



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clare, 2013 ONCA 377

DATE: 20130606

DOCKET: C49152

Weiler, Blair and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lloyd Edwin Clare

Appellant

Paul Burstein, for the appellant

Rosella Cornaviera, for the respondent

Heard: May 22, 2013

On appeal from the decision of the Summary Convictions
    Appeal Court dated July 11, 2008 by Justice Peter B. Hambly of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on July 17,
    2007 by Justice Michael J. Epstein of the Ontario Court of Justice.

Strathy J.A.:

[1]

The appellant was convicted of dangerous operation of a motor vehicle
    contrary to s. 249(1)(a) of the
Criminal Code
. He was sentenced to a
    fine of $800. He appealed his conviction to the Summary Conviction Appeal Court.
    On July 11, 2008, Hambly J. dismissed his appeal.

[2]

The appellant seeks leave to appeal the decision of the Summary
    Conviction Appeal Court on the ground that he was denied an adjournment to
    either retain new counsel or to prepare his own submissions.

[3]

If leave is granted, he submits that the trial judge erred in finding
    that the Crown had proven dangerous operation of a farm tractor in the absence
    of any expert evidence to establish that the appellant could have appreciated
    and avoided the risk of his driving. He submits that the operation of a tractor
    is materially different from a motor vehicle and a lay trier of fact lacks the
    necessary knowledge and experience to resolve that question.

[4]

He also submits that the trial judge erred in inferring that that the
    appellants driving was dangerous from the consequences of his driving 
i.e.
,
    an accident.

[5]

Having heard the appellants submissions on all issues, I acknowledge
    that the appellant, who was self-represented at the time, may have
    misunderstood the procedure that would be followed in the Summary Conviction
    Appeal Court and did not expect that the appeal would proceed on July 11, 2008.
    In the rather unusual circumstances of this case, therefore, I would grant
    leave to appeal. For the reasons that follow, however, I am not persuaded that
    the trial judge made any error and I would dismiss the appeal.

[6]

There was ample evidence identified by the trial judge that the vehicle
    was driven in a manner dangerous to the public, having regard to all the
    circumstances. These circumstances included:

·

the appellant was driving the tractor at 30-35 kilometers per
    hour along a rutted gravel and dirt road, causing the tractor to bounce along
    the road;

·

the appellant was driving in a deliberate manner, and appeared
    determined to return to his property, heedless of those who were in his path or
    were attempting to stop him;

·

without slowing, the appellant drove the tractor through a narrow
    opening between two trailers, one of which was moving, barely missing both;

·

the appellant drove toward Constable Diemert, ignored his motions
    and shouts to stop, and drove within a few of meters of his vehicle before
    making an evasive manoeuvre to avoid it;

·

he continued along the road at top speed toward Constable
    Lalonde, who feared for his own safety, to the extent that he nearly drew his
    own service revolver, before the appellant abruptly veered away at the last
    minute to avoid striking him;

·

he drove up onto the narrow berm, adjacent to and above Constable
    Keller in his cruiser, putting the officer in fear for his own safety, before
    the tractor did in fact roll off the berm; and

·

the evidence of several witnesses, including the officers, who testified
    that the appellants driving caused them to fear for their own safety.

[7]

While I accept that the accident itself cannot be used as proof that the
    driving was dangerous, the finding in this case was amply supported by other
    evidence.

[8]

The appellant submits, however, that the
mens rea

analysis
    requires a determination of whether the manner of driving was a marked
    departure from the standard of care. This, he says, requires an examination of
    two questions. First, whether a reasonable person would have foreseen the risks
    arising from the driving and taken steps to avoid them. Second, if so, whether
    the accuseds failure to foresee those risks and take measures to avoid them
    was a marked departure from the standard of care. The appellant submits that a
    lay person, lacking specialized knowledge of the operation of a tractor, is not
    able to appreciate the risks of operating a tractor in the circumstances or the
    measures a reasonable person would take to avoid them. This, he says, calls for
    expert evidence.

[9]

The trial judge found that the appellants driving was a marked
    departure from what would be expected from a prudent driver in similar
    circumstances. In making this finding, he identified a number of circumstances,
    including the appellants disregard of the officers who were attempting to stop
    him, driving toward the police vehicles in such a way as to require the
    officers to take evasive measures for the own safety, and leaving the road and
    mounting the berm in order to avoid the police. Based on this evidence, he
    inferred the requisite
mens rea
.

[10]

In
    my view, this was a case in which the risks of the accuseds driving and the
    means of avoiding them were plain and obvious and did not call for expert
    evidence. While there may be cases in which expert evidence is required to
    establish the standard of care in the operation of a tractor and whether the
    accuseds driving was a marked departure from that standard, this case is not
    one of them.

[11]

In
    the result, leave to appeal is granted, but the appeal is dismissed.

Released:

JUN -6 2013                                    G.R.
    Strathy J.A.

KMW                                               I
    agree K.M. Weiler J.A.

I
    agree R.A. Blair J.A.


