Publication Restriction Warning

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 20200316 Docket: C66463

Before: Hoy A.C.J.O., Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Joseph Bradley Appellant

Counsel: Amanda M. Ross, for the appellant Bradley Reitz, for the respondent

Heard: March 10, 2020

On appeal from the conviction entered on June 21, 2019 by Justice Graham Wakefield of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

[1] Six passengers of a motor vehicle operated by Mr. Joseph Bradley were injured after his motor vehicle sideswiped or was sideswiped by another vehicle and Mr. Bradley lost control. Only four of those six occupants were wearing seatbelts at the time of the accident. The two young female passengers who were sitting, unbuckled, on the laps of other occupants were particularly badly injured.

[2] The group had been at a party, as were the occupants of the other motor vehicle involved in the accident. Both drivers were prosecuted for six counts of street racing causing bodily harm, contrary to s. 249.4 of the Criminal Code, R.S.C., 1985, c. C-46, one count for each of the injured occupants of the Bradley vehicle. Only Mr. Bradley was convicted, and only of two counts of the included offence of dangerous driving causing bodily harm contrary to Criminal Code, s. 249(1). [1] Mr. Bradley appeals those convictions. The Crown has not cross-appealed the acquittals.

[3] Mr. Bradley pursues three grounds of appeal. First, Mr. Bradley contends that the trial judge erred by conflating the actus reus and mens rea elements of the offence. Mr. Bradley does not contest that the trial judge found that his manner of driving was a marked departure from the norm, thereby satisfying the mens rea elements of the dangerous driving offences, nor does he appeal this finding. His complaint is that, as a result of the conflation that occurred, the trial judge convicted him without ever finding that he committed the actus reus by operating his motor vehicle in an objectively dangerous manner.

[4] We disagree. The trial judge opened his Reasons for Judgment by accurately identifying the actus reus issue as “whether the Crown has proven the manner of driving was dangerous resulting in the injuries suffered by each victim” (emphasis added). Although the trial judge found that none of the components of Mr. Bradley’s driving standing alone amounted to dangerous driving, a fair reading of his Reasons for Judgment makes clear his finding that, in all the circumstances, Mr. Bradley engaged in an unsafe pattern of driving, including by choosing to speed with unbuckled passengers. The fact that the trial judge tended to describe the manner of driving by using the measure of “marked departure” does not demonstrate otherwise. It is evident the trial judge used this phrase to describe the degree of risk or dangerousness in Mr. Bradley’s manner of driving, something the Supreme Court of Canada itself did in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 40. We would not give effect to this ground of appeal.

[5] In the alternative, Mr. Bradley argues that the trial judge erred by treating the fact that the two occupants were unbuckled and on the laps of other passengers as relevant to the actus reus of dangerous driving. He contends that although a trial judge may consider everything that affects the actual operation of the motor vehicle, to be relevant a contextual circumstance must be comparable to the circumstances articulated in s. 249(1). We disagree.

[6] Section 249(1) provided at the relevant time:

249(1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

[7] Section 249(1) uses the term “including” to make clear that the expressed illustrations are not exhaustive. Both the natural meaning of the phrase, “a manner that is dangerous to the public”, and the purpose of the provision of criminalizing dangerous driving, capture any circumstances that enhance the dangerousness to the public of the manner of driving. We see no error in the trial judge’s finding that Mr. Bradley drove in “a manner dangerous to the public” when he engaged in the pattern of driving that he did, with unbuckled passengers.

[8] Finally, Mr. Bradley argues that the trial judge erred in convicting him of the offence of dangerous driving without addressing factual causation. Again, we do not agree. Although the trial judge did not dedicate a section of his analysis to the causation issue, he made the requisite findings. As the passage from his Reasons for Judgment quoted above indicates, the trial judge expressly identified causation as an issue in the trial, asking “whether the Crown has proven the manner of driving was dangerous resulting in the injuries suffered by each victim” (emphasis added). In the course of his decision the trial judge identified the “markedly higher risk of injury to those additional passengers not buckled in” and commented that “the risk to the two unbuckled passengers was blatantly obvious”. He closed his decision by finding that Mr. Bradley failed to prevent the risk to those passengers, both of whom were particularly seriously injured relative to the other passengers. Given that the dangerousness of the driving the trial judge found included the fact that there were unbelted passengers on the laps of other occupants, the trial judge’s finding that factually the manner of driving caused the injuries to these young women is obvious.

[9] It is always appreciated when trial judges articulate the contested elements of the offence and give each dedicated attention, but it is not an error to fail to do so where it is apparent that the required conclusions were made. That is the case here.

[10] The appeal is dismissed.

“Alexandra Hoy A.C.J.O” “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.”

[1] These provisions have since been repealed but were in force at the time of the accident.