Ontario Court of Justice

Date: 2024 02 29 Court File No.: Brampton 22-337

Between: His Majesty the King — And — Huynh Nguyen

Before: Justice I. Jaffe Heard on: February 6, 7 and 8, 2024 Reasons for Judgment released on: February 29, 2024

Counsel: H. Gluzman, counsel for the Crown J. Ciraco, counsel for the accused Huynh Nguyen

Jaffe J.:

Introduction

[1] On November 8, 2021, Huynh Nguyen was dropping her daughter off at her elementary school. After stopping her car at a stop sign in the school’s parking lot, she exited her minivan and assisted her daughter out of the vehicle. When she turned to get her child’s backpack the vehicle was rolling across the school’s kiss and ride lanes. Ms. Nguyen ran next to the vehicle in an effort to stop it, but sadly her efforts failed. The vehicle mounted the sidewalk immediately adjacent to the school, and pinned a four-year-old boy against a concrete barrier causing him serious injuries.

[2] Two days later, Ms. Nguyen was charged with dangerous operation of a vehicle causing bodily harm. The Crown argues that Ms. Nguyen’s conduct on that date amounted to a criminal offence. On behalf of Ms. Nguyen, her counsel Mr. Ciraco argues this was nothing more than a tragic accident.

The Voir Dire

[3] Ms. Nguyen made several utterances at the scene of the incident and a formal videotaped police statement two days later on November 10th, 2021. The Crown did not seek to admit any of the utterances made at the scene but did seek to admit the videotaped statement and accordingly a voluntariness voir dire was held.

[4] The defence sought to exclude the statement for two reasons. First, the defence argued that the Crown has failed to prove the voluntariness of Ms. Nguyen’s statement and secondly, and inter-related with voluntariness concerns, the statement was taken in violation of Ms. Nguyen’s s. 7 Charter right and should be excluded under s. 24(2).

[5] Specifically, it was argued by Mr. Ciraco that having three times expressed a desire to exercise her right to remain silent (a right protected by s. 7 of the Charter), the interviewing officer’s persistence in questioning Ms. Nguyen without a Vietnamese interpreter, breached the protection afforded by s. 7.

[6] The Charter and Voluntariness voir dires proceeded in a blended fashion, and it was further agreed by both parties that the evidence from all Crown witnesses would apply to the trial proper. On February 8, 2024, at the completion of the Crown’s evidence, I ruled that Ms. Nguyen’s statement was admissible. These are my reasons for so doing.

The Evidence

[7] The statement at the heart of the voir dire had been taken on the evening of November 10, 2021, at 12 Division of Peel Regional Police Service. The incident which led to Ms. Nguyen’s arrest had taken place two days earlier on the morning of November 8th, 2021, when Ms. Nguyen was dropping her daughter off at St. Pio of Pietrelcina School in Mississauga.

[8] The minivan which the Crown alleges had been driven by Ms. Nguyen started to roll or drive forward once she and her daughter exited the car. The now empty minivan continued to travel forward crossing the path of the schools’ kiss and ride laneway and partially mounting a sidewalk. Sadly, a four-year-old boy named Allen Banovic, who had been walking in the path of the minivan, was pinned between the front of the vehicle and a concrete retaining wall that bordered the school playground.

[9] Allen suffered serious injuries and was transported to Sick Kids hospital in Toronto. In hospital, Allen underwent surgery and had a long and difficult recovery which required him to stay off his feet for six weeks. Fortunately, he is now almost fully recovered except for some remaining scar tissue and occasional pain.

At the Scene

[10] First responders were called to the scene immediately upon Allen being struck and Officer Donahue, a Crown witness was the first to arrive. Paramedics and firefighters arrived shortly thereafter. Officer Syed, another Crown witness, was also soon on scene. The scene was active with first aid being rendered to the severely injured child, and body-worn camera footage captured a clearly emotional Ms. Nguyen standing next to the minivan.

[11] Bystanders, including the school principal and other parents were standing and one of those parents, Phil Scott, also testified. Mr. Scott was on school property after having dropped off his children at the school. It was as he was walking back towards his car, which was parked on the street, that Mr. Scott observed the minivan heading in his direction. Mr. Scott testified that the driver’s door of the minivan was open, and a woman was running next to the vehicle attempting to get back into the driver’s seat. The vehicle was not moving that quickly and Mr. Scott did not feel as though he was in danger of getting struck. However, the car appeared to be picking up steam as it moved down a slight incline and he noticed a young boy who was walking directly in front of the moving vehicle. Mr. Scott tried in vain to warn young Allen of the oncoming vehicle, even putting his hand out to try and stop the vehicle, but regrettably, the car struck the young child.

[12] Mr. Scott was the first to render first aid to Allen, until first responders arrived. Mr. Scott was asked if anyone managed to stop the vehicle and he recalled that it might have been the woman who had been running next to the car who eventually got back in and stopped the vehicle from crushing Allen. He was not however certain about who stopped the vehicle. Mr. Scott offered a generic description of the woman as being Asian, not too tall, with black hair.

[13] The Crown’s witnesses all gave similar evidence regarding the protocol for student drop off in the mornings and this is not in dispute. There were two ways parents or caregivers could drop off their children. Either park their vehicles in designated parking spots or on the street and walk their children to the appropriate door, or drive through the kiss-and-ride lanes. The kiss-and-ride procedure was reserved for those children who could unbuckle themselves and exit the car without assistance. The parent or caregiver was to remain in the car with the engine on and continue driving once the child was safely out of the vehicle. No parent was to exit the car.

[14] The principal of the school, Adrienne Dally, testified that parents were notified of these procedures through school communiques in the form of emails and letters or through the digital billboard-type sign on the school property. As well, school staff patrolling the area would remind parents of the rules.

[15] While these were the school rules, the Crown witnesses acknowledged parents would not infrequently breach those rules. Mr. Scott testified he would observe parents exiting their vehicles in the kiss and ride lanes and be yelled at by the teachers who were on patrol to get back into their cars.

[16] Jelkica Banovic, Allen’s mother, testified and described the traumatic incident which saw her witness her young son being pinned and crushed by a moving minivan. As was her routine in taking her two children to school, Ms. Banovic had parked her vehicle in a parking spot and was walking along the sidewalk when out of the corner of her eye, she saw a minivan rolling towards them and someone, she could not say if it was a man or woman, was running alongside of the vehicle.

[17] Ms. Banovic called out to Allen to get his attention, but it was too late. The minivan rolled up onto the sidewalk and pinned her son against a concrete barrier. It was immediately obvious that her son had been seriously injured and she believed that Mr. Scott was the person who called first responders.

[18] Asked by defence counsel if she could describe the speed of the minivan before it struck her son, Ms. Banovic explained that it was rolling fast enough that Allen was not able to get out of the way, but no one was pressing on the gas and gunning for the school. Ms. Banovic could not estimate the minivan’s actual speed.

The Statements

[19] Ms. Nguyen, who remained at the scene, was interviewed at first by Officer Syed and then by Officer Donahue. While at first the defence was asserting a breach of Ms. Nguyen’s s. 10(b) rights at the scene, having learned that the Crown was not intending to tender any of the utterances Ms. Nguyen made at the scene, the sole focus of the Charter application is on the alleged breach of Ms. Nguyen s. 7 protected right to remain silent.

[20] Nevertheless, an understanding about what happened at the scene provides important context in determining the voluntariness of Ms. Nguyen’s police statement and whether it conformed with Charter expectations.

[21] When Ms. Nguyen was interviewed by Officer Syed, it was under the authority of the s. 199(1) and (3) of the Highway Traffic Act which statutorily compels any person in charge of a motor which is involved in an accident causing personal injuries, to provide police with information concerning the accident. The same section also statutorily obligates the police to gather details concerning the accident, including details about the people involved and the extent of the injuries.

[22] When Officer Donahue subsequently interacted with Ms. Nguyen at the scene around 9:45 a.m., the police investigation had transitioned into the criminal realm with Donahue feeling as though he had reasonable and probable grounds to believe that Ms. Nguyen had been operating her vehicle in a criminally dangerous manner.

[23] At this point in time, the officer believed that the Major Collision Bureau (MCB) would be taking over the investigation, but he thought it prudent to provide Ms. Nguyen with the primary and secondary cautions and an opportunity to consult legal counsel before eliciting information from her.

[24] The officer’s interactions with Ms. Nguyen were captured on the officer’s cell phone camera. Donahue commenced his conversation with Ms. Nguyen by providing her with primary and secondary cautions inviting her to ask any questions if she did not understand anything. When asked to explain what the officer had just advised her, Ms. Nguyen responded: “you told me that I don’t need to give you any statement if I don’t want to.”

[25] When asked if she wanted to speak with a lawyer, Ms. Nguyen responded that she does not know of any lawyers. Donahue followed up with an invitation to speak with duty counsel, and Ms. Nguyen accepted. Donahue then facilitated a phone conversation between duty counsel and Ms. Nguyen.

[26] About fifteen minutes later, Donahue confirmed with Ms. Nguyen that she just finished her consultation with a duty counsel lawyer and that she had the assistance of an interpreter. Asked by the officer if she understood everything the lawyer said Ms. Nguyen replied, “yes I do.” Asked if she wanted to give a statement, Ms. Nguyen replied that the lawyer told her not to say anything.

[27] Two days later, on November 10th, Ms. Nguyen voluntarily attended the police station where Donahue’s body-worn camera captured their interactions. Ms. Nguyen was placed under arrest for dangerous operation which he clarified meant driving. Reading from his notebook, Donahue advised Ms. Nguyen that she had a right to “retain and instruct counsel without delay,” which the officer explained meant she had right to talk to a lawyer. Ms. Nguyen replied that she does not have a lawyer and Donahue explained that he would call a free one for her again.

[28] When asked if she understood the rights to counsel, Ms. Nguyen responded that she understood and expressed no confusion. Asked if she wanted to call a lawyer, she replied “ok.” When given the primary caution about not being obligated to say anything but whatever she says could be used against her, the officer clarified that this means “you don’t have to talk to the police.” Ms. Nguyen expressed an understanding. He then read the secondary caution and Ms. Nguyen expressed an understanding.

[29] Donahue then contacted the duty counsel hotline and his body-worn camera captured him providing information to the hotline. Specifically, in addition to identifying himself and the police service to which he was attached, the officer relayed Ms. Nguyen’s full name and the fact that she was charged with “dangerous operation causing bodily harm.”

[30] After confirming with Ms. Nguyen that she wished the assistance of an interpreter, Donahue relayed that Ms. Nguyen spoke English but also requested a Vietnamese interpreter. Ms. Nguyen then had private consultation with a duty counsel lawyer with the assistance of an interpreter.

[31] At 7:50 p.m. Ms. Nguyen entered the interview room where she sat by herself until Donahue joined her three minutes later and provided her with some water. The officer began the interview by telling Ms. Nguyen that room is being video, and audio recorded. He then confirmed that she received rights to counsel but advised her that he would do so again. The officer then read rights to counsel again and each time when asked if she understood, Ms. Nguyen responded in the affirmative. Ms. Nguyen confirmed that she spoke to the lawyer with a Vietnamese interpreter and that she understood everything the lawyer told her.

[32] After reminding Ms. Nguyen of the reason for her arrest, Donahue asked Ms. Nguyen if she wanted to talk about what happened. Ms. Nguyen replied, “no I don’t.” The officer asked again “you don’t want to talk about what happened” and Ms. Nguyen replied “yea.” The officer responded by telling Ms. Nguyen that was fine and then continued to talk at length about the little boy who was injured and “almost died.” The officer mentioned more than once that Ms. Nguyen was not a “bad person” and that he did not believe she did this on purpose.

[33] Ms. Nguyen appeared very concerned about the wellbeing of the child and repeatedly inquired about his state of health. The officer told Ms. Nguyen “I think it would help clear up a lot of things if I could hear your side of the story.” Ms. Nguyen then said, “yea if you don’t mind, I can tell you.”

[34] Ms. Nguyen then explained that she had stopped and parked her vehicle but did not turn off the engine. Since the back door of her minivan did not open, she got out of the vehicle to allow her child out through the driver’s door, pushing her driver’s seat forward to allow her daughter to exit. She explained that both she and her daughter were out of the car and it was when she was trying to get her daughter’s backpack out of the vehicle that it started to move.

[35] Ms. Nguyen thought that maybe she did not park the vehicle properly and had it between parking and neutral. Or perhaps when she was taking her daughter out and the “chair was pushed up and pressed the thing” which caused the vehicle to move. Ms. Nguyen explained that she tried running to press the engine to stop the vehicle but it was too late. Ms. Nguyen also explained that the vehicle’s open driver’s door hit her and hurt her leg.

[36] It is against that factual backdrop that I will now turn to the arguments and the legal principles.

The Arguments

[37] Mr. Ciraco argued that Ms. Nguyen’s Charter-protected right to remain silent – a right she repeatedly asserted – was undermined by the officer’s persistent questioning in the absence of a Vietnamese interpreter.

[38] The officer was fully aware that English was not Ms. Nguyen’s first language and while the officer felt that it was important to offer a Vietnamese interpreter for her brief consultation with duty counsel on two occasions (at the scene and at the police station), Donahue did not feel it was important to offer the same assistance to Ms. Nguyen while attempting to elicit incriminating information from her during the interview. It is during the interview that Ms. Nguyen was most at jeopardy, and it was then she was most entitled to interpretation assistance.

[39] The lack of interpretation puts into question the reliability of the statement, which is not only an important factor on a s. 24(2) analysis but also deprives the Crown from proving the voluntariness of the statement.

[40] On behalf of the Crown, Ms. Gluzman argued that the Crown has proven that the statement is voluntary, as it is not the product of improper inducements and Ms. Nguyen clearly had an operating mind. There were no comprehension issues that should cause this Court to question whether Ms. Nguyen fully understood her rights or that should cast doubt on the reliability of her statement.

Section 7 and Voluntariness

[41] The confession rule subsumes the specific s. 7 right that is at the heart of the defence Charter application, namely the right to remain silent. In other words, a finding that Ms. Nguyen was deprived of her right to remain silent by the lack of proper interpretation assistance, will defeat the Crown’s efforts to prove the statement voluntary beyond a reasonable doubt. On this point, I refer to the decision of R. v. Singh, 2007 SCC 48, where at para. 37 Charron J. writing for the majority of the Court said this:

Therefore, voluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her right to silence. The right to silence is defined in accordance with constitutional principles. A finding of voluntariness will therefore be determinative of the s. 7 issue. In other words, if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement. The converse holds true as well. If the circumstances are such that an accused is able to show on a balance of probabilities a breach of his or her right to silence, the Crown will not be in a position to meet the voluntariness test.

[42] I will accordingly focus on whether the Crown in this case has proven the voluntariness of Ms. Nguyen’s police statement. A majority of the Supreme Court in R. v. Oickle, 2000 SCC 38, [2000] 2 SCR 3, made it clear that a voluntariness assessment must be contextual and take into account all the circumstances surrounding the taking of the statement. The court should however, pay particular attention to the following factors, each of which may individually or in combination, raise a doubt about the voluntariness of a suspect’s statement:

• Whether there were threats or promises made to the suspect;
• Whether oppressive circumstances existed that may have overborne the suspect;
• Whether the statement was the product of an operating mind; and
• Whether the statement was obtained through police trickery.

[43] Simply put, the ultimate question to be asked when considering the voluntariness of a confession, is whether the defendant was deprived of making an effective choice in speaking to the authorities because of oppression, trickery or misinformation: R. v. Whittle, [1994] 2 S.C.R. 914, at para. 32.

[44] It is also the Crown’s onus to establish a sufficient record of the “interaction between the suspect and the police” which can be readily discharged where, as here, the interaction was video and audio recorded: R. v. Moore-McFarlane (2001), 56 O.R. (3d) 737, at para. 65.

[45] There is no suggestion that police employed trickery in the course of interviewing Ms. Nguyen nor was there any suggestion that the circumstances in which Ms. Nguyen provided her statement were oppressive. Accordingly, this Court’s focus is on the existence of improper inducements and on whether Ms. Nguyen had an operating mind.

[46] It was argued that in constantly referencing the young victim’s serious injuries, DC Donahue deliberately played into Ms. Nguyen’s maternal compassion to such an extent that it compromised her free will. In essence, it is argued that the officer’s repeated refrains about the boy’s injuries and assurances that Ms. Nguyen was not a bad person, induced her into speaking with officer Donahue.

[47] The threat or promise inquiry focuses on whether, through a threat or promise, the police held out a quid pro quo to the suspect. A quid pro quo could be as obvious as promising leniency in exchange for a confession, however a court should look out for more subtle forms of inducement which, depending on the particular individual and their circumstances, could have had a coercive effect on the accused: R. v. Spencer, 2007 SCC 11, at para. 15. Regardless of it’s form, at heart of an inducement is an exchange of sorts - a confession in return for something else - be it detrimental or beneficial to the suspect.

[48] Here officer Donahue was providing accurate, albeit distressing information about the young victim’s injuries but at the same time, encouraging information about his prognosis for recovery. The officer’s strategy in providing accurate information to Ms. Nguyen did not amount to an inducement: R. v. Fernandes, 2016 ONCA 772, at para. 30.

[49] On the video recording, Ms. Nguyen came across as an articulate and intelligent woman, who while clearly concerned about the wellbeing of the young victim, maintained her composure throughout her interactions with Donahue. While Ms. Nguyen expressed compassion for the victim, I do not believe that the information provided to her in the course of her interview coerced her in any way.

[50] An inquiry into whether the statement is the product of an operating mind, is distinct from whether the statement was the product of inducements insofar as it must be undertaken even if no threats or promises were made.

[51] The Court in Oickle confirmed what it had previously held in Whittle, namely that the operating mind prerequisite requires only that the suspect knew what they were saying, that they were saying it to the police, and that the police could use what they were saying against them.

[52] Language difficulties could be relevant to the operating mind assessment though such difficulties do not tend to relate to voluntariness in the traditional sense of infecting the defendant’s capacity. Rather, deficiencies in comprehension may result in a Court having a doubt about whether the statement being proffered was actually the defendant’s statement: R. v. Teng, 2017 ONSC 789, at para. 48; R. v. Lapointe and Sicotte, [1983] O.J. No. 183, (C.A.) at para. 43; R. v. Liew, 2012 ONSC 1826, at para. 98.

[53] Additionally, voluntariness may not be established in a case where the Court has doubts about whether the defendant understood that she had a right to remain silent, or that she understood that whatever she did say could be used against her. A defendants’ appreciation of those important rights is integral to the operating mind component of the confessions rule: Whittle, at p. 941; R. v. Singh, 2015 ONSC 7376, at para. 21.

[54] It is clear to me that Ms. Nguyen’s first language is not English but Vietnamese and as such, it was prudent of officer Donahue to offer her the use of an interpreter when speaking to duty counsel. Arguably, this is the most important conversation a defendant will have in the course of their interactions with the authorities. The assistance Ms. Nguyen had during her conversations with duty counsel ensured that she understood her right not to say anything to the police.

[55] I find that Ms. Nguyen understood her right to remain silent. There is no evidence to the contrary and no suggestion that she was confused or uncertain about the advice she received from duty counsel. The fact that Ms. Nguyen expressly exercised her right to remain silent more than once, demonstrates her understanding of that right and her appreciation for the fact that she did not have to say anything to Donahue. Ms. Nguyen was entitled to change her mind about speaking with the authorities and depart from duty counsel’s advice. The question is whether that change of mind was informed and of her own free will. I am satisfied it was both.

[56] Throughout her police interview, Ms. Nguyen appeared alert, sober and coherent. She was appropriately responsive to the officer’s questions. She appeared to have no difficulty understanding the officer’s questions and she expressed herself well, albeit with a thick accent. I discerned no significant comprehension difficulties by either party to the conversation and I have no doubt that in her conversation with officer Donahue, Ms. Nguyen accurately expressed what she was meaning to tell the officer.

[57] The Crown has proven the voluntariness of Ms. Nguyen’s November 10th police statement, the taking of which did not violate her s. 7 Charter right. Her Charter motion is dismissed, and the statement is admissible at her trial.

[58] Turning now to the charge.

Dangerous Operation: Relevant Legal Principles

[59] The actus reus of the offence is lifted straight from the wording of s. 320.13(1) and is established with proof that the accused was driving in a manner that was "dangerous to the public, having regard to all the circumstances:" R. v. Beatty, 2008 SCC 5, at para. 43, R. v. Roy, 2012 SCC 26, at para. 28.

[60] In determining whether the actus reus has been proven, the focus must remain on the manner of driving, not its consequences: Beatty, at para. 46. While the consequences, say for instance a collision with a pedestrian, may provide insight into the risks associated with the accused's driving, they do not determine whether the driving was dangerous.

[61] The mens rea will be established with proof that the manner of the defendant’s driving amounted to a marked departure from the standard of care that a reasonable person would observe in his circumstances.

[62] In Beatty, at para. 7, Charron J. writing for the majority of the Court emphasized the importance of distinguishing between the standards for civil and criminal liability. Whereas a departure from the standard of care expected of a reasonably prudent driver may be sufficient to ground a finding of civil liability, in the criminal context, the Crown must establish that the accused's driving was a marked departure from the norm: Also Roy, at para. 28.

[63] In Roy, at para. 36, the Supreme Court suggested that the following two questions be asked in determining whether the mens rea requirement has been met:

The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

[64] A finding that the driving constituted an objectively marked departure from the normal standard of care, imports with it the assumption that the reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty, at para. 37.

[65] However, a purely objective test which did not allow an accused to raise reasonable doubt concerning his or her actual state of mind, would be incompatible with criminal law. Accordingly, the objective test applied to a dangerous driving offence has been modified to accommodate evidence of the accused's actual state of mind which may raise a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by his driving: Beatty, at para. 37.

[66] In determining whether the Crown has proven the mens rea of dangerous driving, a Court should not focus on the duration of the driving, but the foreseeability of the dangers to the public associated with the dangerous driving: R. v. Chung, 2020 SCC 8, at para. 21.

[67] In other words, the driving in question need not have persisted for a proscribed duration to constitute a "marked departure." For instance, even a quick jerking of the steering wheel could constitute a “marked departure” if it was done intentionally: R. v. Willock (2006), 210 C.C.C. (3d) 60 (Ont. C.A.), at para. 32, and momentary excessive driving or rapidly changing lanes, could also amount to criminally dangerous driving: Chung, at paras. 19 and 21.

[68] Importantly however, momentary mistakes, lapses in attention, and simple carelessness, even where such mistakes result in serious injury or death, may give rise to civil liability, but they will usually not amount to criminal conduct: Roy, at para. 37; Chung, at para. 22.

[69] For instance, in Beatty, the trial judge acquitted Mr. Beatty on three counts of dangerous driving causing death, finding that the appellant’s momentary lapse of attention in crossing the centre line did not amount to marked departure from the standard of care of the reasonably prudent driver. The British Columbia Court of Appeal, overturned the acquittals and ordered a new trial. Writing for the majority of the Supreme Court, Charron J. found no error in the British Columbia Court of Appeal’s conclusion that Mr. Beatty’s failure to keep his vehicle in the proper lane was, in all of the circumstances, highly dangerous to other people on the highway: Beatty, at para. 51. In other words, the actus reus, had been proven.

[70] Where Charron J. disagreed with the Court of Appeal was on whether the mens rea had been proven in light of the trial judge’s finding of fact that the collision was the result of a momentary lapse in attention. On this point, Charron J. said this at paras. 51 and 52:

…..The more difficult question is whether Mr. Beatty had the necessary mens rea. There is no evidence here of any deliberate intention to create a danger for other users of the highway that could provide an easy answer to that question. Indeed, the limited evidence that was adduced about the actual state of mind of the driver suggested rather that the dangerous conduct was due to a momentary lapse of attention. Hence, the trial judge was correct in finding that the question of mens rea in this case turns on whether Mr. Beatty's manner of driving, viewed on an objective basis, constitutes a marked departure from the norm.

In my respectful view, the Court of Appeal erred in faulting the trial judge for addressing her attention to Mr. Beatty's "momentary lack of attention" and his "few seconds of lapsed attention." The trial judge appropriately focussed her analysis on Mr. Beatty's manner of driving in all the circumstances. She noted that there was no evidence of improper driving before the truck momentarily crossed the centre line and that the "few seconds of clearly negligent driving" was the only evidence about his manner of driving (para. 36). She appropriately considered the totality of the evidence in finding that "the only reasonable inference" was that "he experienced a loss of awareness" that caused him to drive straight instead of following the curve in the road (para. 36). In her view, this momentary lapse of attention was insufficient to found criminal culpability. She concluded that there was "insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver" (para. 37).

[71] The Supreme Court’s decision in Roy, offers another example of a situation where a driver who caused the death of another by operating his vehicle in an objectively dangerous manner, was found to have lacked the mens rea for criminal liability. In that case, the appellant had pulled his motorhome out from a stop onto a highway directly into the path of an oncoming truck resulting in the death of the appellant’s passenger. The unanimous Supreme Court found the trial judge had erred by inferring the appellant’s driving was a marked departure from the standard of care expected from a reasonable person, simply from the fact that the appellant had committed a dangerous act while driving.

[72] Referring to its earlier decision in Beatty, the Court cautioned against expanding too broadly the fault requirement of the dangerous operation offence 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.

[73] The message conveyed from Beatty and Roy is this: The moral blameworthiness of a driver whose otherwise proper driving is punctuated by a moment of inattention, is different from the blameworthiness of the driver who deliberately conducts him or herself in a manner that markedly departs from the norm. The indelible branding of criminalization, and its associated penal consequences, can only be justified by proof that the driving in question amounted to a marked departure from the norm.

[74] Determining whether the fault requirement has been established will be a matter of drawing inferences from all of the circumstances, which in some cases, will include evidence of the accused’s state of mind: Beatty, at para. 43; Roy, para. 39.

Arguments

[75] On behalf of the Crown, Ms. Gluzman argued that Ms. Nguyen’s act of getting out of her car while it was in drive, constituted an objectively dangerous act having regard to the fact that it was in a busy parking lot of an elementary school at a time when numerous young children and parents were making their way into the school. The fact that the vehicle remained in drive when Ms. Nguyen exited the vehicle is established through the evidence of DC Donahue who testified that when prompted by the firefighter, he entered the vehicle and placed it from drive into park.

[76] The Crown acknowledged that there is no direct evidence that Ms. Nguyen was the one who turned off the vehicle’s engine after it struck the victim, however, Ms. Gluzman invited me to infer from the evidence, in particular the evidence of Mr. Scott, that was it was Ms. Nguyen who was ultimately able to enter her own vehicle and turned off the ignition.

[77] Ms. Gluzman further argued that the mens rea of the offence has been proven as Ms. Nguyen would have been aware of the risks posed by her action of exiting her vehicle while it was still in drive, while in a parking lot busy with vehicular and pedestrian traffic. Signage in the parking lot and widely circulated rules concerning student drop-off, would have clearly conveyed to Ms. Nguyen the risks associated with her conduct, and her failure to take steps to avoid those risks constituted a marked departure of the expected standard of care.

[78] On behalf of Ms. Nguyen, Mr. Ciraco argued that Ms. Nguyen should not bear the heavy stigma of criminal liability for what, at its highest, was a momentary lapse in attention. Ms. Nguyen explained in her statement that she put the car in park, so at a minimum she had a subjective belief the car was in park. Objectively, however, with no “black box” or reconstruction evidence, and without knowing for sure who entered the vehicle to turn off the ignition this Court cannot be certain in what gear the car was when it began to move forward.

[79] Mr. Ciraco argued that we are left only knowing that Ms. Nguyen stopped her car at a stop sign, believed her vehicle was in park, and as many other parents have done, exited her car to assist her child in disembarking.

Conclusion

[80] I have no doubt that Ms. Nguyen was operating her vehicle at the time she decided to stop, get out of the vehicle and assist her daughter. With no evidence of Ms. Nguyen’s manner of driving before she arrived at the stop sign, I am left to determine whether she is guilty of dangerous operation of her vehicle solely on the basis of her decision to exit her vehicle at the stop sign.

[81] Even if the vehicle was left in drive when Ms. Nguyen exited her minivan, it is clear to me from the totality of the circumstances, including Ms. Nguyen’s police statement, that she believed her car was in park and that her vehicle posed no risk to others. This makes sense. I doubt that any reasonable parent would exit a vehicle let alone allow their own young child to exit a vehicle knowing that the vehicle remained in drive and was still in motion.

[82] I need not determine whether the Crown has proven the actus reus of this offence, because the mens rea has not been proven. This was a tragic accident which resulted in serious injuries to a young, innocent child. But that is what this was, an accident. At most this was a lapse in attention, a mistake, or a moment of carelessness. It was not a criminal offence.

[83] I find Ms. Nguyen not guilty.

Released: February 29, 2024 Signed: Justice I. Jaffe