DATE: 20051228

DOCKET: C42813

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – BEVERLEY PARKIN (Appellant)

BEFORE:

CRONK, JURIANSZ and LaFORME JJ.A.

COUNSEL:

Carole McAfee Wallace

for the appellant

Robert Gattrell

for the respondent

HEARD & RELEASED ORALLY:

December 21, 2005

On appeal from the conviction entered by Justice Christopher Speyer of the Superior Court of Justice dated November 22, 2004 and the sentence imposed by Justice Speyer dated December 13, 2004.

E N D O R S E M E N T

[1] This is an appeal by the appellant from his conviction for dangerous driving causing bodily harm, in respect of which he received a conditional sentence of nine months to be served in the community, subject to terms that included house arrest. A two year driving prohibition was also imposed. The appellant also seeks leave to appeal sentence and, if leave be granted, appeals against sentence. For the reasons that follow, the conviction appeal is dismissed. We grant leave to appeal sentence but dismiss the appeal against sentence.

[2] In support of his conviction appeal, the appellant submits that the trial judge erred by misapplying the test for dangerous driving to the facts of this case, by failing to consider the totality of the evidence and whether it raised a reasonable doubt as to the appellant’s guilt, and by making findings of fact not supported by the evidence.

[3] The appellant acknowledges that the trial judge correctly identified the test for dangerous driving as enunciated in R. v. Hundal (1993), 1993 120 (SCC), 79 C.C.C. (3d) 97 (S.C.C.) and R. v. Rajic (1993), 1993 3423 (ON CA), 80 C.C.C. (3d) 533 (Ont. C.A.). The trial judge also properly directed himself that the mens rea requirement for dangerous driving is a modified objective, fault-based test and that negligence simpliciter, in the tort law sense, is insufficient to support a conviction for dangerous driving.

[4] In our view, there was ample evidence upon which the trial judge could find that the appellant’s failure to see the vehicle directly in front of him resulted from his failure to keep a proper lookout and that the appellant’s speed in the construction zone was excessive. The appellant seeks to have us reach a different conclusion on the totality of the evidence. We see no basis upon which to interfere with the trial judge’s finding that the appellant’s conduct was a marked departure from the standard of care that a reasonable person would observe in the appellant’s situation.

[5] We can interfere with the sentence imposed only if the trial judge committed an error in principle or if the sentence is manifestly unfit. We are not persuaded that either of these conditions is met in this case.

[6] The conviction appeal is therefore dismissed. Leave to appeal sentence is granted and that appeal is also dismissed.

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”