Court of Appeal for Ontario

Date: 2019-04-05 Docket: C64305

Judges: Doherty, Pepall and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Kenneth Mitchell Appellant

Counsel

For the Appellant: Jill D. Makepeace

For the Respondent: Jennifer A.Y. Trehearne

Heard and Released Orally: April 5, 2019

Appeal Information

On appeal from the conviction entered by Justice L.M. Walters of the Superior Court of Justice, dated June 1, 2017 and the sentence imposed on August 17, 2017.

Reasons for Decision

[1] We are satisfied that the conviction appeal must be dismissed.

[2] It was open to the trial judge to accept Mr. Miller's evidence. Mr. Miller did, as the trial judge pointed out, have the best vantage point. Mr. Miller's evidence was confirmed in some respects by the evidence of other witnesses who saw some of the events leading up to the accident. His evidence was also confirmed in material respects by the accident reconstruction witnesses called.

[3] Mr. Miller's evidence was inconsistent in some relatively minor ways with the evidence of other witnesses. Mr. Miller was also clearly wrong in his evidence about the point of impact on the appellant's vehicle at the time of the accident. The trial judge was alive to all of this evidence and referred to it in her reasons. Despite the shortcomings in Mr. Miller's evidence, his evidence, considered as a whole, could reasonably be accepted by the trial judge. It was open to her to accept that evidence, particularly as it related to the specific movements of the two vehicles immediately before and at the time of the accident. That was the crucial evidence.

[4] We see no error in the treatment of the mens rea component of the offence. The trial judge properly identified the applicable legal principles with reference to the controlling authorities. The trial judge's findings of fact, in our view, determined the mens rea issue. Based on those findings, the appellant clearly had the mens rea required for the offence.

[5] Turning to the sentence appeal, in our view, 18 months was in the range of appropriate sentences, having regard to the nature of the offence and the circumstances of the offender.

[6] We see no error in principle in the trial judge's reasons. Specifically, we do not think the trial judge erred in having regard to the seriousness of the offence, including its impact on the victim's family in considering and determining the appropriate sentence. We do not understand the trial judge to have treated that factor as both relevant to the seriousness of the offence and then again as a separate aggravating factor on sentence.

[7] We will not interfere with the 10-year driving prohibition. We agree with the submission for the Crown that in considering the fitness of the driving prohibition, the court must look at the entirety of the sentence imposed, including both the period of imprisonment and the period of the driving prohibition. Viewed from that perspective, we see no error in principle in the imposition of a 10-year driving prohibition.

[8] The appeal from conviction and the appeal from sentence are dismissed.

"Doherty J.A."

"S.E. Pepall J.A."

"B. Zarnett J.A."