



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Leary, 2017 ONCA 71

DATE: 20170127

DOCKET: C61179

Doherty, Blair and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Codi James OLeary

Appellant

Brian D. Barrie and Danielle N. Landry, for the
    appellant

Christopher Webb, for the respondent

Heard:  January 16, 2017

On appeal from the convictions entered on June 1, 2015 by
    Justice Clayton Conlan of the Superior Court of Justice.

By-the-Court:

[1]

The appellant was convicted, after a trial by judge alone, of one count
    of dangerous driving while racing causing bodily harm, and one count of
    dangerous driving while racing causing death.  He appealed his convictions
    only.

[2]

At trial, the Crown argued that the appellant and Tyler Dodd were racing
    their cars westbound on Highway 21 just outside of Owen Sound at about 10:00
    p.m. on January 8, 2013.  Mr. Dodd lost control of his vehicle, swerved into
    the oncoming eastbound lane and struck another car.  Mr. Dodd was killed and
    the driver of the other vehicle suffered serious injuries.

[3]

The appellant was not involved in the collision.  He went to the police
    station to speak to the police a day or two after the accident in response to a
    radio broadcast indicating that the police were looking for the driver of
    another vehicle connected to the accident.  That vehicle matched the
    description of the appellants vehicle.

[4]

The Crowns case consisted of:

·

Evidence
    from various independent witnesses describing the driving of the appellant and
    Mr. Dodd and the interaction of their vehicles as they drove through Owen Sound
    to the scene of the accident just west of the city.

·

The
    appellants statement to the police in which he admitted that he was racing
    with the Dodd vehicle along the stretch of the road west of Owen Sound, a short
    distance from the accident.

·

Expert
    evidence of the location on the roadway of the accident (in the eastbound lane);
    the speed of the Dodd vehicle (about 136 kilometres per hour five seconds
    before the crash and 109 kilometres per hour one second before the collision);
    the speed of the other vehicle in the accident (82 kilometres per hour five
    seconds before the crash and 77 kilometres per hour one second before the
    crash); and the cause of Mr. Dodd losing control of his vehicle in the curve
    (excessive speed possibly exacerbated by breaking/over-steering).

[5]

The appellant testified.  He denied that he was racing Mr. Dodd at any
    time.  On his evidence, he was unaware of Mr. Dodds vehicle until he noticed
    it as he pulled away from a light on the west end of Owen Sound, about 800
    metres from the accident scene.  The appellant explained that he was required
    to take evasive action to avoid a truck at the light and became aware of the
    Dodd vehicle as he took that evasive action.

[6]

The appellant acknowledged that he sped up as he moved away from the
    light.  He was going about 110 kilometres per hour in a 70 kilometre zone.  The
    appellant testified that he slowed down as he entered the curve to under 100
    kilometres per hour.  The speed limit changed to 80 kilometres just before the
    curve.  The appellant knew that the curve was a difficult one.

[7]

The appellant testified that the Dodd vehicle passed his vehicle as it entered
    the curve.  He saw the vehicle brake and begin to slide.  In a defensive
    manoeuver, the appellant accelerated quickly past the Dodd vehicle.  The
    appellant was on the inside lane and the Dodd vehicle was in the passing lane. 
    The appellant did not know that Mr. Dodd lost control of his vehicle and
    crossed over into oncoming eastbound traffic.

[8]

The appellant testified that he was confused and intimidated when
    questioned by the police and that he made several factual errors in the
    statement.  He also testified that when he referred to racing, he simply
    meant that he was going fast at one point.  The trial judge rejected the
    appellants evidence about his state of mind when he was interviewed and his
    understanding of the meaning of racing.

[9]

The trial judge gave detailed reasons for admitting the appellants
    statement.  He gave equally thorough reasons for judgment.  The trial judges
    careful reasons were of great assistance to this court.

[10]

The grounds of appeal can be divided into three categories:

·

challenges
    to the finding that the appellant and Mr. Dodd were racing at the time of the
    accident;

·

the
    admissibility of the appellants statement to the police; and

·

the
    causation finding.

The finding that the appellant and Mr. Dodd were racing

[11]

After a detailed witness-by-witness review of the evidence, including
    the appellants testimony, the trial judge concluded that the appellant and Mr.
    Dodd began to race as they drove westward through the town of Owen Sound.  The
    race continued as the vehicles left Owen Sound going west, although at one
    point in the west end of Owen Sound, the vehicles stopped for a red light.  On
    the trial judges findings, the race continued until Mr. Dodd lost control of
    his vehicle and slammed into the vehicle coming eastbound.

[12]

The trial judges finding that the cars were racing for a considerable
    distance and were still racing when Mr. Dodd lost control of his vehicle are findings
    of fact.  This court defers to factual findings absent a determination that a
    finding is unreasonable on the entirety of the record, or is tainted by either a
    material misapprehension of the evidence or a failure to consider relevant
    evidence.

[13]

The appellant alleges two errors.  First, he submits that the trial
    judge found as a fact that the appellant slowed down as he entered the curve in
    which the accident occurred.  Counsel submits that the trial judge failed to
    consider this finding in reaching his conclusion that the appellant was racing
    Mr. Dodd when he lost control and struck the other vehicle.  Counsel submits
    that the evidence that the appellant slowed down was evidence that he had quit
    the race before the accident occurred.  Counsel argues that the trial judges
    failure to consider this important evidence removes this courts obligation to
    defer to the trial judges finding that the vehicles were racing at the time of
    the accident.

[14]

We reject this submission.

[15]

The trial judge accepted the appellants evidence that he slowed down as
    he entered the curve because he knew the curve to be a dangerous one.  Considered
    in the context of the entirety of the evidence relevant to the racing issue and
    the trial judges factual findings based on that evidence, the appellants evidence
    that he slowed down as he entered a dangerous curve seconds before the accident
    could not realistically offer any support for the contention that the appellant
    had decided to stop the race with the Dodd vehicle.  Slowing down to navigate a
    curve can hardly be equated with ending the race.

[16]

Even if the appellant unilaterally stopped racing seconds before the
    accident, that action would not affect his liability.  A race does not end the
    second one of the participants decides he has had enough.  This is not a case
    like
R. v. Menezes
, [2002] O.J. No. 551, at paras. 124-25, relied on
    by the appellant in which the evidence indicated that the accused had quit the
    race about one half mile before the accident occurred.

[17]

The trial judge was alive to the evidence that the appellant braked as
    he entered the curve.  He accepted that evidence.  The trial judge did not fail
    to consider material evidence or misapprehended that evidence.  Instead, he
    declined to give certain evidence the evidentiary effect that counsel now
    argues it should have been given.  That assessment is very much in the realm of
    the trial judge.  This court must defer to the trial judges use of the
    evidence.

[18]

It is also significant when considering the trial judges reasons as
    they relate to the appellants evidence that he slowed down, that the appellant
    did not argue at trial that he was racing with Mr. Dodd, but discontinued the
    race at the curve.  The appellant argued that he was never racing with Mr.
    Dodd.  It is understandable in the context of the defence position that the
    trial judge did not focus on the evidence of the appellants slowing down at
    the curve as potentially significant to whether the appellant had discontinued
    the race.

[19]

There is no reason to interfere with the trial judges finding that the
    appellant and Mr. Dodd were racing when the accident occurred.  This finding is
    central to the appellants liability.

[20]

The second challenge to the trial judges findings of fact centers on
    the evidence of Mr. Elliott.  Mr. Elliott described the driving of the
    appellant and Mr. Dodd as they proceeded through Owen Sound.  His evidence was
    important to the trial judges finding that the racing started while the two vehicles
    were in Owen Sound and well before they pulled away from the stop light, about
    800 metres from the accident scene.

[21]

Counsel for the appellant submits that the trial judge did not refer to
    Mr. Elliotts evidence that it appeared to him that the two cars were racing,
    or about to race.  Counsel submits that this latter phrase provided an
    important qualification by Mr. Elliott on his evidence that the cars were
    racing.  He submits that the trial judge failed to consider this important
    qualification in relying on Mr. Elliotts evidence to establish that the
    appellant and Mr. Dodd were racing while driving through Owen Sound.

[22]

A trial judge is not required to refer to every answer given by a
    witness.  The trial judge summarized Mr. Elliotts detailed description of the movements
    of the two vehicles as they made their way through the town.  That description had
    more evidentiary significance than Mr. Elliotts characterization of the
    movements.  The description was accepted by the trial judge and fully supported
    his conclusion that the two vehicles began racing while in the town.

The admissibility of the appellants statement

[23]

The trial judge found that the appellant was not detained when he gave
    his statement to the police.  In doing so, he correctly set out the applicable
    law.  His findings of fact are fully justified on the record before him.  We
    see no basis upon which to interfere with that finding.  In the absence of a
    detention, neither s. 10(b) of the
Charte
r, nor the right to silence
    as guaranteed in s. 7 of the
Charter
,
are engaged.

[24]

The defence also challenged the voluntariness of the appellants
    statement.  The defence argued that the officer induced the statement by
    inviting the appellant as a member of the local community to do the responsible
    thing and tell the police what he knew.

[25]

Again, the trial judge thoroughly and correctly reviewed the relevant law. 
    He made findings of fact which cannot be successfully challenged.  On those
    findings, there was no improper inducement by the police and no oppression. 
    The finding that the confession was voluntary stands.

[26]

Counsel further argued that apart from the voluntariness of the
    confession, and police compliance with the
Charter
, police misconduct
    justified the exclusion of the appellants statement.  Counsel submitted that
    the officer interviewing the appellant had grounds to charge the appellant, but
    chose not to do so, and to treat him as a witness, hoping that the appellant
    would make a statement and incriminate himself.  Counsel further submits that
    the officer, having decided to advise the appellant of his right to counsel,
    did not give the appellant a fair opportunity to determine whether he wanted to
    speak with counsel.  Counsel argues that this conduct, even though it did not
    affect the voluntariness of the statement and did not breach the appellants
    constitutional rights, was so improper as to warrant the exclusion of the appellants
    statement in the name of adjudicative fairness.

[27]

Whatever power a court might have to exclude a statement even though it
    is
Charter
-compliant and voluntary, there is no factual basis to
    exclude this statement.  The trial judge found that the police officers
    questioning of the appellant was not improper.  He rejected the argument that
    the officer attempted to mislead the appellant by making him think that he was
    giving only a witness statement.  The trial judge also rejected the submission
    that the officer deliberately refrained from giving the appellant an adequate
    opportunity to decide whether he wished to consult with counsel.

[28]

The trial judges findings are fully justified on this record.  The
    officer repeatedly told the appellant that he was free to leave the station.  The
    officer repeatedly told the appellant of the jeopardy he faced and the charges
    that might be brought against him.  The officer, although he was under no
    constitutional obligation to do so, advised the appellant of his right to
    counsel and afforded him an opportunity to contact counsel.  He also advised
    the appellant that he was not obligated to say anything and that anything he
    said might be used in evidence.  There is nothing in the conduct of the
    interview to suggest that the appellant had any wish to speak to counsel. 
    Clearly, he wanted to give his version of the relevant events to the officer.

[29]

Counsel made much of the officers reluctance to admit in his evidence that
    he had reasonable and probable grounds to arrest the appellant from the moment
    the appellant arrived at the police station.  Even if one could read the
    officers testimony as less than forthcoming on this point, the manner in which
    he testified had nothing to do with the treatment of the appellant at the
    police station.  Certainly, the manner in which the police officer testified at
    trial could not somehow justify the exclusion of the appellants statement.

The causation question

[30]

The trial judge dealt with the question of causation at paras. 182-200. 
    His observations included the following:  (paras. 198-99):

Racing through town, and then along the sunset strip, in the
    winter, in the darkness, far in excess of the posted speed limit was inherently
    dangerous conduct.  Just as Mr. OLeary chose to race with Mr. Dodd, it was
    reasonably foreseeable that Mr. Dodd would choose to continue the race with the
    accused even in the fatal curve.  The risk of immediate and substantial harm
    was reasonably foreseeable.

There was no break in the chain of causation.  The two cars
    were in close proximity of one another just before the crash  They were racing. 
    They were driving well over the posted speed limit.  I accept the evidence of
    the accused that he slowed down going into the curve, and it appears that Mr.
    Dodd did not, at least not before he started to lose control.  All of that
    having being said, this is not a case of some intervening event having
    occurred.  An ordinarily circumspect person would have seen the loss of
    control, the crash and the resulting death and bodily harm as a likely
    consequence of Mr. OLearys dangerous driving.

[31]

The racing, a joint venture by the appellant and Mr. Dodd, was a factual
    but for cause of the accident and the death and injuries that resulted.  Not
    every factual cause is a legal cause.  The trier of fact must be satisfied that
    the accuseds actions constituted a significant contributing cause of death:
R.
    v. Maybin
, (2012) SCC 24, at para. 60.

[32]

There was no evidence in this case of any unforeseeable intervening act
    capable of breaking the chain of causation.  As explained in
Maybin
,
    at para. 38:

Legal causation does not require
    that the accused must objectively foresee the precise future consequences of
    their conduct.  Nor does it assist in addressing moral culpability to require
    merely that the risk of some non-trivial bodily harm is reasonably
    foreseeable.  Rather, the intervening act and ensuing non-trivial harm must be
    reasonably foreseeable in the sense
that the acts and the harm that
    actually transpired flowed reasonably from the conduct of the accused.  If so,
    the accuseds actions may remain a significant contributing cause of death.
[Emphasis added.]

[33]

Mr. Dodds failure to wear a seatbelt may well have contributed to his
    death.  That failure could not, however, constitute an intervening act severing
    the legally causative effect of the racing.  It cannot be argued that Mr.
    Dodds failure to wear a seatbelt should absolve the appellant from the clearly
    foreseeable consequences of his own actions:
Maybin
, at paras. 60-61.

[34]

There was also some argument at trial that Mr. Dodds ability to drive
    may have been impaired by the consumption of marihuana, or the failure to take
    certain prescribed medication.  The evidence did not support a finding of any
    impairment.  More to the point, Mr. Dodds impairment would not affect the
    finding that the racing was both a factual and legal cause of the accident and
    the death and injuries that occurred.

[35]

Having regard to the trial judges finding that the appellant was racing
    with Mr. Dodd at the time of the accident, a finding with which we would not
    interfere, the causation finding is unassailable.

[36]

As indicated at the end of oral argument, the appeal is dismissed.

Released: DD  JAN 27 2017

Doherty J.A.

R.A. Blair J.A.

P. Lauwers J.A.




