CITATION: R. v. Trakas, 2008 ONCA 410
DATE: 20080523
DOCKET: C46866 and C47158
COURT OF APPEAL FOR ONTARIO
FELDMAN, LANG and JURIANSZ JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant (C46866) Respondent (C47158)
and
JAMES TRAKAS
Respondent (C46866) Appellant (C47158)
Alison Wheeler and Peter Scrutton for the Crown
Timothy E. Breen for James Trakas
Heard: January 24, 2008
On appeal by the Crown from the acquittal of James Trakas for the offence of criminal negligence causing death, and on appeal by James Trakas from his conviction for the included offence of dangerous driving, by Justice John R. McIssac of the Superior Court of Justice, entered on February 21, 2007, sitting with a jury.
LANG J.A.:
INTRODUCTION
[1] The trial arose from a collision in which James Trakas, who was driving his Dodge Durango SUV, hit and killed a police officer, Police Constable Alan Kuzmich. Both the Crown and the defence appeal from the jury’s verdict, which followed a seven-week trial presided over by McIsaac J.
[2] The Crown argues two grounds of appeal regarding James Trakas’ acquittal for the offence of criminal negligence causing death (s. 220(b), Criminal Code): first, that the trial was rendered unfair by the defence closing submissions and, second, that the trial judge’s instructions on causation were misleading. The Crown seeks a new trial on this charge.
[3] James Trakas argues two grounds of appeal regarding his conviction on the included offence of dangerous driving simpliciter (s. 249, Criminal Code): first, that the trial judge improperly interrupted the defence closing and, second, that the trial judge erred in instructing the jury to consider the whole of the respondent’s driving on the night in question, rather than restricting the time frame to his driving at the time of the impact. The respondent seeks an acquittal.
[4] Whether I am dealing with the Crown appeal or the Trakas appeal, I will refer to the Crown either as the Crown or as the appellant, and James Trakas as the respondent.
[5] For the reasons that follow, I would dismiss both appeals.
BACKGROUND
[6] The respondent had a motorcycle for sale. A man arrived at his home and took the motorcycle for a test drive, leaving his pick-up truck in the respondent’s driveway. Shortly thereafter, another man, who apparently had been hiding in the pick-up, drove it out of the respondent’s driveway.[^1] The respondent realized that he had been tricked and that his motorcycle had been stolen.
[7] He entered his Durango and chased the pick-up through residential and rural areas, including from the respondent’s residence to Highway 400, south on Highway 400 to Highway 89, east on Highway 89 to Highway 11 and south on Highway 11 to the 10th Concession. The chase, which lasted about 25 minutes, covered approximately 46 kilometres of road. During various stages of the chase, witnesses observed the vehicles running stop signs, tailgating, driving erratically, passing dangerously and making sudden lane changes. Witnesses reported that the vehicles were driving at excessive speeds ranging from 110 to 180 km/h. The police estimated the respondent’s average speed at 139 km/h on Highways 89 and 11 until shortly before the accident when he was caught in a line of traffic, although the route that formed the basis for this estimate was disputed at trial. There was no direct evidence that the respondent was travelling over the 80 km/h speed limit at the time of the collision.
[8] Throughout the chase, the respondent tried to stay in communication with the police using his cell phone. However, he had to repeatedly redial because his cell phone disconnected due to intermittent coverage in the area. During the calls, the respondent sought police intervention to assist him with his chase. His last call, which lasted 11 minutes before it was cut off, was routed to a police call-taker at the South Simcoe Police Service,[^2] who liaised with the police dispatcher under the supervision of another officer.
[9] The police supervisor dispatched P.C. Kuzmich northbound on Highway 11. P.C. Kuzmich radioed when he was approaching the 9th Concession and told the dispatcher that he intended to set up a spike belt at the 10th Concession. Near the same time, the respondent gave the call-taker his location heading south on Highway 11 just past the 13th Concession. The call-taker did not tell the respondent to cease his pursuit, although she did suggest that he should slow down and activate his hazard lights. In the meantime, P.C. Kuzmich was not told that the call-taker had lost contact with the respondent or that the respondent did not know about his intended presence at the 10th Concession or of his plan to deploy a spike belt. After the respondent’s call disconnected, the supervising police officer was recorded in the background saying, “I hope he’s not going to smash into one of my officers… Tell him to back off.”
[10] Two minutes later, the collision occurred. At the time of the impact, the police officer was standing on the southbound lane of Highway 11. P.C. Kuzmich was thrown approximately 88 meters and died from extremely traumatic injuries.
[11] An eyewitness to the collision, David Rose, saw events unfold as he was travelling northbound on Highway 11. He observed the police car parked on the northbound shoulder. He also saw a line of about four to five vehicles travelling southbound towards him, one of which would have been the Durango. He saw nothing unusual about either the speed or the spacing of any of the southbound vehicles.
[12] Mr. Rose first had the impression of the movement of a person coming from the shoulder of the southbound lane. As he approached the point of impact, he saw the person, who turned out to be P.C. Kuzmich, standing “pretty well in the middle of the road” immediately beside his driver’s side window. He then heard a thud. It seems that, for some unknown reason, P.C. Kuzmich stepped onto Highway 11 into the direct path of the Durango in the split second after the vehicle in front of the Durango (likely the pick-up) had passed.
[13] Immediately after the collision, Mr. Rose stopped and called 911. At the request of the call-taker, he returned to the scene and gave his contact information to officers who were already investigating the collision. They told him he would be contacted. When he was not contacted within two days, he went to a police station and gave a statement of his observations. David Rose was not called as a witness at trial by the Crown; he was called by the defence.
[14] The defence took the position that the respondent’s driving at the point of impact was neither criminally negligent nor dangerous because he was then driving in a line of traffic moving at normal speeds. He therefore could not be convicted of either criminal negligence causing death or the included offence of dangerous driving. In any event, the defence argued that the police officer’s act in stepping onto the highway was an independent intervening act that broke the chain of causation.
[15] It was the trial Crown’s position that the respondent caused the police officer’s death because he was driving at an excessive rate of speed at the time of the impact. The Crown argued that the respondent caused the officer’s death, even if the officer was on the road, because the officer was present at the scene in response to the danger created by the respondent; accordingly, the chain of causation was not broken by the officer’s act of stepping onto the road. Alternatively, on the basis that the respondent’s driving was one continuous act from the start of the chase to its conclusion, the Crown argued that dangerous driving by the respondent during any part of the chase was sufficient for a conviction on the included offence of dangerous driving simpliciter.
[16] The respondent’s speed at the point of impact was a critical issue at trial. Detective Constable Gordon Hebert, a York Regional Police accident reconstructionist, provided a report that estimated the respondent’s speed as excessive. His opinion was based on a formula known as the Eubanks equation, which estimates the speed of a vehicle using the distance the pedestrian was thrown from the point of impact. However, Jerry J. Eubanks, the author of the equation, prepared a report for the defence. His report was based on the opinion of the pathologist, Dr. Nihad Hadi Ali-Ridha, who, at least initially, was certain that the police officer’s foot had been momentarily trapped under the Durango’s tire. In Eubanks’ opinion, the unusual mechanism of the impact would have affected the trajectory of the officer’s body so that his equation could not be used to mathematically model the respondent’s speed.
[17] Anticipating that the Eubanks opinion would discredit the Hebert opinion, the Crown met with the pathologist in the midst of the trial and provided him with the officer’s shoe. Because there was no tire mark on the shoe, the pathologist changed his opinion from being “certain” that the officer’s foot was trapped to an opinion that it was “possible” that the officer’s foot was trapped under the Durango’s tire.
[18] While this change in opinion may have otherwise rehabilitated the Hebert opinion, that opinion was further found to be scientifically unsound by another Crown expert, John Mustard, a senior forensic engineer at the Centre of Forensic Sciences. In the end, the Crown decided not to introduce the Hebert opinion. As a result, there was no direct evidence at trial that the respondent’s speed was excessive at the time of the collision.
[19] Accordingly, the Crown relied on circumstantial evidence, which included the respondent’s earlier excessive speeds, the distance the officer's body was thrown, and the severe injuries to his body.
[20] Throughout the trial, the respondent was critical of the failure of the police call-taker and dispatcher to keep the respondent and P.C. Kuzmich informed about each other’s positions. He was also critical of the prosecution, among other things, for the mid-trial meeting with the pathologist, resulting in the pathologist’s modification of his opinion about the mechanics of the impact.
[21] I will first deal with the grounds of appeal arising from the defence closing followed by the appellant’s appeal regarding the charge on causation and the respondent’s appeal of his dangerous driving conviction.
ANALYSIS
(a) The defence closing and the judge's caution
[22] The respondent’s trial counsel began his address to the jury by discussing why the right to trial by jury was important. He told the jury that the police, the Crown attorneys and the judge were all paid by the government. It was the role of the jury, which was the “voice of common sense and decency”, to hold the power of the state, with all its resources, in check. In emphasizing the presumption of innocence, the defence counsel referred to several cases of wrongful conviction, arguing forcefully that it was unfair to have prosecuted the respondent, who had only followed the directions of the police call-taker, when none of the police personnel had been charged. The closing attacked the “prosecution”, using ambiguous language that could be interpreted to include both the police and the Crown, and arguing that the prosecution was “tainted”, “blind”, that it could not be trusted, that the Crown was burying evidence, that the Crown advanced “false” information, and that the prosecution was “crippled by tunnel vision”. The defence counsel pointed out that several important Crown witnesses, including the experts, were initially not told about David Rose’s evidence. He also pointed to the mid-trial meeting that resulted in Dr. Ali-Rahdy altering his opinion. He emphasized that the Crown had chosen not to call David Rose, and asked the jury to consider why the Crown would want to keep his evidence from them.
[23] At the morning recess, the Crown objected to the defence closing and the trial was adjourned until the next morning for argument. Upon resumption, the Crown sought a mistrial, which the trial judge refused. After lengthy submissions, the trial judge cautioned the jury that certain of the defence submissions were “outside the rules”. He told the jury that defence counsel ought not to have mentioned the wrongful convictions because those cases were not the jury’s concern; the jury should not be distracted by irrelevant considerations, and their focus was properly on the respondent’s trial. In explaining why it was wrong for counsel to have suggested that the Crown had some ulterior motive in not calling Mr. Rose, the trial judge told the jury that, while there was an obligation on the Crown to disclose evidence, there was no obligation to call all possible witnesses. In any event, he reminded the jury that Mr. Rose was called by the Crown to testify at the preliminary inquiry and, of course, the jury knew that Mr. Rose testified for the defence at trial. The trial judge told the jury that the Crown is not permitted to explain why it did not call a certain witness, and that the trial was not about a competition between counsel, which might distract the jury into “a big sideshow”, but about the jury’s “ultimate task of considering the evidence”. Finally, when the trial judge told the jury “to ignore that part of [defence counsel’s] address which constituted a personal attack on the Crown Attorneys”, he explained that the defence was free to attack the police and the witnesses, because the Crown would be able to respond to those attacks, but that the Crown was not able to respond to a personal attack.
(b) The parties’ positions on the closing
[24] The Crown argues that the trial judge ought to have granted a mistrial. Alternatively, the Crown argues that the caution given was an inadequate remedy. The Crown’s complaints can be grouped into two areas. The first is the attacks on the conduct of the Crown, which include not calling David Rose, the altered opinion of the pathologist, and the decision to prosecute the respondent and not others. In reference to those issues, the Crown argues that the trial judge failed to tell the jury explicitly that the Crown had not conducted itself improperly. Second, the Crown argues in response to the defence closing regarding the resources of the state and the role of the jury that the trial judge erred in failing to provide a caution that offset the unfairness of these remarks and that precluded the prospect of jury nullification.
[25] The defence argues that the caution that was delivered was both unnecessary and unnecessarily compromised trial fairness and that the trial judge erred in concluding that the defence closing amounted to a personal attack on the Crown. Alternatively, the defence argues that the trial judge erred in interrupting the defence closing because any necessary caution could have been included in the trial judge’s charge to the jury.
(c) The approach to the issue
[26] I approach the respondent’s argument mindful that defence counsel is allowed considerable latitude in the contents of a jury closing and that such a closing should not be interrupted absent good reason. Nonetheless, this court noted in R. v. Snow (2004), 2004 CanLII 34547 (ON CA), 190 C.C.C. (3d) 317 (Ont. C.A.) at para. 26 that, while counsel will normally be cut “considerable slack” and permitted to make closing addresses without interruption, a trial judge is “entitled to intervene once counsel crosses the accepted limits of what is permitted.” The question on this appeal is whether those accepted limits were crossed and, if so, whether the trial judge’s caution provided an adequate remedy to ensure trial fairness.
[27] In my view, it is important to bear in mind that a cornerstone of the defence position in this case was that the police, who were investigating the death of a fellow officer, approached their investigation with tunnel vision and with the benefit of considerable resources, which affected the reliability of their case. The defence position is that these unusual circumstances put at issue the propriety of the police investigation and disclosure as well as the foundation for the experts’ opinions. Accordingly, in my view, defence counsel should have been allowed significant latitude to argue that the case against the respondent lacked reliability.
[28] Nonetheless, for the reasons that follow, and while I acknowledge that the matter is not without its difficulties, it is my view that the trial judge did not make a reviewable error when he interpreted the defence closing as having crossed the line. Given that conclusion, the trial judge was entitled to interrupt in the minimally intrusive way that he did. He did not err in principle in the terms of the caution provided to the jury, particularly when that caution is considered in the context of the entirety of the trial. I turn to the specific challenges raised by the Crown on appeal.
(d) The challenges to the closing
(i) The conduct of the Crown case
[29] There was no question that David Rose was the only eyewitness to the impact, that David Rose’s evidence placed the police officer on the road at the time of the impact, that the prosecution disclosed David Rose’s evidence to the accused and that the Crown did not provide its experts with David Rose’s evidence for the purpose of their initial expert reports. It is also not in dispute that, while the Crown called David Rose as a witness at the preliminary inquiry, that it did not call him as a witness at trial. The defence did.
[30] In my view, just as the defence would be entitled to comment on the absence of evidence on a particular issue, such as an absence of evidence regarding motive or opportunity, so too the defence in this case was entitled to comment on the decision of the Crown not to call David Rose and to ask the jury to consider why the Crown did not call the only eyewitness to the impact or provide the experts about his evidence when they were asked to formulate their opinions. This does not mean that the Crown was obliged to call David Rose as a witness. Of course, it was not. This was recognized by all counsel and by the trial judge. See R. v. Cook (1997), 1997 CanLII 392 (SCC), 114 C.C.C. (3d) 481 (S.C.C.) Further, this was not a case where defence counsel asked the jury to draw an adverse inference from the failure to call the witness because, in this case, the witness had testified, albeit for the defence. However, the defence did suggest that the strategy of ignoring David Rose’s evidence highlighted the prosecution’s tunnel vision and undermined the reliability of other evidence presented by the Crown.
[31] Different considerations apply to the different roles of those involved in the process: to the exercise of discretion by Crown counsel whether or not to call a particular witness; to an appeal court considering whether the Crown’s failure to call an important witness should result in a new trial; to a trial judge obliged to instruct the jury on the law regarding whether any inference can be drawn from the failure to call a witness, and to a defence counsel commenting on a Crown failure to call a witness. In my view, each situation must be considered in context, and the defence in this case was at liberty to comment on the weaknesses of the Crown’s case, including its strategy in not calling David Rose, and in not giving David Rose’s evidence to the expert witnesses. Similarly, the Crown was entitled in its closing to point out that David Rose’s evidence was available to the defence and was eventually given to the experts, just as the trial judge was entitled to tell the jury that the Crown is not obliged to call a particular witness.
[32] However, while the defence was entitled to comment on the Crown’s tactics on these issues, it was not entitled to suggest that the Crown attorneys personally showed a lack of integrity in arriving at that strategy. This is so for a number of reasons, most importantly because the trial was not about the personal integrity of the Crown attorneys, who would not be in a position in any event to respond to such allegations. To the contrary, the jury’s mandate was to decide whether the Crown had established its case against the respondent and not to weigh and compare the integrity of the Crown and the defence. If the defence wanted to challenge the Crown’s integrity, it could have sought an abuse of process ruling. It did not. See Cook, para. 58. Accordingly, the question is whether the defence attacks on the “prosecution” in this case amounted to an attack on the Crown’s strategy and tactics or whether they amounted to an attack on the personal integrity of the Crown attorneys. The former is permissible; the latter is not.
[33] While another judge may have come to a different conclusion regarding how the defence submissions would have been perceived by the jury, the trial judge was in the best position to make this call. Indeed, this trial judge, who received full submissions, recognized that the issue was not clear cut. He specifically observed that defence counsel was “very very skilful in the words he chose in presenting this to the jury.” He also recognized that defence comment was fair, and noted that the question was not the comment, but the manner of the comment. Accordingly, alive to the issues and the law, it was for the trial judge to weigh the defence closing in the context of the entire trial and to determine whether that closing risked distracting the jury from its task of determining the charges before the court and, if it did, to determine the appropriate remedy.
[34] While the Crown argues that the trial judge should have augmented his caution by telling the jury that it was irrelevant who else the police could have charged as a result of the officer’s death, this would have been obvious to the jury both as a matter of common sense and from the trial judge’s remonstrance in the caution to focus on the evidence in this trial, as well as in the instruction in his charge to decide the case against the respondent on the evidence. Moreover, a fair reading of the defence submissions on this point does not convey the impression that counsel was suggesting the jury not convict the respondent simply because others had not been charged.
[35] Finally on this point, I note that in his charge to the jury, the trial judge put the defence position fairly and told the jury that it was for them to decide whether expert errors “amounted to an attempt to mislead anyone”. He gave them the defence position that the pathologist “altered his opinion” to conform to the Crown theory and told them they must decide whether “these factors compromise the opinions advanced by the two experts.” The jury retired, asked questions indicating that they were considering the proper issues, and returned with a verdict after two days of deliberations. They clearly were not sidetracked into irrelevant considerations.
(ii) The argument concerning jury nullification
[36] The appeal Crown argues that the defence closing amounted to a request for jury nullification because counsel effectively told the jury to disregard the law and the evidence. See R. v. Latimer (2001) 2001 SCC 1, 150 C.C.C. (3d) 129 (S.C.C.). However, I would reject this submission because the trial defence counsel did not tell the jury to decide the case in a manner inconsistent with the evidence and the law; rather, he argued that the evidence, or the absence of evidence, and the law did not support a finding of guilt. Moreover, the jurors would have been aware that they were required to decide the case on the evidence because the trial judge specifically cautioned them to do so. I find support for this conclusion from the fact that the trial Crown did not submit at the time that the defence closing amounted to a request for jury nullification. I would not accept this submission on appeal; it is not supported by a review of the record.
[37] I also do not accept the Crown’s argument that a further caution was needed about the defence counsel’s reference in his jury address to certain participants in the trial being paid by the government, including the trial judge. While this reference by defence counsel was unhelpful, in my view, it was nothing more than rhetoric that would not have affected the jury’s deliberations. The jury must be credited with a level of common sense and intelligence. See R. v. Trochym (2007), 216 C.C.C. (3d) at para. 114 (S.C.C.). I believe the trial judge aptly characterized this complaint when he rejected the Crown’s objection saying, “I may be getting like an armadillo in my old age, but I did not perceive anything directed towards me. It is just that all these mass of resources including the Court system is, is that big huge government and here is little Mr. Trakas backed up against that. It is sort of a Leviathan and Minnow analogy.” I agree. The defence submission on this issue was simply a reflection, albeit a colourful one, intended to illustrate that the police investigation and the state possessed considerable resources when contrasted with those of the respondent.
(iii) Conclusion on the defence closing
[38] It may be that a retrospective parsing of selections of the defence closing would demonstrate that a caution from the trial judge was not essential in the circumstances of this case, and that any concerns could have been adequately addressed in the trial judge’s charge to the jury. However, assuming that is so, it is not for this court to second guess the trial judge, who was required to make an immediate decision about whether a caution was necessary. In this case, considering the defence closing and the trial as a whole, the trial judge was clearly of the view that the closing risked distracting the jury from deciding the case on the evidence. In those circumstances, it was open to the trial judge to decide to caution the jury. In my view, the trial judge’s decision to provide a caution was not an error in principle, but an exercise of judgment with which this court should not interfere on appeal. Further, in my view, the trial judge’s instructions were sufficient to allay any prejudice to the Crown, without causing unfair prejudice to the defence.
(iv) The interruption and the application for a mistrial
[39] Moreover, the closing in this case, particularly when considered in conjunction with the trial judge’s remedial caution, did not rise to the “clearest of cases” necessary to dictate a mistrial. See for example, R. v. Toutissani, 2007 ONCA 773, [2007] O.J. No. 4364 at para. 9 (C.A.), where MacPherson J.A. endorsed the statement that “[t]he declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned”. In this case, the trial judge assessed the effectiveness of a potential caution and properly remedied any issues arising from the defence closing; resort to a mistrial became unnecessary. I would not interfere with his exercise of discretion. See R. v. Liu (2004), 2004 CanLII 34061 (ON CA), 190 C.C.C. (3d) 233 at paras. 23-24 (Ont. C.A.).
[40] Nor do I accept the respondent’s submission that the trial judge improperly interrupted the defence address. Having determined that the defence overstepped accepted parameters for a closing, the trial judge minimized any prejudice to the defence by not interrupting the closing mid-address. Instead, he waited until the morning recess to discuss the matter with counsel. When those discussions led to an adjournment of the trial until the next day, the trial judge simply informed the jury that “an important procedural matter has come up” and that they should not speculate about its contents. Thus, the jury was not told that the interruption was related in any way to the contents of the defence address. At the conclusion of his caution, the trial judge explained to the jury that the closing addresses would continue the next day and noted that “both sides have been assisting me”, a comment that did not demean the defence position in any way and would have suggested that the defence had been working together with the Crown and the trial judge.
[41] Finally, after the judge delivered his caution, the defence counsel resumed his closing without interruption and, in doing so, properly focussed his challenge on the alleged mistakes in the investigation and told the jury to consider those mistakes in assessing the Crown’s case. This was proper closing and successfully made the point that was important to the defence. The point was reiterated by the trial judge in his charge to the jury. Accordingly, I would reject this ground of appeal.
(b) Causation
[42] The trial Crown took the position that, since the police officer was killed when he was acting in the course of duty responding to the respondent’s calls for help, the respondent factually and legally caused his death.
[43] On appeal, the Crown challenges the trial judge’s instructions on causation on three bases. The Crown argues that the trial judge erred first, by failing to provide the required instruction on whether the victim’s actions were an independent intervening act; second, by introducing the concept of contributory negligence as something that could break the chain of causation; and third, by providing a charge that was unduly confusing because it left the jury to decide the issue as a “moral reaction”.
[44] Before considering these challenges individually, I note that the trial judge charged the jury in accordance with R. v. Nette, (2001), 2001 SCC 78, 158 C.C.C. (3d) 486 (S.C.C.). In Nette, Arbour J. explained that criminal causation, in addition to factual causation, requires legal causation, which involves asking whether the accused “should be held criminally responsible for the consequences that occurred” based on a consideration of “whether the result can fairly be said to be imputable to the defendant”. She quoted from G. Williams’ description of this further test as “a moral reaction” in Textbook of Criminal Law (2nd ed. 1983) at pp. 381-82.
[45] After the jury asked a question about the meaning of “significant cause”, the trial judge instructed the jury in line with the decision of Hill J. in R. v. Menezes (2001), 2002 CanLII 49654 (ON SC), 50 C.R. (5th) 343 (Ont. S.C.J.) regarding the determination of causation. Counsel do not take issue with this aspect of the charge.
[46] In response to another defence objection, the trial judge further charged the jury telling them that there was a “clear distinction” between factual and legal causation and that factual causation was not at issue in this case. After further discussions, the trial judge recharged the jury about the positions of the Crown and defence on the issue of causation. The Crown argues that this last instruction did not repeat the legal test, and the trial judge erred in telling the jury that “the alleged contributory negligence of Constable Kuzmich” should be part of the jury’s consideration.
[47] In considering the argument on appeal, I take into consideration that the Crown did not challenge these instructions at the time and expressly agreed with the trial judge’s re-charge given in response to the jury’s question seeking an explanation of “significant cause”. Although not determinative, this suggests that the trial Crown did not see any prejudice arising from the charge as a whole. See R. v. Nguyen (2000), 2000 CanLII 5742 (ON CA), 35 C.R. (5th) 245 at para. 30 (Ont. C.A.) and R. v. Chandrakumar (2007), 2007 ONCA 798, 231 O.A.C. 30 at para. 34.
[48] Regarding the Crown’s first challenge, the Crown argues that the trial judge erred by not instructing the jury that the officer’s actions were not an independent intervening act because the officer acted due to “mistake, intimidation or other similar pressure” created by the respondent. I do not agree. This phraseology comes from the reasons of Gillese J.A. in the related case of R. v. Shilon, December 11, 2006, unreported (Ont. C.A.).
[49] In Shilon, the question was whether the actions of Trakas could be sufficient to sever the chain of causation for Shilon, the alleged driver of the pick-up, who was facing a committal on the same charge of criminal negligence causing death. In this case, the Crown argues that the officer acted on mistake, intimidation or other similar pressure exerted by Trakas so that his stepping onto the road was not an independent intervening act.
[50] There are two things to be said about this argument. First, the trial judge’s instructions clearly put before the jury the question of whether the officer’s presence on the road was in some way a response to the actions of the respondent in initiating and pursuing the chase or whether it was an independent intervening act. The trial judge specifically instructed the jury to consider whether the collision was “within the scope of the risk created by James Trakas when he was involved in a high-speed pursuit of Mr. Shilon over this great distance.” He also put forward the Crown’s position that the officer’s action in stepping on the road was not an independent intervening cause because he attended at the scene only in response to the dangerous situation created by the respondent. Second, the instruction on legal causation was correctly based on Nette. The jury’s subsequent question was answered in the words of Menezes. Among other instructions, the trial judge instructed the jury that a legally blameworthy cause must be “at least a significant” cause and “more than one that is trifling or minor.”
[51] I see no error in these instructions. The Crown raises Shilon for the first time on appeal, a decision that was released in the midst of the respondent’s trial. It is noteworthy that the trial Crown did not request this additional instruction from the trial judge. In any event, in my view, the law was adequately encompassed by the trial judge’s instruction to consider whether the officer was present on the road in response to the respondent’s conduct or whether the officer’s presence on the road was an independent intervening cause.
[52] Regarding the Crown’s second argument about the trial judge’s use of the words “contributory negligence” in a re-charge, it is my view that, although these words import a civil concept not recognized in criminal law[^3], they would not have misled this jury about the relevant question of whether the respondent significantly contributed to the officer’s death and would not have been interpreted by the jury as qualifying the charge on “intervening act”, particularly when considered in light of the repeatedly correct instructions contained in the charge as a whole.
[53] The third challenge to the charge alleges that it was confusing because the trial judge distinguished between factual and legal causation even though Nette specifically instructed that a jury ought not to be told to undertake a two-part analysis and this would have left the jury to decide the case as a “moral reaction”. See Nette at paras. 46, 66-72. I do not accept this argument in the circumstances of this case. Factual causation was simply not an issue; the respondent hit the officer with his Durango and caused the officer’s death. The issue, as the jury was told and would have appreciated, was whether there was any independent intervening act by the officer that severed the link of causation to the respondent’s conduct.
[54] Accordingly, I would dismiss the Crown’s appeal on this ground.
(c) Dangerous driving as an included offence
[55] The respondent’s appeal challenges the trial judge’s instruction that the jury was to consider the entirety of the respondent’s driving when determining whether the Crown had proven the included offence of dangerous driving simpliciter. The respondent argues that the only relevant time for an assessment of his driving was at the point of impact, when he was driving in a line of cars at a normal highway speed, and that his earlier driving was too remote to constitute the actus reus of the offence of criminal negligence causing death.
[56] This argument is based on s. 581 of the Criminal Code, which requires that each count in an indictment “shall, in general, apply to a single transaction.” The respondent argues that since the indictment contained a single charge that alleged culpable homicide, the transaction at issue only concerned his driving at the time of the impact because that is when the officer’s death occurred. I disagree for three reasons.
[57] First, the respondent had fair notice that the offence charged included the offence of dangerous driving in relation to all his driving during the chase. Indeed, the trial was conducted in a manner that the respondent’s entire driving conduct was clearly at issue and the included offence of dangerous driving was included in both the Decision Ladder and the Verdict Sheet provided to the jury. Moreover, the trial judge told the jury that a verdict of dangerous driving, or dangerous driving causing death, was available on the evidence, including the evidence of the entire chase. That evidence included the respondent’s aggressive driving and speeding in the moments before the impact until he was slowed down by the line of traffic. The defence took no objection to the trial judge’s instruction to the jury to consider the entirety of the respondent’s driving and, indeed, in his closing to the jury, defence counsel said that he anticipated the Crown would ask the jury “to convict Mr. Trakas based on his driving before the accident”, but asked the jury to bear in mind that Mr. Trakas was on his cell phone with the police dispatcher throughout this time.
[58] Second, the transaction could not realistically be dissected into separate components of time or transactions in the manner proposed by the respondent. A continuous course of dangerous driving was what was alleged, a single transaction, albeit one that culminated in the officer’s death.
[59] Third, the indictment itself does not confine the time frame to the location or time of the collision. It charges that the respondent “at the Town of Innisfil, in the Central East Region, and elsewhere in the Province of Ontario” did by criminal negligence cause the death of P.C. Kuzmich. Accordingly, the indictment relies on the chase from its inception in Innisfil to its tragic conclusion at the 10th Concession. The respondent’s driving before the impact cannot be said to be a separate transaction.
[60] In any event, even if the respondent is correct that more than one transaction was alleged, the trial judge effectively divided the count in his charge to the jury, without objection from the defence and without causing any unfairness or prejudice.
[61] The jury obviously concluded that the respondent’s driving during the pursuit was dangerous. This conclusion was based on ample evidence, including the multiple examples of the respondent’s unacceptable and unsafe manoeuvring of his vehicle through the entire driving sequence, including immediately before he was slowed down by the cars ahead of him.
[62] Finally, the evidence of dangerous driving cannot be excused, as argued by the defence, on the basis of the respondent’s ongoing communications with the police during the chase. Even if it could, the respondent failed to comply with the police instructions, including their instructions to slow the speed of his vehicle.
[63] Accordingly, I would also dismiss the respondent’s appeal on this issue.
RESULT
[64] For the reasons as set out above, I would dismiss the appeals of both the appellant and the respondent.
RELEASED: May 23, 2008 “S.E. Lang J.A.”
“KNF” “I agree K. Feldman J.A.”
“I agree R.G. Juriansz J.A.”
[^1]: The alleged driver of the pick-up, Moshe Shilon, was committed to stand trial on a charge of criminal negligence causing death. See R. v. Shilon, December 11, 2006, unreported (Ont. C.A.). The man who stole the motorcycle died from injuries he suffered when he crashed the stolen motorcycle in a separate accident.
[^2]: The process of receiving calls from the public and dispatching police officers involves a call-taker who receives incoming calls from the public by telephone and a dispatcher who communicates with police officers by two-way radio.
[^3]: See Nette at paras. 46-73; R. v. Talbot (2007), 2007 ONCA 81, 217 C.C.C. (3d) 415 at para. 81 (Ont. C.A.) and Menezes at para. 92.