Court File and Parties

COURT FILE NO.: 16-SCA-8796 DATE: 2017/07/18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. ANDREW MILLER

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: Jonathan Thompson, for the Respondent/Crown Ryan G. Venables, for the Appellant/Defendant

HEARD: July 7, 2017

Endorsement on Appeal

[1] The appellant appeals from his conviction of dangerous driving contrary to section 249(1) of the Criminal Code of Canada following a trial presided over by Justice Epstein of the Ontario Court of Justice on May 6, 2016. The appellant also appeals against the sentence imposed following his conviction, consisting of a fine of $1,000.00, plus a victim fine surcharge of $300.00 and an eighteen month driving prohibition.

[2] A number of key issues were conceded at the commencement of the trial including the date, time and location of the alleged offence, the jurisdiction of the Court, the identity of the appellant and the fact that he had been operating a motor vehicle. The only issue requiring determination by the court was whether the appellant’s manner of driving was dangerous to the public as provided by s. 249(1)(a) of the Criminal Code.

Facts

[3] Three witnesses testified on behalf of the Crown, namely Police Constables William Hand, Kevin Vankuik and Jeff Cooper of the Waterloo Region Police Service (WRPS). The appellant did not testify.

[4] On the morning of August 30, 2015, PC Hand, PC Vankuik and PC Cooper were standing with Sergeant Schmelzle, also of the WRPS, in the parking lot of 550 Hespeler Road (the “property”) in the City of Cambridge, having just finished breakfast at Angel’s Diner. The evidence indicated that these police officers met for breakfast as a platoon at Angel’s Diner every 30 to 35 days. The three officers who testified at trial were therefore familiar with the scene at the property. PC Hand testified that on a regular Sunday morning after 9:00 a.m., being the same time as the incident, he would expect upwards of 20 cars in the parking lot with regular pedestrian traffic. He estimated that there were fifteen cars and ten pedestrians in the parking lot at the time of the incident.

[5] The officers observed the appellant entering the parking lot of the property driving a 1977 Ford F-150 pickup. They were alerted to the appellant’s vehicle by the noise from the engine. The officers observed the vehicle accelerating and fishtailing a number of times. Smoke was coming off one or both of the tires. The officers testified that the vehicle was travelling at a high rate of speed, estimated at between 60 to 80 kms/hr. The acceleration of the vehicle resulted in a 16.4 metre “acceleration” mark being left on the pavement.

[6] The appellant’s vehicle continued towards the parking area of Angel’s Diner where the officers were standing. The officers managed to get the appellant to stop his vehicle before it reached the parking area of the diner, where there were pedestrians present. PC Hand put himself into the path of the vehicle, yelled and signalled the appellant to stop, whereupon the appellant abruptly stopped the vehicle about 10 metres from where the officers were standing.

[7] The appellant was then arrested by PC Hand, to whom the appellant made the following utterances, acknowledged to have been voluntary: “I’m sorry, I didn’t think there would be anyone around” and “I was just showing off to my friend that was behind me.” The appellant subsequently provided two suitable samples of his breath, yielding results of 60 and 65 milligrams of alcohol per 100 millilitres of blood, respectively.

Findings Of The Trial Judge

[8] The trial judge, in his review of the evidence, made the following findings:

(a) Each of the officers who testified were disturbed and concerned about the appellant’s manner of driving, and two of them expressed concern for their own safety and for the safety of others who were in the area or who might be expected to be in the area;

(b) On the basis of the appellant’s voluntary statements, his manner of driving was intentional, and he was rather surprised to find that there were vehicles and pedestrians in the parking lot;

(c) On the basis of the breath samples provided by the appellant, he had been drinking and had alcohol in his system while driving in the manner described;

(d) Although evidence on the speed of the vehicle varied, on all accounts if was far too fast and was excessive in the circumstances;

(e) There is no question that the appellant’s vehicle fishtailed and was therefore out of control in the parking lot;

(f) Even after fishtailing there was acceleration by the appellant as he continued to travel through the parking lot;

(g) The test for dangerous driving is whether or not the driving in the case at bar represented a marked departure from what one would expect of a reasonably prudent driver in similar circumstances bearing in mind what one could reasonably expect the conditions to be, not just what the conditions were. Each case depends upon a contextual analysis;

(h) As a general rule, parking lot driving requires added care in the manner of driving;

(i) There were a number of people in the parking lot in the area of the restaurant at least; there were cars, and pedestrians in the area, including a family;

(j) It was reasonable to expect that the parking lot at that time on a Sunday morning would have pedestrian and vehicular traffic;

(k) The appellant intentionally pulled into the parking lot, showing off, travelling at an extremely high rate of speed and caused his vehicle to fishtail, lose control, burn rubber, screech its tires;

(l) The appellant’s manner of driving represented a marked departure from what one would expect of a reasonably prudent driver in the circumstances.

Grounds Of Appeal

[9] The appellant relies upon the following grounds of appeal against conviction:

(a) The trial judge erred in finding facts which were unsubstantiated by the evidence;

(b) The trial judge erred in concluding that the appellant’s operation of the motor vehicle was dangerous;

(c) The trial judge erred in differentiating and/or distinguishing relevant case law which should have guided his decision.

Ground No. 1 - Finding Facts Which Were Unsubstantiated By The Evidence

[10] The appellant in his Factum submitted that the trial judge misapprehended the evidence by:

(a) not appreciating that the fishtailing of the vehicle occurred only upon the entrance of the vehicle and at the start of the parking lot and did not continue beyond a short time;

(b) equating the breaking of the vehicle’s tire traction with the vehicle being out of control;

(c) by failing to balance the evidence of the three police officers and in particular the evidence of PC Vankuik and PC Cooper that the appellant’s vehicle was free from obstruction by vehicles and pedestrians between the entrance of the parking lot and where the police officers and other pedestrians may have been;

(d) failing to give effect to the evidence of PC Cooper that the appellant was slowing upon finishing the fishtails as he was travelling toward the area where the officers were situated;

(e) finding that the appellant accelerated his vehicles after fishtailing and giving weight to this finding, when it was not supported by the evidence;

(f) not properly analyzing the evidence of the officers in its entirety to show that during the fishtails no vehicles and pedestrians were at risk; and

(g) giving weight to a finding that it should have been reasonably expected that the parking lot would have pedestrian and vehicular traffic.

[11] The only basis by which the trial judge was stated to have misapprehended the evidence that was pursued in oral submissions was in relation to his finding that the appellant accelerated his vehicles after fishtailing.

[12] I would not give effect to this ground of appeal. The appellant is essentially asking this court to re-try the case and to substitute certain findings of fact for the findings of fact and the inferences drawn by the trial judge.

[13] As directed by the Supreme Court of Canada in H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 40 at para. 4, an appeal court “may substitute its own view of the evidence and draw its own inferences of fact where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence.” Moreover, a summary conviction appeal court may only substitute its own findings where there was an error of magnitude warranting the setting aside of the trial decision, contrasted with merely superficial errors (see R. v. Barton, [1993] O.J. 2873 (C.A.) at paras. 8-9).

[14] The appellant has not shown that Justice Epstein made any palpable or overriding errors in the findings of fact he made or the inferences that he drew. Even if it can be successfully argued that his finding that the appellant accelerated following the fishtailing may not have been supported by the evidence, any error in that respect was not of a magnitude that justifies the setting aside of the trial decision. In consideration of the manner of the appellant’s driving in its entirety and in particular his findings of fact that the speed of the vehicle was excessive in the circumstances, that the vehicle had been fishtailing and was out of control, Justice Epstein’s conclusion that it represented a marked departure from what one would expect of a reasonably prudent driver in the circumstances is supported by the balance of the evidence and was not entirely dependent for its foundation on a finding that the appellant accelerated following the completion of the fishtailing.

Ground No. 2 - Concluding That The Appellant’s Operation Of The Motor Vehicle Was Dangerous

[15] The appellant submits that the variables and inconsistencies in the testimony of the police constables who testified at trial are enough to establish that the actions of the appellant, looked at in their totality, do not amount objectively to actions which were dangerous to the public having regard to the circumstances. The appellant says that, although his vehicle did fishtail a number of times and did travel quickly through the parking lot, no person or property was ever at risk, as demonstrated by the appellant's ability to slow and stop properly in a safe manner when directed to do so by the police.

[16] I would not give effect to this ground of appeal. The appellant did not dispute that the trial judge enunciated the correct test to be utilized in a determination of dangerous driving under s. 249(1)(a) of the Code, as laid down by the Supreme Court of Canada in R. v. Beatty, 2008 SCC 5, 2008 S.C.C. 5 at para. 43. The application of the evidence to the legal test involves a question of mixed fact and law. As held by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 36, matters of mixed fact and law lie along a spectrum, in terms of the appropriate standard of review on appeal. Where, as here, the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, the general rule is that it should not be overturned absent palpable and overriding error.

[17] I am unable to find any palpable or overriding error in the trial judge’s interpretation of the evidence and the application of the test for a finding of dangerous driving to the evidence. It was open to the trial judge to find, as he did, that there were a number of people in the parking lot in the area of the restaurant at least and there were cars and pedestrians in the area, including a family. It was reasonable to expect that the parking lot at that time on a Sunday morning would have pedestrian and vehicular traffic.

Ground No. 3 - The Trial Judge Erred In Differentiating And/Or Distinguishing Relevant Case Law Which Should Have Guided His Decision

[18] The appellant argues that Justice Epstein erred in distinguishing the case of R. v. Kubik, [2006] O.J. No. 425 (S.C.J.), a decision of McGarry, J. who allowed an appeal from a conviction for dangerous driving involving driving in a parking lot.

[19] I would not give effect to this ground of appeal. Justice Epstein noted that in Kubik the accused was found to have been performing “controlled donuts” in the parking lot, whereas the appellant in the case at bar was driving in a manner in which was out of control at times. Justice McGarry was also careful to note that the trial judge in Kubik misapprehended the evidence in finding that there was excessive speed when there was no evidence to substantiate that position. In the present case there was evidence that the appellant was driving at an excessive rate of speed. In my view, whether the standard of review on this issue is correctness or palpable or overriding error, Justice Epstein did not err in distinguishing Kubik in the manner that he did.

Appeal From Sentence

[20] The appellant does not take issue with the monetary fine imposed by Justice Epstein, restricting his submissions to the imposition of an 18 month driving prohibition, asserting that it was excessive.

[21] The appellant provided no authorities suggesting that a driving prohibition of 18 months was outside of a reasonable range. In imposing an 18 month driving prohibition Justice Epstein took into account the appellant’s record of two previous drinking and driving convictions and the aggravating factor that there was drinking involved in the case at bar, albeit not to the point of impairment. I am unable to find that Justice Epstein erred in imposing the sentence that he did.

Disposition

[22] For the reasons set forth above, the appeal against conviction and sentence is dismissed.

D.A. Broad, J. Date: July 18, 2017