DATE: 20060620
DOCKET: C42298
COURT OF APPEAL FOR ONTARIO
DOHERTY, BORINS and JURIANSZ JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
Marie Henein
for the appellant
Benita Wassenaar
for the respondent
- and -
CASEY WILLOCK
Appellant
Heard: May 16, 2006
On appeal from the conviction entered by Justice Gordon I. Thomson of the Superior Court of Justice dated May 28, 2004 and the sentence imposed on August 25, 2004.*
DOHERTY J.A.:
I
OVERVIEW
[1] This is a tragic and heartbreaking case. The appellant, an eighteen year old OAC student with a sterling reputation in the community, was driving two young friends to a third friend’s home. They planned to go bowling. The appellant’s vehicle veered across a median into oncoming westbound traffic and struck another vehicle. That vehicle collided with a third vehicle that was also travelling westbound.
[2] Jessica Wolf, a sixteen year old passenger sitting in the backseat of the appellant’s vehicle, was killed instantly. Danielle McLean, a sixteen year old passenger sitting in the front seat of the appellant’s vehicle was seriously injured. The appellant was also seriously injured. Mr. Stanley Levesque, the driver of the vehicle struck by the appellant’s vehicle, was seriously injured. Mr. Renald Roussel, the driver of the vehicle that collided with Mr. Levesque’s vehicle, was seriously injured, as was his passenger, Nicole Philibert.
[3] The appellant was convicted after a trial by a judge sitting without a jury of one count of criminal negligence causing death and four counts of criminal negligence causing bodily harm. He was sentenced to a conditional sentence of twelve months to be followed by probation for 30 months. He appeals his conviction and sentence.
[4] The primary submission on the conviction appeal was that the verdict was unreasonable and could not be supported by the evidence. The sentence appeal was limited to the submission that the trial judge erred in principle in imposing house arrest as a term of the probation order.
[5] I am satisfied that the verdicts must be quashed. The case for the Crown was that the appellant, who was showing off for his female passengers, deliberately caused the vehicle to swerve or jerk while he was proceeding at about 105 kilometres an hour on an expressway, and that the accident occurred when the appellant was unable to regain control of the vehicle before it turned into the median and eventually into oncoming traffic. The Crown’s case depended first on the absence of any explanation apart from driver conduct for the accident and second on the testimony of Ms. McLean. Ms. McLean was sitting in the front passenger seat and described what she saw in the two to three seconds before the car swerved into the median. In my view, no reasonable trier of fact properly applying the law of criminal negligence could be satisfied beyond a reasonable doubt that the appellant’s conduct constituted criminal negligence or dangerous driving.
II
THE EVIDENCE
[6] The appellant had obtained his G2 licence, allowing him to drive unsupervised on major highways, about three weeks before the accident. He had gone through driver education training. The appellant has no criminal record and no history of driving infractions. The defence led impressive character evidence describing the appellant as a bright, responsible, quiet, mature, young man.
[7] In the early evening of November 2, 2002, the appellant and three young friends decided to go bowling. The appellant drove his Honda to Danielle McLean’s home and picked her up. From there, they drove to Jessica Wolf’s home. The appellant, Ms. McLean and Ms. Wolf drove to the bank so that Ms. McLean could get some money. They left the bank, intending to drive to Valerie Votto’s. She was the third person who was going bowling with them that evening.
[8] The appellant entered the E.C. Row Expressway from the Howard Road access. The Expressway is a divided four-lane highway running east and west through Windsor. The speed limit is 100 kilometres per hour. The appellant headed east toward the Central Avenue exit, a distance of 3.2 kilometres from where the appellant entered the Expressway. Ms. McLean was sitting in the front passenger seat and Ms. Wolf was sitting behind her in the backseat. Ms. McLean said that she looked at the speedometer and the appellant was going 105 kilometres per hour.
[9] Ms. McLean testified that the appellant was driving in a normal and prudent manner from the time he picked her up until the car approached the Central Avenue overpass. It was dark, but the evening was clear. The road was dry, well lit, and in good condition. There was no suggestion that the appellant had consumed alcohol or any other drug. There was also no suggestion that he was having any difficulty controlling the vehicle before it reached the Central Avenue overpass.
[10] Carlene Neilson was driving eastbound on the Expressway at about 7:00 p.m. She was driving behind the appellant’s vehicle after he accessed the Expressway from Howard Road. The appellant was driving in the curb lane. Ms. Neilson observed the appellant’s vehicle swerve “slightly”. It did not leave the curb lane. She described the swerve as a “correction”.
[11] Ms. Neilson continued eastbound, driving behind the appellant’s vehicle. The appellant’s vehicle moved into the passing lane and passed a few cars. As the appellant approached the Central Avenue overpass, he moved back into the curb lane. Apart from the slight swerve of the appellant’s vehicle, Ms. Neilson did not notice anything unusual about the appellant’s driving. She estimated that he was going 108 kilometres per hour.
[12] Ms. Neilson testified that just before the appellant’s vehicle reached the overpass at Central Avenue, it began to fishtail. The appellant’s brake lights flashed as his vehicle fishtailed. According to Ms. Neilson, the appellant’s vehicle fishtailed more than once. As the vehicle passed under the Central Avenue overpass, it turned ninety degrees to the left, entered the median, passed through the median, and veered into the westbound lanes of the Expressway.
[13] Based on measurements taken by the investigating officers, the appellant’s vehicle travelled about 3.2 kilometres from the point where Ms. Neilson observed the “slight” swerve to the point where it began to fishtail. The physical evidence indicated that the car veered into the median about eighty metres west of the Central Avenue overpass.
[14] Ms. McLean’s evidence was crucial to the Crown’s case. Her credibility was not in issue. She did her best to recount accurately what she saw and felt immediately before the accident.
[15] Ms. McLean testified that everything was fine until just after the vehicle went under the Central Avenue overpass. She was talking to Ms. Wolf in the backseat and was not looking at the appellant. Because Ms. McLean’s evidence is so important, I will quote it at length. In her examination-in-chief, she said:
Q. And can you just describe then what happens as you’re travelling eastbound on E C Row?
A. We were going to pick up Valerie, because that was the last person we had to pick up and everything was fine up until just like a little bit after Central, he – Casey started to jerk the wheel back and forth.
THE COURT: Slow down, please.
A. And we had – we asked him to stop and it looked like he was – like it felt like he – it looked like he was trying to stop and then we went over the median and then there was a white car coming at us and the next thing I know that the police were there.
MR. COSTA: Q. Alright, let me just take you back a bit. You indicated he started jerking the wheel, the vehicle, is that correct?
A. Correct.
Q. And that was ….
MR. BRADIE: Excuse me, Your Honour, he said started to jerk the wheel back and forth. We’re at a terribly sensitive part in the evidence and I would encourage my friend, as I know he won’t intentionally do, to not lead the witness on any of this. This is terribly important.
MR. COSTA: Q. He was jerking the vehicle?
A. Yes.
Q. How was he jerking the vehicle?
A. He was jerking the wheel back and forth.
Q. Do you recall how many times he jerked the wheel back and forth?
A. No.
Q. Do you know how hard he did that?
A. No.
Q. Or how much?
A. No, I don’t.
Q. Alright, you said we told him to stop?
A. Yes.
Q. Who actually told him to stop?
A. Me and Jessica.
Q. What did you say to him?
A. We just – we were – we were like kind of – like I was kind of scared, so we just told him – like we told him to stop, like it was – we were – I – told him like just to stop because I was scared and Jessica told him to stop as well. It just – I don’t know why she did, but she did, like we just told him to stop.
Q. Did he respond to that?
A. Yes.
Q. What did he say or do?
A. He – he….
Q. Let me break it down. Did he say anything to response to it?
A. No.
Q. What did he do?
A. He tried to – like he tried to set the car back on course.
Q. Do you recall how he did that?
A. Not – like no, not really. It was just like he – the jerking had slowed down and it was as if – like it was just – he was doing it to try to get the car to go straight again [emphasis added].
[16] In cross-examination, Ms. McLean testified that she felt the first jerk just as the car was coming out from under the overpass at Central Avenue. Before that, the appellant had not been showing off, fooling around, or doing anything improper while he was driving. Ms. McLean did not see what caused the vehicle to jerk and agreed that it was like “a lightning bolt”. She could not be sure whether she felt more than one jerk. According to the measurements done by the investigating officers, the car went into the median about 80 metres from where Ms. McLean described the first jerk as occurring. If the vehicle was travelling at 105 kilometres per hour, it would have taken about 2.7 seconds to travel from the point where Ms. McLean felt the first jerk to the point where the vehicle entered the median.
[17] Ms. McLean was cross-examined as to what she saw after she felt that first jerk or jerks:
A. I at first felt the jerk and then I looked over and he was still doing it and then I told him to stop.
MR. BRADIE: Q. When you say that he was still doing it, doing what?
A. He was still – he was still jerking the wheel.
Q. He had his hands on the steering wheel?
A. Yes.
Q. And you saw his hands on the steering wheel?
A. Yes.
Q. And once again, he said nothing during any of this?
A. Correct, but not that I can remember.
Q. No, and you saw both his hands on the steering wheel and you saw the steering wheel moving to the left and to the right?
A. Right.
Q. And you can’t say, and I’m – because I’m going to suggest to you what happened is that vehicle started to go out of control, firstly, that Casey was trying to control it, and I’m going to say to you, I’m going to suggest to you that you – you cannot say that this didn’t happen. You cannot say that you felt a jerk in vehicle and didn’t know why, right?
A. Mm-hm.
Q. You turned to your left and you see Casey with his hands on the wheel, right?
A. Mm-hm.
Q. And you see the wheel going left and right?
A. Correct.
Q. And you cannot say whether, in all fairness here, and this is terribly important, you cannot say that the wheel is going to the left and the right because he was pulling it to the left and right or whether he was trying to control the wheel from going to the left and the right, right? Is that fair?
A. … (No reply).
Q. All you can see is his hands on the wheel?
A. Yes.
Q. The wheel is going left and right?
A. Yes.
Q. You have a sense he’s trying to control the car, right?
A. Like….
Q. Right?
THE COURT: Let her answer the question.
A. I don’t like understand, like….
MR. BRADIE: Q. You feel a jerk?
A. Yes.
Q. You look to your left and you see Casey having both his hands on the wheel, right?
A. Yes.
Q. The wheel is going left and right in his hands?
A. Yes.
Q. And you can’t say whether at that time he was trying to bring the wheel under control or whether he was trying to move it to make it worse? You can’t say, right?
A. No, I can’t say.
Q. And almost immediately after that, the vehicle goes right across the median, right?
A. Right.
Q. And then we know that there was an awful collision and you were hurt in that collision, right?
A. Yes.
Q. And you do have a memory that you were under the Central Avenue overpass when you felt this jerk, right?
A. Right.
Q. And you were going at or about the speed limit?
A. I had looked over and we were going about 105.
Q. That would be about the speed limit, just a little over?
A. Yes.
Q. To your memory, as you had gone under the E C Row – or I’m sorry, under the Central Avenue overpass, you had – you were going at about 105, you feel this jerk, you look over, Casey has got his hands on the wheel, the wheel is continuing to jerk, right?
A. Right.
Q. And as you said I think in all fairness, he could have either been jerking it to make things worse or jerking it to bring it under control or just holding onto the wheel, but you can’t really tell?
A. I can’t, no.
Q. And almost immediately thereafter, he does lose control totally?
A. Yes.
Q. And the vehicle goes off into the median?
A. Yes [emphasis added].
[18] After the appellant’s vehicle lost control, it crossed the median into the westbound traffic on the Expressway and struck a Mazda driven by Mr. Levesque. Mr. Levesque’s vehicle then lost control and collided twice with Mr. Roussel’s Plymouth which was also travelling westbound on the Expressway.
[19] Officer Jeffrey Hyttenrauch, the investigating officer, testified as to the observations he made at the scene of the accident. He could not see anything to suggest to him that the vehicle had lost control as a result of a mechanical failure. While he acknowledged that it was “possible” that the left front tire had been flattened before the accident, it was his opinion that the tread marks were not consistent with that hypothesis, but suggested that the tire had been damaged during the accident. Officer Hyttenrauch also testified that neither the weather nor the road conditions offered any explanation for the accident.
[20] The evidence of an automobile mechanic heard on the preliminary inquiry was admitted with the consent of the parties. The mechanic examined the appellant’s vehicle after the accident. He testified that, in his opinion, the damage to the left front tire was caused by the accident. The mechanic identified a number of mechanical problems with the appellant’s vehicle. These problems were sufficiently serious that the mechanic would not have certified the vehicle on a safety check. The mechanic further testified, however, that the mechanical problems with the vehicle would not explain a sudden loss of control by the vehicle, although they could adversely affect the driver’s ability to regain control of the vehicle.
[21] The appellant suffered a head injury and other serious injuries in the accident. He testified that he had no memory of events from several hours before the accident until several days after the accident. The defence led expert medical evidence that the appellant suffered from retrograde amnesia as a result of his head injury. The medical expert explained that a person suffering from retrograde amnesia can lose his or her memory of events for a short or long period of time. That person may recover some, all or none of the memory over time. The Crown did not challenge the contention that the appellant suffered from retrograde amnesia and that he genuinely could not remember the relevant events.[^1]
III
THE STANDARD OF REVIEW
[22] Section 686(1)(a)(i) of the Criminal Code mandates appellate review of the sufficiency of the evidence said to justify the conviction. The review is a limited one. An appellate court must determine whether a properly instructed trier of fact, acting judicially, that is reasonably, could have convicted the accused on the totality of the evidence. In performing this task, the appellate court must view the entirety of the evidence through “the lens of judicial experience”: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at para. 40 (S.C.C.).
[23] In exercising its power to review the reasonableness of the verdict, the appellate court cannot simply substitute its view as to the appropriate verdict. Nor is it sufficient for the appellate court to have a “lurking doubt” or some other vague discomfort as to the correctness of the verdict. As Arbour J. said in Biniaris at para. 42, in describing the function of appellate review for reasonableness:
To the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal experience and insight. It also requires that the reviewing court articulate as explicitly and precisely as possible the grounds for its intervention. I wish to stress the importance of explicitness in the articulation of the reasons that support a finding that a verdict is unreasonable or cannot be supported by the evidence [emphasis added].
[24] Where the verdict is reached by a judge alone, the reasons of the trial judge can provide valuable insight into the reasonableness of the verdict. However, errors in the reasons are not a pre-condition to a finding that a verdict is unreasonable, and errors do not compel a finding that the verdict is unreasonable: R. v. Biniaris, supra, at para. 37.
IV
THE TRIAL JUDGE’S REASONS
[25] In detailed reasons for judgment, the trial judge reviewed the evidence at some length. I find no material misapprehension of the evidence. He also set out the law governing the offence of criminal negligence causing death or bodily harm. I see no error in his description of the law regarding criminal negligence.
[26] The trial judge ultimately concluded:
There is no question in my mind that jerking a steering wheel from side to side at a speed of 105 to 110 kilometres per hour on a high speed expressway, in the absence of any other explanation in such a way as to cause it to swerve or fishtail and go across the median and get into an accident, is an inherently dangerous act that amounts to a reckless disregard for the lives and safety of other people and is a marked departure from the standard of care that should be employed by a reasonable person in the circumstances.
[27] It is implicit in the trial judge’s findings that he concluded that at some stage in the two to three seconds between the point when the vehicle first jerked and when it lost control and entered the median, the appellant was deliberately jerking the steering wheel from side to side; he was not attempting to control the vehicle, but trying to make the vehicle swerve. Presumably, the appellant was trying to frighten his passengers or was showing off for them.
[28] In coming to his conclusion, the trial judge stressed that no explanation was offered by the appellant for the swerving of the vehicle either at the time it occurred or at any time after the accident. The trial judge also observed:
In addition, both Danielle and Jessica asked the accused to stop jerking the wheel to alleviate the jerking, swerving or fishtailing of the car because it apparently scared them. The accused started to slow the jerking and this would indicate that he had some control over the activity of the car before it suddenly jerked to the left and went through the median. There was no reasonable explanation for the driving from Danielle and I have found the accused to be the sole cause of the accident [emphasis added].
V
ANALYSIS
[29] Criminal negligence in the context of driving-related allegations of criminal negligence requires proof that the accused’s conduct constituted a marked and substantial departure from that expected of the reasonable driver and proof that the conduct demonstrated a wanton or reckless disregard for the lives or safety of other persons. The requisite wanton or reckless disregard may, but not must, be inferred from proof of conduct that constitutes a marked and substantial departure from that expected of the reasonable driver: R. v. Waite (1986), 1986 4698 (ON CA), 28 C.C.C. (3d) 326 at 343 (Ont. C.A.), aff’d (1989), 1989 104 (SCC), 48 C.C.C. (3d) 1 (S.C.C.). I will focus on the requirement that the evidence be reasonably capable of supporting the conclusion that the appellant drove in a manner that constituted a marked and substantial departure from the standard of driving expected of a reasonable driver.
[30] This was an unusual criminal negligence trial in at least two respects. First, there was little, if any, dispute as to the credibility or reliability of any of the witnesses who testified. Second, the conduct said to constitute the act of criminal negligence occurred entirely within a two to three second timeframe. There was nothing in the appellant’s conduct or his manner of driving before that brief timeframe that offered any support for the Crown’s case.[^2] To the contrary, the appellant’s driving prior to those fateful seconds was entirely proper.
[31] There can be no doubt that conduct occurring in a two to three second interval can amount to a marked departure from the standard of a reasonable person and demonstrate a wanton or reckless disregard for the life or safety of others. However, conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum: see R. v. Waite (Ont. C.A.), supra, at 342; R. v. Hundel (1993), 1993 120 (SCC), 79 C.C.C. (3d) 97 at 106 (S.C.C.).
[32] I think the appellant’s conduct during the two or three seconds in issue could only reasonably be said to constitute a marked and substantial departure from the conduct expected of a reasonable driver if the appellant deliberately jerked the steering wheel to cause the vehicle to swerve, presumably to either show off or frighten his young passengers. If that finding was reasonably open on the evidence, then the appellant could properly have been convicted of criminal negligence, as he was unable to regain control of the vehicle before it crossed the median and collided with the westbound vehicle. As indicated, I read the trial judge as making that finding. With respect, I do not think that finding was reasonably available on the totality of the evidence.
[33] Ms. Neilson’s evidence does not help the Crown establish that the appellant deliberately caused the vehicle to swerve. Her observation of the slight swerve or correction by the appellant’s vehicle some three kilometres before it left the road cannot be reasonably attributed to any deliberate act by the appellant. Nor can it be connected to the accident. Whatever happened to the appellant’s vehicle at Howard Road, it was so slight that it went unnoticed by Ms. McLean. The appellant’s driving in the ensuing three kilometres was normal and demonstrated no failure to control the vehicle. Ms. Neilson’s description of the fishtailing at Central Avenue is entirely consistent with the appellant losing control of his vehicle. However, it offers no basis for any inference that the appellant had deliberately initiated the swerving that led to the vehicle going out of control.
[34] The Crown’s case stands or falls on Ms. McLean’s evidence. Six significant findings flow from her testimony. First, the appellant was driving the vehicle in a proper manner until he reached the Central Avenue overpass. Second, as the vehicle came out of the Central Avenue overpass, it jerked dramatically. Third, Ms. McLean could not say what caused this dramatic jerking of the vehicle. Fourth, within two or three seconds after the initial jerk, the vehicle had lost control and entered the median. Fifth, the appellant did not regain control of the vehicle at any point during that two to three second interval. Sixth, Ms. McLean saw the appellant turning the steering wheel back and forth after she felt the first significant jerk, but could not say whether he was turning the wheel to make the jerking worse or in an attempt to regain control of the vehicle.
[35] Ms. McLean’s evidence does not provide a basis for a reasonable inference that the appellant deliberately caused what Ms. McLean described as the first dramatic jerking of the vehicle as it passed under the Central Avenue overpass. Nor does her evidence offer a basis for a reasonable inference that the appellant deliberately caused the subsequent jerking of the vehicle by turning the steering wheel back and forth. As she candidly acknowledged, he may have been trying to bring the vehicle under control or he may have been trying to make it swerve or jerk.
[36] In my assessment of the evidence, the most that can be said is that the appellant suddenly lost control of his vehicle and was unable to regain control of the vehicle before it entered the median. This conclusion certainly suggests a momentary lapse of attention by the appellant, but, in my view, cannot reasonably sustain a finding that his driving amounted to criminal negligence or dangerous driving under the Criminal Code.
[37] The thorough reasons of the trial judge provide insight into the path he followed in convicting the appellant. With respect, I think that those reasons reveal three errors. The trial judge failed to address the cause or the significance of the initial dramatic swerve or jerk of the vehicle. He also improperly relied on the absence of any explanation for the loss of control by the appellant. Lastly, he drew a speculative inference from the evidence that the appellant seemed to regain partial control of the vehicle in the two or three seconds between the initial jerk of the vehicle and when it entered the median. I will now address each of these errors.
[38] The trial judge made no finding as to the cause of the first dramatic swerving of the vehicle that occurred when Ms. McLean was not looking at the appellant. In concluding that the appellant was guilty of criminal negligence, the trial judge concentrated only on the “jerking a steering wheel from side to side at a speed of 105 to 110 kilometres per hour”. The jerking of the steering wheel that Ms. McLean did see occurred after the first dramatic swerving of the vehicle and on her evidence was equally consistent with an attempt to regain control of the vehicle. I think the assessment of whether the appellant’s conduct amounted to criminal negligence could not begin with the evidence that he jerked the steering wheel back and forth after the vehicle had begun this dramatic swerving, but had to begin with the cause of the initial swerve. As I have already indicated, there was no evidence from which it could be inferred that the appellant deliberately caused the initial swerving of the vehicle described by Ms. McLean.
[39] In the course of his reasons, the trial judge made several references to the absence of any explanation from the appellant for his loss of control of the vehicle. The trial judge’s references to the absence of any explanation referred both to the absence of an explanation when Ms. McLean and Ms. Wolf told the appellant to stop jerking the wheel and the absence of any explanation subsequent to the accident.
[40] On a charge of criminal negligence or dangerous driving, if, on an objective view of the driving, the driving would constitute the offence of criminal negligence or dangerous driving, the trial judge may infer the necessary fault component from the conduct itself, absent some explanation that would negate that fault element. For example, an accused who drives across several lanes of traffic into oncoming traffic may explain what is prima facie negligent or dangerous driving by adducing evidence that he suffered a sudden heart attack immediately before losing control fo the vehicle: see R. v. Hundel, supra, at 108; R. v. Lowe (1974), 1974 692 (ON CA), 21 C.C.C. (2d) 193 at 198 (Ont. C.A.).
[41] The absence of an explanation becomes important where the driving objectively viewed establishes criminally negligent conduct. Here, the evidence did not reach that threshold. Instead, the evidence left unanswered the cause of the initial swerving of the vehicle and further permitted no inference that the appellant had at any time in the crucial two to three seconds deliberately caused the vehicle to swerve or jerk. As the evidence does not permit the conclusion, objectively viewed, that the driver’s conduct demonstrated a marked and substantial departure from that to be expected of a reasonable driver, the absence of any explanation for the accident from the driver cannot make the Crown’s case.
[42] The trial judge’s reliance on the absence of any explanation from the appellant either at the time the vehicle was out of control or at any time after the accident is problematic for another reason. Apart from turning the wheel back and forth, Ms. McLean could not recall the appellant doing or saying anything in the two to three seconds between the first jerk of the vehicle and the vehicle entering the median. I do not think his silence can reasonably support an inference that he deliberately turned the wheel to cause the vehicle to swerve. To the contrary, if as the Crown alleged he must have been showing off or trying to frighten his young female passengers, one would have expected something in the appellant’s demeanour or some statement by him to support the existence of that motivation. In my view, no reasonable inference can be drawn from the evidence that the appellant did not say anything in the crucial two to three seconds.
[43] Similarly, no inference can be drawn from the appellant’s failure to offer any explanation after the accident. The trial judge accepted that the appellant suffered from retrograde amnesia and had no memory of the relevant events. Any evidentiary value that may be attributable to the absence of an explanation post-accident assumes an ability to offer an explanation: see R. v. Lowe, supra, at p. 199-200.
[44] The third error in the trial judge’s analysis relates to the inference that he drew from the fact that the appellant was able to partially regain control of the vehicle. Relying on Ms. McLean’s evidence, the trial judge described the appellant as regaining partial control of the vehicle before the final jerk that caused the vehicle to turn to the left and enter the median. The trial judge inferred from this evidence that the appellant had some control over the vehicle before it veered into the median and, as I read his reasons, that he deliberately caused the final swerve that caused the vehicle to enter the median.
[45] Ms. McLean testified that the appellant did seem to have some success in regaining control of the vehicle after the initial swerve and before it entered the median two or three seconds later. This apparent success was obviously short-lived. Even if one could safely rely on Ms. McLean’s sense that the appellant had partially regained control of the vehicle, the fact that he was able to do so does not reasonably permit an inference either that he deliberately caused the vehicle to initially lose control or that he deliberately caused the final swerving of the vehicle into the median. The appellant’s temporary and partial success in bringing the vehicle under control can offer no insight as to why the vehicle initially lost control, or why it finally swerved into the median.
VI
CONCLUSION
[46] Responsibility for one’s actions takes various forms. Criminal, civil and personal responsibility are often very different matters. These proceedings are concerned exclusively with the appellant’s criminal responsibility. Criminal responsibility turns on the Crown’s ability to prove beyond a reasonable doubt on properly admitted evidence each element of the offence. For the reasons set out above, I am satisfied that, on the evidence adduced, the Crown could not meet that burden. That conclusion, of course, says nothing about the appellant’s civil liability or, perhaps most importantly, his personal responsibility for what happened.
[47] I would allow the appeal, quash the convictions and enter an acquittal. It is unnecessary to consider the sentence appeal.
RELEASED: “DD” “JUN 20 2006”
“Doherty J.A.”
“I agree S. Borins J.A.”
I agree R.G. Juriansz J.A.”
- The reasons of the trial judge are reported at [2004], O.T.C. 753 (S.C.J.). Those reasons differ from the reasons in the transcript of the trial proceedings. Counsel both argued that the court must proceed on the basis of the reasons found in the transcript of the trial proceedings. We agree. References to reasons for judgment are references to the reasons found in the transcript.
[^1]: At trial, the defence sought a stay of proceedings based on the appellant’s retrograde amnesia. The defence argued that the appellant was unable to make full answer and defence because of his medical condition. The trial judge rejected that argument. In oral argument on appeal, Ms. Henein did not ask the court to stay the proceedings, but she did argue that the appellant’s retrograde amnesia was a relevant factor in assessing the reasonableness of the verdict, especially in the light of the trial judge’s emphasis on the absence of any explanation by the appellant for the accident.
[^2]: For the reasons set out below (para. 33), I do not think that Ms. Neilson’s evidence describing a “slight” swerve had any probative value for the Crown.