R. v. Brown, [1991] 2 S.C.R. 518

Kenneth Frederick Brown Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Brown

File No.: 21855.

1991: May 9; 1991: June 27.

Present: La Forest, L'Heureux‑Dubé, Gonthier, Cory and Stevenson JJ.

on appeal from the court of appeal for saskatchewan

Criminal law ‑‑ Sentencing ‑‑ Dangerous driving ‑‑ Motor accident involving bodily injury and death ‑‑ Jury verdict: not guilty of causing death or bodily injury by dangerous driving but guilty of included offence of dangerous driving simpliciter ‑‑ Whether judge on sentencing entitled to adopt as facts matters expressly or implicitly rejected by jury.

The accused appealed his sentence for dangerous driving imposed at trial and affirmed on appeal by a divided Court of Appeal. The issue is whether the consequences of death and bodily injury should have been considered when the jury had acquitted the accused of dangerous driving causing death and bodily injury.

Held: The appeal should be allowed.

The sentencer is bound by the express and implied factual implications of the jury's verdict. Here, the finding of dangerous driving, simpliciter, in the face of the more serious charges left no room for speculation. The jury unambiguously negated the factor of causation and both the trial judge and the Court of Appeal were bound by it. Since Parliament chose to make dangerous driving a consequence related crime, the consequence of death or bodily injury must be taken to be excluded under a determination of guilt of dangerous driving.

The determination of a fit sentence for an offence is generally to be determined by the provincial appellate courts. The dissenting judge on the Court of Appeal fully considered the matter and determined the fit sentence; his conclusion was adopted.

Cases Cited

Referred to: Tremblay v. The Queen (1969), 1969 CanLII 1589 (QC CA), 7 C.R.N.S. 315; R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; R. v. Speid (1985), 1985 CanLII 3480 (ON CA), 46 C.R. (3d) 22; Smithers v. The Queen, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506; R. v. Pinske (1988), 1988 CanLII 3118 (BC CA), 6 M.V.R. (2d) 19, aff'd 1989 CanLII 47 (SCC), [1989] 2 S.C.R. 979; R. v. Doerksen (1990), 1990 CanLII 10927 (MB CA), 19 M.V.R. (2d) 16.

Authors Cited

Boyle, Kevin and M. J. Allen. Sentencing Law and Practice. London: Sweet & Maxwell, 1985.

Fox, Richard George and Arie Freiberg. Sentencing: State and Federal Law in Victoria. Melbourne: Oxford University Press, 1985.

Ruby, Clayton C. Sentencing, 3rd ed. Toronto: Butterworths, 1987.

Stockdale, Eric and Keith Devlin. Stockdale and Devlin on Sentencing. London: Waterlow, 1987.

Thomas, D. A. "Establishing a Factual Basis for Sentencing", [1970] Crim. L.R. 80.

Thomas, D. A. Principles of Sentencing, 2nd ed. London: Heinemann, 1979.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1990), 1990 CanLII 7723 (SK CA), 81 Sask. R. 295, 53 C.C.C. (3d) 521, 75 C.R. (3d) 76, 23 M.U.R. (2d) 89, dismissing an appeal against sentence imposed by Sirois J. Appeal allowed.

Peter Foley, Q.C., for the appellant.

Kenneth W. MacKay, Q.C., for the respondent.

//Stevenson J.//

The judgment of the Court was delivered by

Stevenson J. -- The accused appeals, by leave, a sentence of twelve months imprisonment for dangerous driving imposed at trial and affirmed on appeal by a divided Court of Appeal. The issue is whether the trial judge and the majority of the Court of Appeal erred in considering the consequences of death and bodily injury when the jury had acquitted the accused of dangerous driving causing death and bodily injury.

The accused was the driver of a motor vehicle involved in a collision with another motor vehicle. As a result of the collision two passengers in the other vehicle died and two others were injured.

The accused was initially charged with two counts of causing death by criminal negligence. This was reduced by the preliminary inquiry judge to dangerous driving causing death. Shortly before the trial a new indictment was filed, adding two additional counts of dangerous driving causing bodily injury.

At the trial, the Crown argued that the accused was speeding and had driven through a red light, that this manner of driving was dangerous, and that the dangerous driving had caused the collision and resulted in death and injuries. The defence argued that the appellant was not exceeding the speed limit by an excessive amount nor did he disobey the traffic light. Moreover, the defence urged that the manner of the appellant's driving was not causally connected to the collision or the deaths or the injuries.

The jury found the accused not guilty of causing death or bodily injury by dangerous driving but guilty of the included offences of dangerous driving, simpliciter.

On sentencing, the trial judge noted that deterrence was the element that was most significant in this case and then turned to various relevant facts. The appellant's traffic infractions, he said, "do reflect some disregard for the rules to be obeyed in driving a vehicle". He then commented that:

Now in this case, under the jury, they found you guilty of dangerous driving alone. And it's probably fortunate for you that they did. But the facts still are that two people died as the result ‑‑ or following that collision ‑‑ following that collision. And two others suffer injuries that they are still being treated for today.

Included in the case on appeal was a letter or report written by the trial judge to the Court of Appeal, which contains the following statement:

Nothing is clearer than the death and injuries to the four victims arose directly from that collision. It was a flagrant example of dangerous driving taking all circumstances into account.

Before the Court of Appeal, the accused argued that the sentence was excessive for dangerous driving, simpliciter. The majority of the Court of Appeal ((1990), 1990 CanLII 7723 (SK CA), 81 Sask. R. 295) noted at p. 296 that "If the [accused] is correct, the sentence here does not bear an acceptable comparison [to other cases]. . . ."

In the Court of Appeal, the majority upheld the trial judge's sentence. In the course of his majority judgment Wakeling J.A. said at p. 296:

The appellant suggests the trial judge's right is restricted severely because if he goes too far he is basing the sentence on facts which must have been rejected by the jury, otherwise the lessor verdict of dangerous driving would not have been rendered. The Crown says the trial judge not only can but has the duty to consider all of the evidence in order to determine a proper sentence, which evidence includes the fact the accused is at least partly to blame for a serious accident which took two lives. If the appellant is correct, the sentence here does not bear an acceptable comparison to such cases . . . . If the Crown is correct, then the sentence is not exceptional when compared to cases in which the consequences are similar to those involved in this case.

In dissent, Tallis J.A. noted the judge's obligation to respect the jury verdict which expressly rejected any causal connection between the way he was driving and the deaths and injuries and concluded the sentence should have been reduced to six months imprisonment.

The majority referred to an apparent divergence between English and Australian courts on the position to be taken regarding findings of fact by a sentencer when the determination of guilt has been made by a jury. Ruby, Sentencing (3rd ed. 1987), at pp. 61‑62, Thomas, Principles of Sentencing (2nd ed. 1979) at p. 367, and Tremblay v. The Queen (1969), 1969 CanLII 1589 (QC CA), 7 C.R.N.S. 315 (Que. C.A.), were cited.

The divergence to which the majority of the Court of Appeal referred centres on the question of whether the judge is bound to assume that the jury took the most lenient view of the facts which would support the verdict. That issue does not arise here because the only factual question relates to the consequences and on that factual question the jury's decision is not in doubt. Thomas makes it clear that subject to the jury's express and implied factual findings the judge must make the necessary sentencing findings. He or she must, of course, make those findings in keeping with the law relating to the finding of facts on sentencing set out in R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, which establishes that while all credible and trustworthy evidence may be accepted, disputed facts relied upon by the Crown in aggravation must be established beyond a reasonable doubt.

In Tremblay, the trial judge in sentencing for a manslaughter conviction expressed his opinion that the accused was guilty of deliberate murder. The majority of the Court of Appeal decided not to interfere with the sentence on the basis that rid of references or expressions of opinion to give the accused's acts the character of murder, the acts were sufficiently grave to justify the sentence (a maximum). The dissenting judge found that the sentence was not fit and that it was influenced by the conclusion that the acts were murder. The majority thus found the sentence was "fit", untainted by impermissible considerations.

Before us, the parties were agreed that there is no relevant difference between the English and Australian positions. In its factum filed here the Crown set out the English position, again quoting Thomas from an article, "Establishing a Factual Basis for Sentencing", [1970] Crim. L.R. 80, at p. 82, where he says:

. . . the Court of Appeal has developed the principle that where the factual implication of the jury's verdict is clear, the sentencer is bound to accept it and a sentence which is excessive in the light of the facts implied in the verdict will be reduced . . . . This principle can only apply however where the factual implication of the jury's verdict is clear; where . . . the factual implication is ambiguous, the court has held that the sentencer should not attempt to follow the logical process of the jury, but may come to his own independent determination of the relevant facts.

This statement reflects the correct principle, namely that the sentencer is bound by the express and implied factual implications of the jury's verdict. There are other authorities to the same effect: R. v. Speid (1985), 1985 CanLII 3480 (ON CA), 46 C.R. (3d) 22, at p. 47; Boyle and Allen, Sentencing Law and Practice (1985), at pp. 225, 227 and 229; Fox and Freiberg, Sentencing: State and Federal Law in Victoria (1985), at p. 48; Stockdale and Devlin, Stockdale and Devlin on Sentencing (1987), at p. 62.

The Crown, here, took a different position, namely, that the "narrow question" was whether the jury's verdict was ambiguous leaving the sentencing judge free to make an independent determination. The argument is that the judge did not adequately describe the test for causation set out in Smithers v. The Queen, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, R. v. Pinske (1988), 1988 CanLII 3118 (BC CA), 6 M.V.R. (2d) 19 (B.C.C.A.), affirmed orally by this Court, 1989 CanLII 47 (SCC), [1989] 2 S.C.R. 979. Counsel for the Crown analysed the jury charge and argued that questions that were asked by the jury indicated that it may not have been properly instructed or that it had misunderstood the law on causation. Those are arguments against the jury's acquittal on the more serious charges and, if correct, would found an appeal of the acquittal. The Crown did not appeal the acquittals for dangerous driving causing death and bodily injury and must accept the verdicts.

The findings of dangerous driving, simpliciter, in the face of the more serious charges leaves no room for speculation. The jury has negated the factor of causation. This verdict was unambiguous and the trial judge was bound by it. So was the Court of Appeal.

Since Parliament has chosen to make dangerous driving a consequence related crime, the consequence of death or bodily injury must be taken to be excluded under a determination of guilt of dangerous driving, simpliciter. The Crown, here, conceded that had the accused entered a guilty plea to dangerous driving, simpliciter, it could not argue a more serious sentence based upon these consequences: R. v. Doerksen (1990), 1990 CanLII 10927 (MB CA), 19 M.V.R. (2d) 16 (Man. C.A.). There is, in my view, no valid distinction between the two situations.

It follows that the appeal must be allowed. The appellant invites us to substitute an appropriate sentence. The determination of a fit sentence for an offence is generally to be determined by the provincial appellate courts. In my view, Tallis J.A. has fully considered the matter and determined the fit sentence in Saskatchewan in the circumstances of this offence. I would adopt his conclusion and impose a sentence of six months imprisonment and affirm the driving prohibition of three years imposed at trial.

Appeal allowed.

Solicitors for the appellant: Gauley & Co., Saskatoon.

Solicitor for the respondent: Saskatchewan Justice Public Prosecutions, Regina.