



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Stevens, 2014 ONCA 591

DATE: 20140818

DOCKET: C55995

Sharpe, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Keifer Stevens

Appellant

Timothy Breen, for the appellant

Grace Choi, for the respondent

Heard and released orally: August 13, 2014

On appeal from the convictions entered on May 29, 2012 by
    Justice G. Miller of the Superior Court of Justice, sitting without a jury:
    2012 ONSC 3166.

ENDORSEMENT

[1]

This appeal arises from a tragic motor vehicle collision that resulted
    in three deaths. The appellant, 19 at the time of the incident, was convicted
    of three counts of dangerous driving causing death and sentenced to one year
    imprisonment. He appeals the convictions.

[2]

Despite the capable argument presented by Mr. Breen, we are not
    persuaded that the trial judge erred in convicting the appellant of these
    offences.

[3]

The appellant attempted to pass three vehicles on a two-lane highway.
    The road was wet, the traffic was heavy and the appellant was proceeding up a
    hill so that the view of oncoming traffic was obscured. While the appellant was
    passing the other vehicles, the oncoming vehicle came over the crest of the
    hill. The fatal collision occurred in the oncoming lane. Both passengers in the
    oncoming vehicle were killed as was the passenger in the appellants vehicle.
    At the point of collision, the appellant was on the wrong side of the solid
    line.

[4]

The trial judge gave careful reasons reviewing the evidence in
    considerable detail and concluded as follows, at paras 82 and 83:

Was Keifer Stevens decision to pass at that location dangerous
    to the public having regard to all the circumstances, including the nature,
    condition and use of the place at which the motor vehicle is being operated and
    the amount of traffic that at the time is or might reasonably be expected to be
    at that place? I am satisfied beyond a reasonable doubt that it was. The
    weather conditions, the heavy southbound traffic, the limited distances between
    the three vehicles Mr. Stevens attempted to pass and the limited visibility for
    oncoming traffic created by the existence of the hill and pointed out by the
    commencement of the solid line for southbound traffic all lead me to conclude
    that Mr. Stevens decision and action taken to pass those three vehicles at
    that location was dangerous to himself and his passenger, the vehicles he was
    passing and any oncoming traffic whether or not that oncoming traffic could be
    seen by him at the time.

Did Keifer Stevens conduct constitute a marked departure from
    the standard of care of a reasonable person? I am satisfied beyond a reasonable
    doubt that it did. In this case there was no direct evidence as to Mr. Stevens
    actual state of mind at the time but assessing his dangerous conduct as against
    the standard expected of a reasonably prudent driver it is apparent to me Mr.
    Stevens was reckless in taking the decision to pass those three vehicles at
    that location and in those weather conditions and at the very least there was
    evidence that that two apparently reasonably prudent drivers, Mr. Hodsman and
    Ms. Kemp, were so shocked by Mr. Stevens decision to pass at that location
    that they each exclaimed aloud. I come to this conclusion even without any
    definitive evidence as to the speed Mr. Stevens was travelling at the time he
    made the pass and/or the time of the collision.

[5]

As for the argument that the cause of the collision was that the
    oncoming vehicle lost control, the trial judge found, at para 93:

I am satisfied beyond a reasonable doubt that the evasive
    action taken by Mr. Blake in driving onto the shoulder of the roadway when he
    saw Mr. Stevens vehicle in the northbound lane is a factor which Mr. Stevens
    would have seen as a likely consequence of his conduct. I am satisfied beyond a
    reasonable doubt that the subsequent loss of control by Mr. Blakes vehicle was
    also a factor which Mr. Stevens would have seen as a likely consequence of his
    conduct, given the weather conditions. I do not find that Mr. Blakes youth or
    inexperience as a driver was an intervening factor. I expect even an
    experienced driver, given the weather conditions and faced with Mr. Stevens
    vehicle in his lane, might well have attempted the same evasive action and with
    the same result.

[6]

On appeal, the appellant attacks the factual findings of the trial
    judge. The central point raised by the appellant is that the trial judge failed
    to take into account all of the evidence when concluding that the appellant
    initiated the pass in close proximity to the commencement of the solid line.

[7]

Mr. Breen advances calculations of the speed of both vehicles required
    to support the trial judges findings as to how this collision occurred and
    submits that the required speeds are unrealistically high.

[8]

We reject those submissions for the following reasons.

[9]

First, while derived from the evidence adduced at trial, the
    assumptions, calculations and conclusions we are asked to draw on appeal were
    not subjected to the requisite scrutiny of the trial process.

[10]

Second,
    as demonstrated by the submissions of the respondent, small changes in the
    variables significantly alter the calculations and we are not convinced that
    the calculations relied on by the appellant are sufficiently sound to upset the
    careful and thorough reasons of the trial judge.

[11]

Third,
    even if we were to accept those calculations, the result would be that the
    appellant travelled in the passing lane for an even longer distance without
    ever returning to his proper lane.

[12]

We
    do not agree that the trial judge erred in putting some weight on the
    contemporaneous utterances of two of the drivers expressing alarm at the
    appellants attempt to pass. In our view, the trial judge was entitled to view
    those first-hand reactions as supporting Ms. Kemps evidence as to the
    approximate location at which the appellant commenced his manoeuvre and the
    dangerousness of his driving.

[13]

Nor
    are we persuaded that the fact that the RV was able to stop safely before the
    point of collision detracts from the trial judges findings as to the appellants
    responsibility for the collision. No one saw the appellant successfully return
    to his own lane and we do not agree that the fact that he may have passed the
    RV demonstrates that he was able to complete the pass in safety. We note as
    well that the RV driver applied his brakes to attempt to allow the appellant to
    re-enter his lane.

[14]

Finally,
    we agree with the trial judges finding that, to the extent that the oncoming
    vehicle lost control, that cannot absolve the appellant of responsibility for
    the collision. We agree that given the manner of the appellants driving and
    attempt to pass three vehicles on the hill in wet conditions and heavy traffic,
    evasive action on the part of an oncoming driver was entirely foreseeable and
    caused by the appellants own conduct.

[15]

Accordingly,
    the appeal is dismissed.

Robert J. Sharpe J.A.

Janet
    Simmons J.A.

G.
    Pardu J.A.


