Court of Appeal for Ontario
Before: Doherty, Epstein JJ.A. and Cavarzan J. (ad hoc)
Between
Her Majesty the Queen
Respondent
and
Shawn Manahan
Applicant (Appellant)
Counsel: Paul Burstein, for the applicant (appellant) Benita Wassenaar, for the respondent
Heard: October 25, 2012
On appeal from the conviction entered on November 24, 2009 and the sentence imposed on August 13, 2010 by Justice B. E. Pugsley of the Ontario Court of Justice.
APPEAL BOOK ENDORSEMENT
1The actus reus of the offence is conceded on appeal. On the facts as found by the trial judge, especially his finding as to the speed of the appellant’s vehicle (at least 136 k.p.h. in a 60 k.p.h. zone), there can be no doubt that the appellant was properly convicted.
2The trial judge did not have the benefit of R. v. Roy, 2012 SCC 26. Counsel argues that the trial judge failed to pose the two questions outlined at para. 36 of Roy and said to be a “useful approach” to the mens rea questions.
3In our view, posing those questions in the context of the trial judge’s findings of fact admits of no answer other than that a reasonable person would have foreseen the risk inherent in the manner in which the vehicle was being driven and taken steps to avoid that risk, and that the accused’s failure to foresee the risk and take steps to avoid it was a marked departure from the standard of care expected of a reasonable person in the appellant’s circumstances. In that regard, we note that the trial judge did not find that the appellant believed he was going 80-90 k.p.h., but rather found he did not know how fast he was travelling when the vehicle crested the hill and went out of control.
4The appeal is dismissed.