



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Higgins, 2018 ONCA 451

DATE: 20180514

DOCKET: C63618

Feldman, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Orrell Higgins

Respondent

Melissa Adams, for the appellant

Mark Halfyard, for the respondent

Heard and released orally: April 20, 2018

On appeal from the acquittal entered on March 22, 2017 by
    Justice A.J. OMarra of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The Crown submits that the trial judge erred by his analysis of the
mens
    rea
component of the offence of dangerous driving causing bodily harm
    under s. 249(1) of the
Criminal Code
, by relying on the respondents
    lack of deliberate intention to create a danger for other drivers. Further, the
    trial judge also failed to consider all of the relevant circumstances.

[2]

We disagree.

[3]

The trial judge correctly applied the well-established test set out in
    Supreme Court of Canada jurisprudence in relation to the offence of dangerous
    driving causing bodily harm. As one step of the analysis that he was required
    to undertake, the trial judge properly considered whether the respondent had a
    deliberate intention to cause danger to other drivers:  see
R. v. Beatty
,
    [2008] 1 S.C.R. 49, at para. 51. Having found that he did not, the trial judge
    went on to consider the modified objective test set out in the authorities and
    concluded that he was not satisfied that there was a marked departure from the
    standard of care of a prudent person (para. 58) in all of the circumstances.
    This analysis was reinforced when the trial judge turned to consider criminal
    negligence causing bodily harm when he said in para. 60, without having found
    a marked departure of the standard of a reasonably prudent person in all of the
    circumstances, there is no evidence of a wanton and reckless disregard
    constituting a marked and substantial departure from that of a reasonable
    driver.

[4]

The trial judges reasons when read as a whole demonstrate that he
    reviewed and engaged with all of the relevant circumstances concerning the
    manner of the respondents driving, including the respondents excessive rate
    of speed and inattention, his consumption of alcohol, and the lighting conditions
    at the time of the incident.

[5]

As the Supreme Court of Canada reiterated in
R. v. J.M.H.
,
    [2011] 3 S.C.R. 197, at para. 31, that the trial judge may not have repeated
    all of this evidence in his conclusory paragraph is not a proper basis to
    conclude that there was an error of law in this respect.

[6]

Accordingly, the appeal is dismissed.

K. Feldman J.A.

L.B. Roberts
    J.A.

G.T. Trotter
    J.A.


