2011 QCCA 1598, 2011 QCCA 1598

Unofficial English Translation Bélanger c.

R. 2011 QCCA 1598 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002566-102 (655-01-002767-084) RECORD OF PROCEEDINGS DATE: September 8, 2011 CORAM: THE HONOURABLE ANDRÉ BROSSARD, J.A. (JB1632) FRANÇOIS DOYON, J.A. (JD1630) NICHOLAS KASIRER, J.A. (JK0204) APPELLANT COUNSEL FRÉDÉRICK BÉLANGER Mtre JEAN-CLAUDE DUFOUR (AD7595) (Jean-Claude Dufour, Lawyer) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre ROBIN TREMBLAY (AV7792) (Criminal and penal prosecuting attorney) Appeal from a judgment rendered on September 14, 2010, by the Honourable Judge Nathalie Aubry of the Court of Quebec, District of Baie-Comeau.

NATURE OF THE APPEAL: Dangerous driving causing bodily harm – Dangerous driving causing death (guilt) Clerk: Michèle Blanchette (TB3352) Room: 4.33

HEARING 11:38 a.m. Representations of Mtre Dufour; Representations of the Court; 12:08 p.m. Representations of Mtre Tremblay; Representations of the Court; 12:35 p.m. Reply of Mtre Dufour; Representations of the Court; 12:36 p.m. Recess; 12:41 p.m. Judgment. (

s) Hearing clerk PER CURIAM JUDGMENT FOR THE REASONS THAT WILL BE FILED IN THE RECORD, THE COURT: [ 1 ] ALLOWS the appeal; [ 2 ] OVERTURNS the trial judgment; [ 3 ] ACQUITS the appellant on both counts. ANDRÉ BROSSARD, J.A. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A.

Bélanger c. R. 2011 QCCA 1598 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002566-102 (655-01-002767-084) DATE: September 9, 2011 CORAM: THE HONOURABLE ANDRÉ BROSSARD, J.A. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. FRÉDÉRICK BÉLANGER APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix REASONS FOR JUDGMENT DELIVERED FROM THE BENCH ON SEPTEMBER 8, 2011 [1] The appellant appeals from a judgment delivered on September 14, 2010, by the Court of Quebec, District of Baie-Comeau (the Honourable Judge Nathalie Aubry), which convicted him of having driven his motor vehicle dangerously and having caused bodily harm to Michel Bisson and the death of Michel Rostand. [2] The accident occurred on October 7, 2007, at around 7:30 p.m., on highway 138 near Baie-Comeau. The appellant was at the wheel of a Jeep Grand Cherokee, accompanied by Mr. Bisson, a friend.

He was travelling behind a Ford F-150 pickup truck driven by Rémi Caron. Mr. Caron was driving his vehicle at a speed of between 90 and 95 km/h in a 90-km/h zone. [3] The appellant decided to pass the Ford pickup truck. He knew that a passing zone was coming up shortly, indicated by a broken line on the road. Believing that this zone was not [TRANSLATION] “very long”, he decided to start passing immediately and to cross the double solid line indicating that passing is prohibited, in the expectation that the broken line would appear soon. He testified at the hearing that Mr.

Caron’s pickup truck was blocking his view. To pass his vehicle, he said that he [TRANSLATION] “moved over a little bit” to check if a car was coming in the other direction. Not seeing anyone, he began to pass. [ 4 ] The appellant testified that he did not travel at more than 100 km/h, even during the pass. [ 5 ] At the place where the appellant tried to pass, there is a slope in highway 138 so that, momentarily, a driver travelling at night in his direction cannot see the headlights of oncoming vehicles in the other lane. [ 6 ] At the very moment the appellant began to pass the Ford pickup truck, Mr.

Rostand was travelling on the 138 in the other direction. He was at the wheel of a Pontiac Bonneville. When the appellant saw the Pontiac coming directly towards him in the other lane, it was already too late. He could not move back into his lane because his vehicle was parallel to the Ford pickup truck. The appellant’s vehicle then collided with Mr. Rostand’s Pontiac. The impact occurred on the shoulder, where both drivers had swerved to in the instant before the collision. Mr. Rostand died on impact. Mr. Bisson suffered a fractured left femur.

The appellant injured his ankle. [ 7 ] The evidence contains admissions by both parties that neither driver had alcohol or narcotics in his blood at the time of the accident and that both vehicles were in good working order. *** [ 8 ] After noting the relevance of Beatty [1] to the case, the judge wrote [TRANSLATION] “in dangerous driving cases, the conduct necessary for a conviction is conduct that is dangerous and that is a marked departure from reasonable conduct” (paragraph [11]).

She found that the appellant had knowingly and deliberately decided to pass a vehicle when the road markings clearly indicated that passing was prohibited (paragraph [14]). For the judge, passing on a double solid line constituted dangerous driving that was a marked departure from the conduct of a reasonable person (paragraphs [15] and [20]). The judge refused to excuse the appellant’s

conduct, despite his claim that he did not know that there was a drop in the 138 at that location, because he was familiar with the highway (paragraph [17]). Nor did she accept his argument that he could not be blamed for having decided to drive onto the shoulder when Mr. Rostand did the same thing (paragraph [21]). The judge found the appellant guilty on two counts of dangerous driving. *** [ 9 ] There is no reason to deny or trivialize the tragic consequences of the appellant’s actions.

Yet, we must not lose sight of the fact that he is accused of a serious offence that requires proof of mens rea beyond a reasonable doubt. [ 10 ] In R. v. Hundal , [2] Cory J. wrote that penal negligence for dangerous driving is at the far end of a negligent driving “continuum”: ...

Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code . [ 11 ] It is not a matter of determining whether the appellant drove carelessly, in the sense of civil negligence or within the meaning of the Highway Safety Code , by crossing the double line at a spot where visibility was reduced and where his ability to see oncoming vehicles was limited by the size of the Ford pickup truck.

The question here is whether the Crown established that the appellant’s conduct constitutes penal negligence that justifies his conviction and possibly, a prison term. [ 12 ] In Desbiens [3] and Dorval , [4] the Court pointed out the importance of distinguishing between civil negligence and penal negligence in assessing wrongful conduct. In this regard, Charron J. wrote in Beatty [5] that a departure from the norm that meets the threshold for civil negligence does not suffice to establish penal negligence.

The mental state of the accused must also be considered: The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm for determining civil negligence. It does so in two important respects. First, there must be a “marked departure” from the civil norm in the circumstances of the case.

A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis 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 test for penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite 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 have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact.

This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished. [ 13 ] Was proof of mens rea in respect of the offence of dangerous driving made in this case? [ 14 ] In Beatty , Charron J. explained that the requisite mens rea for the offence of dangerous driving in the Criminal Code , as opposed to actus reus , reflects the fact that penal negligence calls for punishment of blameworthy conduct rather than compensation of a loss: As we have seen, the requisite mens rea for the offence of dangerous driving was the sole issue before the Court in Hundal , and the test was expressed accordingly.

In order to clarify the uncertainties I have mentioned, it may assist to restate the

summary of the test in terms of both the actus reus and the mens rea of the offence. I respectfully disagree with the Chief Justice that the test for the actus reus is defined in terms of a marked departure from the normal manner of driving (para. 67). The actus reus must be defined, rather, by the words of the enactment. Of course, conduct that is found to depart markedly from the norm remains necessary to make out the offence because nothing less will support the conclusion that the accused acted with sufficient blameworthiness, in other words with the requisite mens rea , to warrant conviction.

In addition, it may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused’s manner of driving, evidence about the accused’s actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea . I would therefore restate the test reproduced above as follows:

a) The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, 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”. The Mens Rea The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea .

In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.

Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. [6] [ 15 ] The appellant maintains that the judge did not sufficiently consider his state of mind in concluding that his conduct – i.e.,

passing the pickup truck on a double solid line – constituted a marked departure from what a reasonable person would have done in the circumstances. On this point, the judge wrote: [TRANSLATION] [15] Passing on a double solid line constitutes a marked departure from the conduct of a reasonable person. It is a basic driving rule on all roads to pass only in places where passing is allowed. If passing is prohibited in a certain place, it is because it is dangerous to do so. In addition, the reasons that prompted the accused to pass are totally superficial, i.e., so as not to drive behind a vehicle.

Even the reason for passing constitutes a marked departure of conduct. [ 16 ] She concluded that the mens rea requirement was satisfied: [TRANSLATION] [19] The Court of Appeal [in LSJPA-1022 , 2010 QCCA 1174 ] did not require mens rea in respect of the circumstances of the act but in respect of the marked departure. [20] The Court is of the same opinion concerning the facts in this case.

In the circumstances, a reasonable person would not have started to pass on a double solid line without being concerned about the possible consequences for the passengers and for the other persons driving on the road in the opposite direction. The accused knew or should have known that passing on a double solid line entails a high risk of collision. [ 17 ] Examining all the circumstances, can we really speak of dangerous conduct that departs markedly from the norm as defined by Charron J. in Beatty ? We do not believe so.

Crossing a double line does not in itself suffice to establish penal negligence as opposed to civil negligence. Apart from her finding that the appellant knowingly and deliberately decided to pass Rémi Caron’s vehicle, the judge did not consider the appellant's state of mind in her assessment of the [TRANSLATION] “modified objective test” that must be applied to determine penal negligence.

More specifically, the judge did not place a reasonable person in a situation similar to the appellant's because she decided not to consider his mistake of fact. [ 18 ] We know that the appellant was driving at night on a highway that he was already quite familiar with. The appellant maintains that he could not see Mr. Rostand’s vehicle because of the slope of highway 138 at the spot where the accident occurred. He knew, however, that a passing zone was near.

On this point, the judge wrote: [TRANSLATION] [17] The accused suggests that he could not know that there was a slope that caused one to completely lose sight of the headlights of oncoming cars. However, the accused was so familiar with the highway that he knew that there would be a broken line for passing. The Court therefore finds this version contradictory and cannot accept this ignorance of the area as constituting an absence of mens rea . [ 19 ] In so doing, the judge ruled out any possibility that the appellant honestly believed that there was no oncoming vehicle when he started to pass the pickup truck.

Consequently, the judge also did not consider the possibility that this error was reasonable in the circumstances. [ 20 ] The appellant argues a mistake of fact affecting the blameworthiness of his state of mind. Driving at night, and after checking that there was no oncoming car before moving completely into the other lane, the appellant said he did not see Mr. Rostand’s headlights. According to his version, the headlights were hidden because of the drop in highway 138. This version is, moreover, confirmed by the expert evidence.

His claim concerning his mistake of fact is consistent with the statement he gave to the police at the scene of the accident: [TRANSLATION] “I tried to pass and I didn't see the car”. [7] [ 21 ] The judge did not say that she did not believe the appellant on the question as to whether he thought the lane was free.

She wrote in paragraph [17] that the appellant’s [TRANSLATION] “version”, according to which he did not know that there was a slope in the highway, was [TRANSLATION] “contradictory" with his knowledge of the fact that a broken line was coming up ahead on the road. [ 22 ] It is conceivable that this is not necessarily a contradiction: it is possible to recall a broken line coming up ahead without remembering the topography of highway 138. In addition, the appellant could know about the slope without realizing that it blocked the view of the headlights of oncoming vehicles.

That is what he testified, moreover, when he said that he never noticed that the slope hid the headlights because he had never crossed a vehicle at that spot in the past. The key point is that the contradiction mentioned by the judge does not answer the appellant's argument that, subjectively, he believed there were no oncoming cars when he made the pass and that, objectively, this belief was reasonable in the circumstances. [ 23 ] In excluding this evidence of the appellant's state of mind in her assessment of mens rea , the judge erred in law.

She failed to follow the teachings of Charron J. in Beatty as to the modified objective test for mens rea , i.e., that “ 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”. [8] Our Court, moreover, echoed the Supreme Court on this point in Dorval : [TRANSLATION] “A mistake of fact in assessing the circumstances can constitute a ground of defence to a dangerous driving charge”. [9] [ 24 ] The judge’s assessment of the marked departure from the norm was not done by placing a reasonable person in the appellant's situation, while taking into consideration his state of mind.

In fact, her assessment of the marked departure seems to be based solely on the fact that the appellant crossed the double line travelling at 100 km/h. The judge wrote in paragraph [15] that [TRANSLATION] “[P]assing on a double solid line constitutes a marked departure from the conduct of a reasonable person” and, in paragraph [22], that [TRANSLATION] “... the marked departure is that of having decided to pass on a double solid line, thus in contravention of the Highway Safety Code ” .

Driving in this manner may constitute a departure, but it does not necessarily constitute a marked departure as defined in Beatty . In the continuum identified in Hundal , the infraction of the Highway Safety Code mentioned by the judge does not suffice to convict the appellant. He may have been negligent within the meaning of the Highway Safety Code , but his conduct can in no

way be considered “ 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”, as provided in

section 249 of the Criminal Code . [ 25 ] Considering the judge’s decision to exclude the appellant's mistake of fact, her reasons are deficient concerning the factors relating to the prosecution's burden of proof. In light of the evidence, the judge could not, without rendering an unreasonable verdict, find beyond a reasonable doubt that the appellant acted with a sufficient degree of moral culpability – that is, with the requisite mens rea – to justify a penal conviction under

section 249 of the Criminal Code . FOR THESE REASONS, THE COURT , from the bench, allowed the appeal, overturned the guilty verdict pronounced on September 14, 2010, by the Court of Quebec, and acquitted the appellant on both counts. ANDRÉ BROSSARD, J.A. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. Mtre Jean-Claude Dufour JEAN-CLAUDE DUFOUR AVOCAT INC. For the appellant Mtre Robin Tremblay DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Hearing date: September 8, 2011