Court of Appeal for Ontario

Date: 2004-07-16 Docket: C37607

Re: Her Majesty the Queen (Respondent) – and - Anthony Police (Appellant)

Before: Rosenberg, Feldman and Sharpe JJ.A.

Counsel: Alan D. Gold, for the appellant Thomas D. Galligan, for the respondent

Heard: June 28, 2004

On appeal from conviction by Justice Hugh R. Locke of the Superior Court of Justice, sitting without a jury, on October 4, 2001 and sentence imposed by Justice Locke on January 18, 2002.

Endorsement

[1] The appellant appeals his convictions and sentence for dangerous driving causing bodily harm. The appellant was originally charged with five counts of criminal negligence. At the conclusion of the trial, Crown counsel conceded that he had not made out the charges of criminal negligence but asked that convictions for dangerous driving be imposed. All five charges arose from a single collision. The collision had terrible consequences. One of the victims was rendered a paraplegic. Another person was very seriously injured. The other three victims suffered varying degrees of injury.

[2] At the time of the collision, the victims’ vehicle (a Honda) was stopped on the shoulder of the southbound ramp from Carlingview Drive on to Highway 401. While there was sufficient enough room for the appellant’s vehicle (a pick-up truck) to drive past the Honda, his truck entered the shoulder and struck two of the victims who were outside the Honda and then struck the Honda itself.

[3] There was ample evidence from which the trial judge could find that the appellant was driving over 89 km/h; how much greater than that was not established. The “advisory” limit for that ramp was 70 km/h. On the other hand, the evidence also established that the ramp could safely be negotiated at very high speeds as motorists prepare to merge into the 401. The collision occurred at 7:00 a.m. on Sunday October 24, 1999, as the sun was rising. Driving and road conditions were good. We agree with the appellant that in those circumstances, the appellant’s speed alone could not constitute dangerous driving. In any event, there is no suggestion in his reasons that the trial judge would have convicted on the basis of speed alone.

[4] In the circumstances, a finding of dangerous driving could be made only on the basis of the combination of the speed and the fact that the appellant was on the shoulder at the time of the collision. Accordingly, in our view, the reason for the appellant’s presence on the shoulder and when he moved into the shoulder, became the pivotal questions in the trial. Unfortunately, the trial judge never addressed that question. Moreover, he does not seem to have rejected at least a part of the appellant’s testimony that he entered the shoulder only at the point where the evidence showed the truck hit the guardrail. The trial judge said the following:

There is little, if any evidence, given for the reason why Mr. Police found himself driving over the marked line onto the shoulder of that roadway towards those barriers. He testified that he only saw guardrails ahead of him at the critical moment. Surely, after he sighted those guardrails coming at him, he was sufficiently stimulated to avoid striking them head on. He did manage to turn to scrape them for the full length of his vehicle over a substantial distance, before the truck crashed into the Skelton vehicle, and then proceeded onward to finally come to a stop.

[5] Once the appellant’s truck struck the guardrail, he had to contend with the impact of the guardrail, the breaking glass, and the difficulty of pulling away from the guardrail and the shoulder. It would be difficult to found a conviction for dangerous driving on the failure to steer off the shoulder at that point. Thus, again the reason for the appellant’s truck being on the shoulder became a pivotal issue in the case.

[6] If the appellant failed to negotiate the turn and struck the guardrail due to the distraction of the stopped Honda and momentary inattention, it was not inevitable that he could be convicted of dangerous driving, which requires proof of a marked departure from the standard of care that a reasonable person would observe in the accused’s situation. However, in the circumstances, any such finding depended on the determination of the reason for the appellant being on the shoulder. The failure of the trial judge to address this pivotal issue constituted an error of law or mixed fact and law requiring a new trial.

[7] Counsel for the appellant contends that on any view of the facts the verdict is unreasonable and an acquittal should be entered. We do not agree. A finding of dangerous driving was available on this evidence depending on when the appellant’s truck entered the shoulder, his speed at the time and his reason for entering the shoulder. If, as was argued by Crown counsel before us, the appellant’s truck was in the shoulder well before he hit the guardrail and he was travelling at a high rate of speed, a trier of fact could find a marked departure from the standard of care of a reasonable person. Alternatively, if the appellant was travelling at a very high rate of speed and failed to negotiate the turn because he was not giving to his driving the attention required for that rate of speed in those conditions, again it might be open to a trier of fact to make a finding of dangerous driving.

[8] Accordingly, the appeal is allowed, the convictions set aside and a new trial ordered on five counts of dangerous driving causing bodily harm. In light of this conclusion, we need not deal with the sentence appeal.

Signed: “M. Rosenberg J.A.” “K. Feldman J.A.” “Robert J. Sharpe J.A.”