Court of Appeal for Ontario

Date: 2019-02-06

Docket: C63505 & C63639

Judges: MacPherson, Pardu and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Haytham Markos Appellant

Counsel:

• Peter Brauti and Joseph Wilkinson, for the appellant
• Jennifer Epstein, for the respondent

Heard: December 17, 2018

On appeal from: The conviction entered on January 10, 2017 and the sentence imposed on March 24, 2017 by Justice Edward M. Morgan of the Superior Court of Justice.

Reasons for Decision

I. Overview

[1] Late on the afternoon of April 6, 2016, the appellant, Haytham Markos, was driving a motorcycle northbound on Yonge Street in Toronto. He collided with a southbound SUV that was turning left at the intersection of Yonge Street and Pleasant Boulevard. As a result of that collision, Mr. Markos was ejected from his motorcycle which, in turn, struck and seriously injured a pedestrian on the sidewalk, Ms. Dorrianne Armstrong-Sears.

[2] Mr. Markos was charged with dangerous driving causing bodily harm and criminal negligence causing bodily harm. The trial judge convicted Mr. Markos of dangerous driving causing bodily harm but acquitted him on the other count.

[3] The trial judge sentenced Mr. Markos to 12 months in custody, followed by two years' probation. One term of the probation order was that Mr. Markos take driving lessons as required and approved by his probation officer. As well, the trial judge prohibited Mr. Markos from driving a motorcycle for a period of five years.

[4] Mr. Markos appeals both his conviction and sentence.

[5] The Crown appeals from part of the sentence, submitting that the trial judge was not permitted to limit the driving prohibition to only motorcycles or include as a term of probation the requirement that Mr. Markos take driving lessons.

II. Conviction Appeal

A. Unreasonable Verdict

[6] Mr. Markos submits that his conviction should be set aside for two reasons: (i) the verdict was unreasonable; and (ii) the trial judge erred in relying on expert evidence that exceeded its proper scope and was wrong.

[7] Mr. Markos argues that the evidence could not reasonably support the conclusion that his driving was dangerous, specifically that he sped up to pass cars and weaved in between them. Mr. Markos contends that the evidence, including the dash-cam video, supported no other conclusion than that he drove completely reasonably and within the norm in the circumstances.

[8] In support of that submission, Mr. Markos alleges the trial judge made several errors when assessing the evidence: (i) the trial judge placed too much emphasis on the consequences and cause of the accident; (ii) he failed to address the mens rea required for the offence of dangerous driving; (iii) there was no support in the evidence that Mr. Markos performed a "whip-around pass"; and (iv) he misapprehended the evidence of Jeff Elliott about whether he braked when he saw the left-turning SUV.

[9] We are not persuaded by these submissions. The trial judge's findings of fact found in paras. 40 through 43 of his reasons disclose that his analysis squarely focused on the manner of Mr. Markos' driving, not on its consequences or the cause of those consequences: R. v. Romano, 2017 ONCA 837, 41 C.R. (7th) 305, at para. 68. Ample evidence supported those findings, especially the dash-cam video, which showed that Mr. Markos was driving substantially faster than the rest of the traffic and did engage in "whip-around passes", weaving amongst the traffic as he approached the intersection, with his vision of the on-coming southbound traffic partially blocked by a van in the northbound passing lane.

[10] Nor are we persuaded that the trial judge failed to address the mens rea element of the offence of dangerous driving, namely that the degree of care exercised by the appellant was a marked departure from the standard of care that a reasonable person would observe in the circumstances: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 28 and 36. As with the actus reus of the offence, the focus in assessing the mens rea must be a meaningful inquiry into the manner of driving: Romano, at para. 69.

[11] The trial judge engaged in the inquiry mandated by para. 36 of Roy, explaining at paras. 41 through 43 of his reasons:

(i) that a reasonable person would have foreseen the risk and taken steps to avoid it – i.e. the left-hand turn conducted by the SUV did not depart from the standard range of prudent driving and the other northbound vehicles were travelling in a manner that gave them adequate time to allow the left-hand turn; and

(ii) why the appellant'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 circumstances – i.e., Mr. Markos approached the intersection at too high a speed and at too awkward an angle to see the left-hand turning SUV in time and he made a dangerous maneuver in speeding up to pass the cars, moving substantially faster than the flow of traffic in a way that was highly risky given the traffic flow on Yonge Street.

[12] The trial judge did misstate the evidence of Mr. Elliott when he wrote that Mr. Elliott – a north-bound driver – applied his brakes to slow down and allow the left-turning south-bound SUV to turn: at paras. 14 and 15. Mr. Elliott had testified that the SUV turned in front of him "all of a sudden" and had he not been driving very slowly, he would have hit the SUV. We did not regard that misapprehension as materially affecting the verdict. The trial judge did not rely on whether Mr. Elliott braked or not; he focused on Mr. Elliott's speed relative to the other traffic at the time of the collision. At para. 42, the trial judge wrote that the northbound vehicles "who were not going excessively faster than the speed limit had adequate time to allow [the SUV] to make his turn." That finding was consistent with the evidence given by Mr. Elliott and borne out by the sequence of events recorded by the dash-cam video.

B. Relying on Inadmissible and Incorrect Expert Evidence

[13] Officer Chin was qualified as an expert in collision reconstruction, including in the area of speed determination. He calculated the speed of the motorcycle at the time of collision to fall in the range of 56 to 87 km/hr. In deriving that range, he took into account the gear in which the motorcycle was found following the collision and the location of the needle on the tachometer, and then applied a shift-point methodology.

[14] The appellant submits that the trial judge made several errors regarding Officer Chin's evidence.

First Error: Permitting Officer Chin to Testify on a Subject for Which He Was Not Qualified

[15] At the hearing of the appeal, the appellant suggested that Officer Chin was not qualified to give evidence regarding the shift-point methodology for calculating motorcycle speeds. We give no effect to this argument. At trial, the defence did not cross-examine Officer Chin on his qualifications nor did the defence oppose the qualification of Officer Chin to give opinion evidence on calculating the speed of the motorcycle at the time of the collision.

Second Error: Admitting Evidence Beyond Scope of Officer Chin's Expertise

[16] In his factum, Mr. Markos contends that the trial judge erred by permitting Officer Chin to give evidence that went beyond the scope of his expertise and, therefore, was inadmissible.

[17] The appellant points to the evidence Officer Chin gave about why he discounted the lowest speed of 56 km/hr derived using the shift-point methodology. In chief, Officer Chin testified that he did so because the lowest speed was not consistent with the damage he observed to the SUV and motorcycle. He then went on to state that the lower speed was not consistent "with respect to the injuries sustained by Ms. Sears and to Mr. Markos." The appellant submits that this evidence was inadmissible because it went beyond the boundary of Officer Chin's expertise and the trial judge erred by taking it into account.

[18] We do not give effect to this submission. First, at trial defence counsel did not object to that evidence. Second, in the course of cross-examination, defence counsel posed several questions to Officer Chin challenging his rejection of the lower speed in part on the basis of the evidence the appellant now contends was inadmissible. Finally, the trial judge made no direct reference in his reasons to the evidence now impugned by the appellant. His reasons disclose that he relied on a broad range of evidence to conclude that Mr. Markos "was driving substantially faster than the rest of the traffic and considerably over the speed limit", specifically "[t]he witness' testimony and agreed statements, together with the video evidence from the dash cam": at para. 40.

Third Error: Officer Chin's Speed Calculations Contained a Critical Error

[19] At the hearing of the appeal, the appellant argued that the speed calculations Officer Chin derived using the shift-point methodology were clearly wrong because the officer misunderstood the methodology. Consequently, the trial judge erred in accepting calculations based on a critical error.

[20] For several reasons we are not persuaded by this submission.

[21] Defence counsel cross-examined Officer Chin on his use of the shift-point methodology, including his reliance on an article by Albert Baxter entitled Motorcycle Accident Investigation, 2nd Edition. That cross-examination proceeded on the basis that Officer Chin had correctly applied the shift-point methodology not, as appeal counsel now suggests, that he misapplied the methodology.

[22] As well, defence counsel did not adduce expert evidence at trial calling into question Officer Chin's calculations. Nor did the appellant seek to adduce any such evidence on appeal by way of fresh evidence. In any event, the trial judge did not make a finding about the specific speed Mr. Markos was travelling at the time of the collision. Instead, as noted, the trial judge relied on a broad range of other evidence to find that Mr. Markos was driving substantially faster than the rest of the traffic and considerably over the speed limit.

C. Conclusion

[23] For these reasons, we dismiss the appeal from conviction.

III. Sentence Appeals

A. The Appellant's Sentence Appeal

[24] Mr. Markos submits that the trial judge committed several errors in principle in imposing the sentence he did: (i) he treated the appellant's maintenance of his innocence in a pre-sentence report as an aggravating factor; (ii) the sentence imposed was out of the range for similar offenders; (iii) it was harsh and excessive for this offender; and (iv) the five-year driving prohibition was harsh and unreasonable.

[25] We do not accept these submissions. The trial judge accepted as genuine Mr. Markos' statement that he was sorry for Ms. Sears' suffering. At the same time, the trial judge concluded that Mr. Markos lacked insight into the nature of his actions, noting that given the events recorded on the dash-cam video Mr. Markos "has much to contemplate." The trial judge also expressed surprise that whereas at trial Mr. Markos had testified that he had no plans ever to ride a motorcycle again, in the pre-sentence report he stated that he had just purchased a new motorcycle. The trial judge was entitled to take into account the lack of insight by Mr. Markos into the risk to the community presented by his manner of driving: R. v. Hawley, 2016 ONCA 143, at para. 5.

[26] This court has identified sentences for dangerous driving causing bodily injury as normally ranging up to two years less a day, with more substantial sentences available in certain cases: R. v. Rawn, 2012 ONCA 487, 294 O.A.C. 261, at para. 43. In the present case, as depicted in the dash-cam video, Mr. Markos drove his motorcycle in a dangerous manner, in heavy traffic, in a dense urban area, where the street was lined with retail outlets that generate pedestrian traffic. His dangerous driving caused Ms. Sears very serious injuries. We see nothing harsh or excessive with the 12-month custodial sentence, followed by two years' probation, imposed by the trial judge. The sentence was fit.

[27] Pursuant to s. 259(2)(b) of the Criminal Code, the trial judge imposed a five-year prohibition on driving a motorcycle for a period of five years from the date of sentencing: at para. 22.

[28] A driving prohibition imposed under s. 259(2)(b) commences at the end of the period of imprisonment, not on the date of sentencing: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 109. The prohibition imposed by the sentencing judge was also a condition of the appellant's bail pending appeal. During the approximately 22 months from the date of sentencing to the date of the disposition of this appeal, the appellant has been subject to a partial driving prohibition. Even though the prohibition on driving was partial, limited to only motorcycles, we accept the appellant's submission that he should be given credit for it. Accordingly, we vary the driving prohibition to be one in respect of any motor vehicle for a period of 38 months following the appellant's term of imprisonment.

B. The Crown's Sentence Appeal

[29] The Crown submits that the trial judge erred by limiting the driving prohibition to only motorcycles as such a limitation is not permitted by s. 259(2) of the Criminal Code. The Crown also argues that the term of probation requiring Mr. Markos to take driving lessons was imposed in error.

[30] Mr. Markos concedes both points.

IV. Disposition

[31] For the reasons set out above, we dismiss Mr. Markos' appeal from conviction. We grant him leave to appeal sentence, but dismiss his sentence appeal save for the variation in the calculation of the driving prohibition. We allow the Crown's sentence appeal. Consequently, we vary the sentence as follows: (i) we delete from the terms of probation the requirement that Mr. Markos "take driving lessons, including motorcycle driving lessons, as required and approved by the probation officer"; and (ii) we vary the prohibition order made under s. 259(2)(b) of the Criminal Code to prohibit Mr. Markos from operating a motor vehicle on any street, road, highway or other public place for a period of 38 months following his term of imprisonment.

"J.C. MacPherson J.A." "G. Pardu J.A." "David Brown J.A."