Court File and Parties

Court of Appeal for Ontario Date: 20240904 Docket: COA-23-CR-0047

Between: His Majesty the King Respondent

And

Kevin Hyde Appellant

Counsel: Delmar Doucette, for the appellant Andrew Hotke, for the respondent

Heard and released orally: September 3, 2024

On appeal from the convictions entered on November 1, 2022, and the sentence imposed on March 28, 2023 by Justice Ann-Marie Calsavara of the Ontario Court of Justice.

Reasons for Decision

[1] Mr. Hyde appeals from his convictions for dangerous driving causing death and impaired driving causing death. In our view, the appellant is essentially asking us to revisit the evidence and make fresh, and different, findings of fact. That is not the role of this court. The appellant has not demonstrated any legal error in the analysis undertaken by the trial judge, nor has he demonstrated any material misapprehension of the evidence. In attempting to do so, the appellant parses the reasons of the trial judge in a manner that the Supreme Court of Canada has cautioned appellate courts against doing. The trial judge reached reasonable conclusions on the core issues based on the evidence that she heard. Specifically, she rejected the appellant’s evidence as incredible, including his contention that he passed out due to a medical condition. The appellant has not shown any basis for this court to interfere with any of those conclusions.

[2] The appellant also seeks leave to file an accident reconstruction report as fresh evidence. There is no reason why this report could not have been prepared and presented at the trial. For that reason, it fails the due diligence requirement for the admission of fresh evidence.

[3] The appeal is dismissed as is the motion to file fresh evidence.

[4] The appellant further seeks leave to appeal the sentence of 6 and a half years imposed by the trial judge and asks that it now be reduced to 3 years. The appellant has not demonstrated that the sentence is manifestly unfit or that the trial judge made any errors in principle or failed to consider any relevant factors. While leave to appeal is granted, the sentence appeal is dismissed.

Signatures

“M. Tulloch C.J.O.”

“I.V.B. Nordheimer J.A.”

“L. Madsen J.A.”