COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stevens, 2014 ONCA 591

DATE: 20140818

DOCKET: C55995

Sharpe, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Keifer Stevens

Appellant

Timothy Breen, for the appellant

Grace Choi, for the respondent

Heard and released orally: August 13, 2014

On appeal from the convictions entered on May 29, 2012 by Justice G. Miller of the Superior Court of Justice, sitting without a jury: 2012 ONSC 3166.

ENDORSEMENT

[1] This appeal arises from a tragic motor vehicle collision that resulted in three deaths. The appellant, 19 at the time of the incident, was convicted of three counts of dangerous driving causing death and sentenced to one year imprisonment. He appeals the convictions.

[2] Despite the capable argument presented by Mr. Breen, we are not persuaded that the trial judge erred in convicting the appellant of these offences.

[3] The appellant attempted to pass three vehicles on a two-lane highway. The road was wet, the traffic was heavy and the appellant was proceeding up a hill so that the view of oncoming traffic was obscured. While the appellant was passing the other vehicles, the oncoming vehicle came over the crest of the hill. The fatal collision occurred in the oncoming lane. Both passengers in the oncoming vehicle were killed as was the passenger in the appellant’s vehicle. At the point of collision, the appellant was on the wrong side of the solid line.

[4] The trial judge gave careful reasons reviewing the evidence in considerable detail and concluded as follows, at paras 82 and 83:

Was Keifer Steven’s decision to pass at that location dangerous to the public having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place? I am satisfied beyond a reasonable doubt that it was. The weather conditions, the heavy southbound traffic, the limited distances between the three vehicles Mr. Stevens attempted to pass and the limited visibility for oncoming traffic created by the existence of the hill and pointed out by the commencement of the solid line for southbound traffic all lead me to conclude that Mr. Steven’s decision and action taken to pass those three vehicles at that location was dangerous to himself and his passenger, the vehicles he was passing and any oncoming traffic whether or not that oncoming traffic could be seen by him at the time.

Did Keifer Stevens’ conduct constitute a marked departure from the standard of care of a reasonable person? I am satisfied beyond a reasonable doubt that it did. In this case there was no direct evidence as to Mr. Stevens’ actual state of mind at the time but assessing his dangerous conduct as against the standard expected of a reasonably prudent driver it is apparent to me Mr. Stevens was reckless in taking the decision to pass those three vehicles at that location and in those weather conditions and at the very least there was evidence that that two apparently reasonably prudent drivers, Mr. Hodsman and Ms. Kemp, were so shocked by Mr. Stevens’ decision to pass at that location that they each exclaimed aloud. I come to this conclusion even without any definitive evidence as to the speed Mr. Stevens’ was travelling at the time he made the pass and/or the time of the collision.

[5] As for the argument that the cause of the collision was that the oncoming vehicle lost control, the trial judge found, at para 93:

I am satisfied beyond a reasonable doubt that the evasive action taken by Mr. Blake in driving onto the shoulder of the roadway when he saw Mr. Stevens’ vehicle in the northbound lane is a factor which Mr. Stevens would have seen as a likely consequence of his conduct. I am satisfied beyond a reasonable doubt that the subsequent loss of control by Mr. Blake’s vehicle was also a factor which Mr. Stevens would have seen as a likely consequence of his conduct, given the weather conditions. I do not find that Mr. Blake’s youth or inexperience as a driver was an intervening factor. I expect even an experienced driver, given the weather conditions and faced with Mr. Stevens’ vehicle in his lane, might well have attempted the same evasive action and with the same result.

[6] On appeal, the appellant attacks the factual findings of the trial judge. The central point raised by the appellant is that the trial judge failed to take into account all of the evidence when concluding that the appellant initiated the pass in close proximity to the commencement of the solid line.

[7] Mr. Breen advances calculations of the speed of both vehicles required to support the trial judge’s findings as to how this collision occurred and submits that the required speeds are unrealistically high.

[8] We reject those submissions for the following reasons.

[9] First, while derived from the evidence adduced at trial, the assumptions, calculations and conclusions we are asked to draw on appeal were not subjected to the requisite scrutiny of the trial process.

[10] Second, as demonstrated by the submissions of the respondent, small changes in the variables significantly alter the calculations and we are not convinced that the calculations relied on by the appellant are sufficiently sound to upset the careful and thorough reasons of the trial judge.

[11] Third, even if we were to accept those calculations, the result would be that the appellant travelled in the passing lane for an even longer distance without ever returning to his proper lane.

[12] We do not agree that the trial judge erred in putting some weight on the contemporaneous utterances of two of the drivers expressing alarm at the appellant’s attempt to pass. In our view, the trial judge was entitled to view those first-hand reactions as supporting Ms. Kemp’s evidence as to the approximate location at which the appellant commenced his manoeuvre and the dangerousness of his driving.

[13] Nor are we persuaded that the fact that the RV was able to stop safely before the point of collision detracts from the trial judge’s findings as to the appellant’s responsibility for the collision. No one saw the appellant successfully return to his own lane and we do not agree that the fact that he may have passed the RV demonstrates that he was able to complete the pass in safety. We note as well that the RV driver applied his brakes to attempt to allow the appellant to re-enter his lane.

[14] Finally, we agree with the trial judge’s finding that, to the extent that the oncoming vehicle lost control, that cannot absolve the appellant of responsibility for the collision. We agree that given the manner of the appellant’s driving and attempt to pass three vehicles on the hill in wet conditions and heavy traffic, evasive action on the part of an oncoming driver was entirely foreseeable and caused by the appellant’s own conduct.

[15] Accordingly, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”

“G. Pardu J.A.”