R. v. Anderson, [1990] 1 S.C.R. 265

Raymond George Anderson Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. anderson

File No.: 19464.

1989: June 13; 1990: March 1.

Present: Dickson C.J. and Lamer, Wilson, La Forest, Sopinka, Gonthier and Cory JJ.

on appeal from the court of appeal for manitoba

Criminal law -- Criminal negligence causing death -- Comments by trial judge relating to the relevance of consequences and intention -- Whether or not comments affected outcome of trial -- Criminal Code, R.S.C. 1970, c. C‑34, ss. 202(1), (2), 203, 237(2), (3) [R.S.C., 1985, c. C‑46, ss. 219(1), (2), 220, 255(2), (3)].

Appellant was charged with criminal negligence causing death. He had been thinking of something else, ran a red light and a passenger in the car he hit died as a result injuries suffered in the accident. There was no evidence of any erratic driving apart from driving through the red traffic light. Appellant, although legally impaired, showed little sign of impairment. The trial judge found that the Crown had failed to prove the charge beyond a reasonable doubt. During the course of his reasons the trial judge stated that neither the mens rea nor the consequences of the manner of driving were material in making a decision as to guilt or innocence. An appeal was allowed by the Court of Appeal. The sole issue here was whether the trial judge's comments relating to the relevance of consequences and intention affected the outcome.

Held: The appeal should allowed.

The conclusion that there is a wanton or reckless disregard is to be drawn from the conduct which falls below the applicable standard. The conduct relied on here was (a) the combination of drinking and driving, and (b) the breach of a traffic light regulation. The trial judge considered both and concluded that the conduct was not a marked departure from the norm. A conclusion that the appellant had a wanton or reckless disregard for the lives and safety of others could not therefore be drawn on either a subjective or objective basis. The unfortunate fact that a person was killed added nothing with respect to appellant's conduct. The negligence proved against him by evidence of his drinking and driving and of his going through a red light was found not to be a marked departure from the norm and the fatal collision added nothing to appellant's conduct to bring it within the realm of a marked departure. In some circumstances, however, the actions of the accused and the consequences flowing from them may be so interwoven that the consequences may be relevant in characterizing the conduct of the accused.

The trial judge's finding of reasonable doubt could be supported on the facts. Although he made some general remarks that perhaps should not have been made without elaboration, no error of law resulted. The trial judge's statements did not affect the outcome.

Cases Cited

Considered: R. v. Tutton, 1989 CanLII 103 (SCC), [1989] 1 S.C.R. 1392; referred to: R. v. Caldwell, [1981] 1 All E.R. 961; R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, ss. 202(1), (2), 203, 237(2), (3) [now R.S.C., 1985, c. C‑46, ss. 219, 220, 255(2), (3)].

APPEAL from a judgment of the Manitoba Court of Appeal (1985), 1985 CanLII 3715 (MB CA), 33 Man. R. (2d) 308, allowing an appeal from an acquittal by Ferg J. Appeal allowed.

Robert L. Pollack, for the appellant.

George Dangerfield, Q.C., for the respondent.

//Sopinka J.//

The judgment of the Court was delivered by

Sopinka J. -- This is an appeal as of right from the Manitoba Court of Appeal which allowed an appeal from the judgment of Ferg J. acquitting the appellant of the charge of criminal negligence causing death. The sole issue in this appeal is whether certain comments by Ferg J. relating to the relevance of consequences and intention affected the outcome.

Facts

The following facts were found by the trial judge.

At approximately 5:06 p.m. on May 21, 1983, the appellant was driving his parents' automobile westerly along Logan Avenue in the City of Winnipeg. At the intersection of Logan Avenue and Arlington Street he went through a red traffic light and struck a northerly bound vehicle broadside. The collision took place in the northeast quadrant of the intersection. A passenger in the north bound vehicle died as a result of injuries received in the collision. Apart from driving through the red traffic light, there was no evidence of any erratic driving. He was driving within the speed limit.

The appellant had been drinking. A blood alcohol reading taken approximately one hour after the accident revealed that he had a blood alcohol level of 200 milligrams of alcohol per 100 millilitres of blood. A police officer with 34 years' experience who observed the appellant and administered the breathalyser test found no sign of gross impairment. He conceded on cross-examination that the appellant "showed very little impairment at all". The trial judge accepted the evidence of this witness. A statement taken from the appellant the day after the occurrence and tendered by the Crown disclosed that the appellant admitted that he was thinking about something else and he went through the red light.

Trial Judgment

The trial judge reviewed the above facts and considered them in the light of the Crown's argument that there was wanton and reckless disregard of the lives and safety of others in the appellant's getting into his automobile in his impaired condition and then driving through a red light. Ferg J. remarked that these factors were insufficient to establish the degree of negligence required. After reviewing the authorities he concluded that the Crown had failed to prove the charge beyond a reasonable doubt. He stated:

Looking at the circumstances in this case, looking at the facts, I cannot find that the Crown has proved beyond reasonable doubt that this accused in his manner of driving and in the circumstances and the facts as we have them, I cannot find that he was guilty of blatant disregard for the lives and safety of others. Certainly, however, his driving was dangerous.

During the course of his reasons, Ferg J. made the following statement which was the basis for the attack on his judgment both here and in the Court of Appeal:

Consequences of the manner of driving are not material in making a decision as to the guilt or innocense [sic]; nor is mens rea, or the intention required to be proved by the Crown. It matters not what the man's intention was when he entered the automobile to put it into use. Nevertheless, of course, the Crown must carry its burden, as always, of proof beyond a reasonable doubt of the offence.

Court of Appeal (1985), [1985 CanLII 3715 (MB CA)](https://www.canlii.org/en/mb/mbca/doc/1985/1985canlii3715/1985canlii3715.html), 33 Man. R. (2d) 308

The Court of Appeal gave effect to two grounds of appeal which were based on the passage in the reasons of the trial judge to which I have referred. These grounds were stated in the Notice of Appeal as follows:

2. THAT the learned Trial Judge erred in refusing to consider the consequences of the manner of driving in arriving at a verdict;

3. THAT the learned Trial Judge erred in disregarding the intention of the Respondent at the time he entered his automobile prior to the collision; . . .

In connection with these grounds the respondent Crown advanced an argument that self-induced drunkenness cannot be used as a defence and hence drunk driving coupled with the creation of a risk must always result in a conviction of criminal negligence. O'Sullivan J.A., speaking for the Court, was of the view that this proposition went too far. Although a trial judge must take alcohol consumption into account as one of the circumstances from which wanton or reckless driving can be inferred, there was no presumption of law as suggested by the Crown. Furthermore, on the facts of this case there was nothing to suggest that the trial judge had not considered the factor of alcohol consumption.

O'Sullivan J.A. was, however, of the opinion that the trial judge had misdirected himself as to the relevance of consequences and intention. Since he could not say that this misdirection did not affect the verdict, a new trial was directed.

Criminal Negligence -- General

In approaching the critique of a trial judgment dealing with a charge of criminal negligence, one can only have profound sympathy for the plight of the trial judge. This area of the law, both here and in other common law countries, has proved to be one of the most difficult and uncertain in the whole of the criminal field. The sections of the Criminal Code, R.S.C. 1970, c. C-34, now R.S.C., 1985, c. C-46, under consideration here are relatively simple. They provide:

202. (1) [now s. 219] Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, "duty" means a duty imposed by law.

203. [now s. 220] Every one who by criminal negligence causes death to another person is guilty of an indictable offence and is liable to imprisonment for life.

The use of the word "negligence" suggests that the impugned conduct must depart from a standard objectively determined. On the other hand, the use of the words "wanton and reckless disregard" suggests that an ingredient of the offence includes a state of mind or some moral quality to the conduct which attracts the sanctions of the criminal law. The section makes it clear that the conclusion that there is a wanton or reckless disregard is to be drawn from the conduct which falls below the standard. The major disagreement in the cases centers around the manner in which this conclusion is to be drawn.

On the one hand, there are the cases that hold that it is to be done on an objective basis. If the conduct is a marked departure from the norm, then, based on the standard of an ordinary prudent individual, the accused ought to have known that his actions could endanger the lives or safety of others. On the other hand, there are cases that apply a subjective standard and require some degree of advertence to the risk to be proved. This may be done by inferring advertence from the nature of the conduct in the context of the surrounding circumstances. A refinement on the latter view is that a marked departure constitutes a prima facie case of negligence. The trier of fact may but is not obliged to infer the necessary mental element from the conduct which is found to depart substantially from the norm.

In both the objective and subjective approaches, the court is determining foreseeability of consequences. In a civil negligence case concerned with adjustment of losses, the connection between conduct and consequences is often quite tenuous. The mythical reasonable man has been equipped with a great deal of clairvoyance in order to compensate the innocent victim. Often the defendant will not, in fact, have foreseen the consequences of his negligent acts for which he is held accountable on an objective basis. In a criminal case the connection must be more substantial. To establish recklessness, the consequences must be more obvious. That is the rationale for the requirement of a marked departure from the norm. The greater the risk created, the easier it is to conclude that a reasonably prudent person would have foreseen the consequences. Equally, it is easier to conclude that the accused must have foreseen the consequences. It is apparent, therefore, that as the risk of harm increases, the significance of the distinction between the objective and subjective approaches decreases. The ultimate in this process of reasoning is reached when the risk is so high that the consequences are the natural result of the conduct creating the risk. The conduct in such circumstances can be characterized as intentional.

A finding that the impugned conduct is a marked departure from the standard is, accordingly, central to both the objective and subjective approaches. In R. v. Tutton, 1989 CanLII 103 (SCC), [1989] 1 S.C.R. 1392, this Court was divided as to which approach is correct. McIntyre J., with whom Lamer J. and L'Heureux-Dubé J. concurred, was of the view that an objective test ought to be adopted. Wilson J., with whom the Chief Justice and La Forest J. concurred, preferred a subjective test. In his reasons at p. 1431, McIntyre J. stated:

The test is that of reasonableness, and proof of conduct which reveals a marked and significant departure from the standard which could be expected of a reasonably prudent person in the circumstances will justify a conviction of criminal negligence.

Wilson J. also underlined the importance of a finding of conduct which constitutes a marked departure from the norm. She states, at p. 1408:

It can be assumed that a person functioning with normal faculties of awareness and engaging in conduct which represents such a grave departure from the norm is either aware of the risk or is wilfully blind to the risk. Proof of the conduct will, in other words, cast an evidential burden on the accused to explain why the normal inference of conscious awareness or wilful blindness should not be drawn.

Lamer J., in a separate judgment concurring in the result with McIntyre J., was of the view that the objective test was the correct one with a generous allowance for certain individual factors. He referred to the fact that the conduct under consideration is "high risk conduct".

Criminal Negligence -- Application to This Case

In this case as in most of these cases there is no direct evidence of the state of mind of the appellant. The conclusion that he had a wanton or reckless disregard for the lives and safety of others must be drawn from the conduct which is alleged to be a marked departure from the norm. If an objective standard is employed, this will be determined on the basis of the state of mind of an ordinary prudent person in the circumstances. If the subjective standard or its refinement are applied, then the conclusion, if drawn, must be drawn from the conduct of the appellant.

The conduct relied on in this case is (a) the combination of drinking and driving, and (b) the breach of a traffic light regulation. Clearly the trial judge considered both. He concluded that the conduct was not a marked departure from the norm. That being the case, a conclusion that the appellant had a wanton or reckless disregard for the lives and safety of others could not be drawn on either a subjective or objective basis.

The trial judge specifically addressed the question of the drinking and driving. The Court of Appeal agreed that this was so. Nevertheless he was not prepared to find that this, together with the traffic violation, was sufficient. It left him in a state of doubt. No doubt setting out to drive after drinking in some circumstances may be sufficient to conclude either objectively or subjectively that there is a wanton or reckless disregard for the lives and safety of others. It will not be so, however, in every case. The contrary conclusion would render redundant subss. (2) and (3) of s. 237 (now s. 255) of the Criminal Code which provide specific penalties for causing death or bodily harm through the operation of a motor vehicle while impaired. The decision, however, in each case is one of fact, and in this case the trial judge was not prepared to so conclude.

Was this finding affected by the reference to intention? The statement in context is as follows: "nor is mens rea, or the intention required to be proved by the Crown. It matters not what the man's intention was when he entered the automobile to put it into use." I do not read this statement to mean that the evidence that the appellant chose to drive his car knowing he had been drinking was not relevant. Such an interpretation would constitute too microscopic an approach to the trial judge's reasons. Clearly, the trial judge went on to consider the relevance of this evidence. What the trial judge was dealing with here was the Crown's obligation. Intention need not be proved by the Crown. From the Crown's point of view, it did not matter that the appellant intended to drive safely when he entered the automobile. The sentence following the above-quoted passage emphasizes that this is the context in which the statement is made: "Nevertheless, of course, the Crown must carry its burden . . . ."

The trial judge's statement that the consequences are not relevant must also be dealt with in the context in which it was made. This reference is undoubtedly one to the tragic death of the passenger in the other vehicle involved in the collision. The death of the passenger was a necessary ingredient of the actus reus. It was not otherwise relevant unless a conclusion could be drawn from it with respect to whether there was a wanton and reckless disregard for the lives and safety of other persons. It was not suggested by the Crown that it was a circumstance from which such a conclusion could be drawn either on an objective or subjective basis.

In the circumstances of this case, the unfortunate fact that a person was killed added nothing to the conduct of the appellant. The degree of negligence proved against the appellant by means of the evidence that he drove after drinking and went through a red light was not increased by the fact that a collision occurred and death resulted. If driving and drinking and running a red light was not a marked departure from the standard, it did not become so because a collision occurred. In some circumstances, perhaps, the actions of the accused and the consequences flowing from them may be so interwoven that the consequences may be relevant in characterizing the conduct of the accused. That is not the case here.

In my opinion, the trial judge came to the conclusion on the evidence that there was a reasonable doubt that the conduct of the accused constituted criminal negligence. He was entitled to do so on the facts. Although he made some general remarks that perhaps should not have been made without elaboration, I am satisfied that no error of law resulted. In any event, the statements to which I have alluded did not affect the outcome. The respondent has not satisfied me that the verdict would not necessarily have been the same. The Court of Appeal ought not to have set aside the acquittal.

In view of this conclusion, it is unnecessary to deal with the appellant's submissions with respect to R. v. Caldwell, [1981] 1 All E.R. 961, nor the appellant's submissions that the judgment of the Manitoba Court of Appeal is inconsistent with the principle in R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636.

Disposition

In the result, the appeal is allowed, the judgment of the Court of Appeal set aside and the acquittal restored.

Appeal allowed.

Solicitors for the appellant: Skwark, Myers, Kussin, Weinstein, Winnipeg.

Solicitor for the respondent: The Attorney General for Manitoba, Winnipeg.