COURT FILE NO.: CR-17-026
DATE: 2018/03/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Louie McDonald
Jeannine Plamondon and Mark Seebaran, Counsel for the Federal Crown
André White, Counsel for the Provincial Crown, for the Provincial Crown
Ian Paul, Counsel for the Accused
HEARD: January 8 to 10; January 15 to 18; February 5 & 6 and February 12 & 13, 2018
REASONS FOR JUDGMENT
leroy, j.
Introduction
[1] On September 2, 2015, two men drowned in the St. Lawrence River, a short distance east of Cornwall Island in the District of Akwesasne, Ontario. The charge is that Mr. McDonald’s criminal negligence caused the death of the two men, thereby committing manslaughter in accordance with sections 222(5)(b) and 234 of the Criminal Code.
[2] The Crown further alleges that Mr. McDonald’s nexus to the deceased was related to a conspiracy with Jacob Martin and/or others unknown to commit the indictable offence of bringing aliens to come to, enter or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry or residence was in violation of the law, the whole contrary to Title 8, United States Code, ss. 1324(a)(1) and (2), conduct which, if committed in relation to Canada, would constitute an indictable offence contrary to ss. 117, 131 and 124(1)(a) of the Immigration and Refugee Protection Act and did thereby, pursuant to s. 465(3) of the Criminal Code commit an indictable offence contrary to s. 465(1)(c) of the Criminal Code.
[3] Equivalency of border integrity law is admitted by defence.
[4] Mr. McDonald was on probation on September 2, 2015, a term of which was to keep the peace and be of good behaviour. A finding of guilt for manslaughter or human smuggling results in a breach of probation contrary to s. 733.1 of the Criminal Code.
The Issues
[5]
- Whether the crown proved that Mr. McDonald was a member of the conspiracy as charged;
- Whether the crown proved that Mr. McDonald was criminally negligent in the operation of the Sea-doo causing the death of two men. If not it will be necessary to consider lesser included offences.
Backdrop
[5] St. Regis Village and Snye, Quebec are land-locked by New York State on the south side of the St. Lawrence River. The jurisdictional configuration that is the Akwesasne District is such that travel between the City of Cornwall/Cornwall Island, Ontario and St. Regis Village/Snye, Quebec by motor vehicle involves entry into and passage through the United States back to Canada at St. Regis. The route requires US entry at the port of entry checkpoint. It is the only lawful point of entry into the US from Cornwall Island. The length of border between Quebec and New York State is not secure. There are six roadways traversing the border.
[6] The river expedites direct movement between Ontario and St. Regis/Snye Quebec without the formality of the International border crossing. The landing point in Snye is between 1.5 and 2 miles from the border with New York.
The Evidentiary Dialectic
[7] On September 2, 2015 at approximately 9:00 a.m., Acting Deputy Chief Swamp, of the Akwesasne Police Services responded to a 911 call instigated by Larry Mitchell, reporting the drowning of young people at the east end of Cornwall Island.
[8] Chief Swamp’s initial observations on arrival at the scene included Mr. McDonald and Mayur Patel on the concrete bulwark at the shoreline and a disabled Sea-Doo 60 to 80 feet into the river. Mr. McDonald and Patel had been in the water. Both appeared exhausted.
[9] Mr. McDonald confirmed it was his Sea-Doo. Patel alerted Chief Swamp to the presence of two drowned companions. Chief Swamp talked with Larry Mitchell who narrated his observations and confirmed there were two men in the river.
[10] Two bodies were recovered not far from shore. Messrs. McDonald and Mitchell directed the search from shore.
[11] The police recovered a Samsung Galaxy S5 cell phone, lighter, a tie up rope and life jacket from the Sea-Doo storage compartment. Otherwise the Sea-Doo was empty. The Sea-Doo was in working order undamaged.
[12] Detective King retrieved eight one hundred dollar bills from the water and nothing else.
[13] Mr. McDonald confirmed with the paramedic at the scene and with intake at the hospital that he drove the Sea-Doo and it capsized as the result of overloading.
[14] Larry Mitchell was witness to the drowning. He was proximate to the east end of the island for work reasons, in his vehicle in the process of backing into the roadway from the residential driveway closest to the eastern end of the island on the north side. He observed the Sea-Doo approach and dock at the bulwark with only the driver on board. Three men were waiting at the water. They boarded the Sea-Doo. He observed the Sea-doo was overloaded. The Sea-Doo departed with the four on board. He said the Sea-Doo departed slowly, did not get to plane, that it turned to starboard and capsized approximately twenty-five feet from shore. His initial premise was they were “just kids fooling around.”
[15] It was the screaming that aroused concern. He drove to the waterfront. The men were struggling to stay afloat. He threw a lifeline to the man who turned out to be Mayur Patel and slowly pulled him to shore, he said because Mr. Patel appeared exhausted and he did not want to rip the strap from Mr. Patel’s hands. By the time he saved Mr. Patel, two men were under water. Mr. McDonald made it to shore and appeared exhausted.
[16] Mr. Mitchell could not categorically confirm that when the four men departed they were not wearing life jackets. He could categorically confirm there were no life jackets floating in the water in the course of this incident and no one in the water was wearing a life jacket.
[17] When Mr. Mitchell asked Mr. McDonald why there were no life jackets Mr. McDonald said he thought he was picking up something else – not people.
[18] Mr. Mitchell confirmed there were no others in the vicinity through this incident. Mr. Mitchell denied acquaintance with Mr. McDonald. He was unable to identify Mr. McDonald as the driver at trial, citing passage of over two years.
[19] Mr. Mitchell’s observations and memory on matters that stood out in his mind were solid. Mr. Mitchell’s sincerity was readily apparent.
[20] Ravikant Patel (deceased), Parthkumar Patel (deceased) and Mayur Patel were Indian Nationals, resident in the state of Gujarati. Ostensibly they came to Canada to attend university in Halifax. Parthkumar Patel and Mayur Patel entered Canada, landing in Montreal on August 28, 2015. Ravikant Patel entered Canada at Montreal on August 29, 2015.
[21] Their objective was to gain entry to the United States through Canada. CBSA chronicled their journey. They obtained student visas authorizing entry to Canada. While their documents were authentic, the materials provided to support the application were either falsified or plagiarised. They were not qualified for admission to a Canadian University.
[22] Once in Canada, the three travelled extensively. Parthkumar and Mayur flew to Vancouver and then Fort St. John, B.C. on August 29, 2015. Ravikant followed on August 30. The three flew back to Montreal on September 1, 2015. On September 2at 9:00 a.m., they were at the east end of Cornwall Island.
[23] Mayur Patel breached the terms of his release from custody in December 2016. His whereabouts is unknown.
[24] Jacob Martin testified for the Crown in relation to the conspiracy count with Evidence Act and Charter immunity. His sincerity is suspect. He was a volunteer fireman in the service of the Akwesasne Fire Department on September 2, 2015. He said he resides in Hogansburg, District of Akwesasne, New York. When he worked in Cornwall over 2014/2015, Mr. Martin said that from time to time he smuggled alcohol purchased in New York into Ontario at the request of a co-worker. The co-worker is unidentified. Mr. Martin stopped employment with the co-worker some time before September 2, 2015.
[25] Mr. Martin said this person, herein referred to as the confederate, approached Mr. Martin approximately one week before September 2, 2015 asking whether Mr. Martin had a boat or knew someone with a boat who would transport two persons across the river. Mr. Martin said he was advised the two persons were from India, in Canada with visas without passports. Mr. Martin said he told the confederate that he did not have a boat but would look around.
[26] Mr. Martin said that later the same day he approached Mr. McDonald. Mr. McDonald was an acquaintance Mr. Martin knew as a friend of Mr. Martin’s step-brother. They both hung out at the step-brother’s home time to time. He thought Mr. McDonald was a close friend of the step-brother.
[27] Mr. Martin said he asked Mr. McDonald if he could drive a boat and whether Mr. McDonald would transport two people across, point of departure the easterly end of Cornwall Island. They did not discuss destination. Mr. Martin said Mr. McDonald agreed.
[28] Mr. Martin said the confederate contacted him two days later and advised him there would be three people rather than two. Mr. Martin said they did not discuss compensation, although some form of compensation was understood.
[29] He said he communicated the updated information to Mr. McDonald the same day at the home of the step-brother. He informed Mr. McDonald there would be three people rather than two. He said Mr. McDonald agreed.
[30] Mr. Martin said they did not discuss type of boat, the legal status of the cargo, compensation or arrangements for return passage. Mr. Martin assumed that Mr. McDonald would take the three persons from the easterly end of Cornwall Island, Ontario to Quebec. He could not say whether he and Mr. McDonald explicitly discussed the target destination. In the preliminary hearing, Mr. Martin confirmed he did not apprise Mr. McDonald as to the target destination, nor of Mr. Martin’s role on arrival in Snye. Mr. Martin said he was not apprised of the schedule, but it would be soon.
[31] On discovery, Mr. Martin denied any discussions regarding compensation. At trial, he said they had a small discussion, wherein Mr. McDonald said he was indifferent to the amount – “Pay me what you want”. When confronted about the inconsistency in testimony on this issue from the preliminary discovery, Mr. Martin quibbled. He took the preliminary segment out of context and was non-responsive to the issue of the inconsistency.
[32] The investigation extracted text messages from the cell phone discovered in the Sea-Doo storage compartment between that phone and Mr. Martin #315-705-1929 as follows:
September 1, 2015
6:39 p.m. – from Jake – At boss mans?
To Jake – Me 2
6:42 p.m. – to Jake – Yeah I am
6:43 p.m. – from Jake – I be there in a bit
9:42 p.m. – from Jake – 9a.m.
To Jake – K
September 2, 2015
8:06 a.m. – from Jake – Still good?
8:13 a.m. – to Jake – I’m ready I’m ready I’m ready lol
8:14 a.m. – from Jake – Ok…I’m heading to cwall for timmies now
8:41 a.m. – from Jake – Lmk when u almost there
8:48 a.m. – to Jake – B there in 5 min
8:50 a.m. – from Jake - Ok
[33] There is no mention of human smuggling in their texting.
[34] Mr. Martin was observed passing through the border checkpoint into Canada at 8:39 a.m. on September 2, 2015.
[35] Mr. Martin said he met with the confederate sometime around 8:45 a.m. on September 2, 2015. Three men were in the confederate’s vehicle. The confederate advised Mr. Martin the three men did not speak English. The confederate instructed the three men in their language – Gujarati-to change vehicles and they did. He said the confederate handed Mr. Martin $1K in cash.
[36] Mr. Martin concluded the three men were from India. He did not engage in conversation. He drove them to the east end of Cornwall Island. He identified his vehicle, his countenance and that of the driver side rear seat passenger from security video taken when he traversed the bridge authority toll booth on route.
[37] Mr. Martin said Mr. McDonald was waiting next to the concrete bulwark on the Sea-Doo when he arrived. Mr. Martin said he exited his vehicle and approached Mr. McDonald. He said that what he saw and heard surprised him. Firstly, he was surprised that Mr. McDonald had a Sea-Doo. This Sea-Doo was not suitable for the carriage of the three men. Secondly, he was surprised by Mr. McDonald’s representation that he could fit the three pounds of weed into the storage compartment.
[38] Mr. Martin acknowledged, without specification there could have been miscommunication between them over the subject matter of the contraband. Their two discussions were conducted in a lounge area of his step-brother’s converted garage, there could have been loud music playing and their context was clandestine.
[39] After Mr. McDonald made reference to the weed, Mr. Martin apprised Mr. McDonald of Mr. McDonald’s misapprehension of the undertaking and toldd Mr. McDonald – “No it’s people”. He said he asked Mr. McDonald if he still agreed to go ahead with it. Mr. Martin said that Mr. McDonald said “Ya, they will fit” and scooted up a bit to make room.
[40] Mr. Martin said he gave the $1K to Mr. McDonald at the scene. When Mr. Martin was asked about his compensation expectations he said he would collect a further $500 from the confederate later.
[41] Mr. McDonald said he returned to his vehicle, the three men exited and went to the shore. Mr. Martin observed the first man in the process of boarding the Sea-Doo. He said he promptly left the scene with the intention of driving around through customs and meeting Mr. McDonald and the three men in Snye, Quebec when he would drive the three men to Massena, New York. Mr. Martin said he is unsure whether he revealed his intentions to Mr. McDonald.
[42] Mr. Martin was recorded passing through the US border Massena checkpoint at 9:09 a.m.
[43] Mr. Martin said he traversed customs, but the journey to Snye was interrupted by his fire department pager advising of an overturned vessel. He went to the station and boarded a fire department fan boat and proceeded to the east end of Cornwall Island to assist.
[44] Cross-examination revealed that Mr. Martin is careless with the truth. It was apparent he admits no transgression until confronted with dispositive evidence.
[45] Mr. Martin denied criminal activity involving drug trafficking. He had to agree that he was negotiating the purchase and sale of four to five pounds of marijuana on August 30, 2015 and the deal did not consummate because of pricing.
[46] When he was interviewed on September 6 in relation to the events before the Court, Mr. Martin denied a role in the transport of the three men on the Quebec/US side in the belief that he would not be charged in the US because no foul on the US side. He told the interviewer that he did not know who was meeting the three men on the other side of the river.
[47] Mr. Martin stole a generator and spotlight from the fire department between September 2 and November 6, 2015. He said he felt pressure to cut back on criminal activity after the September 2incident so his income dried up. He plead to the charges in New York and was sentenced to 90 days, serving 60.
[48] Mr. Martin was interviewed with immunity by American authorities with the benefit of legal counsel on November 6, 2015 wherein Mr. Martin modified his story to include his role on the US side of the human smuggling. On discovery, he said he acknowledged that role because he knew the interrogators had information connecting him to participation in the conspiracy on the US side. At trial, he said he told the truth because of immunity and did not understand the question at the preliminary hearing.
[49] Although Mr. Martin made disclosures regarding the instant issues, he overtly lied to the interrogators about the stolen generator and spotlight. He told them he purchased these two items for $100 in good faith from a non-existent person even though he had already pleaded to the offence and served the time. Mr. Martin acknowledged he lied to them. Why, because at the time he was facing charges in Ontario for the same offence.
[50] Mr. Martin denied drug addictions. When he returned from Niagara Falls on September 6, 2015 and tried to cross into the United State, marijuana was seized from his vehicle.
[51] On discovery, Mr. Martin acknowledged that when he stole the fire station equipment he was addicted to alcohol and the objective was to procure funds to buy alcohol. At trial, Mr. Martin modified the context from pursuit of funds to buy alcohol for personal consumption to buy alcohol for his girlfriend.
[52] On discovery, Mr. Martin confirmed he did not advise Mr. McDonald as to destination. At trial, Mr. Martin was unsure.
[53] Mr. Martin denied he was under the influence of drugs during this process. He represented in a text message at 10:43 p.m. on September 1, 2015 that he had smoke, small bottle and “shrooms”. In response to a text from Ezard at 3:32 a.m. on September 2, 2015 – I’m passing out got high Martin wrote lol I’m high too. Mr. Martin denied recall of this dialogue. Notwithstanding the context for these texts Mr. Martin denied “shroom” consumption.
[54] Whether the indicated impairment 5.5 hours before the meeting with Mr. McDonald affected his perceptions and memory of the day’s events is unanswered.
Applicable Principles
Base Principles
[55] The basic premise which is fundamental to all criminal trials is that Mr. McDonald is presumed to be innocent, unless and until crown counsel proves his guilt beyond reasonable doubt.
[56] The standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence. A criminal trial is not an inquiry into what happened, or whose case is stronger. Its ultimate function is to determine whether the Crown can prove the specific allegations beyond a reasonable doubt.
[57] The presumption of innocence stays with the accused throughout the trial. The burden of proof is always on the Crown regardless of what evidence defence provides, fails to provide or chooses not to provide. Mr. McDonald does not have to prove anything.
[58] A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty, R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.). Proof beyond reasonable doubt falls closer to absolute certainty than to proof on a balance of probabilities.
Vetrovec
[59] Mr. Martin is an accomplice and of disreputable character. He lies to authorities when he thinks it is to his advantage. He was involved in criminal activities for financial gain. He changed aspects of his recollection important to Mr. McDonald between the preliminary enquiry and trial. His testimony has to be approached with care and caution.
[60] Although I am entitled to rely on Mr. Martin’s unconfirmed pertinent evidence, that would be dangerous. As a matter of common sense, something in the nature of confirmatory evidence should be found before I might rely on the stand alone evidence of a key witness who was an accomplice or complainant and of disreputable character.
[61] That said, Mr. Martin testified with protection of the Evidence Act and Charter and without offer of prosecutorial immunity; however, he testified with the same impunity on November 6, 2015 and was unable to be truthful.
Conspiracy
Applicable Principles
[62] Section 465(1)(c) provides that every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would on conviction be liable;
Immigration and Refugee Protection Act
[63] Section 117(1) provides that no person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act.
[64] Section 131 provides that every person who knowingly induces, aids or abets or attempts to induce, aid or abet any person to contravene sections 117, 118, 119, 122, 124 or 129, or who counsels a person to do so, commits an offence and is liable to the same penalty as that person.
[65] As noted statutory equivalence is admitted.
[66] The essential elements of a conspiracy are:
i. There was an agreement between two or more persons;
ii. That the agreement was to commit the offence of human smuggling across the US Canada border; and
iii. That Mr. McDonald was a member of the agreement.
The analysis of the essential elements necessarily overlap.
[67] Generally, the essence of a conspiracy is the agreement. The agreement does not need to cover every detail as to how the agreement is to be carried out or by whom. The crime that the participants agree to commit does not actually have to be committed. An agreement is the coming together/meeting of the minds of two or more people who have a common object or purpose and agree to act in furtherance of that common object or purpose. Each person’s intent is expressed by words, actions or both. In this case the object or purpose alleged is to commit the offence of bringing aliens to come to, enter in the US knowing or in reckless disregard of the fact that such activity violates the law.
[68] An accused may be a member of the conspiracy from the beginning or adhere later by joining with the knowledge of the fact and nature of the agreement. What is essential is membership, not the length of it. A person may become a member of the conspiracy without knowing all the details of the agreement or understanding, and without knowing who all the other members are.
[69] In R. v. Cotroni, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256 (SCC) 256, the Court emphasized that the important enquiry into the conspiracy is not as to the acts done pursuant to the agreement, but whether there was in fact a common agreement to which the acts are referable and to which all the alleged offenders were privy. It is not enough that 2 or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of the minds, a consensus to effect an unlawful purpose.
[70] The Crown must show beyond reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal. In Cotroni, there were multiple conspiracies. The Supreme Court could not identify common object, ergo, no meeting of the minds and no agreement.
[71] The crime of conspiracy cannot be committed by recklessness, as opposed to intention (knowledge), as to the object of the agreement or commitment to acts in furtherance of it - the Quebec Court of Appeal in R. v. Lessard (1982), 1982 CanLII 3814 (QC CA), 10 C.C.C. (3d) 61 at 86. Intention is a necessary element in order for someone to be a part of an agreement. By the same fact, one must exclude the possibility that one can commit conspiracy by mere recklessness with respect to the subject matter of the agreement, when the discussions concern a variety of possible actions.
[72] Recklessness as a state of mind involves less culpability than intention and more than criminal negligence. Intention encapsulates intentional action, foresight of the result and wanting the result. Those are elements of conspiracy. Recklessness is illustrated when the actor is aware of the potential adverse consequences to the planned actions – that he is adhering to a conspiracy to smuggle humans across international borders but goes ahead anyway, exposing the risk of harm but not actually desiring the harm foreseen. For example, Mr. Lessard was party to legitimate policy discussions but had no part in the methodology and had no knowledge of the nefarious activities his minions undertook in the name of policy. The court of appeal by excluding recklessness as to agreement or its purpose focusses the assessment on the accused’s intention to engage in the agreement, its purpose together with the intention to carry it out.
[73] Accordingly, the crime of conspiracy requires knowledge or wilful blindness, which is akin to knowledge of the subject matter of the agreement – R. v. Cedeno 2010 QCCA 2359, R. v. Farmer 2015 ONCA 823.
[74] The Supreme Court in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411 at para 21, wrote that wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge when knowledge is a component of mens rea. The doctrine of mens rea imputes knowledge to an accused whose suspicion is aroused to the point where he sees the need for further inquiries, but deliberately chooses not to make those enquiries. A finding of wilful blindness involves an affirmative answer to: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge of the fact and purpose of the conspiracy.
[75] That said, knowledge or wilful blindness as to an aspect of the purpose of the conspiracy does not by that fact achieve the required agreement. The Quebec Court of Appeal contended with the issue of adhesion to a conspiracy in R. v. Lamontagne, 1999 CanLII 13463 (QC CA), [1999] 142 C.C.C (3d) 561 at para 44, when it wrote the crime of conspiracy in s. 465 is one of intention, the essence of which is proof of the agreement. The factual and mental elements overlap, the actus reus being the fact of the agreeing and the mens rea is the true intent to put the criminal scheme into play. Adherence to an existing conspiracy is more than knowing of its existence, discussing it, having an interest in its success or even giving approval – it requires agreement to co-operate in the attainment of the evil end.
[76] In the Lamontagne circumstances it was insufficient for the Crown to prove the accused was wilfully blind as to the unlawful provenance of his load in order to prove the accused voluntarily participated in the conspiracy to possess stolen property. The trial judge concluded that the accused committed the crime of possession of stolen property. The Court of Appeal agreed reasoning this does not equate to conspiracy to achieve that purpose.
[77] In summary, it is essential that the person has an understanding of the unlawful nature of the plan, and voluntarily and intentionally joins it. An accused must actually agree and intend to agree to achieve the common unlawful purpose. Merely being present when something happens, merely acting in the same way as others or merely associating with others who are said to be members of the conspiracy does not prove that the accused has joined the agreement with knowledge of its nature and purpose. A person who knows nothing of a conspiracy, but who happens to act in a way that advances one of its purposes, does not thereby become a member.
[78] To determine beyond reasonable doubt whether Mr. McDonald was a member of the conspiracy to smuggle humans across the international border the trier is to consider all the evidence arising while the conspiracy remained in existence and in furtherance of the object or purpose of the conspiracy. To be in furtherance of the conspiracy, the words or acts must be for advancing the objects of the conspiracy, carrying forward the common design or taking steps to achieve its purpose.
[79] The evidence one considers on membership in the agreement is limited to what the accused said and did.
[80] What crime did the members of the conspiracy agree to commit? The Crown submission is that Mr. McDonald knew the purpose of transporting the three men from Ontario to Quebec across the river when confronted with it or if he did not “know” the purpose he had to be wilfully blind to it. By agreeing to undertake the task, he entered into the agreement/conspiracy to smuggle the men into the United States.
[81] Was this the crime that Mr. McDonald agreed to commit or was it something else altogether? Was Mr. McDonald a member of the conspiracy alleged? Proof of the conspiracy charged and proof that Mr. McDonald was a member thereof are different things.
Discussion
[82] Subjective knowledge of the purpose of the conspiracy is a required element of an agreement. The crime of conspiracy is one of intention, the essence of which is proof of the agreement. The agreement is not consummated until its purpose is known and the parties are committed to fulfilment. The reduced level of subjective mens rea depicted in s. 117(1), namely reckless as to knowledge of the offence does not reduce the higher level intention required to consummate a conspiracy for that purpose.
Was there an agreement?
[83] There was a conspiracy to commit the indictable offence of bringing aliens to come to, enter or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry or residence was in violation of the law. Mr. Martin was party to that agreement. Mr. Martin said he was advised the two persons were from India, in Canada with visas without passports and their target destination was the United States.
[84] The issue is whether Mr. McDonald was a party. Mr. Martin said he apprised Mr. McDonald as to the human cargo in relation to this conspiracy. Mr. Martin said he asked Mr. McDonald if he could drive a boat and whether Mr. McDonald would transport two people across, point of departure to be the easterly end of Cornwall Island. They did not discuss destination. Mr. Martin said McDonald agreed.
[85] Mr. Martin said they did not discuss vessel model, legal status of the cargo, compensation or arrangements for return passage.
[86] Mr. Martin assumed that Mr. McDonald would take the three persons from the easterly end of Cornwall Island, Ontario to Quebec. He could not say whether he and Mr. McDonald explicitly discussed the target destination. In the preliminary hearing Mr. Martin confirmed that he did not apprise Mr. McDonald as to the target destination.
[87] Mr. Martin acknowledged there could have been miscommunication between him and Mr. McDonald over the subject matter of the contraband and by inference the purpose of the conspiracy (agreement). Their two discussions were conducted in a lounge area of his step-brother’s converted garage, there could have been loud music playing and their context clandestine.
[88] Mr. McDonald’s words and actions suggest he thought he was party to a conspiracy to move three pounds of marijuana from the east end of Cornwall Island to Snye, Quebec. He synced with Mr. Martin to meet at the east end dock on Cornwall Island at 9:00 a.m. on September 2, 2015.
[89] The evidence as to Mr. McDonald’s state of mind on this issue came in the form of two spontaneous declarations, one to Mr. Martin and the other to Mr. Mitchell as well as the vessel he brought to perform his role. The Sea-Doo was an effective craft for the role he had agreed to perform.
[90] There are grounds to suspect Mr. Martin equivocated with Mr. McDonald on the subject matter of carriage. Aside from Mr. Martin’s acknowledgement concerning the possibility of miscommunication he was engaged in negotiations for the movement of pounds of marijuana at the end of August 2015 and that resonates with Mr. McDonald’s expectations.
[91] Their short discussion at the dock illuminates the cross purpose dialogue taking these men to that juncture. Mr. Martin did not challenge Mr. McDonald’s understanding of the agreement – he seemingly conceded the misunderstanding and asked if Mr. McDonald was okay with the fundamental change.
[92] I doubt that Mr. McDonald immersed himself in anything other than a conspiracy to transport three pounds of marijuana from Cornwall Island to Quebec. Mr. Martin acknowledged the real prospect of misunderstanding his purpose. That resonates with no discussion as to compensation, the Sea-Doo, Mr. McDonald’s comments to Martin and Mitchell. At a minimum, Mr. Martin obscured the purpose of the project from Mr. McDonald.
[93] From Mr. McDonald’s perspective, the delivery of marijuana was civic service. Three pounds of marihuana would service his community for a period of time. He did not require compensation or, if any, a discretionary amount. The Sea-Doo was the right vessel. He said as much to Mr. Martin and Mitchell.
[94] The Crown suggested that the money transfer of $1K from Mr. Martin to Mr. McDonald is evidence of participation in the conspiracy alleged. The recovery of the money in the water is circumstantial evidence consistent with money floating from the passengers or Mr. McDonald. It makes sense that Mr. McDonald would have placed the money in the water-tight compartment with the cell phone. Secondly, it would be dangerous to accept Mr. Martin’s assertion of payment as he described it. He was in this to fund addictions. I do not accept he would hand over the entire proceeds in that context. That was untrue. That he intended to collect an extra payment from the confederate was another prevarication. Accordingly, that assertion is flawed.
[95] To succeed the Crown need contend with the likely fact that until shortly after 9:00 a.m. on September 2, 2015, Mr. McDonald knew nothing about the other conspiracy.
[96] The question is whether the only rational inference that can be drawn from the whole of the evidence is that Mr. McDonald knew and agreed at that moment on the spot to perform a role in the conspiracy to smuggle the three men into the United States. The Crown submits as the only rational inference, that Mr. McDonald, as resident of Akwesasne, would have immediately and implicitly realized that the only rational reason for transporting the three men to Snye was to facilitate unauthorized entry in to the United States and by agreeing to undertake carriage, he joined the conspiracy.
[97] The Crown adduced evidence from Detective King to the points:
- that Snye is not a prime vacation or sight-seeing venue; and
- Akwesasne is border territory and smuggling is a common phenomenon
in the context that Mr. McDonald would have, as resident, made the immediate inferences of human smuggling. That is one possibility.
[98] I begin with the context that Mr. McDonald knew nothing about the conspiracy to smuggle the three Indian Nationals into the United States. He knew nothing of the back story, their destination or whether there was another plan for their return.
[99] The evidence is that Mr. McDonald had a moment to decide on the spot whether to load the three men or leave empty. He did not have the leisure of reflection as to the provenance or prospects for the three men.
[100] In other circumstances, and had he time for reflection, the argument for knowledge or wilful blindness to the purport of the situation might be more attractive. That said, I eschew categorically the stereotypical inference that the only rational reason an alien would visit Snye would be to exploit open border encroachment or that would be the spontaneous inference.
[101] In my view it was more likely that Mr. McDonald did not advert to the provenance, or prospects for the three men nor to the existence of an agreement to which he might by this undertaking adhering.
[102] The most that could be said about Mr. McDonald’s engagement in the passage to Quebec is that he was negligent as to the existence of an agreement and its purpose. I recognize that a reasonable person’s curiosity would be aroused and without more information there were grounds for suspicion of the risk this passage was part of something bigger. Although we now know that Mr. Martin sincerity /reliability are corrupted by unmitigated pursuit of self-interest unless confronted by dispositive evidence – cell records, toll booth records, border crossing records, at the time he was an unknown to Mr. McDonald other than as extended family to the step-brother. It would be natural, not unreasonable to extend some trust, assume legitimacy of the undertaking and refrain from making enquiry.
[103] Further, Mr. McDonald’s situation is not much different from that of Mr. Lamontagne. In order to adhere to an existing conspiracy, more is required than knowing of its existence, discussing it, having an interest in its success or even giving approval – it requires agreement to co-operate in the attainment of the evil end. Mr. McDonald was never apprised of any of those elements of an agreement. Mr. McDonald was not privy to the provenance or the prospects for the three men, innocent or culpable, nor to the existence of conspiracy to smuggle them into the United States.
[104] The circumstances in which Mr. McDonald entered the logistical pathway contraindicates knowledge or wilful blindness or even recklessness as to their provenance and prospects. I am not persuaded that Messrs. Martin and McDonald ever achieved the required meeting of minds in furtherance of the human smuggling conspiracy.
Conclusion
[105] The Crown has not proven Mr. McDonald was part of the particular conspiracy alleged and is acquitted of that charge.
Criminal Negligence causing death/manslaughter
Applicable Principles
[106] The offence of criminal negligence is defined in s. 219 of the Criminal Code as follows:
Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that 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.
[107] Criminal act manslaughter requires conduct which causes the death of another person and fault short of intention to kill. The fault may derive from criminal negligence. A finding that Mr. McDonald was criminally negligent causing the death of the two men results in manslaughter pursuant to s. 234 of the Criminal Code as the predicate offence of criminal negligence causing death involves a dangerous act.
[108] The issue is whether the Crown proved beyond reasonable doubt, that what Mr. McDonald did or failed to do was a marked and substantial departure from what a reasonably prudent person would do in the same circumstances and whether by attempting the crossing in the circumstances described showed wanton and reckless disregard for the lives or safety of the others.
[109] The first question is whether the actus reus is established; that is, whether the negligence constitutes a marked and substantial departure from the standards of the reasonably prudent person in all the circumstances of the incident.
[110] The legal standard of care for criminal negligence causing death is what a reasonable person would have done in all the circumstances. That standard encompasses regulatory requirements.
[111] The next question is whether mens rea is established. The test for mens rea of criminal negligence causing death and unlawful act manslaughter is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. The words “wanton or reckless disregard’ import a cognizance of risk and the subjective fault element. There has to be some degree of awareness or advertence by the accused to the threat to the lives or safety of others. Mens rea is to be assessed objectively in the context of all the events surrounding the incident. In most cases, the mental element can be inferred from the accused’s conduct or omissions.
[112] Mr. McDonald did not testify as to his subjective perception of the circumstances. No evidence was led of any special circumstances that could have obscured Mr. McDonald’s perceptions of the risk inherent in the circumstances of the undertaking.
[113] Justice Watt’s Final 220 unpacks the requisite act/omission, intention and causation for criminal negligence causing death into essential elements as follows:
i. That Mr. McDonald undertook operation of the Sea-Doo in inherently dangerous circumstances and failed to take reasonable precaution for the safety of the passengers such that what he did or failed to do was a marked and substantial departure from what a reasonably prudent person would do in those circumstances;
ii. That Mr. McDonald’s duty as operator of the Sea-Doo was to have the requisite competence to operate, to ensure compliance with safety regulations and to be familiar with the capabilities of the vessel such that his failings showed a wanton and reckless disregard for the lives and safety of the passengers; and
iii. That Mr. McDonald’s conduct caused the death of the two men.
Principles Applied
[114] The facts are not controversial. This incident occurred in Canadian waters. Mr. Mitchell observed the entire episode. Mr. McDonald had care and control of the Sea-Doo. He was the master of the craft. He permitted three men to board the Sea-Doo. When the Sea-Doo left shore it was back heavy, sitting low in the water and incapable of achieving plane. The craft turned to starboard twenty-five or so feet from shore and capsized. No one on board was wearing a life jacket. There was one life jacket on board and it was practically inaccessible.
Duty
[115] Mr. McDonald breached his duties as craft operator.
[116] The operation of a personal water craft – all water craft in all jurisdictions - is highly regulated. The operator of a water craft undertakes significant responsibility. Boating is inherently dangerous and operational safety is a central component of regulation. No person shall operate a vessel in Canadian waters unless:
- The person has been issued a Pleasure Craft Operator Card. A person who is not a resident of Canada is competent to operate a water vessel if he/she has a similar certificate from that person’s state or country – SOR/99-53;
- The safety equipment required in Small Vessel Regulation SOR/2010-91 is carried on board. The Sea-Doo is a pleasure craft. The operator of a pleasure craft is required to take all reasonable steps to ensure the safety of the craft and every person on board – Part 2 – 101. A pleasure craft shall carry on board a personal safety device or lifejacket of an appropriate size for each person on board. It is the duty of the operator to know the capabilities of the vessel under his/her control.
[117] Mr. McDonald did not have a pleasure craft operator card. There is no evidence of any vessel operation training. Technically, he was not competent to operate the Sea-Doo. There is no evidence before the Court regarding Mr. McDonald’s boating experience and expertise. On the one hand, that he operated the vessel without the requisite licence is not necessarily evidence of operational negligence.
[118] On the other, pleasure craft boating is inherently dangerous with little room for error and significant risk. Mr. McDonald operated the loaded Sea-Doo without the benefit of competency lessons. That might be of little consequence were there evidence of extensive experience on the water. As it is, the only conclusion can be that Mr. McDonald was not competent to operate a water craft on Canadian waters. The competency course is designed to teach reasonable standards of operation.
[119] There was one life jacket on board and it was inaccessible. He took no steps to ensure the safety of the passengers. The passengers did not speak Mr. McDonald’s language. He failed to instruct the passengers about required emergency procedures.
[120] The identification officer peeled the camouflage laminate that covered the load and weight limits for the Sea-Doo to show a rating of maximum of three persons and weight limit of 540 pounds. As noted in my reasons for rejecting that evidence as reliable on the issue of safe operation, those limitations are not dispositive.
[121] That said, if Mr. McDonald was unaware of the rating, he was not properly self-informed of vessel capabilities.
[122] Regardless of load rating, the Sea-Doo was overloaded with the three passengers. Mr. Mitchell observed that the craft was unbalanced. The nose was too high out of the water and aft too deep in the water. There was too much weight in the aft section. The Sea-Doo did not get to plane before capsizing. Mr. McDonald never gained command of the Sea-Doo operation. Mr. McDonald acknowledged this to the paramedic and hospital emergency staff.
Actus reus – marked and substantial departure from the standards of the reasonably prudent person in all the circumstances of the incident.
[123] I concur with Crown counsel to the point that the analysis in this case is less about manner of operation than the circumstances of operation. This assessment is not analogous to the operation of a car on a highway where factors such as the nature, condition and use of the highway, the amount of traffic that might be expected play into whether the driving was dangerous to the public. The Sea-Doo capsized twenty-five feet from dock immediately after departing.
[124] The actus reus of criminal negligence causing death is made out. Water is unpredictable with severe consequences and demands the utmost respect. The greater the risk the higher the duty of care.
[125] The fact of the deaths is not a factor in this analysis.
[126] Mr. McDonald shirked his obligations as operator to take precautions to ensure reasonable safety of the passengers. He boarded three passengers and departed the safety of shore without flotation devices. The omission that was the life jackets on any vessel is a serious departure from acceptable standards. In the case at bar, the life jacket omission was exacerbated by the overloading of the Sea-Doo. Mr. McDonald did not assess the safe passenger and weight limits for the Sea-Doo or, if he did, disregarded the results. The fatal capsize, in the circumstances, was inevitable. If the passengers were outfitted with lifejackets the risks inherent in overloading could be mitigated. The life jacket omission was fatal.
Mens rea - objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act.
[127] The reasonable person would foresee risk of the drownings inherent in the circumstances before the Court. A person functioning with normal faculties of awareness and engaging in conduct which represents a grave departure from the norm is either aware of the risk or is wilfully blind to the risk. That Mr. McDonald forsook the safety of shore and entered the waterway with all of its inherent dangers without training, overloaded, without life jackets or discussion about emergency procedures showed a wanton and reckless disregard for the lives and safety of the passengers.
[128] This was not a mere accident or momentary lapse in attention.
Causation
[129] Mr. McDonald’s breaches of duty put those men in a situation of extreme danger. Two died as the result.
Conclusion
[130] The Crown proved the essential elements of criminal negligence causing death and criminal act manslaughter beyond reasonable doubt. Mr. McDonald is accordingly found guilty of two counts of criminal act manslaughter in the deaths of Ravikant Patel and Parthkumar Patel and one breach of probation.
The Honourable Mr. Justice Rick Leroy
Released: March 5, 2018
COURT FILE NO.: CR-17-026
DATE: 2018/03/05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Louie McDonald
REASONS FOR JUDGMENT
The Honourable Mr. Justice Rick Leroy
Released: March 5, 2018