COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Christink, 2012 ONCA 142

DATE: 20120306

DOCKET: C51901

Simmons, Armstrong JJ.A. and Then R.S.J. (ad hoc)

BETWEEN

Her Majesty The Queen

Respondent

and

Isaac Steven Christink

Appellant

Counsel: R. Craig Bottomley, for the appellant Gregory J. Tweney, for the respondent

Heard and released orally: February 24, 2012

On appeal from the conviction entered by Justice R.M. Thompson of the Superior Court of Justice, sitting without a jury, on January 21, 2010, with reasons reported at 2010 ONSC 364.

ENDORSEMENT

[1] The facts in this case are briefly set out in the endorsement disposing of the sentence appeal.

[2] Even if the trial judge did not disabuse himself of the fact that, while taking a view of the road where the accident occurred, he was able to safely negotiate the curve in issue at the posted speed limit of 70 k.p.h., we are not satisfied that failing to do so amounted to reversible error. The evidence the trial judge accepted indicated the appellant was driving at more than twice the posted speed limit. In this context, the fact that the trial judge could negotiate the curve at the speed limit was irrelevant to the question of whether the appellant’s driving was dangerous.

[3] The trial judge found the appellant’s driving was dangerous because of at least four factors: excessive speed, oversteering, darkness and the appellant’s failure to slow down in the face of the warning signs on the road side. In all the circumstances, the trial judge was entitled to reach the conclusion that the appellant’s driving was dangerous.

[4] Moreover, in light of the factors the trial judge relied on, the failure of the trial judge to comment specifically on the accuracy of Constable Armstrong’s calculation of the critical curve speed is of no moment. The fact that it may have been theoretically possible for someone to negotiate the curve at 206 k.p.h. does not mean that the appellant’s manner of driving did not constitute a marked departure from the conduct of a reasonable person.

[5] Reading the trial judge’s reasons as a whole, it is apparent that he was satisfied, based on a number of factors, that the front seat passenger was able to assess the approximate speed at which the appellant was travelling. The passenger’s evidence that he had a partial view of the speedometer was but one of these factors. Considered in this context, and considering as well the circumstances under which the passenger’s statement was given to the police, it is apparent why the trial judge gave little weight to the inconsistency between the passenger’s evidence at trial and his statement to the police.

[6] Based on the foregoing reasons, the conviction appeal is dismissed.

Signed: "Janet Simmons J.A." "Robert Armstrong J.A." "Edward Then RSJ (ad hoc)"