Court of Appeal for Ontario

Date: 2018-05-14

Docket: C63618

Judges: Feldman, Roberts and Trotter JJ.A.

Between

Her Majesty the Queen Appellant

and

Orrell Higgins Respondent

Counsel

Melissa Adams, for the appellant

Mark Halfyard, for the respondent

Heard and Released

Heard and released orally: April 20, 2018

On appeal from the acquittal entered on March 22, 2017 by Justice A.J. O'Marra of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The Crown submits that the trial judge erred by his analysis of the mens rea component of the offence of dangerous driving causing bodily harm under s. 249(1) of the Criminal Code, by relying on the respondent's lack of deliberate intention to create a danger for other drivers. Further, the trial judge also failed to consider all of the relevant circumstances.

[2] We disagree.

[3] The trial judge correctly applied the well-established test set out in Supreme Court of Canada jurisprudence in relation to the offence of dangerous driving causing bodily harm. As one step of the analysis that he was required to undertake, the trial judge properly considered whether the respondent had a deliberate intention to cause danger to other drivers: see R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 51. Having found that he did not, the trial judge went on to consider the modified objective test set out in the authorities and concluded that he was not satisfied that there was "a marked departure from the standard of care of a prudent person" (para. 58) in all of the circumstances. This analysis was reinforced when the trial judge turned to consider criminal negligence causing bodily harm when he said in para. 60, "without having found a marked departure of the standard of a reasonably prudent person in all of the circumstances, there is no evidence of a wanton and reckless disregard constituting a marked and substantial departure from that of a reasonable driver".

[4] The trial judge's reasons when read as a whole demonstrate that he reviewed and engaged with all of the relevant circumstances concerning the manner of the respondent's driving, including the respondent's excessive rate of speed and inattention, his consumption of alcohol, and the lighting conditions at the time of the incident.

[5] As the Supreme Court of Canada reiterated in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 31, that the trial judge may not have repeated all of this evidence in his conclusory paragraph is not a proper basis to conclude that there was an error of law in this respect.

[6] Accordingly, the appeal is dismissed.

K. Feldman J.A.

L.B. Roberts J.A.

G.T. Trotter J.A.