DATE: 20040416
DOCKET: C40578
COURT OF APPEAL FOR ONTARIO
WEILER, CRONK and GILLESE JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
MEICHLAND BLACKBURN
Appellant
P. Andras Schreck, for the appellant
Leslie Paine, for the respondent
Heard: March 26, 2004
On appeal from the judgment of Justice R. Clarke of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated September 3, 2003, dismissing an appeal from the conviction entered by Justice J. Rhys Morgan of the Ontario Court of Justice on June 11, 2002 and the sentence imposed by Justice Morgan dated November 4, 2002.
CRONK J.A.:
[1] On June 11, 2002, the appellant was convicted of dangerous driving contrary to s. 249(1)(a) of the Criminal Code. He was sentenced on November 4, 2002 to 30 days imprisonment. A one-year driving prohibition was also imposed. His summary convic-tion and sentence appeal was dismissed on September 3, 2003. He appeals that dismissal to this court.
(1) Facts
[2] On the evening of October 27, 1997, the appellant, an off duty police officer, was driving an unmarked car eastbound on Highway 401. The appellant was not in uniform. The complainant, Laurie Lee, was also driving in the same direction. The appellant approached Ms. Lee’s vehicle from the rear, driving at a high speed. The appellant flashed his lights and moved his vehicle back and forth from lane to lane, in an attempt to pass Ms. Lee. When the appellant passed Ms. Lee’s vehicle, he was driving at speeds between 120 to 130 kilometres per hour. After passing Ms. Lee, the appellant pulled quickly in front of her and lightly touched his brakes, causing Ms. Lee to react by hitting her own brakes.
[3] Afterwards, when the appellant found himself again driving behind Ms. Lee’s vehicle, he passed her a second time on the right, abruptly and without signalling. On this occasion, the appellant brought his vehicle to a full stop in front of Ms. Lee’s vehicle while they were both in the passing lane on Highway 401. This manoeuvring caused a minor collision between the two cars. When the appellant got out of his car and tried to open the door of Ms. Lee’s car, Ms. Lee pulled around him and drove forward on the highway. The appellant then drove up beside her and flashed his police badge. Ms. Lee panicked, and called 911 from her car for assistance. Both vehicles were eventually pulled over by the police. The police officers who attended the scene testified that, when they approached the appellant, he was angry, used obscene language and tried to assault one of the officers.
[4] Justice J. Rhys Morgan of the Ontario Court of Justice found the appellant guilty of the offence of dangerous driving and imposed a sentence of 30 days imprisonment as well as a one-year driving prohibition. On September 3, 2003, Clarke J. of the Superior Court of Justice, sitting as a summary conviction appeal judge, dismissed the appellant’s appeal against conviction and the sentence imposed.
(2) Conviction Appeal
[5] The appellant argues that the trial judge erred by misstating and misapplying the test for dangerous driving and that the summary conviction appeal judge, in turn, erred in the same fashion.
[6] The trial judge framed the applicable test as follows:
I must be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the position of [the appellant]. Put another way, would a reasonable person in similar circumstances, have been aware of the risk and of the danger of the conduct that is in issue?
The trial judge’s formulation of the test thus referenced both a “marked departure” from the standard of care that a reasonable person would observe in a similar position and an “awareness of the risk and…the danger” of the challenged conduct.
[7] The appellant acknowledges before this court that the trial judge’s expression of the test for dangerous driving derived from R. v. Hundal (1993), 1993 120 (SCC), 79 C.C.C. (3d) 97 (S.C.C.). In that case, Cory J. confirmed that the applicable test is a modified objective one, and stated at p. 108:
It follows then that a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place”. In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.
Next, if an explanation is offered by the accused, such as a sudden and unexpected onset of illness, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused [emphasis added].
[8] The appellant argues that these passages establish that there are two separate and distinct components to the test for dangerous driving: (i) a “marked departure from the standard” component, for the purpose of determining whether the Crown has established the actus reus of the offence; and (ii) if – and only if – the actus reus has been made out, a “risk awareness” component, for the purpose of determining whether a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the accused’s conduct. The appellant submits that the second component is directed at the accused’s explanation for his or her driving, while the first component is concerned with the driving itself. He maintains that he did not offer an explanation for his driving in this case in the same sense as contemplated in Hundal. Consequently, he submits, when the trial judge referenced both a “marked departure from the standard” and “risk awareness” in his articulation of the test for dangerous driving, he conflated two separate and different components into one merged test, having the effective result of lowering the evidential threshold that the Crown must meet in order to support a conviction for dangerous driving.
[9] Finally, the appellant argues that the summary conviction appeal judge erred by accepting the trial judge’s description of the test for dangerous driving. In that connection, the summary conviction appeal judge stated:
The appellant further argues that the learned trial judge misdirected himself respecting the appropriate test to be applied in a case of dangerous driving. The appellant argues that the learned trial judge applied a test commensurate with the civil standard applicable to the tort of negligence…It is particularly evident to me that the learned trial judge properly directed himself in as much as the words said to support the appellant’s position are themselves taken from R. v. Hundal, the seminal case on point and, further, that they follow directly from a passage in which both parties agree the trial judge correctly stated the test. Further, the word “marked” is defined in the Concise Oxford English Dictionary as, inter alia, “clearly noticeable.” On my reasoning of this record the driving complained of was indeed clearly noticed by two witnesses independent each of the other. Accordingly, I find there was an ample body of evidence from which the learned trial judge could make the finding he did in respect of the driving.
[10] I would not give effect to the appellant’s submissions, for several reasons.
[11] First, although the summary conviction appeal judge’s reasons were not directly responsive to the appellant’s argument concerning the nature of the trial judge’s alleged misstatement of the test for dangerous driving, a proper reading of Hundal indicates that the trial judge did not misstate or misapply the requisite test. In my view, application of the “risk awareness” component of the test set out in Hundal is not limited to the circumstances posited by the appellant. Rather, the passages from Hundal relied upon by the appellant, as quoted above, must be read together. Consideration of whether a reasonable person in similar circumstances ought to have been aware of the risk and the danger involved in the conduct of an accused forms part of the trier of fact’s overall inquiry into the context of all the events surrounding the incident giving rise to the charge of dangerous driving. As Cory J. pointed out in Hundal at p. 108: “[T]he mens rea for the offence of dangerous driving should be assessed objectively but in the context of all the events surrounding the incident. That approach will satisfy the dictates both of common sense and fairness.”
[12] Acceptance of the interpretation of Hundal urged by the appellant would result in two different tests for dangerous driving: the “marked departure from the standard” test in those cases where an accused offers no explanation for his or her driving and a different test – the “marked departure from the standard” test augmented by “awareness of the risk” – in those cases where an accused advances an explanation for his or her conduct. In my view, the reasoning in Hundal does not compel or invite such disparate interpretative results.
[13] Second, and in any event, I do not agree that the appellant offered no explanation to excuse his conduct, in the sense contemplated by Hundal. The appellant claimed at trial that he was the victim of dangerous driving by the complainant, that she refused to let him pass, that after he passed her the complainant sped up and hit his vehicle from the rear, that he pursued her and flashed his lights and subsequently his police badge at her in an effort to cause her to stop her vehicle, and that he followed police procedures for stopping a motor vehicle for the purpose of investigating dangerous driving. Those elements of the appellant’s version of events entitled the trial judge to inquire whether a reasonable person, in similar circumstances, ought to have been aware of the risk and the danger involved in the conduct manifested by the appellant. The trial judge was required on the appellant’s own evidence to consider the appellant’s explanation of the events in question.
[14] Third, and contrary to the appellant’s submissions, the trial judge did not use the “risk awareness” component of the test for dangerous driving as an alternative to the “marked departure from standard” component of the test. To the contrary, the trial judge’s reasons indicate that he addressed both components of the test and assessed the appellant’s conduct in accordance with those components.
[15] Finally, even if the trial judge erred in his articulation of the test for dangerous driving, in my view this is a proper case for the application of s. 686 (1)(b)(iii) of the Criminal Code.
[16] The facts as found by the trial judge clearly support the conclusion that the appellant’s driving was a marked departure from the standard of care that a reasonable person would observe in the appellant’s situation. Those facts include the following. The appellant came to a full stop in his vehicle on Highway 401, one of the busiest roadways in Ontario, at about dusk. Other motorists were on the highway, which was under construction. The appellant’s conduct endangered both the complainant and other drivers. It also left the complainant, understandably, in a pronounced state of panic and fear. In that context, as indicated by the summary conviction appeal judge, the conduct of the appellant was a clearly noticeable and marked departure from the applicable driving standard. It also exposed the appellant, the complainant and third parties to the risk of serious injury. Accordingly, the verdict inevitably would have been the same and, in my opinion, no substantial wrong or miscarriage of justice occurred in this case.
[17] Accordingly, I would dismiss the appellant’s conviction appeal.
(3) Sentence Appeal
[18] In support of his sentence appeal, the appellant argues that the trial judge erred in the following ways: (i) by failing to consider and credit the appellant for time served by him in jail in relation to this offence; (ii) by treating the appellant’s conduct as an abuse of his position and trust as a police officer; and (iii) by failing to impose a non-custodial sentence given the particular circumstances of this offender.
(i) Credit for Time Served
[19] Crown counsel candidly acknowledged on this appeal that the appellant should have been credited for 10 days of time served in jail and that the trial judge’s failure to accord such credit was an error in principle. In his reasons, the summary conviction appeal judge made no express mention of the time served by the appellant, holding only that the “sentence reflects…no error in principle and is not manifestly unfit”.
[20] The appellant was charged with dangerous driving in October 1997. His first trial resulted in a conviction but on appeal a new trial was ordered. He served 10 days in jail following his conviction at his first trial and before he was granted bail pending appeal. The 10 days served by the appellant after his first sentence hearing were directly attributable to the charge of dangerous driving at issue on this appeal. In these circumstances, the appellant ought to have been given credit for 10 days of time served, on a one-for-one basis.
(ii) Breach of Trust
[21] The appellant next argues that the summary conviction appeal judge erred in law by relying on R. v. G. (V.M.), [1988] O.J. No. 984 (Ont. Dist. Ct.) and R. v. Cusack (1978), 1978 2283 (NS CA), 41 C.C.C. (2d) 289 (N.S.C.A.) to conclude that the trial judge did not err in principle in arriving at an appropriate sentence in this case. The appellant points out that G. (V.M.) and Cusack, unlike the case at bar, both involved the sentencing of police officers for offences that involved a clear breach of trust and abuse of their positions and the offences were committed while the officers were on duty. He submits that these cases have no application here, because the appellant was not on duty at the time of the offence and the offence itself involved no breach of trust. He maintains that his use of his police badge was, at worse, poor judgment.
[22] I disagree. The trial judge found that, “[T]he appellant’s conduct was wilful, unnecessary, born out of anger, the conduct persisted for some time, he inappropriately flashed his badge, he exposed Miss Lee and other users of the highway to unnecessary risk, injury or damage.” The summary conviction appeal judge correctly observed that sentencing principles are concerned, in part, with protecting the public from offences by persons who are entrusted by the community with special authority under the law.
[23] The appellant admitted that he used his police badge in an effort to compel the complainant to stop her vehicle. Indeed, he claimed that although he was technically “off-duty”, he came “on-duty” as soon as he waved his badge out of his car window and that he was entitled to do so because he was contemplating making an arrest for dangerous driving. This position is unsustainable and highly self-serving. The appellant’s use of his badge was clearly intended to engage his status as a police officer for the purpose of exercising control over another person during a serious outburst of road “rage”. Its use in the circumstances was a clear abuse of the appellant’s position of authority and trust as a police officer. The record before us unequivocally establishes that this conduct caused stark disbelief in the complainant and materially contributed to her panic and anxiety. She told the police during her call from her car for assistance that, “I didn’t think he was a police officer, I thought if it is a police badge it’s a phoney police badge and that was even more scary.”
[24] The appellant’s use of his police badge was an important factor, among many, to be considered by the sentencing judge. The summary conviction appeal judge did not err in his consideration of this factor; nor did he err in implicitly concluding that the trial judge appropriately considered this factor.
(iii) Request for a Non-Custodial Sentence
[25] The appellant argues that, in all the circumstances of this case, a conditional discharge is the appropriate disposition. He emphasizes that a custodial term of any duration will have serious consequences for him, as a police officer. In particular, the appellant was dismissed from his employment as a police officer in June 2002 as a result of this offence and it is said that the chances for reinstatement of his employment as a police officer will be considerably lessened, if not eliminated, if he is required to go to jail.
[26] The appellant also points out that he has no criminal record and that he has been on bail for almost six years without re-offending. As well, although the offence in this case was serious, the appellant submits that no injuries or property damage resulted and his conduct was out-of-character. Moreover, after crediting the time served by him in jail on a one-for-one basis, the appellant has already served 10 days of the 30-day sentence imposed by the trial judge.
[27] Finally, the appellant asserts that a conditional discharge is not contrary to the public interest and is in his interests.
[28] Notwithstanding the able submissions of counsel for the appellant, this argument must fail. I reach that conclusion for the following reasons.
[29] First, there is no suggestion that the trial judge erred in declining to impose a non-custodial sentence, or that he failed to consider a conditional discharge. In that connection, the trial judge held that: “The only sentence that is appropriate is a short jail sentence to measure this court’s denunciation of this type of driving.” Moreover, the trial judge reduced the length of the custodial sentence that he imposed expressly to reflect the fact that no damage was occasioned by the appellant’s conduct, and the fact that at the date of the sentence hearing, the appellant had been on bail for a lengthy period without further incident.
[30] Second, and importantly, the trial judge held that the appellant’s conduct endangered the public. The trial judge, in lengthy and comprehensive reasons for sentence, found that the appellant was driving in an aggressive fashion before he encountered Ms. Lee’s vehicle, that he was driving at a high rate of speed, that he was flashing his lights, that he was moving his vehicle abruptly, and that he was tailgating. This pattern of driving continued after the appellant encountered Ms. Lee’s vehicle. In addition, the appellant braked his own car twice and, on the second occasion, came to a full stop in the passing lane of a multi-lane high speed highway, thereby exposing Ms. Lee and the travelling public to the risk of serious injury. As well, as I have said, the appellant also used his police badge in an attempt to stop Ms. Lee’s vehicle. Based on these facts, in my view, the grant of a discharge in this case would be contrary to the public interest and would not accord with the need for general deterrence.
[31] I also note that, at trial, the Crown sought a custodial sentence in the range of 30 to 90 days, while the defence sought an absolute or conditional discharge. The sentence imposed by the trial judge was at the lowest end of the custodial range proposed by the Crown.
[32] The summary conviction appeal judge took into account the implications of a custodial sentence on the appellant’s career as a police officer. He concluded that, “[T]he learned trial judge gave appropriate consideration to all relevant factors. The sentence reflects, in my view, no error in principle and is not manifestly unfit.” I agree.
(4) Disposition
[33] For the reasons given, I would dismiss the conviction appeal, grant leave to appeal sentence and allow the sentence appeal, in part, by varying the sentence imposed to credit the appellant on a one-for-one basis for the 10 days in jail served by him following his first trial. In the result, the sentence is reduced from 30 days to 20 days imprisonment. The one-year driving prohibition imposed by the trial judge remains unchanged.
RELEASED:
“APR 16 2004” “E.A. Cronk J.A.”
“KMW” “I agree K. M. Weiler J.A.”
“I agree E.E. Gillese J.A.”