COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clare, 2013 ONCA 377

DATE: 20130606

DOCKET: C49152

Weiler, Blair and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lloyd Edwin Clare

Appellant

Paul Burstein, for the appellant

Rosella Cornaviera, for the respondent

Heard: May 22, 2013

On appeal from the decision of the Summary Convictions Appeal Court dated July 11, 2008 by Justice Peter B. Hambly of the Superior Court of Justice, dismissing the appeal from the conviction entered on July 17, 2007 by Justice Michael J. Epstein of the Ontario Court of Justice.

Strathy J.A.:

[1] The appellant was convicted of dangerous operation of a motor vehicle contrary to s. 249(1)(a) of the Criminal Code. He was sentenced to a fine of $800. He appealed his conviction to the Summary Conviction Appeal Court. On July 11, 2008, Hambly J. dismissed his appeal.

[2] The appellant seeks leave to appeal the decision of the Summary Conviction Appeal Court on the ground that he was denied an adjournment to either retain new counsel or to prepare his own submissions.

[3] If leave is granted, he submits that the trial judge erred in finding that the Crown had proven dangerous operation of a farm tractor in the absence of any expert evidence to establish that the appellant could have appreciated and avoided the risk of his driving. He submits that the operation of a tractor is materially different from a motor vehicle and a lay trier of fact lacks the necessary knowledge and experience to resolve that question.

[4] He also submits that the trial judge erred in inferring that that the appellant’s driving was dangerous from the consequences of his driving – i.e., an accident.

[5] Having heard the appellant’s submissions on all issues, I acknowledge that the appellant, who was self-represented at the time, may have misunderstood the procedure that would be followed in the Summary Conviction Appeal Court and did not expect that the appeal would proceed on July 11, 2008. In the rather unusual circumstances of this case, therefore, I would grant leave to appeal. For the reasons that follow, however, I am not persuaded that the trial judge made any error and I would dismiss the appeal.

[6] There was ample evidence identified by the trial judge that the vehicle was driven in a manner dangerous to the public, having regard to all the circumstances. These circumstances included:

• the appellant was driving the tractor at 30-35 kilometers per hour along a rutted gravel and dirt road, causing the tractor to bounce along the road;

• the appellant was driving in a deliberate manner, and appeared determined to return to his property, heedless of those who were in his path or were attempting to stop him;

• without slowing, the appellant drove the tractor through a narrow opening between two trailers, one of which was moving, barely missing both;

• the appellant drove toward Constable Diemert, ignored his motions and shouts to stop, and drove within a few of meters of his vehicle before making an evasive manoeuvre to avoid it;

• he continued along the road at top speed toward Constable Lalonde, who feared for his own safety, to the extent that he nearly drew his own service revolver, before the appellant abruptly veered away at the last minute to avoid striking him;

• he drove up onto the narrow berm, adjacent to and above Constable Keller in his cruiser, putting the officer in fear for his own safety, before the tractor did in fact roll off the berm; and

• the evidence of several witnesses, including the officers, who testified that the appellant’s driving caused them to fear for their own safety.

[7] While I accept that the accident itself cannot be used as proof that the driving was dangerous, the finding in this case was amply supported by other evidence.

[8] The appellant submits, however, that the mens rea analysis requires a determination of whether the manner of driving was a marked departure from the standard of care. This, he says, requires an examination of two questions. First, whether a reasonable person would have foreseen the risks arising from the driving and taken steps to avoid them. Second, if so, whether the accused’s failure to foresee those risks and take measures to avoid them was a marked departure from the standard of care. The appellant submits that a lay person, lacking specialized knowledge of the operation of a tractor, is not able to appreciate the risks of operating a tractor in the circumstances or the measures a reasonable person would take to avoid them. This, he says, calls for expert evidence.

[9] The trial judge found that the appellant’s driving was a marked departure from what would be expected from a prudent driver in similar circumstances. In making this finding, he identified a number of circumstances, including the appellant’s disregard of the officers who were attempting to stop him, driving toward the police vehicles in such a way as to require the officers to take evasive measures for the own safety, and leaving the road and mounting the berm in order to avoid the police. Based on this evidence, he inferred the requisite mens rea.

[10] In my view, this was a case in which the risks of the accused’s driving and the means of avoiding them were plain and obvious and did not call for expert evidence. While there may be cases in which expert evidence is required to establish the standard of care in the operation of a tractor and whether the accused’s driving was a marked departure from that standard, this case is not one of them.

[11] In the result, leave to appeal is granted, but the appeal is dismissed.

Released:

“JUN -6 2013” “G.R. Strathy J.A.”

“KMW” “I agree K.M. Weiler J.A.”

“I agree R.A. Blair J.A.”