COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Harvey, 2015 ONCA 61

DATE: 20150130

DOCKET: C57899

Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Harvey

Appellant

Marcus Bornfreund, for the appellant

Deborah Krick, for the respondent

Heard and released orally: January 22, 2015

On appeal from the conviction entered on May 30, 2013 by Justice James A. Ramsay of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his convictions of failure to stop at the scene of an accident involving bodily harm contrary to s. 252(1.2) of the Criminal Code and failure to stop at the scene of an accident involving bodily harm or death contrary to s. 252(1.3) of the Code.

[2] He argues that he rebutted the presumption under s. 252(2) of the Code and the Crown did not prove the requisite criminal intent. That section provides:

In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.

[3] The presumption in s. 252(2) is rebuttable. If an accused rebuts the presumption by evidence – his or her own or that of the Crown – that he or she did not leave the scene of the accident for the purpose of escaping civil or criminal liability, the Crown must prove the specific criminal intent beyond a reasonable doubt.

[4] The appellant says that the trial judge failed to consider the evidence of the Crown’s witness, Ms. Beney, that he pulled over after the accident and that she did not see him examine his truck or take a walk around his vehicle. He says the evidence that he pulled over is inconsistent with an attempt to escape civil or criminal liability and that Ms. Beney’s evidence is contrary to the trial judge’s finding that he stopped to assess the damage to his vehicle.

[5] In his reasons for conviction, the trial judge said, “I have no doubt that the appellant knew that his vehicle had been struck at least once in the accident and that when he testified to the contrary he was lying.” He provided detailed reasons why he rejected the evidence of the appellant. The appellant does not challenge the trial judge’s finding that he knew that his vehicle had been struck in the accident or the trial judge’s credibility finding.

[6] The trial judge then said:

[The appellant] did not offer to help and he did not give his name and address. He stopped to assess the damage to his truck. He asked a witness about what she had seen. He then went home and made arrangements to repair the damage. His motive was obvious. He had been negligent and he was driving without the requisite licence. He had a DZ. He needed an AZ. He had been in trouble for that before, so he knew all about the consequences.

Having found that the accused to his knowledge was involved in an accident and that he failed to do the things required by Section 252 of the Criminal Code with intent to escape civil or criminal liability, I find he is guilty as charged on counts one and two.

[7] The trial judge adverted to the fact that the appellant had pulled over. The trial judge found that the appellant knew his vehicle had been struck in the accident when he pulled over. The appellant admitted that after he pulled over he crawled under his truck. The evidence that the appellant went home and made arrangements to repair the damage was uncontradicted. The only reasonable inference was that he stopped to assess the damage to his vehicle. In our view, it is clear that the trial judge found on all of the evidence that the Crown had proven the requisite criminal intent beyond a reasonable doubt.

[8] There is no basis for this court to interfere.

[9] This appeal is accordingly dismissed.

“Alexandra Hoy A.C.J.O.”

“K. van Rensburg J.A.”

“David Brown J.A.”