Court of Appeal for Ontario

Date: 2018-07-06 Docket: C63863 Judges: Doherty, Rouleau and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Martial Laverdure Appellant

Counsel

Jodie-Lee Primeau, for the appellant

Elena Middlekamp, for the respondent

Heard: July 3, 2018

Appeal Information

On appeal from the conviction entered on September 22, 2016, by Justice Martin S. James of the Superior Court of Justice, with reasons reported at 2016 ONSC 5965, and from the sentence imposed on April 19, 2017, with reasons reported at 2017 ONSC 2424.

Reasons for Decision

1The appellant was charged with dangerous driving causing death. He was tried by a judge alone.

2The appellant did not testify.

3The trial judge convicted the appellant and sentenced him to 22 months in jail, to be followed by probation for one year. The trial judge also imposed a five year driving prohibition.

4The appellant appeals the conviction and sentence.

5At the end of oral argument, the court advised counsel that the conviction appeal would be allowed and a new trial ordered with reasons to follow. These are those reasons.

A. The Facts

6The hockey game at the local arena in Pembroke, Ontario, ended at about 9:00 p.m. on January 11, 2015. As the fans left the arena, many made their way northward across the parking lot toward Lake Street. Lake Street is a two-lane street running east and west. There is a second parking lot on the north side of Lake Street.

7Some fans headed east along the sidewalk on the south side of Lake Street toward the traffic light at Nighbor Street before crossing Lake Street. However, many of the fans chose to cross Lake Street in the middle of the block. One witness described a group of about 20 pedestrians gathered on the south side of Lake Street, waiting to cross. At one point, a truck proceeding eastbound on Lake Street stopped to let the pedestrians cross in the middle of the block.

8The appellant had stopped his vehicle at the red light at Nighbor. When the light turned green, he accelerated westward on Lake Street toward the area where pedestrians were crossing Lake Street from the south to the north side.

9Mr. Brown had left the hockey game and headed north to Lake Street. He was crossing Lake Street in the middle of the block and had just crossed the paved portion onto the north shoulder of the road when he was struck from behind by the appellant's vehicle. The appellant did not brake before striking Mr. Brown.

10Mr. Brown's daughter-in-law who had been at the game with Mr. Brown, had also crossed Lake Street in the middle of the block. She was walking just ahead of Mr. Brown when she was struck. It is unclear whether she was hit by the appellant's vehicle, or by Mr. Brown after he had been struck by the appellant's vehicle.

11Immediately after striking Mr. Brown, the appellant applied his brakes. His car skidded and struck and killed Mr. Hill. Mr. Hill had crossed Lake Street in the middle of the block and was walking on the north shoulder of the road.

12The appellant stopped at the scene of the accident. He was very distraught. There was no evidence of drug or alcohol consumption.

B. The Conviction Appeal

13The appellant alleges legal errors by the trial judge in his analysis of the elements of the offence of dangerous driving causing death. The appellant also alleges unreasonable findings of fact. We start with the latter submission.

(i) The Factual Findings

14The trial judge found that the appellant was driving too fast. He said, at para. 42:

In my view, however, when all of the evidence is considered together, including the witnesses' observations, the expert's opinion and the photographic evidence of the damage to the vehicle, these factors are all corroborative of the finding that Mr. Laverdure was driving at a high rate of speed on a city street.

15The trial judge recognized that the evidence did not permit a finding of the appellant's exact speed. He also recognized that the different witnesses gave various opinions as to the appellant's speed. The trial judge did, however, accept the evidence of the accident reconstructionist that the appellant was going "about 60 km/hr" when he struck Mr. Hill. It is noteworthy that the appellant had applied his brakes just before he struck Mr. Hill. The speed limit on Lake Street is 50 km/hr.

16There was abundant evidence that the appellant was driving sufficiently fast to attract the attention of several pedestrians. The forensic evidence also suggested significant speed, both when the appellant struck Mr. Brown and when he struck Mr. Hill. The evidence supported the trial judge's finding that the appellant was driving "at a high rate of speed on a city street".

17The second contested factual finding relates to the circumstances as they existed when the appellant was driving along Lake Street at a "high rate of speed". The trial judge found that those circumstances, and in particular the heavy pedestrian traffic beside and on Lake Street, called for drivers to slow down and proceed cautiously.

18Once again, the record justifies this factual finding. It is irrelevant whether the appellant was aware of, or should have been aware of, the reason for the heavy pedestrian traffic. It is equally unimportant how that heavy traffic compared to traffic at the same location at other times. The important point for this factual finding was that there were many people standing beside, crossing and walking along the side of Lake Street when the appellant accelerated away from the stop light at Nighbor.

19We see no basis upon which to interfere with the trial judge's findings of fact. Accepting those findings, we turn to the trial judge's analysis of the actus reus and mens rea.

(ii) The Actus Reus

20The actus reus of dangerous driving is well-captured by the language of s. 249 of the Criminal Code. The manner of driving must be dangerous to the public, having regard to all the circumstances in which the driving occurs. Here, the manner of driving consisted of driving at a "high rate of speed". The circumstances consisted of the heavy pedestrian traffic beside and on Lake Street.

21The trial judge held that the appellant's driving at a high rate of speed in circumstances that calls for drivers to slow down and exercise caution amounted to driving in a manner that was dangerous to the public. The trial judge did not, as the appellant contends, reason backwards from the accident to a finding that the manner of driving was dangerous.

22We cannot fault the trial judge's reasons as they relate to the actus reus. The trial judge did exactly what s. 249 commands. First, he determined the manner of driving – the appellant was driving too fast. Second, he placed that driving in the context in all of the circumstances – the heavy pedestrian traffic on and around Lake Street. Finally, he examined the manner of driving in the circumstances as he found them, and concluded that it constituted a danger to the public. That conclusion was reasonably open to the trial judge.

(iii) The Mens Rea

23The offence of dangerous driving is not proved by showing only that the accused drove in a manner that was dangerous to the public. There is a fault element. The Crown must prove that the manner of driving amounted to a marked departure from the standard of care that a reasonable person would observe if placed in the circumstances in which the accused found himself. The fault component of dangerous driving focuses on the conduct of the accused and is intended to distinguish driving that is sufficiently egregious in all of the circumstances to warrant criminalization from other less serious forms of bad driving, such as careless driving: see R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at paras. 36-43, 47-49.

24The trial judge was aware of the fault requirement. At para. 38, he noted that dangerous driving "requires more than proving someone was driving carelessly or negligently". At para. 39, he said:

To be guilty of dangerous driving an accused must be shown to have driven in a manner that amounts to a marked departure from the standard expected of a reasonable person in the same circumstances. In order to prove the charge, Crown counsel must show how and in what way the driver went markedly beyond mere carelessness.

25The trial judge moved from a description of the requisite mens rea to an application of the law to the facts as he found them. In doing so, he considered at length whether the driving was dangerous to the public in all of the circumstances. Having found that it was dangerous in all of the circumstances, the trial judge did not engage in a similar analysis of the evidence as it related to the mens rea issue. Rather, the trial judge appears to have concluded that the act of driving dangerously necessarily constituted what he referred to as a "marked departure from what a reasonable person would expect in the circumstances". He did not identify the "how and in what way" the appellant's driving went beyond negligence or carelessness and reached the level of a marked departure from the standard of care that a reasonable person would show in the same position: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 30; R. v. Reynolds, [2013] ONCA 433, at para. 18.

26The trial judge's reasons reveal a full appreciation of the evidence and the nature of the mens rea requirement for the offence. Unfortunately, the trial judge's relating of the evidence and the facts as he found them to the fault component of the offence, does not provide an explanation for "how and in what way" the nature of the appellant's driving showed the necessary marked departure from the standard of care that a reasonable person would show in the same circumstances.

27In some cases, the manner of driving as found by a trial judge will be sufficiently egregious as to permit the finding of the requisite fault element without any additional analysis of the evidence as it relates to the mens rea. We cannot, however, say that the evidence in this case reaches that level.

28The failure to fully analyze the evidence as it related to the fault component of the offence constitutes an error in law. While the evidence could support a finding of the requisite mens rea for dangerous driving, we cannot say that no other conclusion was reasonably available on this evidence.

C. Conclusion

29The appeal is allowed, the conviction is quashed and a new trial is ordered on the charge of dangerous driving causing death.