COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reynolds, 2013 ONCA 433

DATE: 20130624

DOCKET: C56027

Blair, Hoy and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Reynolds

Appellant

P. Berk Keaney, for the appellant

Avene Derwa, for the respondent

Heard: June 3, 2013

On appeal from the conviction entered on June 5, 2012, by Justice W.F. Fitzgerald of the Ontario Court of Justice.

ENDORSEMENT

[1] Mr. Reynolds appeals his conviction for dangerous operation of a motor vehicle causing bodily harm, contrary to s. 249 of the Criminal Code.

The Setting

[2] The incident giving rise to the conviction occurred on January 30, 2011. Mr. Reynolds was parked in a moderately busy shopping plaza containing a number of stores, including a Walmart store. He backed his vehicle out of his parking spot into a lane that ran perpendicular to the row of stores and faced the Wal-Mart store. The lane opened into a broader roadway that could, perhaps, be described as a “thoroughfare” running parallel to the row of stores. As Mr. Reynolds began to turn left into the thoroughfare lane, his vehicle struck a pedestrian who had just left the Wal-Mart store and who was walking quickly across the thoroughfare.

[3] Unbeknownst to Mr. Reynolds – who testified he did not know he had struck the pedestrian and did not feel any impact -- the pedestrian became lodged under his vehicle and was dragged some distance as he turned left and entered the thoroughfare lane. His vehicle almost immediately ran over a speed bump and the pedestrian was dislodged. Thinking that the odd behaviour of his vehicle was due to some ice that had become caught in his wheel-well, Mr. Reynolds unfortunately backed his vehicle up towards the speed bump in an attempt to dislodge the ice, and ran over the pedestrian again. He did not realize there was a problem until several onlookers reached his car and began banging on the window. He then brought the car forward off the pedestrian.

[4] Mr. Reynolds testimony – not rejected by the trial judge – was that he was proceeding carefully and slowly, checking his mirrors and looking for pedestrian traffic and vehicular traffic in his own lane. As he approached the thoroughfare lane, intending to turn left onto it, he noticed a van in the parallel lane to his left that was preparing to turn right into the thoroughfare. He thought that the driver of the van was giving him the go ahead to proceed first and that it was safe to turn. He took no other precautions to ascertain whether the thoroughfare itself was clear of traffic.

[5] The unfortunate incident occurred. Miraculously, the pedestrian was not killed or seriously injured.

Analysis and Law

[6] On behalf of the appellant, Mr. Keaney argues that the trial judge erred in failing to conduct any meaningful analysis of the mens rea component of the offence of dangerous driving, as established by the Supreme Court of Canada in R v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, and R v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26. That component requires a consideration of whether the accused’s failure to foresee the risk and take steps to avoid it (if it could have been avoided) constituted a “marked departure” from the standard of care to be expected of a reasonable person in the accused’s circumstances. His argument is a combination of the submission that the trial judge failed to address his mind to the mens rea component of the offence and the submission, based on R v. Sheppard, 2002 SCC 26, that the trial judge’s reasons were insufficient to enable the court, and the appellant, to appreciate whether he did or did not.

[7] In his factum, Mr. Keaney raised the argument that the trial judge failed to conduct a “W.D.” analysis.[^1] He did not press that issue in oral argument, however.

[8] For the reasons that follow, we agree that the appeal must be allowed.

The W.(D.) Factor

[9] The trial judge stated at the beginning of his reasons that “[he did not] find this a matter which involves any consideration of W.(D.).” We will not dwell on this issue, except to say that, in our view, it is unwise for a trial judge, in most cases where the accused testifies or where there is evidence favouring the defence, not to conduct a W.(D.) analysis. That said, there is authority for the view – at least where it is an objective element of the defence that is in play – that the W.(D.) formulation does not always work; in some circumstances, it may be possible to find an accused guilty even where the trier of fact accepts his or her evidence: see R v. Dunchie, 2007 ONCA 887, at para. 15, and R v. Sadiqi, 2013 ONCA 250,at para. 21.

[10] It could be argued that this is one of those cases where the W.(D.) analysis would not have been dispositive in the end, because the trial could have accepted the testimony of the appellant in full, yet still weighed whether, in all the circumstances, the appellant’s failure to foresee the risk constituted a marked departure from the reasonable driver standard.

[11] We need not resolve this issue here, however, because in our view the appellant is correct in his submission regarding the trial judges’ analysis – or, lack of analysis – of the mens rea factor. The trial judge failed to assess whether the appellant’s evidence, in the context of all of the driving circumstances and the place where the incident occurred – assuming he accepted the appellant’s evidence in its entirety – raised a reasonable doubt as to whether the requisite mental element of the offence of dangerous driving had been made out.

Mens Rea

[12] In his reasons, the trial judge carefully reviewed the evidence of the appellant and, briefly, that of the pedestrian. He appears to have viewed the appellant’s testimony favourably and, indeed, made no findings of credibility against him. Nor was there any issue with respect to the evidence of the pedestrian.

[13] The trial judge considered the provisions of s. 249(1)(a) of the Criminal Code which state:

Every one commits an offence who operates

(a) A motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected at that place.

[14] He also alluded to the Roy and Beatty decisions “dealing with the actus reus and the mens rea, and the concept of marked departure.” Respectfully, however, he erred in focusing his analysis almost entirely on the manner of operation of the vehicle – a consideration that goes to the actus reus of the offence and not directly to the mens rea component.

[15] For example, immediately after citing the provisions of s. 249, the trial judge said:

So what the Parliament of Canada is direct[ing] me to do is to determine and to examine the manner of the operation of the accused’s motor vehicle considering all of the circumstances that existed or might reasonably be expected at that place. The nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place. [Emphasis added]

[16] Then, at the conclusion of his reasons – after completing his review of the appellant’s evidence – the trial judge made his only comment with respect to the “marked departure” test. He said:

In examining the issues to which I’ve been directed by both of these cases of the Supreme Court of Canada … the Rou and the Beatty matters, dealing with the actus reus and the mens rea, and the concept of marked departure, it seems to me on all of this evidence that it’s inescapable that the manner of the operation in all these circumstances that existed at that parking lot at this time or might reasonably be expected was a manner that was dangerous to the safety of the public and it seems to me, further, that the operation of the vehicle in the manner [as] I’ve described it constitutes a marked departure from what a reasonably prudent motor vehicle operator would do. [Emphasis added.]

[17] This approach fastens on the prohibited conduct aspect of the dangerous driving offence and fails to address the important fault element, which is necessary to elevate lack of care to the level necessary to merit criminal punishment. Beatty and Roy clarify that the actus reus of the offence is the conduct set out in s. 249(1)(a) of the Criminal Code, i.e., the manner in which the vehicle is operated in all of the circumstances; the mens rea requires proof the manner of driving was the result of a degree of care exercised by the accused that constitutes a “marked departure” from the standard of care that a reasonable person would have exercised in the same circumstances. See Roy, and its summary of the Beatty principles, at paras. 26 – 38.

[18] The actus reus exercise and the mens rea exercise are therefore quite different. Why this is so is a function of the fact that the offence of dangerous driving involves the criminalization of driving conduct. As Cromwell J. described it in Roy, at para. 30:

A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness. [Italics in original; underlining added]

[19] Here, the trial judge did not engage in the exercise of “[identifying] how and in what way” the appellant’s failure to foresee and respond to the risk amounted to a “departure from the standard [that] goes markedly beyond mere carelessness.” Respectfully, he failed to address the mens rea component of the offence at all. Instead, he appears to have conflated the actus reus and mens rea components of the offence and to have concluded that, because the vehicle had been operated in a dangerous manner the offence had been made out. This is the type of reasoning that Beatty and Roy sought to overcome.

[20] The point is made by Cromwell J. in Roy at para. 27:

Beatty addressed concern that the Court’s reasons in Hundal[^2] did not sufficiently emphasize the importance of giving careful attention to the fault requirement of dangerous driving. Hundal did not expressly differentiate between the two elements of the offence – the prohibited conduct and the required fault. There was concern that judges and juries might infer the existence of the fault element too quickly and without sufficient analysis, simply from the fact that a motor vehicle had operated in a dangerous manner. … The Court in Beatty sought to ensure that a meaningful analysis of both elements would be performed in every case and it did this by defining the separating the conduct and mental elements of the offence. [Italics in original]

[21] This is not to say that the manner of operation of the vehicle is not a factor in determining the “marked departure” fault element. Quite often it will be. But it may not be enough standing alone, and the trier of fact must go on and examine all of the circumstances relating to the accused at the relevant time. In dealing with the proof of the “marked departure” fault element made the following observation in Roy, at para. 40:

Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving.

[22] As we have already observed, the difficulty here is that the trial judge failed to conduct the required “meaningful analysis” of the mens rea component. Without that analysis, we cannot know whether the evidence gave rise to a reasonable doubt about whether the Crown had established the mental element of the offence.

[23] The entire incident was recorded by a security camera surveying the parking lot. Ms. Derwa asked that we view the DVD, which we did, and argues that it, in effect, speaks for itself in terms of proving the offence. Unsettling as it is to observe the force of the impact between the vehicle and the pedestrian and to follow the incident as it unfolded, we are not persuaded that the contents of the surveillance sequence are sufficient, alone, to replace the need for the foregoing type of mens rea analysis. Whether the impact between his vehicle and the pedestrian was the product of momentary inattention on the appellant’s part, flowing from his distraction by the van in the adjoining lane, or whether it was the product of other factors constituting a marked departure from the norm, is not self-evident from the video recording or from the evidence as a whole, on its face. An assessment of the mental element of the offence in the context of all of the circumstances – including Mr. Reynold’s evidence that he proceeded carefully and slowly, checking his mirrors and looking for pedestrian and vehicular traffic in his own lane, before entering the thoroughfare – was required. Respectfully, the trial judge failed to conduct such an assessment.

Disposition

[24] For these reasons, the appeal is allowed and a new trial ordered.

“R.A. Blair J.A.”

“Alexandra Hoy J.A.”

“M.H. Tulloch J.A.”

[^1]: See R v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at para. 28.

[^2]: R v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867.