CITATION: R. v. Tutiven, 2017 ONSC 6774
COURT FILE NO.: CR/16/40000/4710000
DATE: 20171006
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MAX TUTIVEN
Joseph Callaghan and Jenny Rodopoulos, for the Crown
Edward Sapiano, for Mr. Tutiven
HEARD: September 29, 2017
M. Forestell J.
RULING ON
INCLUDED OFFENCES
Overview
[1] The accused is charged with the second degree murder of Jayesh Prajapati on September 15, 2012. Mr. Prajapati, who was working as a gas station attendant, died as a result of multiple blunt force injuries after being struck and dragged by a vehicle that was being driven by someone fleeing from the gas station after having stolen gas.
[2] Mr. Tutiven has pleaded not guilty to the charge of second degree murder. The trial has proceeded over about nine days of evidence. Mr. Tutiven has now testified and there is one further proposed defence witness who has not yet testified. The identity of the driver of the vehicle was not a formal admission in this case. However, Mr. Tutiven in his testimony admitted that he was the person that stole the gas and whose actions in driving his car caused the death of Mr. Prajapati. Mr. Tutiven denied that he knew at the time of the incident that he had struck or was dragging Mr. Prajapati. Mr. Tutiven denied speeding out of the gas station, but conceded that he drove quickly after he exited the gas station. Mr. Tutiven testified that he heard something dragging under his car but did not stop to remove the object because he believed it to be a pylon and he was trying not to be caught after stealing gas and possibly bumping another car on his way out.
[3] Crown witnesses have testified that Mr. Tutiven drove at a very high rate of speed out of the gas station and down the road while Mr. Prajapati was being dragged.
Issue
[4] Counsel for Mr. Tutiven submits that the offence of dangerous driving causing death should be left with the jury as an included offence. His position is that Mr. Tutiven admits that he should be found guilty of that offence, but denies his guilt of the offences of murder or manslaughter. Counsel for Mr. Tutiven argues that ss. 662(3) and (5) of the Criminal Code[^1] can and should be interpreted to mean that dangerous driving causing death can be left as an included offence on a charge of second degree murder. Counsel for the Crown submits that s. 662(3) prohibits leaving anything other than manslaughter as an included offence in this case.
Analysis
[5] Section 662 of the Criminal Code reads as follows:
662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted
(a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or
(b) of an attempt to commit an offence so included.
(2) For greater certainty and without limiting the generality of subsection (1), where a count charges first degree murder and the evidence does not prove first degree murder but proves second degree murder or an attempt to commit second degree murder, the jury may find the accused not guilty of first degree murder but guilty of second degree murder or an attempt to commit second degree murder, as the case may be.
(3) Subject to subsection (4), where a count charges murder and the evidence proves manslaughter or infanticide but does not prove murder, the jury may find the accused not guilty of murder but guilty of manslaughter or infanticide, but shall not on that count find the accused guilty of any other offence.
(4) Where a count charges the murder of a child or infanticide and the evidence proves the commission of an offence under section 243 but does not prove murder or infanticide, the jury may find the accused not guilty of murder or infanticide, as the case may be, but guilty of an offence under section 243.
(5) For greater certainty, where a count charges an offence under section 220, 221 or 236 arising out of the operation of a motor vehicle or the navigation or operation of a vessel or aircraft, and the evidence does not prove such offence but does prove an offence under section 249 or subsection 249.1(3), the accused may be convicted of an offence under section 249 or subsection 249.1(3), as the case may be.
[6] The determination of this issue turns on the proper interpretation of ss. 662(3) and (5) of the Criminal Code. In R. v. B. (L.), 2011 ONCA 153, 270 C.C.C. (3d) 208, at paras. 51 and 52, Doherty J.A. wrote as follows:
Statutory interpretation is a multi-faceted exercise that looks to the language used in the relevant provisions, the statutory context in which those provisions appear and the object and purpose of the provisions in issue: Application Under s. 83.28 of the Criminal Code, Re, 2004 SCC 42, [2004] 2 S.C.R. 248 (S.C.C.), at para. 34. Professor Driedger's ‘modern principle’ has become the accepted approach to statutory interpretation:
There is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
I take the ‘modern principle’ of statutory interpretation to mean that the words of a statute, like any other words, derive their meaning from their context in the broadest sense of that word: R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 (S.C.C.), at para. 33; Redeemer Foundation v. Minister of National Revenue, 2008 SCC 46, [2008] 2 S.C.R. 643 (S.C.C.), at para. 15; R. v. Ahmad, 2011 SCC 6 (S.C.C.), at para. 28. [Footnote omitted.]
[7] The proper interpretation of s. 662(3) was considered by the Court of Appeal for Ontario in a different context. In R. v. Sarrazin, 2010 ONCA 577, 259 C.C.C. (3d) 293, the Court of Appeal held that the words of s. 662(3) did not affect the availability of attempted murder as an alternative verdict on a charge of second degree murder.
[8] In Sarrazin, Doherty J.A. wrote that s. 662(3) must be read as part of s. 662. Nothing in s. 662 limits or qualifies that language in s. 660 which directly addresses the liability of an accused to be found guilty of an attempt to commit the crime with which he is charged.
[9] Counsel for Mr. Tutiven argues that the decision in Sarrazin should be seen as supporting the proposition that there are alternative verdicts available on a charge of murder so long as those offences are available statutorily as in Sarrazin. Counsel argues that s. 662(5) makes dangerous driving statutorily available.
[10] Subsection 662(5) clearly allows the offence of dangerous driving to be left with the jury “where a count charges an offence under … section 236 [manslaughter] arising out of the operation of a motor vehicle”.
[11] There is some logic to the argument that since manslaughter is statutorily an included offence to second degree murder and dangerous driving causing death is statutorily an included offence on a charge of manslaughter arising out of the operation of a motor vehicle, dangerous driving causing death must be an included offence to a charge of murder arising out of the operation of a motor vehicle.
[12] While the words “where a count charges an offence under section 236” could be argued to limit the application of the subsection to counts specifically charging manslaughter, this would be contrary to the principle stated in R. v. Harmer, 1976 CanLII 570 (ON CA), 15 O.R. (2d) 84, at para. 8, that,
…an indictment charging an offence also charges all offences which as a matter of law are necessarily committed in the commission of the principal offence as described in the enactment creating it, as well as those offences of which the accused may be convicted by virtue of express statutory provisions.
A count of second degree murder therefore also charges manslaughter by virtue of the express statutory provision in s. 662(3) that the accused may be convicted of manslaughter.
[13] The policy reasons for limiting the possible verdicts to murder and manslaughter in cases such as the case before me are not easily discerned. Subsection 662(3) has been included in the Criminal Code with little change since 1892.
[14] The potential prejudice to the accused where the alternative and lesser verdict is not left with the jury was also identified in Sarrazin, at the Court of Appeal and on further appeal to the Supreme Court of Canada, when each of those Courts considered the application of the curative proviso. In the judgment of the Supreme Court, Binnie J., writing for the Court, said as follows, at para. 31:
I agree with Doherty J.A. that ‘[f]ailure to afford a jury an opportunity to consider returning a verdict on an included offence, where that verdict is reasonably available, will in most circumstances constitute reversible error’ (para. 87). In my view, that general rule should apply here, and the Crown's argument to the contrary should be rejected not because of a concern that ‘the palatability of a potential verdict [of acquittal] may have played a role in the jury's decision’ (Moldaver J.A., at para. 162), but because the jury was never presented with the option of delivering a verdict (attempted murder) that matched an important branch of the theory of the defence.[^2]
[15] While I acknowledge that there are policy reasons tending to support the interpretation urged upon me by Mr. Sapiano, the wording of s. 662(3) viewed as a whole in the context of s. 662 and in the manner described by Doherty J.A. in Sarrazin does not support the interpretation that dangerous driving causing death can be an included offence to murder.
[16] Subsection 662(1) sets out the general rule for included offences. Subsections (2) and (5) both begin with the words “for greater certainty”. At para. 35 of Sarrazin, Doherty J.A. explained that,
[Subsection 662(2)] is intended to make it clear that second degree murder is a possible verdict on a first degree murder charge. The reference in s. 662(2) to the possibility of a conviction for attempted second degree murder simply tracks the language of s. 662(1), which provides that where an accused is liable to be convicted of a lesser and included offence, he or she may also be convicted of an attempt to commit that lesser and included offence. The words of s. 662(2) that make a conviction for attempted second degree murder possible simply make the provision conform with the general provision in s. 662(1) as it relates to potential liability for an attempt to commit a lesser and included offence.
In contrast, at para. 38, Doherty J.A. said that “s. 662(3) serves to limit the general language of s. 662(1) by providing that only manslaughter or infanticide are available lesser and included offences”.
[17] Subsection 662(5) also begins with the words “for greater certainty”. This tends to indicate that the enumerated driving related offences would be included offences under the operation of s. 662(1), but that the subsection is intended to remove any doubt. Subsection 662(5) is a specific application of s. 662(1) and not a limitation on the application of s. 662(1).
[18] Subsection 662(3), however, is a limitation on the general words of s. 662(1). The words of the section provide that on a count of murder the jury shall not find the accused guilty of any other offence, except for manslaughter or infanticide. I do not think that the words “where a count charges murder and the evidence proves manslaughter but does not prove murder” can be seen as a precondition that manslaughter must be proven before the prohibition on findings of guilt on other charges becomes effective.
[19] I find further support for the conclusion that the subsection must be interpreted to preclude any alternative verdict other than manslaughter in this case in the opening words of s. 662(3): “Subject to subsection (4)”. Parliament in this wording provided an exception to the operation of s. 662(3) to allow for the included offences in (4) where the count charges the murder of a child. It did not provide such an exception to allow for the included offences in (5) where the offence involves the operation of a motor vehicle.
Conclusion
[20] In light of the language of s. 662 considered as a whole and the comments of Doherty J.A., writing for the majority, in Sarrazin, I have concluded that the offence of dangerous driving causing death cannot be left with the jury as an included offence to murder.
M. Forestell J.
Released: October 6, 2017
COURT FILE NO.: CR/16/40000/4710000
DATE: 20171006
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MAX TUTIVEN
RULING ON
INCLUDED OFFENCES
M. Forestell J.
Released: October 6, 2017
[^1]: R.S.C. 1985, c. C-46, s. 487.04
[^2]: 2011 SCC 54, [2011] 3 S.C.R. 505