COURT FILE NO.: SCA(P)0003/17
DATE: 2018 05 15
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL COURT)
B E T W E E N:
HER MAJESTY THE QUEEN
R. Levan, Counsel for the Crown
Respondent
- and -
ADITYA MADAN
A. Little, Counsel for the Appellant
Appellant
HEARD: Feb 2, 2018
REASONS FOR JUDGMENT
(On appeal from the conviction and sentence of Justice J.J. Keaney)
D.E HARRIS J.
INTRODUCTION
[1] In this summary conviction appeal from his conviction for dangerous driving, the appellant argues that the trial judge’s reasons do not live up to the standard established by the Supreme Court of Canada in R. v. Sheppard 2002 SCC 26, [2002] S.C.J. No. 30. According to the appellant, the trial judge failed to resolve and explain critical evidentiary conflicts. The reasons do not inform the appellant why he was found guilty.
[2] I disagree with the appellant’s position. It is true that the trial judge’s reasons did not explore and resolve some of the factual disagreements upon which this trial was fought. However, viewed in context, these disagreements were insignificant. The failure to address them comes to nothing. It is clear why the trial judge concluded as he did and what evidence he relied upon to do so.
THE TRIAL EVIDENCE
[3] The appellant was driving home on Highway 403 with his wife at about 1:00 a.m. on November 14, 2015 from a wedding anniversary party. He came upon a long line of stopped cars. The arresting officer testified that the police had stopped traffic in both directions around the Dundas Street exit to permit work crews to run wires in the area of an overpass. The police had parked their cars across the three westbound 403 lanes. The officer testified that there were well over a hundred cars at a standstill behind the roadblock and that some people had gotten out of their cars.
[4] The officer testified that the appellant passed the roadblock on the shoulder of the highway. The officer pulled out and pursued the appellant’s vehicle. The appellant did not stop immediately but eventually did pull over.
[5] The officer testified that his emergency lights and siren were activated during the pursuit. Because the appellant did not initially pull over despite the police siren and lights, the officer drove parallel to him on his left in order to get his attention. The officer observed the appellant staring straight ahead with a “thousand-yard stare”, appearing oblivious to the situation. Eventually the appellant pulled over 100 to 150 metres from the Dundas Street exit.
[6] The appellant testified in his own defence. The trial judge acquitted the appellant on charges of “over 80” and impaired driving but convicted him of the dangerous driving. It was the appellant’s evidence that he drank three bottles of beer over the course of the evening, the last one between 11:15 p.m and 11:30 p.m. The appellant and his wife left the party at 12:20 a.m. for their home because their younger son had called to say he and his brother had been fighting and asked them to return home.
[7] The appellant testified that he was waiting in the line of cars for 4-5 minutes and then, because he had to urinate and because his son had asked him to come home, he pulled out and drove along the shoulder at a speed of 80 kilometres an hour towards his exit. Based on the evidence, it was at the most 1.7 kilometers away but probably considerably less. The appellant admitted that this was not a good decision. The appellant said that he had never driven on the shoulder in this way before on the 403 but he had seen other drivers do it.
[8] The appellant was not aware of the police roadblock until he was upon it and passed the police cars. There was a large truck that had blocked his view. It was his testimony that he was not immediately aware of the officer in pursuit because he was playing loud music.
THE TRIAL JUDGE’S REASONS
[9] The trial judge said the following in his reasons for finding the appellant guilty:
While seated in his cruiser, the officer observed the accused pass the stopped vehicles, travelling at high speed on the shoulder. He drove past the cruiser, which had emergency lights operating. The officer pursued the accused at high speed and activated his siren. The pursuit lasted more than a minute. The officer describes the situation as urgent.
When beside the accused operator he noted what he describes as the, "Thousand yard stare". The driver made no acknowledgement of the officer's presence. The officer testifies that at this point the vehicles were travelling at about 110 kilometres per hour.
The officer considered the situation to be highly dangerous. He did not know where the workmen ahead were. He was just about to effect a controlled collision in order to bring the accused's vehicle to a stop when the accused brought his car to a stop. Both sides of the divided highway would have been completely absent of any other vehicles during the time of this pursuit.
[The appellant] acknowledges driving on the shoulder. He acknowledges seeing the activated emergency lights. He says traffic was okay until he was past Burnhamthorpe, then he saw hundreds of cars and trucks. He waited four minutes, then made the decision to pass on the shoulder. He now concedes that was a bad decision. He thought it was a big accident ahead, perhaps at the Ford plant at the Queen Elizabeth Way. He says he slowed when he saw the police cruiser with flashing lights blocking the traffic but, nevertheless, kept driving. He could not hear the sirens over the loud music from his radio.
The standard to be applied consists of a modified objective test. That is whether, viewed objectively, the accused was driving in a manner that was dangerous to the public? This requires a determination that the driving conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation.
The officer testified that while maintaining the roadblock, he had had to exit his vehicle to caution other drivers who had exited their stopped vehicles on the highway to return to their cars for their own safety. There were workers on the highway at some unknown point ahead of this roadblock. The danger to them presented by the accused's driving, compelling P.C. Michel to commence the pursuit to the point that he was about to put his wellbeing in danger to effect a controlled collision stop.
I accept the officer's evidence that throughout the accused appeared oblivious. The lack of care must be serious enough to merit punishment. If an explanation is offered by an accused, and in order to convict, the trier of fact must be satisfied that a reasonable person, in similar circumstances, ought to be aware of the risk and of the danger involved. I find that to be the case here. The accused's operation of the motor vehicle in this fashion, in the circumstances as described, amounts to a marked departure.
THE ALLEGED FLAWS IN THE REASONS
[10] The Appellant argues that the trial judge abdicated his duty to inform him and the wider public of his reasons for the finding of guilt. Specifically, the judge failed to, 1. Resolve the contest between the Crown and defence concerning the speed of the appellant’s vehicle. The police officer testified that the appellant was driving at an estimated 100-110 kilometres an hour; the appellant testified that he was driving at 80 kilometres an hour; 2. Determine the duration of the pursuit by the police officer. The officer testified that the pursuit was less than a minute; the appellant said it was 20 to 25 seconds; 3. Conclude whether the appellant left the shoulder and drove in the right hand lane for a period of time. The police officer testified that appellant drove in the right lane for a moment while going past the road block but then drove on the highway shoulder; the appellant testified that he drove only on the shoulder; and 4. The trial judge failed to settle the issue of whether there actually were workers in the immediate vicinity of the appellant’s vehicle or whether there were people out of their cars who might have been put in danger by the appellant.
[11] Included under 2. was the argument that the trial judge misapprehended the evidence when he concluded that the officer’s pursuit of the appellant lasted more than a minute. It is true that the trial judge did get this wrong. The officer’s actual evidence was that the pursuit was less than a minute but he could not say within this time parameter exactly how long it was.
THE LAW
[12] Justice Binnie’s judgment in Sheppard broke new ground for judge alone criminal trials. While before Sheppard, a smattering of judicial comment had suggested judicial reasons were on rare occasions required, the courts had displayed stubborn resistance towards instituting a general duty to give reasons in criminal cases.
[13] The Supreme Court finally recognized in Sheppard the vital function of reasons in maintaining the legitimacy of the judiciary. Decision making which hides the reasoning process from view is vulnerable to lurking questions and may encourage whispers of public criticism. The notion that because the decision was uttered from the mouth of a judge and therefore must be correct and respected is a thing of the past.
[14] The serious consequences of decisions in the criminal law area requires that a judge justify at least to come extent why they have decided the way they have. As Justice Binnie said in Sheppard at para. 53 “…giving reasons is part of the job of a professional judge and accountability for the exercise of judicial power demands no less.” Reasons are the primary means of persuading the parties and the public that the decision made is correct and was arrived at by a fair process.
[15] The value promoted by judicial reasons is accountability. A duty to give reasons makes the courts accountable to the public and to the parties, especially the losing party, the most important person in the courtroom: R. v. Brown 2002 CanLII 41599 (ON CA), [2002] O.J. No. 3882, 165 O.A.C. 36, 170 C.C.C. (3d) 37 (C.A.) per Catzman J. at paras. 32-34. It is inevitable that not everyone will agree with the decision but at least the road leading to it will be clear and hopefully demonstrate integrity, logic and careful consideration of the live issues.
[16] After Sheppard, it is the obligation of the appeal courts to determine whether the trial judge has fulfilled his or her duty to be accountable to the parties and the public. The test has been framed as a question of whether the appellant’s right to review can be meaningful exercised. If the reasons do not grapple with the live issues the verdict must be vacated and a new trial ordered. An exception is made for a case in which the appeal court can step in for the trial judge and explain to the parties what lies behind the decision.
[17] A free-standing deficiency in the reasons is not enough; it must be shown that the deficiency has led to real prejudice to the appellant’s right to an effective appeal: R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903 (S.C.C.) at para. 31; R. c. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 25-26: R. v. Capano 2014 ONCA 599, [2014] O.J. No. 3829 at paras. 51, 78-79; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 (S.C.C.), at para. 10; R. v. Lagace 2003 CanLII 30886 (ON CA), [2003] O.J. No. 4328, 178 O.A.C. 391, 181 C.C.C. (3d) 12 (C.A.) at para. 31.
WHAT WERE THE ISSUES AT TRIAL?
[18] Reasons do not live and breathe in the abstract. Writing reasons is problem solving. Reasons should be focussed on working through and deciding the matters of dispute between the litigants.
[19] A trial judge’s reasons must be geared to the contentious issues between the parties whether they be factual, legal or both. Trial evidence by itself is an inert, undifferentiated mass of information. It is the issues which give the evidence form and meaning in order to render a decision.
[20] The duty to give reasons jurisprudence repeatedly emphasizes that reasons must be responsive to the context of the evidence and the issues. It is a functional, pragmatic assessment: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 at paras. 37, 40-41; Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, [2007] 3 S.C.R. 129, 2007 SCC 41 at para. 101; R. c. Dinardo at para. 25: R. v. Capano at para. 50. Accountability is not a fixed concept; it has different requirements depending on the evidence and the issues.
[21] It is to the live issues that an appellate court faced with an insufficiency of reasons ground of appeal must first look. Because the test is a functional one, different evidentiary records and different live issues require a different approach to reasons. Justice Binnie said in Sheppard:
46 … where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal.
[22] In his summary at para. 55, Justice Binnie reiterated the point in slightly different language:
- Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record, even without being articulated.
[23] This appeal illustrates the opposite side of Justice Binnie’s requirement that the more contentious and difficult an issue, the more attention is required in the trial judge’s reasons. In this appeal, by virtue of the constituent elements of dangerous driving and the evidence of the police officer and the appellant, the duty to give reasons was not an onerous one.
[24] It is important to outline the elements of dangerous driving because the elements, on this record, provide the framework for the reasons. The act element is driving that viewed objectively, is dangerous to the public in view of all the circumstances. The mental element or fault requirement is whether the driving is a marked departure from the standard of care a reasonable driver would have exercised in the same circumstances: R. v. Roy 2012 SCC 26, [2012] 2 S.C.R. 60 at paras. 33-38.
[25] The appellant concedes that the guilty verdict is not unreasonable under Section 686(1)(a)(i) of the Criminal Code. The fact of the matter is that the evidence in this case aligned strongly against the appellant. This was a strong Crown case. Driving at night at high speed on the shoulder of a major Ontario highway past lines of stopped traffic is inherently dangerous. Perhaps the most conspicuous danger is that another impatient driver exercising poor judgment could pull out on to the shoulder without looking. The results could have been catastrophic. Another potential scenario is the appellant losing control of his vehicle while on the shoulder. A shoulder is not meant for driving at normal highway speed. A collision into the stopped cars is not difficult to envisage. As well, other dangers can easily be imagined.
[26] Addressing the appellant’s specific complaints, I would add the following remarks.
WHAT WAS THE SPEED OF THE APPELLANT’S VEHICLE?
[27] The trial judge did not give reasons on this question and we can assume that he did not resolve the speed discrepancy. This was understandable. Whether the appellant was driving 80 kilometres an hour as he testified or 100-110 kms\hr as the officer did, was of no real moment. Both are in the same realm of dangerousness. It was unnecessary for the trial judge to determine which was true and apply the reasonable doubt standard to the credibility issue that arose.
[28] If the disagreement had been between the driver going 100 kilometres an hour according to the police officer and 15 kilometres according to his own evidence, the trial judge would have been obligated to resolve the evidentiary conflict in his reasons. But in this case, there was no obligation to resolve what was in context a minor disagreement.
THE DURATION OF THE PURSUIT
[29] The appellant said it was between 20-25 seconds while the officer said it was less than a minute. The trial judge made a factual error when he said in his reasons that the police officer testified it was more than a minute.
[30] Based on the appellant’s evidence and the officer’s evidence taken together, the duration of the pursuit was at least 20-25 seconds. This was qualitatively, in view of the dangerous driving elements, not materially different than a pursuit of a minute or so. The error made by the trial judge was not an essential part of the reasoning and played no significant part in the decision: R. v. Lohrer 2004 SCC 80, [2004] 3 S.C.R. 732 at paras. 2-3.
[31] It should be remembered that the pursuit by the officer was only at the tail end of the appellant’s driving on the shoulder. He had bypassed the long line of cars behind the road block first. It was only when he got to the head of the line, where the police officer had blocked traffic, that the pursuit began.
DID THE APPELLANT’S VEHICLE LEAVE THE SHOULDER?
[32] The factual issue of whether the appellant drove for a few seconds in the right lane rather than on the shoulder the whole time was insignificant and had no bearing on his culpability. There was no need for the trial judge to address it.
WERE PEDESTRIANS IN THE AREA?
[33] The police officer testified that there were some people out of their cars at some point and he told them to get back in. The officer also testified that because there was work being done around the overpass, he assumed that there would have been workmen present in the general vicinity. The trial judge mentioned this evidence in his reasons.
[34] The evidence of the police officer, taken at its highest, suggested that there was a risk that pedestrians might have been in the area. I would not characterize this as a particularly high risk. In my view, this issue was largely superfluous. If there was evidence that there were pedestrians and a reasonable driver ought to have seen them, this could strengthen the Crown’s case. But the case was formidable enough without this.
CONCLUSION
[35] The judge’s principal task in light of the virtual agreement between the evidence of the police officer and the appellant was narrow. It was to apply to the evidentiary record the elements of dangerous driving as defined by the Supreme Court of Canada.
[36] In view of what was a formidable Crown case, this was not a difficult task. It was based on the following uncontested points: 1. Driving at night on the shoulder of a major highway for a considerable distance; 2 At a least 80 kilometres per hour; 3. Sidling by a long line up of cars which were stationary; and 4. Being oblivious to a police cruiser with its flashing lights on driving parallel to the appellant at 80 kilometers an hour.
[37] As can be seen from the trial judge’s reasons reproduced above at paragraph 9, the trial judge recounted the trial evidence and then concluded that in the circumstances the appellant’s driving was objectively dangerous and constituted a marked departure from the reasonable driver. The conclusion that the driving was dangerous in the circumstances based the evidence reviewed by the trial judge was more than reasonable. It was also a marked departure from the standard of a reasonable driver. The risk was not inherent, it was the sole creation of the appellant.
[38] The trial judge’s path to these conclusions is crystal clear. His reasons were not deficient. Justice Binnie in Sheppard holds that the failure to give reasons may contribute to the three potential grounds for appellate intervention on a conviction appeal as set out in Section 686(1)(a) of the Criminal Code: i. Unreasonable verdict; ii. Error in law; and iii. Miscarriage of justice: Sheppard at paras. 34-47. None of these three grounds of appeal are implicated here.
[39] For these reasons, the appeal is dismissed.
D.E HARRIS J.
Released: May 15, 2018
COURT FILE NO.: SCA(P)0003/17
DATE: 2018 05 15
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL COURT)
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ADITYA MADAN
Appellant
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: May 15, 2018