



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Markos, 2019 ONCA 80

DATE: 20190206

DOCKET: C63505 & C63639

MacPherson, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Haytham Markos

Appellant

Peter Brauti and Joseph Wilkinson, for the appellant

Jennifer Epstein, for the respondent

Heard: December 17, 2018

On appeal from the conviction entered on January 10, 2017
    and the sentence imposed on March 24, 2017 by Justice Edward M. Morgan of the Superior
    Court of Justice.

REASONS FOR DECISION

I.

OVERVIEW

[1]

Late on the afternoon of April 6, 2016, the appellant, Haytham Markos,
    was driving a motorcycle northbound on Yonge Street in Toronto. He collided
    with a southbound SUV that was turning left at the intersection of Yonge Street
    and Pleasant Boulevard. As a result of that collision, Mr. Markos was ejected
    from his motorcycle which, in turn, struck and seriously injured a pedestrian on
    the sidewalk, Ms. Dorrianne Armstrong-Sears.

[2]

Mr. Markos was charged with dangerous driving causing bodily harm and
    criminal negligence causing bodily harm. The trial judge convicted Mr. Markos of
    dangerous driving causing bodily harm but acquitted him on the other count.

[3]

The trial judge sentenced Mr. Markos to 12 months in custody, followed
    by two years probation. One term of the probation order was that Mr. Markos
    take driving lessons as required and approved by his probation officer. As
    well, the trial judge prohibited Mr. Markos from driving a motorcycle for a
    period of five years.

[4]

Mr. Markos appeals both his conviction and sentence.

[5]

The Crown appeals from part of the sentence, submitting that the trial
    judge was not permitted to limit the driving prohibition to only motorcycles or
    include as a term of probation the requirement that Mr. Markos take driving
    lessons.

II.

CONVICTION APPEAL

[6]

Mr. Markos submits that his conviction should be set aside for two
    reasons: (i) the verdict was unreasonable; and (ii) the trial judge erred in
    relying on expert evidence that exceeded its proper scope and was wrong.

A.

Unreasonable
    verdict

[7]

Mr. Markos argues that the evidence could not reasonably support the
    conclusion that his driving was dangerous, specifically that he sped up to pass
    cars and weaved in between them. Mr. Markos contends that the evidence,
    including the dash-cam video, supported no other conclusion than that he drove
    completely reasonably and within the norm in the circumstances.

[8]

In support of that submission, Mr. Markos alleges the trial judge made several
    errors when assessing the evidence: (i) the trial judge placed too much
    emphasis on the consequences and cause of the accident; (ii) he failed to
    address the
mens rea
required for the offence of dangerous driving;
    (iii) there was no support in the evidence that Mr. Markos performed a
    whip-around pass; and (iv) he misapprehended the evidence of Jeff Elliott
    about whether he braked when he saw the left-turning SUV.

[9]

We are not persuaded by these submissions. The trial judges findings of
    fact found in paras. 40 through 43 of his reasons disclose that his analysis
    squarely focused on the manner of Mr. Markos driving, not on its consequences
    or the cause of those consequences:
R. v. Romano
, 2017 ONCA 837, 41
    C.R. (7th) 305, at para. 68. Ample evidence supported those findings,
    especially the dash-cam video, which showed that Mr. Markos was driving
    substantially faster than the rest of the traffic and did engage in
    whip-around passes, weaving amongst the traffic as he approached the intersection,
    with his vision of the on-coming southbound traffic partially blocked by a van in
    the northbound passing lane.

[10]

Nor
    are we persuaded that the trial judge failed to address the
mens rea
element of the offence of dangerous driving, namely that the degree of care
    exercised by the appellant was a marked departure from the standard of care
    that a reasonable person would observe in the circumstances:
R. v. Roy
,
    2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 28 and 36. As with the
actus
    reus
of the offence, the focus in assessing the
mens rea
must be
    a meaningful inquiry into the manner of driving:
Romano
, at para. 69.

[11]

The
    trial judge engaged in the inquiry mandated by para. 36 of
Roy,
explaining at
paras. 41 through 43 of
    his reasons:

(i) that a reasonable person
    would have foreseen the risk and taken steps to avoid it  i.e. the left-hand
    turn conducted by the SUV did not depart from the standard range of prudent
    driving and the other northbound vehicles were travelling in a manner that gave
    them adequate time to allow the left-hand turn; and

(ii) why the appellants
    failure to foresee the risk and take steps to avoid it was a marked departure
    from the standard of care expected of a reasonable person in the circumstances
     i.e., Mr. Markos approached the intersection at too high a speed and at too
    awkward an angle to see the left-hand turning SUV in time and he made a
    dangerous maneuver in speeding up to pass the cars, moving substantially faster
    than the flow of traffic in a way that was highly risky given the traffic flow
    on Yonge Street.

[12]

The
    trial judge did misstate the evidence of Mr. Elliott when he wrote that Mr. Elliott
     a north-bound driver  applied his brakes to slow down and allow the
    left-turning south-bound SUV to turn: at paras. 14 and 15. Mr. Elliott had
    testified that the SUV turned in front of him all of a sudden and had he not
    been driving very slowly, he would have hit the SUV. We did not regard that
    misapprehension as materially affecting the verdict. The trial judge did not
    rely on whether Mr. Elliott braked or not; he focused on Mr. Elliotts speed
    relative to the other traffic at the time of the collision. At para. 42, the
    trial judge wrote that the northbound vehicles who were not going excessively
    faster than the speed limit had adequate time to allow [the SUV] to make his
    turn. That finding was consistent with the evidence given by Mr. Elliott and
    borne out by the sequence of events recorded by the dash-cam video.

B.

Relying on inadmissible and incorrect expert evidence

[13]

Officer
    Chin was qualified as an expert in collision reconstruction, including in the
    area of speed determination. He calculated the speed of the motorcycle at the
    time of collision to fall in the range of 56 to 87 km/hr. In deriving that
    range, he took into account the gear in which the motorcycle was found
    following the collision and the location of the needle on the tachometer, and
    then applied a shift-point methodology.

[14]

The
    appellant submits that the trial judge made several errors regarding Officer
    Chins evidence.

First error: Permitting Officer Chin to testify on a subject for which he
    was not qualified

[15]

At
    the hearing of the appeal, the appellant suggested that Officer Chin was not
    qualified to give evidence regarding the shift-point methodology for
    calculating motorcycle speeds. We give no effect to this argument. At trial, the
    defence did not cross-examine Officer Chin on his qualifications nor did the defence
    oppose the qualification of Officer Chin to give opinion evidence on
    calculating the speed of the motorcycle at the time of the collision.

Second error: Admitting evidence beyond scope of Officer Chins expertise

[16]

In
    his factum, Mr. Markos contends that the trial judge erred by permitting
    Officer Chin to give evidence that went beyond the scope of his expertise and,
    therefore, was inadmissible.

[17]

The
    appellant points to the evidence Officer Chin gave about why he discounted the
    lowest speed of 56 km/hr derived using the shift-point methodology. In chief,
    Officer Chin testified that he did so because the lowest speed was not
    consistent with the damage he observed to the SUV and motorcycle. He then went
    on to state that the lower speed was not consistent with respect to the
    injuries sustained by Ms. Sears and to Mr. Markos. The appellant submits that
    this evidence was inadmissible because it went beyond the boundary of Officer
    Chins expertise and the trial judge erred by taking it into account.

[18]

We
    do not give effect to this submission. First, at trial defence counsel did not object
    to that evidence. Second, in the course of cross-examination, defence counsel posed
    several questions to Officer Chin challenging his rejection of the lower speed in
    part on the basis of the evidence the appellant now contends was inadmissible. Finally,
    the trial judge made no direct reference in his reasons to the evidence now
    impugned by the appellant. His reasons disclose that he relied on a broad range
    of evidence to conclude that Mr. Markos was driving substantially faster than
    the rest of the traffic and considerably over the speed limit, specifically [t]he
    witness testimony and agreed statements, together with the video evidence from
    the dash cam: at para. 40.

Third error: Officer Chins speed
    calculations contained a critical error

[19]

At
    the hearing of the appeal, the appellant argued that the speed calculations
    Officer Chin derived using the shift-point methodology were clearly wrong because
    the officer misunderstood the methodology. Consequently, the trial judge erred
    in accepting calculations based on a critical error.

[20]

For
    several reasons we are not persuaded by this submission.

[21]

Defence
    counsel cross-examined Officer Chin on his use of the shift-point methodology,
    including his reliance on an article by Albert Baxter entitled
Motorcycle
    Accident Investigation, 2
nd
Edition
. That
    cross-examination proceeded on the basis that Officer Chin had correctly
    applied the shift-point methodology not, as appeal counsel now suggests, that
    he misapplied the methodology.

[22]

As
    well, defence counsel did not adduce expert evidence at trial calling into
    question Officer Chins calculations. Nor did the appellant seek to adduce any
    such evidence on appeal by way of fresh evidence. In any event, the trial judge
    did not make a finding about the specific speed Mr. Markos was travelling at
    the time of the collision. Instead, as noted, the trial judge relied on a broad
    range of other evidence to find that Mr. Markos was driving substantially
    faster than the rest of the traffic and considerably over the speed limit.

C.

Conclusion

[23]

For
    these reasons, we dismiss the appeal from conviction.

III.

SENTENCE APPEALS

A.

The
    appellants sentence appeal

[24]

Mr.
    Markos submits that the trial judge committed several errors in principle in
    imposing the sentence he did: (i) he treated the appellants maintenance of his
    innocence in a pre-sentence report as an aggravating factor; (ii) the sentence
    imposed was out of the range for similar offenders; (iii) it was harsh and
    excessive for this offender; and (iv) the five-year driving prohibition was
    harsh and unreasonable.

[25]

We
    do not accept these submissions. The trial judge accepted as genuine Mr.
    Markos statement that he was sorry for Ms. Sears suffering. At the same time,
    the trial judge concluded that Mr. Markos lacked insight into the nature of his
    actions, noting that given the events recorded on the dash-cam video Mr. Markos
    has much to contemplate. The trial judge also expressed surprise that whereas
    at trial Mr. Markos had testified that he had no plans ever to ride a
    motorcycle again, in the pre-sentence report he stated that he had just
    purchased a new motorcycle. The trial judge was entitled to take into account
    the lack of insight by Mr. Markos into the risk to the community presented by
    his manner of driving:
R. v. Hawley
, 2016 ONCA 143, at para. 5.

[26]

This
    court has identified sentences for dangerous driving causing bodily injury as
    normally ranging up to two years less a day, with more substantial sentences
    available in certain cases:
R. v. Rawn
, 2012 ONCA 487, 294 O.A.C. 261,
    at para. 43. In the present case, as depicted in the dash-cam video, Mr. Markos
    drove his motorcycle in a dangerous manner, in heavy traffic, in a dense urban
    area, where the street was lined with retail outlets that generate pedestrian
    traffic. His dangerous driving caused Ms. Sears very serious injuries. We see
    nothing harsh or excessive with the 12-month custodial sentence, followed by
    two years probation, imposed by the trial judge. The sentence was fit.

[27]

Pursuant
    to s. 259(2)(b) of the
Criminal Code
, the trial judge imposed a
    five-year prohibition on driving a motorcycle for a period of five years from
    the date of sentencing: at para. 22.

[28]

A
    driving prohibition imposed under s. 259(2)(b) commences at the end of the
    period of imprisonment, not on the date of sentencing:
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 109. The prohibition imposed by the
    sentencing judge was also a condition of the appellants bail pending appeal.
    During the approximately 22 months from the date of sentencing to the date of
    the disposition of this appeal, the appellant has been subject to a partial
    driving prohibition. Even though the prohibition on driving was partial,
    limited to only motorcycles, we accept the appellants submission that he
    should be given credit for it. Accordingly, we vary the driving prohibition to
    be one in respect of any motor vehicle for a period of 38 months following the
    appellants term of imprisonment.

B.

The
    Crowns sentence appeal

[29]

The
    Crown submits that the trial judge erred by limiting the driving prohibition to
    only motorcycles as such a limitation is not permitted by s. 259(2) of the
Criminal
    Code
. The Crown also argues that the term of probation requiring Mr.
    Markos to take driving lessons was imposed in error.

[30]

Mr.
    Markos concedes both points.

IV.

DISPOSITION

[31]

For
    the reasons set out above, we dismiss Mr. Markos appeal from conviction. We
    grant him leave to appeal sentence, but dismiss his sentence appeal save for
    the variation in the calculation of the driving prohibition. We allow the
    Crowns sentence appeal. Consequently, we vary the sentence as follows: (i) we
    delete from the terms of probation the requirement that Mr. Markos take
    driving lessons, including motorcycle driving lessons, as required and approved
    by the probation officer; and (ii) we vary the prohibition order made under s.
    259(2)(b) of the
Criminal Code
to prohibit Mr. Markos from operating a
    motor vehicle on any street, road, highway or other public place for a period
    of 38 months following his term of imprisonment.

"J.C. MacPherson J.A."
"G. Pardu J.A."
"David Brown J.A."


