



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Curry, 2019 ONCA 754

DATE: 20190926

DOCKET: C63322

Huscroft, Paciocco and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyler Curry

Appellant

Paolo
    Giancaterino and Marco Sciarra, for the appellant

Sean
    Horgan, for the respondent

Heard:
    September 23, 2019

On appeal
    from the conviction entered on August 10, 2016 and the sentence imposed on January
    26, 2017 by Justice Brian W. Abrams of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of (1) dangerous
    driving causing death, (2) dangerous driving causing bodily harm, (3) impaired
    driving causing death, (4) impaired driving causing bodily harm, (5) blood
    alcohol over legal limit causing accident resulting in death, and (6) blood
    alcohol over legal limit causing accident resulting in bodily harm.

[2]

He appeals from these convictions, arguing among
    other things that the trial judge misapprehended the evidence and failed to
    consider relevant evidence. He did not pursue his appeal from sentence.

[3]

Following the hearing, we dismissed the appeal
    with reasons to follow. These are our reasons.

[4]

It was undisputed that the appellant left a
    house party after a night of drinking, driving a van with two passengers: Dylan
    Heisel in the front seat and Mason Amell in the rear passenger seat. The van crashed
    into a tree at high speed a short distance away  about 4.8 kilometres. The
    passenger in the front seat, Dylan Heisel, died in the collision.

[5]

The theory of the defence was that the Crown
    failed to prove that the appellant was driving the van. In particular, the
    defence contended that the appellant and Mason Amell could have switched
    positions after leaving the party.

[6]

The appellant did not testify at trial. There
    was no direct evidence that the appellant and Mason Amell switched places at
    any point during the drive, or that the van stopped at any time during the
    drive. Indeed, Mason Amell gave evidence at the trial and, while having limited
    memory of the events, rejected that as a possibility. On the other hand, there
    was considerable evidence that supported the trial judges finding that the
    appellant was driving the van when it crashed, including Mason Amells
    testimony and the medical evidence.

[7]

We see no misapprehension of the evidence, and
    no failure to consider relevant evidence.

[8]

The trial judge gave detailed reasons for
    rejecting the evidence of a witness, Luke Casselman, who came upon the accident
    shortly after it occurred. The trial judge found that his evidence was not
    reliable, and that he had crossed the line from being a fair and impartial
    witness to becoming an advocate for the defence. This finding was open to the
    trial judge, and there is no basis to impugn it.

[9]

Nor has the appellant established that the trial
    judge failed to consider any relevant evidence. Although the trial judge did
    not refer to the evidence of Kaitlyn Utman as to the time the appellant left
    the party, Ms. Utman did no more than provide a rough estimate, offering a
    tentative 30-minute window for departure, proximate in time to the accident. This
    evidence did not strongly favour the defence theory. A trial judge could
    rightly treat this evidence as unworthy of mention. That being so, there is no
    basis for inferring from his failure to mention Ms. Utmans evidence that the
    trial judge failed to consider it.

[10]

In summary, the issues raised on appeal were the
    subject of detailed and careful consideration by the trial judge. There is no
    basis for this court to interfere with the trial judges findings.

[11]

The appeal is dismissed.

[12]

The appeal from sentence is dismissed as
    abandoned.

Grant
    Huscroft J.A.

David
    M. Paciocco J.A.

I.V.B.
    Nordheimer J.A.


