Her Majesty the Queen v. Baker [Indexed as: R. v. Baker]

81 O.R. (3d) 276

Court of Appeal for Ontario,

Cronk, Juriansz and LaForme JJ.A.

June 12, 2006

Criminal law -- Criminal negligence -- Charge to jury -- Accused colliding with another boat late at night -- Accused's boat being driven at high speed with no lights while navigating a narrow passage with rocks and island nearby -- Accused being properly convicted of criminal negligence causing bodily harm -- Trial judge's charge to jury making it clear that Crown had to prove that impugned conduct was more than carelessness and amounted to marked and substantial departure from that of reasonably prudent boater in circumstances -- Appeal from conviction dismissed.

Criminal law -- Criminal negligence -- Sentence -- Accused colliding with another boat late at night -- Boat sinking and occupants being rendered unconscious -- Accused not remaining at scene to offer assistance -- Accused fleeing scene within seconds of impact -- One occupant of boat suffering minor injuries and second occupant sustaining significant injuries including brain damage -- Accused having no criminal record and custody of his child -- Sentence of nine months' incarceration for failing to remain at scene of accident followed by 15 months conditional for criminal negligence causing bodily harm being affirmed on appeal. [page277]

Criminal law -- Failing to remain at scene of accident -- Charge to jury -- Trial judge not erring in using phrase "good reason to believe" that there had been an accident where he made it clear to jury that issue was not whether reasonable person had "good reason to believe" but whether accused had "good reason to believe".

Criminal law -- Failing to remain at scene of accident -- Sentence -- Accused colliding with another boat late at night after hitting their boat while driving at high speed and without lights -- Accused fleeing scene seconds later without offering any assistance -- Boat sinking and occupants rendered unconscious -- Accused not remaining at scene to offer assistance -- One occupant suffering brain damage and other serious injuries while other occupant less seriously injured -- Accused having no criminal record and custody of his child -- Sentence of nine months' incarceration for failing to remain at scene of accident followed by 15 months conditional for criminal negligence causing bodily harm being affirmed on appeal.

The accused's boat collided late at night with a wooden boat occupied by an elderly couple. The victims' boat quickly filled with water and sank. The victims were rescued by passers-by who happened upon the debris from the collision. After the collision, the accused quickly returned to his cottage without attempting to help the victims. He was charged with criminal negligence causing bodily harm and failing to remain at the scene of a boating accident. He testified at trial that he did not see another boat and thought that he had hit a rock. He conceded that after getting home he saw wooden debris in the bottom of the fiberglass boat. The accused was convicted on both counts. He was sentenced to nine months incarceration for failing to remain followed by a conditional sentence of 15 months less a day for criminal negligence causing bodily harm. The accused appealed the conviction and the sentence.

Held, the appeal should be dismissed.

On the criminal negligence charge, the trial judge did not err in instructing the jury that the Crown may prove a marked and substantial departure from what a reasonably prudent person would do in the same circumstances "in either of two ways: by proving that the defendant was aware of a danger or risk to the lives or safety of others but went ahead anyway, or, by proving that [the accused] simply gave no thought to the possibility that any such risk existed". Read as a whole, the charge could not have misled or confused the jury regarding either the standard against which the accused's conduct was to be judged, or the mental element required for a conviction for criminal negligence causing bodily harm.

When instructing the jury on the circumstances of which the Crown had to prove that the accused had knowledge when he left the scene, the trial judge did not err in using the phrase "good reason to believe" that there had been an accident. Whether or not the phrase "good reason to believe" in a charge to the jury on failing to remain is improper will depend on the context in which it is used. The phrase can be used to indicate an objective standard. However, it can also be used to address the accused's subjective belief. The trier of fact cannot directly determine what actually went on in the mind of the accused and must infer that state of mind from the accepted facts. The phrase can quite properly be used to identify the basis for inferring the accused's state of mind. The instructions in this case clearly directed the jury that it was to consider the accused's own state of mind. The trial judge took care expressly to distinguish a reasonable person's state of [page278] mind from the question to be decided. He went on to say, "Knowledge includes not only sure knowledge, in this case, that the accident occurred, but also good reason to believe that it might have occurred." The instructions could not have misled the jury into thinking that the issue was whether a reasonable person had "good reason to believe" that there had been an accident. The trial judge used the phrase "good reason to believe" in the same way in his instructions regarding the issue whether the accused knew that someone involved in the accident was injured or apparently in need of assistance. His repeated use of the phrase "good reason to believe" in the manner in which it was employed in this case did not give rise to the possibility that the accused might have convicted on a standard of what would be expected of a reasonable person.

On the issue of rebutting the presumption in s. 252(2) of the Criminal Code, R.S.C. 1985, c. C-46 with evidence to the contrary, the trial judge did not err in instructing the jury that "evidence to the contrary" means "evidence that you do not reject that leads you to believe or have a reasonable doubt that [the accused] intended to escape civil or criminal liability for the accident". There is no lower standard of proof, below reasonable doubt, that can be relied upon to rebut a presumption.

The trial judge did not err in instructing the jury that the accused's conduct and statements after the collision could be considered as "post-offence conduct" that might constitute evidence of consciousness of guilt. He left it to the jury to consider whether the accused's conduct after the accident should be interpreted favourably or unfavourably to him. He properly presented it as merely some evidence that the jury could consider.

The sentence was not manifestly unfit, despite the defendant's good antecedents and his responsibility for his son.

APPEAL from a conviction entered by MacDougall J. of the Superior Court of Justice, sitting with a jury, dated October 3, 2003, for criminal negligence causing bodily harm and failing to remain at the scene of the accident, and from a sentence imposed on January 21, 2004.

Cases referred to R. v. Phillips, 2005 1043 (ON CA), [2005] O.J. No. 155, 193 O.A.C. 322, 9 M.V.R. (5th) 22, 63 W.C.B. (2d) 219 (C.A.), consd Other cases referred to R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, [2005] S.C.J. No. 73, 202 C.C.C. (3d) 34, 36 C.R. (6th) 32; R. v. Proudlock, 1978 15 (SCC), [1979] 1 S.C.R. 525, [1978] S.C.J. No. 100, 43 C.C.C. (2d), 321, 91 D.L.R. (3d) 449, 24 N.R. 199 Statutes referred to Criminal Code, R.S.C. 1970, c. C-34, s. 306(2) [as am.] Criminal Code, R.S.C. 1985, c. C-46, ss. 221, 252(1) [as am.], (2) [as am.]

Gregory Lafontaine, for appellant. C. Jane Arnup, for respondent. [page279]

The judgment of the court was delivered by

JURIANSZ J.A.: --

I. Introduction

[1] The appellant, Norman Baker, was convicted by a judge and jury of criminal negligence causing bodily harm contrary to s. 221 of the Criminal Code, R.S.C. 1985, c. C-46, and of failing to remain at the scene of a boating accident and offer assistance to persons injured or appearing to require assistance contrary to s. 252(1) of the Criminal Code. Mr. Baker appeals his convictions on both counts.

[2] Mr. Baker was sentenced to nine months imprisonment on the count of failing to remain to be followed by a conditional sentence of 15 months less a day on the criminal negligence count.

II. Background

[3] Shortly after 11:30 p.m. on August 5, 2000, the boat that Mr. Baker was driving on Pigeon Lake collided with another boat occupied by an elderly couple, Mr. and Mrs. Peat. Mr. Baker left the scene and returned to his cottage. The Peats' vintage wooden boat was damaged beyond repair. It quickly filled with water and sank. Both the Peats were rendered unconscious. Mr. Peat, who soon regained consciousness, attempted to swim to shore while struggling to keep his unconscious wife from drowning. They were rescued by cottagers who were investigating the noise made by the collision.

[4] Mr. Baker testified that after the collision, he looked around in the dark briefly, saw that his boat was extensively damaged and quickly returned to his cottage as he was concerned that his boat might sink. He testified that he did not see another boat before the collision and thought he had hit either a rock or the western edge of Snake Island. He did not call out to see if anyone needed help because he did not think he had struck another boat. Once he was back in his cottage, Mr. Baker checked himself for injuries and went to bed.

III. Issues

[5] In support of his convictions appeal, Mr. Baker submits that the trial judge erred in a number of ways in his charge to the jury, namely:

(1) by failing to meaningfully define the extent of the departure from the standard of a reasonable boat operator necessary to permit a conviction for criminal negligence;

(2) by implying to the jury that Mr. Baker had admitted he had been involved in an accident; [page280]

(3) by using the phrase "good reason to know" in his instructions regarding the knowledge components of the fail to remain charge, thus permitting conviction without proof of subjective knowledge on the part of Mr. Baker;

(4) in explaining the standard for Mr. Baker to rebut, with evidence to the contrary, the presumption in s. 252(2) of the Criminal Code that he intended to escape civil or criminal liability; and

(5) by placing the issue of Mr. Baker's "post offence conduct" before the jury as evidence of consciousness of guilt, and by failing to relate that conduct to particular issues in the trial adequately.

[6] Mr. Baker also appeals the sentence imposed on the fail to remain charge.

[7] For the reasons that follow, I would dismiss the appeal from conviction, grant leave to appeal sentence and dismiss the sentence appeal.

IV. Analysis

A. Criminal negligence

(1) Extent of departure from standard of a reasonable boat operator

[8] Mr. Baker submits that the trial judge erred by failing to meaningfully define the extent of the departure from the standard of a reasonable boat operator necessary to permit a conviction for criminal negligence. In particular, he submits that the trial judge did not marshal the evidence relevant to determining the manner in which a reasonable boat operator would have proceeded. Mr. Baker submits that the trial judge also erred by failing to distinguish the criminal negligence standard (a marked and substantial departure from the conduct expected of a reasonable person) from that of mere civil negligence.

[9] Mr. Baker objects to the trial judge's instruction that the Crown may prove a marked and substantial departure from what a reasonably prudent person would do in the same circumstances "in either of two ways: by proving that the defendant was aware of a danger or risk to the lives or safety of others but went ahead anyway, or, by proving that Mr. Baker simply gave no thought to the possibility that any such risk existed".

[10] Mr. Baker submits that both these formulations could only have the effect of diluting the extent of the departure from the [page281] norm required for criminal negligence. He submits that both fail to gauge, in any way, the level of risk that is contemplated. As a consequence, both could easily capture conduct that was mere civil negligence.

[11] I would not give effect to this ground of appeal. The charge was clear that the Crown must prove that the impugned conduct was more than carelessness and amounted to a marked and substantial departure from that of a reasonably prudent boater in the circumstances. The trial judge thoroughly reviewed the evidence that might assist the jury in making that determination. After that review, he reminded the jury that the test was whether it was proved that Mr. Baker had shown a wanton and reckless disregard for the lives and safety of others. Read as a whole, therefore, the trial judge's instructions could not have misled or confused the jury regarding either the standard against which Mr. Baker's conduct was to be judged, or the mental element required for a conviction for criminal negligence causing bodily harm.

[12] The Crown conceded that the trial judge may have erred by instructing the jury that the boat's speed could be inferred from the level of damage without expert evidence. If this is error, its inclusion with the several other factors left to the jury in relation to the speed Mr. Baker was driving did not occasion prejudice or result in a miscarriage of justice.

B. Fail to remain

[13] Mr. Baker also argues that the trial judge erred in instructing the jury in regard to the failure to remain charge. Mr. Baker was convicted under s. 252 of the Criminal Code, which reads:

252(1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with

(a) another person,

(b) a vehicle, vessel or aircraft, . . . . .

and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance. . . . . .

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require [page282] assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.

(1) Implying Mr. Baker admitted he knew he was involved in an accident

[14] The trial judge began his instructions regarding this count by listing the essential elements that the Crown had to prove beyond a reasonable doubt:

Number one, that Mr. Baker had care, charge or control of a vessel. Number two, that the vessel was involved in an accident. Number three, that Mr. Baker knew that his vessel was involved in an accident. Number four, that someone involved in the accident was injured or, apparently, in need of assistance. Number five, that Mr. Baker knew that someone involved in the accident was injured or required assistance. Number six, that Mr. Baker failed to stop and identify himself after the accident. Number seven, that Mr. Baker failed to offer assistance to [the Peats] who were injured or required assistance and, number eight, that Mr. Baker intended to escape civil or criminal liability for the accident.

[15] Mr. Baker objects to the trial judge's observation to the jury that:

A vessel is involved in an accident when it is operated in such a way that it comes into contact intentionally or unintentionally with a person, [or] another vessel. There is really no issue that Mr. Baker's vessel was involved in an accident because he admitted to [the investigating police officer] that his boat was in an accident that night and, therefore, you can go on to question number three.

[16] Mr. Baker submits that this instruction deprived him of the frontline of his defence to this count, because it implied to the jury that he knew he had been involved in an accident to which s. 252(1) applies. Section 252(1) only applies to an accident with another person or a vehicle, vessel or aircraft. Mr. Baker's defence was that, while he knew he had been in a collision, he had no knowledge it was with a person or another vessel.

[17] Considering this passage in the context of the charge as a whole, I conclude that the jury could not have been misled into thinking that Mr. Baker had conceded that he knew he had collided with a person or another vessel. First, the passage is part of the trial judge's instruction on the second question that he had identified at the outset. This question concerned a purely factual matter: whether Mr. Baker's vessel had been in an accident. The third question listed by the trial judge related to whether Mr. Baker had subjective knowledge that his vessel had been involved in an accident.

[18] Immediately following the impugned passage relating to the second question, the trial judge instructed the jury concerning [page283] the third question that the Crown had to prove: whether Mr. Baker knew that his vessel was involved in an accident. In doing so, the trial judge repeatedly told the jury that Mr. Baker testified that he thought he had hit a rock and not a boat. In this context, the jury would have understood that the trial judge used the word "accident" during the discussion of the second question to mean merely a collision. Mr. Baker himself used the word "accident" in the same sense in his statement to the police.

[19] A question asked by the jury demonstrates that it understood that Mr. Baker had not conceded his involvement in an accident to which s. 252(1) applies. The jury asked, "At which point does leaving happen? -- i.e., if Baker doesn't realize he's been in an accident until he gets home, does doing nothing at home constitute 'leaving'?" This shows that the jury appreciated that the Crown had to prove that Mr. Baker knew he had been in an accident to which s. 252(1) applies.

[20] Accordingly, I would not give effect to this ground of appeal.

(2) The phrase "good reason to know" suggests an objective standard of knowledge

[21] The primary ground of appeal advanced by Mr. Baker relates to the trial judge's instructions regarding the circumstances of which the Crown had to prove that Mr. Baker had knowledge when he engaged in the prohibited conduct of leaving the scene of the accident. These are that Mr. Baker had knowledge that he was involved in an accident with another vessel and that he had knowledge that someone was injured or appeared to need assistance.

[22] In regard to these components, the trial judge instructed the jury on the doctrine of wilful blindness. In doing so, he repeatedly used the phrase "good reason to believe". Mr. Baker argues that the judge erred by using this phrase. He points out that wilful blindness rests on a finding of subjective deliberate ignorance and submits that this phrase indicates an objective standard of what a reasonable person would believe in the circumstances. He argues that the instruction could have misled the jury into convicting upon the objective standard for civil negligence.

[23] Mr. Baker relies on this court's decision in R. v. Phillips, 2005 1043 (ON CA), [2005] O.J. No. 155, 193 O.A.C. 322 (C.A.). The appellant in that case was convicted of failing to stop at the scene of a traffic accident. While driving a truck, he struck and killed a pedestrian and left the scene. Though the appellant had not testified, he had said to a tow truck driver that he thought he had struck [page284] a dog. In its brief endorsement dismissing the appeal, this court said [at para. 15]:

The trial judge's use of the expression "good reason to believe" in relation to the knowledge required of the appellant was in error because the essential element of the offence requires actual knowledge or wilful blindness and should have been described as such for the jury.

[24] Mr. Baker submits that this court in Phillips disapproved of the use of the phrase "good reason to believe" as part of an instruction on wilful blindness. I do not accept that contention. The court's entire discussion of the phrase is contained in the passage above. It is not clear how and in what context the phrase was used in the Phillips charge to the jury. It seems to me that this court would not so casually disapprove of what is a significant component of the standard jury charge on a count of failing to remain. I do not regard Phillips as rejecting any use of the phrase "good reason to believe" in an instruction to the jury on a fail to remain count.

[25] In my view, whether the phrase "good reason to believe" is improper depends on the context in which it is used. The phrase can be used to indicate an objective standard. However, it can also be used to address the accused's subjective belief. The trier of fact cannot directly determine what actually went on in the mind of the accused and must infer that state of mind from the accepted facts. The phrase can quite properly be used to identify the basis for inferring the accused's state of mind.

[26] In this case, the trial judge began his instructions regarding whether Mr. Baker knew that his vessel was involved in an accident as follows:

This element has to do with Mr. Baker's state of mind, his knowledge that the vessel he was operating was involved in an accident. Several times with respect to this count, I am going to be speaking to you about the element having to do with Mr. Baker's "state of mind". This is a different test than what I spoke to you earlier about with respect to criminal negligence and dangerous driving when I was speaking to you about what a reasonable person's state of mind might be. With respect to this charge, with respect to the elements that I am speaking to you about, we are dealing here with Mr. Baker's state of mind, his knowledge.

[27] This instruction clearly directed the jury that it was to consider Mr. Baker's own state of mind. The judge took care expressly to distinguish a reasonable person's state of mind from the question to be decided. The trial judge then continued:

Knowledge includes not only sure knowledge, in this case, that the accident occurred, but also good reason to believe that it might have occurred. You may, for example, be persuaded that Mr. Baker knew for sure that his vessel was involved in an accident or you may be persuaded that, even though [page285] Mr. Baker did not know for sure, he had good reason to believe that he might have been involved in an accident but kept on going without bothering to check or you may be persuaded that Mr. Baker knew he should have checked to see if he had been involved in an accident, but deliberately failed to do so because he did not want to know the truth. In any case, if you are satisfied beyond a reasonable [doubt] that Mr. Baker knew about the accident or had good reason to believe it might have occurred, this essential element has been proved.

[28] These instructions could not mislead the jury into thinking that the issue was whether a reasonable person had "good reason to believe" there had been an accident. Rather, the instructions were clear that the jury had to consider whether Mr. Baker had "good reason to believe" he might have been involved in an accident.

[29] The trial judge used the phrase "good reason to believe" in the same way in his instructions regarding the issue whether Mr. Baker knew that someone involved in the accident was injured or apparently in need of assistance. However, in regard to whether someone appeared "to require assistance" he added that it was enough if "a reasonable person would think that that person seemed to require assistance".

[30] It is unnecessary to decide if the reference to a reasonable person in this context was proper, as it was irrelevant to this case and could not prejudice Mr. Baker. Mr. Baker's testimony was clear that he did not see anyone involved in the accident at all. The trial judge told the jury unambiguously that Mr. Baker's position was that he saw nobody at the site of the accident. Therefore, the standard to be used to determine whether a person involved in the accident may have seemed to require assistance did not arise.

[31] I conclude that the trial judge's repeated use of the phrase "good reason to believe" in the manner in which it was employed in this case did not give rise to the possibility that Mr. Baker might have been convicted on a standard of what would be expected of a reasonable person.

[32] In any event, the evidence overwhelmingly supported the inference, beyond a reasonable doubt, that Mr. Baker knew that he had been involved in an accident with another boat or that he had a real suspicion that he had been so involved and chose not to make an inquiry. Most pertinent is Mr. Baker's admission in cross-examination that he noticed pieces of wood in his boat when it came to a brief stop after the collision. He testified that he thought that the wood was debris from his own boat. His own fibreglass boat, which did have wood underpinning, was damaged at the top of the hull in that the rub rail was completely ripped off. His awareness of wood pieces in his boat, and the fact [page286] that his boat suffered damage well above the place where an impact with a rock would have occurred, compels the inference that Mr. Baker knew or suspected that he had collided with another boat.

[33] Accordingly, this ground of appeal fails.

(3) Rebutting the presumption of s. 252(2) with evidence to the contrary

[34] Section 252(2) of the Criminal Code provides that the evidence that Mr. Baker failed to stop his vessel and offer assistance to the Peats is, in the absence of evidence to the contrary, proof of intent to escape civil or criminal liability. In his instructions to the jury, the trial judge said, "evidence to the contrary" means "evidence that you do not reject that leads you to believe or have a reasonable doubt that Mr. Baker intended to escape civil or criminal liability for the accident".

[35] Counsel for Mr. Baker submits that the trial judge erred by defining "evidence to the contrary" in that way. He says that "evidence to the contrary" is merely evidence that has not been rejected and that tends away from the presumed intent, and that, where there is such evidence on the record, the jury is required to determine guilt or innocence in the absence of the presumption.

[36] In my view, the trial judge put the matter properly. There is no lower standard of proof, below reasonable doubt, that can be relied upon to rebut a presumption. In R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, [2005] S.C.J. No. 73, at para. 21, the Supreme Court said of a different but similar presumption:

Evidence to the contrary that is adduced to rebut the presumption of accuracy in s. 258(1)(g) Cr. C. must tend to show that the certificate does not in fact correctly reflect the blood alcohol level at the time of the breathalyzer test. This evidence must raise a reasonable doubt about the accuracy of the breathalyzer result.

[37] In a much older case, R. v. Proudlock, 1978 15 (SCC), [1979] 1 S.C.R. 525, [1978] S.C.J. No. 100, 43 C.C.C. (2d) 321, the court had said, in explaining the expression "evidence to the contrary" in s. 306(2)(a) of the Criminal Code [at p. 526 S.C.R.]:

. . . all the presumption does is to establish a prima facie case. The burden of proof does not shift. The accused does not have to "establish" a defence or an excuse, all he has to do is to raise a reasonable doubt. If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adducing evidence if he is to escape conviction. However, he will not have the burden of proving his innocence, it will be sufficient if, at the conclusion of the case on both sides, the trier of fact has a reasonable doubt.

[38] I would not give effect to this ground of appeal. [page287]

(4) Mr. Baker's conduct after the accident

[39] Counsel for Mr. Baker submits that the trial judge erred by instructing the jury that Mr. Baker's conduct and statements after the collision could be considered as "post-offence conduct" that might constitute evidence of consciousness of guilt. He contends that, in this case, Mr. Baker's conduct after the event was as consistent with the defence position as it was with the Crown's position. As such, he says, there was no evidentiary foundation for a post-offence conduct charge in this case. Moreover, he submits, the trial judge failed to assist the jury by relating the alleged post-offence conduct to particular issues in the trial.

[40] Defence counsel at trial relied on Mr. Baker's conduct after the collision to show that he behaved throughout as a person who had nothing to hide and believed he was involved in a collision with a rock, not another vessel. The Crown relied on his conduct after the event to show consciousness of guilt. The trial judge reviewed the positions of both parties and left it to the jury to consider whether Mr. Baker's conduct after the accident should be interpreted favourably or unfavourably to him. He properly presented it as merely some evidence that the jury could consider, and which they may or may not find helpful. He reviewed the evidence and related it to the question of "whether the Crown has proven beyond a reasonable doubt whether Mr. Baker intended to escape civil or criminal liability for the accident".

[41] In these circumstances, I find no fault with the trial judge's instructions on this issue.

C. Sentence

[42] Mr. Baker filed fresh evidence to show that he has served 45 days in jail. His counsel submitted that this was a fit sentence for the conviction on the fail to remain charge, and that he should be allowed to serve the remainder of the time imposed on that charge as a conditional sentence, together with the conditional sentence imposed for the conviction on the criminal negligence charge. Counsel put forward that Mr. Baker had responsibilities in the community, including sole custody of his son.

[43] Absent an error in principle by the trial judge, this court cannot interfere with the sentence imposed. No such error has been demonstrated in this case. Nor is there any suggestion that the sentence imposed is manifestly unfit. [page288]

V. Disposition

[44] For these reasons, I would dismiss the convictions appeal, grant leave to appeal sentence and dismiss the sentence appeal.

Appeal dismissed.