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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.
CITATION: R. v. K. L., 2009 ONCA 141
DATE: 20090213
DOCKET: C44439
COURT OF APPEAL FOR ONTARIO
Sharpe, Armstrong and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
K. L.
Appellant
George Filipovic for the appellant
Nadia Thomas for the respondent
Heard: January 29, 2009
On appeal from conviction of dangerous operation of a motor vehicle causing death entered by Justice Joseph F. Kenkel of the Ontario Court of Justice (Youth Justice Court) at Newmarket, dated August 22, 2005.
Watt J.A.:
[1] After a trial in Youth Justice Court, K.L. was convicted of dangerous operation of a motor vehicle causing death. He appeals against his conviction and raises two grounds of appeal both of which have to do with the issue of causation.
[2] For the reasons that follow, I would not give effect to either ground of appeal and would dismiss the appeal.
THE FIRST GROUND: PROOF OF CAUSATION
[3] The first ground of appeal contests the conclusion of the trial judge that the prosecutor has established that, in law, the appellant’s operation of the motor vehicle he was driving caused the death of the deceased, a cyclist on the shoulder of the road.
[4] To provide context for this ground of appeal, brief reference to some of the circumstances surrounding the accident is essential.
The Car
[5] About a month prior to the accident, K.L.’s mother purchased a used motor vehicle, a 1988 Chrysler 5th Avenue, from her father-in-law. After some repairs had been completed, the appellant’s father took the car to a licensed mechanic for a safety check. The mechanic certified the vehicle as compliant with provincial safety standards and it was licensed.
[6] It is common ground that the vehicle should not have been certified as fit for operation on provincial roads. The tread on both front tires was worn well below minimum provincial standards and would not satisfactorily grip the road surface during driving.
[7] Both front and rear braking systems on the Chrysler had significant defects, which would cause the vehicle to veer right or left (rather than braking in a straight line). When the brakes were applied, it could cause the wheels to lock-up and it would make it more difficult to bring the vehicle to a stop by applying the brakes. Some wheels could slow down more quickly than others with less or no braking power.
[8] Anyone who drove the vehicle may “possibly” have noticed that the brakes pulsated, vibrated or shook when applied, further that bringing the vehicle to a complete stop was a difficult task.
[9] K.L. was not an experienced driver and had not driven the Chrysler very much in the month preceding the accident. He was aware that the vehicle had been recently repaired and knew of the safety certification process required before a vehicle may be licensed and driven on the roads of this province.
The Accident
[10] On August 20, 2003, around 3:00 p.m., Robert Smart was riding his bicycle on the shoulder of Catering Road, a narrow, two-lane road with a posted speed limit of 50km per hour. The gravel shoulders are about 2 or 3 feet wide. There are houses, a trailer park and a high school in the immediate area, as well as a sharp curve within sight of the scene of the collision. A local resident testified that the curve could be negotiated at the posted speed limit but not at speeds in excess of 80km per hour.
[11] Craig Carter a friend of the appellant, was driving his Jeep along Catering Road a short distance ahead of the appellant. Carter was travelling at the posted speed limit of 50km per hour. He noticed a cyclist on the shoulder of the road travelling in the same direction as Carter and the appellant.
[12] The appellant pulled out to pass Carter’s vehicle and accelerated to speeds more than twice the posted speed limit to do so. Carter pulled away from the shoulder to ensure that he didn’t strike the cyclist. To avoid striking Carter’s Jeep as it moved into the opposite lane, the appellant braked. His right side brakes locked, but there was little braking from the opposite side. The imbalance caused the Chrysler to rotate as it braked. The vehicle came back across the lane in which it had been originally travelling, struck the cyclist at the edge of the road and continued a rotating slide over a driveway, off the road and into a tree.
The Causation Issue
[13] Two paragraphs in the reasons of the trial judge reflect his assessment of the relationship between the condition of the motor vehicle and the manner in which the appellant operated it as contributing factors in the death of the deceased:
I agree with the Crown that the unsafe condition of the Chrysler was shown to be a significant contributing cause to the manner in which this collision occurred. However, the fact that a licensed mechanic had certified the car to be safe the previous month I find substantially detracts from the Crown’s submission that Mr. K.L. jr. knew the vehicle was unsafe to drive and nevertheless chose to drive with disregard for public safety. Of course, the safety certification process is meant to protect the public from this very circumstance.
I agree with the defence that on the evidence before me, those who knew of this vehicle’s condition and allowed it to be licensed and operated played a direct role in the death of Mr. Smart. Having acknowledged that, there is no doubt that the tragic chain of events that led to the death of Mr. Smart began with the dangerous actions of K.L. I find that the acts of the accused K.L. were a significant contributing cause to the death of Robert Smart.
The Alleged Error
[14] The appellant contends that causation has both a factual and a legal component. Factual causation involves an inquiry about how a deceased died in a medical, mechanical or physical sense. Legal causation, on the other hand, has to do with whether the person who is alleged to have caused death should be held responsible in law for that death.
[15] Mr. Filipovic acknowledges that the factual causation component has been established here. He submits, however, that the legal component has not been established. The trial judge applied a “but for” test to the legal component of causation. However appropriate a “but for” test may be for the factual component of causation, it does not apply to the legal component. In this case, the legal component was not established.
[16] The appellant contends that the legal component of causation, which looks to who should be held legally responsible for the cyclist’s death, points to the mechanic who certified the car as fit. It was the mechanic’s act of certification and the intervening and inevitable brake failure that severed the appellant’s causal connection, thus legal responsibility for the cyclist’s death.
Discussion
[17] The causation standard in vehicular crimes involving consequential death is the same standard as applies in cases of unlawful homicide, whether charged as murder or manslaughter. That standard requires that the accused’s conduct be at least a contributing cause of the deceased’s death, outside the de minimis range: R. v. Smithers, 1977 7 (SCC), [1978] 1 S.C.R. 506 at p. 519; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488 at paras. 71 and 72.
[18] The criminal law does not recognize contributory negligence nor is it equipped with any mechanism to apportion responsibility for the harm occasioned by criminal conduct, except as part of sentencing after the required standard of causation has been established: Nette at para. 49.
[19] In this case, the task of the trial judge was not to determine, as between the reckless mechanic and the dangerous driver, who was more responsible for the death of the deceased. What the trial judge was required to decide and did determine was whether the appellant’s conduct was at least a contributing cause of the deceased’s death outside the de minimus range. Provided the appellant’s operation of the car was at least a contributing cause of death, outside the de minimis range, the prosecutor need establish no more to satisfy the causation requirement. It is as immaterial here that death was in part caused by a defective braking system as it was in Smithers that death was in part caused by a malfunctioning epiglottis.
[20] It is worth remembering that, as in Smithers, the offences charged here impose no burden on the prosecution to prove an intention to cause death or even injury. Nor was foreseeability of death or injury in issue. That the fatality was unanticipated or an unlikely result of the appellant’s conduct is not a defence.
[21] The appellant acknowledges that the manner in which he drove the Chrysler constituted dangerous operation of a motor vehicle. There was no intervening act to break the chain of causation between the appellant’s conduct and the prohibited consequence. The certification did not do so, having been given about one month earlier. Nor did the braking malfunction sever the causation connection when it was the manner in which the appellant operated the vehicle that created the necessity of braking.
[22] I would not give effect to this ground of appeal.
THE SECOND GROUND: INADEQUATE REASONS ON CAUSATION
The Reasons of the Trial Judge
[23] The core of the trial judge’s reasons on the issue of causation has been excerpted earlier but for convenient reference is repeated here:
- I agree with the defence that on the evidence before me, those who knew of this vehicle’s condition and allowed it to be licensed and operated played a direct role in the death of Mr. Smart. Having acknowledged that, there is no doubt that the tragic chain of events that led to the death of Mr. Smart began with the dangerous actions of K.L. I find that the acts of the accused K.L. were a significant contributing case to the death of Robert Smart.
The Alleged Error
[24] The appellant’s principal complaint about the trial judge’s reasons on causation is that the trial judge failed to explain why the mechanic’s reckless certification of the safety of the vehicle did not break the chain of causation and relieve the appellant of liability for causing the death of the deceased. The absence of analysis leaves the legal causation requirement proven on a “but for” basis which, however appropriate per factual causation, is simply wrong for legal causation.
[25] The appellant takes the position that the paucity of reasons on causation emasculates appellate review and warrants intervention.
Discussion
[26] Appellate courts must take a functional, context-specific approach to the adequacy of reasons in a criminal case. The reasons are to be read as a whole, in the context of the evidence given, the issues raised and the conduct of the trial. The reasons must be sufficient to fulfill their functions of
i. explaining why the accused was convicted;
ii. providing public accountability; and
iii. permitting effective appellate review.
R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52 at paras. 15-16.
[27] The appellant was charged with counts of criminal negligence causing death and dangerous operation of a motor vehicle causing death. The principal focus of the trial was on the manner of the appellant’s driving, including his knowledge of the mechanical condition of the car, which the prosecutor sought to prove as a basis upon which to establish criminal negligence. That said, causation was nonetheless an essential element of the prosecutor’s case, thus a live issue at trial.
[28] The principles governing causation are well-settled. In the main, the evidence about the inadequacies of the braking system on the vehicle was not controversial. Factual causation was beyond dispute. The trial judge’s reasons, read as a whole, demonstrate that he seized the substance of the causation issue and applied the appropriate test. Despite their brevity under the heading “Causation”, the reasons as a whole measure up to what is required of them.
[29] This ground of appeal fails.
DISPOSITION
[30] For these reasons, I would dismiss the appeal.
RELEASED: February 13, 2009 “RJS”
“David Watt J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree Robert P. Armstrong J.A.”