Court of Appeal for Ontario

Date: January 27, 2017 Docket: C61179 Judges: Doherty, Blair and Lauwers JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Codi James O'Leary Appellant

Counsel

Brian D. Barrie and Danielle N. Landry, for the appellant

Christopher Webb, for the respondent

Hearing and Appeal

Heard: January 16, 2017

On appeal from the convictions entered on June 1, 2015 by Justice Clayton Conlan of the Superior Court of Justice.

Decision

By-the-Court:

[1] The appellant was convicted, after a trial by judge alone, of one count of dangerous driving while racing causing bodily harm, and one count of dangerous driving while racing causing death. He appealed his convictions only.

[2] At trial, the Crown argued that the appellant and Tyler Dodd were racing their cars westbound on Highway 21 just outside of Owen Sound at about 10:00 p.m. on January 8, 2013. Mr. Dodd lost control of his vehicle, swerved into the oncoming eastbound lane and struck another car. Mr. Dodd was killed and the driver of the other vehicle suffered serious injuries.

[3] The appellant was not involved in the collision. He went to the police station to speak to the police a day or two after the accident in response to a radio broadcast indicating that the police were looking for the driver of another vehicle connected to the accident. That vehicle matched the description of the appellant's vehicle.

[4] The Crown's case consisted of:

• Evidence from various independent witnesses describing the driving of the appellant and Mr. Dodd and the interaction of their vehicles as they drove through Owen Sound to the scene of the accident just west of the city.

• The appellant's statement to the police in which he admitted that he was racing with the Dodd vehicle along the stretch of the road west of Owen Sound, a short distance from the accident.

• Expert evidence of the location on the roadway of the accident (in the eastbound lane); the speed of the Dodd vehicle (about 136 kilometres per hour five seconds before the crash and 109 kilometres per hour one second before the collision); the speed of the other vehicle in the accident (82 kilometres per hour five seconds before the crash and 77 kilometres per hour one second before the crash); and the cause of Mr. Dodd losing control of his vehicle in the curve (excessive speed possibly exacerbated by breaking/over-steering).

[5] The appellant testified. He denied that he was racing Mr. Dodd at any time. On his evidence, he was unaware of Mr. Dodd's vehicle until he noticed it as he pulled away from a light on the west end of Owen Sound, about 800 metres from the accident scene. The appellant explained that he was required to take evasive action to avoid a truck at the light and became aware of the Dodd vehicle as he took that evasive action.

[6] The appellant acknowledged that he sped up as he moved away from the light. He was going about 110 kilometres per hour in a 70 kilometre zone. The appellant testified that he slowed down as he entered the curve to under 100 kilometres per hour. The speed limit changed to 80 kilometres just before the curve. The appellant knew that the curve was a difficult one.

[7] The appellant testified that the Dodd vehicle passed his vehicle as it entered the curve. He saw the vehicle brake and begin to slide. In a defensive manoeuver, the appellant accelerated quickly past the Dodd vehicle. The appellant was on the inside lane and the Dodd vehicle was in the passing lane. The appellant did not know that Mr. Dodd lost control of his vehicle and crossed over into oncoming eastbound traffic.

[8] The appellant testified that he was confused and intimidated when questioned by the police and that he made several factual errors in the statement. He also testified that when he referred to "racing", he simply meant that he was going fast at one point. The trial judge rejected the appellant's evidence about his state of mind when he was interviewed and his understanding of the meaning of "racing".

[9] The trial judge gave detailed reasons for admitting the appellant's statement. He gave equally thorough reasons for judgment. The trial judge's careful reasons were of great assistance to this court.

[10] The grounds of appeal can be divided into three categories:

• challenges to the finding that the appellant and Mr. Dodd were racing at the time of the accident;

• the admissibility of the appellant's statement to the police; and

• the causation finding.

The Finding that the Appellant and Mr. Dodd Were Racing

[11] After a detailed witness-by-witness review of the evidence, including the appellant's testimony, the trial judge concluded that the appellant and Mr. Dodd began to race as they drove westward through the town of Owen Sound. The race continued as the vehicles left Owen Sound going west, although at one point in the west end of Owen Sound, the vehicles stopped for a red light. On the trial judge's findings, the race continued until Mr. Dodd lost control of his vehicle and slammed into the vehicle coming eastbound.

[12] The trial judge's finding that the cars were racing for a considerable distance and were still racing when Mr. Dodd lost control of his vehicle are findings of fact. This court defers to factual findings absent a determination that a finding is unreasonable on the entirety of the record, or is tainted by either a material misapprehension of the evidence or a failure to consider relevant evidence.

[13] The appellant alleges two errors. First, he submits that the trial judge found as a fact that the appellant slowed down as he entered the curve in which the accident occurred. Counsel submits that the trial judge failed to consider this finding in reaching his conclusion that the appellant was racing Mr. Dodd when he lost control and struck the other vehicle. Counsel submits that the evidence that the appellant slowed down was evidence that he had quit the race before the accident occurred. Counsel argues that the trial judge's failure to consider this important evidence removes this court's obligation to defer to the trial judge's finding that the vehicles were racing at the time of the accident.

[14] We reject this submission.

[15] The trial judge accepted the appellant's evidence that he slowed down as he entered the curve because he knew the curve to be a dangerous one. Considered in the context of the entirety of the evidence relevant to the racing issue and the trial judge's factual findings based on that evidence, the appellant's evidence that he slowed down as he entered a dangerous curve seconds before the accident could not realistically offer any support for the contention that the appellant had decided to stop the race with the Dodd vehicle. Slowing down to navigate a curve can hardly be equated with ending the race.

[16] Even if the appellant unilaterally stopped racing seconds before the accident, that action would not affect his liability. A race does not end the second one of the participant's decides he has had enough. This is not a case like R. v. Menezes, [2002] O.J. No. 551, at paras. 124-25, relied on by the appellant in which the evidence indicated that the accused had quit the race about one half mile before the accident occurred.

[17] The trial judge was alive to the evidence that the appellant braked as he entered the curve. He accepted that evidence. The trial judge did not fail to consider material evidence or misapprehend that evidence. Instead, he declined to give certain evidence the evidentiary effect that counsel now argues it should have been given. That assessment is very much in the realm of the trial judge. This court must defer to the trial judge's use of the evidence.

[18] It is also significant when considering the trial judge's reasons as they relate to the appellant's evidence that he slowed down, that the appellant did not argue at trial that he was racing with Mr. Dodd, but discontinued the race at the curve. The appellant argued that he was never racing with Mr. Dodd. It is understandable in the context of the defence position that the trial judge did not focus on the evidence of the appellant's slowing down at the curve as potentially significant to whether the appellant had discontinued the race.

[19] There is no reason to interfere with the trial judge's finding that the appellant and Mr. Dodd were racing when the accident occurred. This finding is central to the appellant's liability.

[20] The second challenge to the trial judge's findings of fact centers on the evidence of Mr. Elliott. Mr. Elliott described the driving of the appellant and Mr. Dodd as they proceeded through Owen Sound. His evidence was important to the trial judge's finding that the racing started while the two vehicles were in Owen Sound and well before they pulled away from the stop light, about 800 metres from the accident scene.

[21] Counsel for the appellant submits that the trial judge did not refer to Mr. Elliott's evidence that it appeared to him that the two cars were racing, or "about to race". Counsel submits that this latter phrase provided an important qualification by Mr. Elliott on his evidence that the cars were racing. He submits that the trial judge failed to consider this important qualification in relying on Mr. Elliott's evidence to establish that the appellant and Mr. Dodd were racing while driving through Owen Sound.

[22] A trial judge is not required to refer to every answer given by a witness. The trial judge summarized Mr. Elliott's detailed description of the movements of the two vehicles as they made their way through the town. That description had more evidentiary significance than Mr. Elliott's characterization of the movements. The description was accepted by the trial judge and fully supported his conclusion that the two vehicles began racing while in the town.

The Admissibility of the Appellant's Statement

[23] The trial judge found that the appellant was not detained when he gave his statement to the police. In doing so, he correctly set out the applicable law. His findings of fact are fully justified on the record before him. We see no basis upon which to interfere with that finding. In the absence of a detention, neither s. 10(b) of the Charter, nor the right to silence as guaranteed in s. 7 of the Charter, are engaged.

[24] The defence also challenged the voluntariness of the appellant's statement. The defence argued that the officer induced the statement by inviting the appellant as a member of the local community to do the responsible thing and tell the police what he knew.

[25] Again, the trial judge thoroughly and correctly reviewed the relevant law. He made findings of fact which cannot be successfully challenged. On those findings, there was no improper inducement by the police and no oppression. The finding that the confession was voluntary stands.

[26] Counsel further argued that apart from the voluntariness of the confession, and police compliance with the Charter, police misconduct justified the exclusion of the appellant's statement. Counsel submitted that the officer interviewing the appellant had grounds to charge the appellant, but chose not to do so, and to treat him as a witness, hoping that the appellant would make a statement and incriminate himself. Counsel further submits that the officer, having decided to advise the appellant of his right to counsel, did not give the appellant a fair opportunity to determine whether he wanted to speak with counsel. Counsel argues that this conduct, even though it did not affect the voluntariness of the statement and did not breach the appellant's constitutional rights, was so improper as to warrant the exclusion of the appellant's statement in the name of "adjudicative fairness".

[27] Whatever power a court might have to exclude a statement even though it is Charter-compliant and voluntary, there is no factual basis to exclude this statement. The trial judge found that the police officer's questioning of the appellant was not improper. He rejected the argument that the officer attempted to mislead the appellant by making him think that he was giving only a witness statement. The trial judge also rejected the submission that the officer deliberately refrained from giving the appellant an adequate opportunity to decide whether he wished to consult with counsel.

[28] The trial judge's findings are fully justified on this record. The officer repeatedly told the appellant that he was free to leave the station. The officer repeatedly told the appellant of the jeopardy he faced and the charges that might be brought against him. The officer, although he was under no constitutional obligation to do so, advised the appellant of his right to counsel and afforded him an opportunity to contact counsel. He also advised the appellant that he was not obligated to say anything and that anything he said might be used in evidence. There is nothing in the conduct of the interview to suggest that the appellant had any wish to speak to counsel. Clearly, he wanted to give his version of the relevant events to the officer.

[29] Counsel made much of the officer's reluctance to admit in his evidence that he had reasonable and probable grounds to arrest the appellant from the moment the appellant arrived at the police station. Even if one could read the officer's testimony as less than forthcoming on this point, the manner in which he testified had nothing to do with the treatment of the appellant at the police station. Certainly, the manner in which the police officer testified at trial could not somehow justify the exclusion of the appellant's statement.

The Causation Question

[30] The trial judge dealt with the question of causation at paras. 182-200. His observations included the following (paras. 198-99):

Racing through town, and then along the sunset strip, in the winter, in the darkness, far in excess of the posted speed limit was inherently dangerous conduct. Just as Mr. O'Leary chose to race with Mr. Dodd, it was reasonably foreseeable that Mr. Dodd would choose to continue the race with the accused even in the fatal curve. The risk of immediate and substantial harm was reasonably foreseeable.

There was no break in the chain of causation. The two cars were in close proximity of one another just before the crash … They were racing. They were driving well over the posted speed limit. I accept the evidence of the accused that he slowed down going into the curve, and it appears that Mr. Dodd did not, at least not before he started to lose control. All of that having being said, this is not a case of some intervening event having occurred. An ordinarily circumspect person would have seen the loss of control, the crash and the resulting death and bodily harm as a likely consequence of Mr. O'Leary's dangerous driving.

[31] The racing, a joint venture by the appellant and Mr. Dodd, was a factual "but for" cause of the accident and the death and injuries that resulted. Not every factual cause is a legal cause. The trier of fact must be satisfied that the accused's actions constituted a significant contributing cause of death: R. v. Maybin, (2012) SCC 24, at para. 60.

[32] There was no evidence in this case of any unforeseeable intervening act capable of breaking the chain of causation. As explained in Maybin, at para. 38:

Legal causation does not require that the accused must objectively foresee the precise future consequences of their conduct. Nor does it assist in addressing moral culpability to require merely that the risk of some non-trivial bodily harm is reasonably foreseeable. Rather, the intervening act and ensuing non-trivial harm must be reasonably foreseeable in the sense that the acts and the harm that actually transpired flowed reasonably from the conduct of the accused. If so, the accused's actions may remain a significant contributing cause of death. [Emphasis added.]

[33] Mr. Dodd's failure to wear a seatbelt may well have contributed to his death. That failure could not, however, constitute an intervening act severing the legally causative effect of the racing. It cannot be argued that Mr. Dodd's failure to wear a seatbelt should absolve the appellant from the clearly foreseeable consequences of his own actions: Maybin, at paras. 60-61.

[34] There was also some argument at trial that Mr. Dodd's ability to drive may have been impaired by the consumption of marihuana, or the failure to take certain prescribed medication. The evidence did not support a finding of any impairment. More to the point, Mr. Dodd's impairment would not affect the finding that the racing was both a factual and legal cause of the accident and the death and injuries that occurred.

[35] Having regard to the trial judge's finding that the appellant was racing with Mr. Dodd at the time of the accident, a finding with which we would not interfere, the causation finding is unassailable.

[36] As indicated at the end of oral argument, the appeal is dismissed.

Released: January 27, 2017

Doherty J.A.

R.A. Blair J.A.

P. Lauwers J.A.