R. v. O’Keefe (G.M.) (2011), 309 Nfld. & P.E.I.R. 253 (NLCA);
962 A.P.R. 253
MLB headnote and full text
Temp. Cite: [2011] Nfld. & P.E.I.R. TBEd. JN.025
Gerard M. O’Keefe (appellant) v. Her Majesty the Queen (respondent)
(10/22; 2011 NLCA 41)
Indexed As: R. v. O’Keefe (G.M.)
Newfoundland and Labrador Supreme Court
Court of Appeal
Green, C.J.N.L., White and Harrington, JJ.A.
June 15, 2011.
Summary:
The accused was charged with two counts of criminal negligence causing bodily harm and two counts of dangerous operation of a motor vehicle causing bodily harm. At trial, the Crown conceded that it had not proved that the accused was criminally negligent in the operation of his motor vehicle. The accused admitted that he caused bodily harm to the two victims, but argued that it was an accident and that he was no more than civilly responsible for what happened.
The Newfoundland and Labrador Supreme Court, Trial Division, in a decision reported 293 Nfld. & P.E.I.R. 133; 906 A.P.R. 133, acquitted the accused of the two counts of criminal negligence causing bodily harm but convicted him of the two counts of dangerous operation of a motor vehicle causing bodily harm.
The Newfoundland and Labrador Supreme Court, Trial Division, in a decision reported at 295 Nfld. & P.E.I.R. 157; 911 A.P.R. 157, sentenced the accused to six months’ imprisonment and imposed a three year driving prohibition for each count (concurrent) plus two years’ probation. The court declined to impose a DNA order. The accused appealed his convictions and sentences.
The Newfoundland and Labrador Court of Appeal dismissed the appeals.
Criminal Law – Topic 1391
Motor vehicles – Dangerous driving – What constitutes – On January 31, 2009, at 6:30 p.m., the 27 year old accused was driving down a town residential street in his Cavalier car at a high rate of speed – The speed limit was 30 kph – The street was narrow in places and there were no sidewalks – The street was a major thoroughfare in the town – It was dark – The accused had four passengers with him – The music was playing loudly – He had a beer either in his hand or resting between his legs – He made a sharp left-hand turn at an intersection and was partly in the oncoming lane of traffic – He saw an oncoming truck, braked and swerved right to avoid the truck – The car slid sideways into a utility pole, ricocheted off the pole and struck two pedestrians – The accused passed an Alert test (0.02 blood-alcohol level) – The pedestrians suffered significant injuries – The trial judge convicted the accused of two counts of dangerous operation of a motor vehicle causing bodily harm – The accused drove his vehicle at an excessive rate of speed that was too fast for the prevailing conditions – He lost control of his vehicle because of his speed and caused bodily harm to the pedestrians when he collided with them – He did not experience a momentary lapse of attention – The accused’s driving departed markedly from the standard of prudent driving – The accused appealed, arguing that the evidence constituted nothing more than a “momentary lapse” as opposed to a “marked departure” in his driving behaviour – The Newfoundland and Labrador Court of Appeal rejected the argument – The trial judge properly rejected the submission that the accused’s driving behaviour constituted merely a “momentary lapse” – See paragraphs 27 to 48.
Criminal Law – Topic 5720.4
Punishments (sentence) – Conditional sentence – When available or appropriate – [See
Criminal Law – Topic 5865.1
].
Criminal Law – Topic 5798
Punishments (sentence) – Prohibition orders – Respecting driving of motor vehicle – [See
Criminal Law – Topic 5865.1
].
Criminal Law – Topic 5865.1
Sentence – Dangerous driving causing death or bodily harm – The 27 year old accused drove down a town residential street in his car at a high rate of speed, lost control trying to avoid a truck and collided with two pedestrians, a mother and her young daughter, who suffered serious personal injuries – The accused’s car was loaded with four passengers and other goods – The music was playing loudly – He had a beer either in his hand or resting between his legs – He had a low blood-alcohol level (.02) – He was convicted of two counts of dangerous operation of a motor vehicle causing bodily harm – He had a partner and an 11 month old son – He was employed as a roofer and needed a driver’s license for his employment – The pre-sentence report was quite positive – The accused was assessed as a very low risk to re-offend – He was generally remorseful but had not accepted full responsibility for his behaviour – He had an unrelated and dated record for uttering threats but had a prior conviction for having open liquor in a vehicle – The trial judge declined a conditional sentence and sentenced the accused to six months’ imprisonment and imposed a three year driving prohibition for each count (concurrent) plus two years’ probation – The Newfoundland and Labrador Court of Appeal dismissed the accused’s sentence appeal – A conditional sentence was not available given Parliament’s legislative message in s. 742.1 of the Criminal Code that a conditional sentence did not provide sufficient denunciation and general deterrence for a serious personal injury offence – The six month non-intermittent sentence was not outside the appropriate range given the accused’s reckless driving behaviour and the seriousness of the injuries suffered by the victims – See paragraphs 49 to 82.
Cases Noticed:
R. v. Beatty (J.R.), [2008] 1 S.C.R. 49; 371 N.R. 119; 251 B.C.A.C. 7; 420 W.A.C. 7; 2008 SCC 5, refd to. [para. 18].
R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 33].
R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 33].
R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 33].
R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 56].
R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 57].
R. v. Synard (M.) (2006), 257 Nfld. & P.E.I.R. 341; 776 A.P.R. 341; 2006 NLTD 101, refd to. [para. 62].
R. v. Bennett, 2007 CanLII 11290 (N.L.P.C.), refd to. [para. 63].
R. v. Tapper (G.) (2009), 287 Nfld. & P.E.I.R. 170; 885 A.P.R. 170; 2009 NLTD 97, refd to. [para. 64].
R. v. Belanger (R.) (2009), 266 O.A.C. 329; 2009 ONCA 867, refd to. [para. 65].
R. v. Cepic (D.), [2010] O.T.C. Uned. 561; 2010 ONSC 561, refd to. [para. 67].
R. v. Thompson (M.), [2011] O.T.C. Uned. 624; 2011 ONSC 624, refd to. [para. 69].
Counsel:
Glen W. Picco, for the appellant;
Vikas Khaladkar, for the respondent.
These appeals were heard on June 15, 2011, before Green, C.J.N.L., White and Harrington, JJ.A., of the Newfoundland and Labrador Court of Appeal. Harrington, J.A., delivered the following judgment for the Court of Appeal on June 15, 2011.
