Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210218 DOCKET: C65057

Fairburn A.C.J.O., Juriansz and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Shawn Orange Appellant

Counsel: Keith E. Wright, for the appellant, Gerald Brienza, for the respondent

Heard: In writing

On appeal from the conviction entered by Justice Nancy A. Dawson of the Ontario Court of Justice on June 13, 2017 and the sentence imposed on December 19, 2017.

Reasons for Decision

[1] The appellant appeals his convictions of dangerous driving causing bodily harm and failing to remain at the scene of an accident knowing bodily harm has been caused to a person. He was acquitted of impaired driving and criminal negligence causing bodily harm. He was sentenced to a reformatory term of two years less a day, two years probation, and a five-year driving prohibition.

[2] The appellant’s primary ground of appeal is that the transcript of the oral reasons for judgment delivered by the trial judge was not certified by the authorized court transcriptionist who prepared it. The transcript had been provided to the trial judge for editing before it was provided to the parties. The appellant suggests the transcriptionist refused to certify the transcript because the trial judge had made substantive changes to it. The appellant submits that since the transcript is not certified, there are no reasons to support the appellant’s convictions resulting in a miscarriage of justice and requiring a new trial. The appellant recognizes the irony of his argument as the trial judge provided detailed oral reasons. The uncertified transcript of her reasons is 199 pages in length.

[3] It is surprising that the transcriptionist did not certify the transcript. The court has compared the transcript to the audio recording of the trial judge’s reasons and confirmed that the transcript is accurate. The edits the trial judge made relate solely to matters of grammar and the correction of a few names where she had misspoken. The edits are well within the range permitted to be made by a trial judge: R. v. Wang, 2010 ONCA 435, 256 C.C.C. (3d) 225.

[4] We reject the appellant’s opportunistic submission the court cannot hear the appeal without a transcript certified by the transcriptionist. This court controls its own process. We direct that the appeal be determined based on the uncertified, but accurate, transcript of the trial judge’s reasons.

[5] In anticipation of this potential result, the appellant advances several grounds of appeal in the alternative. These alternative grounds amount to nothing more than an attempt to retry the case in this court.

[6] At trial the appellant mounted a strenuous defence in the face of an overwhelming prosecution case. The trial judge reviewed all the evidence called at the seven-day trial in extensive detail and analysed it with exacting care. We reject the submissions that she engaged in speculation and that she applied different levels of scrutiny to the evidence. Her credibility findings were balanced. Her description of various portions of the appellant’s evidence as “disingenuous”, “incredible” and “nonsense” were apt—his testimony was clearly unbelievable. She explained why she accepted the credibility and reliability of the testimony of the persons who witnessed the accident and of the police officers. All the factual and credibility findings the trial judge made were amply supported by the record before her.

[7] On those findings, the appellant had gunned the engine of the powerful vehicle he was driving, lost control of it, drove onto the sidewalk, swiped a hedge, scraped a car parked in a driveway, hit a hydro guide pole and wire, hit garden posts and ended up back on the road. During his travel on the sidewalk the appellant hit a pedestrian, who was propelled into the windshield and then over the roof and the back of the car. The appellant was aware that he hit a person. He stopped briefly after the accident, and without getting out of his car, drove off. The trial judge rejected the appellant’s testimony that he lost control of the car after mis-shifting to a lower gear.

[8] The trial judge applied the correct legal principles to the facts she found in concluding that both the actus reus and mens rea of the offences had been proved beyond a reasonable doubt.

[9] The appeal from convictions is dismissed.

[10] With the Crown’s consent, the appeal from sentence is allowed to the extent that the time from March 14, 2018, when the appellant received bail pending appeal, to the date this Decision is released should be subtracted from the driving prohibition imposed by the trial judge. The appellant abandoned the remainder of his sentence appeal.

“Fairburn A.C.J.O.”

“R.G. Juriansz J.A.”

“David M. Paciocco J.A.”