Her Majesty the Queen v. S.K.

[Indexed as: R. v. K. (S.)]

Ontario Reports

Court of Appeal for Ontario

Simmons, Tulloch and D.M. Brown JJ.A.

October 1, 2019

148 O.R. (3d) 1 | 2019 ONCA 776

Case Summary

Criminal law — Evidence — Prior consistent statements

Police officer's upper body trapped in accused's vehicle when it started to move. Officer ejected and killed when vehicle became airborne. Accused testifying at trial that he kept his foot on brake and did not intentionally push accelerator pedal. Trial judge not erring in failing to admit accused's account of his prior consistent statement to his father that he did not intentionally set vehicle in motion. Statement not admissible in response to allegation of recent fabrication as Crown did not allege recent fabrication during cross-examination of accused and Crown's implicit allegation of recent fabrication in closing address was made after trial judge's evidentiary ruling.

Criminal law — Murder — First degree murder — Elements of offence

Police officer attempting to remove 15-year-old accused from vehicle. Vehicle starting to move and accelerating with officer hanging partly out of driver's side. Officer ejected and killed after vehicle became airborne. Accused convicted of first degree murder under s. 229(c) of Criminal Code. Trial judge erring in failing to instruct jury that accused's age and maturity level were important factors to consider in assessing whether he knew his dangerous driving was likely to cause officer's death. Accused's appeal allowed. Criminal Code, R.S.C. 1985, c. C-46, s. 229(c).

Criminal law — Murder — First degree murder — Unreasonable verdict

Accused intentionally accelerating vehicle in erratic manner with police officer hanging partly out of driver's side of vehicle. Accused convicted of first degree murder under ss. 229(c) and 231(4)(a) of Criminal Code. Verdict not unreasonable. Criminal Code, R.S.C. 1985, c. C-46, ss. 229(c), 231(4)(a).

Criminal law — Trial — Crown — Closing address

Police officer's upper body being trapped in accused's vehicle when it started to move. Officer ejected and killed when vehicle became airborne. Accused testifying at trial that he kept his foot on brake and did not intentionally push accelerator pedal. Crown not cross-examining accused about his statement to paramedics at scene that he could not specifically recall accident. Crown's closing address raising question of why accused did not tell paramedics that he had tried to stop vehicle. Trial judge not erring in dismissing defence request for mistrial. Trial judge erring in failing to specifically instruct jury to disregard Crown's submission.

Facts

The accused, who was 15 years old at the time of the alleged offence, was convicted of first degree murder under ss. 229(c) and 231(4)(a) of the Criminal Code. He took his father's vehicle without his permission. A police officer stopped him for speeding, told him that the vehicle would be impounded and ordered him out of the vehicle. The accused refused to get out and pleaded with the officer to let him go. The officer opened the driver's side door and tried to undo the accused's seat belt. The vehicle started moving and accelerated with the officer's upper body caught between the accused and the steering wheel and the lower part of his body hanging out the open door. The vehicle became airborne. The officer was ejected, and the vehicle landed on top of him, killing him.

At trial, the accused testified that he kept his foot on the brake throughout the traffic stop, that he was startled when the officer suddenly opened the door and lunged into the vehicle, and that he never intentionally pushed the accelerator pedal. The defence called an expert witness to explain the phenomenon of pedal misapplication. The trial judge refused to admit the accused's account of a prior consistent statement he made to his father 26 days after the crash to the effect that he did not intentionally set the vehicle in motion. A paramedic who attended the accused at the scene of the crash testified that, when asked what had happened, the accused told him that he could not specifically recall the accident. The Crown did not cross-examine the accused about that statement. However, during the cross-examination, the Crown stated: "I'm going to suggest to you the only reason you say 'I was startled. I was surprised that he opened the door' is because you're trying to provide some explanation as to why, in this startle and surprise, you hit the gas pedal unintentionally". In closing submissions, the Crown questioned why the accused's first response to the paramedic had not been to the effect that he was trying to stop the van. The trial judge dismissed a defence request for a mistrial based on the Crown's closing address. The accused appealed his conviction.

Decision

The appeal was allowed.

Reasons

Per Simmons J.A.

The trial judge erred in failing to instruct the jury specifically that, before relying on the common sense inference to conclude that the accused knew that the manner of his driving was likely to cause the officer's death, they were required to consider the accused's age and level of maturity. In the context of s. 229(c) of the Code, where a finding of knowledge of likelihood of death is required, a trier of fact must be cautious before inferring actual knowledge based entirely or substantially on the common sense inference. An assessment of the actual knowledge of an accused is an intensely fact-specific inquiry that requires and involves a careful analysis of all the circumstances in which the dangerous act occurred. It was necessary for the trial judge to caution the jury that 15-year-olds do not have the same life experience as adults and that, as a result, a 15-year-old may not have the level of maturity to foresee the consequences of a particular course of action. The trial judge also erred in failing to review for the jury various statements and actions of the accused before, during and after the incident as evidence from which one might conclude that he lacked mature judgment. On the basis of that ground, the appeal should be allowed.

The trial judge erred in declining to admit the accused's account of his prior consistent statement to his father to rebut allegations of recent fabrication arising from the Crown's cross-examination, the overall circumstances of the case and the Crown's closing address. He did not err in ruling that the statement lacked the necessary circumstantial guarantees of trustworthiness to support its admission under the principled exception to the hearsay rule. The statement was not recorded, and the accused's father did not claim a complete recall of the statement. The lack of contemporaneous recording also precluded admission by analogy to s. 715.1 of the Code.

The trial judge did not err in refusing to declare a mistrial after the Crown's closing address. However, he erred in leaving it for the jury to determine whether to use the accused's non-disclosure of pedal misapplication and unintended acceleration to the paramedic in order to impeach the accused's credibility. Rather, he should have instructed the jury in strong terms that it would be prejudicial and unfair to the accused for them to do so and that they should disregard the Crown's submission.

The verdict of first degree murder was not unreasonable, even taking into account the fact that the trial judge erred in failing to instruct the jury to consider the accused's age and level of maturity before applying the common sense inference. The jury must have concluded that the accused intentionally put the vehicle in motion. The accused intentionally created a life-threatening situation and was persisting in that course of conduct despite the threats and admonitions of others in the van. To hold the murder verdict unreasonable would be to effectively conclude that 15-year-olds are incapable of appreciating the likely consequences of their actions. The question here was whether the 15-year-old accused did so. That was a question for the jury to decide taking account of the whole of the evidence.

This was not an appropriate case for the application of the curative proviso.

Per Tulloch J.A. (concurring)

The reasons of Simmons J.A. are agreed with, except her conclusion that Crown counsel implicitly alleged recent fabrication in the impugned passage of his cross-examination of the accused and her finding that the accused's prior consistent statement was admissible. In context, the jury would not have understood Crown counsel to have alleged recent fabrication, but rather would have understood the Crown's position to be that the accused was simply lying to avoid conviction. Nor could the Crown's implicit allegation of recent fabrication in the closing address be used to hold that the trial judge erred in failing to admit the accused's prior consistent statement. The trial judge's ruling on the admissibility of the statement was made prior to the Crown's closing address. Following the Crown's closing, the defence no longer sought the admission of the statement and argued that reopening the case to admit the statement would prejudice the defence. Moreover, the statement was not admissible to provide the jury with overall context about what the accused said close in time to the incident and prior to obtaining an expert report on pedal misapplication. The overall context basis of admission added nothing to the recent fabrication basis of admission and only risked confusing the jury.

Per D.M. Brown J.A. (concurring)

Simmons J.A.'s reasons are agreed with, except for her conclusion that the trial judge erred in failing to admit the accused's statement to his father to rebut implicit allegations of recent fabrication. On that issue, Tulloch J.A.'s reasons are agreed with.

Disposition

The appeal is allowed. The conviction is set aside and a new trial is ordered.