COURT OF APPEAL FOR ONTARIO

DATE: 20000710

DOCKET: C33323

RE: HER MAJESTY THE QUEEN (Respondent) and WILLIAM
JOHN BROWN (Appellant)

BEFORE: AUSTIN, LASKIN AND FELDMAN JJ.A.

COUNSEL: Irwin Koziebrocki
for the appellant

Alexander Hrybinsky
for the respondent

HEARD: June 26, 2000

On appeal from conviction by Marchand J. sitting with a jury, on
April 21, 1999 and from sentence imposed on April 22, 1999.

E N D O R S E M E N T

[1] William John Brown appeals from his conviction in April 1999
on a charge of criminal negligence causing bodily harm and from
the sentence imposed of eighteen months incarceration. The
sentence has now been fully served and the appeal from it is
therefore moot.

[2] The grounds of appeal from conviction, briefly stated, are
that the charge on the definition of criminal negligence was
misleading, that the jury was wrongly instructed to use an
objective test to determine the mens rea and that the verdict was
unreasonable. In our view, none of these grounds can succeed.

[3] The facts are not complex. By agreement, after an afternoon
of shopping, the appellant took home to have dinner with himself
and his sixteen year old son, the twenty-three month old daughter
of his girlfriend. He decided she needed a bath and after
getting her motherÆs permission, took her into the bathroom
turned on the hot water in the bath tub and undressed her. Then
the telephone rang and after turning off the tap and telling her
to stay where she was, he went to answer the telephone some
twenty feet away. While on the phone he heard her jump, fall or
otherwise get into the tub.

[4] The water was extremely hot. He had run only hot water as
was his habit and he had had the thermostat altered so that when
showering he would not have to wait a long time for hot water.
He got her out of the tub by means of cold towels and rushed her
to the hospital.

[5] The victim suffered very serious burn injuries to sixty
percent of her body. They were life threatening. She was
transferred from the local hospital to the Hospital for Sick
Children in Toronto where she remained for five months followed
by nine months at the Ontario Centre for Crippled Children.
Operations to cope with skin grafts followed annually for four
years and thereafter less frequently for five years. She remains
grossly scarred. The appellant was not charged until over
thirteen years after the event.

[6] Turning to the first ground of appeal, the trial judgeÆs
charge to the jury was in part as follows:

Thus the fourth ingredient the Crown must prove, that
is that Mr. Brown, by his conduct, act or by his
omission, showed wanton or reckless disregard to the
life or safety of Lindsay. Wanton disregard means a
heedless or unrestrained disregard for the consequence
of your action or the consequence of your omissions.
Likewise, reckless means an indifference to the
consequences of your action or of your omissions. For
Mr. BrownÆs action or omission to constitute wanton or
reckless disregard for the safety of Lindsay, that
conduct must be a marked and substantial departure
from what we would expect of a reasonable person in
such circumstances. Remember, Mr. BrownÆs conduct
must show a heedless, a reckless disregard for the
safety of Lindsay. A small error or a momentary lapse
in care that results tragically in bodily harm to
Lindsay is not sufficient conduct to constitute criminal
negligence. (Emphasis added.)

[7] The appellant argues that the juxtaposition of the last
sentence misled the jurors in two ways. First, it suggested that
anything other than a small error or momentary lapse in care
could amount to criminal negligence. Second, it placed an
evidentiary burden on the appellant to show that his conduct
amounted only to a small error or momentary lapse in care.

[8] We do not accept either of these propositions. This aspect
of the charge appears to have been taken from CRIMJI, an acronym
for Canadian Criminal Jury Instructions, a text by Ferguson and
Bouck pp. 6.21-10 and 11. We make no comment on the
acceptability of this particular charge in other contexts but we
see nothing objectionable or misleading about its use in this
case.

[9] The appellantÆs defences were, first, that the conduct
complained of did not amount to a marked departure from the norm
as required to support a charge of criminal negligence and
second, that it amounted to an ôinadvertent momentary lapse of
judgmentö. This expression was used twice and the expression
ômomentary lapseö once in defence counselÆs brief address to the
jury. As a consequence, the trial judge was almost bound to deal
with the expression and we see no error in using it as he did.

[10] On the second ground of appeal, the trial judge instructed
the jury as to the standard for establishing that the appellantÆs
actions were criminally negligent in the following terms:

ôThe test that you must follow is an objective one; that
is, the Crown does not have to prove that Mr. Brown knew
or foresaw the consequences of his act or omission in
either letting the phone go or taking the child with him.
The act of leaving the child alone near a hot tub in order
to answer a phone will have to speak for itself. If this
act constitutes a marked and substantial departure from
what we might expect of a reasonable person in the
circumstances in question, then the conduct of Mr. Brown
constitutes criminal negligence regardless as to whether
or not he recognized the obvious and serious risk to the
safety of Lindsay.ö

[11] Counsel for the appellant at trial objected to this approach
and argued that a subjective approach was more appropriate. This
objection was not accepted. The majority of the Supreme Court of
Canada has stated that the objective test does not require a
consideration of personal factors except to the point where those
personal characteristics establish an incapacity to appreciate the
risk in a course of conduct. None of the factors suggested on
behalf of the appellant could have established such an incapacity.
R. v. Naglik (1993) 1993 64 (SCC), 83 C.C.C. (3d) 526 (S.C.C.) per McLachlin J.
at p. 546
R. v. Creighton (1993) 1993 61 (SCC), 83 C.C.C. (3d) 346 (S.C.C.) per McLachlin
J. at p. 385

[12] In any event, in this case there was evidence of the
appellantÆs awareness of the risk to the child. He knew the
water was extra hot. He turned off the tap and he told her to
sit on the floor. In addition there was evidence, which was
challenged but which the jury could have accepted, that the
appellant was aware of her having jumped into a tub on an earlier
occasion. All of these matters go to the mens rea of the
appellant.

[13] Finally, as to the reasonableness or otherwise of the
verdict, the evidence just reviewed in paragraph 12 precludes us
from finding that the verdict was unreasonable.

[14] Accordingly, we conclude that none of the grounds of appeal
can succeed. The appeal from conviction is therefore dismissed.
The appeal as to sentence being moot, it is dismissed as
abandoned.

[15] Notwithstanding the foregoing, we leave this matter with
some misgivings. These arise from the fact that despite a full
investigation at the time this event occurred, the matter was not
prosecuted for some thirteen years, that the appellant was
discharged after a preliminary hearing, that the charge was
restored by way of mandamus and that the matter was prosecuted
at all. Only the fact that it was fairly tried by a jury reduces,
but does not completely abate, those misgivings.

ôAustin J.A.ö

ôJ.I. Laskin J.A.ö

ôK. Feldman J.A.ö