



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Manahan, 2012 ONCA 734

DATE:  20121029

DOCKET: C52652

Doherty, Epstein JJ.A. and Cavarzan J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Manahan

Applicant (Appellant)

Paul Burstein, for the applicant (appellant)

Benita Wassenaar, for the respondent

Heard:  October 25, 2012

On appeal from the conviction entered on November 24,
    2009 and the sentence imposed on August 13, 2010 by Justice B. E. Pugsley of
    the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The
actus reus
of the offence is conceded on appeal. On the
    facts as found by the trial judge, especially his finding as to the speed of
    the appellants vehicle (at least 136 k.p.h. in a 60 k.p.h. zone), there can be
    no doubt that the appellant was properly convicted.

[2]

The trial judge did not have the benefit of
R. v. Roy
, 2012 SCC
    26.  Counsel argues that the trial judge failed to pose the two questions
    outlined at para. 36 of
Roy
and said to be a useful approach to the
mens
    rea
questions.

[3]

In our view, posing those questions in the context of the trial judges
    findings of fact admits of no answer other than that a reasonable person would
    have foreseen the risk inherent in the manner in which the vehicle was being
    driven and taken steps to avoid that risk, and that the accuseds 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 appellants
    circumstances.  In that regard, we note that the trial judge did not find that
    the appellant believed he was going 80-90 k.p.h., but rather found he did not
    know how fast he was travelling when the vehicle crested the hill and went out
    of control.

[4]

The appeal is dismissed.


