R. v. MacGillivray, 1995 CanLII 139 (SCC), [1995] 1 SCR 890

R. v. MacGillivray, 1995 CanLII 139 (SCC), [1995] 1 SCR 890

Daniel George MacGillivray Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. MacGillivray

File No.: 23933.

Hearing and judgment: February 23, 1995.

Reasons delivered: March 30, 1995.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for nova scotia

Criminal law ‑‑ Dangerous operation of vessels ‑‑ Elements of offence -- Accused driving his boat through a known swimming area at considerable speed without seeing ahead ‑‑ Swimmer struck by boat and fatally injured ‑‑ Whether trial judge applied proper test in convicting accused ‑‑ If not, whether s. 686(1)(b)(iii) of Criminal Code applicable ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 249(4), 686(1)(b)(iii).

On a clear summer day, the accused drove his boat at considerable speed toward a known swimming area. As he approached, a group of swimmers waved their arms and shouted to alert the accused of the dangerous situation. The bow of the boat was up at such an angle that the accused could not see in front of the boat and there was no lookout. The boat ploughed through the group of swimmers, striking and fatally injuring one of them. The accused was charged with operating a vessel in a manner dangerous to the public contrary to s. 249(4) of the Criminal Code. The trial judge considered all the evidence and the circumstances and convicted the accused. The conviction was upheld by the Court of Appeal.

Held (Lamer C.J. and Sopinka, McLachlin and Major JJ. dissenting): The appeal should be dismissed.

Per La Forest, L'Heureux‑Dubé, Gonthier, Cory and Iacobucci JJ.: The trial judge adequately described the actus reus of the offence as conduct which, viewed objectively, constituted a significant departure from the standard of a reasonably prudent person. There is no real difference between the phrase "significant departure" and the phrase "marked departure" used by this Court in Hundal when referring to the actus reus. The mens rea test adopted by the trial judge, however, required the Crown to prove advertent negligence. This subjective test places a stricter onus on the Crown than the modified objective test put forward by this Court in Hundal. The trial judge's statement at the end of his reasons that "the accused operated the boat . . . in a manner a prudent person would not" does not detract from this conclusion. When, as in this case, a trial judge sets out the legal principle and test that he intends to apply it should be assumed, in the absence of a very clear indication to the contrary, that he in fact followed that very course. Although the trial judge committed an error in law in applying a more stringent test for the mens rea, it is appropriate to apply s. 686(1)(b)(iii) of the Criminal Code since no miscarriage of justice was occasioned by this error. Further there was strong, cogent and convincing evidence upon which the trial judge could base his conclusion that there was a significant or marked departure from the standard of care of a reasonable person.

Per Lamer C.J. and Sopinka, McLachlin and Major JJ. (dissenting): While, throughout his reasons, the trial judge set out a stricter test than that laid down by this Court in Hundal, there is uncertainty as to what test the trial judge in effect applied. He seems to have concluded, however, that the accused was guilty because he operated his boat "in a manner a prudent person would not". This is a much easier test for the Crown to meet than the test set out in Hundal.

Cases Cited

By Cory J.

Applied: R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, aff'g (1991), 1991 CanLII 5752 (BC CA), 63 C.C.C. (3d) 214.

By Lamer C.J. (dissenting)

R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, ss. 249(4) [rep. & sub. c. 27 (1st Supp.), s. 36], 686(1)(b)(iii).

Authors Cited

Shorter Oxford English Dictionary, 3rd ed. Oxford: Clarendon Press, 1990, "mark", "marked", "significant".

APPEAL from a judgment of the Nova Scotia Court of Appeal (1993), 1993 NSCA 210, 126 N.S.R. (2d) 275, 352 A.P.R. 275, dismissing the accused's appeal from his conviction on a charge of dangerous operation of a vessel contrary to s. 249(4) of the Criminal Code. Appeal dismissed, Lamer C.J. and Sopinka, McLachlin and Major JJ. dissenting.

Joel E. Pink, Q.C., for the appellant.

Robert C. Hagell and William Delaney, for the respondent.

//Lamer C.J.//

The reasons of Lamer C.J. and Sopinka, McLachlin and Major JJ. were delivered by

1Lamer C.J. (dissenting) -- I have had the advantage of reading the reasons of my colleague, Justice Cory. These reasons follow judgment which was handed down by the Court at the hearing dismissing the appeal. Justices Sopinka, McLachlin, Major and myself, dissenting, would have allowed the appeal.

2There is no dispute as to the facts, nor as to the issue to be determined. The dissenting judges are of the view that, in the light of the last paragraph of the trial judge's reasons, set out in Justice Cory's reasons, they are left uncertain as to what test the trial judge did in effect apply. While he did set out a stricter test throughout his reasons, he seems to us to have concluded that the accused is guilty because he operated his boat "in a manner a prudent person would not". This obviously is a much easier test for the Crown to meet than that which was set down in the majority reasons of the Court in R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867.

3It is for this reason that we would have allowed the appeal and ordered a new trial.

//Cory J.//

The judgment of La Forest, L'Heureux-Dubé, Gonthier, Cory and Iacobucci JJ. was delivered by

4Cory J. -- On a bright and sunny Saturday afternoon, the appellant drove his boat through a group of seven wildly waving, shouting young swimmers. The boat struck and fatally injured one of the young men. This appeal arises from the conviction of the appellant on a charge of dangerous operation of a vessel, under s. 249(4) of the Criminal Code, R.S.C., 1985, c. C‑46, at the time of the accident.

Factual Background

5There was ample evidence of a cogent, and convincing nature presented to the trial judge upon which he could base his conviction of the appellant.

6The accident took place on Saturday afternoon, the 17th of August, 1991. It was a warm, clear summer day. The trial judge found that "the rocks" at Cribbons Point was then, as it had been for many years, a location which had a magnetic attraction for swimmers, divers and sunbathers. As might be expected, there were many people swimming and sunbathing at "the rocks" when the accident occurred. At that time, some 300 feet out from "the rocks", a group of seven boys was swimming back towards the shore. The appellant knew that "the rocks" was frequented by swimmers. Indeed, in the past he had been swimming there himself. On this tragic afternoon, he was cruising in his boat with members of his family. As he approached the swimming boys, the boat appeared to be bouncing or skipping in the small chop. Estimates of the speed varied with some witnesses testifying that it was fast. The seven boys waved their arms and shouted, as did those on the shore, to alert the appellant to the dangerous situation, all to no avail. The boat ploughed through the group of swimmers and the propeller struck the victim.

7At the time of the accident, the bow of the boat was up at such an angle that the appellant could not see in front of the boat. It was possible to have some visibility ahead by leaning over the side and looking forward. The trial judge specifically found that this was not done.

8In an area where the appellant knew that there could be swimmers, he drove blindly ahead impervious to what was in front of him. No doubt it is important, from an historical point of view, to look back and to see where one has been. It is also pleasant to see what is on either side of a vehicle or a boat. Yet, in the operation of any vehicle, whether it be aircraft, automobile or boat, it would seem to be essential that a lookout be kept ahead in the direction in which the vehicle is moving. It really is vitally important for the driver of a vehicle or vessel to see where that vehicle or vessel is going. It cannot be said that this was only a momentary lapse of attention resulting from an inadequate lookout. In this case, there was not just an inadequate lookout but no lookout at all. Although it is not essential to the result, I cannot help observing that this evidence could well be found to demonstrate a degree of negligence that constitutes a marked departure from the standard of a reasonable person.

9The trial judge convicted the appellant and that conviction was upheld in the Nova Scotia Court of Appeal: (1993), 1993 NSCA 210, 126 N.S.R. (2d) 275, 352 A.P.R. 275.

Issue

10There is but one question to be resolved on this appeal. Did the trial judge apply a test which was stricter than that laid down by this Court in R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867? If he did, then it would be appropriate to apply the provisions of s. 686(1)(b)(iii) of the Criminal Code since, although he committed an error in law, no miscarriage of justice was occasioned by it.

11The decision in Hundal was an attempt to clarify the law with regard to the dangerous operation of vehicles. The test set out in that case should be followed in the future. It was described in this way (at pp. 885 and 888):

Thus, it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accused subjectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care. It is not overly difficult to determine when a driver has fallen markedly below the acceptable standard of care. There can be no doubt that the concept of negligence is well understood and readily recognized by most Canadians. Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code.

In summary, the mens rea for the offence of dangerous driving should be assessed objectively but in the context of all the events surrounding the incident. That approach will satisfy the dictates both of common sense and fairness. As a general rule, personal factors need not be taken into account. This flows from the licensing requirement for driving which assures that all who drive have a reasonable standard of physical health and capability, mental health and a knowledge of the reasonable standard required of all licensed drivers.

In light of the licensing requirement and the nature of driving offences, a modified objective test satisfies the constitutional minimum fault requirement for s. 233 (now s. 249) of the Criminal Code and is eminently well‑suited to that offence.

If follows then that a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place". In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation.

Unfortunately, these reasons were not released until after the trial judge had rendered his decision. However, he carefully considered the reasons of the British Columbia Court of Appeal in this same case, reported at (1991), 1991 CanLII 5752 (BC CA), 63 C.C.C. (3d) 214. He quoted at length from the minority reasons of Lambert J.A. and stated that he adopted them with approval as to the general law in the area. His lengthy quotation from those reasons included the following from pp. 225‑26:

So I consider that the decisions of the Supreme Court of Canada in Tutton, Waite and Anderson should be regarded as leaving the mental element of dangerous driving where it was before those cases. The Crown must prove "advertent" or "subjective" negligence or carelessness.

VI

I have concluded that at the present time the only proper course to be followed by trial courts and courts of appeal in Canada is to apply the "subjective" standard of "advertent" negligence.

The actus reus continues to be determined by an objective standard. Dangerous driving is driving which involves, objectively determined (that is, in the estimation of reasonably prudent people), the creation of a significant risk of danger to others by a significant departure from the standard that a reasonably prudent person, with similar basic physical and mental capacities as the accused, but not necessarily with the same propensities, would have adopted in the circumstances facing the accused. (I am setting out the actus reus because of the close inter-relationship between the actus reus and the mens rea. The nature of the actus reus was not in issue in this appeal.)

How then is the "advertent" or "subjective" element of the offence to be determined? It should be approached on the basis of the application of the concepts that underlie mens rea generally, namely a knowledge of the relevant facts, or wilful blindness to them, coupled with an intention to commit the prohibited act or with recklessness as to whether the prohibited act is committed: see R. v. Sault Ste. Marie (City) (1978), 1978 CanLII 11 (SCC), 40 C.C.C. (2d) 353 at p. 362, 85 D.L.R. (3d) 161, [1978] 2 S.C.R. 1299. And, as I have said, the prohibited act is the creation of a significant risk of danger to others by a significant departure from the standard of a reasonably prudent person.

The key to the mental element is either that a significant risk of danger is appreciated and the risk is intentionally or recklessly undertaken or, alternatively, that a significant risk of danger is not appreciated but it is undertaken, either because of wilful blindness to the circumstances that create the risk, or by recklessness as to the appreciation of those circumstances, or by recklessness as to the reason why those circumstances make the risk of danger a significant one that a reasonably prudent person would not take.

The trial judge concluded his reasons with this paragraph:

I have considered all the evidence and find that the accused operated the boat at a speed, with no visibility ahead, no proper lookout, in an area which he knew or ought to have known was a recreational swimming area, in a manner a prudent person would not. And by doing so caused the death of William Francis Corsten. The advertent negligence can be inferred from the conduct and driving of the accused.

12The trial judge adopted the reasons of Lambert J.A. as a statement of the general law on the subject. The last paragraph of his reasons must be read in light of his earlier statement as to the law he would apply which is set out in the lengthy quotation. The test set out by Lambert J.A. would require the Crown to prove "advertent", that is to say, "subjective", negligence. This places a much heavier onus upon the Crown than the modified objective test put forward by the majority reasons of this Court in Hundal, supra. This very point was recognized in the reasons of McLachlin J., concurring in the result. Clearly, a subjective test places a far stricter onus upon the Crown than an objective test.

13Lambert J.A. referred to the actus reus of the offence as conduct which, viewed objectively, constituted a significant departure from the standard of a reasonably prudent person. In my view, there is no real difference between the phrase "significant departure" and the term "marked departure" used by the majority in this Court when referring to the actus reus. This is borne out by the dictionary definitions of the terms. The Shorter Oxford English Dictionary (3rd ed. 1990) includes these pertinent definitions of the words "mark", "marked" and "significant":

Mark I. To put a mark upon. . . . [4] b. To separate from something else as by a line or distinctive mark. . . . 6. In immaterial sense: a. To make perceptible by some indication. b. To manifest (one's approval, displeasure, etc.) by some act, or by reward or punishment.

Marked . . . 3. Easy to distinguish or recognize.

Significant 1. Full of meaning or import. b. Important, notable.

14It is of course preferable to make use of the words employed by this Court in Hundal to describe the test. However, if a truly synonymous term is used it should not be considered a ground for complaint. It follows then that the trial judge did indeed apply a stricter test than that set out in the reasons of this Court in Hundal.

15Nor in my view, does the last paragraph of his reasons detract from this conclusion. It must be remembered that this is not a charge to a jury but the reasons of a judge sitting alone. They should not be scrutinized with the same intensity as a jury charge, where the appellate courts must make certain that the words set out in the instructions to the jury are not only correct but, as well, not likely to mislead the jury. Here, the trial judge set out the general law and the test by which he would be guided. The fact that he did not specifically repeat it in his last paragraph cannot be taken as detracting from his stated intention. If a trial judge sets out the legal principle and test that he intends to apply, it should be assumed, in the absence of a very clear indication to the contrary, that he in fact followed that very course. To come to any other conclusion would I think be unfair to trial judges.

16I am satisfied that the trial judge applied a stricter test for finding guilt on a charge of dangerous driving or operation of a vessel than that set out by this Court in Hundal, supra. Further, there was strong, cogent and convincing evidence upon which he could base his conclusion that there was indeed a significant or marked departure from the standard of care of a reasonable person. As a result, it is appropriate to apply the provisions of s. 686(1)(b)(iii) of the Code and conclude that despite the error in law no substantial wrong or miscarriage was occasioned by it. The appeal should therefore be dismissed.