Court of Appeal for Ontario

Date: 2017-09-06 Docket: C61603

Judges: Watt, Huscroft and Trotter JJ.A

Between

Her Majesty the Queen Respondent

and

Amanda Hazel Stevens Appellant

Counsel

Lisa Gunn, for the appellant Alexander Hrybinsky, for the respondent

Heard and released orally: August 28, 2017

On appeal from: the conviction entered on February 26, 2015 and the sentence imposed on January 12, 2016 by Justice Andrew J. Goodman of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Background Facts

[1] After a trial before a judge of the Superior Court of Justice sitting without a jury, Amanda Stevens was convicted of counts of impaired operation of a motor vehicle causing death and dangerous operation of a motor vehicle causing death. She was sentenced to a term of imprisonment of six years.

[2] Ms. Stevens appeals her convictions and seeks leave to appeal the sentence imposed by the trial judge.

[3] The convictions arise out of a motor vehicle accident that occurred one October evening several years ago on a straight flat stretch of county road that was dry and in good condition. Ms. Stevens was driving a pick-up truck that struck the rear of a farm tractor driven by the deceased. At impact, Ms. Stevens was driving at a speed of nearly 30 kilometres per hour in excess of the posted speed limit.

[4] The evidence about the state of lighting on the tractor varied among witnesses, but what is clear is that some of its lighting system was on, and that the reflective tape on the rear of the tractor would reflect headlights of vehicles approaching from the rear.

[5] A toxicologist testified that at the time of the accident, Ms. Stevens' blood alcohol concentration was between 70 and 110 milligrams of alcohol per 100 millilitres of blood. There was also evidence that, at a blood alcohol concentration of 50 milligrams per 100 millilitres of blood, impairment of the ability to operate a motor vehicle becomes significant, at least in a scientific sense.

The Grounds of Appeal

[6] In this court, the appellant challenges the trial judge's conclusions on the basis that:

i. the factual findings made by the trial judge were insufficient to establish the appellant's ability to operate a motor vehicle was impaired by alcohol; and

ii. the factual findings made by the trial judge could not support a finding that the appellant's operation of the motor vehicle constituted a marked departure from the standard expected of a reasonably prudent operator in equivalent circumstances.

Discussion

[7] We are unable to give effect to either ground of appeal. In our view, the trial judge's conclusions on both issues are rooted in an adequate evidentiary foundation. That another trial judge in equivalent circumstances might not have drawn the same inferences does not make the trial judge's conclusions unreasonable or otherwise infirm. Nor do we consider them flawed by any misapprehension of the substance of the evidence given at trial or cumbered by palpable and overriding error. They are entitled to deference in this court.

[8] In the result, the appeal from conviction is dismissed.

The Appeal from Sentence

[9] The appellant also seeks leave to appeal the sentence of six years imposed by the trial judge. The sentence imposed, in our respectful view, is not outside the range of sentence appropriate for similar offenders who commit similar offences in similar circumstances. In our view, it reflects a proper application of the governing sentencing objectives and principles, as well as the relevant aggravating and mitigating factors.

[10] While leave to appeal sentence is granted, the appeal from sentence is dismissed.

David Watt J.A. Grant Huscroft J.A. G.T. Trotter J.A.