COURT OF APPEAL FOR ONTARIO
Feldman, Tulloch and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Tyler Curry
Respondent
Philip Perlmutter and Davin Michael Garg, for the appellant
Ian Carter, for the respondent
Heard: September 16, 2013
On appeal from the acquittal entered on April 23, 2012 by Justice John A. McMunagle of the Superior Court of Justice, sitting without a jury.
A. OVERVIEW
1This appeal arises from a fatal motor vehicle collision, resulting in the death of a front seat passenger, and bodily injuries to another passenger. The collision occurred in the early morning hours of August 23, 2009, following a house party at which alcohol was consumed. The respondent was charged with six criminal offences arising out of the vehicle collision: dangerous driving causing death contrary to s. 249(4) of the Criminal Code; dangerous driving causing bodily harm contrary to s. 249(3); impaired driving causing death contrary to s. 255(3); impaired driving causing bodily harm contrary to s. 255(2); driving with a blood alcohol concentration over 80 milligrams per 100 millilitres of blood “over 80” causing death contrary to s. 255(3.1); and driving “over 80” causing bodily harm contrary to s. 255(2.1).
2The respondent, the deceased passenger, Dylan Heisel, and a third passenger, Mason Amell, left the party in the respondent’s van. The respondent was driving, the deceased was in the front passenger seat, and Mr. Amell was seated in the second row of the van. The crash occurred about four minutes away from the party.
3The respondent did not testify at trial and did not dispute that he was the driver when the van left the party, or that his ability to drive was impaired by alcohol. However, the respondent argued through counsel that he had switched seats with Mr. Amell within the short time and distance before the van veered off the road.
4The trial judge accepted the respondent’s argument, primarily relying on an erroneous recollection of the evidence. He found that the evidence had not established beyond a reasonable doubt that the respondent was in fact the driver of the van at the time of the accident. He acquitted the respondent of all six counts as charged, but found him guilty of the lesser, included offence of driving “over 80” simpliciter.
5The Crown appeals the acquittals under s. 676(1)(a) of the Criminal Code. The Crown submits that the trial judge made errors of law in his treatment of the evidence that allow this court to order a new trial.
6The Crown acknowledges that an appellate court does not have jurisdiction to overturn an unreasonable acquittal. However, where there is an error of law arising from the trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence, this court does have jurisdiction to intervene. I agree. For the reasons that follow, I would allow the appeal and order a new trial.
B. THE FACTS
7The respondent admitted several facts about the collision in an agreed statement of facts.
(1) The Admitted Facts
8The collision occurred less than five kilometres away from the location of the party in the early morning hours of August 23, 2009. The respondent admitted that the vehicle allegedly driven by him was travelling between 141 and 167 kilometres per hour when it veered off the road and hit a tree. Dylan Heisel was in the front passenger seat of the vehicle and died as a result of injuries sustained in the collision.
9A passerby, Luke Casselman, reported the incident to the fire department shortly after 2 a.m. At about 4 a.m., the respondent’s blood was drawn and subsequently analyzed for blood alcohol concentration. In an affidavit admitted on consent, the forensic toxicologist reported that the respondent’s blood alcohol concentration at the time of the collision was between 169 and 219 milligrams in 100 millilitres of blood, the maximum legal limit being 80 milligrams in 100 millilitres of blood.
10In light of these admissions, the only question at trial was whether the respondent was driving the vehicle at the time of the collision.
(2) The Evidence at Trial
11The Crown called 19 witnesses and the defence called one witness. The respondent did not testify. A brief review of some of the evidence is required.
12Several witnesses who attended the party testified that the respondent was driving the van when he left the party. His passengers were the deceased and Mason Amell, who survived the collision along with the respondent.
13As a result of the collision and the ensuing fire, the respondent suffered extensive second and third degree burns and an ankle fracture, but no concussion. Amell suffered minor burns, facial and other abrasions and lacerations, and a possible concussion.
14Sergeant Muir is an officer who specializes in traffic collision investigations. He testified that ankle fractures such as the one suffered by the respondent occur more often in front seat occupants than in middle or rear seat occupants of vehicles involved in front-end collisions. On cross-examination, Sergeant Muir explained that broken ankles are common among front seat occupants involved in collisions, because the foot caddy can bend in a way that breaks the occupant’s ankle. Sergeant Muir had never seen a rear seat occupant suffer a broken ankle in a collision, and could not agree that it was possible for the respondent to have broken his ankle as a passenger in the rear of the van. In Sergeant Muir’s opinion, Amell’s injuries, specifically lacerations to the scalp, chipped or broken teeth and a possible concussion, were more consistent with injuries that would be suffered by a passenger restrained by a seatbelt but not an airbag. The inference that follows from this evidence is that the respondent was the driver and Amell was the rear seat passenger at the moment of collision.
15Amell testified that he consumed alcohol both before and at the party. He got into the back of the van to leave the party, and the respondent was in the driver seat. He testified that he put his head down and has no recollection of the collision, but believes that he squeezed out of the passenger door and went around to the driver side of the van to check on the respondent.
16Amell initially conceded that it might have been possible for the driver and passenger to switch seats without exiting the vehicle, but later testified that to do so would probably require the passenger to exit the vehicle in order to switch positions with the driver.
(3) The Casselmans’ Testimony
17The testimony of Miranda and Luke Casselman and the treatment of this testimony by the trial judge figured prominently in the arguments on appeal.
18Miranda Casselman testified that, on the night of the collision, she and her husband were returning from Ottawa to Brockville when she saw a fire near the road. Luke Casselman was driving the car and pulled over about 30 or 40 feet past the fire. Miranda looked in the passenger side rear view mirror and, without adjusting her position, saw someone standing on the driver side of the van and holding on to the driver’s door. Her evidence in chief included the following exchange:
Q. So to be clear then, did you actually see [this individual] get out of the van, or did you just see him when he was standing beside the van and he was already outside?
A. When I seen him, he was outside of the van.
Miranda was pressed on cross-examination about whether she had actually seen this individual “roll out” of the vehicle, as she had said in her statement to police. I reproduce the exchange on cross-examination here:
Q. [I]s that a true answer? Did you actually see someone roll out of the vehicle? I know it happened a while ago, but I want you to think about it; it’s very important.
A. I can’t remember. I know that I seen someone holding onto the door and maybe I did at the time see them roll out, but now I don’t really want to say something that is for sure if I don’t know if it is for sure, so.
Q. All right. So immediately after this traffic event you saw Mason Amell come out of the driver’s seat, out of the driver’s door, on to the ground there. Is that correct?
A. Yes.
Q. And you are sure of that.
A. What I can remember for sure is remembering him standing there holding on to the door.
19She was confronted on cross-examination with her prior statement in which she said that she saw, through the rear view mirror, someone roll out of the vehicle; Miranda agreed that, “at the time that I can remember”, she had in fact seen someone roll out of the vehicle. However, on re-examination she clarified that she remembered seeing the individual standing by the vehicle and holding the door.
20Miranda testified that she ran toward the individual standing on the driver side of the van and encouraged him to move away from the van toward her. She identified this person as Amell. She then looked over and saw the respondent engulfed in flames and coming around the front of the van from the passenger side.
21In a handwritten statement taken at the scene, Miranda indicated that the first person to exit the van came from the passenger side and the second person – more engulfed in flames – came from the driver side. At trial, Miranda testified that the earlier handwritten statement was incorrect. According to Miranda’s testimony, the opposite was true; the taller, less burned man was actually the one on the driver side. Miranda clarified her recollection in answers to police very shortly after she made the initial handwritten statement.
22Luke Casselman’s testimony was similar to Miranda’s. He testified that he knew the respondent, the deceased and Amell from playing hockey. Luke testified that he stopped his car after passing the fire and backed up to about 40 feet from the van. He saw what appeared to be a person falling out of the vehicle on the driver side. The following exchange occurred on cross-examination:
Q. Okay. And did you see the person, in the mirror, land on the ground?
A. Yes.
Q. All right. And you have this as a clear and vivid memory.
A. Yeah, that’s probably one of the clearest memories of the night I have.
Luke testified that he saw this person get up and identified him as Amell. He then saw the respondent come around the front of the van from the passenger side:
Q. [W]here did you first see [the respondent]?
A. I seen him coming from the other side of the vehicle. Like, I never… - I never seen him on the other side of the vehicle; I seen him coming from there, like, because the van would have obstructed my view.
23Luke testified that he assumed, based on what he had seen, that Amell was driving the van at the time of the collision:
Q. Okay. All right. So at this point, after what you had seen, based on who you saw getting out of the vehicle from [sic], and coming around the vehicle, did you presume that Mason Amell was the driver and that Tyler Curry was the passenger?
A. Yes, that was my assumption and that’s what I still thought until this trial started.
24David McPhail, who arrived on the scene with his family after Luke Casselman and his wife, testified that the fire in the van appeared to be spreading from the front of the van toward the rear. Michelle McPhail testified that when they arrived on the scene, the front of the van was engulfed in flames. David McPhail moved his parked car further away from the van, as did the Casselmans at his suggestion. He was concerned that the fire would eventually reach the gas tank and cause an explosion. After the cars were moved, there was an explosion from the van.
C. THE TRIAL JUDGE’S REASONS
25In oral reasons amounting to 89 pages of transcript, the trial judge acquitted the respondent of the more serious charges, convicting only on the lesser, included charge of “over 80” simpliciter.
26The trial judge began by reviewing the general principles concerning the presumption of innocence, the standard of reasonable doubt and the assessment of credibility. Next, the trial judge reviewed the evidence of the witnesses at trial, finding “no doubt whatsoever” that the respondent was seated in the driver seat when the van left the party, as confirmed by six witnesses.
27The defence position was that the respondent and Amell had switched positions so that Amell was driving at the time of the collision. The trial judge found that there was sufficient time for the respondent and Amell to have switched positions inside the van between leaving the party and the accident.
28The trial judge summarized the evidence of Luke Casselman, whom he described as, “from the Court’s perspective, the most important witness in this trial”. Although Luke Casselman did not testify that he saw the respondent exiting the van or Amell driving it, the trial judge summarized his evidence in the following manner:
[Luke Casselman] also testified that he saw Tyler Curry get out of the passenger side of the van, through the passenger door. Why is this evidence so important? The reason is that unlike Miranda Casselman, he has known these young men his entire life. He went to school with them and he played minor hockey with them. He testified that he called 911 at 2:15 a.m., as he saw Tyler Curry coming out of the front passenger door and continuing around the front of the van. He referred to the question from the Crown as to who was driving, as “the clearest memory I have” is that “Mason Amell was the driver.”
29After summarizing some of the Crown’s arguments and setting out the defence position, the trial judge concluded as follows:
The major difficulty with the Crown’s position, and ultimately what causes this Court to have a reasonable doubt as to who in fact was the driver, is that Luke Casselman grew up and played minor hockey with both [the respondent] and Mason Amell. He knew both men personally and for a good number of years, and therefore was able to recognize both men by their sheer physical size difference.
In answer to the prosecution’s question as to who was driving, Luke Casselman’s response was, and for this Court, the most powerful evidence of this case, when he stated that “the clearest memory I have is that Mason Amell was the driver.” Despite the Crown’s most diligent efforts to weaken the eyewitness testimony of the Casselmans, who were called by the Crown, I am simply unable to reject their evidence.
30The trial judge also found the respondent not guilty of being a party to the offences. On appeal, the Crown does not take issue with this conclusion.
D. THE PARTIES’ SUBMISSIONS
(1) The Crown
31The Crown argues that the trial judge made a number of errors in his approach to the evidence. First, the Crown says that, largely as a result of misapprehending the Casselman evidence, the trial judge did not consider the evidence in its totality and did not assess individual pieces of evidence in the context of the evidence as a whole. This is exemplified in the trial judge’s application of the standard of reasonable doubt to an individual piece of evidence – the respondent’s ankle injury; he stated that “the Court is left with a doubt as to exactly how Tyler Curry’s ankle was broken.” Second, the trial judge adopted Luke Casselman’s inference that Amell was the driver, when he should have drawn his own inferences from the evidence. Finally, in treating the possibility that the respondent and Amell had switched seats in the vehicle as giving rise to a reasonable doubt, the trial judge erred by relying on speculation and conjecture.
32The Crown argues that these errors in the treatment of the evidence are errors of law that engage this court’s jurisdiction on a Crown appeal from acquittal. The Crown further submits that the errors might reasonably be thought, “in the concrete reality of the case”, to have had a material bearing on the acquittal.
(2) The Respondent
33The respondent submits that the trial judge outlined the correct legal principles and considered all of the evidence before him. Although the trial judge misstated the Casselmans’ evidence, it was reasonable for the trial judge to infer from the evidence that Amell was in fact the driver. The respondent points to s. 676(1)(a) of the Criminal Code, which restricts the Crown’s right of appeal from an acquittal, including a conviction on lesser and included charges, to “any ground of appeal that involves a question of law alone.” The respondent suggests that the Crown’s real concern in this case is that the trial judge misapprehended the Casselmans’ evidence, an error which, in the respondent’s submission, is not a question of law. The appeal should be dismissed on this basis.
34As for the trial judge’s reference to the respondent’s ankle injury, the respondent argues that the trial judge simply used the word “doubt” to reject the inference that the respondent was the driver because he sustained an ankle injury. The trial judge noted expressly that he could not apply the reasonable doubt standard to individual pieces of evidence.
35In response to the Crown’s submission that the trial judge adopted the Casselmans’ inferences on who was driving the vehicle, the respondent argues that a trial judge is entitled to accept inferences that arise from a witness’s testimony, regardless of whether the witness agrees with those inferences. The inference that Amell was the driver was available on the evidence.
36Finally, with respect to the trial judge’s supposed reliance on speculation and conjecture in reaching reasonable doubt, the respondent submits that the lack of an evidentiary foundation for reasonable doubt is not an error of law for the purposes of a Crown appeal of an acquittal.
E. ANALYSIS
(1) Governing Principles
37Section 676(1)(a) of the Criminal Code restricts the Crown’s right of appeal from an acquittal, including a conviction on lesser and included charges, to “any ground of appeal that involves a question of law alone.” The Crown is not entitled to argue that an acquittal was unreasonable, provided that the trial judge took a legally correct approach to the evidence: R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, at para. 35, leave to appeal refused, [2012] S.C.C.A. No. 64.
38In R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, the Supreme Court of Canada addressed the “vexed question” of what constitutes a question of law alone for the purposes of a Crown appeal. Cromwell J. outlined a list of four situations – not necessarily exhaustive – in which alleged shortcomings in a trial judge’s assessment of evidence can amount to a reviewable error of law.
39At issue in this appeal is the fourth kind of error: this occurs when the trial judge fails to consider all of the evidence in relation to the ultimate issue of the accused’s guilt: J.M.H., at para. 31.
40The Supreme Court of Canada has addressed this category of error on several occasions. First, in R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 (Morin I), Sopinka J. considered a charge that invited the jury to apply the reasonable doubt standard of proof to individual pieces of evidence, and concluded as follows, at p. 358:
The effect of [these misdirections] may very well have been that the jury examined evidence that was crucial to the Crown’s case in bits and pieces. Standing alone or pitted against the evidence of the accused without the support of other evidence, much of this evidence might have been discarded as not measuring up to the test. When the jury came to consider the Crown’s case as a whole there may not have been very much left of it. We cannot know for certain, but this scenario is a very likely one and the charge therefore constituted a serious misdirection.
41Second, in R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57, Wilson J. relied on Morin I to dismiss an appeal from a judgment of the Court of Appeal for Saskatchewan, allowing a Crown appeal from acquittal on charges of sexual assault. Wilson J. confirmed, at pp. 71-72, that appellate jurisdiction exists where the trial judge’s approach to the evidence is erroneous:
[T]his Court has recognized appellate jurisdiction where the question of law originates from the trial judge’s conclusion that he or she is not convinced of the guilt of the accused beyond a reasonable doubt because of an erroneous approach to, or treatment of, the evidence adduced at trial.
A question of law may also arise, it seems to me, when the trial judge misdirects himself or herself with respect to the relevant evidence. Indeed, the Court of Appeal in this case reversed the acquittals after concluding that an error of law had arisen due to the trial judge’s failure to properly direct himself to all the evidence bearing on the relevant issues.
42Wilson J. relied on Morin I for support, addressing the effect of that case, at p. 77:
I believe that Morin highlights the fact that the approach taken by the trial judge to the evidence must be correct in law so as to ensure that the final step in the process, the weighing of the evidence, is not flawed….A review of the trial judge’s decision in this case makes it clear that he failed to consider the evidence in its totality.
43Wilson J. found in B. (G.) that the trial judge erred in law by failing to consider the combined effect of the evidence of the Crown’s witnesses. The trial judge in B. (G.) had rejected the evidence of one of the Crown witnesses and only then proceeded to consider the evidence of the second. The trial judge also failed to consider aspects of the evidence corroborating the Crown’s position or individual pieces of evidence in the context of the evidence as a whole. Evidence was viewed “without the support of other evidence”, amounting to “serious misdirection”.
44Third, in R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286 (Morin II), Sopinka J. explained that G.B. recognized three grounds that may constitute an error of law in the assessment of facts, and confirmed that one of the three arises when the trial judge fails to consider the totality of the evidence in relation to the ultimate issue: Morin II, at pp. 295-96. However, a trial judge is not required to refer to every item of evidence or detail the manner in which each item of evidence is assessed: J.M.H., at para. 32.
45More recently, in Rudge, this court considered an appeal from the respondent’s acquittal on charges of breach of trust by a public official. The Crown alleged that the respondent had leaked confidential police documents to a criminal organization. The Crown’s evidence included leaked documents connected to the respondent and phone records linking the respondent to a member of the Hell’s Angels.
46In Rudge, Epstein J.A. relied on this fourth category of legal error to order a new trial. She found that, by considering each of the Crown’s strands of evidence separately, the trial judge had failed to examine the evidence as a whole in relation to the ultimate question of guilt. The trial judge also erred by failing to factor into his analysis important evidence undermining the defence theory that a third-party theft had caused the leak. Epstein J.A. stated as follows, at para. 47:
It is for the Crown to establish beyond a reasonable doubt that the accused committed the offence with which he or she has been charged. That said, the prosecution is entitled to a legally correct approach to the evidence that bears upon the determination of whether the onus has been met – a contextual approach based on a full evidentiary footing in which the proper standard of proof is applied.
47Collectively, these authorities confirm that a question of law for the purposes of s. 676 is engaged when the evidence led by the Crown is not considered in its totality by the trial judge.
(2) Application to the Facts
48The primary issue on appeal is whether the court in this case has jurisdiction to order a new trial. A trial judge’s error must amount to a question of law alone for the court to have jurisdiction pursuant to s. 676 of the Criminal Code.
49The respondent concedes that the trial judge misapprehended portions of Miranda Casselman’s testimony and portions of Luke Casselman’s evidence. Contrary to the trial judge’s reasons, neither of the Casselmans actually testified that they saw Amell as the driver or the respondent exit the van on the passenger side.
50In my view, the trial judge’s misapprehension of the Casselmans’ testimony although very serious because of the emphasis the trial judge put on Casselman’s evidence, would not be sufficient, on its own, to amount to a question of law. But the misapprehension led the trial judge to make other errors of law in his treatment of the evidence. His approach to the totality of the evidence amounts to an error of law.
51Blinded by what he mistakenly believed was Casselmans’ evidence, the trial judge failed to adequately factor into his analysis other important evidence that severely undermined the theory of the defence: Rudge, at para. 50. There was an overwhelming body of evidence incompatible with the suggestion that Amell, rather than the respondent, was the driver at the time of the collision, including the following:
Miranda Casselman testified that she saw Amell – the larger of the two men – holding on to the driver’s door, which photographs indicate was severed from the rest of the vehicle;
Miranda Casselman provided, at the scene of the collision, a handwritten statement to police indicating that she saw the respondent on the driver side and Amell on the passenger side;
According to Sergeant Muir’s testimony, the respondent’s injuries were more consistent with a front seat occupant of a vehicle involved in a front-end collision whereas Amell’s were more consistent with a rear seat occupant;
Sergeant Muir could not agree that the respondent could have suffered a broken ankle as a rear seat passenger in the van;
Whereas the driver’s door was severed from the vehicle, allowing for egress, photographs indicated that an exit through either of the van’s sliding passenger doors would have been difficult or impossible;
The scene of the collision was less than five kilometres from the location of the party where the respondent was seen driving the van, or approximately four minutes away if traveling at a reasonable speed, leaving very little (if any) opportunity for the driver and rear-seat passenger to switch places; and
The respondent suffered more severe burns than Amell, consistent with a front seat passenger involved in a fire starting in the front of the vehicle and spreading toward the back, as indicated by the McPhails’ evidence.
52Some of this evidence was ignored by the trial judge. Some of it was referred to by the trial judge when he summarized the positions of the Crown and the defence, but he did not engage in any meaningful assessment of it. In particular, the trial judge failed to assess his inference from the Casselman evidence in the context of the case as a whole, which overwhelmingly pointed to the respondent as the driver of the van at the time of the collision. At no time did the trial judge explain why he accepted the Casselmans’ testimony in the face of conflicting evidence tendered by the Crown. The trial judge simply concluded that the Casselmans’ testimony was “the major difficulty with the Crown’s position.” Because the trial judge failed to assess the totality of the Crown’s evidence, the Crown did not obtain the legally correct, contextual approach to the evidence to which it was entitled: Rudge, at paras. 47-48.
53Compounding this error, the trial judge applied the standard of proof in piecemeal fashion, which is an error in the nature of Morin I. The trial judge concluded that he was left with doubt as to how the respondent’s ankle injury was sustained. As a result, he discounted Sergeant Muir’s evidence entirely, instead of considering, in the context of the evidence as a whole, both the evidence of the ankle injury and the remoteness of the possibility that it could have been sustained in some fashion other than in the front seat of the vehicle in the collision. In the language of Morin I, the effect of this error may well have been that evidence crucial to the Crown’s case was examined in bits and pieces.
54In “the concrete reality of the facts of this case”, these errors might reasonably be thought to have had a material bearing on the acquittal: R. v. Graveline, 2006 SCC 16, at para. 14. The trial judge repeatedly emphasized that it was the Casselman evidence, and particularly the evidence of Luke Casselman, that created reasonable doubt. He said that “[i]t is the combination and totality of Miranda and Luke Casselman’s evidence that causes this Court to have a reasonable doubt as to who the driver was.” He referred to Luke Casselman as “the most important witness in this trial” and the implicated portion of his testimony as “the most powerful evidence of this case.” Given the trial judge’s own statements to the effect that he decided the case on the basis of the Casselmans’ evidence, it is clear that legal error in the treatment of this evidence and the evidence significantly undermining it had a material bearing on his decision to acquit.
55The evidence of the respondent’s ankle injury was a compelling aspect of the Crown’s case. Sergeant Muir testified that he had never seen an ankle injury in a passenger seated in the rear of a vehicle involved in a collision. An error by the trial judge that effectively caused this piece of evidence to be given no weight would also be expected to have had a material bearing on the respondent’s acquittal.
56For these reasons, I would allow the appeal and order a new trial.
57It is unnecessary, given this conclusion, to consider the Crown’s remaining submissions that the trial judge erred by abdicating to a witness the responsibility of drawing inferences and by relying on speculation or conjecture as a basis for reasonable doubt, which the Crown did not pursue in its oral submissions.
Released:
“MAR -5 2014” “M. Tulloch J.A.”
“KF” “I agree K. Feldman J.A.”
“I agree P. Lauwers J.A.”
