



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Ferguson, 2014 ONCA 673

DATE: 20140930

DOCKET: C58504

Epstein, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Ferguson

Appellant

David C. Besant, for the appellant

Jennifer Crawford, for the respondent

Heard: September 22, 2014

On appeal from the conviction entered on December 3, 2013
    and the sentence imposed on February 25, 2014 by Justice L. Chester of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

On January 27, 2012, at approximately 8:00 p.m., the appellant was
    driving his car westbound when, without warning, he crossed the centre line of
    the road and struck an oncoming vehicle, injuring its two passengers.  At the
    time, the appellant was in the midst of a breakup with his girlfriend and was
    feeling suicidal. Immediately after the impact, the appellant was heard to yell
    that he wanted to die and was found in the drivers seat, slashing his wrists.

[2]

The appellant was charged with dangerous driving causing bodily harm and
    criminal negligence causing bodily harm. He was acquitted of the second charge
    and convicted of the first.  He received a 90 day intermittent sentence with
    one year probation and a two year driving prohibition.

[3]

The appellant appeals both conviction and sentence.

[4]

With respect to conviction, the appellants primary position is that the
    trial judge erred in his analysis of the
mens rea
component of the
    offence of dangerous driving causing bodily harm and that the verdict is
    unreasonable.  The appellant also submits that the trial judge erred in
    rejecting his testimony that the accident was the consequence of a momentary
    lapse of attention that took place on an icy road.  The appellant also asserts
    that the trial judge erred in failing to give sufficient reasons for finding
    his evidence not credible.

[5]

With respect to sentence, the appellant argues that the trial judge
    erred in taking into consideration as an aggravating factor the intention of
    the appellant to commit the offence, when no such finding was made at trial,
    and that the sentence was excessive.

THE CONVICTION APPEAL

[6]

There is no issue over the
actus reus
.  Viewed objectively, the
    appellants failure to confine his car to his own lane was dangerous to other
    users of the road.

[7]

The trial judge reviewed the leading cases of
R. v. Roy
, [2012]
    2 S.C.R. 60 and
R. v. Beatty
, [2008] 1 S.C.R. 49, in which the Supreme
    Court considered the
mens rea
element of the offence of dangerous
    driving.  In accordance with the guidance provided in these decisions the trial
    judge instructed himself that a finding that the nature of the driving was
    dangerous was not sufficient to ground a conviction.  The Crown had to prove
    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 accuseds
    circumstances:
Beatty
, at para. 43.  The trial judge found that the
    Crown had met this burden.  This finding was open to the trial judge on the
    evidence.

[8]

According to
Beatty
at paras. 47 and 48, and
Roy
at
    paras. 34-40, all of the circumstances must be considered in determining
    whether the accused had the necessary
mens rea
for the offence. If the
    evidence establishes that the driving constituted a marked departure from the
    norm, the trier of fact must consider evidence about the accuseds actual state
    of mind, if any, to determine whether it raises a reasonable doubt about
    whether a reasonable person in the accuseds position would have been aware of
    the risk his conduct created:
Beatty
at para. 49.

[9]

The appellants position at trial and on appeal was that, in the absence
    of  evidence of a pattern of dangerous driving preceding the collision, the
    appellants swerving over the centre line was consistent with a momentary lapse
    of attention, and from that conduct alone the necessary
mens rea
could
    not be inferred.

[10]

In
    his detailed reasons, the trial judge reviewed the evidence relevant to the
    appellants state of mind.  Critically, the trial judge did not accept the
    appellants testimony that the collision was caused by a momentary lapse and
    explained why. The trial judge set out his concerns about the appellants
    demeanor, the improbability of some of his testimony and the difficulties
    presented by the conflict between his trial testimony and his statement to the
    police the day after the accident.  We see no reason to interfere with this
    finding.

[11]

In
    the light of the trial judges rejection of the appellants evidence as to the
    cause of the accident, and the evidence of the surrounding circumstances, the
mens
    rea
element of the offence was made out.


[12]

It
    follows that we find no error in the trial judges finding the appellant guilty
    of dangerous driving causing bodily harm.

THE SENTENCE APPEAL

[13]

In
    his reasons for sentence, the trial judge identified several aggravating
    factors, the first of which was his finding that the appellant deliberately
    crossed the centre line.  This constitutes an error as the trial judge, in his
    reasons for conviction, made no such finding and the Crown did not, in the
    course of the sentencing proceeding, seek to prove this beyond a reasonable
    doubt as required by
R. v. Gardiner
, [1982] 2 S.C.R. 368, at pp.
    415-17.

[14]

As
    a result of this error the sentence imposed is not entitled to the deference it
    would normally attract.  This court is in the position to determine a fit
    sentence, taking into account the applicable sentencing principles,
    particularly specific and general deterrence.

[15]

While
    the appellant is a youthful first offender, the offence is serious and the
    consequences in this case, particularly those experienced by one of the
    victims, a young child, are also serious.  While the trial judge erred by
    including an unproven matter as an aggravating factor, we are nonetheless of
    the view that the sentence is fit.

DISPOSITION

[16]

For
    these reasons, the conviction appeal is dismissed.  Leave to appeal sentence is
    granted and the sentence appeal is dismissed.

Gloria
    Epstein J.A.

K. van
    Rensburg J.A.

M.L.
    Benotto J.A.


