COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Ferguson, 2014 ONCA 673
DATE: 20140930
DOCKET: C58504
Epstein, van Rensburg and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Christopher Ferguson
Appellant
David C. Besant, for the appellant
Jennifer Crawford, for the respondent
Heard: September 22, 2014
On appeal from the conviction entered on December 3, 2013 and the sentence imposed on February 25, 2014 by Justice L. Chester of the Ontario Court of Justice.
ENDORSEMENT
[1] On January 27, 2012, at approximately 8:00 p.m., the appellant was driving his car westbound when, without warning, he crossed the centre line of the road and struck an oncoming vehicle, injuring its two passengers. At the time, the appellant was in the midst of a breakup with his girlfriend and was feeling suicidal. Immediately after the impact, the appellant was heard to yell that he wanted to die and was found in the driver’s seat, slashing his wrists.
[2] The appellant was charged with dangerous driving causing bodily harm and criminal negligence causing bodily harm. He was acquitted of the second charge and convicted of the first. He received a 90 day intermittent sentence with one year probation and a two year driving prohibition.
[3] The appellant appeals both conviction and sentence.
[4] With respect to conviction, the appellant’s primary position is that the trial judge erred in his analysis of the mens rea component of the offence of dangerous driving causing bodily harm and that the verdict is unreasonable. The appellant also submits that the trial judge erred in rejecting his testimony that the accident was the consequence of a momentary lapse of attention that took place on an icy road. The appellant also asserts that the trial judge erred in failing to give sufficient reasons for finding his evidence not credible.
[5] With respect to sentence, the appellant argues that the trial judge erred in taking into consideration as an aggravating factor the intention of the appellant to commit the offence, when no such finding was made at trial, and that the sentence was excessive.
THE CONVICTION APPEAL
[6] There is no issue over the actus reus. Viewed objectively, the appellant’s failure to confine his car to his own lane was dangerous to other users of the road.
[7] The trial judge reviewed the leading cases of R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60 and R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, in which the Supreme Court considered the mens rea element of the offence of dangerous driving. In accordance with the guidance provided in these decisions the trial judge instructed himself that a finding that the nature of the driving was dangerous was not sufficient to ground a conviction. The Crown had to prove that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances: Beatty, at para. 43. The trial judge found that the Crown had met this burden. This finding was open to the trial judge on the evidence.
[8] According to Beatty at paras. 47 and 48, and Roy at paras. 34-40, all of the circumstances must be considered in determining whether the accused had the necessary mens rea for the offence. If the evidence establishes that the driving constituted a marked departure from the norm, the trier of fact must consider evidence about the accused’s actual state of mind, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk his conduct created: Beatty at para. 49.
[9] The appellant’s position at trial and on appeal was that, in the absence of evidence of a pattern of dangerous driving preceding the collision, the appellant’s swerving over the centre line was consistent with a momentary lapse of attention, and from that conduct alone the necessary mens rea could not be inferred.
[10] In his detailed reasons, the trial judge reviewed the evidence relevant to the appellant’s state of mind. Critically, the trial judge did not accept the appellant’s testimony that the collision was caused by a momentary lapse and explained why. The trial judge set out his concerns about the appellant’s demeanor, the improbability of some of his testimony and the difficulties presented by the conflict between his trial testimony and his statement to the police the day after the accident. We see no reason to interfere with this finding.
[11] In the light of the trial judge’s rejection of the appellant’s evidence as to the cause of the accident, and the evidence of the surrounding circumstances, the mens rea element of the offence was made out.
[12] It follows that we find no error in the trial judge’s finding the appellant guilty of dangerous driving causing bodily harm.
THE SENTENCE APPEAL
[13] In his reasons for sentence, the trial judge identified several aggravating factors, the first of which was his finding that the appellant deliberately crossed the centre line. This constitutes an error as the trial judge, in his reasons for conviction, made no such finding and the Crown did not, in the course of the sentencing proceeding, seek to prove this beyond a reasonable doubt as required by R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, at pp. 415-17.
[14] As a result of this error the sentence imposed is not entitled to the deference it would normally attract. This court is in the position to determine a fit sentence, taking into account the applicable sentencing principles, particularly specific and general deterrence.
[15] While the appellant is a youthful first offender, the offence is serious and the consequences in this case, particularly those experienced by one of the victims, a young child, are also serious. While the trial judge erred by including an unproven matter as an aggravating factor, we are nonetheless of the view that the sentence is fit.
DISPOSITION
[16] For these reasons, the conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.
“Gloria Epstein J.A.”
“K. van Rensburg J.A.”
“M.L. Benotto J.A.”