BARRIE COURT FILE NO.: 10-196
DATE: 20120126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSEPH KOHUT
Appellant
R. Williams, for the Crown
E. Peterson, for the Appellant
HEARD: December 19, 2011
REASONS FOR DECISION
On appeal from the Judgment of The Honourable Justice C.R. Harris dated
September 15, 2010
healey j.:
Nature of the Appeal
[1] The appellant appeals from his conviction for dangerous operation of a motor vehicle and two counts of breach of probation contrary to sections 249.1(a) and 733.1(1) of Canada’s Criminal Code, R.S.C. 1985, c. C-46. The appellant appeals his conviction on the charge of dangerous driving only, upon grounds involving a question of pure law. He applies for leave to appeal upon grounds involving an issue of fact alone or fact mixed with law.
[2] For the reasons that follow the appeal is dismissed.
Background Facts
[3] On December 13, 2007, the appellant drove a northbound stretch of Highway 400 at the end of his work day, entering at Highway 7 and exiting at Highway 89. The manner in which he drove his vehicle, a beige Dodge Caravan minivan (the “appellant’s vehicle”), was observed by three individuals who testified for the Crown: Andrew Skuta, Alexander Gavrilovic, and John Mariani, all of whom were civilian motorists. Skuta placed an emergency 911 call to report the appellant's driving. Gavrilovic and Mariani were operating separate vehicles, both tow trucks, and each knew the other. Gavrilovic picked up the message that was broadcast by the O.P.P. to be on watch for a northbound vehicle driving erratically. At the same time he received a call on his two-way phone from Mariani; Mariani had observed the appellant's vehicle and was calling to warn Gavrilovic of its approach. The appellant was stopped by police Constable Wenzlaff, the fourth Crown witness, upon his exit at Highway 89. Upon speaking to him she detected the odour of an alcoholic beverage emanating from his breath, and demanded that he submit to a roadside approved screening device test.
[4] In addition to careless driving, the appellant was charged with two counts of breaching a probation order as a result of having consumed alcohol and failing to be of good behavior. The appellant does not appeal from his conviction on this latter charge.
Grounds for Appeal
[5] The appellant put forth the following grounds for his appeal:
- The verdict is unreasonable and cannot be supported by the evidence, and more particularly:
a) the trial judge failed to consider adequately, if at all, material inconsistencies and contradictions in the testimony of the three Crown witnesses and made findings of fact which were based on mutually antagonistic statements on the part of the different witnesses, and failed, inter alia;
i) to reconcile how the Crown witnesses Skuta and Mariani could have been driving, at substantially the same part of the same road at the same time, in materially different weather conditions, and
ii) to reconcile evidence which indicated that Mariani had observed the appellant operating his vehicle for some 20 km, while in substantially the same timeframe Gavrilovic observed the same events over a purported distance of less than 2 km;
The trial judge erred in law by making a material finding of fact, being that road and weather conditions on Highway 400 can change instantly, which was not proven in evidence, and in doing so improperly took judicial notice of a fact that was not so notorious as to form part of a common store of knowledge;
The trial judge erred in law in his analysis of the credibility of Gavrilovic;
The trial judge erred in law by failing to give adequate, if any, weight to evidence favorable to the defence, including the fact that the appellant conducted his vehicle some 30 km along Highway 400 without causing an accident, never lost control of his vehicle, and testified that he never drove in a manner beyond his skill level;
The trial judge erred in law in his interpretation of the actus reus and mens rea elements of the offence of dangerous driving by incorrectly applying the established “modified objective" test in rendering his decision;
The trial judge erred in law by expanding the actus reus element of the offense of dangerous driving beyond established parameters to encompass a constellation of acts, none of which, in and of themselves, would constitute more than Highway Traffic Act offenses, would not fall within the civil definition of negligence, and do not fall within the parameters of dangerous operation as set out in the “modified objective" test.
[6] Each of these grounds will be dealt with in turn.
Ground #1 - Material Inconsistencies and Contradictions
(i) Variation in the testimony about weather conditions between Skuta and Mariani
[7] The evidence of Skuta is that he entered the northbound lanes of Highway 400 at the King Road interchange. He first observed the appellant's vehicle just north of Highway 9, at approximately 5 p.m.. Skuta testified that it was snowing out quite badly, with poor visibility. According to Skuta, although it was twilight, the weather made the lighting conditions quite dark. There were small furrows of snow in between the lanes where cars were not driving, as well as between the wheels. He testified that his speed was "maybe 60" km/h, perhaps lower, and that the other cars were traveling at the same speed or slower. He explained that he was traveling 40 km/hr below the speed limit because of the severe weather.
[8] Mariani learned of the applicant’s presence on Highway 400 from a police dispatch broadcast that he heard sometime between 5:00 and 5:30 p.m.. At that time he was travelling northbound between Aurora Side Road and Highway 9. He spotted the appellant's vehicle after hearing the broadcast, when he was just north of Highway 9. He testified that the roads were dry, and maybe wet in spots. He testified that there were "maybe a few flurries, because it was December, but for the most part dry…". Later in his testimony he stated "… It was getting dark but, like I said, the roads were fairly dry. There might have been a few patchy - I think there was a little bit of flurries, but it wasn't sticking to the ground. It was obviously winter, but it wasn’t one of those blizzard storm days. There was no slush or six inches of snow or…".
[9] Also important is the evidence of Gavrilovic, who testified that he first observed the appellant's vehicle in the late afternoon of the day in question, between 5:00 and 5:30 p.m., when he was approximately 2 km south of Highway 89. He testified that the highway was free of snow and dry with wet patches. He testified that there was no snow.
[10] In dealing with the discrepancy between Skuta and Mariani, the trial judge concluded at pp. 4-5 of his Reasons for Judgment:
… He (Skuta) described weather conditions involving snow on the road, small furrows between lanes between wheels, which were contrary to a description provided by another witness, Mariani, at a time not identical, but roughly approximate. I have considered this carefully, and everybody knows that the winter weather, on this stretch of the 400, can, and does, change in a flash, effectively, presenting almost - in Mr. Peterson's words, although he was suggesting it was unlikely - "a small micro-climate of snow".
Having considered all the evidence, certainly with or without resort to that knowledge, I am not prepared to reject Mr. Skuta's version of weather and road conditions. He could well be right. He gave more detailed evidence, more confidently than Mr. Mariani, and I'll leave it at that.
[11] There is no error in this. The judge assessed the demeanor of each witness and concluded that Mr. Skuta was a careful and informative witness, stating:
… He impressed, in manner and content, as a witness honestly endeavouring to tell the truth to the best of his ability, which was substantial. He presented as an articulate, concerned citizen.
[12] The trial judge's conclusion that Skuta gave more detailed evidence, more confidently than Mariani, was borne out in the transcript. Mariani expressed some equivocation in memory by stating "maybe a few flurries, because it was December". Such language suggests more conjecture than was revealed in Skuta’s more elaborate description of the environmental conditions.
[13] More importantly, Skuta entered the highway south of where Mariani entered, and his description of the more severe weather may well have described his experience prior to Mariani’s point of entry at Aurora Side Road. If the weather improved north of Highway 9, as it appears to have done based on the evidence of both Gavrilovic and Mariani, such change would explain why the weather conditions had made a greater impression on Skuta and affected his speed, observations which the other two witnesses did not have the same opportunity to make. Accordingly, the difference in their testimony is adequately explained on the evidence.
(ii) Similar observations of Mariani and Gavrilovic over different distances
[14] As is earlier indicated, Gavrilovic testified that he was two km south of Highway 89 when he first saw the appellant's vehicle. He had moments earlier been alerted to its presence on the highway by means of a radio in his tow truck that monitors O.P.P. broadcasts. At the same time, he received a call from Mariani to advise that the vehicle was "just behind him". His testimony suggests that these events occurred in relatively quick succession. His evidence was that the appellant's vehicle passed him at a high rate of speed, and that he changed lanes erratically "in the manner of a Formula 1 driver", without signalling. He believed the appellant to be driving at a speed of 140 to 145 km/h. He observed him moving over all three lanes, from the slow to fast lane and then back again, without signalling, this pattern being repeated at least twice. The appellant also passed in very close proximity, leaving "about a foot" between the appellant’s vehicle and the one that he passed.
[15] Mariani was just north of Highway 9 when he first observed the appellant's vehicle after receiving the O.P.P. broadcast through the media release channel on the scanner in his tow truck. He testified that the appellant's van passed him, being driven erratically, and he then proceeded to follow it for a little while. He was traveling at 110 km/h and the appellant’s vehicle passed him "at a pretty good speed". He accelerated in an attempt to keep up with the appellant’s vehicle but once he reached 140 km/h and found that he was still not keeping up with the van he slowed again. He then maintained sufficient speed to keep the appellant's vehicle in his sight for the next 15 to 17 kilometers, remaining a couple of hundred meters away from him. He described the appellant's vehicle as "all over the highway, changing lanes without signaling, braking heavily, weaving within its own lane, weaving out of its lane towards the guard rail, towards the shoulder. It was just very erratic, very fast, very unsafe". Mariani testified that when the appellant's vehicle was in the fast lane it came very close to the guard rail. He described how the appellant was pulling up behind cars and weaving left and right, and changing lanes without signalling to get around cars. Just prior to its exit onto Highway 89, Mariani observed the appellant's vehicle change lanes from the fast lane to the slow lane, and then having to brake sharply to avoid rear ending a vehicle ahead of it in the same lane, which was slowing to also take the Highway 89 exit. This braking maneuver was done so sharply that the back of the van lifted up, and to Mariani it appeared that the appellant was about to lose control of his vehicle.
[16] This ground of appeal appears to suggest that it would have been unlikely for Gavrilovic to make observations of the appellant's vehicle similar to those made by Mariani when Gavrilovic was able to observe the appellant for a much shorter period of time. Presumably the appellant may be inferring that there was either collusion between these two witnesses to tailor their evidence, or that over time Gavrilovic's recollection of his observations may have been affected by discussions with Mariani. First, there is no evidence that Mariani and Gavrilovic had had any discussions about this matter prior to testifying. Second, the trial judge found both of these witnesses to be honestly trying to tell the truth and found both to be credible in their testimony. Finally, given that Gavrilovic had two kilometres over which to observe the appellant's vehicle, he had the opportunity to make the observations of the appellant’s driving to which he testified.
[17] For the above reasons I would not give effect to this ground of appeal.
Ground #2 - Judicial Notice of the Weather Conditions
[18] This ground of appeal refers to the fact that in his Reasons the trial judge, as earlier recited, commented that everybody knows that the winter weather on this stretch of the highway can and does change "in a flash".
[19] The test for judicial notice set out by the Supreme Court of Canada in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, indicates that the threshold for judicial notice is strict. A court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. In R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para 60 the Court elaborated on that test by indicating that the permissible scope of judicial notice should vary according to the nature of the issue under consideration. For example, more stringent proof may be called for of facts that are close to the center of the controversy between the parties (whether social, legislative or adjudicative) as distinguished from background facts at or near the periphery.
[20] In this case whether the appellant was driving at a speed and in a manner appropriate to the weather conditions was part of the constellation of facts that led to his conviction. Accordingly, the ability of the weather to change quickly on that stretch of Highway 400 is likely to be a fact requiring more stringent proof, as required by the test in Spence. However, a careful reading of the trial judge’s decision shows that resort to that "fact" was not the sole basis for his reconciliation of the differences in the descriptions of the weather given by the Crown witnesses. After stating that “…everybody knows that the winter weather, on this stretch of the 400 can, and does, change in a flash…”, he wrote at page 5, line 8:
Having considered all the evidence, certainly with or without resort to that knowledge, I am not prepared to reject Mr. Skuta’s version of weather and road conditions… (emphasis added)
[21] Therefore even without having taken judicial notice of the fact that weather conditions can change quickly on that portion of Highway 400, he believed that the appellant was driving, during at least part of the trip, through a snowstorm. His reasons indicate that he would not reject Mr. Skuta’s version of the weather and road conditions and that he preferred Skuta’s evidence to that of Mariani because Skuta gave "much more detailed evidence, more confidently" on that issue. Mr. Skuta gave evidence that visibility was hampered by snow and that the roadway was not clear when he first encountered the appellant. As indicated earlier in these reasons, there was no error by the trial judge in accepting such evidence on all of the facts before him.
[22] Accordingly I would not give effect to this ground of appeal.
Ground #3: Gavrilovic's refusal to answer questions impacting on his credibility
[23] This ground of appeal alleges that the trial judge failed to address and resolve the issue of what, if any, effect the fact that Gavrilovic stood to profit from the towing of the appellant's vehicle might have had upon his credibility. The appellant argued that by relying exclusively on the fact that Gavrilovic and the appellant were unknown to each other prior to the incident to negative the suggestion of fabrication, the trial judge incorrectly equated the witness’ lack of personal bias against the appellant as the sole test of the tow truck driver’s credibility. Similarly, it is alleged that the trial judge failed to consider or draw any potentially adverse inferences from the outright refusal of Gavrilovic to answer questions about his relationship with the O.P.P regarding towing vehicles on Highway 400, which bore directly on the credibility of Gavrilovic’s evidence.
[24] The trial judge dealt, in part, with the same submissions at page 8 of his reasons. He wrote:
Mr. Peterson suggested he was an unreliable witness, that he, "wanted the hook", referring to wanting a tow job, if one was going to arise from this, and making - although not in this word - symbiotic, reference to a relationship which might reasonably exist between tow truck drivers and police officers.
I have carefully considered that and, certainly, ultimately, am impressed by the fact that none of Andrew Skuta, Alexander Gavrilovic, who I've mentioned already, or John Mariani, and Constable Wenzlaff, who I’ll mention later, knew Mr. Kohut before December 13, 2007.
In my view, after carefully considering all their evidence, individually and collectively, there was no detectable bias. They testified relatively independently and, after serious consideration of all that, I don't believe for a millisecond that Mr. Gavrilovic became involved to score a tow.
[25] Although the appellant suggests that Gavrilovic refused to answer any questions about his relationship with the O.P.P. regarding towing vehicles on Highway 400, that allegation is inaccurate. Although Gavrilovic initially indicated in his testimony that he was "not allowed to talk about that", the appellant's counsel went on to elicit evidence in cross-examination about whether Gavrilovic knew the arresting officer and whether he had had a conversation with her prior to flashing his lights as he took the exit ramp, in order to alert the O.P.P. cruiser that the appellant's van was ahead of him.
[26] The approach taken by the appellant's lawyer at trial was to question Gavrilovic about the method by which he received payment for towing and impounding vehicles, and to question under what authority he towed from that particular stretch of the highway. In his submissions to the trial judge on a voir dire to determine the relevance of this line of questioning, Mr. Peterson articulated that he believed that this was a hunt, with the tow truck drivers communicating with one another, following the appellant, and with the police cruiser waiting on the side. He argued that Gavrilovic's testimony of having flashed his lights while following the appellant's vehicle in order to get him to slow down made no sense. The court asked whether Mr. Peterson's line of questioning in relation to Mr. Gavrilovic was being pursued on the theory that he made up his evidence so that he could get to tow this vehicle. Although this was denied, a review of the transcript indicates that this was precisely the appellant's theory as to why he was followed and pulled over, as opposed to his driving behavior.
[27] Like the trial judge, I find there is little merit to this theory. There is ample evidence as to why both Mariani and Gavrilovic would have been alarmed by the appellant's driving, why they would be communicating, and why Gavrilovic would be assisting the police to the extent that he was able. The fact that one of them potentially stood to profit from a tow is not compelling evidence of motive to tailor evidence, in comparison to the overwhelming evidence of the appellant's poor driving behavior, which behavior was of course also observed by Skuta, who had nothing to gain by calling the police.
[28] On the issue of Gavrilovic flashing his lights, the appellant suggests that the trial judge erred in not resolving or addressing such conduct in his reasons. Gavrilovic testified that he flashed his lights while driving behind the appellant in order to have him slow down. The appellant argues that such behavior would suggest to a driver that the driver following wants him to move out of the way or go faster. The failure of the trial judge to refer to such behavior his reasons is not an error. Gavrilovic explained that he was doing so both to catch the attention of other drivers and indicate to the appellant to slow his speed. Again, given the volume of evidence as to the appellant's poor driving, there is no indication in the evidence that Gavrilovic’s flashing of lights, either while on the highway or on entering the off ramp to notify the officer, had any effect on the appellant's driving. The appellant may be suggesting that Gavrilovic encouraged or forced the appellant to drive faster by flashing his lights, motivated by the opportunity to earn some money; this theory is discredited by the evidence given by the two witnesses that had earlier observed the appellant’s speed and conduct.
[29] To return to the appellant's contention that Gavrilovic "refused" to discuss his relationship with the O.P.P. and therefore the trial judge would not have been able to make a thorough assessment of his credibility, I give no effect to this ground of appeal, as the transcript shows that ultimately those questions were asked and answered by Mr. Gavrilovic.
Ground #4 - The trial judge erred in law by failing to give adequate, if any, weight to evidence favourable to the defence
[30] This ground of appeal is based on the allegation that the trial judge failed to consider that the appellant conducted his vehicle some 30 kilometres along Highway 400 without causing an accident, never lost control of his vehicle, and testified that he never drove in a manner beyond his skill level.
[31] On the last point, the trial judge made it clear in his findings that he rejected the appellant's evidence as to the manner in which he drove his vehicle. Although the trial judge had many comments with respect to his observations of the appellant's testimony, a sample is sufficient to show his outright disbelief in the veracity of the appellant. At page 18 of his reasons he wrote:
He equivocated frequently in testimony. For example, at one time agreeing he was impatient, and then shortly thereafter saying, no, he wasn't. In my view, it was abundantly clear that he was the only witness not honestly endeavouring to tell the truth and, by the end, it was a pretty sad spectacle. His attempts to explain away the degree of bad driving manoeuvres were plainly self-serving and obfuscative. They were replete with contradictions and exaggerations.
[32] The fact that the appellant did not cause an accident does not equate with the conclusion that he drove in a manner not exceeding his skill level. A number of independent factors may have contributed to the fact that an accident was averted. For example, the trial judge heard testimony from Mr. Skuta that he had to quickly move over onto the shoulder in order to avoid the appellant's vehicle, which pulled over in front of him in such close proximity that he was required to take evasive action. Further, the fact that no accident occurred does not lead to the conclusion that the appellant's conduct was not a marked departure from the standard expected of a reasonably prudent driver. As explained in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 46, the focus is on the manner of driving and not the consequences of it. Charron, J. writing for the majority, stated:
The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public.
[33] There was no error in law made by the trial judge on this point and accordingly the court will not give effect to this ground of appeal.
Grounds #5 and #6 - The trial judge erred in law in his interpretation of the actus reus and mens rea elements of the offence of dangerous driving by incorrectly applying the established “modified objective" test in rendering his decision. Also the trial judge erred in law by expanding the actus reus element of the offence of dangerous driving beyond established parameters to encompass a constellation of acts, none of which, in and of themselves:
a) would constitute more than Highway Traffic Act offenses;
b) would not fall within the civil definition of negligence; and
c) do not fall within the parameters of dangerous operation as set out in the “modified objective" test.
[34] These two grounds will be dealt with together.
[35] The test as articulated by Charron J. in Beatty at para. 43 is as follows:
(a) The Actus Reus
The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of that section, driving in a manner that was "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 that place".
(b) The Mens Rea
The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.
[36] The trial judge correctly identified Beatty and an earlier case, R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, as the authoritative dangerous driving cases from the Supreme Court of Canada. At page 24 of his Reasons for Judgment the trial judge indicated that it is clear from Hundal that the driving must be in a manner that is "dangerous to the public, having regards to all the circumstances, including the nature, condition and use of such place, and the amount of traffic that at the time is, or may reasonably be expected to be, on such place". The trial judge took into account the submissions of the appellant's counsel that urged him to be conscious of the fact that "the offense is dangerous driving, it's not impolite driving, it's not aggressive driving, it's not rude driving, it's not even driving like an idiot". Referring to Beatty the trial judge indicated that he was mindful that a mere departure from the standard expected of a reasonable, prudent person will meet the threshold for civil negligence, but not penal negligence. He noted that the Court in Beatty made the distinction between a mere departure and a marked departure, noting that it is a question of degree, and the actus reus requiring proof beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and the use of the place at which the motor vehicle was being operated, and the amount of traffic that at that time is, or may reasonably be expected to be at that place.
[37] Accordingly, the trial judge did not misapprehend either element of the offence of dangerous driving as articulated in Beatty.
[38] The evidence before the trier of fact with respect to the accused’s driving was plentiful. In addition to the evidence of Mariani and Gavrilovic as previously outlined, the court heard a description of the accused’s driving from Skuta, who placed the 911 call. Skuta testified that he first observed the appellant's vehicle when it drove up behind him and started honking his horn at him. According to Skuta the van was traveling at a high rate of speed. Skuta’s testimony was that the van was driving too fast for the weather conditions. He observed it cut across three lanes of traffic, almost striking the front left panel of Skuta’s truck. Skuta had to take evasive action, as earlier referred to, and pulled over so far to the side of the highway that his two right tires entered the snow bank on the shoulder. As the van sped ahead, Skuta's observation was that it continued to be driven erratically. He testified that the van cut across one lane to another and "almost put a car in the barrier". He described it “zigzagging” across the highway without signalling and crowding the cars ahead.
[39] The final Crown witness to observe the appellant's driving was Constable Wenzlaff, who was the officer responding to the complaint and who had positioned her cruiser on the Highway 89 exit ramp. She testified that she saw the appellant's vehicle exit up the ramp and then stop at the intersection of Highway 89. She indicates that the appellant's vehicle was tailgating the one ahead of it. As traffic began to move she saw the appellant's vehicle "jerking and weaving back and forth". To her it appeared as though the van was going to try to pass the vehicle in front of it as it turned onto Highway 89. She testified that at that point she had concerns as to the road conditions, because there was some light snow and wind and in her opinion it was getting slippery. After pulling him over, Constable Wenzlaff smelled alcohol emanating from the appellant. The appellant failed the approved screening device test administered by her.
[40] At trial the appellant gave evidence that he drank the alcohol because it was prescribed for him by his doctor for his heart problems and diabetes. The trial judge was presented with a "to whom it may concern" letter authored by the appellant's family physician, Dr. Chow, which advised that the appellant could continue to drink one glass of red wine per day due to the medically recognized benefits for his heart. However, Dr. Chow testified at the trial that he had not been made aware by his patient that he was subject to a court order to refrain from drinking alcohol. His testimony was that he would not have recommended it had he been aware. The trial judge commented that these facts did not reflect well on the appellant because "it speaks of some unscrupulousness in getting his decent, unsuspecting family Dr. Chow to write a letter… without telling him of the probation order".
[41] The trial judge’s assessment of the evidence of alcohol consumption was supported by the evidence. He found that Mr. Kohut had wilfully consumed alcohol in a Christmas social setting in his Woodbridge office, where “the boys” had his red wine, and that there was "all kinds of alcohol" there. The appellant's evidence was that he had had a large glass of red wine on the afternoon in question before leaving his office, consuming it about half an hour before departing. As earlier indicated, the trial judge rejected Mr. Kohut’s evidence, not just on this point but throughout, describing him as “given to overstatements and absolutes”, “cavalier, argumentative, dismissive and sarcastic”, “explaining away things dishonestly”, and “a classic interrupter who was not responsive, but wanted to say what he wanted to say regardless”.
[42] In summary, the evidence that was available to the trial judge, from which he was able to make an assessment of the mens rea and actus reus of this offence, was:
• Driving at an excessive speed having regard to the visibility and road conditions;
• Failing to signal while changing lanes;
• Tailgating;
• Honking his horn at other drivers;
• Cutting off other motorists;
• Causing a motorist to take evasive action;
• Nearly striking the front fender of another vehicle so that its driver had to move onto the shoulder;
• Crossing all three lanes quickly;
• Weaving over the fog line and approaching the barrier;
• Driving like he was a “Formula 1” driver;
• Approaching an exit ramp behind a vehicle at a speed requiring him to depress his brakes hard enough to cause the rear end of his vehicle to lift;
• Trying to pass a motorist on a one lane exit ramp.
[43] All of this conduct was occurring at a time when the road and weather conditions were not clear, during a time of day when this particular highway was full of commuter and other traffic heading northbound, and after consuming alcohol.
[44] There can be little doubt that this combination of behaviours constitutes a marked departure from the standard in these circumstances. Like the trial judge, I find that the appellant’s driving on the date in question was shockingly irresponsible and dangerous in all respects, as would any reasonable, fair-minded person in our community viewing the situation objectively.
[45] The appellant’s counsel argued that there was no objective evidence of the speed that the appellant was travelling, and therefore it is in error to infer that he was speeding. Skuta was travelling 60 km/hr due to the weather conditions and testified that the traffic around him was travelling at the same speed or slower. The first thing that Skuta noticed about the appellant's van was that it was traveling at a "high rate of speed". He estimated that the van was traveling at a speed of 80 km/hr or better. Gavrilovic testified that he travels at 100 to 105 km/hr, and estimated that the appellant passed him at a speed of 140 to 145 km/h. Mariani testified that he was traveling at 100 or 110 km/h and that right after he heard the police broadcast, the appellant's vehicle "flew past" him. He estimated that the appellant was traveling at a speed of 120 to 130 km/h. The appellant's counsel argued that if Mariani was able to keep the appellant's vehicle in his sight over the next 20 kilometres until it was pulled over, then either the appellant’s speed has been exaggerated or Mariani was traveling at a speed that was within acceptable limits, and therefore so was the appellant.
[46] It is well established law that lay witnesses are permitted to give opinions on matters of personal or common experience, including speed, and that such opinions are evaluated within the context of the other evidence available to the trial judge: Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819; R. v. German, 1947 CanLII 76 (ON CA), [1947] O.R. 395, 89 C.C.C. 90 (Ont. C.A.).
[47] The appellant’s own evidence was that he was in a hurry, wanting to get home before some hot submarine sandwiches had cooled in order to get one to his wife before she left for work. He testified that he was late. The issue in this case was not for the trial judge to obtain an accurate number for the appellant’s speed. The issue is the speed at which he was driving in relation to all of the prevailing conditions, including volume of traffic. The trial judge had ample evidence, which he found to be reliable, that the appellant was traveling at a speed greater than those around him, at a speed unsuited to the weather and road conditions, and at a speed that, coupled with his other conduct, constituted a marked departure from the standard of care that a reasonable person would observe in all the circumstances.
[48] As the trial judge observed at pp. 28-31 of his Reasons for Judgment, there was sufficient evidence of objectively dangerous conduct, markedly different from the normal conduct that a reasonable person would expect in these circumstances. Further, there was ample evidence from which the trial judge could conclude that a reasonable person in similar circumstances would have been aware of the risk and danger involved in operating the appellant's vehicle in the manner that he did. This is not a case where the driver was an innocent or unconscious aggressor on the roadway, but rather one where the driver had a goal to get home as quickly as possible, and he was prepared to intimidate and bully other drivers, and threaten their safety, in order to achieve his personal goal. The requirement of mens rea was easily met in this case.
[49] Accordingly I would not give effect to either of these grounds of appeal.
HEALEY J.
Released: January 26, 2012