2013 MBCA 62, 2013 MBCA 62

IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN : ) C. A. Vanderhooft HER MAJESTY THE QUEEN ) for the Appellant ) Appellant ) R. T.

Amy ) for the Respondent - and - ) ) ROLAND GRANT ARTIMOWICH ) Appeal heard: ) May 24, 2013 ) (Accused) Respondent ) Judgment delivered: ) July 4, 2013 CAMERON J.A. [ 1 ] After trial by judge alone, the accused was acquitted of the charges of criminal negligence causing death, dangerous operation of a motor vehicle causing death, and failing to remain at the scene of an accident with intent to escape from civil or criminal liability. All of the charges arose from a catastrophic motor vehicle collision resulting in the death of Odette Dequier.

The Crown only appeals his acquittal on the charge of dangerous operation of a motor vehicle causing death. For the reasons that follow, I would dismiss the Crown’s appeal. Facts [ 2 ] In the late afternoon/early evening hours of November 23, 2008, the accused was driving to Winnipeg from Morden. The posted speed limit on the highway on which he was travelling was 100 kilometres per hour, but, as the highway approached the nearby town of Oak Bluff, the speed limit reduced to 70 kilometres per hour and then to 50 kilometres per hour.

The accused did not reduce his speed in the 70 kilometres per hour zone, thereby causing him to drive into the back of a van travelling ahead of him, the driver of which had reduced his speed in response to a warning sign that the speed limit would soon turn to 50 kilometres per hour. As a result of being hit, the van was pushed into the oncoming lane of traffic, causing a head on collision with the pickup truck driven by the deceased. [ 3 ] The collision occurred just as the vehicles were entering the town of Oak Bluff. There was a community centre and a crosswalk in the area.

Intersecting the highway on one side was a driveway leading to the community centre, while on the other side, there was a driveway leading to a private residence. As a result of the collision, the car driven by the accused veered off the highway, onto the shoulder, across the community club driveway and vaulted ten metres through the air, landing in a field and sliding another 14 metres before finally coming to a stop. [ 4 ] The expert evidence revealed that, just after the impact with the van, the minimum speed of the car driven by the accused would have been 99 kilometres per hour.

According to the expert, the accused would have been travelling faster than 99 kilometres per hour prior to the impact, as the force of the impact would have slowed his car. The expert evidence also showed that the tail lights, but not the brake lights, of the van that was rear-ended by the accused were on at the time of the collision. [ 5 ] The driver of the van that the accused rear-ended testified that he had been travelling on the highway in the 100 kilometres per hour zone and reduced his speed to 70 kilometres per hour, as required by a road sign.

After reducing to 70 kilometres per hour, he observed a sign warning that the speed limit was reducing to 50 kilometres per hour as he was heading into town. He reduced his speed accordingly, so that by the time of the collision, he was travelling 50 kilometres per hour because he was just about to enter the 50 kilometres per hour zone. [ 6 ] Aside from the vehicles involved in the accident, there was one vehicle driving behind the pickup truck on the highway prior to the collision.

Thus, there were a total of four vehicles travelling relatively near each other on the highway in the area of the collision. [ 7 ] One of the police officers who was familiar with the area and attended to the scene testified that while it was not common for people to speed in the 50 kilometres per hour zone, it was common for people leaving Winnipeg (the opposite direction the

accused was going) to speed in the 70 kilometres per hour zone prior to reaching the 100 kilometres per hour zone. Nevertheless, he did agree that he had given tickets to people for not slowing to 70 kilometres per hour when entering that zone from the 100 kilometres per hour zone (the same direction as the accused was driving). [ 8 ] A video statement of one of the nearby residents who heard the collision was tendered in evidence.

In that statement, the resident said that, after hearing the collision, she looked outside her house and could see a van at the end of her lot and two vehicles at the end of her neighbour’s lot. She said that there were two exits from the community centre across the street from her house and that the collision took place between those two exits.

Regarding the traffic in the area, she said that the speed limit changes from 70 kilometres per hour to 50 kilometres per hour right in front of her neighbour’s house and that “you have to be really careful there.” She also said “people fly through there.” [ 9 ] The accused testified that he was driving on the highway heading toward Winnipeg when he noticed oncoming headlights and looked down to the shoulder of the road and the yellow line. He looked up again and saw two more oncoming lights so he put his head back down and that is when he noticed a sign go by, but did not catch what the sign said.

He then looked back up and saw a van seven to ten feet in front of him. He said that the van did not have any tail lights. He testified that, just prior to the collision, he had his cruise control set at 110 kilometres per hour, but that he stepped on the brake just before impact, thereby reducing his speed to 90 kilometres per hour. He denied knowing that he was in a 70 kilometres per hour zone, or that the speed limit was reducing to 50 kilometres per hour. Rather, he said he thought he was still in the 100 kilometres per hour zone when the collision occurred.

Decision of the Trial Judge [ 10 ] The trial judge acquitted the accused of the charges of criminal negligence causing death and dangerous operation of a motor vehicle causing death on the following basis: I have indicated throughout that I am missing information. I don’t know the distance between signs. I don’t know much about the surrounding area or the density of housing and population if any. As best as I can make out it was a highway approaching a town with reducing speed limits. The road appears to have been straight, at least nobody suggested otherwise.

The accused would have been travelling at 110 and at times 125 on the highway where the speed was 100 kilometres an hour. The evidence of the RCMP, the neighbours and the van driver would appear to suggest that speeding is chronic in the 70 mile [ sic ] per hour zone. Now, the fact that others speed doesn’t make it okay, but in combination with the other evidence that I have, it leads me to believe that the area leads drivers to believe that it is okay to proceed at highway speed.

Since both offences are to be assessed in the context of the surrounding circumstances , as I said, it is necessary to fill in the details of this picture. With the information that I have, I cannot say beyond a reasonable doubt that the driving rises to the level of dangerous driving or that the driver showed a wanton and reckless disregard. Accordingly, counts 1 and 2 are dismissed. [emphasis added] The Appeal [ 11 ] The Crown appealed on the following grounds: 1.

That the trial judge misapprehended the evidence in concluding that he had not been given sufficient information about the surrounding circumstances to determine that the accused’s driving was objectively dangerous. 2. That the trial judge erred in law in concluding that the accused’s driving was not objectively dangerous.

In argument, the Crown clarified that the error alleged was that the trial judge failed to consider that substantial inattention could justify a finding that the manner of driving was the result of a marked departure from the standard of care owed by a reasonable driver, being the mens rea standard for a conviction for dangerous driving. The Law [ 12 ] In the recent decision of R. v. Roy , 2012 SCC 26 , [2012] 2 S.C.R. 60 , the Supreme Court of Canada reviewed and explained its jurisprudence respecting the law of dangerous driving. In commenting on its seminal decision in R. v.

Beatty , 2008 SCC 5 , [2008] 1 S.C.R. 49 , Cromwell J., writing on behalf of the court, reinforced the actus reus of the offence (at paras. 33-34) : Beatty held that the actus reus for dangerous driving is as set out in s. 249(1)(

a) of the Code , that is, 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’” ([ Beatty at] para. 43 ).

In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances.

The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. …. [emphasis added] [ 13 ] In Roy , Cromwell J. went on to emphasize that in Beatty , Charron J., writing for the majority of the court, underscored that “[t]here must be a meaningful inquiry into the manner of driving” (at para. 34). [ 14 ] If the court finds that the manner of driving was objectively dangerous the court proceeds to determine whether the appropriate mens rea has been proved, as explained by Cromwell J. (at paras. 36-37): The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances ( Beatty , at para. 48 ).

It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.

As noted earlier, Charron J., for the majority in Beatty , put it this way: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy” (para. 34). The Chief Justice expressed a similar view: “Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving.

But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving ” (para. 71). [emphasis added] The Position of the Crown [ 15 ] Respecting the first ground of appeal, the Crown agrees that the trial judge correctly stated the law regarding the offence of dangerous driving.

Nevertheless, it argues that the trial judge erred in materially misapprehending the evidence by finding that the accused’s manner of driving was not objectively dangerous. [ 16 ] First, the Crown argues that the trial judge failed to make findings of fact based on the evidence that he had before him and he failed to draw the appropriate inferences.

Next, the Crown contends that, with respect to the trial judge’s concerns that there was no evidence of the location of the speed limit signs, warning sign or of the length of the 70 kilometres per hour speed zone, the trial judge ignored the evidence of the driver of the van that there were signs and that the 70 kilometres per hour zone extended 500 to 800 metres before reducing to 50 kilometres per hour.

Further, the Crown argues that it was inappropriate for the trial judge to infer that, based on the evidence before him, the area leads drivers to believe that it is permissible to speed, when such an inference was contrary to the evidence. Finally, the Crown argues that the trial judge erred when he stated that he did not “know much about the surrounding area” because the trial judge ignored the evidence that the accused was approaching a town, a reduced speed zone, a community centre, a crosswalk and at least two residences in the area.

Also, across a nearby intersecting highway, there was a gas station and strip malls. [ 17 ] Respecting its second ground of appeal, the Crown relies on this court’s decisions in R. v. Manty (C.) , 2006 MBCA 25 , 201 Man.R. (2d) 310 , and R. v. Duchominsky (M.) , 2003 MBCA 19 , 170 Man.R. (2d) 270 . Both cases upheld convictions for dangerous driving in circumstances where the trial judge found that substantial inattentiveness on the part of the accused driver constituted a marked departure from the standard of care owed.

In this case, the Crown contends that the trial judge erred in law in not considering that “substantial inattention” could be the basis for a finding that the accused’s driving was a marked departure from the standard of care expected of a reasonable person in his circumstances, thereby fulfilling the mens rea requirement for a conviction of dangerous driving. Specifically, the Crown contends that the trial judge did not consider the speed limit signs and speed reduction sign, the activated tail lights of the van in front of the accused or the fact that the accused was entering a small town.

Further, the Crown states that, as in Manty , the accused’s evidence that he was only watching the oncoming traffic and roadway was sufficient to constitute a marked departure. The Position of the Accused [ 18 ] The accused maintains that the trial judge properly exercised his discretion in refusing to draw the inferences requested by the Crown. He contends that the issue of misapprehension of evidence, as raised by the Crown in the context of this case, constitutes a matter of mixed fact and law and, therefore, there is no jurisdiction for this court to entertain the appeal. Alternatively, he argues that a

standard of deference should be applied. [19] With respect to the issue of substantial inattention, the accused distinguishes Manty and Duchominsky on the facts ofthose cases. Also, he points out that in those cases, unlike in this case, there was evidence before the court regarding the number andnature of the signs that the accused was alleged to have been inattentive to. [20] The accused contends that a finding of dangerousness is essentially a fact-driven exercise and entitled to deference.

Further, he argues that the issue of substantial inattention was argued by the Crown and considered by the trial judge, despite the factthat the actual words “substantial inattention” were not used. Analysis [21] This court’s jurisdiction to hear a Crown appeal from an acquittal of an indictable offence is limited to “any ground ofappeal that involves a question of law alone” (see s. 676(1)(

a) of the Criminal Code). Where the ground of appeal involves a factualcomponent, it is not often that it will raise a question of law alone. Nonetheless, the jurisprudence currently recognizes at least fourtypes of cases in which the mishandling of evidence may constitute an error in law, giving this court jurisdiction to hear the Crown’sappeal of an acquittal. This list may not be exhaustive. [22] First, it is an error of law to make a finding of fact for which there is no evidence.

However, a conclusion that the trierof fact has a reasonable doubt is not a finding of fact, for the purposes of this rule. [23] Second, the legal effect of the findings of fact, or of undisputed facts, may raise a question of law. There can only beappellate intervention on the evidentiary foundation as found by the trial judge.

Appellate courts should not interfere based on “adifferent theory of the facts and the inferences that could be drawn from those facts” as that is not a question of law alone (see R. v.Morin, (SCC), [1992] 3 S.C.R. 286 at 297). [24] Third, an assessment of the evidence based on a wrong legal principle is an error of law. [25] Fourth, the trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is anerror of law, but this error will be found to have been committed only if the reasons demonstrate the failure.

A finding of reasonabledoubt does not have to be based on the evidence; it could arise from the absence of evidence or a simple failure of the evidence topersuade the trial judge to the requisite level of beyond reasonable doubt. It is only where that reasonable doubt is tainted by a legalerror that appellate intervention in an acquittal is permitted. See R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, R. v. R.G.B., 2012MBCA 5, 275 Man.R. (2d) 119, and R. v.

Koczab (A.), 2013 MBCA 43. [26] In reviewing the decision of the trial judge, the court can consider the reasons of the trial judge in the context of theentire record, including the arguments of counsel. See R. v. Rocha (S.), 2009 MBCA 26 at para. 31, 236 Man.R. (2d) 213. [27] In this case, the trial judge commenced his decision with a comprehensive review of all of the evidence.

Admittedly, itwould have been helpful if the trial judge had made discrete findings of fact with respect to some of the issues raised by the evidence; forexample, whether the tail lights of the van that the accused rear-ended were on or not. Despite this, there is no question that he was aliveto the evidence. [28] After reviewing the evidence, the trial judge correctly stated the law before concluding that the evidence did not satisfyhim of the accused’s guilt beyond a reasonable doubt.

In his reasons, the trial judge did not specify whether he found that the actus reusof the offence had not been proved or the mens rea. However, the language he used suggested that he found that neither had been provedbeyond a reasonable doubt. Further, he did not specify what role, if any, the testimony of the accused played in his decision to acquit theaccused of the dangerous driving charge, as recommended in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742.

However, at theend of the day, it was clear from the trial judge’s reasons that he had considered the evidence before him and concluded that it wasinsufficient to sustain a conviction of dangerous driving. [29] Moreover, and contrary to the Crown’s submission, the trial judge did not ignore the evidence proffered by the Crown. For example, he did not deny that there was a sign advising drivers that they were entering a 70 kilometres per hour zone and a warningsign telling drivers there was a 50 kilometres per hour zone approaching.

Rather, he said that he could not determine where those signswere in relation to where the collision occurred and, therefore, what degree of responsibility should be attributed to the accused forfailing to notice them. [30] During submissions by counsel, and again in his reasons, the trial judge stated that he did not feel he had enoughevidence of “all the circumstances” of the surrounding area to make a determination with respect to the nature of the accused’s driving.

In response, the Crown points out that there was a community centre in the area, there was a crosswalk sign, there were at least tworesidences in the area, the accused was approaching a town and there were four vehicles on the highway at the time of the collision. However, the trial judge acknowledged all of these facts in his exchange with the Crown at the trial (not the same as the Crown on thisappeal), but expressed the following concerns:

a) the road surface was safe to drive on;

b) nobody suggested there were people around;and

c) there was no evidence about how close the residences or other buildings were to the highway or whether there were any fieldsbetween the structures and the highway. As I earlier indicated, he was also concerned that there was no evidence respecting where the70 kilometres per hour sign or the 50 kilometres per hour warning sign were in relation to the collision. [31] The trial judge understood the evidence; however, he did not find it sufficient to convince him beyond a reasonabledoubt.

Indeed, this ground of appeal falls into the category of cases confirming that a finding of reasonable doubt does not have to bebased on the evidence; it could arise from the absence of evidence. It is not, therefore, an error in law. This concept was succinctlysummarized by Freedman J.A. & Chartier J.A. (as he then was), in R.G.B. (at para. 13):

As the accused has the right to the presumption of innocence, he or she is under no obligation to present an evidentiary foundation to raise a reasonable doubt. This is in stark contrast to the burden which rests on the Crown to call the necessary evidence to prove its case beyond a reasonable doubt. The point being, while it is necessarily an error in law to convict an accused in the absence of evidence, the reverse is not true.

It is not an error in law to acquit an accused where there is some evidence of the offence; if there is an error, it would be either an error of mixed fact and law or an error of fact. .... [ 32 ] While it is true that the trial judge did not draw certain inferences from the proved facts, as argued by the Crown, and another judge might, indeed, have drawn those inferences and convicted the accused, failure to do so does not constitute an error of law in these circumstances and this court is without jurisdiction to consider such a ground on a Crown appeal from an acquittal. [ 33 ] I would, therefore, not accede to the Crown’s first ground of appeal that the trial judge misapprehended the evidence. [ 34 ] With respect to the Crown’s second ground of appeal, it is founded in the Crown’s submission that the trial judge failed to consider that substantial inattention could ground a conviction for dangerous driving.

It is unclear whether the case law relied on by the Crown in this appeal was presented to the trial judge. However, regardless of whether the trial judge had that case law, a review of the record indicates that the issue was argued by the Crown and that the trial judge understood the issue. For example, in closing argument, the Crown submitted that the accused should be convicted on the basis of his speeding, combined with his inattentiveness.

At one point, the following exchange occurred: THE COURT: I mean, we do have -- I’m sorry, we do have the evidence of, of, of the police that you have to be in excess of, of a hundred -- substantially in excess of a hundred before you get a ticket. [THE CROWN]: And he was in a 70 zone. THE COURT: Did he -- but he didn’t know he was in a 70 zone. [THE CROWN]: He didn’t know that, but that’s not a defence, simply to say I didn’t know I was in a 70. What’s important in these types of cases is that it demonstrates that he was being totally inattentive to his surroundings.

THE COURT: Right. [ 35 ] In this exchange, the trial judge appears to have accepted the accused’s evidence that he did not know that he was in a 70 kilometres per hour speed zone at the time of the collision. [ 36 ] After the above discussion, the Crown proceeded to list all of the factors which I have already reviewed in support of the contention that the accused was substantially inattentive to his surroundings.

In response, the trial judge stated: THE COURT: I mean, the significance of this discussion obviously is whether or not he actually should have seen a 50 -- slowed down, 50s coming up, sign before impact. [THE CROWN]: I’m sorry, say that again.

THE COURT: We’re discussing, effectively, whether or not the accused ought to have seen a slow down there is a 50 zone coming up, whether he passed that sign also before the impact, or did the impact take place immediately prior to that sign. [THE CROWN]: Well, he did say that there -- THE COURT: And it’s not a decisive factor, but these things add up. [ 37 ] Further discussion respecting the sign occurred, wherein the court explained its concern:

[THE CROWN]: … We know from Mr. DuVal that that impact occurred approximately a hundred yards before the actual 50 zone. THE COURT: Well, you know, I understand, I understand that that warning sign was very close, okay, but it seems to me that in terms of culpability adding, adding up, it makes a difference whether the 50 warning sign is 50 yards before area of impact, 20 yards before area of impact or two feet, because if it’s only two feet before area of impact, then the inattention that caused him to hit the van is sort of a package with the sign.

If it was 20 yards or 30 yards before impact, then you can argue that he should have seen it and slowed down, thereby avoiding the impact, and I’m not sure -- [THE CROWN]: Well -- THE COURT: -- that I’m in a position to place the sign that precisely. [THE CROWN]: I’m not sure how much concern the court should have. The point is he also passed a 70 sign.

THE COURT: No, I understand that. [THE CROWN]: So -- THE COURT: I understand. [THE CROWN]: And given the fact that he wasn’t even aware of that and wasn’t even aware that he was even approaching a town, in my respectful view -- THE COURT: I understand. [THE CROWN]: -- all goes to the point that he’s just not paying attention.

THE COURT: Right. [ 38 ] Thus, at the end of the day, while the trial judge stated in his reasons that, based on the evidence, he could not “say beyond a reasonable doubt that the driving rises to the level of dangerous driving,” it is clear that he did consider the issue of substantial inattention, whether it constituted a marked departure in this case, in reaching the conclusion that the Crown had not proved the charge beyond a reasonable doubt. [ 39 ] To sum up, there are a number of situations where a mishandling of the evidence may rise to the level of an error in law.

In this case, the evidence failed to convince the trial judge to the requisite level of beyond a reasonable doubt. In another situation, this manner of driving might have grounded a conviction. However, this is not an error in law on the part of the trial judge. It is only where that finding of reasonable doubt is tainted by a legal error that appellate intervention in an acquittal is permitted. I see no such legal error here. [ 40 ] In conclusion, for all of the above reasons, I would dismiss the appeal. J.A. I agree: J.A.

I agree: J.A.