



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Orange, 2021 ONCA 99

DATE: 20210218

DOCKET: C65057

Fairburn A.C.J.O., Juriansz and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Orange

Appellant

Keith E. Wright, for the appellant,

Gerald Brienza, for the respondent

Heard in writing

On appeal from the conviction entered by
    Justice
Nancy A. Dawson
of the Ontario Court of Justice
    on June 13, 2017 and the sentence imposed on December 19, 2017.

REASONS FOR DECISION

[1]

The appellant appeals his convictions of dangerous
    driving causing bodily harm and failing to remain at the scene of an accident
    knowing bodily harm has been caused to a person. He was acquitted of impaired
    driving and criminal negligence causing bodily harm. He was sentenced to a
    reformatory term of two years less a day, two years probation, and a five-year
    driving prohibition.

[2]

The appellants primary ground of appeal is that
    the transcript of the oral reasons for judgment delivered by the trial judge was
    not certified by the authorized court transcriptionist who prepared it. The
    transcript had been provided to the trial judge for editing before it was
    provided to the parties. The appellant suggests the transcriptionist refused to
    certify the transcript because the trial judge had made substantive changes to it.
    The appellant submits that since the transcript is not certified, there are no
    reasons to support the appellants convictions resulting in a miscarriage of
    justice and requiring a new trial. The appellant recognizes the irony of his
    argument as the trial judge provided detailed oral reasons. The uncertified
    transcript of her reasons is 199 pages in length.

[3]

It is surprising that the transcriptionist did
    not certify the transcript
. The court has compared
    the transcript to the audio recording of the trial judges reasons and confirmed
    that the transcript is accurate. The edits the trial judge made relate solely to
    matters of grammar and the correction of a few names where she had misspoken.
    The edits are well within the range permitted to be made by a trial judge:
R.
    v. Wang
, 2010 ONCA 435, 256 C.C.C. (3d) 225.

[4]

We reject the appellants opportunistic submission
    the court cannot hear the appeal without a transcript certified by the
    transcriptionist. This court controls its own process. We direct that the
    appeal be determined based on the uncertified, but accurate, transcript of the
    trial judges reasons.

[5]

In anticipation of this potential result, the
    appellant advances several grounds of appeal in the alternative. These
    alternative grounds amount to nothing more than an attempt to retry the case in
    this court.

[6]

At trial the appellant mounted a strenuous defence
    in the face of an overwhelming prosecution case. The trial judge reviewed all the
    evidence called at the seven-day trial in extensive detail and analysed it with
    exacting care. We reject the submissions that she engaged in speculation and that
    she applied different levels of scrutiny to the evidence. Her credibility
    findings were balanced. Her description of various portions of the appellants
    evidence as disingenuous, incredible and nonsense were apthis testimony
    was clearly unbelievable. She explained why she accepted the credibility and
    reliability of the testimony of the persons who witnessed the accident and of
    the police officers. All the factual and credibility findings the trial judge made
    were amply supported by the record before her.

[7]

On those findings, the appellant had gunned the
    engine of the powerful vehicle he was driving, lost control of it, drove onto
    the sidewalk, swiped a hedge, scraped a car parked in a driveway, hit a hydro
    guide pole and wire, hit garden posts and ended up back on the road. During his
    travel on the sidewalk the appellant hit a pedestrian, who was propelled into
    the windshield and then over the roof and the back of the car. The appellant
    was aware that he hit a person. He stopped briefly after the accident, and
    without getting out of his car, drove off. The trial judge rejected the
    appellants testimony that he lost control of the car after mis-shifting to a
    lower gear.

[8]

The trial judge applied the correct legal
    principles to the facts she found in concluding that both the
actus reus
and
mens rea
of the offences had been proved beyond a reasonable
    doubt.

[9]

The appeal from convictions is dismissed.

[10]

With the Crowns consent, the appeal from
    sentence is allowed to the extent that the time from March 14, 2018, when the
    appellant received bail pending appeal, to the date this Decision is released
    should be subtracted from the driving prohibition imposed by the trial judge.
    The appellant abandoned the remainder of his sentence appeal.

Fairburn A.C.J.O.

R.G. Juriansz J.A.

David M. Paciocco J.A.


