Court of Appeal for Ontario

Date: May 6, 2019

Docket: C65186 and C65498

Judges: Feldman, Miller and Fairburn JJ.A.

Docket: C65186

Between

Her Majesty the Queen in Right of Canada Appellant

and

Louie John McDonald Respondent

Docket: C65498

Between

Her Majesty the Queen in the Right of Ontario Respondent

and

Louie John McDonald Appellant

Counsel

• James Sutton and Jeannine Plamondon, for the appellant, Her Majesty the Queen in Right of Canada, C65186
• Michael Crystal, for the respondent Louie John McDonald
• Michael Crystal, for the appellant Louie John McDonald, C65498
• David Friesen, for the respondent, Her Majesty the Queen in the Right of Ontario

Heard and released orally: May 1, 2019

On appeal from: The acquittal and the conviction entered on May 5, 2018 by Justice Leroy of the Superior Court of Justice.

Reasons for Decision

Background and Facts

[1] Mr. McDonald was acquitted of conspiracy to commit human smuggling and convicted of two counts of manslaughter by criminal negligence. This matter arises out of an incident where the appellant, Mr. McDonald, picked up three men on the east shore of Cornwall Island and began transporting them on a Sea-Doo in the St. Lawrence River. The men were from India. Mr. McDonald was alleged to have been part of a conspiracy to transport those individuals to another location in Quebec, their ultimate destination being illegal entry into the United States.

[2] Mr. McDonald arrived at the pickup location on his Sea-Doo. In his reasons for judgment, the trial judge expressed a strong doubt whether Mr. McDonald arrived at the location knowing that he was picking up people, there being considerable evidence that in fact Mr. McDonald originally thought he was going there to retrieve and transport contraband.

[3] In any event, once at the location Mr. McDonald was met by his confederate who had made the prior arrangements. At that point, Mr. McDonald became aware that he would be transporting three men for a considerable distance across the St. Lawrence River. The men did not speak English and there was no way to know whether they could swim or not. There were no life jackets for the three men.

[4] The three men and appellant loaded onto the Sea-Doo. It capsized with the four men aboard about 25 metres from shore. Mr. McDonald was able to swim to shore, one of the men was assisted to shore by a concerned civilian, and the other two men drowned.

Federal Crown's Appeal of the Acquittal

[5] The Federal Crown appeals the acquittal on the conspiracy to commit human smuggling charge. The Federal Crown alleges two errors: first, the trial judge erred by excluding the accused's statement on the basis that while he was initially afforded his right to counsel and availed himself of that opportunity, his jeopardy changed before the interview commenced and he should have been given another opportunity to speak with counsel; and second, that the trial judge erred in excluding the statement of the surviving passenger, Mr. Patel, whom the authorities were not able to locate by the time of trial.

[6] We do not agree.

Right to Counsel and Change in Jeopardy

[7] On the first ground of appeal, the Federal Crown accepts that the trial judge stated the law correctly but argues that the trial judge misapplied that law to the facts of this case. We disagree. When the appellant initially spoke with his counsel, he only knew that he was facing charges relating to criminal negligence causing death. He did not know that he was facing jeopardy respecting conspiracy to commit human smuggling. Particularly in light of the significant mandatory minimum penalty applicable to the conspiracy count, it was open to the trial judge to find that the additional charge significantly changed Mr. McDonald's jeopardy and that he should have been again afforded his right to counsel.

Hearsay Evidence and Threshold Reliability

[8] On the second ground, the Federal Crown submits that the trial judge erred in excluding the hearsay statements of the surviving passenger Mr. Patel, one of which was a K.G.B. statement. Again, while it is acknowledged that the trial judge correctly stated the law, the Crown submits that the trial judge failed to apply it correctly, particularly on the criteria related to threshold reliability. We would not give effect to this submission. We defer to the trial judge's determination on the threshold reliability issue, a finding that was well supported by the factual record.

Disposition of Acquittal Appeal

[9] The appeal with respect to the acquittal on the conspiracy charge is therefore dismissed.

Appellant's Appeal of the Convictions

[10] Turning to the conviction appeal. Mr. McDonald appeals his two convictions for manslaughter by criminal negligence.

Main Ground: Mens Rea and Wanton and Reckless Disregard

[11] His main ground of appeal is that, while the trial judge correctly stated the law, he misstated the test for the mens rea element of the offence and failed to consider all of the relevant circumstances in determining whether the appellant was wanton and reckless.

[12] The trial judge properly referred to the law as follows: "the offence required a marked and substantial departure for what a reasonably prudent person would do in the same circumstances. And the second part of the test is whether he showed wanton and reckless disregard for the lives or safety of others." The trial judge went on to describe wanton and reckless disregard as importing "some degree of awareness or advertence by the accused to the threat to the lives of others."

[13] The appellant submits that the latter articulation minimizes the necessary cognition of risk and he relies on statements in some case law that refer to the requirement that the risk be "more obvious".

[14] In our view, the trial judge made no error. Regardless of the articulation of the test, the trial judge made the following clear finding at para. 127 of the reasons:

The reasonable person would foresee risk of the drownings inherent in the circumstances before the Court. A person functioning with normal faculties of awareness and engaging in conduct which represents a grave departure from the norm is either aware of the risk or is wilfully blind to the risk.

Consideration of All Relevant Circumstances

[15] The next issue is the requirement to take into account all of the circumstances in determining whether the conduct was wanton and reckless. The trial judge focused on three primary factors that made the appellant's action in taking the three men out on his Sea-Doo to cross the St. Lawrence River amount to criminal negligence. The first was overloading the Sea-Doo with four men when the load limit was three; the second was that he did not have life jackets for the men; and the third was that they did not speak English and he had no knowledge of their ability to swim and no way to communicate with them.

[16] The appellant submits that the trial judge failed to consider as a relevant circumstance his own earlier finding at paras. 99 and 100 of the reasons that the appellant had to reach a quick decision whether to take the men and did not have time for reflection.

[17] We do not accept that the trial judge failed to consider that circumstance. The appellant clearly deliberately decided to proceed, even though he may have made that decision after he had arrived at the location where the men were waiting. The time that he had to make the decision to transport the three men did not undermine the appellant's mens rea.

Additional Grounds Raised in Factum

[18] Mr. McDonald raised additional grounds of appeal in his factum that were not advanced in oral argument. We do not agree with those submissions.

Use of Canadian Safety Standards and Lay Opinion

[19] Specifically, Mr. McDonald argued the following. First, that the trial judge erred by improperly relying on Canadian safety standards and lay opinion evidence in determining that Mr. McDonald's actions constituted a marked and substantial departure from the standard of a reasonable person in the circumstances.

[20] We do not agree that the trial judge made any error in taking the safety standards into account. The incident occurred in Canadian waters. Furthermore, even in the absence of any regulation, it would have been open to the trial judge to find the absence of lifejackets to be a significant factor in his analysis of the standard of care applicable when crossing a navigable river in an open water craft.

[21] Similarly, the trial judge was entitled to accept the observations of a witness that the Sea-Doo capsized as an observable consequence of becoming unbalanced from having too many passengers.

K.G.B. Statement Regarding Prior Capsize

[22] Second, Mr. McDonald argued that the trial judge improperly relied on a K.G.B. statement from the surviving witness to the effect that the Sea-Doo capsized once prior to the fatal incident. The objection is purely speculative and we do not accept it. The trial judge specifically refused to admit the surviving witness's police statements and there is no mention of that evidence in his reasons for conviction. The fact that the trial judge made a stray reference to the first capsize event in his sentencing reasons does not lead to the conclusion that he also considered it in his reasons for conviction.

Statement to EMT Worker

[23] Third, Mr. McDonald objects to the admission of a statement he made to an EMT worker that was recorded while he was seated in the backseat of a police cruiser, and that was overheard by a police officer standing outside of the cruiser. There is no need to address this issue in light of the fact that the evidence received was duplicative of evidence from other sources.

Disposition of Conviction Appeal

[24] The appeal from conviction is dismissed.

K. Feldman J.A.

B.W. Miller J.A.

Fairburn J.A.