nan 2001 SKQB 473 Q.B.A. A.D. 2001 No. 003 J.C.B. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: LAWRENCE MATCHEE and HER MAJESTY THE QUEEN RESPONDENT Michael W. Owens for the appellant William R. Campbell for the respondent JUDGMENT October 25, 2001 BALL J. [1] The appellant was convicted on August 8, 2000, of dangerous driving contrary to s. 249(1)(a) of the Criminal Code and sentenced on January 2, 2001, to a fine of $1,200 plus a surcharge of $180 and an 18-month driving prohibition. He appeals his conviction and sentence. Conviction Appeal [2] The grounds of appeal with respect to the conviction are as follows: 1. The evidence does not support guilty verdict for dangerous driving. 2. That the learned Trial Judge misinterpreted the law with respect to the required elements that must be proven when considering charge of "dangerous driving." 3. That the learned Trial Judge erred when he applied the test of R. v. Stellato to the "marked departure" consideration that the Supreme Court of Canada in R. v. Hundal [1993], C.S.R. 867, held to be the prevailing test when determining whether driving can be termed "dangerous" according to the Criminal Code of Canada. The Applicable Law [3] S. 249(1) of the Criminal Code provides: Everyone commits an offence who operates (a) motor vehicle in 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; [4] The proper standard to be applied to charge under s. 249(1) was established by the Supreme Court of Canada in R. v. Hundal (1993), 1993 CanLII 120 (SCC), 79 C.C.C. (3RD) 97, at page 108: It follows then that trier of fact may convict if satisfied beyond reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in manner that was "dangerous to the public, having regard to all the circumstances..." In making the assessment, the trier of fact should be satisfied that conduct amounted to marked departure from the standard of care that reasonable person would observe in the accused's situation. [5] There must be such marked departure from the standard of care of reasonable person that it can be said beyond reasonable doubt that the driving was dangerous. (See R. v. Rajic (1993), 1993 CanLII 3423 (ON CA), O.J. 819 (Ont. C.A.); R. v. Bartlett (1998), 1998 CanLII 2998 (ON CA), 15 C.R. (5TH) 35 (Ont. C.A.); v. Fiest (1991), 1991 CanLII 7648 (SK QB), 92 Sask. R. 318; and R. v. Holland (N.G.) (1992), 1992 CanLII 8322 (SK CA), 105 Sask R. 122 (C.A.)) [6] Upon convicting the appellant, the learned trial judge made the following comments: In all of these circumstances, must ask myself whether applying the test in Stellato, Mr. Matchee's driving was departure from the norm, and have to say, at the end of the day, think it was. The law doesn't require any longer than Mr. Matchee's departure be marked departure, but in my view, pursuing the vehicle as he did, in the circumstances he did, close enough that at whatever speed he was driving, he managed to run into the back of this other vehicle, amounts to more than mere lapse in attention such as would be required for finding of driving without due care and attention under the provincial legislation, and shades over the line, in my view, albeit perhaps not far over the line but far enough that one ought to, and do, properly characterize it as dangerous driving, and in those circumstances find him guilty as charged. Though to be clear, as have said, it is on his version of events, and not the full Crown description with multiple rammings and so forth. [7] With respect, it was incorrect for the learned trial judge to say that the standard to be applied to charge of dangerous driving is whether the driving "was departure from the norm," and that "the law doesn't require any longer that Mr. Matchee's departure be marked departure." That is not the correct standard to be applied to charge of dangerous driving under s. 249(1)(a) of the Code. [8] R. v. Stellato (1994), 1994 CanLII 94 (SCC), 31 C.R. (4TH) 60, 90 C.C.C. (3 RD) 160 (S.C.C.), affirming 1993 CanLII 3375 (ON CA), 78 C.C.C. (3RD) 380 (Ont. C.A.), dealt with the offence of impaired operation of motor vehicle. Its conclusion that the Crown need only establish proof of any degree of impairment and need not establish a marked departure from normal behaviour did not apply to a charge under s. 249 of the Code. [9] Simple judgmental errors in routine driving do not constitute conduct amounting to a "marked departure" from the standard of care required. Mere negligence is not sufficient, nor is driving without due care and attention. The application by the learned trial judge of the Stellato principle to a charge of dangerous driving under s. 249(1) of the Code was an error in law. The Evidence [10] Where an appeal is taken from summary conviction, the Court may dismiss the appeal if, notwithstanding wrong decision by the trial court on question of law, no substantial wrong or miscarriage of justice has occurred. (See s. 822(1) and s. 686(1)(b)(iii) of the Code) Thus, it remains to be determined whether the evidence accepted by the learned trial judge supported his decision to convict the appellant. [11] The learned trial judge made number of findings of fact. In doing so, he gave the benefit of any reasonable doubt to the accused. At the same time, he accepted the evidence of the two Crown witnesses in respect of factual matters not dealt with by the accused in his evidence. At page 85 of the transcript the learned trial judge stated: When listened to the first Crown witness, Timothy Iron, was impressed. His evidence was given in straight-forward fashion. was left with an impression that he was not embellishing, making things up to fill in gaps in his memory or anything like that. Certainly, the evidence is clear that he, and for that matter the other witnesses, were none of them drinking on this occasion, and so no one's ability to experience the events would be impaired by alcohol. While it's true that Timothy Iron was confronted with discrepancies or apparent discrepancies between what he said to the police in his written statement and what he said today in court, the re-examination conducted by Crown counsel satisfied me that part of the reason for that lies, first of all, in the fact that Mr. Iron had no resort to his written statement before testifying here today, and secondly, that many of the items were that were omitted in his statement were things that he wasn't asked about by the police, so what appeared on the face of it should be discrepancy often resolved itself into something less. And so, as say, found Timothy Iron to be believable witness, and would say that his credit, his believability at the conclusion of his evidence was as strong as it was when he began. Ryan Stewart Iron falls roughly into the same category, in my view. He was little less careful in the testimony that he gave, but that was not marked, and it was certainly not enough to suggest to me that he was not doing his best to tell the truth. The accused's evidence, while it troubles me in some respects, in particular his reference to the convenient damage which he says he discovered upon coming out of the dance at 2:00 o'clock in the morning, to the rear of his vehicle, providing as it does an innocent explanation as to how the vehicle became thus damaged, as opposed to it becoming damaged because he did what the Crown witnesses said he did, while am troubled in several respects by the accused's evidence, and while this case, applying the tests am to apply, is very, very close to the line, cannot say, in all conscience, that am able to completely reject what the evidence-what-the evidence that the accused has given. It might reasonably be true, and in that circumstance he is entitled to the benefit of that, and to be-have his guilt or innocence determined on his version of events. Well, what does that version consist of around the issue of dangerous driving? accept and agree with the characterization of Mr. Matchee's conduct, as Crown counsel put it in closing submissions moment ago. believe that Mr. Matchee was angry when he came out of the arcade and viewed missing tapes, and was of the opinion they had been taken by the occupants of vehicle which he saw leaving the parking lot. believe he was determined to try and recover the property and to confront those he believed had taken it. To that end, am satisfied that, initially through his agent, Willie, and thereafter himself, he gave chase. In the course of that chase collision occurred between the two vehicles, which Mr. Matchee described as "tap" of the back bumper of the car he was pursuing. He said that occurred at moment in the pursuit-my word, not his- when he thought the car was slowing down, thought it was going to stop, and while he didn't say this, took the "tap" to be miscalculation on his part about the speed the car and the truck were going, that it was inadvertent. In Mr. Matchee's evidence, there was no description as to the length of travel over which this pursuit occurred, nor is there any evidence about the speed that was attained, other than the reference he made early in his evidence to the fact that his car had sped out of the parking lot at high rate of speed. There's nothing in his evidence to suggest how fast he went to pursue them, nor over what route, nor the speed that he was going, nor the time of the chase. On the other hand, Mr. Matchee was not asked in particular about other users of the road, but in accepting that his version of events might reasonably be true, it is not necessary for me, and in fact in my view not appropriate for me, to reject the evidence of the Crown witnesses about the other users of the road, most of that being pedestrian traffic. Indeed, Mr. Matchee himself, asked whether he had ever managed during this pursuit to draw abreast of the car, explained that he could not do that because the roads were crowded because there was hockey game on and there were other-too many other vehicles along the roadside, and so forth. [12] As noted by the learned trial judge, the evidence given by the accused did not address how fast he was going (when asked, he answered that the speedometer in his truck was not working ), nor over what route, nor the time of the chase. However, there was ample evidence on those issues from the two Crown witnesses. [13] The driving which led to the charge occurred at night on October 23, 1999. The accused gave chase to an automobile driven by the first Crown witness, Timothy Iron. The vehicles travelled at high speed (the accused acknowledged that they were travelling "fast") both on and off two-lane gravel road. number of pedestrians, including children, were present on the road. During the chase, the two vehicles collided with enough force to dent the rear bumper on the Iron vehicle. [14] The accused did not deny the Crown witnesses' description of the force of the impact or the presence of others. During cross-examination he gave the following answers at page 81 of the transcript: You heard Timothy Iron testify that when he was hit from behind, it was hard enough that his head kind of snapped and his hat fell off. Do you think you hit the car ahead of you that hard? If did, I'm really sorry. never meant to. never meant to maim or hurt anybody, just wanted my property. Did you ever get beside the car with your truck? No. You're sure of that? It's too narrow. They had hockey game going on. And what did that have to do with you getting beside the They park right around the whole arena, just enough for person to drive around to make it out if you were not going to if you were leaving the game. [15] The question is whether the evidence found by the trial judge established both the mens rea and actus reus of the offence beyond a reasonable doubt. In my view, his findings of fact established that the appellant's driving conduct did amount to a marked departure from the standard of care a reasonable person would exercise in those particular circumstances. [16] It was not necessary for the Crown to prove that the accused intended to collide with the automobile driven by Timothy Iron in order to prove the offence of dangerous driving. Whether or not collision occurred, and whether or not the accused intended to collide with the other motor vehicle, were only aspects of the totality of the accused's conduct. The test is whether a reasonably prudent driver in the circumstances ought to have been aware of the risk and of the danger involved in his driving conduct. [17] The accused engaged in a planned and deliberate course of conduct when he gave chase to the automobile driven by Mr. Iron. His course of conduct continued over a significant distance at a high rate of speed at night with children and other pedestrians in the vicinity. It was not necessary for the Crown to establish that the collision with the Iron vehicle caused significant damage or, for that matter, that a collision occurred at all. Thus, the trial judge's acceptance of the accused's assertion that the collision was inadvertent did not mean that the Crown had failed to prove the necessary mens rea. [18] In conclusion, I find that by applying the wrong standard the learned trial judge committed an error of law, but that no miscarriage of justice occurred. Accordingly, the appeal against conviction is dismissed. When the correct standard as enunciated in R. v. Hundal, supra, is applied to the evidence found by the trial judge, the conviction was appropriate Sentence Appeal [19] The appellant appeals the sentence imposed by the trial judge on the basis that it did not take into account the mitigating circumstances, case law or sentencing principles. The appellant does not question the amount of the fine and surcharge imposed by the learned trial judge. However, he questions whether the 18-month prohibition from driving was excessive in the circumstances. [20] The appellant is employed as a truck driver and therefore he relies upon his operator's licence to earn a living. Counsel for the appellant points out that the accused gave chase to the Timothy Iron motor vehicle because he believed its occupants had stolen some tapes from the accused's vehicle. Although the appellant was convicted in June of 1997 for refusal to provide a breath sample under s. 254(5) of the Code and a conviction for .08 under s. 253(b) of the Code in 1989, counsel notes that alcohol was not a factor in this case. [21] Counsel points out that the accused's conduct was at the low end of the continuum of conduct constituting dangerous driving such that it was described by the trial judge as being just "shades over the line." He notes that there was little damage to either motor vehicle and that no personal injuries occurred. [22] Counsel for the accused suggests that the learned trial judge may have been at some disadvantage because he sentenced the accused approximately five months after the trial without having benefit of his trial notes, fact confirmed at page 91 of the transcript. Nevertheless, he notes that at page 99 of the transcript the learned trial judge stated as follows: He says that he has learned from the experience, and believe him when he says that. He strikes me today as thoughtful individual, one with relatively good life. He is earning an income for his family, he is steadily employed. He obviously enjoys good reputation in the community else the chief of his First Nation would not be writing letter of support for him. [23] The prohibition from driving for 18 months imposed by the Court is consistent with the prohibition generally imposed where conduct constituting dangerous driving has resulted in bodily injury or death or, at the very least, serious property damage. Although the accused was convicted for refusal to provide a breath sample two years prior to his conviction for dangerous driving, alcohol was not a factor in this matter. Crown counsel acknowledges that in circumstances of the kind before the Court, one would anticipate driving prohibition of less than the 18 months imposed. [24] In my opinion, a prohibition of 18 months was excessive. In the circumstances a prohibition of nine months' duration is more appropriate and I so order. The fine of $1,200 and surcharge of $180 imposed by the trial judge is confirmed.
The appellant appealed his conviction for dangerous driving (Criminal Code s.249(1)(a)) and sentence of a $1,200 fine, $180 surcharge, and 18 month driving prohibition. In issue was whether the evidence found by the trial judge established both the mens rea and actus reus beyond a reasonable doubt. The sentence appeal was brought on the ground it did not take into account mitigating circumstances, case law or sentencing principles. HELD: The appeal against conviction was dismissed. The driving prohibition was reduced to 9 months. The fine and surcharge were confirmed. 1)By applying the wrong standard, the trial judge committed an error of law, but no miscarriage of justice occurred. When the correct standard, as enunciated in Hundal, is applied to the evidence as found by the trial judge, the conviction was appropriate. 2)The application of the Stellato principle to a charge of dangerous driving under s.249(1) was an error in law. The conclusion that the Crown need only establish proof of any degree of impairment and not a marked departure from normal behaviour does not apply to a charge under s.249. Simple judgmental errors in routine driving do not constitute conduct amounting to a marked departure from the standard of care required. Mere negligence or driving without due care and attention are not sufficient. 3)The accused's evidence did not address how fast he was going (he stated his speedometer was not working) nor over what route or the time of the chase. There was ample evidence on those issues from the two Crown witnesses. 4)The findings of fact established the appellant's driving conduct did amount to a marked departure from the standard of care a reasonable person would exercise in those circumstances. The test is whether a reasonably prudent driver in the circumstances ought to have been aware of the risk and of the danger involved in his driving conduct. The accused engaged in a planned and deliberate course of conduct when he gave chase and continued over a significant distance at a high speed at night with children and other pedestrians in the vicinity. It was not necessary for the Crown to establish the collision caused significant damage or that a collision occurred at all. The acceptance of the accused's assertion that the collision was inadvertent did not mean the Crown failed to prove the necessary mens rea. 5)An 18 month prohibition was excessive. The conduct was at the low end of the continuum. He was employed as a truck driver and relied on his operator's licence to earn a living. He chased the other vehicle because he believed its occupants stole tapes from his vehicle. Although he was convicted for refusal to provide breath samples 2 years ago, alcohol was not a factor here.