



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Laverdure, 2018 ONCA 614

DATE: 20180706

DOCKET: C63863

Doherty, Rouleau and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Martial Laverdure

Appellant

Jodie-Lee Primeau, for the appellant

Elena Middlekamp, for the respondent

Heard: July 3, 2018

On appeal from the conviction entered on September 22,
    2016, by Justice Martin S. James of the Superior Court of Justice, with reasons
    reported at 2016 ONSC 5965, and from the sentence imposed on April 19, 2017,
    with reasons reported at 2017 ONSC 2424.

REASONS FOR DECISION

[1]

The appellant was charged with dangerous driving causing death.  He was
    tried by a judge alone.

[2]

The appellant did not testify.

[3]

The trial judge convicted the appellant and sentenced him to 22 months
    in jail, to be followed by probation for one year.  The trial judge also
    imposed a five year driving prohibition.

[4]

The appellant appeals the conviction and sentence.

[5]

At the end of oral argument, the court advised counsel that the
    conviction appeal would be allowed and a new trial ordered with reasons to
    follow.  These are those reasons.

A.

The Facts

[6]

The hockey game at the local arena in Pembroke, Ontario, ended at about
    9:00 p.m. on January 11, 2015.  As the fans left the arena, many made their way
    northward across the parking lot toward Lake Street.  Lake Street is a two-lane
    street running east and west.  There is a second parking lot on the north side
    of Lake Street.

[7]

Some fans headed east along the sidewalk on the south side of Lake
    Street toward the traffic light at Nighbor Street before crossing Lake Street. 
    However, many of the fans chose to cross Lake Street in the middle of the
    block.  One witness described a group of about 20 pedestrians gathered on the
    south side of Lake Street, waiting to cross.  At one point, a truck proceeding
    eastbound on Lake Street stopped to let the pedestrians cross in the middle of
    the block.

[8]

The appellant had stopped his vehicle at the red light at Nighbor.  When
    the light turned green, he accelerated westward on Lake Street toward the area
    where pedestrians were crossing Lake Street from the south to the north side.

[9]

Mr. Brown had left the hockey game and headed north to Lake Street.  He
    was crossing Lake Street in the middle of the block and had just crossed the
    paved portion onto the north shoulder of the road when he was struck from
    behind by the appellants vehicle.  The appellant did not brake before striking
    Mr. Brown.

[10]

Mr.
    Browns daughter-in-law who had been at the game with Mr. Brown, had also
    crossed Lake Street in the middle of the block.  She was walking just ahead of
    Mr. Brown when she was struck.  It is unclear whether she was hit by the
    appellants vehicle, or by Mr. Brown after he had been struck by the
    appellants vehicle.

[11]

Immediately
    after striking Mr. Brown, the appellant applied his brakes.  His car skidded
    and struck and killed Mr. Hill.  Mr. Hill had crossed Lake Street in the middle
    of the block and was walking on the north shoulder of the road.

[12]

The
    appellant stopped at the scene of the accident.  He was very distraught.  There
    was no evidence of drug or alcohol consumption.

B.

the conviction appeal

[13]

The
    appellant alleges legal errors by the trial judge in his analysis of the elements
    of the offence of dangerous driving causing death.  The appellant also alleges
    unreasonable findings of fact.  We start with the latter submission.

(i)

The Factual Findings

[14]

The
    trial judge found that the appellant was driving too fast.  He said, at para. 42:

In my view, however, when all of the evidence is considered
    together, including the witnesses observations, the experts opinion and the
    photographic evidence of the damage to the vehicle, these factors are all
    corroborative of the finding that Mr. Laverdure was driving at a high rate of
    speed on a city street.

[15]

The
    trial judge recognized that the evidence did not permit a finding of the
    appellants exact speed.  He also recognized that the different witnesses gave
    various opinions as to the appellants speed.  The trial judge did, however,
    accept the evidence of the accident reconstructionist that the appellant was
    going about 60 km/hr when he struck Mr. Hill.  It is noteworthy that the
    appellant had applied his brakes just before he struck Mr. Hill.  The speed
    limit on Lake Street is 50 km/hr.

[16]

There
    was abundant evidence that the appellant was driving sufficiently fast to
    attract the attention of several pedestrians.  The forensic evidence also
    suggested significant speed, both when the appellant struck Mr. Brown and when
    he struck Mr. Hill.  The evidence supported the trial judges finding that the
    appellant was driving at a high rate of speed on a city street.

[17]

The
    second contested factual finding relates to the circumstances as they existed
    when the appellant was driving along Lake Street at a high rate of speed. 
    The trial judge found that those circumstances, and in particular the heavy
    pedestrian traffic beside and on Lake Street, called for drivers to slow down
    and proceed cautiously.

[18]

Once
    again, the record justifies this factual finding.  It is irrelevant whether the
    appellant was aware of, or should have been aware of, the reason for the heavy
    pedestrian traffic.  It is equally unimportant how that heavy traffic compared
    to traffic at the same location at other times.  The important point for this
    factual finding was that there were many people standing beside, crossing and
    walking along the side of Lake Street when the appellant accelerated away from
    the stop light at Nighbor.

[19]

We
    see no basis upon which to interfere with the trial judges findings of fact. 
    Accepting those findings, we turn to the trial judges analysis of the
actus
    reus
and
mens rea
.

(ii)

The
Actus Reus

[20]

The
actus reus
of dangerous driving is well-captured by the language of s.
    249 of the
Criminal Code
.  The manner of driving must be dangerous to
    the public, having regard to all the circumstances in which the driving
    occurs.  Here, the manner of driving consisted of driving at a high rate of
    speed.  The circumstances consisted of the heavy pedestrian traffic beside and
    on Lake Street.

[21]

The
    trial judge held that the appellants driving at a high rate of speed in
    circumstances that calls for drivers to slow down and exercise caution amounted
    to driving in a manner that was dangerous to the public.  The trial judge did
    not, as the appellant contends, reason backwards from the accident to a finding
    that the manner of driving was dangerous.

[22]

We
    cannot fault the trial judges reasons as they relate to the
actus reus
. 
    The trial judge did exactly what s. 249 commands.  First, he determined the
    manner of driving  the appellant was driving too fast.  Second, he placed that
    driving in the context in all of the circumstances  the heavy pedestrian
    traffic on and around Lake Street.  Finally, he examined the manner of driving
    in the circumstances as he found them, and concluded that it constituted a
    danger to the public.  That conclusion was reasonably open to the trial judge.

(iii)

The
Mens Rea

[23]

The
    offence of dangerous driving is not proved by showing only that the accused
    drove in a manner that was dangerous to the public.  There is a fault element. 
    The Crown must prove that the manner of driving amounted to a marked departure
    from the standard of care that a reasonable person would observe if placed in
    the circumstances in which the accused found himself.  The fault component of
    dangerous driving focuses on the conduct of the accused and is intended to
    distinguish driving that is sufficiently egregious in all of the circumstances
    to warrant criminalization from other less serious forms of bad driving, such
    as careless driving: see
R. v. Beatty
, [2008] 1 S.C.R. 49, at paras.
    36-43, 47-49.

[24]

The
    trial judge was aware of the fault requirement.  At para. 38, he noted that
    dangerous driving requires more than proving someone was driving carelessly or
    negligently.  At para. 39, he said:

To be guilty of dangerous driving an accused must be shown to
    have driven in a manner that amounts to a marked departure from the standard
    expected of a reasonable person in the same circumstances. In order to prove
    the charge, Crown counsel must show how and in what way the driver went
    markedly beyond mere carelessness.

[25]

The
    trial judge moved from a description of the requisite
mens rea
to an
    application of the law to the facts as he found them.  In doing so, he
    considered at length whether the driving was dangerous to the public in all of the
    circumstances.  Having found that it was dangerous in all of the circumstances,
    the trial judge did not engage in a similar analysis of the evidence as it
    related to the
mens rea
issue.  Rather, the trial judge appears to
    have concluded that the act of driving dangerously necessarily constituted what
    he referred to as a marked departure from what a reasonable person would
    expect in the circumstances.  He did not identify the how and in what way
    the appellants driving went beyond negligence or carelessness and reached the
    level of a marked departure from the standard of care that a reasonable person
    would show in the same position:
R. v. Roy
, [2012] 2 S.C.R. 60, at
    para. 30;
R. v. Reynolds
, [2013] ONCA 433, at para. 18.

[26]

The
    trial judges reasons reveal a full appreciation of the evidence and the nature
    of the
mens rea
requirement for the offence.  Unfortunately, the trial
    judges relating of the evidence and the facts as he found them to the fault
    component of the offence, does not provide an explanation for how and in what
    way the nature of the appellants driving showed the necessary marked
    departure from the standard of care that a reasonable person would show in the
    same circumstances.

[27]

In
    some cases, the manner of driving as found by a trial judge will be
    sufficiently egregious as to permit the finding of the requisite fault element
    without any additional analysis of the evidence as it relates to the
mens
    rea
.  We cannot, however, say that the evidence in this case reaches that
    level.

[28]

The
    failure to fully analyze the evidence as it related to the fault component of
    the offence constitutes an error in law.  While the evidence could support a
    finding of the requisite
mens rea
for dangerous driving, we cannot say
    that no other conclusion was reasonably available on this evidence.

C.

conclusion

[29]

The
    appeal is allowed, the conviction is quashed and a new trial is ordered on the
    charge of dangerous driving causing death.

Doherty J.A.

Paul Rouleau J.A.

Fairburn J.A.


