DATE: 20041217

DOCKET: C38392

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. JAMES CURRIE (Appellant)

BEFORE: DOHERTY, LASKIN and ARMSTRONG JJ.A.

COUNSEL: Marie Henein and Jennifer Gleitman for the appellant Chris Webb for the respondent

HEARD: December 9, 2004 RELEASED ORALLY: December 9, 2004

On appeal from the conviction entered by Justice Weekes of the Superior Court of Justice dated May 10, 2002 and the sentence imposed dated June 11, 2002.

E N D O R S E M E N T

[1] The evidence described as "prior discreditable conduct" was properly admitted by the trial judge. The appellant's intention as he drove his vehicle towards the dock was not an essential element of the offence of dangerous driving, but it was relevant to whether the driving constituted dangerous driving as defined in s. 249(1)(a) of the Criminal Code. See R. v. LeBlanc (1975), 29 C.C.C. (2d) 97 (S.C.C.). The evidence of the prior acts supported the Crown's contention that the appellant drove on to the dock at considerable speed as a prank, intending to frighten the passengers in the car by stopping at the edge of the dock. The prank went very badly, the vehicle went into the water and one of the appellant's passengers and his dog were drowned. The evidence of the prior discreditable conduct had substantial probative value on the issue of whether the appellant was driving dangerously as he drove on to the dock.

[2] The trial judge's finding that the statements made by the appellant to the two police officers were voluntary does not reflect error in law. There was evidence to support those findings even though parts of the evidence of witnesses who were believed by the trial judge would offer support for the contrary conclusion. In any event, the statements were not significant. The trial judge does not appear to have relied on them to any extent in his reasons and they are not inconsistent with the position advanced by the appellant in his testimony at trial.

[3] There was no error in the manner in which the trial judge assessed the appellant's credibility. He considered the appellant's criminal record and he gave it some weight in assessing the appellant's credibility. He may have given the record more weight than other trial judges given the nature and age of the convictions. However, the weight to be assigned to any particular factor going to the credibility of a witness is essentially a matter for the trial judge.

[4] The finding that the appellant was not credible was based on the trial judge's careful analysis of his evidence. We cannot agree that the trial judge proceeded from any assumption that the appellant was not credible because he was the accused and, therefore, had much to lose if disbelieved.

[5] Insofar as the sentence appeal is concerned, the trial judge quite properly regarded this as a very serious case of dangerous driving causing death. The aggravating factor here was the trial judge's finding that the appellant's conduct was deliberate in the sense that he deliberately took a very significant and totally unnecessary risk that resulted in the death of one of his passengers. The trial judge properly regarded this as an aggravating factor requiring a sentence that stressed general deterrence and denunciation.

[6] The trial judge considered the appropriateness of a conditional sentence, but ultimately decided that it would not adequately reflect the needs of denunciation and general deterrence. We must defer to the trial judge absent an error in principle. There is no error in principle. The sentence of two years less a day should not be varied.

[7] We were troubled by the five-year driving prohibition. The appellant's prior conviction for dangerous driving, although imposed over 20 years ago, and his more recent driving offences justified a significant prohibition period. Although a somewhat shorter driving prohibition may have been appropriate, we cannot say that the five-year prohibition reflects any error in principle or is manifestly unreasonable.

[8] The appeal from conviction is dismissed, leave to appeal sentence is granted, but the appeal from sentence is dismissed.

"Doherty J.A."

"John I. Laskin J.A."

"Robert P. Armstrong J.A."