COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Baker, 2013 ONCA 746

DATE: 20131211

DOCKET: C56576

Doherty, Feldman and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dale Axil Baker

Appellant

Michael A. Johnston, for the appellant

Philippe G. Cowle, for the respondent

Heard: December 9, 2013

On appeal from the decision of Justice Mullins of the Superior Court of Justice rendered on September 4, 2012 at Peterborough, Ontario, acquitting the appellant on two charges of criminal negligence causing death and convicting the appellant on two charges of dangerous driving causing death.

ENDORSEMENT

[1] The appellant was acquitted of two charges of criminal negligence causing death and convicted on two counts of dangerous driving causing death. He appeals his convictions.

[2] The charges arose out of an accident that occurred on a two-lane county road near Peterborough on Christmas Eve in 2009. The appellant’s vehicle crossed over on to the wrong side of the road while negotiating a gentle curve and struck an oncoming vehicle driven by Kenneth Dales. Mr. Dales and his wife were killed.

[3] The trial judge’s reasons contain a full review of the evidence and an accurate summary of the relevant legal principles as explained most recently in R. v. Beatty, 2008 SCC 5 and R. v. Roy, 2012 SCC 26.

[4] The trial judge made several findings of fact:

• But for a very small portion of the back of the appellant’s vehicle, the entirety of his vehicle passed over the centre line into the oncoming traffic.

• The appellant was going over the 80 km speed limit and 30 to 40 km per hour faster than the vehicle he struck.

• The accident re-constructionist could not be more specific as to the appellant’s speed.

• The appellant’s car was equipped with a radar detection device that was operating at the time of the accident.

• The speed combined with the radar device suggested that the speed at which the appellant was driving was neither “inadvertent nor momentary.”

• The appellant’s car was mechanically fit at the time of the accident.

[5] The trial judge ultimately concluded:

Given that there were no mechanical flaws found in his vehicle, I conclude and I find as a fact that it was Mr. Baker’s actions, not his inaction, that accounts for his vehicle abruptly having entered almost fully, the wrong side of the road and colliding with another vehicle at a speed in excess of 80 kilometres per hour. I reject making a finding that the presence of Mr. Baker’s vehicle on the wrong side of the road should be reconciled with momentary inattention and a failure to have guided his vehicle within a gentle curve scribed by the roadway, all while there was, in clear view, an oncoming vehicle on the opposite side of a clearly marked road and forewarning of the curve. I find that in operating his vehicle at the speed he did, in all these circumstances, Mr. Baker left no margin for error, whether the error was of him or any other, and in doing so his driving constituted a marked departure from what a reasonably prudent driver would have done in the circumstances. I find that it was his actions in steering his vehicle into the oncoming lane at such speed that constitutes the actus reus and the mens rea of the offence.

the grounds of appeal

(1) Did the trial judge fail to apply the correct legal principles when addressing the fault component of dangerous driving?

[6] The trial judge was alive to the fault component of dangerous driving and specifically adverted to the recent Supreme Court of Canada jurisprudence. Her description of the requisite fault requirement tracked almost word-for-word the description of the requisite fault component in Beatty at para. 49. Beatty was followed and applied in Roy. The “two-stage approach” to the fault element referred to in Roy, at para. 61, was not intended to re-define the fault component as described in Beatty, but was intended to offer a “helpful approach” to the fault determination. The trial judge’s failure to expressly identify the two questions posed in Roy is not an error in law.

(2) Did the trial judge reverse the burden of proof?

[7] The trial judge expressly and unequivocally instructed herself that the burden of proof was on the Crown and remained on the Crown throughout. The passage relied on by the appellant as indicating a reversal in the burden of proof is no more than an application of the proper burden of proof to the entirety of the evidence which included evidence that no mechanical flaws were found in the appellant’s vehicle.

(3) Did the trial judge err in finding that the appellant “intentionally” steered his vehicle into the oncoming lane?

[8] This submission rests on a mischaracterization of the trial judge’s finding. The trial judge found that the appellant drove his vehicle into the gentle curve at an excessive speed and that in doing so he had to steer virtually the entirety of his vehicle into the oncoming lane to negotiate the gentle curve. The trial judge contrasted this situation with one in which the driver finds him or herself unable to negotiate a curve because of momentary inattention. The distinction was one which was potentially important to the fault component of the offence and one which was available on the entirety of the evidence.

(4) Did the trial judge presume guilt on the basis that the appellant’s car was in an accident?

[9] This argument rests on the submission that the appellant’s car “inexplicably” veered across the road while negotiating the curve. The trial judge, however, did not find that the actions of the vehicle were “inexplicable”. She found that the car veered into oncoming traffic because the appellant chose to drive the car into the curve at a rate of speed which did not allow him to keep his vehicle on his side of the road when negotiating the curve. The trial judge did not fall into the error of assigning blame based on the consequences of the appellant’s driving.

(5) Was the verdict unreasonable?

[10] The point at which conduct passes beyond negligence to criminally dangerous driving can be difficult to discern. The appellant’s argument that the verdicts were unreasonable rests on the contention that there was “no evidence of what caused the Toyota 4Runner (the appellant’s vehicle) to veer into the southbound lane”. The appellant also argues that as there was no evidence of the exact speed at which the appellant was driving, the court could not say at what point i.e. at what speed, the appellant’s driving became dangerous.

[11] With respect to counsel’s able submissions, there was clear evidence of what caused the vehicle to enter the oncoming lane. The evidence reasonably permitted the inference that the appellant was going much too fast when entering the curve and could not negotiate the curve on his own side of the road, but rather had to steer virtually his entire vehicle into the oncoming lane. This inference was available even though the evidence did not allow the trial judge to make a finding as to the specific speed at which the appellant’s vehicle was travelling when it entered the curve. There was evidence that the appellant was driving over the 80 km per hour speed limit. The exact speed of the vehicle was not crucial to a finding that the speed was such as to require the appellant to make the turn by passing almost entirely over the centre line into the oncoming lane.

[12] The appellant did not testify. We are entitled to take that into account in assessing the reasonableness of the verdict.

[13] The appeal is dismissed.

“Doherty J.A.”

“K. Feldman J.A.”

“J.C. MacPherson J.A.”