CITATION: R. v. Kippax, 2011 ONCA 766
DATE: 20111207
DOCKET: C52666
COURT OF APPEAL FOR ONTARIO
Watt, Epstein and Karakatsanis JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Alan Kippax
Appellant
Christopher Hicks and Kristin Bailey, for the appellant
Joanne Stuart, for the respondent
Heard: September 29, 2011
On appeal from convictions of dangerous driving causing death and two counts of dangerous driving causing bodily harm entered by Justice Deena F. Baltman of the Superior Court of Justice, sitting without a jury, on October 27, 2009 with reasons reported at 89 M.V.R. (5th) 51.
Watt J.A.:
[1] Alan Kippax (“the appellant” or “Alan”) appeals three convictions for dangerous operation of a motor vehicle arising out of an accident in which one person died and two others were seriously hurt. The car Alan Kippax was driving was not a vehicle in which anyone died or was injured, or a vehicle that collided with any other vehicle.
[2] Alan Kippax contends that the trial judge’s finding on causation was flawed because she failed to consider relevant evidence, engaged in speculation and made unwarranted findings of fact about tandem driving and foreseeability of harm. The appellant also says that the trial judge was wrong when she refused to permit him to re-open his case after the verdict to adduce evidence the appellant discovered after conviction but prior to sentence that would have impeached the credibility of a critical prosecution witness.
[3] At the conclusion of argument, we dismissed the appeal, for reasons to follow. We now provide those reasons.
THE BACKGROUND FACTS
[4] A brief description of the circumstances underpinning the prosecution of the appellant is sufficient at the outset. Further detail can await discussion of the specific grounds of appeal.
The Principals
[5] Alan and Peter Kippax were cousins. In June 2006 Peter had recently arrived from London, England. He lived with Alan in Brampton. Alan was about 40 years old.
The Scene
[6] On the evening of June 3, 2006, drizzle fell in Mississauga. The road surface around the intersection of Mavis Road and Eglinton Avenue West, two main thoroughfares, was wet. The intersection is controlled by traffic lights. The speed limit on Mavis Road, south of the intersection, is 60 kilometers per hour, but it increases to 70 kilometers per hour north of the intersection.
[7] A clearly marked right turn lane permits northbound traffic on Mavis Road to proceed east on Eglinton. Westbound traffic on Eglinton can utilize a similar lane on Eglinton to turn right and proceed north on Mavis Road. A merge lane on the east side of Mavis, 120 meters long, allows westbound traffic from Eglinton to turn north on Mavis and merge into the more easterly lane for northbound traffic on Mavis.
The Accident
[8] At about 8:30 p.m. on June 3, 2006 Alan and Peter were driving north on Mavis Road, returning to Alan’s home after dinner. Alan was driving a Mercedes. Peter drove a Porsche, a vehicle that he had just acquired, one that had been salvaged twice previously and repaired with stolen parts.
[9] At the intersection of Mavis Road and Eglinton Avenue West, Alan pulled into the right turn lane on Mavis. Peter was right behind him. Neither intended to turn right at the intersection. Both cousins accelerated at the change of light. They drove through the intersection into the northbound merge lane on Mavis. Alan, in the lead car, cut left into a northbound lane. Peter followed suit, but the Porsche spun out of control, crossed into the southbound lanes on Mavis and struck a Pontiac Sunfire. Mark Radman-Livaja was driving the Sunfire with his fiancée, Alison Hickey, beside him in the front passenger seat.
[10] Peter died instantly. Mark Radman-Livaja and Alison Hickey survived, but suffered serious injuries.
[11] Alan left the scene of the accident. He continued northbound on Mavis Road, entered a side-street and viewed the accident scene from his car. Another motorist pointed out Alan’s Mercedes to police who responded to the accident scene.
The Investigation
[12] The police investigation of the crash did not include an accident reconstruction. The available technology could not determine the speed of Peter’s Porsche immediately prior to or on impact, although several witnesses gave wide-ranging estimates of the vehicle’s speed as it proceeded through the intersection into the merge lane and beyond.
[13] No evidence was adduced at trial about the roadworthiness of Peter’s Porsche on June 3, 2006.
Ground #1: The Causation Issue
[14] The first ground of appeal relates to the trial judge’s finding on causation, and specifically on factual causation. The submission includes, but is not limited to, a complaint that the trial judge failed to consider relevant evidence, especially evidence about the roadworthiness of the Porsche and the role that mechanical defects may have played in the accident.
The Reasons of the Trial Judge
[15] After finding that the manner in which the appellant and his cousin drove their vehicles amounted to dangerous operation, the trial judge turned her attention to the controverted issue of causation. She acknowledged that causation consisted of both factual and legal components and described accurately the essence of each.
[16] The trial judge reviewed the position advanced by counsel for the appellant at trial and rejected it. She concluded in para. 78 of her reasons:
[78] Similarly, it is immaterial here that Peter also drove dangerously through the intersection, or that there may have been other contributing factors such as defective parts or workmanship in the Porsche. For the reasons set out above, I am satisfied beyond a reasonable doubt that the accused’s driving was at least a contributing cause of the death and injuries involved outside the de minimis range. To the extent that the law, as previously explained in Shilon, also requires proof that the resulting harm was reasonably foreseeable, for the reasons given above I am similarly satisfied.
The Position of the Parties
[17] For the appellant, Mr. Hicks submits that factual causation was a live issue at trial, one that the trial judge failed to adequately examine and determine. Mr. Hicks says that the trial judge failed to consider whether the “dangerous manoeuvre” by Peter was the factual cause of the accident. She also failed to take into account the influence of mechanical defects in the Porsche on the issue of whether the appellant’s operation of his motor vehicle was a significant contributing cause of the accident.
[18] Mr. Hicks contends that the trial judge failed to consider whether the evidence proved beyond a reasonable doubt that the accident was caused by the actions of the appellant and Peter. In particular, the appellant says that the trial judge failed to consider whether the evidence about the previous accidents and repairs on the Porsche and the absence of evidence of accident reconstruction or of the mechanical fitness of the Porsche raised a reasonable doubt about factual causation. What is more, Mr. Hicks urges, is that the trial judge failed to appreciate the distinction between factual and legal causation, and thus erred in weighing the evidence of mechanical fitness as part of legal, rather than factual causation.
[19] Ms. Stuart, for the respondent, disagrees. She says that the trial judge well understood the difference between factual and legal causation, applied the appropriate test and reached the correct conclusion. Ms. Stuart points out that the Crown need not prove that the appellant’s conduct was the most proximate, primary or exclusive cause of the death and injuries that resulted from the accident, only that the appellant’s manner of driving was at least a contributing cause of the consequences beyond de minimis.
[20] The respondent submits that the trial judge, in her “but for” analysis of factual causation, considered evidence about the speed of the vehicles, the road conditions, the manner in which the appellant and his cousin drove and their close proximity to one another in concluding that factual causation had been established. Ms. Stuart emphasizes the absence of any properly admissible evidence of mechanical defects, let alone the role any such defects played in the operation of the Porsche.
The Governing Principles
[21] To determine whether a person can be held responsible for causing a particular result, in this case death or bodily harm, we must determine whether the person caused that result not only in fact but also in law: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 44.
[22] Factual causation involves an inquiry about how the victim died or suffered bodily harm, in a medical, mechanical or physical sense, and an accused’s contribution to that result: Nette, at para. 44.
[23] Factual causation involves a determination of whether A caused B. The answer to the question of whether A caused B is resolved in a criminal case by the evidence of witnesses, those who testify about facts and others who offer relevant opinions: R. v. Smithers, 1977 7 (SCC), [1978] 1 S.C.R. 506, at 518. The factual determination of whether A caused B has nothing to do with intention, foresight or risk: Smithers, at p. 518.
[24] To prove factual causation, the Crown does not have prove that an accused’s conduct was either the direct or predominant contributing cause of the prohibited consequence, whether death or bodily harm. It is no defence for an accused to say that the conduct of another was a greater or more substantial cause of the death or injuries. The Crown need only prove that an accused’s conduct was a significant contributing cause of the death or injuries or, said another way, that the accused’s conduct was “at least a contributing cause…outside the de minimis range”: Smithers, at p. 519; Nette, at paras. 70-71; and R. v. Hughes, 2011 BCCA 220, 305 B.C.A.C. 112, at paras. 56 and 64.
[25] Factual causation, as the term itself would indicate, is a question of fact, reviewable only in accordance with a standard of palpable and overriding error: Hughes, at para. 65; and R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 18.
[26] Legal causation, on the other hand, has to do with whether an accused should be held responsible in law for a prohibited consequence of his or her conduct, for example, death or bodily harm: Nette, at para. 45. In legal causation, the inquiry is directed at the question of whether an accused should be held criminally responsible for the consequences that occurred: Nette, at para. 45; R. v. Shilon (2006), 2006 41280 (ON CA), 240 C.C.C. (3d) 401 (Ont. C.A.), at para. 32. In the analysis of legal causation in negligence-based offences, like dangerous driving, reasonable foreseeability of harm is a relevant consideration: Shilon, at para. 33.
[27] Conduct that is inherently dangerous and carries with it a reasonably foreseeable risk of immediate and substantial harm satisfies the standard required for legal causation: Shilon, at para. 38. Where the conduct of another is a reasonably foreseeable consequence of the conduct of an accused, the accused may be liable as a principal for the conduct of that other person: Shilon, at para. 54. A person may be liable as a principal if she or he actually does or contributes to the actus reus with the required mens rea: Hughes, at para. 77.
[28] It is well-established that independent, voluntary human intervention in events started by an accused may break the chain of causation: Shilon, at para. 43. A new event may result in an accused’s conduct not being a significant contributing cause of a prohibited consequence. But legal responsibility for an event will remain and the chain of causation will not be broken where an accused intentionally produced the outcome, recklessly brought it about, or if the ordinarily circumspect person would have seen it as a likely consequence of his or her own conduct: R. v. Maybin, 2010 BCCA 527, 263 C.C.C. (3d) 485, at para. 35.
The Principles Applied
[29] This ground of appeal, which challenges the trial judge’s conclusion that the Crown had proven factual causation, does not warrant our intervention.
[30] The appellant does not take issue with the trial judge’s finding that the manner in which he operated his motor vehicle on the evening of June 3, 2006 amounted to dangerous driving. Further, the appellant acknowledges that the trial judge correctly stated the standard that applied to factual causation.
[31] The trial judge was required to decide whether the appellant’s driving was a significant contributing cause of the death of Peter and the injuries to Mark Radman‑Livaja and Allison Hickey. She concluded that factual causation had been established on the basis of the cumulative force of evidence of excessive speed, inclement weather, compromised road conditions, inherently dangerous driving manoeuvres and the close physical proximity of the two speeding vehicles. Her determination of this issue involves a question of fact reviewable on the basis of palpable and overriding error, of which I can find none.
[32] The appellant complains about the trial judge’s failure to include in her analysis of factual causation the absence of any evidence about accident reconstruction and of the mechanical condition of the Porsche. The trial judge had evidence from several witnesses who observed firsthand the collision and the events that immediately preceded it. There was no admissible evidence of any mechanical defect in the Porsche, let alone evidence of any defect capable of showing that the accident was unavoidable irrespective of the manner of driving.
[33] The argument advanced on appeal does not appear to have been vigorously pursued at trial. It may also be debatable whether what is now advanced as a flaw in the analysis of factual causation is not more appropriately a consideration of legal causation.
[34] This ground of appeal fails.
Ground #2: The “tandem driving” Finding
[35] The appellant takes issue with the trial judge’s finding that the appellant and his cousin were driving in tandem at the time of the collision. Once again, it is helpful to begin with a reference to the trial judge’s reasons to site the complaint in its proper context.
The Reasons of the Trial Judge
[36] After she had found that the Kippax cousins were both driving at speeds that were excessive not only for the road conditions, but also for the passing manoeuvre in which both vehicles were involved, the trial judge turned to the prosecutor’s assertion of “in tandem” driving.
[37] The trial judge was not prepared to make a finding of “in tandem” driving solely on the basis of the evidence given by those who witnessed the collision and its immediate precursors. What “clinched” the “in tandem” activity for the trial judge was the evidence of John Rock. The trial judge concluded in para. 48 of her reasons:
[48] In my view Mr. Rock’s evidence establishes that the accused knew, at least at the point when he was approaching the intersection, that his cousin was travelling lockstep behind him. When combined with the evidence of the other drivers that the two men were travelling in close formation and executing the identical manoeuvre, I am satisfied they were driving in tandem when this collision occurred.
The Positions of the Parties
[38] Mr. Hicks submits that the trial judge was not prepared to make a finding of “in tandem” driving on the basis of the testimony of the several witnesses who made first-hand observations of the events culminating in the collision. The trial judge made it clear that the evidence of John Rock was essential for her finding about “in tandem” driving.
[39] Mr. Hicks contends that the trial judge’s finding on this issue is based on speculation, not reasonable inference. Speculation cannot serve as a surrogate for a reasonable inference. This finding, which formed the bedrock for the finding of guilt, should be set aside and, along with it, the finding of guilt.
[40] On the other hand, Ms. Stuart takes issue with the proposition that a common intention is a condition precedent to the appellant’s liability. The trial judge’s conclusion was not based on common intention, but rather rooted in a finding that the appellant, who was himself driving dangerously, knew that Peter was following closely behind driving in an identical manner. This finding, crucial to the appellant’s liability, was amply supported by the evidence and is in no way the product of impermissible speculation.
The Governing Principles
[41] Section 249(1)(a) of the Criminal Code sets out the essential elements of the offence of dangerous operation of a motor vehicle. The provision requires consideration of all the circumstances including, but not only, those listed. What must be determined, by a consideration of all the circumstances, is whether the manner in which the person charged was operating the vehicle was dangerous to the public.
[42] Leaving aside “street racing”, which s. 2 defines and for which s. 249.4 enacts specific provisions, the Criminal Code eschews categories of dangerous operation of a motor vehicle. Evidence of “in tandem” driving may assist the Crown in its proof that an accused operated a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances, but it is neither an essential element of the offence nor a condition precedent to a conviction of the operator as a principal offender: Hughes, at para. 78.
[43] Our jurisprudence recognizes that an offence may be committed by more than one perpetrator or principal: Shilon, at para. 47. Co-perpetrators under s. 21(1)(a) of the Criminal Code may have a mutual intention to pursue a common unlawful venture: Shilon, at para. 53. A person may also be liable as a principal if he or she actually does or contributes to the conduct that constitutes the actus reus of an offence with the requisite mens rea: Hughes, at para. 77. Where the conduct of one driver, amounting to dangerous operation, is coupled with knowledge that another driver is likely to follow suit, the liability of the first for the consequences of the conduct of the second is as a principal or perpetrator: Shilon, at para. 54.
The Principles Applied
[44] I would not give effect to this ground of appeal.
[45] The appellant’s liability as a principal did not rest on a finding of common intention based on “in tandem” driving. A fair reading of the trial judge’s reasons as a whole supports the conclusion that the appellant’s guilt was based on his knowledge that his cousin was close behind him following the same admittedly dangerous manner of driving. This conclusion was amply supported by the evidence, not founded on impermissible speculation, and established the appellant’s liability as a principal.
[46] This ground of appeal fails.
Ground # 3: Fresh Evidence and Re-opening the Defence Case
[47] The final ground of appeal relates to evidence proposed for reception at the appellant’s sentencing by new counsel retained after the appellant had been found guilty of the offences charged. The evidence was put forward as relating to the credibility of the prosecution witness, John Rock, which was accepted by the trial judge and occupied a central role in her findings of guilt.
[48] Some further background is necessary to understand the nature of the proposed evidence, the basis upon which it was tendered for admission and the error alleged in its rejection by the trial judge.
The Background
[49] On the day on which the appellant was to be sentenced, counsel who then represented the appellant (who was neither trial counsel nor Mr. Hicks) applied to the trial judge for an order permitting the appellant to re-open the defence case or, preferably, declaring a mistrial on the basis of newly-discovered evidence. The appellant’s affidavit was filed in support of the application.
[50] The appellant testified on the hearing of the application. He said that Ray Damhj was a “top distributor” in a business of which the appellant was the global sales director, Business in Motion. During the week before March 5, 2010, Damhj told the appellant that John Rock had started up his own competing network marketing company and had tried to recruit Damhj to join him (Rock) in this new venture. The appellant gave evidence that had he known about the new company and the attempted recruitment of Damhj, he would have told his trial lawyer about it so that the lawyer could “enquire in depth in regards to it”.
[51] John Rock testified at the appellant’s trial on August 12, 2009, and again at the sentencing hearing on January 28, 2010. Prior to Rock’s trial testimony, the appellant had received full disclosure of Rock’s videotaped statement to police and was aware of the circumstances in which Rock had come to police attention, on the basis of information provided by Leanne Dalton.
[52] The appellant and John Rock had been involved in a corporate predecessor to Business in Motion, but had parted on bad terms because, according to the appellant, the appellant refused to offer Rock a position at Business in Motion. John Rock vehemently denied that this was the reason he left the company. The trial judge made no finding on this conflict. Further, the appellant’s relationship with Leanne Dalton had also soured over her failure to repay monies the appellant had advanced to her so that she could become involved in Business in Motion. The appellant acknowledged having provided information about his relationships with Rock and Dalton to his trial counsel before Rock testified at trial.
The Positions of Counsel at Trial
[53] On the application before the trial judge, counsel for the appellant acknowledged that Rock’s evidence, and the circumstances under which police learned that Rock had material evidence to give at trial, had been disclosed to the appellant months in advance of Rock’s trial testimony. But the appellant was unaware that Rock had set up a competing business and had tried to recruit Damhj until shortly before the sentencing date. This new information, according to trial counsel, provided a motive for Rock to incriminate the appellant, and may well have made a difference in the trial judge’s conclusion on a material issue at trial.
[54] Counsel for the Crown at trial resisted the appellant’s application. He pointed out that long before Rock testified, the appellant was aware of the circumstances in which Rock provided his statement to police, the substance of the statement and the circumstances in which both Rock and Dalton parted company with the appellant. The manner in which trial counsel for the appellant, a very experienced criminal lawyer, used or did not use this information in cross-examination reflected a tactical decision on counsel’s part that ought not be reversed on appeal. The Crown at trial pointed out that the appellant knew about Rock’s involvement with a new company when Rock testified but elected not to pursue the matter in cross-examination. As for the alleged attempt to recruit Damhj, the appellant proffered no admissible evidence to support the claim.
The Reasons of the Trial Judge
[55] The trial judge accepted the position advanced by counsel on both sides at trial that her decision to permit re-opening or to declare a mistrial was governed by the principles laid down in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 at p. 775. She rejected the application on the basis that the applicant had satisfied none of the Palmer requirements.
[56] The trial judge acknowledged that the due diligence requirement of Palmer should be applied less stringently in a criminal case. She concluded, however, that the proposed evidence could have been obtained easily “through even a modicum of due diligence” at trial. The trial judge considered that the proposed evidence was relevant to Rock’s credibility, and thus the weight to be assigned to his evidence about “in tandem” driving, but she pointed out that there was no admissible evidence of the alleged recruitment of Damhj. She viewed the proposed evidence as neither credible nor capable of affecting the decision rendered at trial.
The Positions of the Parties on Appeal
[57] Mr. Hicks contends that the trial judge erred in failing to admit the proposed evidence and grant the consequential relief requested.
[58] Mr. Hicks reminds us that, in a criminal case, the due diligence requirement in Palmer does not trump the other criteria. In any event, although Rock came forward in early 2009, the appellant did not learn about his competing business until shortly before sentencing and could not reasonably have found out about it prior to verdict. The due diligence criterion should not foreclose the reception of evidence that shows a financial motive on the part of a crucial prosecution witness whose evidence was critical to the trial judge’s decision. At the very least, the fresh evidence could have constituted a good faith basis upon which trial counsel could have cross-examined Rock, even if evidence of the attempted recruitment of Damhj would have been barred by the hearsay rule.
[59] For the respondent, Ms. Stuart submits that the trial judge was correct in refusing to permit re-opening or to declare a mistrial on the basis of the proposed fresh evidence.
[60] Ms. Stuart does not quarrel with the principle that the due diligence requirement is applied less stringently in criminal cases. That said, it remains a relevant consideration on an application such as the one advanced here. The appellant had ample time and information to explore the relationship among himself, Rock, and Dalton, but made a tactical decision not to do so, a decision that ought not to be reversed on appeal.
[61] Ms. Stuart acknowledges that Rock’s evidence related to a potentially decisive issue at trial. She takes issue, however, with any suggestion that the proposed evidence is credible or could affect the conclusion of guilt reached by the trial judge. Inadmissible hearsay cannot establish a motive to fabricate and the disclosure history belied any such suggestion. The proposed evidence could not have affected the outcome at trial.
The Governing Principles
[62] A trial judge is not functus officio in a trial without a jury until she or he has imposed sentence or otherwise finally disposed of the case: R. v. Lessard (1976), 1976 1417 (ON CA), 30 C.C.C. (2d) 70, (Ont. C.A.), at p. 73. It follows that a trial judge who has made a finding of guilt on disputed facts has the authority to vacate the adjudication of guilt at any time before the imposition of sentence or other final disposition: Lessard, at p. 73. This authority, to vacate an adjudication of guilt, should be exercised only in exceptional circumstances and in the clearest of cases: Lessard, at p. 73.
[63] The test for re-opening the defence case when the application is made after a finding of guilt is more rigorous than that which governs a similar application prior to an adjudication of guilt: R. v. Kowall, (1996), 1996 411 (ON CA), 108 C.C.C. (3d) 481 (Ont. C.A.), at p. 493. The Palmer criteria provide helpful guidance to a trial judge faced with an application to re-open after a finding of guilt has been recorded. But a trial judge must also consider whether the application to re-open is, in essence, an attempt to reverse a tactical decision made at trial: Kowall, at pp. 493-494. See also, R. v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354 (Ont. C.A.), at para. 46.
[64] A trial judge’s decision about whether to permit re-opening of the defence case after an adjudication of guilt has been made involves an exercise of judicial discretion. Where that discretion has been exercised in accordance with the governing legal principles, its exercise should not be lightly overturned: R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, at pp. 1002-1003.
The Principles Applied
[65] I would not interfere with the trial judge’s exercise of her discretion to refuse the application to re-open the defence case. The trial judge stated and applied the governing legal principles and made no palpable and overriding error in doing so.
[66] The appellant and John Rock had a history. They parted ways on less than amicable terms when the appellant did not hire Rock for his new venture, Business in Motion. The appellant knew the substance of Rock’s evidence and that Dalton had alerted police to Rock as a prospective source of information in the prosecution of the appellant. This information was provided to the appellant as part of prosecutorial disclosure well in advance of trial. Rock gave evidence that he had his own marketing company.
[67] At trial, the appellant had the wherewithal to challenge Rock’s credibility on the basis that Rock bore some animus towards the appellant because of their inamicable parting, or had a financial motive to give incriminating evidence. Whether or to what extent he would do so was a tactical decision that should not be reversed with the wisdom of hindsight.
[68] It is worth observation that, at the time he provided his videotaped statement to the police, Rock had not yet incorporated his network marketing business or attempted to recruit Damhj. His testimony at trial, after he had incorporated his business and allegedly attempted to recruit Damhj, was consistent with his prior videotaped statement. Further, Rock’s evidence about the appellant’s admission concerning the proximity of Peter’s car to the appellant’s Mercedes was consistent with the testimony of many of the other motorists’ first-hand observations.
[69] I would not give effect to this ground of appeal.
CONCLUSION
[70] These are our reasons for dismissing the appeal at the conclusion of argument.
RELEASED: December 7, 2011 “DW”
“David Watt J.A.”
“I agree J.J. Esptein J.A.”
“I agree Karakatsanis J.A.”