R. v. Areco

R. v. Areco Collection Decisions of the Court of Appeal Date 1999-11-18 Docket numbers C25505 Judges Osborne, Coulter Arthur Anthony; Doherty, David H.; Charron, Louise Vivianne Subject Criminal Decision Content DATE: 19991118 DOCKET: C25505 COURT OF APPEAL FOR ONTARIO OSBORNE A.C.J.O., DOHERTY and CHARRON JJ.A. BETWEEN: ) ) William E. Naylor, HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) M. David Lepofsky, ) for the respondent GUILLERMO ARECO ) ) Appellant ) ) Heard: September 22, 1999 ) On appeal from his conviction by Mr. Justice Locke on June 19, 1996 and from the sentence imposed on September 4, 1996 BY THE COURT: [1] Following his trial before Locke J., sitting without a jury, the appellant was found guilty of one count of dangerous driving causing death and two counts of dangerous driving causing bodily harm, contrary to s. 249 of the Criminal Code. He was convicted of the offence of dangerous driving causing death and the remaining two counts were stayed pursuant to the principle in R. v. Kineapple, [1975] 1 S.C.R. 729 relating to multiple convictions. He was sentenced to a term of one year in prison and prohibited from driving for a period of three years. He appeals his conviction and seeks leave to appeal his sentence. [2] The charges arose out of a motor vehicle accident which occurred in Toronto on November 13, 1994, near the intersection of Dufferin Street and Rosemount Avenue. At that location, Dufferin Street is a four-lane roadway which runs north and south and Rosemount Avenue runs east and west. Around 3:30 a.m., the appellant was driving his vehicle northbound on Dufferin Street in the left northbound lane. In the back seat of his car were two teen-age girls, Ana Lucero and Elianna Calderon. At the same time, Muktar Ahman was driving his taxi in a southerly direction in the left southbound lane of Dufferin Street. He had two passengers in the back seat of his vehicle. Suddenly, the appellant drove his vehicle across the centre line and crashed into the taxi. The two cars were very seriously damaged and had to be pried apart. Elianna Calderon died as a result of the crash. Both Ana Lucero and Muktar Ahman were injured. The appellant was also injured. [3] No one in the appellant’s vehicle could give evidence about the accident. The appellant had no memory of the crash itself or of events that followed. Ms. Calderon was killed instantly and Ms. Lucero was asleep at the time. One unrelated eyewitness, who was travelling northbound on Dufferin Street and whose vehicle had been passed by the appellant shortly before the collision, estimated that the appellant was driving at 70 to 75 kilometres in this 50 kilometre zone. The taxi driver and his two passengers also testified. The gist of their testimony was that the accident had happened very quickly and that the appellant had taken no evasive action. Two police accident reconstructionists were also called as witnesses. There is no suggestion in the evidence that alcohol or drugs contributed to this accident. There is also no suggestion of any defect to either of the two cars involved in the collision or to the road. The weather was clear and the pavement was dry. [4] The trial judge found that the appellant was travelling at an excessive speed, that he crossed the centre line of the roadway and that he collided with the taxi without applying the brakes or taking any evasive action. He held further that, absent any evidence that would support a non-blameworthy inference, the appellant’s manner of driving constituted a marked departure from the standard of care that a reasonable person would observe in the appellant’s situation and, consequently, constituted dangerous driving within the meaning of the Criminal Code R.S.C. 1985, c. C-46. Section 249(1) defines dangerous driving as the operation of a motor vehicle “in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.” [5] The appellant raises a number of grounds of appeal against conviction, some of which relate to the reasonableness of the verdict and others to the applicable burden of proof. We see no reason to interfere with the verdict. [6] The trial judge made findings of fact that were open to him on the evidence and he applied the correct legal test to those facts. In particular, his finding that the appellant was driving at an excessive rate is supported by the testimony, which he accepted, of both the eye witness and the accident reconstructionist. Further, his finding that there was no evidence that would support a non-blameworthy inference is also reasonably supported on the evidence. It is contended that the appellant may have fallen asleep or lost consciousness. The appellant did not testify that he may have fallen asleep; on the contrary, he maintained that he was not tired. Even assuming that he may have fallen asleep, there is nothing in the evidence to support an inference that he may have unexpectedly been overcome by fatigue nor is there anything in the evidence that would suggest that the appellant may have lost consciousness. [7] The appeal against conviction is therefore dismissed. [8] The appellant also seeks to appeal his sentence. He takes no issue with the prohibition against driving but submits that the trial judge should have permitted him to serve his sentence in the community. [9] In determining the appropriate sentence, the trial judge considered the general principles of sentencing. He found it likely that the appellant had rehabilitated himself but, given the nature of the offence, he held that a period of incarceration was necessary to address the need for general deterrence. He then refused to accede to the defence’s request that the sentence be served in the community on the ground that a conditional sentence would demean the seriousness of the offence. [10] We see no reason to interfere with the sentence of one year's imprisonment given the seriousness of the offence and the need for general deterrence. It is our view, however, that the trial judge failed to have sufficient regard to the nature of the conduct that led to the tragic consequences and to the appellant’s personal circumstances when he refused to order that the sentence be served in the community. [11] There is no doubt that the offence was a serious one that resulted in immeasurable loss to the victims, particularly to the Calderon family who lost a precious daughter. The seriousness of the loss was properly reflected in the imposition of a term of imprisonment. However, it is not sufficient to look at the consequences alone when assessing the overall seriousness of an offence. The blameworthy conduct that led to these consequences must be considered. In this case, the appellant’s manner of driving, although dangerous in all the circumstances and deserving of a criminal sanction, was not the most egregious of its kind. Rather, in terms of relative seriousness, it certainly fell within the lower end of the range of dangerous driving offences. Hence, it is our view that the imposition of a conditional sentence would not have demeaned the seriousness of this offence. [12] Further, the appellant’s personal circumstances do not in any way militate against the imposition of a conditional sentence. Mr. Areco was born in 1972. He has no criminal record. At the time of the offence, he was 22 years old. At the time of sentencing, he was married, had one daughter and his wife was expecting a second child. He was employed and he supported his young family. Mr. Areco is also an athlete with excellent potential. The pre-sentence report reveals that he and his family are honest and hardworking and that they have also been affected by this most tragic accident. The author of the report recommended that a conditional sentence be considered as a sentencing option. We agree with this recommendation. In our view, appropriate terms can be imposed to satisfy the overall exigencies of this case. [13] Leave to appeal the sentence is granted and the sentence is varied so as to allow the appellant to serve the balance of his custodial sentence in the community (he has served approximately 20 days in jail) on the following conditions: 1. that he keep the peace and be of good behaviour; 2. that he appear before the court when required to do so by the court; 3. that he report to a supervisor a) within one week of the release of this judgment and b) thereafter, when required by the supervisor and in the manner directed by the supervisor; 4. that he remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; 5. that he notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation; 6. that he not be outside of his residence after 11:00 p.m. except where necessary for his employment, or for any medical requirements for him or his family; 7. that he perform a total of 180 hours of community service as deemed appropriate by the supervisor, at a rate of at least 15 hours per month, until the 180 hours are completed; and 8. that he refrain from association or communication with Nora Calderon, Jose Calderon, Sebastien Calderon or Linda Forias. [14] The prohibition against driving remains intact. It is our understanding that this order was not stayed pending the appeal and, hence, that it has now expired. (signed) "C. A. Osborne A.C.J.O." (signed) "Doherty J.A." (signed) "Louise Charron J.A." RELEASED: November 18, 1999