DATE: 20020606
DOCKET: C35849
COURT OF APPEAL FOR ONTARIO
LASKIN, ROSENBERG and GOUDGE JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Thomas D. Galligan, for the Appellant
Appellant
- and -
Michael H. O’Brien, for the Respondent
MATTHEW S. (Y.O.)
Respondent
Heard: April 2, 2002
On appeal from the judgment of Justice L.M. Baldwin dated January 25, 2001.
LASKIN J.A. (dissenting):
[1] [1] I have had the benefit of reading my colleagues’ reasons for decision. I take a different view of this appeal. On the trial judge’s findings of fact and on the undisputed facts, I am of the opinion that the respondent’s driving amounted to “a marked departure from the standard of care that a reasonable person would observe in the accused’s situation”. See R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867.
[2] [2] On a clear April day the respondent and his friend J.S. went on a joy ride after school. The respondent had been driving at twice the speed limit on a country road. He drove through a stop sign at an intersection and because he was going too fast he neither saw the sign nor had time to brake. He crashed into another car entering the intersection from his right, killing all three of its occupants and badly injuring his friend J.S. Nonetheless, the trial judge acquitted the respondent of dangerous driving. In doing so, in my view, she erred in law. Although she applied the proper test for dangerous driving, she erred in her conclusion that dangerous driving had not been made out. I would allow the appeal and convict the respondent of dangerous driving.
DISCUSSION
[3] [3] The respondent was charged with and acquitted of three counts of criminal negligence causing death, one count of criminal negligence causing bodily harm, three counts of dangerous driving causing death, and one count of dangerous driving causing bodily harm. The Crown appeals only the dangerous driving acquittals. Under s. 676(1)(a) of the Criminal Code a Crown may appeal an acquittal only on a question of law. The application of a statutory standard – here dangerous driving – to findings of fact made by the trial judge or to undisputed facts raises a question of law. See R. v. Morin, 1992 40 (SCC), [1992] 3 S.C.R. 286.
[4] [4] Here in summary form are the trial judge’s findings of fact and the unchallenged facts:
• When the collision occurred – on April 12, 2000 – the respondent was just short of his 17th birthday and in Grade 11 at a school in Jordan Station, Ontario.
• At 3:10 p.m. he picked up his friend J.S. after school and they took a circuitous route home on rural roads looking for ducks to hit. The car radio was blaring.
• The visibility that day was clear and the respondent’s car had no mechanical defects.
• Along his route the respondent passed four or five signs, each showing a speed limit of 50 kilometres an hour.
• A minute or so before the collision the respondent passed a school bus by “a very quick and unsafe maneuvre”. He was driving 100 kilometres an hour, twice the speed limit. The time, according to the school bus driver, was 3:17 p.m.
• The respondent drove south on 23rd Street towards the intersection with Culp Road. There was a stop sign for traffic on 23rd Street, but no stop sign for traffic on Culp Road. It was a through street.
• The trial judge found that the stop sign was difficult to see because it was angled slightly to the right and near an evergreen tree. But she also found that it was not obstructed.
• Indeed J.S. saw the stop sign 100 feet before the intersection. He warned the respondent to stop but the respondent was travelling too fast to do so. The respondent drove right through the stop sign and did not brake or take any other evasive action.
• In the middle of the intersection the respondent collided with a car travelling east on Culp Road. All three occupants of that car were killed; J.S. suffered a concussion and several cuts for which he was to receive plastic surgery.
• On the unchallenged evidence of the Crown’s accident reconstruction expert, at the point of impact the respondent’s car was on the wrong side of the road, well into the northbound lane on 23rd Street. The trial judge did not refer to this evidence in her reasons.
• The trial judge estimated that the collision occurred at 3:18 p.m., a minute or so after the respondent passed the school bus. She also estimated that the distance between the point where the respondent passed the bus and the point of the collision was two kilometres. Thus, although the trial judge did not fix the respondent’s driving speed when he entered the intersection, the only reasonable inference from her estimates was that the respondent was going at least twice the speed limit.
• The trial judge did find that the respondent’s speed was excessive and that he “was driving too quickly to avoid an unexpected occurrence at the time of the collision.”
• She also found that “[w]ere it not for the speed at which he was driving, in all likelihood [the respondent] would have seen the stop sign, or in the alternative, would have been able to take evasive action once he was warned of its presence by [J.S.].”
• The respondent did not testify at trial.
[5] [5] On the basis of her findings of fact the trial judge concluded that the respondent’s driving amounted to a departure but not a marked departure from the standard of care of a prudent driver. I do not agree with this conclusion. When a person drives on the wrong side of the road and drives so fast – likely at twice the speed limit – that he does not even see a stop sign let alone have time to brake, his driving amounts to a “marked departure from the norm”. See R. v. Reid, 1998 822 (SCC), [1998] 1 S.C.R. 753.
[6] [6] I would allow the Crown’s appeal, convict the respondent on the four counts of dangerous driving, and remit the case to the trial judge for sentencing.
Signed: “John Laskin J.A.”
ROSENBERG and GOUDGE JJ.A.:
[7] [7] This is a Crown appeal from the respondent’s acquittal on charges dangerous driving causing death and dangerous driving causing bodily harm. The appellant’s principal submission is that on the undisputed facts and the facts found by the trial judge, the respondent should have been found guilty. The appellant relies upon R. v. Fotti, 1980 171 (SCC), [1980] 1 S.C.R. 589 which upheld the decision of the Manitoba Court of Appeal (1979), 1978 2459 (MB CA), 45 C.C.C. (2d) 353 and R. v. Morin (1992), 1992 40 (SCC), 76 C.C.C. (3d) 193 (S.C.C.).
[8] [8] In Morin at pp. 198-99, Sopinka J. held as follows:
If a trial judge finds all the facts necessary to reach a conclusion in law and in order to reach that conclusion the facts can simply be accepted as found, a court of appeal can disagree with the conclusion reached without trespassing on the fact-finding function of the trial judge. The disagreement is with respect to the law and not the facts nor inferences to be drawn from the facts. The same reasoning applies if the facts are accepted or not in dispute. In this situation, the court can arrive at the correct conclusion in law without ordering a new trial because factual issues have been settled. Examples of this type of error of law can be found in … R. v. Fotti (1980), 1980 171 (SCC), 50 C.C.C. (2d) 479n, [1980] 1 S.C.R. 589, 4 M.V.R. 172. [Emphasis added.]
[9] [9] We do not agree, however, that this was a case of undisputed facts. The speed of the vehicles, the point of impact and the visibility of the stop sign were all in dispute. All of these matters were capable of influencing the finding whether the respondent’s driving constituted a marked departure from the standard of care of a reasonable driver. The trial judge did find that “in all likelihood” had the respondent not been driving at an excessive speed he would have seen the stop sign. However, she was not able to make a finding as to the actual speed of the vehicle and she did find that the stop sign was difficult to see. She found that absent other aggravating factors these facts did not constitute dangerous driving. In our view, it cannot be said that this conclusion reflects any error in law.
[10] [10] In Fotti, the trial judge found that the accused was driving in excess of the posted speed limit and went through a red light due to lack of attention. The fatal accident occurred at a city intersection in the middle of the day. Matas J.A., whose reasons were adopted by the Supreme Court, held that the accused’s explanation did not “hold up” and that he was not keeping a proper look out although driving at an excessive speed. He thus held that the trial judge erred in law in concluding that this conduct did not constitute dangerous driving.
[11] [11] In this case, the facts are not as clear. The respondent was driving on rural roads and had stopped at several earlier stop signs. There was no finding that the respondent was not keeping a proper look out. The trial judge was unable to make a finding as to the respondent’s actual speed and there was an explanation, of sorts, for the accident in that the stop sign was difficult to see. While there was evidence upon which a trier of fact could make a finding of dangerous driving, in the circumstances, the failure to do so did not amount to an error of law.
[12] [12] The other two grounds of appeal concern alleged misapprehension of the evidence. The first concerns the expert evidence that the respondent’s vehicle was in the wrong lane. The trial judge made no mention of this evidence in her reasons. The failure to mention a piece of evidence does not in and of itself constitute a question of law. As the court said in R. v. Morin supra at p. 199, “Failure to appreciate the evidence cannot amount to an error of law unless the failure is based on a misapprehension of some legal principle.” Moreover, there was a particular problem with the expert evidence in this case. The Crown had failed to disclose any report from the expert and some kind of accommodation was reached at trial as to the scope of the expert’s evidence. Given those circumstances, the trial judge was in the best position to decide if the evidence established the location of the vehicle at the point of impact and, if so, whether it was critical to the case.
[13] [13] The second misapprehension of facts concerns the evidence that the municipality changed the signage after the accident. The appellant submits that the trial judge erred in attributing some fault to the municipality and thus failing to consider whether on the facts the respondent’s fault was sufficient to meet the standard for dangerous driving. There is no question that an accused can be found to be guilty of dangerous driving although other persons may have been at fault and may have contributed to the accident. However, in our view, this ground of appeal is merely a restatement of the principal ground of appeal and rests on the submission that it was undisputed that because of the respondent’s excessive speed he was unable to see the stop sign. The trial judge made no such finding. She thought in all probability this is what happened but was unable to find beyond a reasonable doubt that the conduct amounted to dangerous driving. As indicated, the speed of the vehicle and the visibility of the stop sign were disputed facts.
[14] [14] In our view, the trial judge did not acquit because she apportioned some blame to the municipality. There is nothing in her reasons to support that conclusion. She mentioned the subsequent change in signage but did so only in passing noting that it was fortunate that the Town of Lincoln had improved the signage.
[15] [15] Accordingly, we would dismiss the appeal.
[16] Released: June 6, 2002
Signed: “M. Rosenberg J.A.”
“S. Goudge J.A.”