DATE: 20050705
DOCKET: C42566
COURT OF APPEAL FOR ONTARIO
BORINS, FELDMAN and MACFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
James Foord for the appellant
(Respondent)
- and -
THOMAS SABELA
David Lepofsky for the respondent
(Appellant)
Heard: June 24, 2005
On appeal from the decision of the summary conviction appeal court dated October 6, 2004 by Justice Douglas M. Belch of the Superior Court of Justice, dismissing the appeal from the conviction entered on October 2, 2003 by Justice J. Peter Coulson of the Ontario Court of Justice.
BORINS J.A.:
[1] The appellant seeks leave to appeal the summary conviction appeal court’s dismissal of his appeal from his conviction for dangerous driving. For the reasons that follow, I would grant leave to appeal, set aside the decision of the summary conviction appeal court and substitute an order allowing the appellant’s appeal from conviction.
[2] The appellant was charged with dangerous driving on the allegation that he had made an unsafe lane change when, in changing from the driving lane to the passing lane, he drove too closely to the front of a transport truck operated by Mr. Warner. On Mr. Warner’s evidence, he was not forced to take evasive action as a result of the appellant’s driving. However, Mr. Warner was of the opinion that the appellant’s lane change was “dangerous”. In explaining his driving, the appellant testified that he believed that he was able to change lanes safely and without causing a dangerous situation because there was a sufficient distance between the truck and the vehicle in front of him to pass in safety.
[3] On safely completing the lane change, the appellant continued to drive in the passing lane in front of Mr. Warner’s transport truck. Mr. Warner testified that as he was annoyed and frustrated by the appellant’s driving, he turned on the high beams of the truck’s headlights, causing the appellant to slow down by applying his brakes. As a result, the truck came lightly into contact with the rear of the appellant’s car, pushing it for about 10‑12 feet. Although the Crown contended that the appellant’s application of his car’s brakes causing the truck to come into brief contact with the car was another example of his dangerous driving, this was not the view of the trial judge.
[4] At the outset of his reasons for judgment, the trial judge said that he was not going to review all the evidence. Thereafter he concluded:
In my view, Mr. Sabela drove dangerously when he cut between the car in his driving lane and the front of the truck in the passing lane, so closely that his car could not be seen over the hood of the truck by either the truck driver or his passenger. That amounted to dangerous driving right there and then.
[5] After expressing the opinion that “Mr. Sabela’s dangerous driving was compounded” by slowing down after he had made the lane change, and indicating that although he was “suspicious” he could not find that the appellant was “the offending driver” who had passed [Mr. Stringer, another trucker] on the right and then went to the left in front of him about forty minutes before this incident, the trial judge concluded his reasons as follows:
I am frankly in agreement with Mr. Warner’s assessment of Mr. Sabela’s driving and with that of Sergeant McIntyre, and he’ll be found guilty and a conviction registered.
[6] Although in their closing submissions counsel for both parties addressed the court concerning the test for dangerous driving contrary s. 249(1)(a) of the Criminal Code as stated in R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867, the trial judge did not refer to the test in his reasons. Rather, he appeared to base the appellant’s conviction on his agreement with Mr. Warner’s opinion that he “thought [the lane change] was a very dangerous move”.
[7] To determine whether driving is dangerous, s. 249(1)(a) requires the court to consider all of the circumstances including the nature, condition and the use of the place at which the motor vehicle is being operated and the amount of traffic that is or might reasonably be expected to be present. The appropriate mens rea is based on a modified objective test. If it is proven, viewed objectively, that the accused was driving in a manner that was dangerous to the public, having regard to all of the circumstances, and that the driving amounted to a marked departure from the standard of care that a reasonable person in the accused’s situation would observe, a conviction will result. If the accused gives what can be considered an innocent explanation of his manner of driving, the court must take it into consideration and determine whether it is to believed, or whether it raises a reasonable doubt.
[8] Before the summary conviction appeal court, the appellant contended that the trial judge had erred: (1) in failing to analyse the appellant’s testimony in accordance with R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C.(3d) 397 (S.C.C.); (2) in failing to provide meaningful reasons as explained in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.); and (3) in basing the appellant’s conviction on a misapprehension of the evidence as explained in R. v. Morrissey (1995), 97 C.C.C. (3d) 219 (Ont. C.A.). Before this court the appellant submitted that the appeal judge erred in law in failing to give effect to any of his grounds of appeal.
[9] I am in substantial agreement with the appellant’s submissions. Read as a whole, I find that the trial judge’s reasons are conclusory rather than explanatory, and that the appeal judge failed to recognize this. While I appreciate that the principles in Sheppard must be applied with caution and that not every failure or deficiency in a trial judge’s reasons gives rise to a ground of appeal, I am unable to determine with certainty the analytical path followed by the trial judge in convicting the appellant. Therefore, this is not a case in which, notwithstanding the deficiencies in the trial judge’s reasons, I am able to explain how he reached the conclusion that the appellant was guilty of dangerous driving. For example, while it is implicit that the trial judge rejected the appellant’s explanation of his manner of driving, he provided no reasons for doing so, nor did he indicate if he considered whether the explanation raised a reasonable doubt. As discussed in the next paragraph, in my view the appellant’s explanation of his manner of driving was capable of raising a reasonable doubt.
[10] In my view, the trial judge’s most serious error was his failure to articulate the test for dangerous driving in Hundal and to explain how the appellant’s lane change constituted dangerous driving on the application of the test. On the evidence of Mr. Warner and his passenger, the appellant’s lane change did not impede the operation of the truck, cause the truck driver to take evasive action or cause an accident. Rather, it was Mr. Warner’s testimony that the appellant’s lane change “frustrated” and “annoyed” him, and that he was of this opinion that it was a very dangerous move. It was on the basis of this opinion, and not a proper consideration and application of the Hundal test, that the trial judge founded the appellant’s conviction. I find it difficult to understand his conclusion that the appellant’s manner of driving created a situation of danger. Moreover, considering Mr. Warner’s evidence that the appellant’s lane change neither impeded the operation of the truck, caused him to take evasive action, nor caused an accident, the appellant’s explanation of his manner of driving was capable of raising a reasonable doubt.
[11] In addition, it is clear from the first passage of the trial judge’s reasons quoted in paragraph 4 that the trial judge misapprehended the evidence of Mr. Warner and his passenger in respect to how close the appellant’s car was to the front of the truck when the appellant changed lanes. The trial judge said that the car was so close that neither Mr. Warner nor his passenger could see it. However, it was Mr. Warner’s evidence that he could see “maybe half” of the car as it changed lanes, while the passenger testified that he could see the entire car.
[12] In my view, given the brevity of the trial judge’s reasons, his misapprehension of the evidence is significant because it was central to his reasoning and it formed the foundation for the appellant’s conviction. As this court stated in Morrissey at p. 221: “If the appellant can demonstrate that the conviction depends on a misapprehension of the evidence then…it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice.”
[13] As well, I am troubled by the admission and relevance of the testimony of Mr. Stringer who stated that a driver whom he believed was the appellant had made an unsafe lane change about forty minutes prior to this incident. Although the trial judge was unable to find that the appellant was the other driver, he was “suspicious that it was Mr. Sabela”, thus appearing to attach some weight to Mr. Stringer’s evidence in convicting the appellant. I find it difficult to appreciate the probative value of Mr. Stringer’s evidence, if any. Assuming that the evidence had some probative value, it was outweighed by its prejudicial effect.
[14] For all of these reasons, I would grant leave to appeal, allow the appeal from the summary conviction appeal court dismissing the appellant’s appeal from conviction and substitute an order allowing his appeal from conviction. What remains is whether I should order a new trial, or enter an acquittal. On my analysis of the evidence, it is my opinion that it is simply not capable of supporting a conviction for dangerous driving. It is appropriate, therefore, that there be an order acquitting the appellant of dangerous driving.
RELEASED: July 5, 2005 (“SB”)
“S. Borins J.A.”
“I agree K. Feldman J.A.”
“I agree J. MacFarland J.A.”