R. v. G.W.A., 2011 NSPC 6

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. G.W.A., 2011 NSPC 6 Date: January 24, 2011 Docket: 2198503 Registry: New Glasgow Her Majesty the Queen v. G.W.A. D E C I S I O N Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on Pursuant to s.110 and 111 of the Youth Criminal Publication: Justice Act Judge: Del W. Atwood Heard: December 15, 2010, December 16, 2010 Decision: January 24, 2011 Charge: Criminal Code

Section 220(

b) Counsel: William Gorman for the Crown Joel Pink for the Defence

The limited purpose of a trial [ 1 ] Trials are concerned with the presentation of material and relevant evidence regarding decisions, actions, events and outcomes. Because of the necessary focus on materiality and relevancy, trials do not reveal a great deal of detail about people ’ s lives, families, hopes or aspirations. This trial is governed in part by the provisions of the Youth Criminal Justice Act , as the accused is seventeen years of age. [1] [ 2 ] The tragic death of D. W. T. is the primary focus of this case. Although the Court was provided only a small glimpse of Mr.

T. ’ s young life, what the Court does know about him is that he had a family who loved him very much, and who were concerned deeply about his well being. [ 3 ] The Court knows, as well, that on 12 June 2010, Mr. T. made a decision to hold on to a door or door post of a * vehicle which his friend, G. W.A., was driving, allowing Mr. T. to be towed along on his skateboard. This is known among skateboarders as “ sketching ” . Moments later, Mr.

T. fell, just up from the intersection of Willow Avenue and Mitchell Street in New Glasgow, and suffered an injury that would result later in his death. [ 4 ] The outcome of this case is based on the Court ’ s evaluation of Mr. A. ’ s state of mind and conduct over those few moments. The charge [ 5 ] The charging information before the Court, reads as follows: G. W. A. on or about the 12 th day of June, A.D. 2010, at or near New Glasgow, Nova Scotia, did by criminal negligence to wit allowed [ sic ] the deceased D. W. T. to hold onto his motor vehicle and be towed up Willow Avenue cause the death of D. W.

T., contrary to

section 220 (

b) of the Criminal Code of Canada . The Criminal Code [ 6 ] The Criminal Code of Canada provides that: 219.

(1) Every one is criminally negligent who (

a) in doing anything, or (

b) in omitting to do anything that it 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. 220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence . … [2] Elements of the offence [ 7 ] The elements of the offence of criminal negligence causing death are:

(1) First, the identity of G. W. A. as the offender;

(2) Second, the time and place of the offence as set out in the information;

(3) Third, that Mr. A. allowed D. W. T. to hold onto his motor vehicle and be towed up Willow Avenue;

(4) Fourth, that Mr. A. ’ s act or conduct caused the death of Mr. T.;

(5) Fifth, that Mr. A. ’ s act or conduct was a marked and substantial departure from the standard of care of a reasonable person in the circumstances;

(6) Sixth, that Mr. A. ’ s act or conduct showed a wanton or reckless disregard for the lives or safety of other persons. Theory of the Crown [ 8 ] It is clear from the wording of the charge that the Crown ’ s theory of liability is based on para. 219(1)(

a) of the Code ; the charge does not rest on an omission to fulfill a duty; rather, the Crown alleges that Mr. A. did something: he allowed Mr. T. to hold onto his vehicle and allowed him to be towed. It is this combination of acts — first, of allowing Mr. T. to grab ahold, and second, towing him knowing he was holding on — that the Crown asserts showed wanton or reckless disregard for the life of Mr. T., thereby causing his death.

[ 9 ] During closing argument, the Crown sought to advance an alternative theory of liability by suggesting that, even if the court were not satisfied that Mr. A. allowed Mr. T. to hold on to his vehicle, he might be found criminally liable, nevertheless, under para. 219(1)(

b) of the Code in virtue of his failure to keep a proper lookout. In short, even if Mr. A. cannot be said to have allowed the sketching activity, he ought to be found criminally negligent for not having observed what Mr. T. was doing, and for not having taken action to prevent it. In the Court ’ s view, this argument cannot be supported. While the Court may consider alternative theories of liability — such as whether an accused was a principle or a party [3] --the proposed alternative theory must be one that is comprised in the count that describes the transaction upon which the charge is based. The Court has before it a single count, sufficiently descriptive so as to comply with

section 581 of the Code . That count alleges a wrongful act by the accused — namely, allowing and then towing — and makes no mention of a failure to keep a proper lookout. It was open to the informant in this case to have pleaded alternative theories of liability as permitted by section 590(1) of the Code . It was open to the Crown to have sought to amend the information as provided for in

section 601 of the Code . Neither was done in this case. It is not merely a technicality that the Crown cannot seek to rest its case on an alternative theory of liability that is not set out in the charge before the court. A charge must fairly inform an accused of the case the accused must meet. [4] In this case, the charge clearly seeks to rest the accused ’ s liability on

an act, not an omission to act or a failure to fulfil a duty. The Crown — and in this regard, the police and the prosecution are unified — is bound by its strategic decision to word the charge as it did. Included offences [ 10 ] In virtue of sub-section 662(5) of the Code , the Court must consider the included offence of dangerous driving causing death. 662.

(1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on

summary conviction, the accused may be convicted (

a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or (

b) of an attempt to commit an offence so included. . . . . Conviction for dangerous driving where manslaughter charged

(5) For greater certainty, where a count charges an offence under

section 220 , 221 or 236 arising out of the operation of a motor vehicle or the navigation or operation of a vessel or aircraft, and the evidence does not prove such offence but does prove an offence under

section 249 or subsection 249.1(3), the accused may be convicted of an offence under

section 249 or subsection 249.1(3), as the case may be. R.S., 1985, c. C-46, s. 662 ; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3 ; 2008, c. 6, s. 38 . Theory of the defence [ 11 ] Defence counsel asserts that Mr. A. should be acquitted as the Crown has failed to prove beyond a reasonable doubt a number of essential elements of the offence of criminal negligence causing death. He submits that it has not been proven that Mr. A. allowed Mr. T. to hold on to his vehicle, that Mr. A. ’ s actions — even if proven — caused the death of Mr. T., or that, even if the act and the cause are proven, Mr.

A. ’ s conduct constituted a wanton or reckless disregard for Mr. T. ’ s life. The key issue: what did the accused know and when did he know it? [ 12 ] The Court is of the view that the key element of this offence is whether Mr. A. allowed Mr. T. to hold onto the side of his vehicle. The Court is of the view that the critical evidence on this point pertains to knowledge: what did Mr. A. know and when did he know it. [ 13 ] The verb “ allow ” admits of a number of

definitions. It may mean “ to approve or sanction ” ; it might also mean “ to concede or to permit ” . [5] [ 14 ] Common to these is the clear implication of knowledge. Whether one allows expressly by a formal declaration, or merely by acquiescing in the doing of something, one criterion that is shared by all of these

definitions is actual knowledge accompanied by a positive assent of the will. In the context of this case, the Court must be satisfied that Mr. A. knew that Mr. T. was holding on to the side of his vehicle, either having given him permission to do so or being prepared to go along with it. The evidence [ 15 ] At the commencement of this trial, Crown and defence placed on the record a number of factual admissions pursuant to the provisions of

section 655 of the Code . While these admissions were certainly material and relevant, none covered the key issue of Mr. A. ’ s knowledge.

[ 16 ] The Court heard then from six Crown witnesses. [ 17 ] Sergeant Joe Dipersio, a senior and highly experienced member of the New Glasgow Police Service was among the first emergency responders on scene after Mr. T. was hurt. Sergeant Dipersio spoke with Mr. A. near the accident site. Admitted into evidence with defence consent was an oral utterance Mr. A. made to the sergeant: “ I was driving and Willy grabbed on to my vehicle. I was only going to the stop sign. I was only going 20 kilometres per hour and he fell off his skateboard. ” [ 18 ] The Court heard from Mr. Hugh Robert Sim. Mr.

Sim lives in a house located at the south-eastern corner of the Willow Avenue/Mitchell Street intersection (with Willow oriented in an east/west direction, Mitchell, north/south). Mr. Sim was on the front porch of his home just prior to the Mr. T. being injured, indeed, spoke with Mr. Tracey — who was accompanied by his friend, C.W.R. — very shortly before the incident happened. Mr. Sim described seeing Mr. A. driving westbound on Willow Avenue and stopping at the intersection of Willow and Mitchell. He observed Mr.

Tracey — who was holding a skateboard — having a conversation with the occupants of the vehicle driven by Mr. A.. Mr. Sim could not make out what was being said. He saw Mr. A. drive through the intersection and park further up Willow Avenue, almost in front of a house on the northwest corner of the Willow/Mitchell intersection. Mr. Sim saw Mr. T. and Mr. R. walk over to Mr. A. ’ s vehicle and resume their conversation. Again, Mr. Sim did not hear what was being said. Mr. Sim then saw Mr. A. pulling away from the side of the road, slowly and in what appeared to be a normal fashion. As Mr.

Sim described the sequence of events on direct examination: “ The truck started to go, it didn ’ t rev up or anything, they were talking, Willy grabbed on to the front door and the other fellow on the bike grabbed on to the other door, but he didn ’ t rev the truck up. ” Mr. Sim saw that Mr. T. was riding on his skate board while holding on to Mr. A. ’ s vehicle; he lost sight of Mr. A. ’ s vehicle a very short distance beyond that point, as his view was obstructed by a lilac bush. Moments later, Mr. Sim heard a thump, followed by screaming; Mr.

Sim went directly to the scene, two or three houses up Willow Avenue from the Willow/Mitchell intersection, and found Mr. T. in the road, injured, but trying to get up. [ 19 ] The Court heard from K.M. and T.R.M. , both of them friends of Mr. A. and Mr. T. ’ s. K.M. was a passenger in the vehicle Mr. A. was driving, and was seated in the front passenger seat. T.M. was seated in the rear bench seat. Their respective versions of events were dissimilar in some aspects; however, the Court attributes this to the fact that these witnesses had different visual perspectives of the event.

There is no evidence before the Court that these witnesses colluded in presenting false or misleading evidence to the Court. In one respect, their evidence was consistent, and that is that there was no discussion among the group — including Mr. A. — about Mr. T. or Mr. R. hanging on to Mr. A. ’ s vehicle. [ 20 ] C.W.R. was called by the Crown. He described walking up Willow Avenue with his friend Mr. T. and meeting up with Mr. A., who was at the wheel of the * , as well as T.M. and K.M.. Although Mr. R. ’ s evidence differs from what was stated by the M. and Mr. Sim, in that Mr. R. recalled that he and Mr.

T. grabbed on to Mr. A. ’ s vehicle before it proceeded through Mitchell Street, he was consistent with the M. in that there was no discussion about anyone grabbing on. Mr. R. ’ s description was of a sudden, spontaneous and unannounced snap call by Mr. R. and Mr. T. to take advantage of an opportunity to have some fun. [ 21 ] Cst. Robin Hatt was the police investigator who took some of the photography of the scene of the alleged offence; Cst. Hatt, with defence consent, exhibited a police report that recorded a number of pertinent measurements of distance made by a Cst.

Purvis. [ 22 ] With the consent of defence, the Crown tendered in evidence a transcription of an audio-recorded statement given to police by Jeffrey Deyoung, a witness who was in a vehicle driving down Willow Avenue and who came upon the scene just as Mr. T. fell. Mr. Deyoung did not see Mr. T. falling, but apparently saw Mr. T. ’ s skateboard flying out from underneath the vehicle being operated by Mr. A.. Mr. Deyoung describes having a conversation at the scene with, it seems, Mr. A.; according to Mr. Deyoung, Mr. A. used the word “ towing ” in describing the incident. In assigning weight to Mr.

Deyoung ’ s statement, the court takes into account that it was given to police two days after Mr. T. was injured, and was presented in court without the opportunity for forensic cross-examination. [ 23 ] The Court found the evidence of all Crown witnesses to be earnest and direct. Mr. Sim, in particular, was an observant and scrupulously truthful witness who, as a clearly community-minded citizen, sprang into action when he saw that help was needed. With respect to T.M., K.M. and C.W.R., I am confident that they sought to tell the truth about what happened to their friend, Mr. T..

There were no obvious indicia of deceit or dissembling in the content of their evidence or the way they presented it. It was, by and large, internally consistent, and consistent with the evidence of Mr. Sim. None of it defied common sense.

The Court must be guarded not to base findings of credibility on the impressions witnesses might make in the court room. [6] I would observe simply that there were no glaring inconsistencies between the accounts of pertinent events given by these witnesses, other than minor ones attributable ordinarily to differing perspectives and the normal operation of human observation and memory. Findings of fact [ 24 ] Based on the evidence which the Court heard, I would make the following findings of fact. Mr. A. was driving his parents ’ *

westbound on Willow Avenue in New Glasgow, with his friends T.M. and K.M. as passengers, when he saw Mr. T. and Mr. R. passingthe front yard of the Sim residence. Mr. A. came to a lawful full stop at the intersection of Willow Avenue and Mitchell Street where hehad a brief conversation with Mr. T. and Mr. R.. Conscious that he was stopped at an active intersection, Mr. A. proceeded through theintersection and stopped his vehicle in front of the home on the northwest corner of the Willow/Mitchell intersection so that he couldcontinue his conversation with Mr. T. and Mr. W. without obstructing traffic.

I am satisfied that Mr. T. stood at the driver’s doorspeaking with Mr. A.. Mr. Wallace stood on the other side of the *. After a short passage of time, the conversation among these youngmen came to an end, and Mr. A. decided to resume his journey up Willow Avenue. All at once, Mr. T. made an unannounced andspontaneous decision to hold on to the *. I do not believe that it was a coincidence that Mr. T. and Mr. W. did this at the same time; theCourt would draw the inference that one of the two decided to hold on, and the other, seeing what was happening, and given that Mr.

A.was driving slowly, felt safe to follow suit. I am unable to resolve the conflict between the evidence of Mr. Sim, that Mr. T. held on tothe driver’s door, and the evidence of Mr. R. that it was the rear door on the driver’s side. However, the Court finds as a fact that Mr. A.did not realize what Mr. T. was doing. Mr. A. had travelled only about 20 meters—an elapse of time of only a few seconds—when Mr.T. fell. Mr. A. stopped at that point, likely because of the reaction of T.M. who was seated in the rear bench seat and who saw Mr. T.falling. When Mr.

A. viewed the scene, he quickly realized what had happened, which accounts for his description of the mishap whenhe spoke with Mr. Deyoung and Sergeant Dipersio a short time later. [25] To reemphasize the key finding of fact, I have concluded that, when Mr. A. pulled away from the side of the road and started tomake his way further westbound on Willow Avenue, he did not know that Mr. T. was holding on. Accordingly, he did not allow it. Byall accounts, his driving was normal and prudent. There is absolutely no evidence before the Court that Mr.

A. drove at an excessive rateof speed, or that he drove erratically or haphazardly. There is no evidence that he was confronted by conflicting traffic. There is noevidence that he knew that Mr. T. had a habit of sketching. Mr. T. made a spontaneous and unannounced decision to hold on to thevehicle being driven by Mr. A.. Mr. A. operated that vehicle in a normal fashion. Tragically, Mr. T. fell to the road surface. Whatcaused Mr. T. to fall is not clear to the Court, as no accident-reconstruction evidence was presented to the Court. There was no forensicmedical evidence presented to the Court describing Mr.

T.’s injuries. The Court was not presented with evidence as to the condition orMr. T.’s skateboard or where it came to rest. Verdicts [26] The Court has found that Mr. A. did not allow Mr. T. to hold on to the vehicle he was operating; the Court has found as well thatMr. A. did not knowingly tow Mr. T.; accordingly, the Court must find Mr.

A. not guilty of the offence as charged as the evidence hasfailed to prove beyond a reasonable doubt one of the essential elements of that offence namely, the act of allowing and knowinglytowing. [27] I would add parenthetically at this point that, even if I were in error that the Crown cannot seek to found the criminal liability of theaccused on an application of para. 219(1)(

b) of the Code, the Court would remain of the view that guilt had not been established. TheCourt has found as a fact that Mr. A. was operating the * in a normal manner, well within the speed limit; the Court has found as wellthat Mr. A. was unaware of Mr. T. holding on as Mr. A. pulled away. This momentary and only partial loss of situational awarenesscannot be described as a wanton or reckless disregard for the lives or safety of other persons. [27] With respect to the included offence of dangerous driving, given that the Court has found that Mr.

A. was operating the vehicleunder his control in a normal fashion, and at a lawful rate of speed, I find that the evidence before the Court proves neither the actus reuselement of dangerous driving, nor the required mental element, as set out in

section 249 of the Code. In reaching this conclusion, I apply the principles set out in R. v. Beatty[7] that a momentary lapse in attention while driving, without more, does not constitute the offence ofdangerous driving. In this case, the testimony of Mr. Sim, T. M., K.M. and C.W. supports the Court’s finding of fact that Mr. A. wasoperating the * in a normal fashion, at a slow rate of speed. His only lapse was a momentary and partial loss of situational awareness innot observing that Mr. T. has holding on to the driver’s side of the vehicle.

This, in the Court’s view, does not constitute a markeddeparture from the conduct expected of a reasonably prudent driver. Accordingly, I would find Mr. A. not guilty of the includedoffence of dangerous driving causing death. [1] S.C. 2002, c. 1, ss. 13-14. [2] R.S.C. 1985, c. C-46, ss. 219-220. [3] R. v. Thatcher, (SCC), [1987] 1 S.C.R. 652 at 688, 32 C.C.C. (3d) 481 at 507, 57 C.R. (3d) 97 at 124, aff’g. (1986), (SK CA), 24 C.C.C. (3d) 449 at 506 (Sask. C.A.). [4] R. v. WIS Developments Corp.

Ltd., (1984), (SCC), 12 C.C.C. (3d) 129 at 136 (S.C.C.). [5] Oxford English Dictionary, 2d ed. (Oxford: Oxford University Press, 1989) vol. 1.

[6] See, e.g., Faryna v. Chorny (BC CA), [1951] B.C.J. No. 152 at para. 11 (C.A.); cited with approval in R. v. D.D.S.2006 NSCA 34 at para. 78. [7] 2008 SCC 5 at paras. 48, 52, 53.