2020 QCCA 1505, 2020 QCCA 1505

Hargrave c. R. 2020 QCCA 1505 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006905-184 ( 760-01-077044-151 ) MINUTES OF HEARING DATE: November 12, 2020 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. JOCELYN F. RANCOURT, J.A. LUCIE FOURNIER, J.A.

APPELLANT COUNSEL Phillip Hargrave Mtre VICTORIA NIX ( Boro, Frigon, Gordon, Jones ) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre PATRICK CARDINAL ( Director of Criminal and Penal Prosecutions ) By videoconference On appeal from a judgment rendered on October 18, 2018 by the Honourable Marie-Chantal Doucet of the Court of Québec, Criminal Division , District of Beauharnois . NATURE OF THE APPEAL: Guilt – Dangerous driving and criminal negligence causing bodily harm. Clerk at the hearing : Anne Dumont Courtroom: Pierre-Basile-Mignault HEARING

9:33 Commencement of the hearing. Submissions by Mtre Nix. 9:43 Question by the Court and response by Mtre Nix. 9:44 Recess of the hearing. 9:50 Resumption of the hearing. The Court informs Mtre Cardinal that it won’t be necessary to hear his representations. 9:51 BY THE COURT : Judgment – see page 3. Conclusion of the hearing. Anne Dumont, Clerk at the hearing JUDGMENT FOR REASONS TO BE FILED AT A LATER DATE, THE COURT : [ 1 ] DISMISSES the appeal. MARTIN VAUCLAIR, J.A. JOCELYN F. RANCOURT, J.A. LUCIE FOURNIER, J.A. Hargrave c. R. 2020 QCCA 1505 COURT OF APPEAL CANADA PROVINCE OF QUEBEC

REGISTRY OF MONTREAL No: 500-10-006905-184 (760-01-077044-151) DATE: November 23, 2020 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. JOCELYN F. RANCOURT, J.A. LUCIE FOURNIER, J.A. PHILLIP HARGRAVE APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor REASONS FOR JUDGMENT RENDERED ON NOVEMBER 12, 2020 and reproduction of the conclusions of the judgment rendered from the bench on November 12, 2020 [1] On October 18, 2018, the appellant was convicted of dangerous driving and criminal negligence after having collided with some vehicles at over 130 km/h while driving through an intersection in the small municipality of St-Clet, where the speed limit is 50 km/h, thereby causing three individuals to suffer bodily injuries, some of which were serious and permanent. [ 2 ] At trial, he presented a defence based on s. 16 of the Criminal Code , a defence the judge rejected.

Not only did she conclude that the evidence showed absolutely no history of a mental disorder until fourteen months after the events, but she also rejected his testimony regarding his general mental state, which was contradicted by all the witnesses who had contemporaneous contact with him, both before and after the accident. No one—not his friend, the police officers or the physicians at the hospital—testified that he had an altered state of mind in any way. Both before and after the accident, the appellant led a normal life, attended university and was in a relationship.

The judge dismissed the appellant’s testimony, concluding that he adjusted his deposition, contradicted himself and occasionally hid behind his disorder to offer a hazier version. To put it plainly, she found his testimony not credible and disorganized.

The judge also indicated that the appellant stated [ translation ] “that he had driven with his eyes closed, in the literal sense of the word and not the figurative sense, for several kilometres without any incident” (« avoir conduit les yeux fermes, au sens propre du terme et non au sens figure, sur plusieurs kilomètres sans aucun incident ») until the tragic event. Contrary to what he claimed, the witnesses noted precise and skilful driving in the moments preceding the events.

The judge found his testimony to be implausible and she dismissed it, noting that none of the evidence, other than this testimony, supported the claim of a mental disorder. [ 3 ] Both at trial and on appeal, the appellant challenged only the mens rea of the offences. It is worth noting that, on appeal, he no longer challenges the trial judge’s dismissal of his defence of mental disorder.

His only argument is based on the judge’s error in failing to consider the elements which related to his mental state and which, although they did not satisfy the standard of evidence for a mental disorder, could nevertheless raise a reasonable doubt regarding the mens rea of the offences. [ 4 ] It bears reminding, however, that the only evidence of an altered mental state was the appellant’s testimony, which the judge categorically rejected.

Indeed, it is largely for this reason that she also rejected the testimony of his expert, whose expert opinion lacked a factual basis. [1] [ 5 ] In her judgment, she holds the circumstances to be as follows [2] : [ translation ] [85] Several witnesses described the accused’s driving prior to the collision.

These witnesses established that, at approximately 7:00 p.m. on September 26, 2015, the accused was travelling on Highway 201 towards the village of St-Clet, at speeds of 160-180 km/h, that he was passing other vehicles over a solid double line, coming within 2-3 inches of certain vehicles, and that he was driving skillfully and not erratically, like a race car driver would.

The headlights on the accused’s vehicle were off, and given the dangerousness of his driving, the police was contacted by witnesses even before the occurrence of the collision at the intersection of Highways 201 and 340. […] [88] Extreme speed, in and of itself, does not warrant a finding of criminal negligence. In the present case, it is the circumstances as a whole that lead to such a conclusion.

This precise, skillful and continuous driving is the fruit of a conscious mind. [89] The Court is of the view that the evidence establishes that the accused’s driving demonstrates a wanton and reckless disregard for the life or safety of others and is a marked departure from what is expected of a reasonable person.

* * * [85] Plusieurs témoins ont décrit la conduite de l'accusé antérieure à la collision. Ces témoins établissent que l'accusé, vers 19 h le 26 septembre 2015, circulait sur ta route 201 en direction du village de St-Clet, à des vitesses de 160-180 km/h, qu'il effectuait des dépassements sur une ligne double continue en passant à 2-3 pouces de certains véhicules, et qu'il conduisait de façon habile, non erratique, comme le ferait un pilote de course.

Les lumières du véhicule de l'accusé étaient éteintes, et compte tenu de la dangerosité de sa conduite, la police fut contactée par des témoins avant même que ne survienne la collision à l'intersection des routes 201 et 340. […] [88] À elle seule, une vitesse extrême ne justifie pas une conclusion de négligence criminelle. En l'espèce, c'est l'ensemble des circonstances qui entraîne une telle conclusion.

Cette conduite précise, habile et continue est le fruit d'un esprit conscient. [89] Le Tribunal considère que la preuve établit que la conduite de l'accusé démontre une insouciance dérèglée et téméraire à l'égard de la vie et sécurité d'autrui et qu'il s'agit d'un écart marqué par rapport à une personne raisonnable . [ 6 ] The appellant essentially argues that this driving is precisely the illustration of an altered mental state, sowing doubt on the mens rea necessary for the offences in question.

With all due respect, in the absence of any evidence raising a doubt about his mental state, the judge’s brief analysis is irreproachable and, in the circumstances, the result is inevitable. After categorically dismissing the accused’s testimony, the judge referred to conduct and evidence that point in only one direction. She referred to the mens rea required for the two offences charged.

She was aware that the appellant suffered from mental illness subsequent to the accident, but considering all the circumstances, it is evident that she concluded none of the evidence raised a doubt that a mental disorder was affecting the mens rea at the time of the offences. In the present case, the evidence capable of shedding light on the “actual state of mind” [3] of the appellant at the time he was driving his car raises no doubt as to the presence of the required mens rea , unlike in Graham , in particular, on which the appellant relies, but also unlike in Desbiens [4] or Beatty.

It bears noting that Beatty explained that “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 mens rea has been proved. [5] FOR THESE REASONS, THE COURT : [ 7 ] DISMISSES the appeal. MARTIN VAUCLAIR, J.A. JOCELYN F. RANCOURT, J.A. LUCIE FOURNIER, J.A. Mtre Victoria Nix Boro, Frigon, Gordon, Jones For the Appellant Mtre Patrick Cardinal Director of Criminal and Penal Prosecutions For the Respondent Date of hearing: November 12, 2020