



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Laine, 2015 ONCA 519


DATE: 20150709

DOCKET: C58184

Laskin, MacFarland and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Laine

Appellant

Joseph Di Luca and Erin Dann, for the appellant

Greg Skerkowski, for the respondent

Heard: May 26, 2015

On appeal from the convictions entered on July 12, 2013 and
    the sentence imposed on January 15, 2014 by Justice Myrna L. Lack of the
    Superior Court of Justice, sitting without a jury.

MacFarland J.A.:

A.      OVERVIEW

[1]

This appeal arises out of a tragic motor vehicle accident that took
    place on June 29, 2009. The appellant, who was then 21 years old, was driving
    home from his familys cottage with five friends. He was travelling southbound
    on Baseline Road in the City of Kawartha Lakes. As he approached the third
    curve on Baseline Road, a gradual curve to the left, he lost control of his
    vehicle and ultimately crashed into a hydro pole. Two of his passengers were
    killed and a third was seriously injured.

[2]

The appellant was convicted of two counts of criminal negligence causing
    death and one count of criminal negligence causing bodily harm. He was
    sentenced to four years imprisonment.

[3]

He appeals both his convictions and sentence.

[4]

For the following reasons, I would dismiss the conviction appeals. I
    would grant leave to appeal sentence and allow the sentence appeal.

b.      The facts

[5]

The appellant and five friends had been at his familys cottage, outside
    of Coboconk on Shadow Lake Road #8. The route home from the cottage travels along
    Shadow Lake Road #8 to Baseline Road, and then continues south on Baseline Road.

[6]

Baseline Road, where the accident occurred, is an asphalt road without
    painted lane markings or fog lines. There are small gravel shoulders on either
    side. It is narrow: Baseline Road is 5.48 meters wide in the vicinity of the
    accident, whereas a regular two-lane highway road is generally about 7.2 meters
    wide between the painted fog lines. At the time of the collision, the speed
    limit on Baseline Road was 80 km/h.
[1]


[7]

The appellants vehicle travelled approximately 1.7 km, or one mile, from
    the point where it entered Baseline Road to the accident location. In that
    stretch of Baseline Road, there are three curves. The first curve is a sharp,
    almost ninety degree, curve to the right (Curve 1). The second curve (Curve
    2) and the third curve (Curve 3) are more gentle curves to the left.

[8]

When the appellant turned onto Baseline Road, he accelerated. According
    to Kassandra Sheppard, one of the backseat passengers in the appellants
    vehicle, he accelerated so they could get the rush feeling when they went
    over hills, like on a roller coaster.

[9]

The appellant nearly had an accident at Curve 1. He was driving too
    quickly to clear it. To negotiate the curve, he encroached on the opposite lane,
    and had to swerve off the road onto the gravel shoulder to avoid an oncoming
    car. Coming out of Curve 1, however, he accelerated, and reached a speed of
    approximately 140 km/h. The passenger seated in the front, Carlito, egged him
    on and videotaped the events. At least one of his other passengers urged him to
    slow down.

[10]

As
    the appellant entered Curve 3, he lost control of his vehicle. Just before the
    accident, the appellants vehicle had been passed by a northbound vehicle
    occupied by the Meyer family. At Curve 3, the appellant ran off the west
    (right) side of the road, turned back onto the pavement and crossed over the
    road to the east side, where his vehicle flipped over and ultimately crashed
    into a hydro pole.

[11]

The
    positions of the parties were clearly set out by the trial judge at the
    beginning of her reasons as follows:

The prosecutions theory of criminal liability rests on
    establishing that Mr. Laine engaged in a pattern of driving so fast along the
    Baseline Road that he exceeded the critical curve speed on the third curve on
    the road and lost control of his vehicle, which was foreseeable in the circumstances,
    and caused the injuries and deaths.

The defence position is that there is no criminal liability. The
    defence contends that the collision was not caused because of Mr. Laines
    speed. Instead, the defence says Mr. Laine was forced off the road by the
    passing Meyer vehicle and when Mr. Laine was attempting to get back on the
    road, he tried to avoid a hydro pole at the west side of the road and lost
    control of his vehicle and hit the hydro pole on the east side of the road.

[12]

Officer
    Brad Pearsall, an expert called by the Crown, explained that the critical curve
    speed is the maximum speed at which a motor vehicle can negotiate a corner and
    remain centered within its own lane. The critical curve speed on Curve 3 was
    107 km/h, though Officer Pearsall observed that a vehicle with a higher centre
    of gravity, like the appellants SUV, could have a lower critical curve speed. A
    vehicle that exceeds the critical curve speed through Curve 3, a left-hand
    curve, will go off onto the west (right) side of the road way. The vehicle may
    be able to stay on the road by moving to the east (left) side of the road, into
    the opposite lane, as it enters the curve.

C.      THE REASONS BELOW

[13]

In
    lengthy and careful reasons, the trial judge thoroughly canvassed the evidence
    of each of the witnesses, including the appellant. After reviewing the evidence,
    the trial judge noted:

An overriding issue in this case is the credibility and
    reliability of all of the witnesses. I have considered each witnesss testimony
    for those features in the context of all of the evidence.

[14]

The
    trial judge then went on to analyze the evidence each of the witnesses had
    given. She considered the frailties alleged, inconsistencies with earlier
    statements, the conflicting evidence given by other witnesses, and the physical
    evidence at the scene, including grass patterns where the appellants vehicle
    left the road and the brake markings left on the asphalt. She explained why she
    accepted some evidence and rejected other evidence. She concluded:

I find that the Laine vehicle left the road because
    Mr. Laine drove at such an excessive speed that he exceeded the critical
    curve speed on Curve 3 and could not negotiate the curve, and that alone
    accounted for the ultimate impact with the pole. No reasonable doubt arises
    about this on any of the evidence, including Mr. Laines testimony. I am
    satisfied of this beyond a reasonable doubt on all of the evidence.

[15]

The
    trial judge then set out the test for criminal negligence and reviewed authorities
    involving charges of criminal negligence in the operation of a motor vehicle.
    There is no issue raised on this appeal that she misstated the law in any way.

[16]

She
    then applied the law to the facts as she found them and concluded:

Mr. Laine was familiar with Baseline Road to the extent that he
    had travelled on it many times throughout his life, albeit as a passenger. The
    trip on which the accident took place was at least the fourth time he had
    driven the road in two days, either coming or going. He had his drivers
    licence for less than a year. The marked speed limit of 80 kilometers an hour
    was too fast for Curve 1, but Curve 3 could have been safely travelled at that
    speed. The curves were marked. Curve 1 was very sharp, and two other curves
    followed it. The road was narrow, but not untypical of roads in cottage country.
    Mr. Laine only drove on the Baseline Road for a very short period of time,
    under two minutes. His manner of driving from the time he entered Baseline Road
    with five passengers in his care was a performance for the benefit of and at
    the encouragement of one of his passengers. He described his actions in
    speeding at various times as stupid. He felt that way at the time. He had a
    near-miss at Curve 1 when he had to swerve off the road to miss an oncoming
    car. Instead of heeding this as a warning of the consequences of his speeding,
    he sped up coming out of Curve 1 and reached a speed of at least 140 kilometers
    an hour. He knew what the road ahead was like. He drove into Curve 3 at a speed
    that exceeded the speed limit and the critical curve speed. He could not stay
    in his own lane, first driving in the oncoming lane and then going off the
    road. I am satisfied beyond a reasonable doubt that a person in similar
    circumstances would have been aware of the risk and danger involved in driving
    at the speed at which Mr. Laine drove on that road. His driving at the time was
    a marked departure and a substantial departure from the standard of care that a
    reasonable person would have exercised at the time.

The risks of what Mr. Laine was doing were very obvious to him
    and would have been obvious to anyone. By the time he went into Curve 3, he had
    already had a near-miss just moments before. He knew that it was stupid to
    listen to Carlito. He knew that his manner of driving was making at least one
    of his passengers uncomfortable. I find that he was told to slow down. No
    reasonable doubt arises on any of the evidence, including Mr. Laines evidence,
    and I am satisfied beyond a reasonable doubt on all of the evidence that Mr.
    Laines conduct in driving on Curve 3 as he did amounted to a wanton and
    reckless disregard for the lives or safety of others.

D.      THE GROUNDS OF APPEAL

[17]

The
    appellant raises five grounds of appeal. First, the appellant submits that the
    trial judge erred in her assessment and acceptance of the evidence of Kassandra
    Sheppard, one of the passengers in his vehicle. He says her evidence was
    unreliable.

[18]

Second,
    the appellant submits that the trial judge applied a more exacting standard of
    scrutiny to his evidence than she did to the evidence of other witnesses,
    particularly Ms. Sheppard.

[19]

Third,
    the appellant submits that the trial judge erred in failing to allow the
    defences application to re-open the trial following the Crowns closing
    submissions.

[20]

Fourth,
    the appellant submits that the verdicts are unreasonable.

[21]

Fifth
    and finally, the appellant appeals his sentence and submits that the trial
    judge erred in overemphasizing general deterrence.

E.      DID THE TRIAL JUDGE ERR IN ASSESSING Ms. Sheppards Evidence?


(a)     Overview of Ms. Sheppards
    evidence

[22]

In
    her testimony, Ms. Sheppard described the appellants driving from the moment he
    entered Baseline Road.

[23]

She
    said he was speeding so they could get the rush feeling when they went over
    hills. As the appellant turned into Curve 1  a nearly 90 degree right-hand
    curve  they met a vehicle coming in the opposite direction. Both vehicles were
    over the middle line by about a foot, she estimated, and the appellant swerved
    sharply to the right to avoid a collision.

[24]

The
    appellants arguments on appeal focus on three aspects of Ms. Sheppards
    evidence about the near-miss at Curve 1.

[25]

First,
    Ms. Sheppard testified that, when the appellant swerved sharply to the right at
    Curve 1, it felt like the drivers side of the vehicle lifted and that they
    were going to roll over to the right.  Second, Ms. Sheppard testified that,
    after they left Curve 1, she put on the middle seatbelt in the backseat because
    she feared an accident. Third, she testified that she looked at the speedometer
    shortly after they cleared Curve 1, and observed that the vehicle was
    travelling at about 140 km/h.

(b)     The tilting
    evidence

[26]

Officer
    Pearsall testified that, on Curve 1, the weight of the vehicle would have shifted
    to the drivers side and the drivers side would not feel like it was about to
    lift. That would only happen if the driver suddenly steered back the other way.

[27]

The
    appellant argues that Ms. Sheppards evidence cannot, on this point, be
    reconciled with that of Officer Pearsall. Again, Ms. Sheppard said it felt like
    the drivers side of the vehicle lifted when the appellant swerved to the right
    to avoid the oncoming vehicle.

[28]

The
    trial judge concluded that Ms. Sheppards evidence about the drivers side of
    the vehicle lifting was a perception on her part. Ms. Sheppard testified that
    she did not know whether the drivers side tires in fact left the ground; it
    merely felt that way. The trial judge concluded that, after steering off the
    road to the right to avoid the oncoming vehicle, the appellant would have had
    to re-enter the roadway to continue the journey. This would necessarily involve
    steering to the left as a matter of common sense. As Officer Pearsall
    testified, a sudden turn back to the left could have caused a sensation of the
    drivers side tires lifting.

(c)     The seatbelt
    evidence

[29]

Next,
    the appellant submits that the trial judge erred in accepting Ms. Sheppards
    evidence that she put on the middle backseat lap seatbelt. Officer Boyd testified
    that the middle backseat lap belt was found tucked in under the seat and
    retracted after the accident, without any loading marks. Had the seatbelt been
    worn, Officer Boyd testified, it would have locked into place after the
    accident and not retracted. Officer Boyd concluded that the middle backseat
    seatbelt was not in use at the time of the accident.

[30]

There
    were four people in the backseat of the appellants vehicle and only three
    seatbelts. Ms. Sheppards evidence was that she put on the middle seatbelt only
    after the near-miss at Curve 1, because she feared an accident. She also
    testified that, when she regained consciousness after the accident, she was no
    longer wearing her seatbelt. She found herself on the ceiling of the vehicle,
    pinned underneath the seat.

[31]

The
    appellant submits that, despite the evidence that Ms. Sheppard was not wearing
    a seatbelt at the time of the accident, the trial judge wrongly concluded that Ms.
    Sheppard was in fact wearing a seatbelt. This error is important, the appellant
    argues, because Ms. Sheppard testified that she put on the seatbelt because she
    was scared of the appellants driving. If Ms. Sheppards evidence about her
    seatbelt use was unreliable, all of her evidence about what occurred at Curve 1
    is called into question.

[32]

I
    disagree with the appellants characterization of the trial judges reasons. In
    my reading of the relevant passage, the trial judge never concluded that Ms.
    Sheppard in fact put on the middle seatbelt.  Rather, the trial judge concluded
    that, although Ms. Sheppard
thought
she put on the middle seatbelt,
    she in fact did not. What the trial judge said was:

I am convinced [Ms. Sheppard] took some action and thought she
    put on a seatbelt although she did not put on the middle seatbelt, as she
    thought.

[33]

Accordingly,
    I do not agree that the trial judge misapprehended this aspect of Ms.
    Sheppards evidence.

(d)     The speedometer
    evidence

[34]

Finally,
    the appellant submits that the trial judge erred in accepting
    Ms. Sheppards evidence that, when she looked at the speedometer shortly
    after the near-miss at Curve 1, she noted the speed registered at a notch
    above 140 [km/h]. Ms. Sheppard was firm on this point and was not budged in
    cross-examination. She had no doubt and had seen [the speedometer] with my own
    two eyes.

[35]

The
    trial judge accepted that after Curve 1, Ms. Sheppard looked at the speedometer
    and at that time it read between 140 and 145 km/h. Ms. Sheppard thought the
    vehicle was about fifty feet beyond Curve 1 when she looked at the speedometer.
    In view of Officer Pearsalls evidence, the vehicle would likely not have
    achieved such a speed until it was further along the straightaway between Curves
    1 and 2.

[36]

While
    Ms. Sheppard, who said several times during her evidence that she was not good
    at estimating distances, was mistaken about how far the vehicle was beyond
    Curve 1 when she observed the speedometer, it does not follow that her
    observation was inaccurate. Indeed, Officer Pearsall confirmed that it would
    be possible to reach 140 km/h on the straightaway between Curves 1 and 2.

[37]

In
    my view, the trial judge did not err in assessing Ms. Sheppards evidence. She
    weighed it, compared it with other evidence, considered inconsistences,
    accepted some and rejected some.

[38]

This
    is the role that trial judges have in our system of justice. It is for them to
    weigh and consider the evidence and make findings of fact. Absent a palpable
    and overriding error, and there is none here, this court will not interfere.

F.       DID THE TRIAL JUDGE APPLY A stricter standard of scrutiny to the
    appellants evidence than to the crowns evidence?

[39]

It
    is an error of law for a trial judge to subject the accuseds evidence to a stricter
    standard of scrutiny than the Crowns evidence:
R. v. J.S.W.
, 2013 ONCA
    593, 301 C.C.C. (3d) 252, at para. 56;
R. v. H.C.
, 2009 ONCA 56, 241
    C.C.C. (3d) 45, at para. 62.

[40]

The
    appellant argues that the trial judge was not troubled by problems with Ms.
    Sheppards evidence but, by contrast, found the appellant neither credible nor
    reliable, even when his evidence was in part supported by Ms. Sheppards
    evidence.

[41]

For
    example, Ms. Sheppard testified that, at Curve 3, the Meyer vehicle was partly
    in the appellants lane as it approached from the opposite direction.

[42]

The
    appellant also testified that the Meyer vehicle was in his lane and was the
    cause of the accident. The appellant said he had to turn off the road, to the
    right, to avoid a collision with the Meyer vehicle. This set in motion the chain
    of events that ended with the appellants vehicle crashed into the hydro pole.

[43]

As
    to Ms. Sheppards evidence on this point, the trial judge said:

I found her evidence that the Meyer vehicle was at least
    partially on Mr. Laines side of the road on Curve 3 to be confusing. She was
    uncertain about the extent of the overlap and her testimony changed. She
    appeared confused. In the end, she said she did not know where either vehicle
    was on the road.

[]

Ms. Sheppards evidence was that the Meyer vehicle was in the
    oncoming lane. Over the course of her testimony, she showed that she was
    confused about the location of the Meyer vehicle. In the end, she said she did
    not know exactly where the Laine or Meyer vehicles were on the road. In any
    event, I found her evidence on the issue of the location of the Meyer vehicle
    was not reliable. Her confusion perhaps is explained by the crowding phenomenon
    that Officer Pearsall spoke about.
[2]

[44]

In
    dealing with the appellants evidence on this point, the trial judge said:

Mr. Laine testified that he was forced off the road by the
    Meyer vehicle, which he said was driving in the middle of the road.

Mr. Laine testified that his action in leaving the road was a
    swerve. Later he said it was gradual and smooth. Later he said the movement was
    pretty decent big. His evidence was inconsistent. He could not seem to get it
    straight. It would make sense to me that a driver would swerve, make a pretty
    decent big movement to get out of the way of a vehicle encroaching in its lane.
    However, Officer Pearsalls evidence was that the tire marks he observed showed
    a gradual run-off of the Laine vehicle from the road and not the sharper angle
    of divergence that he would have expected if there had been a sharp steering
    manoeuvre to get off the road. Mr. Laines evidence did not accord with the
    physical evidence on the road.

[45]

The
    appellant submits that the trial judge rejected one aspect of Ms. Sheppards
    evidence  the evidence about the location of the Meyer vehicle  that could
    support the appellants version of events. However, the trial judge nonetheless
    accepted other aspects of Ms. Sheppards evidence, while she concluded the
    appellant was neither credible nor reliable. This demonstrates uneven treatment
    of the appellants evidence.

[46]

I
    do not accept this submission. There was more than simply the evidence of Ms.
    Sheppard and the appellant on the location of the Meyer vehicle. Mr. Meyer and
    Ms. Davis (Mr. Meyers spouse and passenger) both testified that the
    appellants vehicle approached theirs, initially in their lane of travel, and returned
    to its own lane as it passed the Meyer vehicle. Mr. Meyer estimated that the
    appellants vehicle was travelling at around 120 km/h. Officer Pearsall
    testified about the physical evidence at the scene, including the tire marks
    the appellants vehicle left as it ran off the west side of the road.  Office
    Pearsall also remarked on the way the grass appeared along the west side of the
    highway and the tire marks that the appellants vehicle left on the asphalt as
    it crossed from the west to the east side of the road. This evidence did not
    support the appellants version of events.

[47]

A
    trial judge is entitled to accept some, none or all of a witnesss evidence. It
    was open to the trial judge to accept some of Ms. Sheppards evidence but to
    reject her evidence on the point about the location of the Meyer vehicle before
    the crash.

[48]

Similarly,
    it was open to her to reject the appellants evidence. His evidence was
    internally inconsistent, as is demonstrated by the brief passage referenced in
    the trial judges reasons noted above. Furthermore, the trial judge was
    astound[ed] by the appellants lack of recall at trial. She concluded that he
    was evasive on key issues, including his driving speed on Baseline Road, and
    when he lost control of the vehicle.

[49]

These
    were matters for the trial judge to decide. Her job was to weigh and assess the
    evidence. That she preferred the evidence of certain witnesses over others does
    not demonstrate uneven treatment, nor does the fact that she accepted some of
    Ms. Sheppards evidence but not all. This is the prerogative of the trial
    judge.

[50]

I
    would dismiss this ground of appeal.

G.      DID THE TRIAL JUDGE ERR IN REFUSING to Permit the Defence to
    Re-open THE TRIAL?

[51]

The
    appellant submits that the trial judge erred in refusing to allow his application
    to re-open the trial following the Crowns closing submissions.

[52]

The
    appellant testified that, after he went off the west side of the road at Curve
    3, he accelerated in order to get back onto the road. In her closing
    submissions, the Crown said that the appellants evidence on his acceleration
    was fabricated and specifically intended in order to undermine [Officer
    Pearsalls] speed calculation.

[53]

Officer
    Pearsall had provided an estimate of how quickly the appellant was travelling
    when he entered Curve 3. His estimate was based on an assumption about how fast
    the appellant was travelling after he left the road. If the appellant in fact
    accelerated after he left the road, the effect would be to reduce Officer
    Pearsalls estimate of how quickly he was travelling when he entered Curve 3.

[54]

There
    was evidence available (a prior statement the appellant had given to police)
    that the appellant had said he accelerated while off the road, before he knew
    of Officer Pearsalls report  that is, before he had a motive to lie.

[55]

Prior
    consistent statements are generally inadmissible. However, they can be admitted
    in order to rebut an allegation of recent fabrication:
R. v. Jackson
,
    2013 ONCA 632, 301 C.C.C. (3d) 358, at para. 85, affd 2014 SCC 30, [2014] 1
    S.C.R. 672. Where it is alleged that a witness recently fabricated his or her
    testimony, the prior consistent statement has probative value because it
    indicates that the witnesss story was the same before the motive to fabricate
    arose:
Jackson
, at para. 85.

[56]

After
    closing submissions, the defence brought an application to re-open the trial. The
    defence sought to lead evidence of the appellants prior consistent statement
    in order to rebut the Crowns allegation of recent fabrication.

[57]

The
    appellant submits that, while the application to re-open would have been more
    compelling with a proper record that included the evidence of the prior
    consistent statement, and a transcript of the relevant portion of the Crowns
    closing submissions, the absence of those materials should not have been fatal to
    his application.

[58]

The
    record discloses that the Crowns allegation was fully and openly discussed.
    The appellant is correct that the allegation of recent fabrication arose for
    the first time during the Crowns closing submissions. The Crowns submission
    was improper. However, after a protracted discussion, the Crown agreed to
    withdraw her submission, as the following exchange indicates:

THE COURT:        I have not misunderstood the Crowns position
    on this, is that correct, that there is no allegation here of recent
    fabrication?

THE CROWN:       That is correct. That is, that I did not make
    any allegation of recent fabrication in my submissions, and nor was the issue
    raised at trial during cross-examination of Mr. Laine. That is correct.

THE COURT:        And if you said something that could be
    interpreted that way in your final submissions, I am not to interpret it that
    way.

THE CROWN:       Thats correct, yes.

[59]

The
    trial judge then concluded this discussion with the following:

This is a judge alone trial. Submissions are not evidence. I
    have not and will not consider this as a case of alleged recent fabrication. It
    does not arise on the evidence. What is alleged is fabrication, pure and simple.
    The application is therefore dismissed.

[60]

The
    appellant can point to nothing in the trial judges reasons to suggest that she
    did not do what she said she would do.

[61]

I
    do not accept this submission. As the trial judge herself noted, this was a
    judge-alone trial and she would not consider the case as one of recent
    fabrication. Her reasons demonstrate that she did not do so. I would not give
    effect to this ground of appeal.

H.      are the VerdictS
    unreasonable?

[62]

The
    appellant submits that the trial judges finding of criminal negligence was
    unreasonable.

[63]

He
    submits that the trial judge concluded that he exceeded the critical curve
    speed on Curve 3, and that is why he crashed into the pole. The appellant
    submits that this finding is not supported by the evidence. The expert evidence
    was that the appellants vehicle slightly exceeded the critical curve speed and
    did not need to slow down much to get back onto the road. The evidence was also
    that the appellant braked hard after returning to the road. Braking hard after
    returning, and losing control of the vehicle, were poor decisions by an
    inexperienced driver  not a wanton disregard for human life. Taking the expert
    evidence at its highest, the collision occurred after the appellant was driving
    20 or 30 km/h over the speed limit and failed to make a turn properly. This is
    not, he submits, criminal negligence.

[64]

A
    verdict is unreasonable or cannot be supported by the evidence if it is one
    that a properly instructed trier of fact, acting judicially, could not
    reasonably have rendered:
R. v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180,
    at para. 26. Appellate courts have somewhat broader scope to review the
    verdicts of trial judges, as opposed to juries, for unreasonableness, because
    trial judges give reasons for their conclusions:
W.H.
, at para. 26. The
    appellate court must consider whether there is evidence in the record to
    support the verdict, and whether the verdict conflicts with the bulk of
    judicial experience:
W.H.
, at para. 28;
R. v. F.C.
, 2015 ONCA
    191, [2015] O.J. No. 1437, at para. 38.

[65]

Furthermore,
    the test for criminal negligence requires the Crown to show that an accuseds
    conduct or omission constituted a marked and substantial departure from the
    conduct of a reasonably prudent person in the circumstances:
R. v. M.R.
,
    2011 ONCA 190, 275 C.C.C. (3d) 45, at para. 28. The marked and substantial
    departure standard applies to both the physical and mental elements of the
    offence:
M.R.
, at para. 29.

[66]

I
    would not give effect to this ground of appeal. In my view, the verdicts were
    not unreasonable.

[67]

The
    difficulty with the appellants position is that it focusses only on his
    conduct at Curve 3. However, in assessing whether criminal negligence is made
    out, the trier of fact should consider all of the circumstances surrounding the
    activity, including the manner in which the appellant drove, his age, and the
    instigation and encouragement of the activity he received from others:
R. v.
    J.L.
(2006), 204 C.C.C. (3d) 324 (Ont. C.A.), at para. 21.

[68]

The
    trial judges finding of criminal negligence was based on the appellants
    entire course of conduct while driving on Baseline Road. He began to speed and
    drove recklessly as soon as he got onto Baseline Road. He knew the road well:
    he had travelled on it many times throughout his life, albeit as a passenger on
    visits to his family cottage. The road was signed and he had personally driven
    it several times over the course of this visit.

[69]

The
    trial judge considered the appellants youthfulness and the fact that he was egged
    on by his front-seat passenger who was recording the event on video. However, the
    appellant had also been asked to slow down at least once and he knew that at
    least one of his passengers was uncomfortable with his speeding. Even the
    appellant concedes that his conduct was stupid.

[70]

This
    is not a case of an inexperienced driver who made a bad turn while going
    slightly over the speed limit. His speed was grossly excessive, 140 km/h at the
    time Ms. Sheppard observed the speedometer, on a narrow two-lane highway. Even
    after the near-miss at Curve 1, the appellant continued his wanton conduct
    without regard for the lives of those passengers in his vehicle or indeed
    others using the road. He was not chastened by the near-miss; instead, he
    increased his speed.

[71]

I
    see no basis to interfere with the trial judges conclusion that the
    appellants conduct constituted a marked and substantial departure from the
    conduct of a reasonably prudent person in the circumstances. The criminal
    negligence verdict is not unreasonable and is in accordance with the facts as
    the trial judge found them.

[72]

I
    would dismiss this ground of appeal.

I.        the sentence
    appeal

[73]

The
    appellant was sentenced to four years imprisonment, concurrent, on each of the
    three criminal negligence convictions.

[74]

He
    submits that the trial judge over-emphasized general deterrence in imposing these
    sentences.

[75]

The
    appellants wanton course of conduct likely occurred in less than two minutes,
    over a stretch of highway 1.7 km in length. Neither the distance nor the time
    involved were long, but the consequences were utterly devastating.

[76]

The
    families of the two young women who were killed as the result of the
    appellants conduct have lost their loved ones forever. Society has been
    deprived of all they might have been. Ms. Sheppard will always suffer from the
    serious injuries she sustained. Nothing the court can do will change or
    alleviate this suffering.

[77]

However,
    the court must fix the proper sentence for this offender, who committed these
    offences in these circumstances.

[78]

The
    appellant was 21 years of age at the time of the offences. He had had his G2
    drivers licence for about one year. No alcohol or drugs were involved in the
    offences. He had a minor highway traffic record, which the trial judge
    described as of no consequence. He had no criminal record.

[79]

In
    her reasons, the trial judge noted:

The case law shows that the predominant objectives in
    sentencing an individual for crimes of this nature are deterrence and
    denunciation.

[]

I have serious concerns about imposing a penitentiary sentence
    on a first offender such as Mr. Laine who is relatively young and obviously
    immature. Nevertheless, these are the very people who could be deterred by the
    prospect of a substantial sentence for recklessly disregarding the safety of
    others while driving.

[80]

The
    appellant is a first offender who has never been incarcerated prior to these
    offences. In
R. v.
Priest
, (1996), 30 O.R. (3d) 538 (C.A.), at
    p. 545, Rosenberg J.A. said:

[I]t is a well-established principle of sentencing laid down by
    this court that a first sentence of imprisonment should be as short as possible
    and tailored to the individual circumstances of the accused rather than solely
    for the purpose of general deterrence.

[81]

While
    the appellant was not, strictly speaking, a youth at the time of the offence,
    he was nevertheless still youthful, in that he was only 21 years old. As
    Rosenberg J.A. noted at p. 545 of
Priest
:

[T]he term youthful offender refers not simply to
    chronological age and must include some consideration of the offenders
    maturity.

[82]

The
    trial judge specifically noted the appellants immaturity.

[83]

Furthermore,
    at p. 546, Rosenberg J.A. commented that:

[T]his emphasis on individual deterrence rather than general
    deterrence [is] particularly applicable in the case of a youthful first
    offender.

[84]

In
    her reasons noted above, the trial judge emphasized the principles of
    deterrence and denunciation. While she had concerns about imposing a
    penitentiary term on a first offender, she concluded that people in the
    appellants position are the very people who could be deterred by a
    substantial sentence.

[85]

As
    this court recently noted in
R. v. Brown
,
2015 ONCA 361, [2015] O.J. No. 2655, at para. 7:

The primary objectives in sentencing the youthful first time
    offender remained individual deterrence and rehabilitation. In balancing the
    factors, the sentencing judge still had to impose the shortest term of
    imprisonment that was proportionate to the crime and the responsibility of the
    offender, given his young age.

[86]

As
    the trial judge noted, the appellant was, according to his stepmother, an
    honest, good kid with little ambition who is immature and disorganized. At the
    time of his sentencing, he was enrolled at Seneca College full-time taking a digital
    media course.

[87]

The
    appellants crimes are serious and a custodial sentence is required. However, the
    sentence imposed by the trial judge appears to have been mainly intended to
    deter others who might be inclined to drive as the appellant had driven. It
    appears that general deterrence was overemphasized, and this was an error that
    permits this court to intervene:
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500,
    at para. 90.

[88]

In
    my view, given the appellants youth, the circumstances of the offence, the fact
    that no alcohol or drugs were involved, the appellants efforts to rehabilitate
    himself, and the support offered by his family, the appropriate sentence would
    be two years less a day. I would vary the sentence accordingly.

J.       DISPOSITION

[89]

In
    the result, I would dismiss the conviction appeal. I would grant leave to
    appeal sentence and allow the sentence appeal in accordance with these reasons.

Released: July 9, 2015 JL

J.
    MacFarland J.A.

I
    agree John Laskin J.A.

I
    agree Paul Rouleau J.A.





[1]
The speed limit has since been reduced to 60 km/h.



[2]
Officer Pearsall described the crowding phenomenon in his evidence: in a narrow
    curved roadway, it may appear to a driver that an oncoming car is encroaching
    onto the drivers lane.


