Court of Appeal for Ontario

Date: 2025-07-09
Docket: M56086 (COA-25-CR-0756)
Judge: David M. Paciocco

Between:
His Majesty the King (Respondent/Responding Party)
and
William Craig Robson (Appellant/Moving Party)

Appearances:
Matthew Gourlay and Matthew Kay, for the moving party
Samuel Greene, for the responding party

Heard: 2025-07-03

Endorsement

Background

[1] William Craig Robson was convicted of dangerous driving causing death as a result of the drowning death of his 19-year-old son’s 20-year-old friend, Tyler Christine-Bourgeois, which occurred while the three men were engaged in “snowmobile skipping” across open water. The activity involved Mr. Robson using a tow rope tethered to his snowmobile to pull his son and Mr. Christine-Bourgeois, who were on separate GT Racer sleds, at a sufficient pace over open water in a frozen lake to enable the snowmobile and sleds to hydroplane. They had done so successfully once. While repeating the stunt so that it could be filmed, Mr. Christine-Bourgeois tipped his GT Racer into a wheelie position as they were approaching the open water at speed, and he was thrown from the sled when it hit the water. He disappeared under the ice and tragically drowned.

[2] At the time this tragedy occurred, none of the participants were wearing safety equipment other than helmets, no safety measures had been put in place, and no steps had been taken to ensure that the equipment or the opening in the water met the required specifications for the stunt. All three of the men involved had been drinking alcohol, although the trial judge had a reasonable doubt about whether Mr. Robson’s ability to operate the snowmobile was impaired or whether he was over the legal limit. A ski on Mr. Christine-Bourgeois’s GT Racer had also come off shortly before this event, requiring an impromptu repair. The trial judge found that these conditions were known to Mr. Robson and were obviously dangerous. She concluded that participating in this activity by operating the snowmobile after consuming alcohol constituted driving in a manner that, in the circumstances, endangered the public and was a marked departure from the norm. She also found that Mr. Robson’s role in driving the vehicle in these circumstances was a significant contributing cause of Mr. Christine-Bourgeois’s death.

The Appeal and Motion for Release

[3] Mr. Robson, who was sentenced to 4 years in prison and given a 9-year driving prohibition, is appealing both his conviction and sentence. He brought a motion before me for his release pending appeal, as well as a stay of the prohibition order pursuant to s. 320.25(1). He raised three grounds of appeal relating to his conviction in support of his release application, namely that the trial judge erred by: (1) interpreting and applying the actus reus of the offence on the basis that passengers are always members of the public within the meaning of s. 320.13(3); (2) failing to find Mr. Christine-Bourgeois’s conduct to be an intervening act that disrupted the chain of causation, and by making a foreseeability finding that is not supported by the evidence; and (3) by refusing to admit expert evidence on Mr. Robson’s cognitive psychological factors relating to his perception of risk. He raises two grounds of appeal against his sentence, namely that the trial judge: (1) erred by relying on case law involving the use of conveyances on public streets and therefore misconceived the appropriate sentencing range; and (2) exceeded her jurisdiction under s. 320.24(4) by imposing a driving prohibition on all vehicles, when s. 320.24(4) authorizes driving prohibitions relating only to “the type of conveyance in question”, namely snowmobiles.

[4] The Crown opposed Mr. Robson’s release, arguing that although the grounds of appeal are not frivolous, they are weak “long-shot” arguments, and that given the seriousness of the offence and the length of the sentence, Mr. Robson’s detention is necessary in the public interest because the interest in enforcing the sentence imposed outweighs the reviewability interest arising from his weak appeal. The Crown opposed the stay of the driving prohibition, arguing that the suggestion that the trial judge exceeded her jurisdiction in ordering a prohibition relating to all motor vehicles lacks merit. In the alternative, the Crown argued that if a stay is to be granted, the application of the prohibition to snowmobiles should not be stayed because that part of the order is untouched by the related ground of appeal.

[5] At the conclusion of oral argument, for reasons to be provided later, I granted Mr. Robson’s motion and ordered his release on terms agreed to by the parties, and I imposed the partial stay of the driving prohibition, leaving the prohibition relating to snowmobiles in place. These are my reasons.

Legal Framework

[6] Pursuant to s. 679(3), Mr. Robson is entitled to bail pending appeal if: (1) his appeal is not frivolous; (2) he will surrender himself into custody in accordance with the terms of the order; and (3) “his detention is not necessary in the public interest”. The Crown takes no issue with the first two requirements. The Crown position is that he has not satisfied the third precondition because he has failed to establish that his detention is not necessary in the public interest.

[7] To satisfy this third precondition, Mr. Robson must show that his detention is not “necessary” either to secure public safety, or to preserve public confidence in the administration of justice: R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Analysis

[8] In its written position communicated in advance of the hearing, the Crown suggested that Mr. Robson’s detention may be necessary to secure public safety because he has a related criminal record for driving offences and for breaching court orders, as well as a serious driving record. However, the Crown did not press this argument in its written position and conceded during oral argument that his detention was not necessary under the public safety prong. Its submissions focused exclusively on the “public confidence” component of the public interest requirement. The Crown was right to make this concession. Although there can be no doubt that Mr. Robson’s conduct at the lake was irresponsible, the offence, as tragic as it is, does not suggest that he is inclined to dangerous criminal activity, and his criminal record is dated. There is no suggestion that he breached any terms of release in the more than five years since he was arrested. In my view, his detention is not necessary to protect the public.

[9] The Crown’s main submission is that Mr. Robson has failed to show that his detention is not necessary to preserve public confidence in the administration of justice because his offence is serious, his sentence is long enough that he will be able to argue his appeal before most of it is served, and his grounds of appeal are so weak that his interest in arguing his appeal is outweighed by the public interest in enforcing his sentence. I do not accept this submission.

[10] Mr. Robson’s first ground of appeal is novel, but it is not bereft of merit and it is in the public interest to resolve whether an adult who has voluntarily participated in a dangerous off-road activity involving a conveyance is a member of the “public” whom the accused operator is obliged by the criminal law, through the offence of dangerous driving, to protect from the risks they have knowingly assumed. The precedents are thin, but this issue, which is raised in some of the case law, has not been closely tested to determine whether it is a weak, long-shot argument or a serious, tenable issue.

[11] I also find that there may prove to be merit in the argument that the trial judge erred in her causation analysis relating to Mr. Christine-Bourgeois’s conduct in increasing the risk by doing a wheelie on his sled as it approached the open water. This ground of appeal will no doubt face its challenges, but it too is a submission that warrants appellate attention.

[12] The implications of these grounds of appeal are significant because if either of them succeeds then Mr. Robson’s conviction will be set aside, in whole or in part. He could end up serving time pending appeal on a charge for which he is ultimately exonerated, and there is no public interest in that, even if the time that he will have to serve pending his appeal does not constitute the greater part of the sentence imposed.

[13] In my view, Mr. Robson’s continued detention cannot be justified in whole or in part based on the seriousness of the offence. I recognize that the consequences of this event for Mr. Christine-Bourgeois could not be more serious, and that his loss has been and will remain devastating to his loved ones. However, it must be remembered that the offence Mr. Robson was convicted of is one of penal negligence, not one of intentional or wilful harm or violence. In the hierarchy of “guilty mind” moral fault, penal negligence is at the lowest end of the conduct that engages the criminal law. In my view, this is not a case where the nature of the offence can reasonably cause alarm to the public if Mr. Robson is released pending appeal.

[14] I have considered whether there is a material residual concern that Mr. Robson’s release pending appeal will endanger the public, and I reject that suggestion. For the reasons I have given, I am persuaded that he does not pose a serious risk of criminal conduct.

[15] Ultimately, as Moldaver J. made clear in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 29, detaining individuals who are apt to attend court and who are not likely to commit offences pending appeal is an exceptional outcome. It is only in rare cases that individuals who will attend court if released, and who do not pose a serious risk to the public, should remain in detention pending appeal when they have real arguments to make before it can be finally resolved whether their punishment is appropriate. Ultimately, the damage that release pending appeal could cause to the repute of the administration of justice is to be judged through the eyes of reasonable people, fully informed of the circumstances and who are familiar with the relevant principles of justice, including those principles that have been adopted to protect the community at large from unjustified harm from the mistaken, disproportionate, or unfair use of the criminal law power. In my judgment, this is not the kind of exceptional case where detention is necessary to protect the repute of the administration of justice, hence Mr. Robson’s release.

Stay of Driving Prohibition

[16] I granted the partial stay of Mr. Robson’s driving prohibition because there is a real issue as to what the phrase “the type of conveyance in question” means in s. 320.24(4). If Mr. Robson prevails on this ground of appeal, however likely or unlikely that may be, then the prohibition imposed will have been illegal. It should not operate until that issue is settled.

“David M. Paciocco”