CITATION: R. v. Drystek, 2007 ONCA 141

DATE: 20070302

DOCKET: C44448

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. HENRY DRYSTEK (Appellant)

BEFORE:

O’CONNOR A.C.J.O., JURIANSZ and ROULEAU JJ.A.

COUNSEL:

Lawrence Greenspon and Eric Granger

for the appellant

Howard Leibovich

for the respondent

HEARD: February 26, 2007

RELEASED ORALLY: February 26, 2007

On appeal from the convictions entered by Justice Dianne M. Nicholas of the Ontario Court of Justice dated August 12, 2005.

E N D O R S E M E N T

[1] The appellant accepts that absent a non-blameworthy explanation, the driving in this case constitutes a marked departure from the standard of care required of a reasonable person in the circumstances.

[2] The trial judge found that there was no evidence to support a non-blameworthy inference. Specifically, she found that there was no evidence to support an inference that the appellant unexpectedly fell asleep as a result of sleep apnea.

[3] We see no error in this finding. It was open to the trial judge to reject Dr. Lipsitz’s opinion, given that the opinion, as the appellant candidly accepts, was weak. Dr. Lipsitz had not examined the appellant until seventeen months after the accident and at that point found only a very mild form of sleep apnea requiring no treatment. Moreover the appellant did not testify that he fell asleep unexpectedly; he had amnesia with respect to the events surrounding the accident. Significantly, the appellant had never experienced occasions where he unexpectedly fell asleep either before or after the accident.

[4] Finally, the trial judge made a positive finding that the fact the appellant straddled the centerline and corrected himself shortly before the accident “…evidences knowledge of his lack of control of his vehicle”. This finding was available to her on the evidence. There was ample basis on the facts as found by the trial judge to support a conviction for dangerous driving.

[5] The appellant raises arguments about the manner in which the trial judge conducted the trial. We see no basis to interfere. We need address only two of those arguments. First, the appellant argues that in the middle of the trial, the trial judge improperly directed a police officer to determine whether the road was banked at the scene of the accident as a civilian witness had testified. Leaving aside whether such a direction, if given, was appropriate, we note that defence counsel agreed to the filing of the officer’s report and declined the opportunity to cross-examine the officer on it. Further, we note that the Crown could have called this evidence in reply in any event.

[6] Second, the appellant argues that the trial judge erred in the manner that she handled Exhibit 21, an agreed statement of fact. In our view, nothing turns on this issue given that the trial judge accepted the portion of the agreed statement that was important to the defence, namely that the appellant had amnesia and was not feigning it.

[7] The Crown concedes that the conviction for dangerous driving simpliciter should be quashed as the appellant was not arraigned on that charge. The trial judge did not mention this charge in her reasons for convicting the appellant and the conviction apparently resulted from a clerical error. In the result, the appeal is dismissed with the exception that the appeal against the conviction for dangerous driving simpliciter is allowed and that conviction is quashed.

“D. O’Connor A.C.J.O.”

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”