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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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. M.R., 2011 ONCA 190
DATE: 20110310
DOCKET: C51830
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Simmons and Blair JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
M.R. (a young person)
Respondent
Grace Choi, for the appellant
Peter Copeland and Kevin Tilley, for the respondent
Heard: October 26, 2010
On appeal from the acquittal entered by Justice Minoo F. Khoorshed of the Ontario Court of Justice (Youth Court) dated February 19, 2010.
O’Connor A.C.J.O.:
[1] The respondent, M.R., was charged with criminal negligence causing death while street racing contrary to s. 249.2 of the Criminal Code. Late on the evening of Monday, September 29, 2008, three young men engaged in a car race on a street in Mississauga. One of the drivers lost control of his car, collided with a lamp post and was killed. The two surviving drivers were charged under s. 249.2 with criminal negligence causing death while street racing.
[2] The respondent was the “flag man” who gave the signal for the drivers to start the race. The Crown alleged that, pursuant to the party liability provisions in s. 21(1)(b) or (c) of the Criminal Code, the respondent aided or abetted the drivers engaging in the race, and was therefore a party to the offence under s. 249.2.
[3] The respondent was tried by a judge of the Ontario Court of Justice, sitting as a Justice of the Youth Court. At the close of the Crown’s case, the trial judge granted the respondent’s motion to direct a verdict of acquittal.
[4] The Crown appeals. It seeks a new trial, arguing that the trial judge erred in failing to properly apply s. 21 of the Criminal Code.
[5] I would allow the appeal, set aside the acquittal and order a new trial.
Facts
[6] On the night of September 29, 2008, the respondent, aged sixteen, and several other young persons were socializing at a pub in Mississauga. Some of them began discussing whose car was the fastest and who was the best driver. A conversation developed about street racing. The group, including the respondent, then went to Argentia Road in order to have a street race.
[7] The group chose a long, wide, well-lit, relatively straight stretch of road in the area of an industrial park with little traffic. Three vehicles lined up across the road, with one in the oncoming lane. The respondent was asked to drop his red jacket to start the race. He was reluctant at first, but eventually agreed. He urged the drivers to “keep things safe”. He then started the race by dropping his jacket.
[8] Once the race started, the driver of the car in the oncoming lane dropped back and drove behind the other two in the proper lane. When one of the two leading cars reached a slight bend in the road, the driver lost control, hit a light standard and was killed. The other two cars were not directly involved in the accident.
[9] The respondent gave a videotaped statement to the police. He admitted that he knew there was going to be a race and that he dropped his jacket in order to signal the start.
[10] An accident reconstruction expert gave evidence. He indicated that the car that crashed was travelling at a minimum of 95 kilometres an hour immediately before reaching the curve in the road where the accident occurred. The expert’s opinion was that the driver should have been able to negotiate the curve travelling at that speed.
The Decision Below
[11] The trial judge allowed the respondent’s motion for a directed verdict and acquitted him. The trial judge gave brief oral reasons for his decision. He accepted that the respondent dropped his jacket in order to start the race. He said that if the two surviving drivers in the race were before him, he would hold them responsible because they had participated in the race.
[12] The trial judge went on to say that the only issue to be determined was whether the respondent’s participation by dropping his jacket to start the race was “sufficient” to categorize it as leading to and causing death.
[13] The trial judge found that dropping the jacket was not sufficient to constitute the offence of criminal negligence causing death. He concluded that it would bring the administration of justice into disrepute if he found that “a man who dropped the jacket at the request of one of the racers to start the race [was] a participant”.
[14] In his reasons, the trial judge did not specifically mention s. 21 of the Criminal Code, nor did he directly comment on the Crown’s theory that the respondent was liable as an aider or abettor to the offence charged.
Issues
[15] There are two issues:
Did the trial judge err in failing to apply ss. 21(1)(b) or (c) of the Criminal Code?
If the answer to the first issue is “Yes”, what disposition should this court make?
Analysis
1. The trial judge’s reasons – s. 21(1)
[16] The Crown argues that the trial judge failed to consider or to properly apply the aiding and abetting provisions under s. 21 of the Criminal Code when assessing the respondent’s criminal liability. I agree. In both its submissions to the trial judge and in argument in this court, the Crown’s theory of liability rested solely on the application of s. 21(1)(b) or (c) to the respondent’s conduct in starting the race.
[17] Section 21 reads as follows:
(1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
[18] The Crown’s strongest argument under s. 21 is based on s. 21(1)(b) – aiding the commission of an offence. There is no evidence to suggest that the respondent did anything to encourage the street race other than drop his jacket. Thus, if it is found that the respondent’s conduct did not constitute “aiding” the participants in the race, there would be no basis to find that the conduct abetted those persons. As such, I will limit my discussion to s. 21(1)(b).
[19] The Crown argues that there was evidence on which the two surviving drivers involved in the street race could be convicted of criminal negligence causing death. The respondent provided assistance to them by dropping his jacket, thereby starting the race. The Crown also argues that the respondent had the intent required to establish liability under s. 21(1)(b) because he dropped his jacket “for the purpose” of assisting the drivers’ criminally negligent conduct.
[20] With respect, the trial judge simply did not address this argument. He did not refer to s. 21(1) at any point in his reasons, nor did he use the language of s. 21(1) in analyzing the respondent’s role in the events.
[21] The respondent argues that the trial judge implicitly considered s. 21(1) by referring to what he viewed as an analogous situation. That situation involved a bank robber who asks an innocent bystander to hold his umbrella while he goes in and robs the bank. In the trial judge’s example, the bystander was not part of the plan to rob the bank and thus would not be guilty of bank robbery.
[22] Even if one accepts that this analogy was the trial judge’s attempt to apply s. 21(1) to the case before him, it misses the mark. The person holding the umbrella in the trial judge’s example did not “assist” the robbery, nor did he appear to have intended to do so. In contrast, the respondent in this case played an active role in starting the race, which on the Crown’s theory assisted the participants in committing the offence of criminal negligence causing death.
[23] Thus, I agree with the Crown that the trial judge did not properly consider the respondent’s potential liability under s. 21(1) of the Criminal Code.
2. What disposition should this court make?
(a) The underlying offence of criminal negligence causing death
[24] As I have concluded that the trial judge erred in failing to apply or properly apply s. 21(1)(b) to the facts, it falls to this court to consider the respondent’s motion for a directed verdict of acquittal.
[25] Section 220 of the Criminal Code creates the offence of criminal negligence causing death, and s. 221 creates the offence of criminal negligence causing bodily harm. The Code does not create an offence of criminal negligence simpliciter. A person is only liable for criminal negligence if the negligence causes either death or bodily harm.
[26] The Code also contains two criminal negligence offences specifically directed at street racing: ss. 249.2 and 249.3. The respondent was charged under s. 249.2 with criminal negligence causing death while street racing. This section was enacted on December 14, 2006 under Bill C-19. It reads as follows:
Everyone who by criminal negligence causes death to another person while street racing is guilty of an indictable offence and liable to imprisonment for life.
Section 249.3 creates the offence of criminal negligence causing bodily harm while street racing.
[27] Section 219(1) of the Criminal Code defines criminal negligence as follows:
Everyone 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.
[28] The test for criminal negligence as set out in s. 219 requires the Crown to show that an accused’s conduct or omission represented a “marked and substantial departure” from the conduct of a reasonably prudent person in the circumstances. See for example, R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at para. 9.
[29] The high standard of a “marked and substantial departure” from the conduct of a reasonably prudent person applies to both the physical and mental elements of the offence: R. v. J.L. (2006), 2006 CanLII 805 (ON CA), 204 C.C.C. (3d) 324 (Ont. C.A.), at para. 16. In addressing the offence of criminal negligence causing death, a court should first look to the actus reus of the offence and determine if the conduct or omission involved meets the marked and substantial departure standard. If it does, the court should then consider the question of whether the mens rea is established.
[30] The mental element for criminal negligence is described as a modified objective test: R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, at p. 887, Cory J.; R. v. Tutton, 1989 CanLII 103 (SCC), [1989] 1 S.C.R. 1392, at p. 1413, McIntyre J. A court must consider the facts existing at the time in light of the accused’s perception of those facts and assess whether the accused’s conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances: see R. v. Tutton, at p. 1432. In considering this issue, the court should consider whether the accused either adverted to the risk involved and disregarded it, or failed to direct his or her mind to the risk and the need to take care at all. In most cases, the mental element can be inferred from the accused’s conduct or omission: see R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 73-74, McLachlin J. (as she then was); R. v. Hundal, at p. 872, McLachlin J., concurring; R. v. Tutton, at p. 1432, McIntyre J.
[31] An additional question concerns what mental element is required to establish liability as a principal offender for criminal negligence causing death as related to the consequence of the criminally negligent act: the death. In R. v. Creighton, at pp. 41-45, the majority of the Supreme Court of Canada dealt with this issue in relation to a charge of unlawful act manslaughter. The court held that the test is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory. As stated by McLachlin J., at p. 75, the question is “whether the reasonable person in all the circumstances would have foreseen the risk of bodily harm”. I see no reason why the reasoning in Creighton on this issue should not apply equally to the offence of criminal negligence causing death. The offences of unlawful act manslaughter and criminal negligence causing death have much in common. Importantly, for present purposes, both involve a dangerous or unlawful act that causes death. From both a logical and policy standpoint, it makes sense that the mental element relating to the consequence of the offending conduct be the same for both offences.
(b) Section 21(1)(b) – Aiding the principal offence
[32] The actus reus of aiding an offence of criminal negligence causing death under s. 21(1)(b) will in most cases be straightforward. To establish liability the Crown must show that an accused did something (or in some cases omitted to do something) that assisted another in committing the offence.
[33] The mental element is more complex. As I pointed out above, the mental element for a principal charged with criminal negligence causing death is based on a modified objective standard. To establish liability, it is necessary to show only that the accused’s conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances. Further, it is not necessary to show that the principal accused subjectively foresaw death as a consequence of his or her acts. Objective foreseeability that bodily harm would ensue from the criminally negligent act is sufficient.
[34] What then is the mens rea required for an aider to criminal negligence causing death? To repeat, the relevant part of s. 21(1) reads as follows:
(1) Every one is a party to an offence who ...
(b) does or omits to do anything for the purpose of aiding any person to commit it; [Emphasis added.]
[35] What must the Crown establish to demonstrate that an aider did an act “for the purpose of” assisting the commission of the offence?
[36] In R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 16, Charron J. pointed out that “[t]he mens rea requirement reflected in the word ‘purpose’ under s. 21(1)(b) has two components: intent and knowledge.” As such, the Crown must prove that the accused intended to assist the principal in the commission of the offence and that the accused knew that the principal intended to commit it. This represents a subjective standard of mens rea.
[37] The court in Briscoe, at para. 16, emphasized that “purpose” does not incorporate the notion of desire. Thus, an accused need not desire that the offence be committed.
[38] There are two elements to an offence involving criminal negligence: 1) the criminally negligent act or omission, and 2) the consequence that the act or omission causes bodily harm or death.
[39] Applying the principles in Briscoe to the first element of a criminal negligence offence, it is necessary that an aider do something with intent to assist conduct that is criminally negligent and know sufficient details of the assisted conduct to render that conduct criminally negligent. Thus, the conduct that the aider knows he or she is assisting must constitute a marked and substantial departure from what is reasonable in the circumstances. To be clear, it is not necessary that the aider know the law, nor that he or she appreciate the legal consequences of the conduct being assisted. Rather, the aider will have aided the commission of the offence if he or she intentionally assists conduct which constitutes the offence and knows the principal intends to commit it. In those circumstances, it may be said that an aider did something “for the purpose of” assisting the commission of the offence.
[40] This interpretation of s. 21(1)(b), as it relates to the first element of criminal negligence offences, may in some circumstances require a higher form of mens rea for an aider than for the principal who committed the offence. On several occasions, this court has rejected the argument that the mens rea required by s. 21(1)(b) must mirror the mens rea required for the principal offence. Rather, this court has held that the specific language in s. 21(1)(b) – “for the purpose of” – may require a higher form of mens rea. In particular, it may require a knowledge of the circumstances which constitute the principal offence in cases where the principal offence involves elements of negligence or a failure to exercise due diligence: see R. v. F.W. Woolworth Co. (1974), 1974 CanLII 707 (ON CA), 3 O.R. (2d) 629; R. v. Roach (2004), 2004 CanLII 59974 (ON CA), 192 C.C.C. (3d) 557; R. v. Heldson (2007), 2007 ONCA 54, 84 O.R. (3d) 544.
[41] I turn now to the second element of criminal negligence offences: the consequence of death or bodily harm. In my view, it is not necessary that an aider have subjective foresight of the consequence of the criminally negligent act he or she is assisting. Rather, it is sufficient to show that a reasonable person, in all the circumstances, would have appreciated a consequence – bodily harm that is not trivial or transient – would result. My conclusion in this respect is based on the Supreme Court of Canada’s decision in R. v. Jackson, 1993 CanLII 53 (SCC), [1993] 4 S.C.R. 573.
[42] In Jackson, the Supreme Court considered whether, and in what circumstances, an aider could be convicted of unlawful act manslaughter under s. 21(1) where the principal was found guilty of murder. The appellant was charged as a party to the murder under ss. 21(1)(b) and (c). The trial judge did not instruct the jury that they could find the appellant guilty of manslaughter under s. 21(1) of the Criminal Code if they found that the appellant did not have the required intent to be convicted of murder. The appellant was convicted of murder.
[43] The Court of Appeal for Ontario held that the trial judge erred in instructing the jury. Had the jury been permitted to consider that the appellant did not have the necessary mens rea for murder, they could have convicted him of manslaughter for aiding or abetting conduct he knew was likely to cause some harm short of death (emphasis added): See Jackson (1991), 1991 CanLII 11739 (ON CA), 68 C.C.C. (3d) 385, at p. 413. Thus, the Court of Appeal held that to be liable as a party to manslaughter under ss. 21(1)(b) or (c), it was necessary that the accused have a subjective appreciation that the act he or she was assisting was likely to cause harm.
[44] In the Supreme Court, McLachlin J. wrote the majority judgment, which was unanimous on this issue. She agreed with the Court of Appeal that the trial judge erred in failing to leave the jury with the option to convict the appellant of manslaughter under ss. 21(1)(b) or (c).
[45] However, she disagreed with the Court of Appeal over the mental element required to convict as it related to the consequence of the assisted conduct. McLachlin J. held that the test was objective, at p. 583:
I conclude that a person may be convicted of manslaughter who aids and abets another person in the offence of murder, where a reasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerous act which was being undertaken. [Emphasis added.]
[46] I see no reason why the principle of objective foresight of the consequence as articulated in Jackson should not apply equally to party liability under ss. 21(1)(b) and (c) for an offence of criminal negligence causing death. As I pointed out above, the offence of unlawful act manslaughter is similar to the offence of criminal negligence causing death, and with respect to the consequence of the offending conduct, it is identical. The actus reus of manslaughter has two elements: 1) an unlawful or dangerous act; and 2) the consequence – that the act causes the death of another person. The “causing death” element is set out in the definition of homicide in s. 222 of the Criminal Code. As is the case with the offence of criminal negligence causing death, the “causing death” component is an essential element of the offence of manslaughter. The maximum penalty for each offence is life imprisonment.
[47] I do not read the Supreme Court of Canada’s jurisprudence subsequent to Jackson as affecting the principle I refer to in Jackson or my conclusion that Jackson applies to the offence of criminal negligence causing death. In Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, Lamer C.J. discussed party liability under s. 21(1) for attempted murder. Although he held, at para. 31, that the word “purpose” in s. 21(1)(b) was to be equated with “intention” and not “desire”, he did not specifically deal with the mental element required with respect to the consequences of the act being assisted.
[48] In Briscoe, Charron J. held that the mens rea required under ss. 21(1)(b) and (c) includes both an intention and a knowledge component. As I said above, I am satisfied that this mens rea applies to the aider’s knowledge of and intention to aid the principal’s criminally negligent conduct. One could argue that the intention and knowledge components for party liability referred to in Briscoe could also apply to the mental element required with respect to the consequence of a criminally negligent offence. However, the court in Briscoe did not address that specific issue. In my view, the court’s decision in Jackson, which specifically addressed the mental element required for the consequence of the act underlying unlawful act manslaughter, remains intact.
[49] I would add that I am not aware of any decision distinguishing Jackson as it applies to the offence of criminal negligence causing death. Nor am I aware of any decision holding that the mental element for the consequence of an offence of criminal negligence causing death is subjective foresight of death.
[50] Thus, I conclude that the mental element for a party under ss. 21(1)(b) or (c) for the ‘consequence’ element of an offence of criminal negligence causing death is that set out in Jackson: namely, objective foresight of bodily harm.
(c) Motion for a directed verdict
[51] It is well established that the test on a motion for a directed verdict is whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. As stated by McIntyre J. in R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, at p. 161:
Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of admissibility has been made.
[52] With that test in mind, I turn to the question of whether the evidence in this case is sufficient to found a conviction of criminal negligence causing death through the application of s. 21(1)(b) of the Criminal Code.
[53] The actus reus of aiding under s. 21(1)(b) is doing (or in some circumstances, omitting to do) something that assists the perpetrator to commit the offence. I am satisfied that the respondent, by dropping his jacket, committed an act that assisted the drivers of the cars to participate in a street race.
[54] I am also satisfied that in the context of a motion for a directed verdict, the evidence of the street race in this case was evidence upon which a reasonable jury could find the drivers’ actions to be criminally negligent. Street races, as unregulated races on public roadways, are illegal. They are inherently dangerous and will, in many cases, amount to a marked and substantial departure from what is reasonable in the circumstances.
[55] By their nature, street races involve a competition between drivers to see who can drive the fastest. As a race progresses, the spur of competition can lead the racers to drive at higher and higher speeds and to take even more dangerous risks than they may have initially considered. To be involved in a street race at all exhibits, at best, very bad judgment. That bad judgment can only be exacerbated as events unfold.
[56] The dangers to members of the public are obvious. Street racers threaten the lives and safety of other drivers as well as people in the vicinity of the race. The potential for injury and suffering by innocent members of the public is enormous.
[57] I recognize that there are cases where courts have found that street racing did not constitute the very serious offence of criminal negligence causing death. See for example, R. v. Lipovetzky (2007), 57 M.V.R. (5th) 130 (Ont. S.C.); R. v. M.D., 2005 ONCJ 141; R. v. Menezes (2002), 2002 CanLII 49654 (ON SC), 50 C.R. (5th) 343 (Ont. S.C.). In these cases, the accused were convicted of the included offence of dangerous driving. However, these cases were decided following a full trial and were based on the conclusion that it had not been established beyond a reasonable doubt that the accused’s conduct amounted to a marked and substantial departure from the norm. In contrast, the test to meet at this juncture of the appeal is concerned only with the sufficiency of evidence on a motion for directed verdict.
[58] In my view, there is sufficient evidence that the respondent committed the actus reus required to found a conviction under s. 249.2 of the Criminal Code as a party under s. 21(1)(b).
[59] I am also satisfied that there is sufficient evidence of the required mental element under s. 21(1)(b). There is evidence that the respondent intended to assist the street race and that he knew the details of how the race would take place. It would be open to a court to conclude that the race, as the respondent anticipated it, was a marked and substantial departure from what was reasonable in the circumstances.
[60] I am satisfied that it would also be open to a court to conclude that a reasonable person, in all the circumstances, would have appreciated that bodily harm was a foreseeable consequence of the street race.
[61] For those reasons, I would dismiss the respondent’s motion for a directed verdict. To be clear, I am not saying the respondent would or should be convicted of criminal negligence causing death. That is a matter to be decided at a new trial.
Disposition
[62] Accordingly, I would allow the appeal, set aside the acquittal and order a new trial before a different judge.
RELEASED: “DOC” “MAR 10 2011”
“D. O’Connor A.C.J.O.”
“I agree Janet Simmons J.A.”
I agree R.A. Blair J.A.”