Court of Appeal for Ontario

Date: 2019-09-26 Docket: C63322

Judges: Huscroft, Paciocco and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Tyler Curry Appellant

Counsel

Paolo Giancaterino and Marco Sciarra, for the appellant Sean Horgan, for the respondent

Heard: September 23, 2019

On Appeal

On appeal from the conviction entered on August 10, 2016 and the sentence imposed on January 26, 2017 by Justice Brian W. Abrams of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of (1) dangerous driving causing death, (2) dangerous driving causing bodily harm, (3) impaired driving causing death, (4) impaired driving causing bodily harm, (5) blood alcohol over legal limit causing accident resulting in death, and (6) blood alcohol over legal limit causing accident resulting in bodily harm.

[2] He appeals from these convictions, arguing among other things that the trial judge misapprehended the evidence and failed to consider relevant evidence. He did not pursue his appeal from sentence.

[3] Following the hearing, we dismissed the appeal with reasons to follow. These are our reasons.

[4] It was undisputed that the appellant left a house party after a night of drinking, driving a van with two passengers: Dylan Heisel in the front seat and Mason Amell in the rear passenger seat. The van crashed into a tree at high speed a short distance away – about 4.8 kilometres. The passenger in the front seat, Dylan Heisel, died in the collision.

[5] The theory of the defence was that the Crown failed to prove that the appellant was driving the van. In particular, the defence contended that the appellant and Mason Amell could have switched positions after leaving the party.

[6] The appellant did not testify at trial. There was no direct evidence that the appellant and Mason Amell switched places at any point during the drive, or that the van stopped at any time during the drive. Indeed, Mason Amell gave evidence at the trial and, while having limited memory of the events, rejected that as a possibility. On the other hand, there was considerable evidence that supported the trial judge's finding that the appellant was driving the van when it crashed, including Mason Amell's testimony and the medical evidence.

[7] We see no misapprehension of the evidence, and no failure to consider relevant evidence.

[8] The trial judge gave detailed reasons for rejecting the evidence of a witness, Luke Casselman, who came upon the accident shortly after it occurred. The trial judge found that his evidence was not reliable, and that he had crossed the line from being a fair and impartial witness to becoming an advocate for the defence. This finding was open to the trial judge, and there is no basis to impugn it.

[9] Nor has the appellant established that the trial judge failed to consider any relevant evidence. Although the trial judge did not refer to the evidence of Kaitlyn Utman as to the time the appellant left the party, Ms. Utman did no more than provide a rough estimate, offering a tentative 30-minute window for departure, proximate in time to the accident. This evidence did not strongly favour the defence theory. A trial judge could rightly treat this evidence as unworthy of mention. That being so, there is no basis for inferring from his failure to mention Ms. Utman's evidence that the trial judge failed to consider it.

[10] In summary, the issues raised on appeal were the subject of detailed and careful consideration by the trial judge. There is no basis for this court to interfere with the trial judge's findings.

[11] The appeal is dismissed.

[12] The appeal from sentence is dismissed as abandoned.

Grant Huscroft J.A. David M. Paciocco J.A. I.V.B. Nordheimer J.A.