DATE: 20050124

DOCKET: C41022

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) -and- MICHAEL J. PHILLIPS (Respondent)

DOCKET: C40925

AND RE:

HER MAJESTY THE QUEEN (Respondent) -and- MICHAEL J. PHILLIPS (Appellant)

BEFORE:

LABROSSE, GOUDGE and BLAIR JJ.A.

COUNSEL:

Alexander Alvaro for the appellant in C41022 respondent in C40925

Peter W.S. Copeland for the appellant in C40925 respondent in C41022

HEARD AND RELEASED ORALLY:

January 20, 2005

The Crown appeals the sentence imposed on November 4, 2003 by Justice Lawrence C. Kozak of the Superior Court of Justice, sitting with a jury, in appeal C41022.

Appeal C40925 is from the convictions entered on September 23, 2003 by Justice Kozak and from the sentence imposed by Kozak J. on November 4, 2003.

E N D O R S E M E N T

[1] Following a trial before Kozak J. and a jury, the appellant was acquitted of impaired driving causing death but convicted of dangerous driving causing death and failing to stop. He was sentenced to imprisonment for 30 months for dangerous driving causing death and a further six months for failing to stop, less three months’ credit for pre-sentence custody. In addition, a five-year driving prohibition was imposed.

[2] The appellant appeals the convictions and the Crown appeals the sentence.

[3] On the evening of the incident, Keven Borden and others, including Angela Keefe, Michelle Gutzman and Kyla Dagg, attended a popular hangout bar for students from Nipissing University and Canadore College in North Bay.

[4] The appellant was also at the bar that evening. During the evening, the appellant and Ms. Gutzman were intimate in the appellant’s truck. When Ms. Gutzman refused to go home with him, the appellant was described as a little upset and unhappy.

[5] At approximately 2:00 a.m., Mr. Borden and Ms. Keefe left the bar and walked on the right-hand shoulder of College Drive. A short while later, Ms. Dagg and her friends left the bar in her vehicle. The appellant’s truck was still in the parking lot. As she drove along College Drive, Ms. Dagg observed Mr. Borden and Ms. Keefe walking along the gravel part of the road on the right-hand side. She also noticed a few groups of people walking along the side of the road.

[6] According to Ms. Keefe, they were walking on the shoulder of College Drive. Traffic was steady and she was not concerned about their safety. The weather was described as a light mist or light drizzle and there was conflicting evidence about the lighting along the street.

[7] While walking along a long and curving stretch of road, with a posted speed limit of 70 kilometers per hour, Mr. Borden was struck by the appellant’s truck. He died as a result of the injuries that he sustained. Mr. Borden was 6’6” and weighed 280 pounds.

[8] According to the opinion of a Crown’s reconstruction expert, Mr. Borden was probably walking on the edge of the pavement at impact and he estimated the minimum speed of the appellant’s truck at between 60 and 67 kilometers per hour. Ms. Keefe’s evidence was that they were walking on the gravel shoulder of the road.

[9] There was no evidence as to the manner in which the appellant was operating his truck prior to or at the time of the accident. However, shortly after she passed the deceased and Ms. Keefe, Ms. Dagg saw the appellant’s truck, with only one headlight, coming up behind her fairly quickly and driving erratically. There was concern that her vehicle might be hit by the truck.

[10] The appellant did not remain at the scene of the accident. Shortly after the accident, he telephoned a tow truck driver that he knew and asked him to pick up his truck which he had left on a lot. He told the tow truck driver that he had hit something he thought was a dog. There was significant damage to the right corner of the truck, the right headlight, the hood, the windshield and the door on the passenger side. Otherwise, the truck appeared to be well-maintained.

[11] The appellant did not testify.

[12] The appellant submits that the conviction for dangerous driving is unreasonable or unsupported by the evidence. In support of this argument, the appellant relies on the following factors:

▪ the weather conditions;

▪ the street lighting;

▪ the deceased was walking with his back to oncoming traffic;

▪ the evidence that the deceased was probably walking on the roadway at the time of impact;

▪ the speed of the appellant’s vehicle as compared to the speed limit;

▪ the nature of the impact; and

▪ the absence of evidence of the manner of operation of the appellant’s vehicle prior to impact.

[13] In support of the verdict, the Crown relies on the following factors:

▪ the appellant was upset before leaving the bar;

▪ he had consumed alcohol (he was seen to vomit out of the window of his truck at 2:00 a.m.) although he was acquitted of impaired driving;

▪ other drivers saw a number of people walking along the roadway at the time;

▪ the deceased and Ms. Keefe were seen walking on the shoulder immediately before the accident, and Ms. Keefe testified to this effect;

▪ there was no evidence that the lighting or weather conditions posed a problem for drivers;

▪ the appellant’s vehicle struck and killed the victim;

▪ his flight from the scene;

▪ the erratic driving by the appellant immediately after the accident;

▪ the post-offence conduct; and

▪ the appellant did not testify.

[14] In our view, in these circumstances, it was open to the jury to conclude that in striking the victim, the appellant’s operation of his truck was a marked departure from prudent conduct and that it was the manner of driving that caused the accident. The verdict is not unreasonable.

[15] The appellant also submits that the trial judge erred in his instruction to the jury on the offence of failing to stop. The trial judge’s use of the expression “good reason to believe” in relation to the knowledge required of the appellant was in error because the essential element of the offence requires actual knowledge or willful blindness and should have been described as such for the jury. However, had this language been used, the results would necessarily have been the same. In light of the extensive damage to the car and the obvious rejection by the jury of the appellant’s explanation that he thought he had struck a dog instead of a 6’6”, 280 lbs. man, there would have been no other tenable conclusion for the jury to draw but that the appellant knew that he had struck a person, who was injured or appeared to require assistance.

[16] Defence counsel did not object to any aspect of the charge.

[17] Finally, the appellant raises a ground of appeal arising from the trial’s judge answer to a question from the jury dealing with the responsibility of a driver with respect to pedestrians. The trial judge discussed his proposed answer to the question with counsel prior to responding to the jury’s question. After answering the question, the trial judge re-instructed the jury on dangerous driving, including the need for a marked departure from the standard of the reasonably prudent driver.

[18] Defence counsel was content with the proposed answer and did not object afterward. We would not accede to this ground of appeal.

[19] For these reasons, we would dismiss the appeal.

[20] The Crown appeals the sentence. It is the Crown’s position that the sentence imposed was demonstrably unfit and that the appropriate sentence was five years “net”, along with a ten-year driving prohibition.

[21] The trial judge gave detailed and considered reasons dealing with the circumstances of the offence and the offender. Considerable deference must be given to the judge who has the benefit of presiding over the trial and hears the witnesses to the offence. Moreover, the range of sentence for dangerous driving causing death is very broad and the trial judge was in the best position to determine the appropriate sentence.

[22] In our view, in the circumstances, the sentence imposed was not so low as to be demonstrably unfit. We see no error in principle. Accordingly, the sentence appeal is also dismissed.

[23] In the result, the appeal against convictions and the sentence appeal are dismissed.

Signed: “J.M. Labrosse J.A.”

“S.T. Goudge”

“R.A. Blair J.A.”