WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
DATE: 20060118
DOCKET: C41733
COURT OF APPEAL FOR ONTARIO
WEILER, BLAIR and MACFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Matthew T. McGarvey for the appellant
(Respondent)
- and -
J. L.
Christine Tier for the respondent
(Appellant)
Heard: October 7, 2005
On appeal from the judgment of Justice Hugh L. Fraser of the Ontario Court of Justice (Youth Court) dated December 9, 2003.
WEILER J.A.:
Overview
[1] The appellant, a young offender, appeals the trial judge’s finding that he was guilty of causing death by criminal negligence contrary to s. 220 of the Criminal Code, R.S.C. 1985, c.C-46.
[2] Section 219 of the Criminal Code defines the offence of criminal negligence as follows:
- (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, “duty” means a duty imposed by law.
[3] The trial judge’s conclusion as to whether or not the conduct at issue is criminal negligence is one of fact: R. v. Anderson (1990), 1990 128 (SCC), 53 C.C.C. (3d) 481 (S.C.C.) at 487. Pursuant to the Supreme Court of Canada’s decision in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the standard of review of a trial judge’s findings of fact is palpable and overriding error. The Housen rule does not preclude an appellate court from identifying errors that have a sufficiently decisive effect that they would justify intervention and review on appeal: Prud'homme v. Prud'homme, 2002 SCC 85, [2002] 4 S.C.R. 663 at para. 65.
[4] In this case the appellant asks that a new trial be ordered on the basis that: (1) the trial judge’s reasons for convicting him are conclusory and do not permit meaningful appellate review and (2) the reasons demonstrate that the trial judge erred in finding that the appellant’s conduct constituted criminal negligence.
[5] I would not give effect to the appellant’s argument that the reasons of the trial judge do not permit meaningful appellate review. Indeed, based on those reasons, I would accede to the appellant’s second argument and order a new trial.
Facts
[6] Because I would order a new trial, a summary of the facts, or more accurately at this time, the evidence, will be sufficient to appreciate my analysis of the trial judge’s reasons.
[7] On the night in question, the deceased and G.A., were passengers in the van the appellant drove to the home of their friend, S.L. When they arrived in front of S.L.’s home, both the appellant and the deceased got out of the van and knocked on the front door. There was no response. The appellant returned to the van while the deceased remained outside S.L.’s front door. The appellant drove to the end of the street, turned the vehicle around and drove back towards S.L.’s residence. As he did so, he noticed the deceased standing in the middle of the street and stopped the van within approximately 5 feet of where the deceased was standing. Smiling and laughing, the deceased jumped onto the hood of the van.
[8] The appellant testified that he put the van in motion and drove about three houses down the road with the deceased still on the van. Within a few seconds, the appellant realized that “what was going on was wrong” and stopped the van. At this point, the deceased slid to the ground. The appellant got out of the van and went over to the deceased who was unconscious and bleeding from the head. He then ran to a neighbouring house to call emergency services.
[9] Constable Maille, an expert in accident investigation and reconstruction, took extensive measurements at the scene and testified at trial. He testified that the deceased, who weighed approximately 121 kilograms or 260 pounds, landed on his back with his feet towards the van and his head away from the van some 3.2 metres or 10 feet from the front of the hood. He also found evidence of “spackling” or “deceleration scuffs” caused by the tire being dragged along the roadway due to abrupt braking and “stippling” or a skid patch on the surface of the tire caused by the wheels locking up and dragging. The police were unable to calculate the actual speed involved at the time of the alleged offence because there was no point of impact from which they could measure. However, Constable Freeman estimated that the maximum speed the vehicle could have achieved was 42 kilometers per hour.
The Trial Judge’s Reasons
[10] The trial judge held that he first had to determine whether the appellant’s driving amounted to a marked departure from the driving of a reasonable person in similar circumstances. Second he had to determine whether the conduct demonstrated a “wanton or reckless disregard for the lives and safety of others” and therefore amounted to criminal negligence.
[11] The trial judge did not, however, make a specific finding that the appellant’s conduct was a marked departure from the norm before considering whether he was wanton or reckless. Nor did he find it necessary to accept the Crown’s reconstruction evidence that the appellant braked suddenly. Having regard to the appellant’s admission that there was nothing for the deceased to hold onto at the front of the van, the trial judge held that:
Once the accused decided to place his foot on the accelerator of his vehicle and proceed down the street with the victim prone on the hood of the van, the consequences of S.N. falling off of the van was predictable. If he applied the brakes quickly, the sudden stop would have caused the victim to fall off the vehicle. If he applied the brakes in a more gradual manner as he saw the victim sliding off the van, he ran the risk of running over the victim before the van had been brought to a complete stop. Either decision could result in potentially disastrous consequences.
I agree with the Crown submission that in the case before me, the criminal negligence occurred the moment the accused made the decision to move the vehicle forward with his friend on the hood. The fact that the deceased fell off the van is a consequence of the criminally negligent act.
[12] The trial judge then referred to the appellant’s testimony that he “realized what was going on was wrong” and wanted put an end to it as well as his evidence that he realized the deceased could get hurt by this adventure, but that his desire to please his friend had taken over his better judgment. He concluded:
On all the evidence before me, I find that the accused J.L. in moving his vehicle forward with the victim stretched over the hood, did show a wanton and reckless disregard for the safety of the victim S.N. and that the conduct of the accused in so doing, caused the death of S.N. As such all of the elements of the offence have been met.
Analysis
[13] The appellant’s first argument concerning the adequacy of the trial judge’s reasons may be disposed of summarily. The Supreme Court’s decision in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.) requires that the trial judge’s reasons permit an appellate court to meaningfully review the basis for his or her conclusion. The appellant submits that the reasons are conclusory and fail to disclose the trial judge’s “theory of liability.” I would hold that the reasons indicate that the trial judge understood the positions of the parties and that they are sufficient to permit this court to review them for error.
[14] I turn now to the question of whether the trial judge erred in his assessment of the level of the appellant’s culpability. The offence of criminal negligence causing death is at the high end of a continuum of moral blameworthiness. A lesser offence along the same continuum is the dangerous operation of a motor vehicle in s. 249 of the Criminal Code which requires that the vehicle be driven, “in a manner that is dangerous to the public, having regard to all the circumstances…”. At the lower end of the continuum is careless driving under the Highway Traffic Act, R.S.O. 1990, c. H.8, s.130. See R. v. Hundal (1993), 1993 120 (SCC), 79 C.C.C. (3d) 97 (S.C.C.) at 106, Cory J. Whether specific conduct should be categorized as criminal negligence is one of the most difficult and uncertain areas in the criminal law: Anderson, supra, at 484-485.
[15] The lesser offence of dangerous driving requires that the accused’s conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation. If an explanation is offered by the accused for his driving, “the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.” Hundal, supra, at 108. The standard is the modified objective standard.
[16] Criminal negligence requires a more elevated standard. The departure from the norm must be more marked in both the physical and the mental elements of the offence. See R. v. Palin (1999), 1999 9834 (QC CA), 135 C.C.C. (3d) 119 (Qc. C.A.), leave to appeal refused [1999] C.S.C.R. no 106 (S.C.C.) at 126-27, Deschamps J.A. The requirement for a greater marked departure in both the physical and mental elements is consistent with the higher level of moral blameworthiness associated with criminal negligence, namely, wanton or reckless disregard for the life or safety of others. See R. v. Fortier (1998), 1998 12917 (QC CA), 127 C.C.C. (3d) 217 (Qc. C.A.).
[17] The trial judge did not make a specific finding that the appellant’s driving represented a marked departure from the norm. This omission in this case means that the trial judge failed to analyze the extent to which the appellant’s physical act was a marked departure from the norm. Deschamps J.A. in Palin is clear that both the physical and mental elements of the offence must meet a higher standard than that of dangerous driving. This higher standard has been described as a marked and substantial departure from the standard of care of a reasonable person: Waite v. The Queen (1989), 1989 104 (SCC), 48 C.C.C. (3d) 1 (S.C.C.) at 5. It is not self-evident that the appellant’s act of putting the car in gear with a person on the hood satisfies this higher standard.
[18] The trial judge appears to have concluded that because the appellant realized there was a risk of injury to his friend by driving with him on the hood, he was “wanton” or “reckless.” The fact that a reasonable person would realize that there is a risk of injury would also support a finding of dangerous driving. To establish that conduct is wanton or reckless the consequences must be more obvious. The greater the risk of harm the more likely it is that the consequences are the natural result of the conduct creating the risk. It is from this conduct that the conclusion that the accused had a wanton or reckless disregard for the lives or safety of others is drawn: Anderson, supra, at 486-487. In this case, the admission of the appellant as to his state of mind is an important factor, but so, too, is his driving. The offence of criminal negligence punishes, not a state of mind, but the conduct of the accused. See R. v. Tutton (1989), 1989 103 (SCC), 48 C.C.C. (3d) 129 (S.C.C.) at 139-40, McIntrye J. Thus the physical action of the appellant is as critical to the determination of wanton or reckless conduct as the mental element.
[19] As summarized by Hill J. in R. v. Menezes, 2002 49654 (ON SC), [2002] O.J. No. 551 at para 72:
The term wanton means “heedlessly” (Regina v. Waite (1996), 28 C.C.C. (3d) (Ont.C.A.)) “ungoverned” and “undisciplined” (as approved in Regina v. Sharp (1984), 1984 3487 (ON CA), 12 C.C.C. (3d) 428 (Ont. C.A.) at 430, Morden J.A.) or an “unrestrained disregard for the consequences” (Regina v. Pinske (1988), 1988 3118 (BC CA), 6 M.V.R. (2d) 19 (B.C.C.A.) at 33, Craig J.A. (affirmed on a different basis 1989 47 (SCC), [1989] 2 S.C.R. 979, Lamer J. The word “ reckless” means “ heedless of consequences, headlong, irresponsible.” Sharp, supra, at 30.
[20] In evaluating whether the appellant’s conduct amounted to a wanton and reckless disregard for the lives and safety of others, all of the circumstances surrounding the offence must be examined: Hundal, supra. The trial judge correctly held that the deceased’s contributory negligence could not excuse the appellant’s conduct, but he should have considered the deceased’s instigation and encouragement of the activity along with the appellant’s youthfulness as a factor in determining whether the conduct of the appellant was so morally blameworthy that it amounted to wanton or reckless disregard for the lives and safety of others. See e.g. R. v. Barron (1985), 1985 3546 (ON CA), 23 C.C.C. (3d) 544 (Ont. C.A.), a case also involving horseplay between friends.
[21] To summarize, the trial judge committed a palpable and overriding error in finding that the appellant’s conduct met the higher standard of criminal negligence without first making a finding regarding the appellant’s driving. The trial judge further erred in finding that the appellant was “wanton” or “reckless” without considering all of the circumstances surrounding the activity including the manner in which the appellant drove, his youthfulness, the instigation and encouragement of the activity he received from the deceased, and his conduct in trying to help his friend immediately after this tragic event.
[22] Accordingly, I would allow the appeal, set aside the finding of guilty of criminal negligence causing death, and in its place order a new trial. In view of the fact a new trial has been ordered, there is no need to address the sentence appeal.
RELEASED: January 18, 2005 (“KMW”)
“Karen M. Weiler J.A.”
“I agree R. A. Blair J.A.”
“I agree J. MacFarland J.A.”