OSHAWA COURT FILE NO.: CR-16-14164 DATE: 20181114 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – LEVAR LEWIN Defendant/Appellant

Counsel: Michael Hill, for the Crown Mark Halfyard, for the Defendant/Appellant

HEARD: October 3, 2018

REASONS FOR DECISION

DE SA J.:

Overview

[1] The Appellant argues that his conviction for dangerous driving should be set aside. He submits that while his driving may have been aggressive or even “careless”, there was no basis for the trial judge’s finding that his driving represented a “marked departure” from the standard expected of a reasonably prudent driver in the circumstances. According to the Appellant, the trial judge set the bar too low.

[2] I disagree with the Appellant. The Appellant’s driving was dangerous and presented a clear and ongoing risk to other drivers around him. I see no error in the trial judge’s analysis.

[3] The appeal is dismissed. The reasons for my decision are outlined below.

Summary of Facts

[4] On October 8, 2015, the Appellant was under police surveillance in relation to an ongoing drug investigation. During the course of that surveillance, the Appellant had been observed by police driving in an extremely aggressive and dangerous manner.

[5] The Appellant cut across two lanes of traffic causing other vehicles to jam their brakes to avoid a collision. He drove on the shoulder of the 401 highway at a high rate of speed (150 -170 km per hour) while other traffic was at a standstill. He even ran a stale red light causing other vehicles to stop in the intersection.

[6] The nature of the driving made it clear that the Appellant was not merely making errors in the course of his driving. He was driving extremely aggressively. And his aggressive style of driving was creating danger for others around him.

[7] In describing the Appellant’s driving, one of the surveillance officers commented:

I found it dangerous enough that even, yes, I am in the Gun and Gang Unit but we’re talking, I’ve had hundreds of investigations and hundreds of targets and thousands of hours in driving over a course of over six and a half years in there and I can tell you this was the first time that it was my wish that we should take a target at this point.

[8] The Appellant called no evidence at trial and provided no explanation for the aggressive nature of his driving. At the close of the case, the trial judge convicted the Appellant. In giving his reasons, the trial judge explained:

Viewing the incident of the 8th of October, the evidence of the three officers, Constable Gill, Stelwagen, and Carpenter satisfy me that the manner in which Mr. Lewin was operating his motor vehicle meets the test that I have to apply for the actus reus. The driving was in my view dangerous, having regard to the nature and condition of the highway and the amount of traffic that was or might reasonably be expected to be on the highway.

Mr. Lewin was northbound on Brock Street. He cut across two lanes of traffic causing other vehicles to take evasive action. He almost clipped the front of a following vehicle. He then traveled on the shoulder at excessive rates of speed of 150 to 160 to 170 kilometres per hour on the observation of three separate officers from different viewpoints. He also describes exiting at Simcoe Street and then going north and then west on the 401 going through a red light. In my view, all of those actions that took place in one simultaneous piece of driving. I’m satisfied that meets the test of actions that amount to dangerous driving.

Was there a marked departure? In my view manifestly there was. We have the evidence of the officers of the traffic that was interfered with as he was northbound on Brock Street making a sudden turn to go right onto the 401. He is then traveling at an excessive rate of speed on the shoulder, which is not designed for that speed. The 401 at the best of times in the travelled portion is designed for 100 kilometres an hour. Mr. Angelini was persistent in his attempt to say that it’s just another lane that’s not being used but the reality is that it’s not a lane for traffic. Now this is the 401, heavily traveled. It is a high-speed multi-lane highway designed to move high volumes of traffic in as little time as possible. And the least amount of inattention can cause significant accidents, pile-ups between 15, 20, maybe even 30 vehicles, all because of a moment’s inattention. This is not doing doughnuts in a parking lot. I am mindful that the weather and the road conditions in terms of the weather played no part in this consideration but this evidence satisfied me beyond a reasonable doubt that Mr. Lewin was operating a vehicle in a dangerous fashion and he would be found guilty and convicted for that offence. [Emphasis added.]

Appellant’s Position on Appeal

[9] The Appellant argues that his driving was careless and contravened the Highway Traffic Act (HTA) but was not egregious enough to constitute a “marked departure” such that it was criminal. According to the Appellant, there was no basis for finding that the Appellant had the requisite mens rea. As such, the verdict is an unreasonable one.

Analysis

General Principles

[10] Section 249(1) of the Criminal Code provides:

249 (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is 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 at that place;

[11] The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place.

[12] The mens rea looks to the degree of care exercised by the accused in carrying out the driving. The fault component flows from the fact that the accused has exhibited a “marked departure” from the norm expected in the circumstances. The conduct of the accused is measured against that which is expected of a reasonably prudent driver in the circumstances.

[13] Momentary inattention, carelessness or simple errors in judgment that may cause a degree of danger to the public in the context of driving are not sufficient. Human beings are not perfect, and accordingly the standard must be sufficiently high to account for this reality. In R. v. Roy, 2012 SCC 26 the Supreme Court explained this at paras. 30 and 31:

A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

From at least the 1940s, the Court has distinguished between on the one hand, simple negligence that is required to establish civil liability or guilt of provisional careless driving offences and, on the other hand, the significantly greater fault required for the criminal offence of dangerous driving. This distinction took on added importance for constitutional purposes. It became the basis for differentiating, for division of powers purposes, between the permissible scope of provincial and federal legislative competence as well as meeting the minimum fault requirements for crimes under the Charter of Rights and Freedoms (O’Grady v. Sparling, Mann v. The Queen). Thus, the “marked departure” standard underlines the seriousness of the criminal offence of dangerous driving, separates federal criminal law from provincial regulatory law and ensures that there is an appropriate fault requirement for Charter purposes. [Emphasis added.]

[14] The conduct of the accused, in the circumstances, must be sufficient to warrant criminal sanction. As explained in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 28, summarizing R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49:

The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from the norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [Emphasis added.]

[15] While a simple error in judgment will be excused, the further the conduct departs from the behaviour of a reasonably prudent driver, the more likely the offence will be made out. For example, driving at high speeds in a school zone where children are known to frequent will be a much clearer example of dangerous driving than simply speeding. At the same time, extreme speeds on an empty freeway can also be sufficient to make out the requisite standard. The assessment is very much a contextual one and is driven by a consideration of all the circumstances.

[16] The duration of the impugned driving will often be a relevant factor when considered in conjunction with the nature of the driving at issue. The longer the accused engages in driving that imposes danger to the public makes it less likely that the driving will be excused as a mere error in judgment. In such instances, the conduct approaches that of recklessness, and becomes more evidently a marked departure from what is expected of a reasonably prudent driver in the circumstances.

[17] Obviously, if the accused is simply reacting to another vehicle which pulls in his way, if the vehicle gave mechanical problems, or the roadway presented a problem that was not foreseeable, such circumstances will factor into the analysis. Similarly, if the accused has a heart attack, or some other condition that negates the requisite intent, an acquittal will be in order. As explained in Hundal, supra, at paras. 38 and 39:

There will be occasions when the manner of driving viewed objectively will clearly be dangerous yet the accused should not be convicted. Take for example a driver who, without prior warning, suffers a totally unexpected heart attack, epileptic seizure or detached retina. As a result of the sudden onset of a disease or physical disability the manner of driving would be dangerous yet those circumstances could provide a complete defence despite the objective demonstration of dangerous driving. Similarly, a driver who, in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly affects the driver in such a way that the manner of driving was dangerous to the public, could still establish a good defence to the charge although it had been objectively established. These examples, and there may well be others, serve to illustrate the aim and purpose of the modified objective test. It is to enable a court to take into account the sudden and unexpected onset of disease and similar human frailties as well as the objective demonstration of dangerous driving. [Emphasis added.]

[18] Driving is an inherently dangerous activity. If one chooses to drive, he/she is expected to exercise adequate care. The Crown does not have to prove the accused intended to endanger the lives or safety of anyone else who was or might have been there at the time. The conduct (marked departure) is measured objectively against that of a reasonable person in the accused’s circumstances. [1] See R. v. Romano, 2017 ONCA 837.

[19] 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. As explained in R. v. Hundal, [1993] 1 S.C.R. 867 at paras. 26-28:

[T]he test for negligence is an objective one requiring a marked departure from the standard of care of a reasonable person. There is no need to establish the intention of the particular accused. The question to be answered under the objective test concerns what the accused “should” have known. The potential harshness of the objective standard may be lessened by the consideration of certain personal factors as well as the consideration of a defence of mistake of fact. See McIntyre J. and Lamer J., as he then was, in R. v. Tutton, [1989] 1 S.C.R. 1392, and R. v. Waite, [1989] 1 S.C.R. 1436). Nevertheless, there should be a clear distinction in the law between one who was aware (pure subjective intent) and one who should have taken care irrespective of awareness (pure objective intent). [Emphasis added]

Application to the Facts of this Case

[20] According to the Appellant, drivers routinely engage in aggressive and high speed driving, including fast lane changes and budding in front of traffic. In this case, the trial judge’s ruling does not adequately distinguish “aggressive driving” from “dangerous driving”. The Appellant takes the position that the driving was “careless” at best. According to the Appellant, the trial judge’s approach casts the net far too broad. If the trial judge’s position were accepted, far too many drivers would be labelled with the stigma of a criminal conviction.

[21] The Appellant’s submission fails to appreciate the contextual analysis employed in assessing the nature of the conduct/driving at issue. The actus reus and the mens rea together are what ensure that only conduct with sufficient gravity is caught by the criminal provision.

[22] If the driving itself is not dangerous to the public, the Crown will fail to establish the actus reus of the offence. If the manner of driving causes danger to the public, but the accused was exercising reasonable care in the circumstances, the mens rea will not be made out. However, where the manner of driving causes danger to the public, and the accused’s conduct reflects a “marked departure” from the standard of care employed by a reasonably prudent driver in the circumstances, the conduct of the accused becomes sufficiently blameworthy to warrant criminal sanction.

[23] Clearly, in this case, both elements of the offence were made out. The accused, by his driving, was creating a danger to the safety of members of the public. Moreover, his driving reflected a marked departure from the standard of care expected of a reasonably prudent driver in the circumstances. This was not a momentary lapse of judgment, or a single unsafe lane change. It was not akin to the normal mistakes made by drivers in their everyday driving. This was a course of driving that fell well outside the acceptable range and presented an ongoing risk to others drivers.

[24] There was no evidence tendered by the Appellant to provide an explanation for the dangerous driving which clearly presented an ongoing risk to other drivers and pedestrians.

[25] I find no error in the trial judge’s analysis.

[26] The appeal is dismissed.

Justice C.F. de Sa

Released: November 14, 2018

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – LEVAR LEWIN Defendant/Appellant REASONS FOR DECISION Justice C.F. de Sa

Released: November 14, 2018

Footnotes

[1] Much like careless storage/use of a firearm under section 86(1) of Criminal Code, if one chooses to engage in an inherently dangerous activity, they must exercise adequate care.