DATE: 20030326

DOCKET: C35403

COURT OF APPEAL FOR ONTARIO

RE: Her Majesty the Queen (appellant) – and – Wayne Richards (respondent)

BEFORE: McMURTRY C.J.O., MORDEN and CRONK JJ.A.

COUNSEL: Thomas D. Galligan, for the appellant Rosalind E. Conway, for the respondent

HEARD: March 12, 2003

On appeal from an acquittal entered by Justice D.W. Dempsey of the Ontario Court of Justice on November 10, 2000.

E N D O R S E M E N T

BY THE COURT:

[1] The Crown appeals from the acquittal of the respondent by Justice Dempsey of the Ontario Court of Justice on November 10, 2000 on two counts of dangerous driving causing death.

1. Background

[1] The charges against the respondent arose from a horrific motor vehicle accident beside a four lane regional highway situated east of Ottawa, Ontario, which resulted in two fatalities. On the night in question, the respondent was driving a motor vehicle westbound on the highway. He was accompanied by two passengers. He lost control of the vehicle while on the highway, causing it to leave the road and cross onto a grass median which divided the eastbound and westbound lanes of the highway. Thereafter, his vehicle struck a concrete pillar. The car exploded violently on impact with the pillar, resulting in a series of explosions and a fire which engulfed the car. The respondent’s passengers died instantaneously on impact.

[2] An investigating police officer testified, based on his calculations after the accident, that the respondent’s vehicle was travelling at a minimum speed of 119 kilometres per hour in a 100 kilometre per hour zone when it left the highway. The trial judge, in accepting that evidence, observed that it did not take into account the fact of the collision with the pillar, that is, the estimate assumed that the vehicle would have come to a full stop in its forward momentum just before the collision with the pillar. However, had the collision with the pillar been taken into account, the estimate of the vehicle’s minimum speed would have been increased substantially. The same police evidence suggested that the speed range of the respondent’s vehicle on dry grass would have been between 103 to 133 kilometres per hour, and between 83 to 119 kilometres per hour on wet grass. Various eye witnesses to the accident described the speed of the respondent’s vehicle at the time of impact as between 80 to 120 kilometres per hour.

[3] After the accident, approximately 140 to 150 metres of tire marks from the respondent’s vehicle were observed, beginning on the highway and continuing to the point of impact with the pillar, thus indicating that the respondent applied his brakes while he was still on the roadway. However, there was no evidence of steering of the vehicle by the respondent before the steering wheel locked on application of the brakes.

[4] The Crown submits that, other than his excessive rate of speed, no cause explaining the respondent’s loss of control of his vehicle was open on the evidence at trial.

[5] The respondent did not testify at trial. However, he introduced videotape evidence of the roadway through a defence private investigator in support of the suggestion that he may have lost control of his vehicle when he missed, or failed to successfully navigate, a 12 foot jog to the right in the highway, situated a distance of approximately two-tenths of a kilometre before the interchange where the accident occurred. The trial judge rejected that theory of causation on the basis that it was unsupported by the evidence. He also held that there was no evidence to support a conclusion that: (i) the respondent’s vehicle had collided with another vehicle; (ii) a tire had blown on the respondent’s vehicle; (iii) a mechanical defect existed in or on the vehicle; or (iv) the incident was alcohol-related.

2. Discussion

[6] The Crown raises several issues in support of its appeal. In our view, we need address only one ground of appeal.

[7] The trial judge correctly observed that, to enter a conviction, it was necessary that he be satisfied that the respondent’s driving amounted to a marked departure from the standard of care that a reasonable person would have observed in the respondent’s situation. Further, he noted that the mens rea for the offence of dangerous driving must be assessed objectively, in the context of all the circumstances surrounding the incident: R. v. Hundal (1993), 79 C.C.C. (3d) 97 (S.C.C.).

[8] However, the trial judge subsequently stated:

In summary, however, I find that when the evidence in this matter is reduced to its essentials the only evidence remaining is evidence of excessive speed. The Ontario Court of Appeal in R. v. Pezzo (1972), 9 C.C.C. (2d) 530, confirmed that in and of itself evidence of speed alone is insufficient to ground a conviction under Section 249 of the Criminal Code.

I am therefore left with only evidence of speed, which given the direction of the Ontario Court of Appeal, would not amount to proof beyond a reasonable doubt of the charges before this Court [emphasis added].

[9] The Crown argues that the trial judge erred in law in his interpretation of the decision of this court in Pezzo, by holding that evidence of excessive speed alone can never support a conviction for dangerous driving. We agree.

[10] This court recognized in Pezzo that, under certain circumstances, evidence of excessive speed, in itself, can constitute the offence of dangerous driving (per Arnup J.A. at p. 531 and Gale, C.J.O. at p. 532). As properly recognized by counsel for the respondent, that principle has been confirmed by this court in various subsequent decisions, including in R. v. M. (M.K.) (1998), 35 M.V.R. (3d) 319 in which this court said at p. 319:

The trial judge concluded that in the circumstances the appellant’s excessive speed amounted to dangerous driving. The evidence at trial amply supported his conclusion.

Depending on the context in which it occurred, excessive speed can amount to a marked departure from the standard of care of a prudent driver.

[11] With respect, the trial judge’s mistaken interpretation of Pezzo was a serious error. Consequently, the verdict of acquittal cannot stand.

[12] The Crown submits that the facts here are essentially uncontroverted, and that the findings of fact by the trial judge, which are said to be supported by the evidence, are sufficient to permit this court to set aside the verdict of acquittal and to substitute convictions on the two charges against the respondent of dangerous driving causing death. The respondent argues that critical facts in this case are in dispute, and that other key factual findings were not made by the trial judge. In our view, there is substance to the respondent’s argument.

[13] While the trial judge found that the respondent was travelling at a minimum speed of 119 kilometres per hour when his vehicle left the highway, no opinion evidence was led concerning the applicable increase to that minimum speed estimation to be made when consideration of the impact with the pillar is taken into account. The evidence of the lay witnesses indicated that the respondent’s rate of speed on impact was between 80 to 120 kilometres per hour. In addition, and of more importance, there was evidence at trial from a police officer that, although the posted speed in the area of the accident is 100 kilometres per hour, speeds in the passing lane of up to 130 kilometres per hour are not uncommon. In the slower right-hand lane, speeds range from 80 to 110 kilometres per hour, depending on traffic.

[14] Accordingly, the respondent’s actual rate of speed, which was not quantified at trial, is a live issue. Given the evidence which indicated the speeding practices of other drivers on the highway where the accident occurred, we are not persuaded that the demonstrated evidence supports no conclusion other than the conclusion that the respondent’s driving was a marked departure from the standard of care of a reasonable driver in a similar situation. A new trial must be held to determine that central issue.

3. Disposition

[15] Accordingly, for the reasons given, we set aside the acquittal entered by the trial judge and direct a new trial.

“Roy McMurtry C.J.O.”

“J. W. Morden J.A.”

“E.A. Cronk J.A.”