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Canada Judgment

British Columbia Court of Appeal

R. v. McIvor

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01

Holding and result

The appeal is dismissed because the trial judge reasonably concluded that the appellant's sustained pattern of excessive speed, drinking while driving, failure to heed a clear advisory/warning sign, and repeated loss of lane control together constituted a marked departure from the standard of care required for dangerous driving causing death; the mistake of fact was unreasonable in the circumstances and the verdict was supported by the evidence.

Court disposition

Appeal dismissed; conviction for dangerous driving causing death upheld

Orders

  • Appeal dismissed
  • Conviction for dangerous driving causing death under s.249(4) Criminal Code affirmed

02

Material facts

Parties

Regina

Respondent Counsel: M. Joyce DeWitt-Van Oosten

Brian Marland McIvor

Appellant Counsel: John Green

Amounts and remedies

  • Blood Alcohol Mg Per 100m L Tested Approx: 120
  • Possible Blood Alcohol Mg Per 100m L at Accident Estimate: 30
  • Speed Limit Urban Km H: 50
  • Speed Limit Rural Km H: 60
  • Advisory Speed Km H: 40
  • Expert Minimum Estimated Speed Km H: 55

03

Procedural history

  1. Posture

    Criminal Appeal (dangerous Driving Causing Death) / Appeal From Provincial Court; Judgment of Court of Appeal

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant argued the trial judge erred in finding a marked departure from the standard of care. He submitted his loss of control was a reflexive response to an optical illusion - he reasonably believed oncoming vehicles were in his lane and acted to avoid imminent collision; his actions were reasonable in the circumstances and constituted a reasonable mistake of fact. He also argued the trial judge overstated the significance of the warning sign and that the verdict was therefore unreasonable.
Respondent
The Crown argued the trial judge correctly assessed the totality of the appellant's conduct — prolonged excessive speed, consumption of alcohol while driving, straddling the centre line, failure to heed a clear warning sign and loss of control — as amounting to a marked departure from the standard of care. The Crown maintained the mistake of fact was unreasonable in light of the warning sign and road conditions and that the verdict was supported by the evidence.

05

Court’s reasoning

  1. 01

    R. v. Beatty, 2008 SCC 5; Criminal Code s. 249(4)

    Dangerous driving requires (a) objectively dangerous driving (actus reus) and (b) objective mens rea: the dangerous conduct must amount to a marked departure from the standard of care a reasonable person would observe in the accused's circumstances

  2. 02

    R. v. Beatty, 2008 SCC 5; R. v. Tutton, [1989] 1 S.C.R. 1392

    A reasonably held mistake of fact can be a complete defence if, on the accused's reasonable perception of the facts, the conduct met the requisite standard of care

  3. 03

    R. v. Brannan, 1999 BCCA 669; R. v. Asuchak, 1999 BCCA 502

    Evidence of prior alcohol consumption may be excluded as a factor in assessing driving culpability depending on precedents

06

Ratio, limits and disposition

Ratio decidendi

The appeal is dismissed because the trial judge reasonably concluded that the appellant's sustained pattern of excessive speed, drinking while driving, failure to heed a clear advisory/warning sign, and repeated loss of lane control together constituted a marked departure from the standard of care required for dangerous driving causing death; the mistake of fact was unreasonable in the circumstances and the verdict was supported by the evidence.

Obiter and limits

  • The trial judge's comment that the situation could have been "clarified in a second or two" was unfortunate but did not amount to reversible error
  • This case is distinguishable from R. v. Beatty because the dangerous conduct occurred over a sustained period rather than in the instant immediately before the collision
  • The road grade was obvious and the warning sign was adequate in the circumstances

Court disposition

Appeal dismissed; conviction for dangerous driving causing death upheld

  • Appeal dismissed
  • Conviction for dangerous driving causing death under s.249(4) Criminal Code affirmed

Source and reliance status

British Columbia Court of Appeal · 3 December 2009

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Authorities

Authorities used by the court

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R. v. McIvor, 2009 BCCA 551

Case cited

R. v. Beatty, 2008 SCC 5

Case cited

R. v. Brannan, 1999 BCCA 669

Case cited

R. v. Asuchak, 1999 BCCA 502

Case cited

R. v. Willock

Case cited

R. v. Tutton, [1989] 1 S.C.R. 1392

Case cited

Criminal Code, R.S.C. 1985, c. C-46, s. 249(4)

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