DATE: 20050525
DOCKET: C41688
COURT OF APPEAL FOR ONTARIO
BORINS, FELDMAN and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Marie Henein, for the appellant
Respondent
- and -
JOHN GERALD DEGOEY
Alex Alvaro, for the respondent
Appellant
Heard: December 15, 2004
On appeal from the conviction entered by Regional Senior Justice L.C. Leitch of the Superior Court of Justice, sitting without a jury, on January 29, 2004.
CRONK J.A.:
I. Introduction
[1] In the early morning hours of October 10, 2002, the appellant John Gerald DeGoey drove his truck through a stop sign at an intersection in Leamington, Ontario. His vehicle collided with a car driven by 21-year-old Daniel Hart, killing Mr. Hart instantly. Following a trial before Leitch R.S.J. of the Superior Court of Justice, the appellant was convicted of one count of dangerous driving causing death. He received a 12-month conditional sentence of imprisonment and a two-year driving prohibition. He appeals against his conviction.
[2] The appellant argues that the trial judge erred in several respects in her application of the mens rea requirement for the offence of dangerous driving. He also asserts that the verdict is unreasonable and cannot be supported by the evidence at trial.
[3] For the reasons that follow, I would dismiss the appeal. In my opinion, the trial judge did not err in her application of the test for dangerous driving and it cannot be said that the verdict is unreasonable.
II. Factual Background
[4] The collision occurred shortly before sunrise, near the intersection of County Roads 6 and 31 in Leamington (the “intersection”). County Road 6 runs in an east-west direction, while County Road 31 proceeds in a north-south fashion. There is a stop sign on County Road 6 where it intersects with County Road 31, but no corresponding stop sign on County Road 31. A sign warning of the stop sign on County Road 6 is located approximately 212 metres in advance of the stop sign, facing westbound traffic on County Road 6. Both the stop sign and the warning sign are about eight feet above ground level.
[5] At the critical time, the appellant was driving a large white truck westbound on County Road 6, approaching County Road 31. He was enroute to the intersection from his nearby home. Mr. Hart was driving a red Buick Skylark automobile northbound on County Road 31, towards the intersection. The headlights of his car were on and operating.
[6] The appellant drove into the intersection without stopping at the stop sign on County Road 6. Mr. Hart’s car smashed into the centre of the rear of the appellant’s truck and became jammed. The truck proceeded through the intersection, with Mr. Hart’s car stuck under it, and rolled over into a ditch. Mr. Hart died as a result of the impact.
(1) Speed of the Appellant’s Vehicle
[7] The appellant did not testify and elected not to call any evidence at trial.
[8] There was no precise evidence at trial of the speed at which the appellant was driving. Although various witnesses were in the vicinity of the intersection at or shortly after the time of the collision, no one was able to furnish a firm estimate of the speed of the appellant’s vehicle at the time of impact.
[9] Vickie Adams was a passenger in a pick-up truck that was being driven by Howard Trussetter two cars behind Mr. Hart’s vehicle. She saw the appellant’s truck approaching shortly before the collision. When she saw the truck, she remarked to Mr. Trussetter, “He’s not going to stop.” However, Ms. Adams observed the truck for only seconds before the collision and was unable to say whether it was travelling over the posted speed limit of 80 kilometres per hour. Mr. Trussetter, in turn, testified that when Mr. Hart’s car arrived at the intersection, the appellant’s truck came out “just at the last second, and it was there and gone, and that was it”.
[10] Tony Pouget lived on County Road 6, approximately 175 metres from the intersection. He was sitting outside on a deck at his home when he saw a truck go “speeding by” seconds before the accident. At trial, Mr. Pouget said that the truck appeared to be travelling faster than the posted speed limit. At the appellant’s preliminary inquiry, however, he agreed that the truck may have been travelling, “a little more, or maybe a little less” than the speed limit. Under cross-examination at trial, Mr. Pouget adopted his preliminary inquiry testimony on this issue.
[11] No skid marks from the appellant’s vehicle were discovered during the subsequent police investigation at the scene of the accident. Mr. Hart’s car produced a mark on the road about one metre in length, suggesting that he had little time to react prior to the collision.
[12] Given this evidence, the trial judge was not satisfied, on the criminal standard of proof, that the appellant was speeding at the time of the accident.
(2) Condition of the Appellant’s Vehicle
[13] The defence admitted at trial that the appellant’s truck and equipment, including the brakes, were in good working order at the time of the collision.
(3) Visibility
[14] The visibility conditions at the time of the accident were in dispute at trial.
[15] The trial judge found that, “[A]t the time of the impact the lighting conditions were dark. The accident occurred before sunrise. There was no artificial lighting available… .” She also commented in her reasons:
There was some issue in the trial with respect to the visibility at the intersection in question. Both Ms. Adams and Mr. Trussetter testified that there was no problem with visibility, and as I indicated, they testified that they saw the accident clearly. Their evidence, however, must be considered in the context of the evidence of [the other witnesses].
[16] The trial judge then reviewed in detail the evidence of the other witnesses at trial concerning the weather conditions at the critical time. This included the testimony of Joan Reid, who was driving the car immediately behind Mr. Hart’s car on County Road 31. Ms. Reid did not observe the collision because her view of the intersection was blurred, causing her to lose sight of Mr. Hart’s vehicle. At trial, she said that, although she observed something of “a weather-related phenomenon” that occurred suddenly, “[I]t wasn’t foggy”, she “didn’t see fog” and “when [she] went through the intersection, it wasn’t fog”.
[17] Mr. Pouget could not see the intersection from his position on his deck at his home. Accordingly, he was unable to describe the weather conditions at the intersection at or shortly before the time of impact. However, he heard the impact from the collision about two or three seconds after the appellant’s truck passed his home, prompting him to call 911 for assistance. He then drove his pick-up truck to the intersection, arriving very soon after the accident. He testified that, although there was “descending fog” in the area while he was sitting on his deck, at a height of about ten or 15 feet above the ground, he encountered no visibility problem as he drove to the intersection.
[18] Two police officers attended at the scene of the accident. Officer Susan Dobson, who arrived at the intersection within minutes after the collision, testified that she encountered patches of fog as she travelled northbound on County Road 31 towards the intersection. These patches, however, did not obstruct her visibility and, when she arrived at the scene, the intersection was “clear of fog”.
[19] Sergeant Darrin Rickeard arrived at the accident scene about one hour after the collision, as the sun was rising. Thus, he did not personally observe the collision. He testified that upon his arrival, “Fog was not an issue.” In his notes of his subsequent investigation, Sergeant Rickeard recorded the observations of others as reported to him. These included the notation that at the time of the collision, “There were fog patches ten to twenty feet above the ground.”
(4) Trial Judge’s Conclusions
[20] The trial judge’s conclusions were set out in the following key passages in her reasons:
On all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Hart took no evasive action. He was not aware of the impending danger, and he had no chance to react. It is not known why Mr. Trussetter decided not to pass. The defence suggests that maybe it was a weather phenomenon that changed his mind. As noted, there was evidence of patchy fog that morning, and Mr. Pouget saw fog descending, which would have obstructed a truck driver’s vision before the vision of a car driver was obstructed.
On all of this evidence, I cannot be satisfied beyond a reasonable doubt that there was no fog in the intersection at the time of the accident. However, notwithstanding that conclusion, there is no evidence that the stop sign and the sign warning of the stop sign [were] difficult to see, or that they were not visible to Mr. DeGoey. Mr. DeGoey lived on Road 6. There is no evidence that the area was not familiar to him. As Mr. Trussetter testified, County Road 31 was a back route into Windsor. More cars travelled northbound at that time of day than southbound.
As noted previously, based on all the evidence, I find that it was dark at the time of the accident. There was patchy fog in the area as I reviewed earlier, and descending fog as Mr. Pouget testified, which he could see at his home on Road 6. One would expect a reasonable person to drive with greater care when it was dark, and when there was descending fog such as Mr. Pouget described, particularly when driving on a road on which he knew or ought to have known there was a stop sign at the upcoming intersection.
III. Issues
[21] There are two issues on this appeal: (i) whether the trial judge erred in her application of the mens rea requirement for dangerous driving; and (ii) whether the verdict is unreasonable and cannot be supported by the evidence at trial.
IV. Analysis
(1) Mens Rea Requirement for Dangerous Driving
[22] In R. v. Hundal (1993), 1993 120 (SCC), 79 C.C.C. (3d) 97 (S.C.C.) at 108 Cory J. confirmed that the test for dangerous driving is a ‘modified objective’ one:
It follows then that a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was…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 [emphasis added].
[23] Thus, a conviction for dangerous driving does not require proof of a subjective mental element to drive dangerously. Rather, under the ‘modified objective’ test, the mens rea for the offence must be assessed objectively, in the context of all the events surrounding the incident.
[24] The appellant concedes that the trial judge properly instructed herself on the ‘modified objective’ test enunciated in Hundal. I agree.
[25] At an early point in her reasons, when addressing the essential elements of the offence of dangerous driving, the trial judge said:
The essential elements of the offence of dangerous driving, which are in issue at this trial, and which the Crown must prove beyond a reasonable doubt are that viewed objectively, that is, viewed by a reasonable person, Mr. DeGoey operated his vehicle in a manner which was dangerous to the public, having regard to all the circumstances…and that Mr. DeGoey’s driving was dangerous to the public because it was a marked departure from the standard of care of a reasonable driver, having regard to all the circumstances.
In order for driving to be a criminal act, it must amount to more than an absence of reasonable care in the circumstances. It must be dangerous to the public as a marked departure from the standard of care of a reasonable driver, having regard to all the circumstances. In conclusion, then, I must be satisfied beyond a reasonable doubt that the Crown has proved that Mr. DeGoey’s driving, viewed objectively, amounted to a marked departure from the standard of care that a reasonable person would have exercised in Mr. DeGoey’s situation.
[26] At the conclusion of her reasons, the trial judge again instructed herself on the requisite mens rea for dangerous driving. She referenced the above-mentioned passage from Hundal and said:
The Supreme Court of Canada’s March 1993 decision in R. v. Hundal is the key case in this area. It makes clear that it is a modified objective test that is to be applied by a court. It indicates that there must be a careful examination of those items outlined in s. 249 of the Criminal Code, and a careful examination of the circumstances of the accident.
[27] The appellant argues that, after properly identifying the test for dangerous driving, the trial judge erred in her application of this test to the facts of this case: (i) by failing to consider whether the appellant’s failure to stop at the intersection was sufficient to support a conviction for dangerous driving; (ii) by reversing the burden of proof; and (iii) by applying the civil standard for liability in negligence to the offence of dangerous driving, thereby lowering the requisite threshold for proof of dangerous driving. I would reject these submissions for the following reasons.
(i) Appellant’s Failure to Stop at the Stop Sign
[28] In Hundal, Cory J. stated 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.”
[29] Contrary to the appellant’s submission, the trial judge did not base the appellant’s conviction for dangerous driving solely on his failure to obey the stop sign at the intersection. Rather, the trial judge carefully reviewed the evidence of all the witnesses at trial. In so doing, she focused on the location of the accident, the lighting conditions, the general visibility at and in the area of the intersection, the presence or absence of fog in the area and its effect on whether a driver’s view of the stop sign was obscured at the time of the collision, the appellant’s rate of speed, the traffic conditions, the presence of a stop sign and a sign warning of the stop sign, the condition of the appellant’s vehicle, the time of the accident, the absence of skid marks from the appellant’s vehicle, and the appellant’s failure to stop at the stop sign.
[30] By considering these factors in reaching the determination that the appellant’s conduct constituted dangerous driving, the trial judge directed her attention to all the circumstances of the accident, as mandated under the ‘modified objective’ test for dangerous driving established in Hundal.
[31] The trial judge’s findings, based on all the factors considered by her, established the following context for this accident.
[32] The appellant was driving his vehicle, in the dark, at a rate of speed described by a witness who saw the appellant drive by his home seconds before the accident, as at or near the posted speed limit (Mr. Pouget: “a little more, or maybe a little less” than the speed limit).
[33] Although the appellant was not found by the trial judge to have been speeding, there was no evidence that he attempted to brake or slow his vehicle, or to otherwise take evasive action, prior to the collision.
[34] As well, notwithstanding the presence of a warning sign on County Road 6, positioned at a location designed to warn approaching drivers of the upcoming stop sign at the intersection and facing the direction in which the appellant was travelling, the appellant failed to stop at the stop sign.
[35] Moreover, and contrary to the appellant’s submission on this appeal, there was no evidence of obstructing fog in the intersection before or at the time of impact. The trial judge held that she could not “be satisfied beyond a reasonable doubt that there was no fog in the intersection at the time of the accident”. Although this statement might have been expressed more clearly by the trial judge, I believe that it indicates her conclusion, on the whole of the evidence, that she could not completely exclude the possibility of the presence of fog in the intersection. This is not a finding that fog was in fact present in the intersection. At best, it is a finding that the presence of obstructing fog in the intersection at or immediately before the time of the collision was a mere speculative possibility.
[36] It is also important to observe that the trial judge appears to have been of the view that she was required to be satisfied on the criminal standard of proof that there was no fog at the scene of the accident. This was an error. The criminal standard of proof did not apply to this factual issue. This error by the trial judge, however, operated entirely to the benefit of the appellant.
[37] In this context, in my view, the Crown’s evidence at trial established a compelling circumstantial case that the appellant was driving in a manner that amounted to a marked departure from the standard of care that a reasonable person would have observed in his situation. This required some explanation concerning the appellant’s driving: see R. v. Johnson (1993), 1993 3376 (ON CA), 12 O.R. (3d) 340 (C.A.) and R. v. Lepage, 1995 123 (SCC), [1995] 1 S.C.R. 654. No such explanation was forthcoming at trial either from the appellant, who did not testify, or from any other witness. This justified the trial judge’s implicit conclusion that no foundation for a reasonable doubt as to the appellant’s guilt arose on the evidence.
(ii) Suggested Reversal of Burden of Proof
[38] I am also not persuaded that the trial judge reversed the burden of proof in her application of the mens rea requirement for dangerous driving.
[39] In this regard, the appellant points to the following statements by the trial judge, which I have earlier set out:
[T]here is no evidence that the stop sign and the sign warning of the stop sign [were] difficult to see, or that they were not visible to Mr. DeGoey. Mr. DeGoey lived on Road 6. There is no evidence that the area was not familiar to him.
[40] The appellant submits, essentially, that these statements indicate that the trial judge imposed a burden on the appellant to adduce evidence establishing that the warning and stop signs were obscured or otherwise not visible to him and further, that he lacked familiarity with the area of the collision. I do not accept this submission, for several reasons.
[41] First, there was no dispute at trial that the appellant lived and operated a business in the area near the intersection. Based on these uncontested facts, it was open to the trial judge, absent evidence to the contrary, to draw the reasonable inference that the appellant had some knowledge of the roads and signage in the vicinity of his home and business, including at the intersection.
[42] Second, the trial judge’s observations that there was no evidence “that the stop sign and the sign warning of the stop sign [were] difficult to see, or that they were not visible to Mr. DeGoey” and “that the area was not familiar to him” accurately reflect the evidence at trial.
[43] Third, and significantly, no witness testified that the intersection or the area where the warning sign was situated were obscured by fog at the time of the accident. In fact, there was direct evidence from several witnesses that there was no visual impairment of the intersection at the critical time. I agree with the Crown that, by stating that there was no evidence “that the stop sign and the sign warning of the stop sign [were] difficult to see, or that they were not visible to Mr. DeGoey”, the trial judge simply commented on the inverse of this evidence from the witnesses and did not reverse the burden of proof.
[44] Fourth, the trial judge’s statement concerning the absence of any evidence of a lack of familiarity by the appellant with the area is similarly unobjectionable. It was an accurate statement based on the record before the trial judge and it indicated the trial judge’s recognition that, in the absence of evidence to the contrary, the appellant’s familiarity with the area could be inferred from his acknowledged place of residence and business. As I have said, this inference was both reasonable and open to the trial judge on the evidential record. It did not reflect an improper shifting of the burden of proof.
(iii) Suggested Lowering of Threshold for Proof of Dangerous Driving
[45] I also do not accept the appellant’s assertion that the trial judge lowered the threshold for proof of dangerous driving by invoking the civil standard for liability in negligence.
[46] This contention by the appellant is based on the following comment by the trial judge:
One would expect a reasonable person to drive with greater care when it was dark, and when there was descending fog such as Mr. Pouget described, particularly when driving on a road on which he knew or ought to have known there was a stop sign at the upcoming intersection [emphasis added].
[47] In recognition that there are various levels of negligence, this court has confirmed that proof of negligence on the civil standard falls short of a showing of the marked departure from prudent conduct that is a necessary pre-condition to a conviction for dangerous driving: see for example, R. v. Rajic (1993), 1993 3423 (ON CA), 80 C.C.C. (3d) 533 at 538 and R. v. Bartlett (1998), 1998 2998 (ON CA), 124 C.C.C. (3d) 417 at 425.
[48] In this case, the trial judge expressly instructed herself that the adoption of the civil standard for proof of negligence was impermissible. She stated: “In order for driving to be a criminal act, it must amount to more than an absence of reasonable care in the circumstances.” On this record, in my view, there is no reason to conclude that the trial judge failed to apply this clear statement of the applicable law.
[49] This is borne out by the whole of the trial judge’s reasons. They indicate that the trial judge focused repeatedly on the ‘modified objective’ test for dangerous driving as enunciated in Hundal.
[50] Against this backdrop, the trial judge’s comment that the appellant “knew or ought to have known there was a stop sign at the upcoming intersection” does not indicate that she applied the civil standard for negligence in determining whether the appellant’s driving was dangerous driving.
[51] Rather, as I read the trial judge’s reasons, her challenged comment was a straightforward indication that if there was some fog in the area of the intersection, the appellant was obliged to moderate his driving given the adverse driving conditions and his awareness of the approaching intersection. He failed to do so. Conversely, if there was no obstructing fog in the area of the intersection, the warning and stop signs were visible and the appellant was obliged to stop at the stop sign. He failed to do so. Under either scenario it was open to the trial judge to conclude that the appellant’s driving met the Hundal test for dangerous driving.
(iv) Conclusion
[52] I conclude with these observations. The key findings of the trial judge, as attacked by the appellant and quoted earlier in these reasons, could have been expressed more clearly and with greater precision. However, when examined in context and in light of all the evidence before the trial judge, they reflect no error.
[53] In my opinion, properly read, the trial judge’s reasons indicate her conclusion that there was nothing on the record before her, apart from the speculative possibility of the presence of fog in the intersection, to take this case out of the category of cases in which the driving at issue was of a type that amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation. This is confirmed, in my view, by the trial judge’s concluding statement in her reasons, made after she reviewed the applicable legal principles and the evidence:
On the whole of the evidence that I have considered, I am satisfied beyond a reasonable doubt that Mr. DeGoey’s manner of driving represented such a marked departure from the standard of a reasonably prudent driver, and for those reasons, I find him guilty of the count with which he is charged [emphasis added].
(2) Reasonableness of Verdict
[54] This is not an unreasonable verdict case.
[55] The evidence before the trial judge established that the appellant either did not notice or ignored the sign warning of the stop sign; he did not slow down his vehicle between the warning sign and the stop sign; nor was there any evidence that he braked his vehicle or took any evasive action at any time; he failed to stop at the stop sign; he was driving fast enough that one witness (Ms. Adams) observed that he was not going to stop at the stop sign and another witness (Mr. Trussetter) observed the appellant’s truck come out “at the last second” without any noticeable effort to stop; his vehicle was in sound working order; it was dark outside; several witnesses testified as to the absence of any visibility impairment in the intersection or the area of the intersection at the critical time; and the suggestion of the presence of fog in the intersection was merely speculative. Given these factors, there was more than sufficient evidential support for the trial judge’s conclusion that the appellant’s driving was dangerous in all the circumstances.
V. Disposition
[56] For the reasons given, I would dismiss the appeal.
RELEASED:
“MAY 25 2005” “E.A. Cronk J.A.”
“SB” “I agree S. Borins J.A.”
“I agree K. Feldman J.A.”