R. v. Purvis, 2010 ONCA 20

Date: 2010-01-14

Docket: M38096 & M38265 (C51060)

Court of Appeal for Ontario

Before: Weiler J.A. (in chambers)

Between

Her Majesty the Queen

Respondent

and

David Purvis

Applicant

Counsel:

David C. Besant, for the applicant

John Patton, for the respondent

Heard: January 8, 2010

On application for leave to appeal from the decision of the summary conviction appeal court dated September 1, 2009 by Justice Anne Mullins of the Superior Court of Justice, dismissing the appeal from the conviction entered and sentence imposed on October 12, 2008 by Justice Robert Graydon of the Ontario Court of Justice, and on application for a stay of driving prohibition.

ENDORSEMENT

[1] The applicant seeks leave to appeal from the decision of the Summary Conviction Appeal Court Judge dismissing his appeal from conviction for dangerous operation of a motor vehicle pursuant to s. 249(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. If leave is granted, he seeks a stay of his driving prohibition, pending appeal. The applicant also seeks leave to appeal his sentence on the basis that the trial judge rejected a discharge prior to submissions and the Summary Conviction Appeal Court Judge ought not to have dismissed his sentence appeal.

[2] The applicant acknowledges that in order for leave to be granted pursuant to s. 839 of the Criminal Code, he must raise a question of law, and the legal issue raised must have significance for the administration of justice beyond this specific case. An assessment of the merits of the appeal informs the analysis because, at least since R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641 (C.A.), this court has adopted an approach similar to that taken by the Supreme Court of Canada in applications for leave to appeal indictable offences: see e.g. R. v. Pea (2008), 2008 89824 (ON CA), 93 O.R. (3d) 67 (C.A.).

[3] The question of law submitted is whether both the judge at first instance and the Summary Conviction Appeal Court Judge failed to consider the issue of “moral blameworthiness” in the applicant’s conduct and also failed to consider if the applicant was aware of the risk and the danger manifested by his conduct.[^1]

[4] The applicant submits that although the trial judge said he disbelieved the accused, he conducted no analysis of whether he was aware of the risk his conduct posed or whether a reasonable person in the applicant’s circumstances would be considered “morally blameworthy”. For the reasons that follow, I would dismiss the application.

[5] The Summary Conviction Appeal Court Judge found the trial judge had directed himself appropriately and had considered all the circumstances, including those raised by the defence and the central issue of the “relatively recent introduction to a medication which can cause drowsiness.” In essence, she dismissed the applicant’s appeal essentially for the reasons given by the trial judge. Thus, the trial judge’s reasons are the focus here.

[6] The evidence was that the applicant’s car crossed the centre line on approximately six occasions as he was approaching Port Hope on Highway #2 and took place over as much as four or five kilometres. In his reasons, the trial judge began by quoting R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, which set out the test for the actus reus of dangerous driving. The trial judge held that, viewed objectively, the fact the applicant failed to confine his vehicle to its own lane of travel was dangerous to other persons using the highway.

[7] The trial judge then dealt with the mens rea required for the offence. Before him, as before this court, the decision in Beatty was central to the submissions respecting the required mens rea. In that case, the court discussed the mental element required for the offence at length. I reproduce the following pertinent excerpts, found at paras. 33, 37, 40 and 43 of Charron J.’s reasons:

[33] The Court in Hundal, however, made it clear that the requisite mens rea may only be found when there is a “marked departure” from the standard of care expected of a reasonable person in the circumstances of the accused. This modification to the usual civil test for negligence is mandated by the criminal setting. It is only when there is a “marked departure” that the conduct demonstrates sufficient blameworthiness to support a finding of penal liability.

[37] The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity. However, there will be circumstances where this underlying premise cannot be sustained because a reasonable person in the position of the accused would not have been aware of the risk or, alternatively, would not have been able to avoid creating the danger. Of course, it is not open to the driver to simply say that he or she gave no thought to the manner of driving because the fault lies in the failure to bring to the dangerous activity the expected degree of thought and attention that it required. As Cory J. explained (at p. 885 of Hundal):

It would be a denial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking of his manner of driving at the time of the accident.

However, because the accused's mental state is relevant in a criminal setting, the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger. On these occasions, even when the manner of driving viewed objectively will clearly be dangerous, the accused cannot be convicted. Cory J., in Hundal, gave some useful examples (at p. 887):

Take for example a driver who, without prior warning, suffers a totally unexpected heart attack, epileptic [page73] seizure or detached retina. As a result of the sudden onset of a disease or physical disability the manner of driving would be dangerous yet those circumstances could provide a complete defence despite the objective demonstration of dangerous driving. Similarly, a driver who, in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly affects the driver in such a way that the manner of driving was dangerous to the public, could still establish a good defence to the charge although it had been objectively established. [Emphasis added.]

[40] ... The standard against which the conduct must always be measured is always the same – it is the conduct expected of the reasonably prudent person in the circumstances. The reasonable person, however, must be put in the circumstances the accused found himself in when the events occurred in order to assess the reasonableness of the conduct. To reiterate the example used above, the reasonable person becomes the one who …. “in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly” causes him to drive in a manner that is dangerous to the public. [Emphasis in original.]

[43] ... The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observed in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[8] The trial judge considered the mens rea, set out above at para. 43 of the Beatty decision, of the appellant’s conduct. That summary does not mention moral blameworthiness. It does, however, restate that the trier of fact must be satisfied that, “a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.”

[9] In the portion of his reasons dealing with mens rea, the trial judge discussed the circumstances of the applicant. The trial judge rejected the applicant’s testimony that when he was driving on January 25, 2007, he could not “recall drifting or swerving out of his lane of traffic partially into the lane of oncoming traffic and back into his lane of traffic as he proceeded westbound along Highway Number 2 towards Port Hope.”

[10] The trial judge cited several reasons for rejecting the applicant’s evidence. Among them was the fact that the applicant admitted he would have read the cautionary document indicating that the drug he was taking may make him dizzy or drowsy. The trial judge also adverted to the evidence of two independent witnesses. One described the movements of the applicant’s vehicle as gradual and, the other witness, as drifting. He noted both descriptions were consistent with a dizzy or drowsy state of mind, the symptoms about which the applicant had been warned. In so doing, the trial judge was adverting to the applicant’s awareness of the risk and that his conduct was neither without knowledge of the possible effects of the medication, nor sudden without time to react to his state and consider the risk. The trial judge implicitly found the applicant was aware of the risk created by his conduct and its danger.

[11] The trial judge referenced the standard of care expected of a reasonable person in the circumstances of the accused. The trial judge concluded that he was satisfied beyond a reasonable doubt that, “a reasonably prudent driver in Mr. Purvis’ circumstances that day, at the very least would have pulled over off the road, stopped and not continued towards Port Hope.”

[12] The trial judge’s reasons, read in context and as a whole, admit of no other conclusion than that he found the applicant’s conduct in continuing to drive was a marked departure from the standard of care required of a reasonable person in similar circumstances to the applicant.

[13] In my opinion, this application has no merit. The trial judge’s reasons do not disclose an error in his application of the legal standard to the facts. The trial judge did not, as counsel submits, simply reject the applicant’s evidence and then convict him. Instead, he considered both the applicant’s awareness of the risk and the standard of care expected of a reasonable person in his circumstances. While the trial judge did not expressly say that the applicant’s conduct was morally blameworthy, he did not have to do so. The trial judge’s reasons sufficiently indicated that he convicted on the basis of a combination of a marked departure from the standard of care of a reasonably prudent person in the applicant’s circumstances, coupled with the applicant’s awareness of the risk. These were the two factors in the Supreme Court’s summary of the mens rea requirement articulated at para. 43 of Beatty. Combined, they amount to morally blameworthy conduct.

[14] I see no significance to the administration of justice respecting the proposed appeal from conviction.

[15] The applicant also seeks leave to appeal the dismissal of his sentence appeal from the Summary Appeal Court Judge to this court on the basis that the trial judge prematurely rejected a discharge prior to submissions. The applicant does not have a free standing right to apply for leave to appeal sentence from the Summary Conviction Appeal Court to this court. The sentence may only be appealed to the Court of Appeal with leave of the court on a question of law alone: see R. v. Bevis (2000), 2000 NSCA 125, 188 N.S.R. (2d) 163 (C.A.).

[16] The applicant submits that the trial judge foreclosed submissions respecting a sentence of a conditional discharge prior to hearing submissions because he said there would be a conviction prior to hearing submissions.

[17] The applicant seeks to elevate the trial judge’s slip of the tongue into an error of law. I agree with the Summary Conviction Appeal Court Judge that read as a whole, and with regard to the circumstances of both the appellant and the offences, the reasons of the trial judge indicate that he did not foreclose the availability of a discharge in advance of the input of counsel.

[18] Days prior to being charged with dangerous operation of a motor vehicle, the applicant was charged with taking an automobile without the owner’s consent. He received a conditional discharge for this offence. In addition to the dangerous driving charge, the applicant was charged with failing to comply with a demand that he give a breath sample. He was also charged with breach of his recognizance. He pled guilty to these last two offences.

[19] While the trial judge indicated that convictions would be recorded, the Crown proceeded to make submissions against a discharge and, as one exchange during defence submissions indicates, counsel and the court turned their minds directly to the issue of the propriety of a discharge.

[20] In addition to not raising a question of law, the applicant’s application for leave to appeal sentence does not raise any issue of public importance.

[21] Accordingly, the applications for leave to appeal conviction and a stay of the driving prohibition are dismissed, as is the application for leave to appeal sentence.

“Karen M. Weiler J.A.”

[^1]: Some might consider the stated “question of law” to be a question of mixed fact and law. The Crown did not argue that the application did not raise a question of law. I note that in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, the Supreme Court held, at para. 18, that “if a question is about the application of a legal standard, that is enough to make it a question of law.” For purposes of my decision I am prepared to assume, without deciding, that the applicant has stated a question of law.