructions and invited counsel to
    make submissions about their content. Counsel did so. The trial judges final
    instructions were the product of these discussions and elicited no objections
    from either counsel. At the suggestion of counsel, the trial judge also
    provided the jurors with decision trees for their use during deliberations. 
    Once again, counsel agreed on their content.

The Jury Instruction Grounds

[5]

The appellant contends that the trial judges
    final instructions contained two errors:

i.

the instructions on the flight offence confused
    reasonable excuse with the essential elements of the offence, and thus
    reversed the onus of proof; and

ii.

the instructions failed to adequately
    distinguish between the conduct requirement and the fault element of the
    offence of dangerous driving causing bodily harm.

[6]

I do not agree.

The Flight Offence and the
    Instructions about reasonable excuse

[7]

To determine the validity of the appellants
    complaint about the instructions on reasonable excuse in connection with the
    flight offence, it is helpful to begin with a summary of the appellants
    version of the events that underpin the allegation and a reminder about the
    nature of an excuse in criminal law.

[8]

The appellant testified that she was unaware
    that she was being pursued by the police. She saw no emergency lights and heard
    no sirens, thus she neither evaded nor intended to evade a peace officer. Put
    in another way, the appellant denied both the conduct requirement and fault
    element of the offence in s. 249.1(1) of the
Criminal Code
.

[9]

A claim of reasonable excuse by a person
    charged with a flight offence is not a denial of the essential elements of that
    offence. A reasonable excuse refers to something outside the essential
    elements of an offence. An excuse speaks to whether an accused should be held
    accountable for what otherwise would be a crime:
R. v. Taraschuk
, [1977]
    1 S.C.R. 385, at p. 388; and
R. v. Moser
(1992), 7 O.R. (3d) 737 (C.A.),
per
Doherty J.A., concurring in the result, at pp. 748-749.

[10]

In her final instructions, the trial judge
    separated out the essential elements of the flight offence, converted each into
    a question and advised jurors of the consequences of an affirmative or negative
    response to each question. The questions were repeated in the same words and
    sequence in the decision tree that the jurors had with them in their jury room
    during their deliberations.

[11]

In combination, the instructions and decision
    tree made it clear that it was for the Crown to prove beyond a reasonable doubt
    that the appellant
knew
she was being pursued by the police and
intended
to evade the officer who was pursuing her. The jurors were instructed that if
    the appellant had a reasonable excuse for the manner in which she operated her
    motor vehicle, she was to be found not guilty because she had committed no
    offence. The trial judge described the excuse advanced as a lack of awareness
    of the police pursuit.

[12]

The combination of the final instructions and
    decision tree made it clear that a reasonable doubt about the appellants
    awareness of the police pursuit or her intention to evade police required a
    finding of not guilty. By their verdict, the jurors were satisfied beyond a
    reasonable doubt that the appellant was aware of the police pursuit and drove
    as she did with the intention of evading her pursuer.

[13]

The appellants position at trial amounted to a
    denial of two essential elements of the offence: awareness of the police
    pursuit and an intention to evade it. Neither could amount to a reasonable
    excuse in law. The jury rejected her denials when they found the essential
    elements of the flight offence had been proven beyond a reasonable doubt.

[14]

The trial judge reviewed her proposed instructions
    with counsel before she charged the jury. Not only did counsel for the
    appellant at trial not object to the instructions on the flight offence, she
    expressly asked for the instruction about which complaint is now made.

[15]

This ground of appeal fails.

Dangerous Driving and
    Instructions about the Fault Element

[16]

The essence of the appellants complaint about
    the instructions on the offence of dangerous driving is that those instructions
    conflated the
actus reus
of the offence with the requisite
mens rea
,
    and thus left it open to the jury to convict the appellant on the basis of her
    conduct alone without any determination of whether the required fault element
    had been established.

[17]

I would not give effect to this ground of
    appeal.

[18]

Once again, a return to the evidence adduced at
    trial is important.

[19]

The appellants testimony about her first
    dealings with the police officer who stopped her for speeding was that the
    events described by the officer never occurred.  According to the appellant,
    the officer simply warned her (the appellant) about speeding and returned to
    her police car.  The appellant never refused the officers request for her
    ownership and insurance information, or her drivers licence and did not drive
    away with the officer hanging on and reaching into the van.  As a result, the
    principal issues for the jury to determine were whether the
actus reus
of
    the offence of dangerous driving had been proven and whether the appellants
    operation of her motor vehicle caused the officer bodily harm.

[20]

The ground of appeal advanced here was never
    raised at trial and is fundamentally at odds with the appellants testimony
    about the circumstances of the offence. Trial counsel made no objection to the
    proposed jury instructions about the elements of the offence before the
    instructions were given, or after they were delivered.

[21]

The trial judges final instructions tracked
    Final 249-B of the
Ontario Specimen Jury Instructions (Criminal)
. Those
    instructions are based on the principles elucidated in
R. v. Hundal
,
    [1993] 1 S.C.R. 867. The appellant says that those principles, at least so far
    as the fault element is concerned, have been modified if not overtaken by
R.
    v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49.

[22]

In
Beatty
, Charron J. described the test
    for
mens rea
in these terms in paragraph 43:

(b)       The
Mens Rea

The trier of fact must also be
    satisfied beyond a reasonable doubt that the accuseds objectively dangerous
    conduct was accompanied by the required
mens rea
.  In making the
    objective assessment, the trier of fact should be satisfied on the basis of all
    the evidence, including evidence about the accuseds actual state of mind, if
    any, that the conduct amounted to a marked departure from the standard of care
    that a reasonable person would observe in the accuseds circumstances.
    Moreover, if an explanation is offered by the accused, then in order to
    convict, the trier of fact must be satisfied that a reasonable person in
    similar circumstances ought to have been aware of the risk and of the danger
    involved in the conduct manifested by the accused.

[23]

She added in para. 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 accuseds position would have
    been aware of the risk created by this conduct. If there is no such evidence,
    the court may convict the accused.


[24]

In this case, the appellant does not complain
    about the adequacy of the charge on the
actus reus
or external circumstances

of the offence. On the basis of that instruction, the jury found that the
    appellants operation of her motor vehicle, when initially involved with the
    officer, constituted a marked departure from the standard expected of a
    reasonably prudent driver. The record is bereft of any evidence about the
    appellants then state of mind. Absent such evidence, and in accordance with
Beatty
,
    I see no reason why the failure to provide any further direction constitutes
    error.

[25]

This ground of appeal fails.

The Unreasonable or
    Inconsistent Verdict Ground

[26]

The appellant argues that the jurys verdict,
    which found the appellant guilty of dangerous driving
simpliciter
, is
    unreasonable because it is inconsistent with their finding that the appellant
    was not guilty of dangerous driving causing bodily harm.

[27]

Again, I do not agree.

[28]

The onus of establishing that a jury verdict is
    unreasonable because it is inconsistent with another verdict of the same jury
    is difficult to discharge. After all, the jury, the sole judges of the facts,
    has a very wide latitude in its assessment of evidence:
R. v. Pittiman
,
    2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7. The onus is the same whether the
    alleged inconsistency arises from verdicts rendered on separate counts in a
    multi-count indictment or from verdicts on individual counts that give rise to
    included offences.

[29]

In this case, the principal offence, dangerous driving
    causing bodily harm, required proof of the lesser offence of dangerous driving
simpliciter
and two further elements:


i.

causation; and


ii.

bodily harm.

By their verdict, the jury was
    satisfied that the prosecutor had proven the essential elements of dangerous driving
simpliciter
. The jury had a reasonable doubt, however, about one of the
    additional requirements of causation and bodily harm.

[30]

The chief source of the evidence about causation
    and bodily harm was the complainant police officer. She testified that she
    suffered muscle bruising and a tear in one of the tendons in her shoulder. She
    paid little attention to her injury as events unfolded, but later went to
    hospital and followed a course of rehabilitative therapy. She was off work for
    three months.  This was the second time she had injured or had suffered an
    injury to the same arm or shoulder.

[31]

It was common ground at trial that the jury
    should be instructed about the included offence of dangerous driving
simpliciter
in the event that they had a reasonable doubt that it was the appellants
    operation of her motor vehicle that
caused
any injury to the officer (as
    opposed to the officers own conduct), or that the injury amounted to bodily
    harm as defined in s. 2 of the
Criminal Code
.

[32]

The verdicts of the jury on the dangerous
    operation causing bodily harm count, finding the appellant not guilty as
    charged but guilty of dangerous driving
simpliciter
, are not
    irreconcilable. They are not verdicts such that no reasonable jury, properly
    instructed, could possibly have rendered on the evidence introduced at trial:
Pittiman
,
    at para. 10.

[33]

In this case, the jury could have concluded that
    the appellant drove dangerously because she drove away with the police officer
    in very close proximity to the van, but that it was the officers own conduct
    in hanging on to the van that caused her injuries. Alternatively, the jury may
    have concluded that the officer had a pre-existing condition and that her
    encounter with the appellant did not amount to bodily harm. Either finding
    was available to the jury on the evidence.

[34]

I would reject this ground of appeal.

The Jury Questions

[35]

The appellant also takes issue with the trial
    judges response to two questions asked by the jury. The first question was
    asked before the evidence had been completed and the second emerged during the
    jurys deliberations.

The Mid-Trial Question

[36]

At the end of the first day of trial, after all
    prosecution witnesses had testified, the trial judge received a written
    question from a juror:

Can the accused be guilty of evading and innocent of police assault?

[37]

Before the jury returned to the courtroom the
    following morning, the trial judge took up their question with counsel. The
    lawyers agreed that the trial judge should simply tell the jurors that they
    should focus their attention on the evidence rather than upon questions of law
    about which they would receive complete instructions later. The trial judge
    answered the question in accordance with the submissions of counsel.

[38]

The appellant says that the mid-trial question
    reflected a clear misunderstanding of the nature of the proceedings: the
    indictment contained no count of assaulting a police officer.

[39]

In my view, the appellant makes too much of this
    mid-trial question.

[40]

The question was asked at the end of the first
    day of trial. We cannot assume that it reflected any unanimity of thought among
    the jurors or anything beyond a query by an individual juror. It occurred at
    the end of a day in which at least one witness indicated that the appellant had
    been arrested on a charge of assault police. The answer provided was
    satisfactory to trial counsel and responsive to the jurors question. Nothing
    more was said about any allegation of assault for the remainder of the trial.

[41]

This ground of appeal lacks substance.

The In-deliberation Question

[42]

About two hours after the jurors had begun their
    deliberations, they asked this question:

Can we get a legal definition of
    dangerous operation of a motor vehicle? A sane and prudent behaviour can be
    dangerous, is there a definition of dangerous that gives us a sense of what
    behaviour this applies to.  A sane and prudent person might not do it, but does
    it require someone be injured? Does someone have to know what they are doing is
    dangerous?

[43]

The trial judge answered the question in the
    manner in which trial counsel agreed that it should be answered and provided
    the jurors with an amended decision tree on the dangerous driving count.

[44]

The complaint here is that the trial judge
    should have first clarified the question posed by the jury before attempting to
    respond to it.

[45]

It was open to the trial judge to invite the
    jury foreperson to clarify the question asked during deliberations. Curiously,
    counsel conducting the trial did not invite the trial judge to do so and
    expressed their satisfaction with the judges proposed response.  Nothing the
    trial judge said was unresponsive to the jurys question, legally wrong or
    foreclosed the jury from asking further questions if unsatisfied with the
    judges answer.

[46]

I would not give effect to this ground of
    appeal.

Conclusion

[47]

For these reasons, I would dismiss the appeal.

RELEASED:  November 15, 2011 KMW

David
    Watt J.A.

I
    agree K.M. Weiler J.A.

I
    agree E.A. Cronk J.A.


