2010 QCCA 2287, 2010 QCCA 2287

Dorval c. R. 2010 QCCA 2287 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004398-093 (450-01-047903-062) RECORD OF PROCEEDINGS DATE: NOVEMBER 30, 2010 CORAM: THE HONOURABLE ANDRÉ BROSSARD J.A. JULIE DUTIL J.A. GUY COURNOYER J.A. (AD HOC) APPELLANT(

S) COUNSEL BENOÎT DORVAL Mtre Michel Dussault DUSSAULT, RAYMOND, POLIQUIN, AVOCATS RESPONDENT(

S) COUNSEL HER MAJESTY THE QUEEN Mtre Karine Frenette CRIMINAL AND PENAL PROSECUTOR COUNSEL On appeal from a judgment rendered on April 28, 2009, by the Honourable Judge Michel Beauchemin of the Court of Quebec, Criminal and Penal Division, District of Saint-François. NATURE OF APPEAL: CONVICTION – DANGEROUS DRIVING

Court clerk: MARC LEBLANC Courtroom: PIERRE-BASILE-MIGNAULT HEARING 9:35 a.m. Start of hearing. 9:35 a.m. Submissions of Mtre Frenette. 10:04 a.m. Suspension of hearing. 10:10 a.m. Hearing resumed. Mtre Dussault made no submissions. Judgment rendered – see page 3. 10:12 a.m. End of hearing. Marc Leblanc Court clerk PER CURIAM JUDGMENT [ 1 ] For the reasons that shall be filed subsequently, the Court: [ 2 ] ALLOWS the appeal; [ 3 ] SETS ASIDE the trial judgment; [ 4 ] ACQUITS the appellant of the charge brought against him. ANDRÉ BROSSARD J.A. JULIE DUTIL J.A.

GUY COURNOYER J.A. (AD HOC) Dorval c. R. 2010 QCCA 2287 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004398-093 (450-01-047903-062) DATE: JANUARY 6, 2011 CORAM: THE HONOURABLE ANDRÉ BROSSARD J.A. JULIE DUTIL J.A. GUY COURNOYER J.A. (AD HOC) BENOIT DORVAL APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix REASONS OF COURNOYER J.A. (AD HOC) FOR THE JUDGMENT DELIVERED FROM THE BENCH ON NOVEMBER 30, 2010 [1] The appellant appeals a judgment, rendered on April 28, 2009, by Mr.

Justice Michel Beauchemin of the Court of Quebec (Criminal and Penal Division), District of Saint-François, convicting him of dangerous operation of a motor vehicle causing bodily injury. [2] This appeal requires analysis of the scope of the ruling by the Supreme Court in R. v.

Beatty [1] and its application by the trial judge. [3] The appeal was allowed, from the bench, on November 30, 2010, in the following terms: [ translation ] For the reasons that shall be filed subsequently, the Court: ALLOWS the appeal; SETS ASIDE the trial judgment; ACQUITS the appellant of the charge brought against him. [4] Here are the reasons, with which Brossard and Dutil JJ.A. agree. I – The facts [ 5 ] The charge arises from an accident that occurred on August 22, 2006, when the appellant tried to pass in an area that was relatively short for that purpose, about 252 m.

When he started to pass, the appellant saw an oncoming motorcycle, but it was already too late. He was unable to pull back and re-enter his lane and had a collision with the motorcycle. Unfortunately, the driver of the motorcycle suffered serious bodily injury as a result of the accident. II – The judgment under appeal [ 6 ] The judgment under appeal was rendered orally and is difficult to summarize because of the way it is worded. [ 7 ] According to the facts accepted by the trial judge, the victim was driving the motorcycle at a normal speed. The appellant,

who knows the road well, was driving behind three vehicles, two of which were immediately in front of him, with the other a little farther ahead. [ 8 ] According to the trial judge, the appellant was trying to pass the first two vehicles when he suddenly saw the headlamp of the motorcycle driven by the victim and was not able to pull back into the right-hand lane.

The trial judge notes that the appellant admits that he exceeded the speed limit, but he does not draw any clear or specific conclusion about the actual speed when the appellant was passing the vehicles. [ 9 ] According to the trial judge, the visibility, the condition of the pavement and the configuration of the highway cannot explain the accident that occurred. Only the place where the accused started to pass and the short passing zone can explain it. [ 10 ] Although he drew no conclusion about the appellant’s speed when he was passing, the judge stressed that he was in a hurry.

He added that caution was called for because of the foreseeable presence of deer in the fields near the road. [ 11 ] He also stated that the appellant did not see the motorcycle, which was coming out of a curve, and that, according to the appellant, the lane was clear when he started to pass. [ 12 ] He said that the appellant’s version was completely contradicted by the witnesses, but did not specify which aspects of it. [ 13 ] He stated that the driver following the appellant suspected an accident would occur because she saw the motorcycle enter the straightaway.

Moreover, he said that the driver of the vehicle that the appellant was trying to pass was surprised to see him on her left because a motorcycle had been approaching from the opposite direction for a while. According to this witness, the appellant was driving too fast to return to the right-hand lane. [ 14 ] After referring to the

summary of Beatty , the trial judge said the following: [ translation ] In this matter, the Court concludes that the appellant’s conduct, seen objectively, constitutes a marked departure from the standard expected of a reasonably prudent person. The actus reus of the offence is proven beyond any reasonable doubt. Normal speed, a short time in which to pass, several vehicles ahead of him, the risk involved in any…any type of passing. Is the evidence re… regarding the state of mind of the accused sufficient to raise a reasonable doubt about mens rea ?

In this case, the Court believes, in light of all the evidence, that it must disregard the explanations provided by the accused. All the facts observed, the testimony given, lead the Court to conclude that a reasonable person should have been aware of the risk and the danger involved in … involved in passing two (2) … two (2) vehicles in such a short space. A reasonably prudent person would not have effected such a manoeuvre, which the Court can certainly qualify as dangerous and as a risk that should not have been taken.

Accordingly, the accused is found guilty of dangerous driving causing bodily injury, and I order a stay of proceedings on the charge of criminal negligence causing bodily injury. III – Grounds of appeal [ 15 ] The appellant alleges that the trial judge erred in applying W. (D.) [2] and Beatty . [ 16 ] According to the appellant, the judgment is difficult to interpret because it does not clearly state the decision-making process followed, the findings of fact are not clear and it contains little detail and is even vague in respect of certain important aspects.

IV – Analysis [ 17 ] The written arguments of the parties propose their respective

interpretations of the meaning of the trial judgment. They demonstrate that the appellant’s criticism is justified. [3] [ 18 ] The trial judge neither refers to W. (D.) nor follows the reasoning process proposed in it.

Of course, the whole may be without consequence, for as C.L.Y. teaches us, “The key is whether the correct burden and standard of proof were applied, not what words were used in applying them.” [4] [ 19 ] In this case, however, it is not possible to determine whether the correct burden and standard of proof were applied. [ 20 ] On the one hand, the trial judge states that the appellant’s testimony was completely contradicted by the evidence. But that is not the case. The only aspect where there is possibly a genuine contradiction is the speed at which the other automobiles were travelling.

I use the word “possibly” because even in this regard the appellant admits that it is possible that he and the other vehicles were travelling at 90 km/h rather than between 70 km/h and 90 km/h. [ 21 ] On the other hand, the trial judge never states clearly which aspect of the appellant’s testimony he rejects.

Somehow, one can say that the trial judge states by his conclusion that he does not believe the appellant, but he does not give reasons for such a conclusion. [5] [ 22 ] It is risky, as in this case, to draw conclusions regarding credibility from the silence of a trial judge, although it must be borne in mind that each case presents itself differently.

As professor Hamish Stewart explains, the exercise is difficult because of its speculative nature: [U]nstated reasons on matters of credibility leave an appellate court in the difficult position of speculating about what a trial judge’s reasons for accepting or rejecting testimony might have been. [6] [ 23 ] R. v. R.E.M. [7] and R. v. H.S.B. , [8] judgments to which the appellant refers, state the test that must be respected by an

appellate court. [24] In H.S.B., McLachlin C.J. wrote on behalf of the Court: As explained in R.E.M., a trial judge’s reasons serve three main functions – to explain the decision to the parties, to provide publicaccountability and to permit effective appellate review. These functions are fulfilled if the reasons for judgment explain the basis for thedecision reached. The question is not whether a different verdict could have been reached on the evidence. Nor is the question whetherthe reasons detail every step of the reasoning process or refer to every piece of evidence or argument led by counsel.

The task for theappellate court is simply to ensure that, read in the context of the entire record, the trial judge’s reasons demonstrate that he or she wasalive to and resolved the central issues before the court.[9] [Emphasis added] [25] The issue is therefore to determine whether, “read in the context of the entire record, the trial judge’s reasons demonstrate thathe or she was alive to and resolved the central issues before the court”. [26] In the present case, the application of Beatty, rendered in 2008, required special care on the part of the trial judge in thedrafting of his judgment. [27] As Binnie J. states in R. v.

Sheppard: 6.

Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or toresolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record,even without being articulated.[10] [28] Since Beatty, case law[11] and commentary[12] have shown that it is particularly wise in matters involving dangerous drivingto respect the principle set out by Binnie J. in Sheppard. [29] One must note, however, that the trial judge did not have the benefit of the recent decisions by this Court applying Beatty,particularly Desbiens, rendered in 2009.[13] [30] Desbiens, like Beatty, stresses the importance of properly distinguishing between civil fault and dangerous driving under theHighway Safety Code on the one hand, and dangerous driving within the meaning of

section 249 of the Criminal Code. Such an analysisis not found in the trial judgment, which merely concludes that a marked departure from the standard took place. [31] In Desbiens, this Court cites the words of Cory J. in Hundal. The Court wrote: [translation] In R. v.

Hundal, (SCC), [1993] 1 S.C.R. 867, Cory J. wrote, at page 893: … Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civilresponsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code.[14] [32] In Beatty, Charron J. wrote the following about the importance of distinguishing between the different standards of fault: In my respectful view, the approach advocated by the Crown does not accord with fundamental principles of criminal justice.Unquestionably, conduct which constitutes a departure from the norm expected of a reasonably prudent person forms the basis of bothcivil 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 blameworthyconduct. Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct thatdeviates from the norm, which establishes the actus reus of the offence, but with the offender’s mental state. The onus lies on theCrown 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. The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea fornegligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm fordetermining civil negligence. It does so in two important respects.

First, there must be a “marked departure” from the civil norm in thecircumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civilnegligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a markeddeparture from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on thebasis of that conduct alone, a blameworthy state of mind.

Second, unlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective testfor penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonableperson in the accused’s position would have been aware of the risks arising from the conduct. The fault lies in the absence of therequisite 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 havebeen aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be anacquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact. This isnecessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished.[15] [Emphasis added] [33] In their book Criminal Law, Mewett, Manning and Sankoff give a good

summary of the impact of Beatty. They write asfollows: It follows that whatever the implications for criminal law theory may be, Beatty does not amount to a dramatic shift in the conceptualapproach to dangerous driving. The key to the offence remains firmly fixed upon whether the driving of the accused, in all thecircumstances, was a marked departure from the standard of a reasonably prudent driver. All things considered, the most significantaspect of Beatty for the application of

section 249 may have been the least remarked upon: a simple recognition that the criminal lawmust be applied with restraint, and the unanimous agreement of the Court that where a socially useful activity such as driving wasconcerned, “[t]he heavy sanction and stigma that follow a criminal offence should not be visited upon a person for a momentary lapse ofattention”. Prior to Beatty, many courts focused their attention exclusively upon the conduct at the core of the offence, concluding thatcertain types of driving – for example, crossing into oncoming traffic while driving in perfect conditions – were always dangerousenough to contravene

section 249, unless some unexplained and sudden phenomena demanded a different approach. In Beatty, theSupreme Court sensibly recognized that this narrow view was undesirable, and risked imposing the criminal sanction on a civilnegligence standard.

Dangerousness needs to be assessed in a wider sense, and the key to the marked departure test – whether part ofthe actus reus or mens rea – is that the conduct in question was more than simply negligence; rather, it amounted to driving so poorlythat the stigma of a criminal sanction was warranted.[16] [34] As the authors state, not all motor vehicle accidents give rise to the commission of a criminal offence: While most accidents are preventable, this does not mean that every collision involves criminal conduct, even where a member of thepublic has died or is seriously harmed in the process.[17] [35] In Beatty, Charron J. also states that the required analysis calls for prudence.

It is the manner in which the vehicle wasoperated that is at issue, not the consequence of said operation: As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequenceof the driving. The consequence, as here where death was caused, may make the offence a more serious one under s. 249(4), but it has nobearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. Again, this is also animportant distinction.

If the focus is improperly placed on the consequence, it almost begs the question to then ask whether

an act thatkilled someone was dangerous. The court must not leap to its conclusion about the manner of driving based on the consequence. Theremust be a meaningful inquiry into the manner of driving. The consequence, of course, may assist in assessing the risk involved, but itdoes not answer the question whether or not the vehicle was operated in a manner dangerous to the public. This Court explained thisdistinction in R. v. Anderson, (SCC), [1990] 1 S.C.R. 265, as follows: In the circumstances of this case, the unfortunate fact that a person was killed added nothing to the conduct of the appellant.

The degreeof negligence proved against the appellant by means of the evidence that he drove after drinking and went through a red light was notincreased by the fact that a collision occurred and death resulted. If driving and drinking and running a red light was not a markeddeparture from the standard, it did not become so because a collision occurred. In some circumstances, perhaps, the actions of theaccused and the consequences flowing from them may be so interwoven that the consequences may be relevant in characterizing theconduct of the accused.

That is not the case here. [Emphasis added; p. 273.][18] [Emphasis added by Charron J.] [36] One must therefore bear in mind the principle stated by Charron J.: The heavy sanctions and stigma that follow from a criminal offence should not be visited upon a person for a momentary lapse ofattention.[19] [37] The mistake of fact committed by the appellant in his assessment of the circumstances in which he found himself does notsupport a conclusion that the stigma of a criminal offence must be visited upon him. [38] The heart of the appeal is, moreover, set forth well in the respondent’s written argument: [translation] 12.

The judge believed the accused when he said that he did not see the motorcycle because he referred to it when he passed sentence.The judge does not specifically say whether he took into consideration that the motorcycle was visible at the start of the manoeuvre, butthis omission does not establish that an error of law was committed. The judgment reveals that this aspect of the evidence was notdecisive in determining that a marked departure from the standard of a prudent and diligent driver occurred.

The mere fact that theaccused passed at this location was sufficient to convince the trial judge, as the following remarks show: All the facts observed, the testimony given, lead the Court to conclude that a reasonable person in similar circumstances would havebeen aware of the risk and the danger involved in … passing two (2) … two (2) vehicles in such a short space. [Emphasis added]

[ 39 ] In the circumstances, the mere action of passing was not sufficient to support a finding of a marked departure. [20] [ 40 ] Moreover, contrary to the position expressed by the respondent, if the trial judge believed the accused when he testified that he did not see the motorcycle, he should have taken that into account when assessing whether there was a marked departure. [ 41 ] Indeed, a mistake of fact capable of raising a reasonable doubt occurred in this case. Mistake of fact in assessing the circumstances can provide a defence against a charge of dangerous driving.

Charron J. wrote in Beatty : In the same vein, a reasonably held mistake of fact may provide a complete defence if, based on the accused’s reasonable perception of the facts, the conduct measured up to the requisite standard of care . It is therefore important to apply the modified objective test in the context of the events surrounding the incident.

In Tutton , McIntyre J. provided the following useful example in the context of a criminal negligence charge (at p. 1432, repeated in Hundal , at pp. 887-88): If an accused under s. 202 has an honest and reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the reasonableness of his conduct .

For example, a welder, who is engaged to work in a confined space believing on the assurance of the owner of the premises that no combustible or explosive material is stored nearby, should be entitled to have his perception, as to the presence or absence of dangerous materials, before the jury on a charge of manslaughter when his welding torch causes an explosion and a consequent death. [21] [ Emphasis added] [ 42 ] The appellant’s mistake of fact in his assessment of the situation and of his ability to pass safely therefore should have been considered by the trial judge. [ 43 ] In addition, in response to a question by the prosecution during cross-examination, the appellant explained the following: [ translation ] Well, when I started to pass, I didn’t know they were as close together as all that.

I was sure I could get back into the lane, in front of them. But once I passed … well, I could see I was trying to get back into the lane but it wasn’t gonna work. [ 44 ] During the appeal hearing, counsel for the respondent, with good reason, candidly admitted the importance of this answer by the appellant. [ 45 ] Moreover, I would like to point out that, contrary to the assertion of the trial judge, the appellant’s version was not completely contradicted.

For example, regarding an important aspect, the driver who was following the appellant concluded herself that he didn’t see the motorcycle when he started to pass. [ 46 ] In this case, passing in an authorized zone, even if it is relatively short, cannot in itself establish a marked departure from the standard of a prudent driver. Moreover, the fact that the appellant did not see an oncoming motorcycle and committed a reasonable mistake of fact in assessing the space available to re-enter his lane does not support the conclusion that his conduct was a marked departure from the conduct of a reasonable person.

As regards the mistake of fact made by the appellant, his conduct measured up fully to the requisite standard of care. [ 47 ] Therefore, all of the circumstances, and in particular the appellant’s reasonable mistake of fact, which the judge did not take into account in any way, should have given rise to an acquittal. V - Conclusion [ 48 ] For these reasons, the Court, from the bench, allowed the appeal, set aside the trial judgment and acquitted the appellant. ANDRÉ BROSSARD J.A. JULIE DUTIL J.A.

GUY COURNOYER J.A. (AD HOC) Mtre Michel Dussault Dussault, Raymond, Poliquin, Avocats For the appellant Mtre Karine Frenette Criminal and penal prosecutor

For the respondent Date of hearing: November 30, 2010