R. v. Robichaud, 2012 NBCA 87

COURT OF APPEAL OF NEW BRUNSWICK 158-11-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - NICOLAS ROBICHAUD RESPONDENT NICOLAS ROBICHAUD INTIMÉ R. v. Robichaud, 2012 NBCA 87 R. c.

Robichaud, 2012 NBCA 87 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Ri chard L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Provincial Court: October 17, 2011 Appel d’une décision de la Cour provinciale : Le 17 octobre 2011 History of case: Decision under appeal: October 17, 2011 – Unreported Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : Le 17 octobre 2011 - Inédite Procédures préliminaires ou accessoires : S.O.

Appeal heard: June 20, 2012 Appel entendu : Le 20 juin 2012 Judgment rendered: October 18, 2012 Jugem ent rendu : Le 18 octobre 2012 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell

Concurred in by: The Honourable Justice Richard The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Quigg Counsel at hearing: For the appellant: Cameron H. Gunn For the respondent: James J. Matheson Avocats à l’audience : Pour l’appelante : Cameron H. Gunn Pour l’intimé : James J. Matheson THE COURT The appeal is dismissed without costs. LA COUR Rejette l’appel sans dépens.

The judgment of the Court was delivered by BELL J.A. [ 1 ] The Attorney General appeals against a verdict of acquittal by a judge of the Provincial Court following the trial of Nicolas Robichaud on charges arising out of a tragic boating accident that resulted in the death of an individual and the injury of another. For the reasons that follow, I would dismiss the appeal. I.

Summary of Facts and Background [ 2 ] By dusk on Friday, July 10, 2009, most individuals, part of a group of boaters who had enjoyed a day on the waters of Miramichi Bay at or near Portage Island, had returned to the Neguac wharf. Nicolas Robichaud and two others, each operating personal watercraft (commonly known as jet skis) were in the last group of boaters to leave the island. The three jet skis were following a towing operation in which a disabled vessel was being towed to shore.

As the towing operation made its way back to the Neguac wharf, it stopped on several occasions due to shallow water and overheating. On the final stop, two of the jet-ski operators left the towing operation and returned to the wharf while Nicolas Robichaud remained with the disabled boat. After night had fallen, Mr. Robichaud also decided to leave the towing operation in the direction of the wharf. Since he was not as knowledgeable of the waters at night as were his friends, he asked Cleo Allain, whose boat was being towed, for directions. Mr. Allain directed him to “head for the green light”.

Shortly after leaving the towing operation, Nicolas Robichaud struck a low lying speed boat operated by Paul Robichaud.

As a result of the impact, Paul Robichaud’s friend, France Allain was killed and his spouse, Nathalie Robichaud, was injured. [ 3 ] The trial judge concluded that neither the jet ski operated by Nicolas Robichaud, nor the speed boat operated by Paul Robichaud, was displaying navigational lights as required by the Small Vessel Regulations , C.R.C., c. 1487 at the time of the collision. [ 4 ] Nicolas Robichaud was eventually charged with, and acquitted of, four counts in which it was alleged that he caused: (1) death while his ability to operate a vessel was impaired by alcohol ( s. 255(3) of the Criminal Code ); (2) bodily harm while his ability to operate a vessel was impaired by alcohol ( s. 255(2) ); (3) death while operating a vessel in a dangerous

manner ( s. 249(4) ); and (4) bodily harm while operating a vessel in a dangerous manner ( s. 249(3) ). II.

Grounds of Appeal [ 5 ] The Attorney General contends the trial judge erred on the following bases when he acquitted Nicolas Robichaud of the two counts of dangerous operation of a vessel: 1. failing to consider all the evidence relevant to a material finding and by abdicating his judicial function by holding that he required expert evidence to make findings of fact with respect to the speed of the vessel; 2. applying an inappropriate and incorrect burden of proof with respect to individual pieces of evidence; 3. misapplying the law with respect to the test for the mens rea for the offences; and 4. concluding that the mens rea had not been proven.

The Attorney General may only appeal from an acquittal on a ground that involves an error of law alone (s. 676(1)( a )). III. Analysis A. Failure to consider all relevant evidence and abdication of judicial function [ 6 ] The Attorney General contends the trial judge was required to determine whether or not, in the circumstances, Nicolas Robichaud operated his vessel at an excessive rate of speed. He contends that not only did the trial judge fail to make that determination, he also abdicated his judicial function by stating he could not do so in the absence of expert evidence.

I am of the view the the Attorney General’s assessment in this regard is ill-founded since the trial judge in fact determined that question. He simply did not accept the theory of the Crown. After concluding neither vessel was operating with its navigational lights on, the trial judge turned his attention to whether or not Nicolas Robichaud was travelling at an excessive speed. He concluded as follows: I heard no witness testifying that Nicolas Robichaud`s handling of his jet ski was other than normal in the hours preceding the collision.

Nicole Allain , one of the last to see him prior to the collision testified that she did not note anything unusual about the accused’s speed when he left them to go to the wharf. The only observation made by Cleo Allain of that same departure was that the nose of his jet ski rose as the accused took off in the direction of the wharf but he has no idea of its speed at the time. The Crown argues that I can and should infer from the wild takeoff and the fact the jet ski flew over the boat doing such violence to the two victims, that its speed was excessive in the circumstances.

Without the benefit of expert evidence as to the force required to inflict the injuries to the victims or of an accident reconstruction expert to assist in determining the speed required for a jet ski to be propelled across the 2 meter width of a low riding boat. Without expert evidence I have no idea of the extent of the damage depicted to the boat`s hull in the photo exhibits, though it does not look extensive to my untrained eye, nor do I have any idea of the speed required to do the damage depicted.

Applying the objective test of Beatty I find beyond a reasonable doubt that operating a jet ski without navigation lights at night creates a danger to the public. It is obvious to me that while the presence of navigation lights complying with the Collision Regulations does not help the operator in seeing at night, those lights are of great assistance in ensuring that your own vessel can be seen by others and reducing the risk of collision. The accused had asked Cleo Allain at one point in the towing operation to please turn on his navigation lights and was obviously aware of their value to boaters.

Thus the actus reus is proven. I believe this accident occurred because the small boat with a low profile which the two victims were on was being operated on a dark night without its navigation lights and was essentially invisible to the accused as he approached it. Kenneth Kenny and other witnesses

described the boat as riding very low in the water and difficult to see even in the lighting conditions at the wharf. No one saw it prior to its sudden arrival at the wharf. The accused was contributorily negligent in operating his jet ski after sunset without navigation lights because he was essentially invisible to those on the boat as he approached, thereby depriving them of an opportunity to take evasive measures.

There is no evidence the accused was driving erratically or at excessive speed throughout the voyage in the group from Portage Island in the dark and I am reluctant to infer excessive speed from the circumstances of the collision. Objectively I am not satisfied beyond a reasonable doubt that Nicolas Robichaud`s conduct at the relevant time amounted to a marked departure from the standard of care that a reasonable person would observe in his circumstances.

With the earlier departure of the other 2 lightless jet skis from the convoy it was not patently unreasonable for him to assume his was the only unlit vessel in the area. Despite his bad luck in having such an unlikely event occur his conduct, in my view, amounted to an error in judgment triggering civil liability but was not sufficiently blameworthy as to constitute the mens rea of a dangerous driving offence. [paras. 13-15] [Underlining in original text.] [ 7 ] In assessing the speed of the boat, the trial judge referred to the testimony of witnesses to the speed of the vessel in the hours before the collision.

Nicole Allain, one of the last to see Nicolas Robichaud operate the jet ski before the collision, did not notice anything unusual about his speed. Cleo Allain could offer no opinion about the speed of the vessel as it left the towing operation. Before the trial judge, the Crown contended excessive speed should be inferred because of the “wild take-off” and the fact the jet ski “flew over” the low lying speed boat. Wisely, the trial judge declined the invitation to speculate.

The trial judge noted that he is a lay-person, the physical damage did not appear to be extensive, and without expert evidence from an accident reconstructionist, he considered himself incapable of accepting the Crown’s assertion. The trial judge went on to state, as noted above: “[…] There is no evidence the accused was driving erratically or at excessive speed throughout the voyage in the group from Portage Island in the dark and I am reluctant to infer excessive speed from the circumstances of the collision. […]” (para. 15).

The trial judge also noted that Nicolas Robichaud, being the last one to enter the wharf area, would not have anticipated a low lying unlit boat in his path. [ 8 ] The Attorney General contends the trial judge abdicated his judicial function when he stated that an expert reconstruction witness would have been useful in assessing the speed of the vessel. However, those observations by the trial judge were made in response to a Crown invitation to speculate about speed based upon damage done and the perceived “flight” of the jet ski.

I am of the view the trial judge adequately considered the evidence when one considers the live issues and the parties’ key arguments. In any event, failure to consider all the evidence does not raise a question of law alone. In R. v. J.M.H., 2011 SCC 45 , [2011] 3 S.C.R. 197 , the Crown attempted to frame mixed fact and law questions as questions of law alone by contending the trial judge failed to consider all the evidence. Cromwell J.’s observations in J.M.H . are instructive: A trial judge is not required to refer to every item of evidence considered or to detail the way each item of evidence was assessed.

As Binnie J. pointed out in Walker , “Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue” (para. 20). Walker also clearly holds that the adequacy of a trial judge’s reasons is informed by the limited grounds for Crown rights of appeal from acquittals (paras. 2 and 22).

As Binnie J. succinctly put it, “Caution must be taken to avoid seizing on perceived deficiencies in a trial judge’s reasons for acquittal to create a ground of ‘unreasonable acquittal’ which is not open to the court under the provisions of the Criminal Code ” (para. 2). [para. 32] [ 9 ] In R. v.

Walker , 2008 SCC 34 , [2008] 2 S.C.R. 245 , Binnie J. stated: A major difference between the position of the Crown and the accused in a criminal trial, of course, is that the accused benefits from the presumption of innocence. […] [w] hereas a conviction requires the prosecution to establish each of the factual elements of the offence beyond a reasonable doubt, no such requirement applies to an acquittal which, unlike a conviction, can rest simply on the absence of proof. […] [para. 22] I am of the view similar observations apply with respect to this case.

To accede to the Attorney General’s request would create a new ground of appeal of “unreasonable acquittal” which is “incompatible with the presumption of innocence and the burden which rests on the prosecution to prove its case beyond a reasonable doubt”: R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381 at para. 33 .

B. The burden of proof with respect to individual pieces of evidence [10] In the course of rendering his decision the trial judge stated: […] Notwithstanding Nathalie Robichaud’s evidence that France Allain always insisted that the navigation lights be on even in daylightand Paul Robichaud’s insistence that his navigation lights were on at the time, I’m not convinced beyond a reasonable doubt. […] [para 12] [Emphasis is mine.] [11] The Attorney General contends the trial judge erred by applying a “beyond a reasonable doubt”standard to the assessment evidence.

If this assertion were correct, this ground of appeal could still only succeed should this Courtconclude the verdict would, but for the error, not necessarily have been the same: R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595; R. v.Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Noel, 2010 NBCA 28, 358 N.B.R. (2d) 108; and R. v. Martin, 2010 NBCA 41, 361N.B.R. (2d) 251, leave to appeal refused, [2010] S.C.C.A. No. 302 (QL).

There is an abundance of jurisprudence, both from this Courtand the Supreme Court, which supports the view that a trial judge commits an error of law if he or she subjects individual pieces ofevidence to the standard of proof beyond a reasonable doubt: R. v. Morin, (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No.80 (QL) at para. 41; R. v. B.(G.), (SCC), [1990] 2 S.C.R. 57, [1990] S.C.J. No. 57 (QL) at pp. 75-77 and 79; R.S.L. v.R., 2006 NBCA 64, 300 N.B.R. (2d) 24 at para. 101; R. v. L.C.M., 2011 NBCA 14, 368 N.B.R. (2d) 194 at para. 3; and R. v. Pleasance,2012 NBCA 4, 382 N.B.R. (2d) 292 at para. 6.

Evidence must be considered as a whole, with the trial judge determining the weight tobe given to each individual piece of evidence. [12] I would note, however, that the trial judge’s analysis of the evidence relating to the navigationallights did not stop at the excerpt relied upon by the Attorney General in support of this ground of appeal. The paragraph continues: […] It is more likely in my mind that Paul and Nathalie Robichaud are simply mistaken in their recall of the state of their navigationlights than it is that the collision somehow switched them off while leaving them fully functional.

Both France and Nathalie had beenenjoying some beer as they watched the sun setting that night and it is not unreasonable to posit that the circumstances were such thatFrance forgot her nervousness about the state of the navigation lights for a while.

On balance I find that the navigation lights on the PaulRobichaud boat were not on at the time of the collision. [para. 12] [Emphasis is mine.] By employing the words “more likely” and “on balance”, the trial judge demonstrated he was alive to the correct test to be applied, andin my opinion, applied that test. [13] In addition I would note the trial judge’s conclusion that the navigational lights on PaulRobichaud’s vessel were not engaged at the time of the collision is supported by witnesses who saw the vessel arrive at the Neguacwharf with no lights on, and by police witnesses who later tested the lights and confirmed they were in working order.

While I amsatisfied the trial judge applied the correct test to the admissibility of the evidence, in the event he did not, I would conclude the Crownhas failed to establish, absent the error, that the verdict would not necessarily have been the same. C. Grounds 3 and 4 – Misapplication of the test for mens rea in relation to dangerous operation of vessel offences (ss. 249(3) and249(4)) [14] At the hearing of this appeal, counsel combined their arguments with respect to grounds 3 and4.

I intend to do the same in these reasons for decision. [15] Both counsel agree the correct test to be applied for purposes of assessing whether the AttorneyGeneral proved beyond a reasonable doubt that Nicolas Robichaud possessed the necessary mens rea is found in R. v. Beatty, 2008 SCC5, [2008] 1 S.C.R. 49 and R. v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26 (QL).

The focus of the mens rea analysis is on whether thedangerous manner of operating the vessel, presuming the actus reus has been established, is a marked departure from the standard ofcare which a reasonable person would have exercised in the circumstances (see R. v. Roy at para. 36). Both counsel also agree the trialjudge properly relied upon R. v. Beatty, and properly formulated the marked departure test. The lawyers

part company with respect to

the trial judge’s assessment of the facts en route to determining whether Nicolas Robichaud’s conduct met the marked departurerequirement. Since that analysis goes only to the issue of proof beyond a reasonable doubt of mens rea, I am of the view it would not, inany circumstance, constitute a question of law alone. The matter of sufficiency of proof is a question of fact for the trial judge and is nota question of law: R. v. Sunbeam Corp. (Canada) Ltd., (SCC), [1969] S.C.R. 221, [1968] S.C.J. No. 94 (QL); R. v.Poirier, (SCC), [1998] 1 S.C.R. 24, [1998] S.C.J. No. 4 (QL).

The Crown therefore has no jurisdiction to appeal onthis ground of appeal. Given my opinion on the other grounds of appeal, it follows, that I would dismiss the Crown appeal. D. Additional Observations and Conclusion [16] There are two additional observations I wish to make in relation to this matter and thearguments presented. First, nothing in these reasons should be taken to detract from the horrific nature of this unfortunate accident. Alife was lost. No criminal prosecution or award of damages can ever replace the loss to the deceased’s loved ones or to the community atlarge.

In Beatty, three lives were lost. As in Beatty, Nicolas Robichaud faced the stigma of criminal prosecution, potential conviction, alife-time of being labeled a criminal offender and a maximum of 14 years’ imprisonment. The law does not lightly brand a person as acriminal: R. v. Creighton, (SCC), [1993] 3 S.C.R. 3, [1993] S.C.J. No. 91 (QL), at p. 59.

I would, as did Charron J. ofthe Supreme Court, adopt the comments of the trial judge in Beatty when she stated: […]There is nothing a court can do or say that will adequately redress the loss suffered by the victims’ families in such circumstances.However, in assessing criminal culpability it is not the consequences of a negligent act of driving that determines whether an accused’smanner of driving is objectively dangerous.

It is the driving itself that must be examined. […] [para. 14] [17] The focus on the driving in Beatty, or, as in this case, the operation of the vessel, leads me to asecond and concluding observation. The Crown set out nine factors it says constitute the totality of the circumstances, and contends that,had the trial judge considered them, he would have concluded the necessary mens rea had been proven. I have carefully consideredthose factors and can confidently say each of them was considered by the trial judge.

I would provide the following as but one example.The Attorney General asserts the trial judge failed to consider that it was “a very dark night”. Yet, the trial judge made the followingobservations: 1. […] They were following Jean Guy Kenny’s boat which was towing Cleo Allain’s broken down boat as darkness descended.[…] 2. […] When Nicolas Robichaud, who was not as knowledgeable of those waters at night […].; 3. […] At the last stop, within sight of the last green buoy […] it was full darkness […]; 4. […] It was fully dark when Ghislain arrived […]; 5.

There is no evidence the accused was driving erratically or at excessive speed […] in the dark […]. [18] Similar observations can be made with respect to the other eight factors the Attorney Generalcontends were not adequately considered. While it is apparent the trial judge ordered his reasons differently than expected by the Crown,in my view he touched upon every factor which the Attorney General says was not adequately considered, even though in law he had nostrict obligation to do so. [19] For the reasons set out in paragraphs 1 to 15, I would dismiss the appeal. ______________________________ B.

RICHARD BELL, J.A.

WE CONCUR: ________________________________ J.C. MARC RICHARD, J.A. ________________________________ KATHLEEN A. QUIGG, J.A.