



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Burger, 2017 ONCA 101

DATE: 20170208

DOCKET: C61281

LaForme, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ruth Burger

Appellant

Jill R. Presser and Andrew Menchynski, for the appellant

James V. Palangio, for the respondent

Heard: November 22, 2016

On appeal from the conviction entered on June 19, 2015 by
    Justice Jonathon C. George of the Ontario Court of Justice, with reasons
    reported at 2015 ONCJ 349.

Rouleau J.A.:

A.

Overview

[1]

The appellant appeals from her conviction on two counts of dangerous
    driving causing death and two counts of dangerous driving causing bodily harm.

[2]

While attempting to back out of her parking spot outside of a Costco department
    store, the appellant drove her car into the store's front entrance, killing two
    individuals and injuring two others. The appellant asserted that she was unable
    to stop her car's trajectory because her foot became stuck under the brake pedal,
    causing her to depress the gas pedal and to be unable to stop accelerating in
    reverse.

[3]

The appellant maintains that it was a tragic accident but did not
    constitute a criminal offence. She argues that the trial judge rendered an
    unreasonable verdict, misunderstood and misapplied the legal standard for
    dangerous driving, misapprehended evidence regarding her driving and the
    corrective actions she took and, finally, engaged in impermissible speculation.

[4]

For the reasons that follow, I would dismiss the appeal.

B.

Facts

[5]

At approximately noon, on July 25, 2014, the appellant exited a Costco
    store in London, Ontario and entered her car, which was parked in the store's
    busy parking lot. Weather conditions were clear and her vehicle was in good
    working order.

[6]

The appellant had parked her car in a position that required her to back
    out. The distance from her parking space to the front entrance of the Costco
    store was approximately 59 metres.

[7]

After backing out of her parking space, the appellant did not stop and
    the car accelerated in reverse until it crashed into the Costco store's front
    entrance. Tragically, two individuals were killed and two others were injured.

[8]

A witness, who saw the appellant backing out of her parking spot,
    testified that the car reversed "unusually fast" from the parking spot.

[9]

In her testimony at trial, the appellant confirmed that she followed her
    ordinary practice, which was not to hold the brake while reversing but rather
    to push the gas pedal lightly. She testified that when she tried to move her
    foot from the gas pedal to the brake pedal, she realized that she could not
    move it because it was stuck under the brake pedal.

[10]

In the car that she was driving, the top of the brake pedal and the top
    of the adjacent gas pedal were flush one to the other. The appellant could not
    explain how, if she had merely touched the gas pedal lightly, her foot could have
    become trapped under the brake pedal.

[11]

During a period of at least five seconds, the appellant's car
    accelerated towards the Costco store. She testified that during this time, she tried
    to wiggle her foot out from under the brake pedal but was unsuccessful. Other than
    steering, she did not attempt any other measures to avoid the accident. She did
    not press the brake pedal with her other foot, put the gear shift into neutral
    or park, honk the horn or turn off the ignition.

[12]

The defence tendered a report prepared by a retired police officer who
    performed a simulation, which purported to show that the appellant's account of
    her foot becoming wedged under the brake pedal was plausible.

[13]

The London Police Service, who investigated the accident, obtained
    "crash data retrieval" ("CDR") information from the appellant's vehicle, which contained
    information as to the vehicle's speed and engagement of the accelerator for the
    five seconds preceding the crash. The CDR data revealed that during the five
    seconds preceding the crash, the gas pedal was depressed as follows:

- 100% - 5 seconds prior to accident

- 71% - 4 seconds prior to accident

- 84% - 3 seconds prior to accident

- 97% - 2 seconds prior to accident

- 100% - 1 second prior to accident

The speed of the vehicle was as follows:

- 7mph or 11 km/hr - 5 seconds prior to accident

- 14 mph or 22 km/hr - 4 seconds prior to accident

- 22 mph or 35 km/hr - 3 seconds prior to accident

- 27 mph or 43 km/hr - 2 seconds prior to accident

- 29 mph or 46 km/hr - 1 second prior to accident

[14]

The CDR information also indicates that the brake pedal was not
    depressed even slightly at any point over the eight seconds preceding the crash.
    (The CDR data available for brake pressure is eight seconds rather than the
    five for the other measures).

[15]

The Crown argued at trial that the appellant's explanation that her foot
    was caught under the brake pedal made no sense and ought to be rejected
    outright. In the Crown's submission, the appellant created a very dangerous
    situation by reversing at high speed and, having created this dangerous situation,
    took no steps to correct it. The Crown's police expert testified that the
    average driver requires 2.5 seconds to react once she perceives a danger and
    that in this case the appellant had a minimum of five seconds and did nothing.

C.

The Trial Decision

[16]

In his reasons, the trial judge acknowledged that a critical factual
    issue for his determination was whether the appellant's assertion that her foot
    was caught under the brake pedal, preventing her from engaging the brake, was
    true or, at the least, raised a reasonable doubt as to her guilt. He held that,
    if he were to accept the appellant's story or if it raised a reasonable doubt,
    he would have to acquit her of all charges.

[17]

The trial judge, however, concluded that the appellant's story was
    incapable of belief. He observed that, as noted above, the tops of the brake
    and gas pedals were flush with each other and that the distance from the bottom
    of the brake pedal to the floor was 11.4 centimetres. The appellant testified
    that, while driving in reverse, she twisted her body to the right to look over
    her shoulder. The judge noted that this would place the toe of her right foot
    away from the brake pedal rather than underneath it.

[18]

Given this scenario, the trial judge rejected the appellant's account. He
    simply could not accept that the appellant had carefully reversed out of her
    parking spot and, her foot having somehow become wedged under the brake pedal,
    could not be removed. This was a common sense inference he drew from all of the
    evidence at trial, including the appellant's testimony.

[19]

The trial judge also rejected the appellant's evidence that she had
    taken corrective actions once she realised that her foot was caught. Her
    evidence that she was consciously and deliberately trying to keep the car
    straight was, he concluded, inconsistent with her other testimony including
    that she did not know how the crash occurred and that she had lost control with
    no ability to consider available corrective actions.

[20]

Having rejected the appellant's account and having concluded that it did
    not raise a reasonable doubt, the trial judge found that the Crown had
    established the
actus reus
of dangerous driving.

[21]

After noting that different fault standards apply for civil negligence,
    criminal negligence and dangerous driving, the trial judge made several
    findings relevant to assessing fault. It was established that there were no
    contributing physical or mental ailments on the part of the appellant and no
    vehicle deficiencies or adverse weather conditions. The trial judge found the
    appellant was familiar with the Costco store's parking lot, having been there
    many times. He further found that her car's gear shift could not have been
    moved to the reverse position unless the appellant had previously depressed the
    brake. As a result, the appellant's foot must have initially been on top of the
    brake before she commenced backing out of the parking spot.

[22]

The trial judge then determined that a deliberate act by the appellant
    created the dangerous situation. He found that, for an unknown reason, the
    appellant at least once, either intentionally or while intending to slam on the
    brake because she was going too fast, had applied significant pressure to the
    gas pedal to the point that it was fully compressed all the way to the floor.
    In the trial judge's view, this was the only possible way for her foot to have
    slid under the brake pedal, assuming that is what happened.

[23]

Having found that the appellant created a dangerous situation, the trial
    judge not only rejected the appellant's evidence that her foot was stuck, but
    found that, even if her foot had been stuck, several corrective actions were
    available to her and could have been taken during the five seconds or more during
    which the car accelerated towards the Costco store. The appellant could have
    applied the brake with her left foot, moved the gearshift from reverse to
    neutral or park, driven the car into a barrier or structure to avoid entering
    the Costco store, honked the horn, or turned off the ignition. None of these
    corrective actions were taken.

[24]

In his legal analysis, at para. 49, the trial judge relied on
R. v.
    Creighton
, [1993] 3 S.C.R. 3 for the principle that, for crimes of
    negligence, the court is to apply the standard of "the reasonable person in all
    of the circumstances of the case". At para. 51, he relied on
R. v. J.F.
,
    2008 SCC 60, [2008] 3 S.C.R. 215, for the principle that dangerous driving requires
    proof of a "marked departure" from the standard of care.

[25]

Here, the appellant created a dangerous situation and was aware of the
    need to stop her car, yet took no corrective measures for at least the five
    seconds preceding the crash. Based on these findings of fact, the trial judge determined
    that the appellant's conduct went beyond mere carelessness and that, in the
    result, the appellant was guilty of dangerous driving. The trial judge emphasized
    that the harm the appellant caused, though terrible, could have been much worse
    had her car penetrated further into the building.

D.

Issues

[26]

The appellant raises several issues as follows:

1.

Did the trial judge misunderstand and misapply the legal standard for
    dangerous driving;

2.

Did the trial judge misapprehend the evidence regarding the appellant's
    driving behaviour and corrective actions she claims to have taken;

3.

Did the trial judge engage in impermissible speculation when he rejected
    the appellant's testimony as to the cause of the accident; and

4.

Did the trial judge render an unreasonable verdict?

[27]

In oral submissions, the appellant addressed all of the grounds of
    appeal in conjunction. In her view, the record supports only, at its highest, a
    finding of a momentary lapse in judgment or motor coordination and not a marked
    departure from the standard of care.

E.

Discussion

(1)

The law

[28]

Before dealing with the issues raised on appeal, I will briefly review
    the relevant jurisprudence relating to the offence of dangerous driving.

[29]

The essential elements of the offence of dangerous driving were outlined
    by the Supreme Court of Canada in
R. v. Roy
, 2012 SCC 26, [2012] 2 S.C.R.
    60. In that decision, Cromwell J., writing for a unanimous court, explained:

the question is whether the manner of driving which is a marked
    departure from the norm viewed in all of the circumstances, supports the
    inference that the driving was the result of a marked departure from the
    standard of care that a reasonable person in the same circumstances would have
    exhibited (para. 41).

[30]

A momentary lapse of attention, without more, does not constitute a
    marked departure from the standard of care of a reasonably prudent driver and
    will not, therefore, constitute dangerous operation of a motor vehicle within
    the meaning of s. 249 of the
Criminal Code
, R.S.C. 1985, c. C-46: see
    also
R. v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49, at paras. 70-72.

[31]

Under s. 249(1) of the
Criminal Code
, the
actus reus
of the offence is driving in a manner that, viewed objectively, is "dangerous
    to the public, having regard to all the circumstances, including the nature,
    condition and use of the place at which the motor vehicle is being operated and
    the amount of traffic that at the time is or might reasonably be expected to be
    at that place": see
Beatty
, at para. 43. In
Beatty
, the Supreme
    Court also explained that, in assessing the
mens rea
element of the
    offence, the trier of fact must be satisfied beyond a reasonable doubt "on the
    basis of all the evidence, including evidence about the accused's 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 accused's
    circumstances" (para. 43). Further, where the accused offers an explanation,
    the judge must also 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".

[32]

In
Roy
, at para. 35, the court cautioned that "the trier of
    fact must not simply leap from the consequences of the driving to a conclusion
    about dangerousness. There must be a meaningful inquiry into the manner of
    driving." While a departure from the standard of care will justify civil
    liability, a
marked
departure is necessary to justify criminal
    punishment. The assessment is one of degree and the lack of care found by the
    trial judge must be serious enough to merit punishment: see
Roy
at
    para. 28 and
Beatty
, at para. 48.

[33]

When considering the
mens rea
element, the court applies a
    modified objective standard. That is, the court examines all of the
    circumstances and asks whether a reasonable person placed in the same
    circumstances would have foreseen the risk and taken steps to avoid it. The
    court then considers whether the accused's failure to do so constitutes a
    marked departure from the standard of care expected of a reasonable person in
    all of the circumstances such that an inference of fault from the manner of
    driving is appropriate:
Roy
, at paras. 38-40.

(2)

Did the trial judge misunderstand or misapply the legal standard for
    dangerous driving?

[34]

The appellant argues that the trial judge misunderstood the
mens rea
required for dangerous driving and mistakenly focused only on the objective
    dangerousness of the appellant's driving. In her view, the trial judge erred in
    not conducting a contextual foreseeability analysis to assess the degree to
    which, in all the circumstances, the appellant's failure to foresee and avoid a
    risk deviated from the requisite standard of care. The evidence led at trial
    was that the average person would take approximately 2.5 seconds to perceive a
    danger and to react. In the appellant's submissions, her failure to stop the
    vehicle for a period of five seconds because her foot was caught under the
    brake pedal can only be characterized as a momentary lapse in judgment or motor
    coordination and does not constitute the "marked departure" required to
    establish the offence of dangerous driving.

[35]

I disagree. First, the trial judge did not accept the appellant's
    explanation that her foot was caught under the brake pedal and could not be
    extracted. More importantly, the trial judge was alert to the need for a marked
    departure from the standard of care and referenced all of the relevant case
    law. He found that the appellant's failure to react to the risk with evasive or
    corrective action, in the five seconds or more during which she could have
    reacted, rose to the level of a marked departure. As explained in
Roy
,
    what constitutes a "marked departure" is a matter of degree. The trial judge's
    conclusion in this regard was reasonable and I see no basis on which to
    interfere.

(3)

Did the trial judge misapprehend the evidence regarding the appellant's
    driving behaviour and the corrective actions she claims to have taken?

[36]

The appellant argues that the trial judge misapprehended at least two
    pieces of material evidence. First, he mistakenly found that the appellant had
    made an initial decision to press the gas pedal too hard. This was inconsistent
    with the evidence at trial suggesting that, initially, the appellant's reversal
    was normal and appropriate. The second misapprehension relates to the trial
    judge's conclusion that the appellant did not consider or attempt any evasive
    or corrective action. This, the appellant argues, is contrary to the evidence
    that the appellant was steering while reversing at a high rate of speed.

[37]

I would not give effect to these submissions. As for the first alleged
    misapprehension, the trial judge found that at some point before the five
    seconds leading to the accident the accelerator was fully depressed, either
    consciously for some unknown reason or as a result of the appellant's negligently
    believing it was the brake. The evidence suggesting that, initially, the
    appellant may have been reversing slowly from her parking spot does not
    undermine the judge's finding. First, the same eyewitness who observed her
    initially reversing slowly also testified that the car was soon reversing
    unusually quickly away from the parking spot. The fact that the initial
    movement of the car was slow does not mean that the appellant could not have, thereafter,
    further depressed the accelerator. In fact, the CDR data confirms that the gas
    pedal was fully depressed at least five seconds before the collision.

[38]

As for the second alleged misapprehension, the trial judge acknowledged
    the appellant's evidence that she was steering and deliberately attempting to
    keep the vehicle straight while reversing at a high rate of speed. He gave
    little weight to that evidence, in light of her other evidence that she did not
    know how the crash occurred and that she had lost control with no ability to
    consider avoidance options. This was an assessment open to the trial judge. In
    any event, the appellant's "steering" of a vehicle into the front entrance of a
    busy Costco store does not undermine the trial judge's factual finding that the
    appellant took none of the several possible evasive or corrective actions
    available to her that would have avoided the incident.

(4)

Did the trial judge engage in impermissible speculation?

[39]

The appellant argues that the trial judge's explanation for rejecting
    the appellant's evidence that her foot became trapped under the brake pedal and
    could not be extracted constitutes impermissible speculation. In the
    appellant's view, her explanation for getting her foot caught under the brake
    pedal and for her inability to remove it was both logical and consistent with
    the expert evidence she presented at trial. In addition, it was corroborated by
    the CDR data which shows the gas pedal having been depressed to varying levels
    in the five seconds immediately before the accident.

[40]

I would not give effect to this ground of appeal. The trial judge's
    finding that the appellant's foot could not have become caught in the pedal
    array in the manner described by the appellant was reached by applying common
    sense and considering all of the relevant evidence led at trial. That evidence included
    the fact that, when the gas pedal is fully depressed, there is plenty of room
    beneath the brake pedal that would have allowed the appellant to easily remove
    her foot had it somehow slipped under the brake pedal. To this evidence is
    added the appellant's evidence that she was turned to her right and looking
    over her shoulder while reversing. As the trial judge found, this suggests that
    the toe of her foot would be angled toward the vehicle's central console and not
    toward the brake pedal. Finally, the expert evidence led at trial, including
    the reconstructive video tendered in defence, showed that a foot would be
    easily removed from under the brake pedal within about one second by simply
    tapping the gas pedal slightly, which would create ample room to remove the
    foot.

[41]

In any event, the trial judge was fully cognizant of the difference
    between speculation and reasonable inferences. The inference drawn by the trial
    judge was available to him on the evidence and does not constitute reversible
    error.

(5)

Was the verdict unreasonable?

[42]

Under this ground of appeal, the appellant, in effect, argues that this
    court should accept her version of the events. As set out above, her evidence
    was that her foot became caught under the brake pedal and that she was not able
    to remove it despite trying to do so. In her view, an inability to dislodge her
    foot for at least five seconds is not unreasonable.

[43]

The trial judge rejected the appellant's evidence as to how and whether her
    foot became caught and her being unable to dislodge it. In my view, he gave sufficient
    reasons for his rejection.

[44]

Further, based on all the evidence he did accept, the trial judge found
    that the appellant created a dangerous situation and took no appropriate
    evasive or corrective action for at least five seconds. This, in his view,
    constituted more than a "momentary lapse" and rose to the level of a marked
    departure from the requisite standard of care.

[45]

In reaching this conclusion, the trial judge referenced all of the
    leading cases on the elements of the offence of dangerous driving and clearly
    articulated the fault element required. I see no basis on which to interfere.

F.

Conclusion

[46]

For these reasons, I would dismiss the appeal.

Released: "P.R." February 8, 2017

"Paul Rouleau J.A."

"I agree H.S. LaForme
    J.A."

"I agree David Brown
    J.A."


