ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA 159/13
DATE: 20140708
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. H. Apel, for the Respondent
Respondent
- and -
ANDREAS BECK
Mr. M. Fisico, for the Appellant
Appellant
HEARD: July 2, 2014, at Milton
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice A. Zuraw
dated October 8, 2013 at Burlington]
F. DAWSON J.
[1] For the reasons that follow, I am not persuaded that the trial judge made the errors alleged when he convicted the appellant of dangerous driving contrary to s. 249(1)(a) of the Criminal Code, R.S.C. 1985, Chap. C-46.
[2] This was a brief three witness trial. As soon as the evidence was concluded submissions commenced. As soon as counsel’s submissions were concluded the trial judge gave oral reasons for conviction which occupy six pages of transcript. The aspect of the appeal related to the alleged insufficiency of the trial judge’s reasons to permit appellate review must be viewed against this background and, in particular, against the background of the submissions of counsel which were fresh in the mind of the experienced trial judge.
[3] During those submissions the trial judge was provided with the judgments in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 and R. v. Reynolds, 2013 ONCA 433, [2013] O.J. No. 2933 (C.A.). By reference to these cases the appellant’s trial counsel emphasized the need to separately analyse the actus reus and mens rea components of the offence of dangerous driving. At p. 13 of the transcript of his submissions trial counsel made it clear that he was submitting that neither the actus reus nor the mens rea for the alleged offence had been established by the Crown. Consequently, the trial judge clearly knew that both were in issue when he embarked upon his oral reasons.
[4] This case involved what might be described as a low speed police pursuit, after Cst. Nicholls observed the appellant drive through a four way stop sign. By the time the officer began his pursuit the appellant had gotten some distance ahead and was out of sight of the officer. Speeds were relatively slow due to the slush and snow on the roads at the time. Most of the driving occurred at or below the speed limit. There was evidence, however, that the appellant’s speed exceeded what was safe and reasonable given the poor road conditions.
[5] A civilian witness testified that the appellant executed a left turn onto Hedgerow Lane too quickly and cut the corner almost causing a collision with the witness’s vehicle. The witness testified he had to engage in emergency breaking to avoid a collision. The appellant subsequently lost control of his car further down Hedgerow Lane due to the slippery conditions. His car travelled across a sidewalk and over a lawn before returning to the roadway and stopping. It was at that point that Cst. Nicholls caught up to the appellant.
[6] The appellant’s submissions are focused on two aspects of the reasons for judgment. First, the appellant refers to pp. 114-15 of the transcript. There the trial judge said that deliberately going through a stop sign at 20 kilometres per hour in a residential neighbourhood is not dangerous driving. He next said that making a sharper turn than normal on a snowy, slushy residential street where traffic might be expected and nearly hitting another vehicle is not necessarily dangerous driving. He followed that by saying that going so fast on a snow covered residential road that speed results in a loss of control and leaving the roadway is not necessarily dangerous driving. He then added: “[W]hat I do find is that doing all three of these in a space of half a kilometre, in a space of one minute, is a marked departure from the standard of care that a reasonable person would observe and expect in all the circumstances and I am satisfied, beyond any reasonable doubt, the Crown has proved each and every element to its case beyond a reasonable doubt.”
[7] The appellant submits that the trial judge has, by these words, committed the very error the courts were concerned with in Roy, Beatty and Reynolds. It is submitted the trial judge conflated the actus reus and mens rea requirements and moved immediately from finding the actus reus to finding the mens rea proven without sufficient additional analysis and without considering all of the circumstances of the case.
[8] It would certainly have been helpful for the trial judge to have clearly demarcated his analysis of the actus reus from his analysis of the mens rea of the offence in his reasons. His failure to do so leads to some potential confusion about what he meant when he said that, on their own, none of the three aspects of the appellant’s driving he focused on constituted dangerous driving. The potential confusion concerns whether he was referring to the actus reus as well as to the mens rea and deciding both of those questions against the appellant on the basis of a marked departure test, or whether, at this point in his reasons, he was referring to mens rea only, and was in fact engaging in the separate analysis with respect to mens rea that is mandated by all three of the cases he had been referred to.
[9] Reading the trial judge’s reasons as a whole against the background of the submissions that had just been made to him, I conclude it is the latter. Looking at the reasons as a whole, I observe that three pages earlier, at p. 112 of the transcript, the trial judge is making his findings with respect to the actus reus of the offence. This is evident by his reference to the evidence concerning the number of pedestrians and the amount of traffic that was in the area, or might reasonably have been expected to be there. At that point in his reasons the trial judge referred to a case which I conclude is R. v. Mueller (1975), 1975 1385 (ON CA), 29 C.C.C. (2d) 243 (Ont. C.A.). That case and those factors are related to determining whether, viewed objectively, the driving conduct was dangerous within the meaning of s. 249(1)(a) of the Criminal Code. When making reference to Mueller the trial judge said he was “satisfied that this element of dangerous driving is present”. I conclude he could only have been referring to the actus reus of the offence at that point.
[10] The clear implication from this is that when he later said that none of the three aspects of the appellant’s driving that he described constituted dangerous driving on their own but that in combination in a short time and space they did, he was referring solely to mens rea. I am satisfied these comments constitute the separate analysis required by the cases to explain why there is a sufficient deviation from the standard of care that would be taken by a reasonable person in the same circumstances, namely a “marked departure”, to meet the fault or blameworthiness requirements of a conviction for dangerous driving.
[11] I also observe that the notion that the actus reus as well as the mens rea for dangerous driving can be established on the basis of a “marked departure” from normal standards of care was the minority position rejected by the majority of the court in Beatty. That case was given to the trial judge and was the subject of submissions. In addition, almost the entire submissions of the appellant’s trial counsel were focused on the need to deal with the actus reus and mens rea of the offence by distinct analysis. These are additional factors which support my determination that when his reasons are read as a whole the trial judge did not fall into the errors alleged.
[12] Moreover, the trial judge did take other relevant circumstances into account. After referring to Mueller in the context of determining that the actus reus had been established, the trial judge turned his attention to other aspects of the evidence. He referred to a number of differences or discrepancies between the evidence of the witnesses and he considered and rejected the appellant’s evidence as not credible.
[13] For all of these reasons I conclude I am unable to accept the appellant’s first group of submissions.
[14] The appellant also submits that the trial judge erred by failing to resolve what he characterizes as a major inconsistency in the evidence. The appellant testified he did not see flashing police lights or hear a siren behind him. The police officer testified that he was pursuing the appellant with the emergency lights and siren of the unmarked police car activated. Yet the civilian witness, Solomon Joseph, who testified that he made a left turn from Hedgerow Lane onto Glenashton Drive after his vehicle was almost struck by the appellant’s vehicle, did not see that. At the time Mr. Joseph turned onto Glenashton Drive the officer must have been approaching Hedgerow Lane on Glenashton Drive. The appellant submits the trial judge erred by failing to resolve this conflict in the evidence.
[15] I am unable to accept this submission. The trial judge indicated in his reasons that he was fully aware that Mr. Joseph did not notice a police car with lights and siren travelling on Glenashton Drive. However, there was no direct conflict that had to be resolved in order to decide the case. Mr. Joseph did not say he saw a police car but it did not have lights and siren activated. Had that been the case it would have been important to resolve the discrepancy. Mr. Joseph simply stated he did not see any police car with lights and siren activated, or otherwise. When Mr. Joseph turned left onto Glenashton Drive from Hedgerow Lane he was turning away from the direction the police officer was approaching from. The officer was some distance back. There was some evidence of other traffic on Glenashton Drive. That traffic may have obstructed Mr. Joseph’s view. While defence counsel at trial submitted it was strange that Mr. Joseph did not see the police car if the lights and siren were activated, he did not attack the credibility of the police officer on this basis.
[16] This discrepancy did not figure in the trial judge’s reasons for conviction one way or the other and it was not a discrepancy that had to be resolved given its nature and based on the manner in which the case was presented and defended.
[17] The appeal against conviction is dismissed.
F. Dawson J.
Released: July 8, 2014
COURT FILE NO.: SCA 159/13
DATE: 20140708
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ANDREAS BECK
Appellant
REASONS FOR JUDGMENT
F. Dawson J.
Released: July 8, 2014