



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mitchell, 2019 ONCA 284

DATE: 20190409

DOCKET: C64305

Doherty, Pepall and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Mitchell

Appellant

Jill D. Makepeace, for the appellant

Jennifer A.Y. Trehearne, for the respondent

Heard and released orally: April 5, 2019

On appeal from the conviction entered by Justice L.M.
    Walters of the Superior Court of Justice, dated June 1, 2017 and the sentence
    imposed on August 17, 2017.

REASONS FOR DECISION

[1]

We are satisfied that the conviction appeal must be dismissed.

[2]

It was open to the trial judge to accept Mr. Millers evidence.
    Mr. Miller did, as the trial judge pointed out, have the best vantage point.
    Mr. Millers evidence was confirmed in some respects by the evidence of other
    witnesses who saw some of the events leading up to the accident. His evidence
    was also confirmed in material respects by the accident reconstruction witnesses
    called.

[3]

Mr. Millers evidence was inconsistent in some
    relatively minor ways with the evidence of other witnesses. Mr. Miller was also
    clearly wrong in his evidence about the point of impact on the appellants
    vehicle at the time of the accident. The trial judge was alive to all of this
    evidence and referred to it in her reasons. Despite the shortcomings in Mr.
    Millers evidence, his evidence, considered as a whole, could reasonably be accepted
    by the trial judge. It was open to her to accept that evidence, particularly as
    it related to the specific movements of the two vehicles immediately before and
    at the time of the accident. That was the crucial evidence.

[4]

We see no error in the treatment of the
mens
    rea
component of the offence. The trial judge properly
    identified the applicable legal principles with reference to the controlling
    authorities. The trial judges findings of fact, in our view, determined the
mens
    rea
issue. Based on those findings, the appellant clearly
    had the
mens rea
required
    for the offence.

[5]

Turning to the sentence
    appeal, in our view, 18 months was in the range of appropriate sentences,
    having regard to the nature of the offence and the circumstances of the
    offender.

[6]

We see no error in
    principle in the trial judges reasons. Specifically, we do not think the trial
    judge erred in having regard to the seriousness of the offence, including its
    impact on the victims family in considering and determining the appropriate
    sentence. We do not understand the trial judge to have treated that factor as
    both relevant to the seriousness of the offence and then again as a separate
    aggravating factor on sentence.

[7]

We will not interfere
    with the 10-year driving prohibition. We agree with the submission for the
    Crown that in considering the fitness of the driving prohibition, the court
    must look at the entirety of the sentence imposed, including both the period of
    imprisonment and the period of the driving prohibition. Viewed from that perspective,
    we see no error in principle in the imposition of a 10-year driving
    prohibition.

[8]

The appeal from conviction
    and the appeal from sentence are dismissed.

Doherty J.A.

S.E. Pepall J.A.

B. Zarnett J.A.


