COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stanton, 2014 ONCA 29

DATE: 20140115

DOCKET: C56151

Goudge, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Robert Stanton

Respondent

Benita Wassenaar, for the appellant

Timothy E. Breen, for the respondent

Heard: November 26, 2013

On appeal from the acquittal entered on September 24, 2012 by Justice Marietta L. D. Roberts of the Ontario Court of Justice.

Juriansz J.A.:

[1] On the night of May 20, 2010, Adam Hofstetter was cycling on a rural road when a motor vehicle driven by the respondent, Mr. Stanton, struck and killed him.

[2] This is a Crown appeal from the trial judge’s acquittal of the respondent of failing to stop at the scene of an accident, contrary to s. 252 of the Criminal Code, R.S.C. 1985, c. C.46 (the “Code”).

Background

[3] After work on May 20, 2010, the respondent played a round of golf and shared drinks at one of the golfer’s homes. Later, the respondent drove home following a friend on an unfamiliar, tree-lined rural road. A little after 10:30 p.m., he lost sight of his friend’s tail lights, and the respondent hit something he believed at the time to be a deer. He flashed his lights to get his friend to stop, and they spoke on the side of the road. The respondent continued home, left his damaged car in his driveway and had a cigarette. His friend’s wife then drove him back to the area of the impact. The police were on the scene and had blocked the road. He spoke with someone – likely a police officer – but did not report that he was involved in an accident. The respondent returned home and called the police at 12:40 a.m. to report he had been involved in a collision earlier that evening.

[4] The respondent was charged with failure to stop at the scene of an accident under s. 252(1.3) of the Code:

(1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with

(a) another person,

(b) a vehicle, vessel or aircraft, or

(c) in the case of a vehicle, cattle in the charge of another person,

and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

(1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if

(a) the person knows that another person involved in the accident is dead; or

(b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results.

Section 252(2) of the Code creates a presumption against the accused:

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.

[5] At trial, the respondent conceded he was involved in the collision with Hofstetter and that he left the scene without identifying himself or assisting Hofstetter. The only issue was whether he failed to stop with the intention of avoiding civil or criminal liability. The respondent testified that he thought he had hit a deer. The Crown produced lengthy expert evidence from two accident reconstruction officers regarding the location and dynamics of the impact to establish that he either knew he hit a cyclist or was wilfully blind to that fact. Photographs of the respondent’s car entered into evidence showed severe damage to his windshield and to the roof of the vehicle. The front portion of the car had almost entirely caved in as a result of the accident. The Crown also cross-examined him extensively on his alcohol consumption that evening.

The Trial Judge’s Reasons

[6] After reviewing the evidence and the parties’ submissions, the trial judge turned to the central issue as she saw it: whether the respondent’s evidence raised a reasonable doubt about his intent in light of the Crown’s evidence. She noted the Crown’s arguments as to why the respondent’s evidence should not be believed: his testimony was “evasive”; he drank alcohol that evening; he initially lied to the police about his drinking and where he had been that night; and he waited to contact the police.

[7] Applying R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, the trial judge found that the respondent’s evidence rebutted the presumption in s. 252(2) because it raised a reasonable doubt that “his intent was to escape civil or criminal liability”. Lastly, she described the officers’ evidence about the mechanics of the accident and found that it did not prove the respondent’s intent beyond a reasonable doubt. Accordingly, she acquitted the respondent.

Positions of the Parties

[8] Pursuant to s. 676(1)(a) of the Code, the Crown may appeal an acquittal on questions of law alone. The Crown submits that the trial judge made three legal errors. First, it argues that the trial judge failed to apply the doctrine of wilful blindness properly. Second, it argues that the trial judge applied too restrictive a standard of “civil or criminal liability,” thus imposing too high a burden on the Crown with respect to intent. The Crown submits that these errors led the trial judge into a third error of failing to consider all of the evidence in relation to the respondent’s mental state: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 31-32.

[9] The respondent argues that the trial judge properly stated the mental state requirement under s. 252 of the Code. Her reasons as a whole demonstrate that she considered all of the evidence in finding reasonable doubt with respect to the respondent’s intent. He further argues that, if anything, the trial judge’s analysis of wilful blindness improperly favoured the Crown. The doctrine requires subjective suspicions followed by a failure to make inquiries to confirm them: R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55, at paras. 102-03.

Analysis

[10] The authorities are clear that wilful blindness requires subjective suspicions. The trial judge seems to have adopted a statement from defence counsel’s closing submissions to the effect that the respondent “was not wilfully blind because he did not know, or ought he to have known that he struck a cyclist” (emphasis added). However, given her acquittal of the respondent, any error of law in this respect did not affect the result: see R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 64, at para. 36.

[11] The primary thrust of the Crown’s submission concerns the application of the doctrine of wilful blindness to the evidence. The Crown points to the final paragraph of the trial judge’s reasons in which she states that “the evidence brought to the attention of this court by the officers is not sufficient to prove beyond a reasonable doubt, the specific intent that is required under s. 252”. This statement demonstrates, the Crown argues, that she limited her analysis to the officers’ evidence when determining intent.

[12] I do not agree. The trial judge was alive to all of the evidence the Crown points to as indicating that the respondent must have had suspicions that he hit a person. She assessed this evidence as well as the respondent’s evidence that he believed he hit a deer. The statement about the officer’s testimony follows the trial judge’s remark that:

The court must then look at whether or not on the whole of the evidence the Crown has proved beyond a reasonable doubt the specific intent that he had when he failed to stop and render assistance, whether that was to avoid civil or criminal liability.

[13] Read as a whole, and especially in light of this comment and her careful review of all the evidence, the trial judge’s reasons demonstrate that her consideration of the officers’ evidence was just one component of her analysis of the respondent’s intent. She was entitled, on all the evidence, to find a reasonable doubt based on the respondent’s testimony that he believed he had hit a deer. Her application of the doctrine of wilful blindness to the facts and her assessment of the respondent’s credibility are, at their highest, matters of mixed fact and law. It is therefore not subject to review in this appeal. There was no error of law alone.

[14] The trial judge accurately described the intention requirement in s. 252 at every point in her analysis. She repeatedly stated that the issue was “whether [the respondent’s] intent was to escape civil or criminal liability”. The majority of the Crown’s evidence related to the nature of the accident; it raised the inference that the respondent could not have hit the cyclist without seeing him or being wilfully blind to that fact. It is therefore not surprising that her reasons are responsive to the officers’ evidence regarding the point of impact. The Crown also raised the respondent’s alcohol consumption as a reason for fleeing, and the trial judge referred to his alcohol consumption at several points in her reasons.

[15] In my view, the trial judge should not be faulted for focusing on the issues raised on the evidence and crafting reasons responsive to the Crown’s position at trial. She stated the proper test and examined the forms of civil and criminal liability the Crown raised. I cannot conclude that she erred in law with respect to the intent required under s. 252.

Conclusion

[16] In the final analysis, it seems to me that the Crown’s real quarrel is with the trial judge’s factual and credibility findings from which the Crown has no appeal. Because I have found the appeal raises no errors of law alone, I would quash the appeal.

Released: January 15, 2014 “R.G. Juriansz J.A.”

(S.T.G.) “I agree S.T. Goudge J.A.”

“I agree Gloria Epstein J.A.”