) ) HER MAJESTY THE QUEEN Appellant – v. –, 2017 ONSC 4032

CITATION : R. v. Marton, 2017 ONSC 4032 COURT FILE NO.: 34/16 DATE: 2017-06-29 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Appellant – and – DANIEL MARTON Respondent ) ) ) ) ) ) ) ) Arish Khoorshed for the Crown, Appellant No one for the Accused, Respondent ) ) HEARD: June 28, 2017 REASONS FOR JUDGMENT gray j. [ 1 ] This is an appeal by the Crown from the acquittal of Mr. Marton, by Forsyth J. of the Ontario Court of Justice, of a charge of dangerous operation of a motor vehicle. Mr.

Marton was also acquitted of a charge of failing to stop his vehicle while being pursued by a police officer. The Crown does not appeal the acquittal of that charge. Background [ 2 ] The trial judge issued lengthy reasons for judgment, and I have borrowed extensively from his reasons in setting out the background of this matter. [ 3 ] In the early hours of the morning of September 16, 2014, Officer Steve Hulsman of the OPP was on patrol on the Queen Elizabeth Way near Third Line in Oakville.

He had in his possession a speed laser Atlanta device. [ 4 ] Officer Hulsman testified that at 2:10 a.m., the traffic was light and the road was dry and clear. He observed a motor vehicle driving in the slow lane of the highway. The vehicle was travelling very fast and was passing other vehicles. Using his radar device, he clocked speeds of 182 and 171 kilometres per hour on the vehicle. He notified dispatch, and then followed the vehicle in order to stop it. [ 5 ] When he caught up to the vehicle, he activated his grill lights and the siren.

He testified that the vehicle activated a signal light and moved towards the right hand shoulder of the highway, but then the car sped off again. The officer followed in an attempt to catch up. [ 6 ] The officer testified that when the vehicle attained a speed of 200 kilometres per hour, he could not keep up because the top speed of his cruiser was 205 kilometres per hour. The vehicle he was chasing was described as a white Volvo. [ 7 ] The Volvo exited at the Burloak exit from the QEW. While he was far behind, he did see the Volvo turn right to go northbound on Burloak.

There was no other traffic going in that direction. [ 8 ] The officer followed the vehicle on Burloak and it was travelling between 100 and 120 kilometres per hour in what is a 60 kilometre per hour limit. Ultimately, he observed the Volvo spinning and eventually colliding with a steel guard rail. [ 9 ] Mr. Marton was arrested on the dangerous driving charge at 2:21 a.m. The officer conducted an ASD test, but the reading was only 13 milligrams of alcohol in 100 millilitres of blood. [ 10 ] Mr. Marton testified that he had been attending a birthday party in Mississauga.

He testified that when he was driving on the QEW he was driving in the middle lane at 100 – 120 kilometres per hour when he noticed headlights following him. He said he was “freaked out” by the headlights as they came right up to the bumper of his vehicle behind him. He decided to run for it, so he sped up and took the exit at Burloak. He said he believed his life was at risk and his nerves were shot. He lost control of his vehicle on Burloak

and collided with a guard rail. [11] Mr. Marton denied that he had heard any siren coming from the vehicle behind him. [12] As noted earlier, the Crown has not appealed the acquittal of the charge that Mr. Marton evaded the police vehicle andfailed without lawful excuse to stop the vehicle.

Accordingly, I will say no more about it. [13] With respect to the dangerous driving charge, I note that the trial judge encapsulated the Crown’s submission as follows: While the Crown acknowledges that the current state of the common law in dangerous driving charges is that mere speed alone is ofteninsufficient to substantiate a dangerous driving charge beyond a reasonable doubt, nevertheless such a high rate of speed, approximately80 kilometres in excess of the posted limit, on a major four-lane highway with at least some other traffic on it at the time might well beconsidered to be sufficient to substantiate a charge of dangerous driving after the court applies the modified objective test from R. v.Beatty, supra, to the totality of the evidence. [14] I will have more to say about what appears to be the Crown’s submission with respect to speed alone, in a moment. [15] In substance, counsel for Mr.

Marton argued that the Crown had not proven the elements of dangerous driving beyond areasonable doubt. In the alternative, counsel argued that Mr. Marton should be acquitted on the basis of the defence of necessity. [16] The trial judge rejected the defence of necessity, but held that the charge of dangerous driving had not been proven by theCrown beyond a reasonable doubt. [17] While the trial judge does not specifically say so, it seems clear from his reasons that he accepted that Mr. Marton wasdriving on the QEW at speeds of 171 kilometres and 182 kilometres per hour, particularly because Mr.

Marton, in his evidence, did notdispute that that was so. He also accepted that Mr. Marton was driving at speeds of 100 – 120 kilometres per hour on Burloak where thespeed limit was 60 kilometres per hour. [18] For the most part, the trial judge accepted the evidence as to Mr. Marton’s driving, and the conditions under which heoperated his vehicle.

At paragraphs 86-89 of his reasons, the trial judge stated: [86] I also accept the officer’s evidence that the accused passed a truck which was driving behind a car at some unquantified distancebetween them and then drove back into the inside lane briefly in order to the Burloak exit. However, I also find from the officer’s ownevidence that I cannot be certain that the accused caused an evasive action to be taken by the truck driver, or, for that matter, that he hadalmost cut off the truck with his manoeuvre.

Indeed the officer gave no evidence of brake lights being activated on the truck as theaccused passed in front of it to take the exit and he was too far away to see whether the accused had signalled his exit. [87] From the totality of the officer’s evidence, I find that there was no traffic interfered with by the accused’s operation of his car at thehigh rates of speed that both the officer and the accused testified had been attained by the accused on the Q.E.W. [88] I also find that that only the light traffic would be expected to be on that

section of the highway at that time of the morning and thatthe road surface was safe as having been dry with no impediment to visibility. [89] On Burloak there was no evidence of any other vehicular traffic on the accused’s route north to the point of his collision with theguardrail at the end of the travelled portion of Burloak where it becomes the entrance to Bronte Creek Park. [19] At paragraph 91 of his reasons, the trial judge stated: [91] It has been established that mere speed alone will not substantiate a charge of dangerous driving as a marked departure from thenorm in the absence of a contextual analysis of that speed with the words of the section 249(1)(

a) of the Criminal Code. It must be saidthat perhaps there is a speed beyond which a motor vehicle may be considered to be inherently unsafe and thereby present a danger to thepublic or to any other traffic that might be or might be expected to be in the area because of a potential loss of control by the driver oraerodynamic forces such as hydroplaning.

However, this would require expert evidence about the type of vehicle and evidence of theparticular driving skills of the driver, which clearly is not present in this case. [20] The trial judge’s conclusion was as follows: [93] In conclusion, then, I find that I am not persuaded beyond a reasonable doubt that, on the totality of the evidence, the accused,objectively, was driving in a manner that was ‘dangerous to the public, having regard to all the circumstances, including the nature,condition, and use of the place at which the vehicle is [was] being operated and the amount of traffic that at the time is [was] or mightreasonably be expected to be [have been] at that place’. [94] For these reasons, I find that the Crown has failed to establish beyond a reasonable doubt the actus reus of the charge pursuant tos.249(1)(

a) of the Code. Submissions [21] Mr. Khoorshed, counsel for the Crown, submits that the trial judge committed an error of law when he stated that speedalone cannot found a conviction for dangerous operation of a motor vehicle. He submits that the Court of Appeal, in R. v. Richards(2003), (ON CA), 174 C.C.C. (3d) 154 (Ont. C.A.), held to the contrary. He submits that the Court of Appeal’sdecision stands for the proposition that excessive speed, standing alone, can form the basis of a conviction. [22] Mr. Khoorshed submits that this conclusion is not affected by the subsequent decision of the Supreme Court of Canada in

R. v. Beatty, 2008 SCC 5 , [2008] S.C.J. No. 5, and this has been recognized by judges of this court in R. v. Ranger, [2015] O.J.No. 1423 (S.C.J.); and R. v. Aleksev, 2016 ONSC 1834 , [2016] O.J. No. 1962 (S.C.J.). [23] Mr. Khoorshed requests that the appeal be allowed, and a conviction substituted. Analysis [24] As noted earlier, it might appear, from the reasons of the trial judge, that counsel for the Crown at trial took a positionthat is contrary to the position of the Crown on appeal.

According to the trial judge, counsel for the Crown acknowledged that merespeed alone is often insufficient to substantiate a dangerous driving charge beyond a reasonable doubt. In this court, the Crown arguesthat speed alone can be sufficient to substantiate a dangerous driving charge. [25] Mr. Khoorshed points out that when one reviews the transcript of Crown counsel’s submissions at trial, it does not appearthat Crown counsel took the position that the trial judge apparently believed he took. [26] Having reviewed the transcript, I think Mr.

Khoorshed is right. [27] In any event, even if Crown counsel did take the position at trial that the trial judge ascribes to him, I do not think thatwould be fatal to the Crown’s position on appeal. It is clear, in my view, that if a trial judge is urged by the accused to accept a principleof law that is incorrect, and it is in fact incorrect, that does not in any way restrict the accused from arguing the contrary proposition onappeal: see R. v. MacLeod (2014), 2014 NSCA 63 , 311 C.C.C. (3d) 300 (N.S.C.A.); aff’d 2014 SCC 76, [2014] 3 S.C.R. 619.

I see no reason why the same principle should not apply to the Crown. [28] With respect, I do not think the Richards case, relied on by the Crown, goes quite as far as Mr. Khoorshed would have it. [29] In Richards, the court discussed two earlier decisions of the Court of Appeal: R. v. Pezzo (1972), (ONCA), 9 C.C.C. (2d) 530 (Ont. C.A.); and R. v. M.K.M., [1998] O.J. No. 1606 (C.A.). [30] In Pezzo, the Crown had given particulars of dangerous driving and had restricted it to excessive speed.

Based on what thecourt characterized as the “scanty evidence” presented, the majority of the Court concluded that it would be unsafe to maintain aconviction. [31] Gale C.J.O. dissented. He held that, depending on the conditions, excessive speed can support a conviction for dangerousdriving.

He stated: Moreover, I am of the view that, in all the circumstances, including the nature, condition and use of the place where the automobile wasbeing driven, and the kind of traffic that at time might reasonably be expected to be present including pedestrian traffic, such excessivespeed represented dangerous driving on the part of the appellant within the definition s.233(4) of the Criminal Code. [Emphasis Added] [32] In M.K.M., the court, in its endorsement, stated at para. 2: Depending on the context in which it occurred, excessive speed can amount to a marked departure from the standard of care of a prudentdriver.

Here the context included the following: the accident occurred on a busy highway in a built-up area of Mississauga, and justbefore the accident the appellant had been driving aggressively and engaging in “horseplay” on the road with her co-accused. [Emphasis added] [33] In Richards itself, the court stated at para. 11: “This court recognized in Pezzo, under certain circumstances, evidence ofexcessive speed, in itself, can constitute the offence of dangerous driving.” [Emphasis added] [34] Significantly, in Richards, the court declined to substitute a conviction.

It ordered a new trial so that the surroundingcircumstances could be considered, along with the speed of the vehicle. At para. 14, the court noted that although the posted speed inthe area was 100 kilometres per hour, speeds in the passing lane of up to 130 kilometres per hour were not uncommon.

At para. 15 thecourt stated: “Given the evidence which indicated the speeding practices of other drivers on the highway where the accident occurred,we are not persuaded that the demonstrated evidence supports no conclusion other than the conclusion that the respondent’s driving wasa marked departure from the standard of care of a reasonable driver in a similar situation.” [35] It is clear from these cases, in my view, that it is necessary to take into account the surrounding circumstances in order todetermine whether excessive speed necessarily gives rise to a conviction for dangerous driving. [36] In this case, the trial judge found that there was no traffic interfered with by Mr.

Marton’s operation of his car at the highrates of speed at which it was travelling; only light traffic would be expected to be on that

section of the highway at that time of themorning; the road surface was safe having been dry with no impediment to visibility; and that on Burloak there was no evidence of anyother vehicular traffic on Mr. Marton’s route to the point of his collision with the guard rail.

To repeat, his conclusion was as follows: [93] In conclusion, then, I find that I am not persuaded beyond a reasonable doubt that, on the totality of the evidence, the accused,objectively, was driving in a manner that was ‘dangerous to the public, having regard to all the circumstances, including the nature,condition, and use of the place at which the vehicle is [was] being operated and the amount of traffic that at the time is [was] or mightreasonably be expected to be [have been] at that place’. [Emphasis added]

[ 37 ] The trial judge’s conclusion was open to him on the evidence, which included evidence of excessive speed as well as the surrounding circumstances. No reviewable error has been shown. Disposition [ 38 ] The appeal is dismissed. Gray J. Released: June 29, 2017 CITATION : R. v. Marton, 2017 ONSC 4032 COURT FILE NO.: 34/16 DATE: 2017-06-29 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Daniel MARTON Respondent REASONS FOR JUDGMENT GRAY J. Released: June 29, 2017