Court of Appeal for Ontario

Citation: R. v. Costa, 2007 ONCA 219 Date: 2007-03-27 Docket: C46160

Re: Her Majesty the Queen (Respondent) – and – Adrian Costa (Appellant)

Before: Sharpe, Simmons and Cronk JJ.A.

Counsel: Gregory Lafontaine, for the appellant Shawn Porter, for the respondent

Heard & Released Orally: March 22, 2007

On appeal from the convictions and sentence imposed by Justice Robert D. Reilly of the Superior Court of Justice dated February 7 and March 10, 2006.

Endorsement

[1] The appellant was convicted of dangerous driving causing death and sentenced to two years less a day, three years probation and a driving prohibition of ten years. He appeals both conviction and sentence.

[2] We do not accept the submission that there was insufficient evidence to support the trial judge’s finding that by driving at an excessive rate of speed and engaging in an unplanned, spontaneous race with another vehicle, the appellant’s driving constituted a sufficiently marked departure from the standard of a prudent driver to constitute dangerous driving.

[3] Several witnesses testified that the two vehicles appeared to be racing. An independent witness heard the appellant’s wheels squeal from the stoplight and observed smoke. While the appellant denied engaging in a race, he admitted that he accelerated from the stoplight quickly enough to squeal his tires and that he was irritated by the other vehicle to the point where he considered racing it. That evidence, taken together with the circumstances of the accident, namely, colliding with a vehicle in plain view without any explanation, amply supports the trial judge’s conclusion that the appellant was guilty of dangerous driving causing death.

[4] Accordingly, the conviction appeal is dismissed.

[5] With respect to sentence, we see no basis to interfere with the trial judge’s disposition that kept the appellant within the reformatory system but imposed the maximum period of driving prohibition. The custodial term was within the range. In light of the appellant’s very poor driving record, the trial judge’s findings relating to his attitude towards driving and the fact that the appellant had failed to heed warnings regarding his bad driving from friends and family, it was open to the trial judge to impose the maximum period of prohibition in the interest of specific deterrence and protection of the public.

[6] It is conceded that the sentence must be adjusted to reflect the fact that the driving prohibition must run from the date sentence was imposed.

[7] Accordingly, we grant leave to appeal sentence and allow the appeal to that extent specified in paragraph 6 only. Otherwise, the appeal against sentence is dismissed.

“Robert J. Sharpe J.A.” “J. Simmons J.A.” “E.A. Cronk J.A.”