



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Baker, 2013 ONCA 746

DATE: 20131211

DOCKET: C56576

Doherty, Feldman and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dale Axil Baker

Appellant

Michael A. Johnston, for the appellant

Philippe G. Cowle, for the respondent

Heard:  December 9, 2013

On appeal from the decision of Justice Mullins of the
    Superior Court of Justice rendered on September 4, 2012 at Peterborough,
    Ontario, acquitting the appellant on two charges of criminal negligence causing
    death and convicting the appellant on two charges of dangerous driving causing
    death.

ENDORSEMENT


[1]

The appellant was acquitted of two charges of criminal negligence
    causing death and convicted on two counts of dangerous driving causing death. 
    He appeals his convictions.

[2]

The charges arose out of an accident that occurred on a two-lane county
    road near Peterborough on Christmas Eve in 2009.  The appellants vehicle
    crossed over on to the wrong side of the road while negotiating a gentle curve
    and struck an oncoming vehicle driven by Kenneth Dales.  Mr. Dales and his wife
    were killed.

[3]

The trial judges reasons contain a full review of the evidence and an
    accurate summary of the relevant legal principles as explained most recently in
R. v. Beatty
, 2008 SCC 5 and
R. v. Roy
, 2012 SCC 26.

[4]

The trial judge made several findings of fact:

·

But for a very small portion of the back of the appellants
    vehicle, the entirety of his vehicle passed over the centre line into the
    oncoming traffic.

·

The appellant was going over the 80 km speed limit and 30 to 40 km
    per hour faster than the vehicle he struck.

·

The accident re-constructionist could not be more specific as to
    the appellants speed.

·

The appellants car was equipped with a radar detection device
    that was operating at the time of the accident.

·

The speed combined with the radar device suggested that the speed
    at which the appellant was driving was neither inadvertent nor momentary.

·

The appellants car was mechanically fit at the time of the
    accident.

[5]

The trial judge ultimately concluded:

Given that there were no mechanical flaws found in his vehicle,
    I conclude and I find as a fact that it was Mr. Bakers actions, not his
    inaction, that accounts for his vehicle abruptly having entered almost fully,
    the wrong side of the road and colliding with another vehicle at a speed in
    excess of 80 kilometres per hour.  I reject making a finding that the presence
    of Mr. Bakers vehicle on the wrong side of the road should be reconciled with
    momentary inattention and a failure to have guided his vehicle within a gentle curve
    scribed by the roadway, all while there was, in clear view, an oncoming vehicle
    on the opposite side of a clearly marked road and forewarning of the curve.  I
    find that in operating his vehicle at the speed he did, in all these
    circumstances, Mr. Baker left no margin for error, whether the error was of him
    or any other, and in doing so his driving constituted a marked departure from
    what a reasonably prudent driver would have done in the circumstances.  I find
    that it was his actions in steering his vehicle into the oncoming lane at such
    speed that constitutes the
actus reus
and the
mens rea
of the
    offence.

the grounds of appeal

(1)

Did the trial judge fail to apply the correct legal principles when
    addressing the fault component of dangerous driving?

[6]

The trial judge was alive to the fault component of dangerous driving
    and specifically adverted to the recent Supreme Court of Canada jurisprudence. 
    Her description of the requisite fault requirement tracked almost word-for-word
    the description of the requisite fault component in
Beatty
at para.
    49.
Beatty
was followed and applied in
Roy
.  The two-stage
    approach to the fault element referred to in
Roy
, at para. 61, was
    not intended to re-define the fault component as described in
Beatty
,
    but was intended to offer a helpful approach to the fault determination.  The
    trial judges failure to expressly identify the two questions posed in
Roy
is not an error in law.

(2)

Did the trial judge reverse the burden of proof?

[7]

The trial judge expressly and unequivocally instructed herself that the
    burden of proof was on the Crown and remained on the Crown throughout.  The
    passage relied on by the appellant as indicating a reversal in the burden of
    proof is no more than an application of the proper burden of proof to the
    entirety of the evidence which included evidence that no mechanical flaws were
    found in the appellants vehicle.

(3)

Did the trial judge err in finding that the appellant intentionally
    steered his vehicle into the oncoming lane?

[8]

This submission rests on a mischaracterization of the trial judges
    finding.  The trial judge found that the appellant drove his vehicle into the
    gentle curve at an excessive speed and that in doing so he had to steer
    virtually the entirety of his vehicle into the oncoming lane to negotiate the
    gentle curve.  The trial judge contrasted this situation with one in which the
    driver finds him or herself unable to negotiate a curve because of momentary
    inattention.  The distinction was one which was potentially important to the
    fault component of the offence and one which was available on the entirety of
    the evidence.

(4)

Did the trial judge presume guilt on the basis that the appellants car
    was in an accident?

[9]

This argument rests on the submission that the appellants car
    inexplicably veered across the road while negotiating the curve.  The trial
    judge, however, did not find that the actions of the vehicle were
    inexplicable.  She found that the car veered into oncoming traffic because
    the appellant chose to drive the car into the curve at a rate of speed which
    did not allow him to keep his vehicle on his side of the road when negotiating
    the curve.  The trial judge did not fall into the error of assigning blame
    based on the consequences of the appellants driving.

(5)

Was the verdict unreasonable?

[10]

The
    point at which conduct passes beyond negligence to criminally dangerous driving
    can be difficult to discern.  The appellants argument that the verdicts were
    unreasonable rests on the contention that there was no evidence of what caused
    the Toyota 4Runner (the appellants vehicle) to veer into the southbound lane. 
    The appellant also argues that as there was no evidence of the exact speed at
    which the appellant was driving, the court could not say at what point i.e. at
    what speed, the appellants driving became dangerous.

[11]

With
    respect to counsels able submissions, there was clear evidence of what caused
    the vehicle to enter the oncoming lane.  The evidence reasonably permitted the
    inference that the appellant was going much too fast when entering the curve
    and could not negotiate the curve on his own side of the road, but rather had
    to steer virtually his entire vehicle into the oncoming lane.  This inference
    was available even though the evidence did not allow the trial judge to make a
    finding as to the specific speed at which the appellants vehicle was
    travelling when it entered the curve.  There was evidence that the appellant
    was driving over the 80 km per hour speed limit.  The exact speed of the
    vehicle was not crucial to a finding that the speed was such as to require the
    appellant to make the turn by passing almost entirely over the centre line into
    the oncoming lane.

[12]

The
    appellant did not testify.  We are entitled to take that into account in
    assessing the reasonableness of the verdict.

[13]

The
    appeal is dismissed.

Doherty J.A.

K. Feldman J.A.

J.C. MacPherson J.A.


