Citation: R. v. Delorey, 2010 NSCA 65
Date: 20100722
Docket: CAC 321742
Registry: Halifax
Between:
Kyle Anthony Delorey
Appellant
v.
Her Majesty the Queen
Respondent
Judge(s): Oland, Beveridge and Farrar, JJ.A.
Appeal Heard: June 14, 2010, in Halifax, Nova Scotia
Held: Appeal against conviction allowed and a new trial before a different judge ordered per reasons for judgment of Oland, J.A.; Beveridge and Farrar concurring.
Counsel: Adam D. Rodgers, for the appellant
Mark A. Scott, for the respondent
Reasons for judgment:
[1] On June 4, 2008 a vehicle driven by the appellant Kyle Anthony Delorey left the highway at Cape George, Antigonish County and, after severing a power pole, came to rest. As a result of the accident, one of his passengers died and another sustained injuries amounting to bodily harm. Justice Douglas L. MacLellan found the appellant guilty of dangerous driving causing bodily harm and dangerous driving causing death (Criminal Code s. 249(3) and 249(4) respectively). His decision is reported as 2010 NSSC 161.
[2] The appellant appeals his conviction. For the reasons which follow, I would grant his appeal.
Background
[3] On June 4, 2008, the appellant took his car to Ron MacGillivray Chevrolet Olds for repairs. The dealership provided him with a courtesy or loaner vehicle, a 2005 Chevrolet Cobalt, which the appellant took out late that afternoon.
[4] The appellant and his then girlfriend, Kai-Lee Walsh, drove the loaner to the home of Robert MacEachern in Lakeville. The three of them, together with Mr. MacEachern’s brother, Patrick MacEachern, and the appellant’s sister, Andrea Delorey, later went to Arisaig. The appellant drove, with Ms. Walsh in the front passenger seat, and the MacEachern brothers and Ms. Delorey in the back seat. After Arisaig, the group went to Malignant Cove and they visited Danny MacLellan. They started back to Robert MacEachern’s home in Lakeside several hours later. The appellant drove and the rest were seated in the car as earlier.
[5] It was during this drive, in the dark, that the car left the highway, became air borne, hit the ground a number of times and broke a power pole. Only Ms. Walsh was wearing a seat belt. The others were thrown from the vehicle. Robert MacEachern injured his back and broke his collar bone. Patrick MacEachern died of his injuries.
[6] The trial on the charges of dangerous driving causing death and bodily harm took three days. The issues related to the speed of the vehicle driven by the appellant, any consumption of alcohol by him, the condition of the tires on the loaner vehicle, and the weather and road conditions at the time. The trial judge heard evidence from passengers Robert MacEachern, Kai-Lee Walsh and Andrea Dorey. He also heard the testimony of (a) RCMP Corporal Allan Murphy who was qualified to give expert opinion evidence as a motor vehicle reconstructionist; (b) Heather Copley, qualified as an expert as a forensic alcohol specialist; (c) Dale Faulkner, a mechanical engineer and an expert on the retrieval of information from the electronic data recorder (EDR) in the appellant’s car; (d) Joseph Bowden, the service manager at Ron MacGillivray’s Chevrolet; (e) Phillip Reddy, the RCMP lead investigator; and (f) David Sinclair, an expert in auto mechanics.
[7] In his decision, the judge dealt with each of the issues in turn. With respect to the speed of the vehicle driven by the appellant, he stated:
[26] Based on all the information received on the issue of the speed of the accused’s car at the time of the accident I conclude as follows:
(1) That a number of the occupants of the car were concerned about its speed. Kai Lee Walsh said she was so scared she would not look out the windshield. Robert MacEachern said he looked at the speedometer and it showed speeds in excess of 100 kilometers per hour. Kai Lee Walsh said that she heard someone in the back say something about the approaching turn and that Andrea Delorey told Kyle to slow down.
(2) The evidence of Cpl. Murphy on the reconstruction of the accident scene establishes that the car travelled a long distance, about 128 metres, after apparently losing control. It travelled 54 metres after leaving the highway, a lot of which time it was airborne. It then struck a power pole at a height of 1.6 metres from the ground and severed the pole before coming to rest. I conclude that in order to still have the force to sever the power pole after travelling that distance the vehicle must have been travelling very fast prior to it leaving the highway.
(3) The evidence of Dale Faulkner normally would be conclusive about the speed of the car. However, the high rate of speed as recorded by the EDR is somewhat challenged by the evidence of the two mechanics who doubted that the 2005 Cobalt could actually attain speeds of 190 kilometers per hour. I conclude however, that Mr. Faulkner’s evidence about the data retrieved from the EDR is evidence of high speed.
[27] Based on this evidence I conclude that the accused drove his vehicle at a high rate of speed prior to it leaving the highway. Certainly, it was far in excess of the posted speed limit of 80 kilometres per hour.
[8] The judge found that the alcohol in the appellant’s system at the time of the accident would have an effect on his ability to operate the vehicle. In regard to the condition of the tires, he stated:
[40] Kai Lee Walsh testified that when she was picked up by the accused between 5:00 and 6:00 p.m. on June 4th, 2008, that while they were at his mother’s place Mr. Delorey said something about the tires on the car. He also complained about not having gas in it when he picked it up. The only evidence I have about the accused’s knowledge about the condition of the tires on the vehicle is this testimony from Ms. Walsh.
[41] Clearly, if the accused was aware of the condition of the tires when he picked up Ms. Walsh that would show that he drove the car very fast on a wet road and would clearly constitute driving in a manner dangerous to the public, being the occupants of his car. However, even if I do not conclude that he knew about the condition of the tires I would suggest that he should have checked the tires before he started driving the car.
He found that it had been raining the night of the accident.
[9] The judge concluded:
[43] Based on the evidence of the speed of the accused’s car, his blood alcohol content at the time of the accident, and the condition of the tires on the vehicle, along with the road conditions at the time, I conclude that I am satisfied beyond a reasonable doubt that the accused drove his vehicle in a manner that was dangerous to the public because his driving amounted to a marked departure from the standard of care that a reasonable person would do in the circumstances. I also conclude that his driving in this manner caused his vehicle to leave the highway and strike the power pole. . . .
[44] I find that the Crown has proven all of the elements of the offence of dangerous driving causing death and dangerous driving causing bodily harm and find the accused guilty of both counts.
Issues
[10] The appellant raised several issues which can be combined and restated as follows:
(a) Whether the judge failed to give adequate reasons for finding the evidence of Robert MacEachern and of Kai‑Lee Walsh to be credible;
(b) Whether he failed to adequately explain why he disagreed with the evidence and conclusions of the expert accident reconstructionist, Corporal Glen Murphy;
(c) Whether he misapprehended the evidence with respect to the speed of the vehicle, its electronic monitoring system, and the impact of impairment on the appellant’s driving; and
(d) Whether he erred in assigning responsibility to the appellant to inspect the tires on the loaner vehicle.
Analysis
Dangerous Driving
[11] Before I deal with the issues on appeal, it would be helpful to review the law on the offence of dangerous driving. Section 249 of the Criminal Code provides:
249. (1) Dangerous operation of motor vehicles, vessels and aircraft – Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
. . .
(3) Dangerous operation causing bodily harm – Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
(4) Dangerous operation causing death – Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
[12] The leading decision on dangerous driving is R v. Beatty 2008 SCC 5. There the pick-up truck driven by the appellant had suddenly crossed about half a metre into the other lane and struck an oncoming vehicle, killing all three occupants. Witnesses had observed the appellant’s car being driven properly and at the posted speed limit immediately prior to the accident which happened very quickly or “instantaneously”. The vehicle had not suffered from a mechanical failure, and intoxicants were not a factor.
[13] The trial judge instructed herself according to the test laid out in R. v. Hundal, [1993] 1 S.C.R. 867. She found that the driver had had a momentary lapse of awareness or attention. She determined that a few seconds of negligent driving, in the absence of something more, was insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver. The British Columbia Court of Appeal found error in the approach taken by the trial judge. It stated that the right question was whether crossing the centre line into the path of oncoming traffic at 90 kilometres an hour, on a well-travelled highway was objectively dangerous. It held that driving that way was clearly a “marked departure” from the standard of care a reasonable person would observe in the accused’s situation and overturned the driver’s acquittal.
[14] The Supreme Court of Canada allowed the driver’s appeal and restored his acquittal. Charron J. writing for five judges emphasized the important difference between civil negligence and penal negligence, and the burden on the Crown to establish not only the actus reus but also the mens rea:
6 . . . Unquestionably, conduct which constitutes a departure from the norm expected of a reasonably prudent person forms the basis of both civil and penal negligence. However, it is important not to conflate the civil standard of negligence with the test for penal negligence. Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concerns itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender’s mental state. The onus lies on the Crown to prove both the actus reus and the mens rea. . . . Moreover, where liability for penal negligence includes potential imprisonment, as is the case under s. 249 of the Criminal Code, the distinction between civil and penal negligence acquires a constitutional dimension.
She continued:
7 The modified objective test established by this Court's jurisprudence remains the appropriate test to determine the requisite mens rea for negligence‑based criminal offences. As the label suggests, this test for penal negligence "modifies" the purely objective norm for determining civil negligence. It does so in two important respects. First, there must be a "marked departure" from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.
8 Second, unlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonable person in the accused's position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care. Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact. This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished.
[15] Charron J. observed that in Hundal, supra the Court had considered whether the requirement for mens rea called for a subjective or objective test in respect of the negligence-based offence of dangerous driving, and determined that a modified objective test was appropriate. In Beatty, supra Charron J. largely affirmed and clarified the test set out in Hundal, supra. She restated the modified objective test thus at ¶ 43:
(a) The Actus Reus
The trier of fact must be 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 the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place".
(b) The Mens Rea
The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.
[16] Whether the trial judge identified and applied the correct test is central to the analysis of his decision, particularly in regard to the last issue on appeal.
Insufficient Reasons
[17] The first two issues on appeal assert a failure by the judge to give adequate reasons for finding the evidence of Robert MacEachern and of Kai-Lee Walsh to be credible, and to explain why he disagreed with the conclusions of Corporal Murphy, the expert accident reconstructionist. I will deal with these in order.
[18] In his decision, the judge recounted the evidence of Robert MacEachern and Kai-Lee Walsh with regard to the speed of the vehicle driven by the appellant. The appellant submits that he did not explain whether he believed that evidence and, if so, why he believed it. He argues that there were important questions of credibility that were not resolved, or even addressed, in the judge’s decision.
[19] The appellant emphasizes that Robert MacEachern testified that he had been drinking beer and smoking marijuana that day and that he was moderately intoxicated. The witness did not recollect that he told the first officer to whom he gave a statement that he and his brother had been hitch hiking and that he did not know who owned the car. In later interviews with Corporal Reddy, Mr. MacEachern added details not given earlier and did not mention details included in his evidence at trial. Under cross-examination at trial, he insisted that he remembered how the car was being driven.
[20] The appellant points out that Kai-Lee Walsh told Corporal Reddy on June 22, 2008, less than three weeks after the accident, that all she could remember was leaving Robert MacEachern’s home and then waking up, front seat belted, after the crash with no recollection of intervening events. At the preliminary inquiry, she did not remember anything about going to Arisaig or to Danny MacLellan’s, or the appellant driving fast and she being scared to look and having her head down. Asked under cross-examination to explain her memory, Ms. Walsh testified that when looking at her computer a little while ago, pictures of the night at Mr. MacLellan’s house had jogged her memory.
[21] In R. v. R.E.M., 2008 SCC 5, McLachlin C.J. for the Court considered the adequacy of reasons of a trial judge on the credibility of witnesses in a criminal trial. She stated:
28 In R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, this Court allowed a Crown appeal of an appellate decision in which an error of law had been found on the basis of insufficiency of reasons. The majority, per Bastarache and Abella JJ., found that the appellate court had ignored the trial judge's unique position to see and hear witnesses. It had instead substituted its own assessment of credibility for the trial judge's view by impugning the reasons for judgment for not explaining why a reasonable doubt was not raised. Bastarache and Abella JJ. observed, at para. 20:
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.
...
And later:
49 While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.
[22] The appellants argue that the decision of the trial judge fails to meet the test for sufficient reasons as set out in R.E.M. at ¶ 35:
[35] In summary, the cases confirm:
(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, at p. 524).
(2) The basis for the trial judge's verdict must be "intelligible", or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge's process in arriving at the verdict is unnecessary.
(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the "live" issues as they emerged during the trial.
This summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles.
[23] With respect, I am not persuaded that the trial judge failed to provide sufficient reasons. An appellate court reviewing reasons for sufficiency is to proceed with deference based on the proposition that the trial judge is in the best position to determine matters of fact and credibility. Here the trial judge recognized that the credibility of Mr. MacEachern and Ms. Walsh was a live issue and important to his determination on the speed of the vehicle. In his decision, the judge expressly referred to Mr. MacEachern’s testimony as to his drinking and smoking marijuana that night, and his limited testimony at the preliminary inquiry. He also referred to Ms. Walsh’s explanation as to why her memory had improved since preliminary inquiry. His reasons do not detail precisely how he reached his conclusion as to credibility. However, it was not essential that they do so. The functional approach calls for reasons which, examined in their entire context, are sufficient to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal. The judge’s decision accomplished these objectives. I would dismiss this ground of appeal.
[24] I then turn to the appellant’s submissions on the second issue which pertains to the evidence of Corporal Murphy, the accident reconstructionist. Since the skid marks had deteriorated from the rain prior to his arrival, this expert was unable to determine the actual speed of the vehicle. However, based on the fact that the car lost traction with the surface of the road, travelled another 54 metres after becoming airborne, and hit the pole with such force that it broke, it was his opinion that the vehicle would have been travelling faster than the posted speed limit of 80 km per hour. Corporal Murphy identified the weather conditions, the condition of the tires, and the seat belts not having been worn as the factors which contributed to the fatal injuries.
[25] Following his cross-examination, the judge asked the expert several questions regarding his interpretation of the skid marks, the seat belts, the car going off the road on the left rather than the right side after going around a left hand turn, and the effect of bad tires. The appellant submits that this exchange shows that the judge had had significant difficulties with the expert’s report, his evidence and his conclusions, and that the judge failed to resolve these matters in his decision.
[26] While the appellant describes this ground of appeal as a failure to provide sufficient reasons, it would more accurately be characterized as contradictions between the judge’s reasons and the evidence of Corporal Murphy. With respect, I can find no contradictions as alleged by the appellant. An examination of the record shows that the expert provided explanations to clarify the matters raised by the judge. In essence, the appellant is arguing that the judge had to determine exactly what happened when the car left the road. However, a judge at a criminal trial is not required to resolve the broad factual questions of what happened, but only to decide whether the essential elements of the charge have been proved beyond a reasonable doubt. See R. v. Pittiman, 2006 SCC 9 at ¶ 8; R. v. Mah, 2002 NSSC 99 at ¶ 41. I would dismiss this ground of appeal.
Misapprehension of the Evidence
[27] The third issue asserts a misapprehension of evidence in regard to credibility and as provided by expert evidence. The standard of review is that summarized in R. v. Peters, 2008 BCCA 446 :
Material misapprehension of the evidence can justify appellate intervention. The standard is a stringent one: the misapprehension of the evidence must go to the substance rather than to the detail; it must be material to the reasoning of the judge and not peripheral; and the errors must play an essential part not only in the narrative of the judgment but in the reasoning process itself. If this standard is met, appellate intervention is justified, even if the evidence actually does support the conclusion reached: see R. v. C.L.Y., [2008] 1 S.C.R. 5 at para. 19 and R. v. Lohrer, [2004] 3 S.C.R. 732 at paras. 1‑2, both citing R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 221.
See also the decision of this court in R. v. Miller, [1999] N.S.J. No. 17.
[28] The appellant’s arguments in regard to misapprehension of the evidence in regard to credibility largely repeat those pertaining to Robert MacEachern and Kai-Lee Walsh already addressed in my consideration of the first ground of appeal which claimed insufficient reasons. In arguing misapprehension, the appellant adds details from testimony given by the appellant’s sister, Andrea Delorey, Daniel MacLellan and residents of the area, which were not mentioned in the decision.
[29] On misapprehension of expert evidence, the appellant refers to the evidence of Corporal Murphy which has already been addressed under the second ground of appeal. He also raises certain aspects of the testimony of Mr. Faulkner, the expert on the retrieval and analysis of data from the EDR in certain vehicles, and that of Heather Copley on the effect of impairment. The appellant faults the judge for failing to state that the data retrieved from the EDR, which is only for the five seconds prior to a non-deployment event which does not engage the airbags, was not generated while the vehicle was on the road, but rather when it was in the air. He argues that while Ms. Copley gave evidence on the particular effects of low levels of impairment, the judge concluded that the appellant’s alcohol intake had an effect on his ability to operate the vehicle without mentioning the particular effects described by the expert.
[30] In his decision, the judge observed that on cross-examination Mr. Faulkner acknowledged that, since the EDR recorded the speed from the transmission, the wheels of the vehicle could be turning but not touching the ground. He also pointed out that two mechanics challenged the EDR recorded speed. Moreover, there was evidence, other than that by Mr. Faulkner, which supported the judge’s finding as to the speed of the vehicle. The judge accepted Ms. Copley’s tests that showed the appellant’s blood alcohol readings at the time of the accident as between 72 to 112 milligrams of alcohol in 100 millilitres of blood. His conclusion that this level would have an effect on the ability to drive, which is a divided attention activity, in the dark and rain on a curving road, is not unreasonable.
[31] After a careful review of the record, I am not persuaded that the appellant has shown significant errors in the trial judge’s understanding of the substance of the evidence. There has been no misapprehension of the evidence which could lead to a miscarriage of justice. I would dismiss this ground of appeal.
Condition of the Tires
[32] The appellant submits that the trial judge erred in assigning responsibility to the appellant to inspect the tires on the loaner vehicle provided by the dealership. In his decision, the judge summarized the evidence on the condition of the tires:
[34] The tires. Evidence presented in this trial indicate that after the accident the front tires on the car driven by the accused were examined and shown to be in very bad condition. David Sinclair examined the tires and measured the amount of wear left on them. He testified that the rear tires were like new but that the left front tire had 3/30 seconds of tread left while the right front tire had 0-1/30 second left. He said the tires should not have been on the car and they would not pass a safety inspection. To pass safety inspection the tires would have to have about 5/30 seconds of tread on them. I have before me Exhibit 4 which contains photos 13 and 14 of the front tires.
[35] Defence counsel suggests that the accused should have expected the tires on the loaner car to be suitable for driving and the fault for the bad tires rests with the garage which provided the car. Mr. Bowman on behalf of the garage testified that he did not notice bad tires when the car was provided to Mr. Delorey and that new tires had been installed on that vehicle in January 2008. The records introduced into evidence indicate that between January 2008 and June 2008 it would appear that about 4,000 kilometers were put on the car. That would normally not cause the tires to be in the shape they were in on June 4th at the time of the accident, unless the tires were abused by hard driving or spinning them from a stopped position a number of times.
He then considered the evidence as how the loaner vehicle was used before it was delivered to the appellant and how the appellant had driven it during the hours he had it, before the accident. The judge was not able to conclude that the appellant’s driving caused the tires to be as worn as they were after the accident.
[33] The judge then observed that the only evidence as to the appellant’s knowledge of the condition of the tires was Ms. Walsh’s testimony that he had said “something about the tires on the car”. He continued:
[41] Clearly, if the accused was aware of the condition of the tires when he picked up Ms. Walsh that would show that he drove the car very fast on a wet road and would clearly constitute driving in a manner dangerous to the public, being the occupants of his car. However, even if I do not conclude that he knew about the condition of the tires I would suggest that he should have checked the tires before he started driving the car. (Emphasis added)
[34] The trial judge considered the condition of the tires a critical factor in finding the appellant guilty of dangerous driving. The combination of speed, impairment and road conditions alone were not enough to satisfy him beyond a reasonable doubt. For convenience, I again set out his conclusions:
[43] Based on the evidence of the speed of the accused’s car, his blood alcohol content at the time of the accident, and the condition of the tires on the vehicle, along with the road conditions at the time, I conclude that I am satisfied beyond a reasonable doubt that the accused drove his vehicle in a manner that was dangerous to the public because his driving amounted to a marked departure from the standard of care that a reasonable person would do in the circumstances. I also conclude that his driving in this manner caused his vehicle to leave the highway and strike the power pole. (Emphasis added)
[44] I find that the Crown has proven all of the elements of the offence of dangerous driving causing death and dangerous driving causing bodily harm and find the accused guilty of both counts.
[35] The judge correctly stated that the legal standard for a charge under s. 249(3) of the Code was that in Beatty, supra. He quoted the passage wherein Charron J. set out the two essential elements of the offence, the actus reus and the mens rea. For convenience, I set out that portion pertaining to the mental state of the accused with which the trier of fact must be satisfied:
(b) The Mens Rea
The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.
[36] It is clear that the necessary mens rea for this offence is to be determined “on the basis of all the evidence”, including any as to the accused’s actual state of mind. In his decision, the trial judge referred to the only evidence which could show actual knowledge of the condition of the tires, namely, that of Ms. Walsh. He did not proceed to find that the appellant had had actual knowledge that the front tires did not have enough tread. Nor did he determine that the appellant had been reckless or wilfully blind in this regard.
[37] According to the modified objective test as set out in Beatty, supra, where an explanation is offered, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved. Here the defence had put forward the explanation that, according to George Sinclair, the mechanic who inspected the vehicle the day after the accident, the tires on the loaner vehicle the dealership provided to the appellant on the day of the accident were below minimum standards and that according to Corporal Murphy, the accident reconstructionist, the tires contributed to the accident. According to Mr. Sinclair, to meet safety standards, the minimum tread depth is five or six thirty-seconds of an inch. The front left tire on the loaner vehicle had three thirty-seconds and the right front was zero thirty-seconds to one thirty-second. Mr. Sinclair testified that the right front tire was “completely wore out”, one could actually see the steel belts on the tire, and “if it would have wore anymore you would have seen the air inside of it.”
[38] Joseph Bowman, an auto mechanic by trade, had been at Ron MacGillivray Chevrolet for 31 years and its service manager since 1997. He testified that he walked by and took a look at the loaner vehicle on the very day it was provided to the appellant. His general check includes tires and if he had seen a tire worn out he could “almost guarantee” that it would have jumped out at him. He would have noticed it. He did not recall seeing any problem.
[39] At trial, the Crown did not urge that the appellant knew or ought to have known that the front tires were so bald they would not have passed safety inspection. Rather, it argued that the appellant had driven the loaner vehicle very hard that day, and that his manner of driving had contributed to the wearing of the tires. As indicated earlier, the judge did not accept this theory.
[40] Not having found that the appellant had any actual knowledge on the condition of the tires, and the appellant having offered an explanation, the judge was obliged under the modified objective test set out in Beatty, supra to determine whether a reasonable person in similar circumstances ought to have known or been aware of the risk, namely the poor state of the tires, and of the danger involved in driving as he did. Did the judge do so? In his reasons, he did not expressly find that the appellant should have checked the tires before he started driving the loaner vehicle. The judge only suggested this. His use of the phrase “I would suggest”, with its less than definitive wording, could be interpreted as a failure to make the requisite determination. Were that the case, this would constitute an error in law.
[41] However, the judge’s finding that the appellant was guilty of dangerous driving was based on the four components he specified in ¶ 43 of his decision. These were the speed of the appellant’s vehicle, his blood alcohol content at the time of the accident, the condition of the tires, and the road conditions at the time. The inclusion of the state of the tires, in combination with his suggestion that the appellant should have checked the tires before he started driving the car, persuades me that the judge did decide that the appellant ought to have made himself aware of the condition of the tires and the associated risk.
[42] Before the hearing of the appeal, the court was not provided with any criminal jurisprudence that indicated that a person taking delivery of a loaner vehicle from a car dealership has a duty to inspect its tires before driving it. The appellant could not locate any. The Crown produced only civil negligence cases where liability and damages were in issue. For example, Galaske v. O’Donnell, [1994] 1 S.C.R. 670 dealt with a driver’s duty to ensure that children under 16 wear seat belts regardless of the presence of a parent. At ¶ 16, Cory J. for the majority stated:
16 Is there then a sufficiently close relationship between the driver of a motor vehicle and his passengers to establish a prima facie duty of care? I think that there undoubtedly is such a relationship. A driver owes a duty of care to his passengers to take reasonable steps to prevent foreseeable injuries. For example, a driver must comply with the rules of the road; a driver must exercise reasonable caution in the operation of a motor vehicle; a driver must not operate a motor vehicle that is known to be mechanically defective, for example without brakes or headlights or an adequate steering mechanism.
In Rintoul v. X-Ray & Radium Industries Ltd., [1956] S.C.R. 674 the driver claimed that the vehicle which he was driving had rear-ended another because the service brakes failed. He testified that the day before the accident, he had work done on its brakes at a garage. The driver and his employer which owned the vehicle raised the defence of inevitable accident. The Court held that the respondents had not only failed to show that the alleged failure of the brakes was inevitable but also that, after such failure occurred, the driver could not, by the exercise of reasonable care, have avoided the collision.
[43] After the hearing of the appeal, the Crown provided R. v. L(K), 2009 ONCA 141. There the appellant youth had been convicted of dangerous operation of a motor vehicle causing death. About a month before the accident, his mother had purchased a used car which was then certified by a licensed mechanic as compliant with provincial safety standards. It was not - the tread on both front tires was worn well below minimum standards, and both the front and rear braking systems had significant defects. The appellant had pulled out and accelerated to more than twice the posted speed limit to pass the vehicle in front of him, when he had to brake. Not all the brakes locked sufficiently or evenly, and the car struck a cyclist.
[44] While some of the factual elements in L(K) are similar, I do not find the decision helpful. The issue on appeal in that case was with respect to causation. The appellant specifically acknowledged that the manner he drove his vehicle was dangerous (see ¶ 21). The court found that there was no intervening act to break the chain of causation between the appellant’s conduct and the fatality. Here the trial judge found that it was the combination of alcohol consumption, speed, and driving in wet road conditions with bald tires that he should have known about, but did not, that constituted a marked departure from the acceptable standard of care.
[45] In my view, an examination of Hundal, supra where the Supreme Court of Canada established the modified objective test provides assistance. There the accused was charged with dangerous driving causing death. He had driven an overloaded dump truck into an intersection against a red light in heavy afternoon traffic on a wet, four-lane street in downtown Vancouver. The dump truck collided with a car, killing the driver.
[46] The issue was whether the Crown had to establish a subjective element in the mens rea to prove the offence of dangerous driving. After reviewing the wording of the Code provision which suggests an objective standard, Cory J. for the Court stated:
24. 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.
He continued:
27. Although an objective test must be applied to the offence of dangerous driving it will remain open to the accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused's conduct. The test must be applied with some measure of flexibility. That is to say the objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident.
. . .
30. 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.
[47] In the case under appeal, the context of the events surrounding the incident includes the vehicle involved in the accident being a loaner provided by a car dealership to the appellant a few hours earlier. The loaner vehicle was not one that was regularly driven by the appellant. Nor was he responsible for its maintenance or mechanical condition, or for ensuring that it would pass safety inspection.
[48] The mechanic’s description of the tread on the front tires was vivid and indicates that the wear should have been apparent. Yet, according to the testimony of the dealership’s service manager who walked by and looked at the vehicle the very day of the accident, it was not. However, the question is not whether, had the appellant inspected the tires on the loaner, he would have realized the poor state they were in.
[49] The question is whether a reasonable person in his situation ought to have been aware of the risk. In my view, a reasonable person taking delivery of a loaner vehicle from a car dealership which is responsible for that vehicle would not have been aware of the risk that its tires were below minimum standards. As the appellant submits, the moment that a vehicle leaves a car dealership, after having been in the dealership’s possession and under its care, should be the time when a consumer is most able to rely on the workmanship of the dealer. He should be able to presume that a loaner vehicle meets the standards for safety inspection. With respect, the judge erred in law in finding that there was a duty of care upon the appellant to inspect the condition of the loaner vehicle tires. Even if there was such a duty, he erred in finding a breach of that duty constituted a marked departure from the standard expected of a reasonably prudent person and hence blameworthy conduct amounting to dangerous driving.
[50] The Crown made no suggestion that if an error of law was found this court should apply the proviso set out in s.686(1)(b)(iii) of the Criminal Code. In any event I am unable to conclude that the error was harmless within the well established jurisprudence on s. 686(1)(b)(iii). By virtue of s. 686(2)(a) of the Code, the appellant is entitled to an order for an acquittal or a new trial. As set out by this court in R.v. Reid & Stratton, 2003 NSCA 104 at ¶ 94, the choice of remedy is discretionary. Ordinarily if the evidence led at trial is such that a reasonable trier of fact, properly instructed, could convict, then an order for a new trial is appropriate. It will then be up to the Crown as to whether or not they wish to proceed with a new trial. In my view, the evidence led at trial was such that a reasonable trier of fact, properly instructed, and acting reasonably could convict. It is therefore appropriate to order a new trial. I would allow the appeal against conviction, and order a new trial before a different judge.
Oland, J.A.
Concurred in:
Beveridge, J.A.
Farrar, J.A.