R. v. Murray (S.H.), (1994) 75 O.A.C. 10 (CA)

• Judge: Finlayson, McKinlay and Austin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 13, 1994
• Jurisdiction: Ontario
• Citations: (1994), 75 O.A.C. 10 (CA)

R. v. Murray (S.H.) (1994), 75 O.A.C. 10 (CA)

MLB headnote and full text

Her Majesty the Queen (respondent) v. Scott Harold Murray (appellant)

(C13974)

Indexed As: R. v. Murray (S.H.)

Ontario Court of Appeal

Finlayson, McKinlay and Austin, JJ.A.

October 13, 1994.

Summary:

The accused was convicted of criminal negligence causing death and failing to remain at the scene of an accident under ss. 220 and 252(1) of the Criminal Code. He was sentenced to five years' imprisonment on the first charge and one year consecutive on the second. He was prohibited from driving for ten years. The accused appealed both conviction and sentence.

The Ontario Court of Appeal allowed the appeal against conviction for criminal negli­gence causing death, set aside the conviction and entered an acquittal. The court pro­hibit­ed the accused from driving for three years under s. 259(2)(c) of the Code and increased his sentence for failing to remain at the scene of an accident to two years.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right of accused to make full answer and defence - [See Criminal Law - Topic 128 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - What constitutes "within a reasonable time" - An accused argued that his right to a speedy trial (s. 11(b), Charter) was infringed where 24 months elapsed between his arrest and the com­mencement of the trial - The Ontario Court of Appeal rejected the argument - The court held that a significant part of the delay was attributable to the defence's attempt to obtain additional forensic evi­dence and "the amount of systemic delay, spread over two levels of court, was rea­sonable" - See paragraph 6.

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - The accused was convicted of criminal negligence causing death and failing to remain at the scene of an accident - He was driving his mother's vehicle - After the police examined it, it was released to Byer's Towing - Byer's made no attempt to contact the owner - Thereafter, it was sold to pay for accrued storage charges, stolen, wrecked and burned - The accused appealed, arguing, inter alia, that he was denied an opportu­nity to provide full answer and defence (Char­ter, s. 7), because the police failed to preserve the vehicle - The Ontario Court of Appeal rejected the argu­ment - The accused's request to ex­amine the vehicle was not timely - No prejudice, beyond the realm of pure specu­lation, was established - See paragraphs 3 to 5.

Criminal Law - Topic 1228

Criminal negligence - Elements - The accused struck and killed a cyclist - The Ontario Court of Appeal upheld his con­viction for failing to remain at the scene of an accident, but entered an acquittal on the charge of criminal negligence causing death - There was no evidence on how the accused was driving or what the victim was doing at the time of impact - While the Crown relied heavily on the accused's conduct after the accident, the trial judge did not rely on consciousness of guilt in convicting the accused - The evidence was equivocal and could point only to the crime of failing to remain at the scene of the accident - If it did point to the stan­dard of driving, the standard could be wanton and reckless, dangerous, or merely careless - See paragraphs 8 to 10.

Criminal Law - Topic 1359

Motor vehicles - Failing to stop at acci­dent scene - Evidence and proof - The accused was convicted of criminal negli­gence causing death and failing to remain at the scene of an accident - He appealed both conviction and sentence - The Ontario Court of Appeal upheld the con­viction for failing to remain at the scene of an accident - There was no doubt that the accused's vehicle killed the victim - While he did stop initially, he did not give his name or address or offer assistance to the victim (Criminal Code, s. 252(1)(b)) - He then left the scene, and later fled to "the bush" for a few days - He was appre-hended, after a brief pursuit, on his way to the airport to fly out of the juris­diction - See paragraph 7.

Criminal Law - Topic 5313.01

Evidence and witnesses - Inferences - From consciousness of guilt - [See Crim­inal Law - Topic 1228 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sen­tences - Reduced total term - The accused was convicted of criminal negligence causing death and failing to remain at the scene of an accident - He was sentenced to five years' imprisonment on the first charge and one year consecutive on the second - He appealed both conviction and sentence - The Ontario Court of Appeal set aside the conviction for criminal negli­gence causing death and entered an acquittal - However, the court increased the sentence for failing to remain at the scene of an accident to two years - The trial judge was cognizant of the principle of totality and aware that the accused was receiving six years on both convictions - Taken by itself, one year was not an ap­propriate sentence for leaving this acci­dent scene - See paragraphs 11 to 13.

Criminal Law - Topic 5866

Sentence - Leaving scene of an accident - [See Criminal Law - Topic 5804 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sen­tence - Powers of appeal court - The accused was convicted of criminal negli­gence causing death and failing to remain at the scene of an accident - He was sentenced to five years' imprisonment on the first charge and one year consecutive on the second - The accused appealed both conviction and sentence - The Ontario Court of Appeal set aside the conviction for criminal negligence causing death and entered an acquittal - However, the court increased the sentence for failing to remain at the scene of an accident to two years - The court noted that since the accused placed the totality of his sentence in issue, the power of the court to increase his sentence was in no way dependent upon an appeal being asserted by the Crown - See paragraph 11.

Cases Noticed:

R. v. D.A. (1992), 57 O.A.C. 295; 10 O.R.(3d) 241 (C.A.), refd to. [para. 5].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [para. 10].

R. v. Hill (No. 2) (1975), 7 N.R. 373; 25 C.C.C.(2d) 6 (S.C.C.), refd to. [para. 11].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 3]; sect. 11(b) [para. 6].

Criminal Code, R.S.C. 1985, c. C-46, sect. 220, sect. 252(1) [para. 1]; sect. 252(1)(b) [para. 7]; sect. 259(2)(c) [para. 13]; sect. 687(1) [para. 11].

Counsel:

Brent L. Claridge, for the appellant;

Gary T. Trotter, for the respondent.

This appeal was heard on October 13, 1994, by Finlayson, McKinlay and Austin, JJ.A., of the Ontario Court of Appeal. The follow­ing oral decision of the court was delivered by Finlayson, J.A., and released on October 26, 1994.