R. v. Tweedie, 2023 NSCA 11

Nova Scotia Court of Appeal Citation: R. v. Tweedie , 2023 NSCA 11 Date: 20230215 Docket: CAC 514477 Registry: Halifax Between: His Majesty The King Appellant v. Colin Hugh Tweedie Respondent Judge: The Honourable Chief Justice Michael J. Wood Appeal Heard: January 19, 2023, in Halifax, Nova Scotia Subject: Criminal Law – Impaired Driving and Related Offenses (s. 320.13(3), s. 320.14(3) and s. 329.16)

Summary: Mr. Tweedie was driving a vehicle that struck and killed a young girl on a bicycle at dusk. He did not stop and later told police he thought he had hit a deer. He was charged with offenses under sections 320.13(3) , 320.14(3) and 320.16 of the Criminal Code . Following trial he was acquitted of these three offences. Issues:

(1) Did the trial judge err by not applying the conclusive presumption in s. 320.31(4) to the s. 320.14(3) offence?

(2) Did the trial judge err by not considering wilful blindness in her mens rea analysis for the s. 320.16 offence?

(3) Did the trial judge err by not considering the entire evidentiary record in relation to the s. 320.13(3) offence? Result: The trial judge made legal errors in relation to each of the offences and the acquittals were set aside and a new trial ordered. The s. 320.14(3) offence required proof of a blood alcohol level of 80 mg per 100 ml of blood during two hour period after driving. Breath samples were taken more than two hours after this time period. S. 320.31(4) creates a calculation to generate a conclusive presumption of BAC at the relevant time working back from the sample.

The trial judge relied on the toxicology evidence adduced by the Crown and did not apply the statutory presumption. By not applying the presumption the trial judge erred in law. The s. 320.16 offence required proof that Mr. Tweedie knew he was in a collision with a person, or was reckless as to that fact. Knowledge can be proven by establishing actual knowledge or wilful blindness. The trial judge did not consider the issue of wilful blindness even though it was raised by the evidence and submissions of counsel. This was a legal error.

The trial judge did not consider all of the evidence relating to the circumstances of the collision, particularly concerning the road conditions and the visibility of the victim. She speculated the driver might have swerved to avoid a pothole when there was no evidentiary basis for this finding. The treatment of the evidence was an error of law that undermined the acquittal. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 35 pages.

Nova Scotia Court of Appeal Citation: R. v. Tweedie , 2023 NSCA 11 Date: 20230215 Docket: CAC 514477 Registry: Halifax Between: His Majesty The King Appellant v. Colin Hugh Tweedie Respondent Judges: Wood, C.J.N.S.; Bourgeois and Derrick, JJ.A. Appeal Heard: January 19, 2023, in Halifax, Nova Scotia Written Release: February 15, 2023 Held: Appeal allowed, per reasons for judgment of Wood, C.J.N.S.; Bourgeois and Derrick, JJ.A. concurring Counsel: Glenn A.

Hubbard, for the appellant Tony Mozvik, K.C. and David Irvine, for the respondent Reasons for judgment: [ 1 ] On July 11, 2019, Talia Forrest and Mia White were riding bicycles on Black Rock Road, Victoria County, Nova Scotia. It was dusk and the evening was clear. At 9:42 p.m. Talia was struck and killed by a Nissan Xterra driven by Colin Hugh Tweedie as he travelled northward. An accident reconstruction expert concluded the collision occurred in the southbound lane of the road. Talia’s bicycle was dragged under the vehicle a distance of 1.15 kilometres. [ 2 ] The collision set off the airbags in Mr.

Tweedie’s vehicle. However, he did not stop and continued on to his home which was 1.9 kilometres away. He told his girlfriend he thought he hit a deer and they started walking back towards the scene of the collision. A short time later Mr. Tweedie saw an RCMP vehicle drive by. He returned home where he met the officers. He told them his girlfriend had been driving the Nissan and hit a deer. Mr.

Tweedie was taken into custody and ultimately charged with four offences: • Dangerous driving causing death contrary to s. 320.13(3) of the Criminal Code . • Having a blood alcohol concentration (BAC) equal to or exceeding 80 mg of alcohol in 100 ml of blood within two hours after ceasing to operate a vehicle and thereby causing the death of Talia Forrest contrary to s. 320.14(3) of the Criminal Code . • Failure to stop, without reasonable excuse, after knowing or being reckless as to whether his vehicle had been involved in an accident resulting in death of a person contrary to s. 320.16 of the Criminal Code . • Obstruction of justice contrary to s. 129 (

a) of the Criminal Code . [ 3 ] Mr. Tweedie’s trial took place before Justice Mona Lynch of the Nova Scotia Supreme Court in February 2022. On the second day, Mr. Tweedie changed his plea to guilty for the obstruction of justice charge. He admitted to lying to the police about who was driving. Justice Lynch subsequently gave an oral decision on March 25, 2022, acquitting Mr. Tweedie of the remaining charges ( 2022 NSSC 75 ). [ 4 ] The Crown appealed Mr. Tweedie’s acquittals.

Following the appeal hearing on January 19, 2023, the panel allowed the appeal, set aside the acquittals, and ordered a new trial with reasons to follow. These are those reasons. [ 5 ] In the course of these reasons, I will discuss various aspects of the trial record including whether Justice Lynch properly considered the entirety of the evidence. The judge at the retrial will make fresh factual findings and draw inferences based on the evidence presented. Nothing in my comments should be viewed as indicating how the judge should undertake that exercise or what conclusions should be reached.

Crown Appeal from acquittal is restricted to questions of law

[6] It is well settled that the Crown’s ability to appeal a verdict of acquittal is more restricted than an accused’s right to appeal aconviction. This Court recently explained the scope of an appeal from acquittal in R. v. C.E.G., 2023 NSCA 1: [30] This Court only has jurisdiction to review a judgment or verdict of acquittal if the ground of appeal engages a question of lawalone (s.676(1) Criminal Code). The question, what constitutes a question of law alone, is fundamental.

It is not always easilyanswered. [31] What is known is this: the Crown has no right to argue an acquittal should be overturned because it is unreasonable orotherwise unsupported by the evidence. That is because the underlying reason for a trial judge’s acquittal of an accused is a finding ofreasonable doubt—a determination that is a finding of fact or mixed fact and law (R. v. Biniaris, 2000 SCC 15, at para. 32). [32] An acquittal based on a conclusion of reasonable doubt unsullied by material legal error is not amenable to appeal (R. v. Percy,2020 NSCA 11; R. v.

McNeil, 2022 NSCA 55, at paras. 9-10). [33] This does not mean an acquittal grounded on findings of fact is immune from appellate scrutiny. A judge commits legal errorif they engage in speculation (Wild v. The Queen, (SCC), [1971] S.C.R. 101; R. v. White, 1994 NSCA 77) or theymisdirect themselves on the relevant legal issues (R. v. I.E.B., 2013 NSCA 98). [34] Cromwell J., in R. v. J.M.H., 2011 SCC 45, identified four scenarios where an appeal court can reverse acquittals despite beingostensibly based on evidentiary assessments or factual determinations: 1.

It is an error of law to make a finding of fact for which there is no evidence – however, a conclusion that the trier of fact has areasonable doubt is not a finding of fact for the purpose of this rule. 2. The legal effect of findings of fact or of undisputed facts raises a question of law. 3. An assessment of evidence based on a wrong legal principle is an error of law. 4.

The trial judge's failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law. [35] However, an appellate court cannot translate strong opposition to a trial judge’s factual findings into legal errors (R. v. George,2017 SCC 38, at para. 17). [36] In addition, even if legal error were established, in order to obtain appellate relief, the Crown must also satisfy the court with areasonable degree of certainty the verdict would not necessarily have been the same (see: R. v. Sutton, 2000 SCC 50; R. v.

Graveline,2006 SCC 16). … [7] The Crown’s factum sets out three areas where it says the trial judge made legal errors in relation to the acquittals. They are: Issue #1 61. The Trial Judge erred in law by failing to consider the accused’s blood alcohol content within two hours following operation ofthe conveyance, and therefore failed to give legal effect to findings of fact in relation to the s. 320.14(3) Count on the Indictment. Issue #2 62.

The Trial Judge erred in law by failing to consider that the mens rea, for the s. 320.16 Count on the Indictment, had beenestablished through the doctrine of wilful blindness. Issue #3 63. The Trial Judge erred in law by piecemealing the evidence for the s. 320.13(3) Count on the Indictment, and thereby failed toconsider the evidence, related to the live issue at trial, as a whole. [8] In his factum, the respondent says issues #1 and #2 are new arguments, not advanced at trial, which can only be considered onappeal in exceptional circumstances that do not exist in this case.

The principles which are applicable to this question are described bythis Court in R. v. Marriott, 2014 NSCA 28: [28] The appellant raises this Charter argument for the first time on appeal. Generally, new grounds on appeal are allowed only inexceptional circumstances. The appellate court has no trial decision to review and the record is often insufficient: R. v. Phillips, 2006NSCA 135, at ¶ 30-33. [29] In her dissenting judgment in R. v.

Brown, (SCC), [1993] 2 S.C.R. 918 (S.C.C.), L’Heureux-Dubé J. explainedthe rationale for the prohibition at pp. 923-24: . . . [T]he general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation incriminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both theCrown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did notresult in the desired or expected verdict, devised new approaches.

Costs would escalate and the resolution of criminal matters could bespread out over years in the most routine cases. Moreover, society's expectation that criminal matters will be disposed of fairly and fullyat the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if theywere fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to therule that such tactics will not be permitted.

She also set out at p. 927 the factors that must be satisfied before a new issue, including a Charter challenge, is permitted on appeal:

... First, there must be a sufficient evidentiary record to resolve the issue. Second, it must not be an instance in which the accused fortactical reasons failed to raise the issue at trial. Third, the court must be satisfied that no miscarriage of justice will result from the refusalto raise such new issue on appeal. [9] In considering the respondent’s argument, it will be necessary to determine whether the Crown is, in fact, raising a new issue.The Supreme Court of Canada in Quan v. Cusson, 2009 SCC 62 said an issue is new if it is “legally and factually distinct from the issueslitigated at trial” (¶ 39).

Similarly, the Ontario Court of Appeal in R. v. Patel, 2017 ONCA 702 did not allow the Crown to advance adifferent scenario for liability on appeal where doing so reflected “a material change in the Crown’s position between trial and appeal” (¶12). [10] The British Columbia Court of Appeal in R. v. Blinch, ; 83 CCC (3d) 158 (BCCA) made the distinctionbetween a supplementary argument addressing an issue raised at trial and an altogether new and independent issue.

A supplementalargument was permissible whereas a new and independent issue required the court to exercise its discretion to hear the new issue whichshould only be done in exceptional cases. [11] There is also a distinction to be made between circumstances where the Crown, on appeal, advances a position that contradictsthe one taken at trial and situations where the Crown failed to object to a potential error by the trial judge. The Supreme Court of Canadain R. v.

Barton, 2019 SCC 33 (“Barton”) described the issue as follows: [46] In Canada, the Crown’s right to appeal an acquittal is broader than in most other common law jurisdictions (see R. v.Evans, (SCC), [1993] 2 S.C.R. 629, at pp. 645-46; R. v. Varga (1994), 180 O.R. (3d) 784, at p. 792 (C.A.)). However,as I will explain, it is not without limits. [47] Out of concerns over fairness to the accused and in particular the principle against double jeopardy, which is enshrined in s.11(

h) of the Canadian Charter of Rights and Freedoms, the Crown is barred from securing a new trial by advancing a new theoryof liability for the first time on appeal (see Wexler v. The King, (SCC), [1939] S.C.R. 350; Savard v. The King, (SCC), [1946] S.C.R. 20, at pp. 33-34, 37 and 49; R. v. Penno, (SCC), [1990] 2 S.C.R. 865, at pp. 895-96; R.v. Egger, (SCC), [1993] 2 S.C.R. 451, at p. 481). Moreover, as Doherty J.A. explained in Varga, ‘[d]ouble jeopardyprinciples suffer even greater harm where the arguments advanced on appeal contradict positions taken by the Crown at trial’ (p. 793).

Inshort, ‘[a] Crown appeal cannot be the means whereby the Crown puts forward a different case than the one it chose to advance at trial’(ibid.). [48] However, the Crown’s failure to object to a misdirection in a jury charge does not necessarily preclude an order for a newtrial (see Cullen v. The King, (SCC), [1949] S.C.R. 658, at pp. 664-65; R. v. George, (SCC), [1960]S.C.R. 871, at pp. 875-77 and 890).

In particular, the passive inadvertence of Crown counsel at trial does not waive the publicinterest in a verdict untainted by materially deficient jury instructions. [Emphasis added] Analysis Issue #1 - The Trial Judge erred in law by failing to consider the accused’s blood alcohol content within two hours following operationof the conveyance, and therefore failed to give legal effect to findings of fact in relation to the s. 320.14(3) Count on the Indictment. [12]

Section 320.14 of the Criminal Code was part of a legislative package which came into effect in 2018 and made significantchanges to the law concerning impaired driving and related offences. The provisions applicable to the charge against Mr. Tweedie are: Operation while impaired 320.14

(1) Everyone commits an offence who (

b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to orexceeds 80 mg of alcohol in 100 mL of blood; … Operation causing death 320.14

(3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causesthe death of another person. [13] The Charter Statement tabled in the House of Commons on May 11, 2017, by the Minister of Justice concerning theamendments to the Criminal Code’s impaired driving provisions describes the purpose of s. 320.14(1)(

b) as follows: Change to ‘over 80’ offence Clause 15 (new paragraph 320.14(1)(b)) rewords the current ‘over 80’ offence to prohibit having a BAC at or over 80 mg/100ml withintwo hours of driving. This would be subject to an exception for ‘innocent intervening consumption,’ meaning consumption that occurredafter driving, where the individual had no reason to expect a breath or blood demand, and where the quantity consumed was consistentwith a BAC that was below 80 at the time of driving.

This would criminalize consumption of alcohol prior to driving in quantitiessufficient to result in a BAC at or over 80 (‘bolus drinking’), even where the BAC at time of driving may have not yet risen abovethe limit. It also criminalizes consumption after driving, in situations where an individual had a reasonable expectation that he or shemay be required to provide a sample (for example, after an accident), and that may serve to obstruct investigation of the offence.

The following considerations support the consistency of this

section with the Charter. By criminalizing bolus drinking and drinking that may obstruct an investigation, the offence captures two categories of reckless, morally culpable conduct, the prohibition of which serves the Government’s objective of combating impaired driving .

The definition of the offence in terms of BAC within two hours of driving and the ‘innocent intervening consumption’ exception combine to ensure that dangerous conduct is covered while innocent consumption after driving is not captured. [Emphasis added] [ 14 ] As part of the 2018 legislative package, the Criminal Code was amended to include s. 320.31(4) which created a conclusive presumption of BAC in certain circumstances: Presumption — blood alcohol concentration

(4) For the purpose of paragraphs 320.14(1)(

b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) or (2), as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours. [Emphasis added] The Minister’s Charter Statement explained the rationale behind this provision as follows: Back-extrapolation As described above, the ‘over 80’ offence is defined in terms of BAC within two hours of driving.

New subsection 320.31(4) provides that, where testing on an AI [Approved Instrument, or “breathalyzer”] is performed more than two hours after driving, BAC at the time of the offence (i.e. within the two-hour window) is conclusively deemed to be equal to the BAC at the time of testing plus 5 mg/100ml for every complete 30 minutes between the expiry of the two hour period and the time of testing. The following considerations support the consistency of this

section with the Charter. The level of 5 mg/100ml for every 30 minutes reflects a very conservative estimate of the rate at which alcohol leaves the bloodstream. In other words, there is scientific consensus that alcohol leaves the bloodstream at a rate significantly greater than 5 mg/100ml per 30 minutes even in individuals who process alcohol slowly (other than in cases of near-complete liver failure that would ordinarily render them incapable of driving).

Accordingly, a BAC calculated according to this provision will be lower than the absolute minimum scientifically possible BAC that an individual will have had within the two-hour window. It also maintains the onus on the Crown to prove the offence beyond a reasonable doubt, by combining the scientifically valid AI test with well-established scientific knowledge on the metabolism of alcohol. [ 15 ]

Section 320.31(4) creates a conclusive presumption. It is not rebuttable. Sopinka, Lederman & Bryant: The Law of Evidence in Canada , 6 th Ed. describe conclusive presumptions in the following terms: ¶4.24 Conclusive or irrebuttable presumptions of law are rare and those that exist are mostly statutory. On proof of Fact A (the basic fact), Fact B (the presumed fact) is conclusively deemed or proven to exist.

A person against whom the conclusive presumption operates is not permitted to adduce contrary evidence because a conclusive presumption is absolute, and thus it is irrebuttable… … ¶4.26 A conclusive presumption is a rule of substantive law clothed in the language of presumptions… [ 16 ] The authors include s. 320.31(4) as one of those “rules of substantive law clothed in the language of presumptions”: ¶4.28 Subsections 320.31(1) and (4) of the Criminal Code create conclusive presumptions in relation to the measurement and calculation of a person’s blood alcohol level for the purpose of proving the new ‘over 80’ offences in s. 320.14 .

For example, it is now an offence to have a blood alcohol level that exceeds 80mg/100ml ‘within two hours after ceasing to operate a conveyance’.

Section 320.3(1) provides that, subject to certain conditions, if ‘samples of a person’s breath are received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same – or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made…’.

If the sample was taken more than two hours after the person ceased operating a conveyance, s. 320.31(4) establishes a procedure for calculating a person’s blood alcohol level prior to the sample having been taken and then, for the purposes of s. 320.14, creates a conclusive presumption that the person’s blood alcohol level was as calculated. [Emphasis added] [ 17 ] After Mr. Tweedie’s arrest, breath samples were taken and analyzed for BAC. The second sample, which was the one relied on

by the Crown, was at 1:51 a.m. on July 12 th and showed a BAC of 60 mg per 100 ml. The accident occurred at 9:42 p.m. on July 11 th and, therefore, the presumption in s. 320.31(4) was applicable. Since the sample was taken two hours after the expiry of the period referred to in s. 320.14(1)(b), the conclusively presumed BAC would be calculated at 80 mg of alcohol (60 mg + (4 x 5mg)) per 100 ml of blood. [ 18 ] Neither counsel referred to s. 320.31(4) during the trial. The Crown called an expert witness, Christine Frenette, who provided a toxicology report calculating Mr.

Tweedie’s BAC at the time of the accident to be between 102 to 143 mg per 100 ml based upon an extrapolation back from the 1:51 a.m. BAC reading. Her report was based on the assumption that Mr. Tweedie did not consume any alcohol for 30 minutes prior to the accident. [ 19 ] At trial, there was significant evidence about “bolus drinking” and the time of Mr. Tweedie’s last drink, which the trial judge concluded was less than 30 minutes before the accident. The trial judge found Ms. Frenette’s evidence did not satisfy her that Mr.

Tweedie’s BAC was equal to or greater than 80 mg in 100 ml at the time of the accident. She acquitted him of the charge under s. 320.14(3). [ 20 ] Although counsel did not raise the conclusive presumption in s. 320.31(4) , the trial judge mentioned it in her decision: [ 21 ] The Crown did not rely on the presumption pursuant to s. 310.31(4) of the Criminal Code , they relied on expert evidence. [21] The Crown, on appeal, says it was an error of law for the trial judge not to apply s. 320.31(4) .

The respondent argues that since the trial Crown did not mention the presumption it is a new issue which cannot be raised on appeal. I disagree with the respondent’s position. Whether Crown counsel mentioned it or not, the presumption was known to the judge and she referred to it in her decision. It is not a new issue on appeal. [ 22 ] The trial record does not include any statement or action by the Crown indicating that the presumption was not being relied on. Even if counsel had made such a statement, the trial judge would be obligated to apply the presumption.

It is not a provision which is only operable if it is expressly invoked. It is a rule of substantive law. [ 23 ] In my view, there are parallels between this matter and the decision in Barton where the Supreme Court held the failure of the Crown to object to a breach of s. 276 of the Criminal Code did not affect the trial judge’s obligation to enforce the law. The following passage from that decision illustrates the point: [68] Mr. Barton submits that as a matter of procedural fairness, the s. 276 issue was not properly raised before the Court of Appeal. Respectfully, I disagree.

While the Crown did not object to Mr. Barton’s testimony about Ms. Gladue’s prior sexual activity, in my view, its failure to do so was not fatal. The ultimate responsibility for enforcing compliance with the mandatory s. 276 regime lies squarely with the trial judge, not with the Crown. After all, it is the trial judge, not the Crown, who is the gatekeeper in a criminal trial. Moreover, I simply cannot accept that a complainant’s dignity, equality, and privacy rights, which the s. 276 regime is meant to protect, may be waived by mere Crown inadvertence.

There is nothing in the record suggesting that the Crown made a deliberate attempt to avoid the application of the s. 276 regime, and indeed it had no reason to. It certainly gained no tactical advantage as a result of non-compliance — quite the opposite . And in any event, given the important objectives underlying s. 276 , the Crown should refrain from commenting on a complainant’s prior sexual history unless necessary. [Emphasis added] [ 24 ] In my view, it was an error of law for the trial judge not to apply the presumption in s. 320.31(4) . In addition, she did not address Mr.

Tweedie’s BAC within the two hour period after he stopped driving even though this was an element of the offence. She was in error by only considering his BAC at the time of the collision and not the time frame specified in the Criminal Code . I would allow this ground of appeal. [ 25 ] The Crown argued we should enter a conviction on this charge rather than remit the matter for re-trial. I do not agree. The charge requires the Crown to prove Mr. Tweedie caused the death of Talia. There was no determination by the trial judge on that issue because of her findings concerning Mr.

Tweedie’s BAC at the time of the accident. In fairness to Mr. Tweedie, he should be given the opportunity to exercise his constitutional right to make a full answer and defence in relation to the causation issue. Issue #2 - The Trial Judge erred in law by failing to consider that the mens rea for the s. 320.16 count on the Indictment, had been established through the doctrine of wilful blindness. [ 26 ] Mr. Tweedie was charged with failure to stop after an accident contrary to s. 320.16 of the Criminal Code which provides: Failure to stop after accident 320.16

(1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance. Accident resulting in bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) and who at the time of committing the offence knows that, or is reckless as to whether, the accident resulted in bodily harm to another person. Accident resulting in death

(3) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of committing the offence, knowsthat, or is reckless as to whether, the accident resulted in the death of another person or in bodily harm to another person whose deathensues. [27] For this charge, the focus of the evidence and argument at trial was on Mr. Tweedie’s state of knowledge concerning thecollision with Talia and her bicycle. Mr. Tweedie did not testify, but his police interviews were entered into evidence.

In thoseinterviews, he said he did not see anything and did not know what he had hit but believed it was a deer. [28] The mens rea for this offence requires the Crown to prove one of the following: 1) Mr. Tweedie knew he had been in an accident with a person. 2) Mr. Tweedie was wilfully blind as to whether he had been in an accident with a person. 3) Mr. Tweedie was reckless as to whether he had been in an accident with a person. [29] Justice Shergill of the British Columbia Supreme Court explained the mens rea options for an offence under s. 320.16 of theCriminal Code in R. v.

Dionne, 2022 BCSC 959 as follows: [28] The mens rea for an offence under s. 320.16(1) and (3) is knowledge or recklessness that they were involved in an accident, andknowledge or recklessness as to whether death or bodily harm ensued. [29] Knowledge can be proven by either actual knowledge or imputed knowledge based on wilful blindness: R. v.Edwards, 2020 BCCA 253at para. 95. [30] In R. v.

Farmer, 2014 ONCA 823at para. 26, the court explained wilful blindness as occurring when an accused becomesaware of the need for some inquiry, but declines to make the inquiry because the accused does not ‘wish to know the truth’. Putanother way, an accused is wilfully blind if they shut their eyes because they know or strongly suspect that ‘looking would fix[them] with knowledge’. [31] The deliberate nature of wilful blindness was expressed by Justice Moldaver in R. v.

Morrison, 2019 SCC 15 at follows: [98] Wilful blindness exists where an accused’s ‘suspicion is aroused to the point where he or she sees the need for further inquiries,but deliberately chooses not to make those inquiries…Wilful blindness has been characterized as ‘deliberate ignorance’ because itconnotes ‘an actual process of suppressing a suspicion’. [citations and references omitted] [32] Recklessness occurs where an accused is aware of a risk, but proceeds despite that risk: Edwards at para. 99, and R. v.Alekozai, 2021 ONCA 633at para. 42. [33] In R. v.

Sansregret, [1985] 1 S.C.R. 570, (SCC)at p. 582, Justice McIntyre explained recklessness as follows: In accordance with the well-established principles for the determination of criminal liability, recklessness, must have an element of thesubjective. It is found in the attitude of one who, aware that there is a danger that his conduct could bring about the result prohibited bythe criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and takes the chance. [34] Recklessness has been described as a less stringent standard than wilful blindness: R. v.

Sandhu, [1989] OJ No 1647, (O.N.C.A.)at para. 19. [35] In Sansregret at p. 582, the court distinguished between recklessness and wilful blindness, as follows: Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in acourse of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become awareof the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remainignorant.

The culpability in recklessness is justified by the consciousness of the risk and by proceeding in the face of it, while in wilfulblindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is a reason for inquiry. [Emphasis added] [30] The British Columbia Court of Appeal in R. v.

Edwards, 2020 BCCA 253 discussed the issue of wilful blindness in relation to acharge of leaving the scene of an accident under the predecessor to s. 320.16: [70] In Harrison, the accused struck a person wearing dark clothing and walking, in the dark, on the gravel edge of the pavedshoulder of the road. The impact shattered the windshield on the passenger side and did damage to the vehicle similar to that which wassustained in this case. The driver testified she knew she had been in a major impact with something but didn’t know what and was tooafraid to stop.

Grist J. held: [37] … [T]he element of knowledge accompanying s. 252(1) with respect to involvement in an accident can be satisfied by theaccused exhibiting wilful blindness towards what has been struck. In Sansregret v. R. (SCC), [1985] 1 S.C.R. 570, wilfulblindness was defined as a quality different from recklessness. It is where a person is aware of the need to inquire, but makes no inquirybecause he or she does not want to know the truth. [38] Here, the circumstances required the accused to at least determine what she had hit.

She did not want to learn the truth and therecannot be a defence, in my view, to closing one's eyes through panic or fear of what has happened.

[39] Had Ms. Harrison stopped and made the necessary inquiry, the bodily harm to Mr. Pinson would have been evident. Her failure to do so in the face of the force of impact exhibited recklessness as to whether he lived or died. [71] In R. v. Basra , 2015 BCSC 1075 , Verhoeven J. convicted a driver, charged under the same provisions we are considering, on the basis the driver was wilfully blind to the fact the vehicle he drove was involved in an accident and as to the bodily harm that resulted from the accident, and reckless as to whether death resulted.

The judge adopted Grist J.’s view that there may be said to be wilful blindness where a person is aware of the need to inquire, but makes no inquiry because he or she does not want to know the truth. [72] In Basra , as in Harrison, awareness of the need to make further enquiries supported a finding of wilful blindness. While the driver in Basra did not know what he had hit, it was obvious the vehicle had been involved in a major impact. As in the case at bar, there was a loud bang at the time of impact and the windshield was severely damaged on the passenger side.

In cross-examination, the driver said he recognized at least three possibilities to explain the impact: collision with an animal, collision with a person and collision with a rock that might have been thrown at the vehicle. There was nothing to indicate a rock had been thrown. The driver did not testify he thought he might have hit an animal and, in the words of the judge ‘there was really nothing to suggest that he might have struck an animal’ (at para. 48). [73] As in the case at bar, the driver stopped his vehicle after impact but did not return to the scene of the impact to further investigate.

The judge found, at para. 57, [57] I find that Mr. Basra was well-aware of the possibility that the accident had involved a collision with a person , but chose not to investigate or inquire, in order to avoid finding out what he did not want to find out. He was wilfully blind to the fact that the accident had involved a collision with Mr.

McKay. [Emphasis added.] [74] In my view, the judges in these cases correctly found the requisite mens rea to exist because the accused were aware of the need for some inquiry, and yet declined to make the inquiry because they did not wish to know the truth. [31] The question of Mr. Tweedie’s state of mind and why he did not stop was a live issue at trial. The day after the accident, Mr. Tweedie travelled with the investigating RCMP officers back to the scene. The trip was audio and video recorded and the transcript of the discussions included the following: CPL.

BERTHIAUME: Colin, just on the way back I’ll get ya just – just get ya to stop us where you think you – you felt the collision. COLIN TWEEDIE: OK. CPL. BERTHIAUME: Colin, what made you think it was a deer? COLIN TWEEDIE: Because I didn’t see anything. CPL. BERTHIAUME: OK. COLIN TWEEDIE: And automatically I assumed the deer jumped out of – out of the ditch or you know? You ever see them leap over the roads? When they’re going back. I’ve see[n] them leap right over someone’s hood. CPL. BERTHIAUME: Yup. COLIN TWEEDIE: You don’t you don’t know until its too late. CPL. BERTHIAUME: Yup.

COLIN TWEEDIE: That’s why I thought it was a deer and my dad just hit a deer three months ago. Just thought you know- just thought that what happened right. CPL. BERTHIAUME: Yeah. COLIN TWEEDIE: I seen a deer here literally two days ago. This area is littered with deer. CPL. BERTHIAUME: So, when did you realize Colin that it wasn’t a deer it was in fact the ah, the young girl? COLIN TWEEDIE: When – when ah, I was in the back of the police car. CPL. BERTHIAUME: OK. Tell me about that. COLIN TWEEDIE: Just said that someone that ah, that someone had been hit. CPL. BERTHIAUME: OK.

And wh – COLIN TWEEDIE: And they were – told me that they were waiting on update on – on the person’s well being I guess. … CPL. BERTHIAUME: OK. And Colin, can you um, why didn’t you stop at that time to see what was going on? COLIN TWEEDIE: Well, the air bags went off,

CPL. BERTHIAUME: Yup. COLIN TWEEDIE: And I thought to myself if I stop the car – it was smoking I didn’t want to be broke down on the side of the road. I figured it’s a deer, CPL. BERTHIAUME: Yup. COLIN TWEEDIE: I’m gonna keep going . CPL. BERTHIAUME: OK. Alright. (Inaudible). Colin, is there anything else that um, I haven’t asked you that you think’s important for – for ah, the investigators to know. COLIN TWEEDIE: How dark it was. CPL BERTHIAUME: OK. So tell me about that. COLIN TWEEDIE: It was really – really dark. And, you know, windshield was dirty (inaudible).

I just remember not being able to see very much. [Emphasis added] [32] In closing submissions the Crown discussed the issue of Mr. Tweedie’s obligation to determine what he had hit: MR. MACDONALD : I – I would submit, My Lady that he doesn’t have to, from the Crown’s point of view, think that he caused it. If it’s an equal possibility, then I would submit that would essentially be enough because the – he has no knowledge as to what he hit. THE COURT : Right. MR.

MACDONALD : And essentially if a person could say I don’t think I hit a person and not investigate, then the Crown would be placed in an impossible burden. But what we have here is that he could have momentarily stopped, looked, and if he was – has this concern about his vehicle breaking down, he could have then continued on once he determined that it was a deer, but he chose to ignore any possibility that it was other than a deer and continue on his way.

You also have to contrast his evidence with the evidence of Mia White, Corporal Ford, Corporal Klip, that for the 1.15 kilometres after the collision the bicycle would have been under his vehicle and essentially abrading against the pavement.

And the indication also is that there were sparks, according to Mia White, and it would seem realistic given the amount of metal that was being abraded, and there’s no indication that he looked back, mirrors or otherwise, to determine what it was, and not having made any investigation to determine what, and he had no reason to believe it was a deer other than essentially there are deer in the area. THE COURT : Okay, and the – the flip side of that, and that’s what I’m trying – trying to get you to address – what reason would he have to believe that it would – he had caused the death of another person. MR.

MACDONALD : The – I don’t believe he has to believe it, My Lady. I believe it has to be a possibility. In order for him to believe he hit a person he would have to have seen what he hit. The also, I would ask Your Ladyship to turn to the exhibit of Corporal Ford, the photos... THE COURT : The photos? MR. MACDONALD : Just one moment, My Lady, I’ve...got a reference. The aerial photos in the Supplemental Report of Corporal Ford... THE COURT : Just one second, now, I have to get that. MR. MACDONALD : Exhibit 22. THE COURT : Yeah. MR. MACDONALD : And photo 35... THE COURT : Thirty-five... MR.

MACDONALD : ...it would seem, My Lady, to indicate that this collision occurred in front of three houses in what appears to be in the photos to be the most residential area. But My Lady, all the Crown can point to is the fact that there was zero investigation, zero braking. There was really zero reason to believe that he hit a deer other than the fact that there are deer in the area, and that it would be reckless for him to assume he had hit a deer under the circumstances .

And that would be the Crown’s submission. [Emphasis added] [33] While the Crown does not use the phrase “wilful blindness” in their submissions they discuss the substance of that concept – whether Mr. Tweedie chose to ignore the possibility that he hit anything other than a deer. [34] In her decision, the trial judge does not discuss the question of whether Mr. Tweedie was wilfully blind to the possibility he had struck a person. Although she mentions the Crown’s argument that Mr.

Tweedie did not stop to investigate what he had hit, she did not consider that issue nor the evidence which may have been relevant to it. Her analysis concerning the s. 320.16 offence consisted of

the following: [84] The Crown suggests that the accused has given no reason for believing that he hit a deer and he was reckless because he didnot investigate what happened. He did not stop, and he did not investigate. He was close to houses. The Crown asserts that the accusedwas reckless to assume he hit a deer. The Supreme Court of Canada has described the term recklessness in criminal law: … In accordance with well established principles for the determination of criminal liability, recklessness, to form a part of thecriminal mens rea, must have an element of the subjective.

It is found in the attitude of one who, aware that there is danger that hisconduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, theconduct of one who sees the risk and who takes the chance. It is in this sense that the term "recklessness" is used in the criminal law andit is clearly distinct from the concept of civil negligence (R. v. Sansregret, (SCC), [1985] 1 S.C.R. 570). [85] I accept that the accused believed that he hit a deer and did not know he hit a person or Talia Forrest.

He was close to hishouse, and he did not want to be broken down on the side of the road. He went home and told Beth Hart, who owned the vehicle, that hehit a deer. They started back to find the deer. The accused was not aware he had hit a child and so is not a person who was aware that hehit a person and did not stop despite knowing that fact. The accused was not reckless as to whether he had hit a person as he believed thathe hit a deer. He did not think he hit another conveyance.

Section 320.16 of the Criminal Code does not make it an offence fail to stop ifyou hit an animal. [86] I am not satisfied that he knew or was reckless as to whether the accident resulted in the death of another person. [87] I am also not satisfied beyond a reasonable doubt the accused knew that or was reckless as to whether the vehicle was involvedin an accident with a person or another vehicle which would be the included offence of failure to stop after an accident pursuant to s.320.16(1). [88] Based on all of the circumstances I find the accused not guilty of failure to stop after an accident resulting in death contrary tos. 320.16(3). [35] In R. v.

Spencer, 2014 SCC 43 the Supreme Court of Canada considered a Crown appeal from an acquittal where the trialjudge neglected to consider wilful blindness even though the issue was raised by the evidence. The Crown was required to prove theaccused knew the child pornography in his possession was being accessed by others. The Supreme Court of Canada allowed the Crownappeal and ordered a new trial for the following reasons: [82] The Court of Appeal ordered a new trial on the ‘making available’ count on the basis that the trial judge had erred in his analysisof the fault requirement for the offence.

It found that the trial judge had erred by finding that the making available offence required thatMr. Spencer knew that some positive act on his part facilitated access by others to the pornography. This error, in the Court of Appeal’sview, led the judge to fail to consider whether Mr. Spencer had been wilfully blind to the fact that the pornography was being madeavailable to others through the shared folder.

I respectfully agree with the Court of Appeal on both points and would affirm the order fora new trial. [83] There is no dispute that the accused in a prosecution under s. 163.1(3) of the Criminal Code must be proved to have hadknowledge that the pornographic material was being made available. This does not require, however, as the trial judge suggested, that theaccused must knowingly, by some positive act, facilitate the availability of the material. I accept Caldwell J.A.’s conclusion that theoffence is complete once the accused knowingly makes pornography available to others.

As he put it, [i]n the context of a file sharing program, the mens rea element of making available child pornography under s. 163.1(3) requiresproof of the intent to make computer files containing child pornography available to others using that program or actual knowledge thatthe file sharing program makes files available to others. [para. 87] While the trial judge’s reasons may perhaps be open to more than one

interpretation on this point, reading his reasons as a whole, I alsoagree with Caldwell J.A. that the trial judge erred in deciding that a positive act was required to satisfy the mens rea component of themaking available offence: para. 81. [84] I further agree with Caldwell J.A. that wilful blindness was a live issue on the evidence and that it was because of thetrial judge’s error in relation to positive facilitation that he did not turn his mind to the evidence that could support an inferenceof wilful blindness. Wilful blindness is a substitute for knowledge. As explained by Charron J. in R. v.

Briscoe, 2010 SCC 13, [2010] 1S.C.R. 411, at para. 21, [w]ilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge wheneverknowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion isaroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make thoseinquiries. See Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, and R. v. Jorgensen, (SCC),[1995] 4 S.C.R. 55.

As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmativeanswer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him withknowledge?” [Emphasis added.] [85] The evidence calling for consideration of wilful blindness included, for example, evidence that in Mr.

Spencer’s statement topolice he acknowledged the following: that LimeWire is a file-sharing program; that he had changed at least one default setting inLimeWire; that when LimeWire is first installed on a computer, it displays information notifying the user that it is a file-sharingprogram; that at the start of each session, LimeWire notifies the user that it is a file-sharing program and warns of the ramifications offile-sharing; and that LimeWire contains built-in visual indicators that show the progress of the uploading of files by others from theuser’s computer: paras. 88-89. [86] Given that wilful blindness was a live issue and that the trial judge’s error in holding that a positive act was required to

meet the mens rea component of the making available offence resulted in his not considering the wilful blindness issue, I agree with Caldwell J.A. that the error could reasonably be thought to have had a bearing on his decision to acquit : para. 93; R. v. Graveline , 2006 SCC 16 , [2006] 1 S.C.R. 609, at para. 14 . [Emphasis added] [ 36 ] If the trial judge had considered whether Mr. Tweedie was wilfully blind, the evidence which she might have taken into account included the following: • Whether it would have been safe for Mr.

Tweedie to stop because the weather was clear, the road was straight, there were adjacent driveways and streetlights in the area. • Mr. Tweedie did not see what he hit but assumed it was a deer because he had seen one in the vicinity a few days earlier. • After the collision, the airbags deployed. Mr. Tweedie said he was unable to see but continued driving. • Talia’s bicycle was dragged under the vehicle for 1.15 kilometres. Mia White testified sparks were flying from it. • The collision took place at a point on Black Rock Road where there was a cluster of homes and shortly before the collision Mr.

Tweedie would have driven past a sign which read “Caution – Drive Slow Children Playing”. • Mr. Tweedie lived less than two kilometres from the scene of the accident and would have travelled along Black Rock Road frequently, including multiple times on July 11, 2019. • When he first encountered police Mr. Tweedie lied and denied driving the vehicle. [ 37 ] The trial judge should have turned her mind to whether the Crown had proven that Mr. Tweedie was wilfully blind. She needed to consider if the circumstances created a suspicion that he chose to ignore because he did not want to learn the truth.

Not doing so was an error of law. [ 38 ] The respondent argues that wilful blindness is a new issue which cannot be raised by the Crown on appeal. I disagree. Wilful blindness was raised by the evidence as well as the Crown’s closing submissions. In addition, defence counsel provided the trial judge with copies of the decisions in R. v. Stanton , 2014 ONCA 29 and R. v.

Prad , 2017 BCPC 168 which discussed wilful blindness in the context of the offence of failing to stop at the scene of an accident. [ 39 ] In light of the evidence presented at trial, I am satisfied that the failure of the trial judge to consider the question of wilful blindness could reasonably be thought to have impacted her decision to acquit Mr. Tweedie. I would allow this ground of appeal. Issue #3 - The Trial Judge erred in law by piecemealing the evidence for the s. 320.13(3) Count on the Indictment, and thereby failed to consider the evidence, related to the live issue at trial, as a whole. [ 40 ] Mr.

Tweedie was charged with dangerous driving causing death contrary to s. 320.13(3) of the Criminal Code which provides: Operation causing death

(3) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes the death of another person. [ 41 ] In her decision, the trial judge outlined the correct legal test to be applied to this offence: [44] The Supreme Court of Canada has held the onus lies on the Crown to prove both conduct and the fault elements of the offence.

I must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that was ‘dangerous to the public, having regard to all of 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’ ( R. v. Beatty , 2008 SCC 5 , para. 43 ).

I must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the mental element that on the evidence the accused’s conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances and that a reasonable person in similar circumstances ought to have been aware of the risk and danger involved in the conduct of the accused ( Beatty , para. 43 ). [45] In R. v.

Roy , 2012 SCC 26 , the mental element is further explained: [36] 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. [37] 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 thelevel of a marked departure required for a conviction for dangerous driving’ (para. 71). [38] The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objectivestandard — is the minimum fault requirement.

The modified objective standard means that, while the reasonable person is placed in theaccused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goesto the accused’s incapacity to appreciate or to avoid the risk (para. 40).

Of course, proof of subjective mens rea — that is, deliberatelydangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see alsoMcLachlin C.J., at paras. 74-75, and Fish J., at para. 86). [46] It must be determined whether the accused operated the vehicle in a manner that was dangerous to the public having regard toall of the circumstances. [42] The trial judge then discussed the circumstances surrounding the collision.

Two important aspects of the evidence were: • Lighting and visibility • Condition of the Black Rock Road [43] The trial judge acquitted Mr. Tweedie of dangerous driving causing death and summarized her reasons for doing so as follows: [71] The Crown asks that I find that operating a vehicle at 76 kms an hour in an 80 km an hour zone and being on the wrong side ofthe road is inherently dangerous. I cannot find that driving under the speed limit or at the speed limit and swerving to avoid a bad portionof the road are driving in a manner that a reasonable person would not.

I also do not find that a reasonable person would have expectedchildren to be on bicycles on the Black Rock Road at 21:42 at night without lights or reflective clothing. [72] If I am wrong in finding that in light of all the relevant evidence, a reasonable person would not have foreseen the risk andtaken steps to avoid it, if possible, I will consider the second question. [73] The second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a markeddeparture from the standard of care expected of a reasonable person in the accused’s circumstances.

In light of the time of night and allof the other circumstances, I cannot find that the accused’s conduct or driving was a marked departure from the norm, or the standard ofcare expected of a reasonable person in the accused’s circumstances. It must be remembered that simply carelessness is generally notcriminal. [44] The Crown argues the trial judge erred in her assessment of the circumstances of the collision.

They say she dealt with theevidence on a piecemeal basis and thereby failed to consider the entirety of the record in assessing whether the Crown had proven theoffence beyond a reasonable doubt. [45] The Crown relies on two cases which illustrate the mistakes they say the trial judge made in this case, R. v. Curry, 2014ONCA 174 (“Curry”) and R. v. Blanchard, 2022 NLCA 15 (“Blanchard”).

These decisions involve successful appeals of acquittals oncharges of dangerous driving causing death. [46] In Curry, the Ontario Court of Appeal outlined the governing principles for evaluating a trial judge’s assessment of theevidence: [37] Section 676(1)(

a) of the Criminal Code restricts the Crown’s right of appeal from an acquittal, including a conviction on lesserand included charges, to ‘any ground of appeal that involves a question of law alone.’ The Crown is not entitled to argue that an acquittalwas unreasonable, provided that the trial judge took a legally correct approach to the evidence: R. v. Rudge, 2011 ONCA 791, 108 O.R.(3d) 161, at para. 35, leave to appeal refused, [2012] S.C.C.A. No. 64. [38] In R. v.

J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, the Supreme Court of Canada addressed the ‘vexed question’ of whatconstitutes a question of law alone for the purposes of a Crown appeal.

Cromwell J. outlined a list of four situations – not necessarilyexhaustive – in which alleged shortcomings in a trial judge’s assessment of evidence can amount to a reviewable error of law. [39] At issue in this appeal is the fourth kind of error: this occurs when the trial judge fails to consider all of the evidence in relationto the ultimate issue of the accused’s guilt: J.M.H., at para. 31. [40] The Supreme Court of Canada has addressed this category of error on several occasions. First, in R. v.

Morin, (SCC), [1988] 2 S.C.R. 345 (Morin I), Sopinka J. considered a charge that invited the jury to apply the reasonable doubt standard ofproof to individual pieces of evidence, and concluded as follows, at p. 358: The effect of [these misdirections] may very well have been that the jury examined evidence that was crucial to the Crown’s case in bitsand pieces. Standing alone or pitted against the evidence of the accused without the support of other evidence, much of this evidencemight have been discarded as not measuring up to the test.

When the jury came to consider the Crown’s case as a whole there may nothave been very much left of it. We cannot know for certain, but this scenario is a very likely one and the charge therefore constituted aserious misdirection. [41] Second, in R. v. B. (G.), (SCC), [1990] 2 S.C.R. 57, Wilson J. relied on Morin I to dismiss an appeal from ajudgment of the Court of Appeal for Saskatchewan, allowing a Crown appeal from acquittal on charges of sexual assault.

Wilson J.confirmed, at pp. 71-72, that appellate jurisdiction exists where the trial judge’s approach to the evidence is erroneous: [T]his Court has recognized appellate jurisdiction where the question of law originates from the trial judge’s conclusion that he or she isnot convinced of the guilt of the accused beyond a reasonable doubt because of an erroneous approach to, or treatment of, the evidence

adduced at trial. … A question of law may also arise, it seems to me, when the trial judge misdirects himself or herself with respect to the relevant evidence.

Indeed, the Court of Appeal in this case reversed the acquittals after concluding that an error of law had arisen due to the trial judge’s failure to properly direct himself to all the evidence bearing on the relevant issues. [42] Wilson J. relied on Morin I for support, addressing the effect of that case, at p. 77: I believe that Morin highlights the fact that the approach taken by the trial judge to the evidence must be correct in law so as to ensure that the final step in the process, the weighing of the evidence, is not flawed….A review of the trial judge’s decision in this case makes it clear that he failed to consider the evidence in its totality. [43] Wilson J. found in B. (G.) that the trial judge erred in law by failing to consider the combined effect of the evidence of the Crown’s witnesses.

The trial judge in B. (G.) had rejected the evidence of one of the Crown witnesses and only then proceeded to consider the evidence of the second. The trial judge also failed to consider aspects of the evidence corroborating the Crown’s position or individual pieces of evidence in the context of the evidence as a whole. Evidence was viewed ‘without the support of other evidence’, amounting to ‘serious misdirection’. [ 47 ] The central issue in the Curry case was the identity of the driver of the vehicle involved in a fatal accident.

The trial judge mistakenly interpreted the evidence of two witnesses as indicating that a person other than the accused was the driver. This error led to the trial judge ignoring or discounting other evidence which was incompatible with that conclusion. The Court explained why this justified setting aside the acquittal: [52] Some of this evidence was ignored by the trial judge. Some of it was referred to by the trial judge when he summarized the positions of the Crown and the defence, but he did not engage in any meaningful assessment of it.

In particular, the trial judge failed to assess his inference from the Casselman evidence in the context of the case as a whole, which overwhelmingly pointed to the respondent as the driver of the van at the time of the collision. At no time did the trial judge explain why he accepted the Casselmans’ testimony in the face of conflicting evidence tendered by the Crown.

The trial judge simply concluded that the Casselmans’ testimony was ‘the major difficulty with the Crown’s position.’ Because the trial judge failed to assess the totality of the Crown’s evidence, the Crown did not obtain the legally correct, contextual approach to the evidence to which it was entitled: Rudge , at paras. 47-48 . [53] Compounding this error, the trial judge applied the standard of proof in piecemeal fashion, which is an error in the nature of Morin I . The trial judge concluded that he was left with doubt as to how the respondent’s ankle injury was sustained.

As a result, he discounted Sergeant Muir’s evidence entirely, instead of considering, in the context of the evidence as a whole, both the evidence of the ankle injury and the remoteness of the possibility that it could have been sustained in some fashion other than in the front seat of the vehicle in the collision. In the language of Morin I , the effect of this error may well have been that evidence crucial to the Crown’s case was examined in bits and pieces. [54] In ‘the concrete reality of the facts of this case’, these errors might reasonably be thought to have had a material bearing on the acquittal: R. v.

Graveline , 2006 SCC 16 , at para. 14 . The trial judge repeatedly emphasized that it was the Casselman evidence, and particularly the evidence of Luke Casselman, that created reasonable doubt.

He said that ‘[i]t is the combination and totality of Miranda and Luke Casselman’s evidence that causes this Court to have a reasonable doubt as to who the driver was.’ He referred to Luke Casselman as ‘the most important witness in this trial’ and the implicated portion of his testimony as ‘the most powerful evidence of this case.’ Given the trial judge’s own statements to the effect that he decided the case on the basis of the Casselmans’ evidence, it is clear that legal error in the treatment of this evidence and the evidence significantly undermining it had a material bearing on his decision to acquit. [Emphasis added] [ 48 ] In Blanchard , the Newfoundland and Labrador Court of Appeal found the trial judge erred by failing to consider the evidence as a whole and engaging in speculation by making findings in the absence of any supporting evidence.

The Court described a trial judge’s responsibilities in considering the evidence as follows: [55] In J.M.H. , the Supreme Court of Canada stated that it is an error of law for a trial judge to assess the evidence piecemeal (para. 40) and confirmed that the criminal law standard of proof beyond a reasonable doubt applies to whether an offence is made out, not to individual pieces of evidence which comprise the whole (para. 31). [56] This does not mean that pieces of evidence cannot be carefully examined. All evidence must be examined with a view to determining its weight, if any.

What it does mean is that a ‘case is not decided by a series of separate and exclusive judgments on each item or by asking what does that by itself prove, or does it prove guilt? That is not the process at all. It is the cumulative effect’ ( Morin , at 359). [57] In

summary, pieces of evidence are not meant to be evaluated in isolation from each other. It is the whole of the evidence, composed of all pieces, that must be considered together, and it is that whole to which the standard of proof beyond a reasonable doubt applies. [ 49 ] The Court concluded the trial judge was wrong to suggest the accident might have resulted from the accused being momentarily distracted. There was no evidentiary basis for this conclusion and such speculation was found to be legally flawed: [68] With respect, the evidence respecting Ms.

Blanchard’s dangerous driving in this case cannot be described as resulting from momentary distraction or a single lapse of judgment that could be made by any reasonable driver. The Judge’s comments that Ms. Blanchard might have been momentarily distracted were not based on any evidence, or an inference that could reasonably be drawn from

the evidence. [69] A finding of fact made in the absence of any supportive evidence is an error of law (see J.M.H. , at para. 39 , and R. v. B.(G.), at paras 69-70). While the Judge did not find as a fact that Ms. Blanchard was momentarily distracted, her comments about momentary distraction were made in the context of her reasons for why she had a reasonable doubt that Ms. Blanchard’s manner of driving did not meet the modified objective standard required to establish the mens rea of the offence. While a reasonable doubt may be based on a lack of evidence, a reasonable doubt based on speculation is erroneous.

In these circumstances, the Judge’s speculation about momentary inattentiveness in some measure informed her reasonable doubt about Ms. Blanchard’s guilt. To the extent that it did, she was in error. [Emphasis added] [ 50 ] Here, the Crown argues the trial judge erred in law by failing to consider the totality of the evidence in relation to whether Mr. Tweedie committed the offence of dangerous driving causing death. In particular, they point to the issues of whether Mr.

Tweedie might have been swerving to avoid a pothole and the visibility of Talia and Mia. [ 51 ] I do not agree with the Crown that the trial judge engaged in piecemealing of the evidence in the sense of requiring proof beyond a reasonable doubt for particular parts of the evidence. However, as I will explain, I believe the trial judge erred by not considering the entirety of the evidence and this was sufficiently serious that the acquittal of Mr. Tweedie is undermined and a new trial required.

Road Conditions [ 52 ] In her decision, the trial judge outlined some of the evidence concerning the condition of the Black Rock Road, particularly the northbound lane: [ 53 ] Clayton Devoe testified that the Black Rock Road was in poor condition, with very little shoulder. He said he swerved on the Black Rock Road to avoid potholes. Others described the road as bumpy. David Edwards described Black Rock Road as being in rough shape.

The police took the accused to the scene of the collision on July 12, 2019, and during that drive, the accused described the road as ‘really rough’ and ‘a lot of people drive in the middle of the road’. The bouncing of the police camera during the drive on the Black Rock Road also showed that the road was bumpy. Corporal Ford described the Black Rock Road as having cracks, with pieces of the northbound lane adjacent to the gravel shoulder deteriorated and absent. He noted that the northbound lane was in poor repair with an uneven surface for northbound traffic.

He also noted that the middle line was faded. [53] In her conclusion with respect to the dangerous driving charge, the trial judge returned to the issue of the condition of the road: [68] If I accept that the accused crossed the centre lane of the highway and the vehicle he was driving struck Talia Forrest in the southbound lane, I must also consider the evidence in relation to the condition of the road. Talia Forrest’s friend described the vehicle as swerving or zig zagging.

Corporal Ford described the northbound lane as being in poor repair with pieces of the northbound lane adjacent to the gravel as being absent. Clayton Devoe said that he swerved on the Black Rock Road to avoid potholes. When the accused was in the police vehicle on Black Rock Road on July 12, 2019, he described Black Rock Road [as] really rough, and he said that people drove in the middle of the road.

The condition of the Black Rock Road makes it possible that a reasonable person would be swerving and in the southbound lane to avoid potholes. [Emphasis added] [ 54 ] The trial judge put significant weight on the testimony of Clayton Devoe who lived close to the scene of the accident. It is clear from his cross-examination that the road immediately in front of his home was in better shape than other portions and if there were potholes they were repaired promptly upon request: Q. Never? And you described the road as being ‘very very bad’. A. Well, it’s – it’s the potholes here and there. Q. Yeah. A .

Matter of fact the best part of the road is where I live right there. Well, there’s holes – there are potholes but... Q. Yeah. A. ... when you get a pothole, they fill it. Q. Yeah. A. You call them up and get them to fill that in. Q. So, you stand by your statement that the road is very, very bad? A. Yes, it is. … A. ...if there was a hole in the road there used to be patches. Q. Yeah.

A. You call up and get them to patch it. … Q. No, so over the last 27 years there, you – roughly how many times would’ve you called about maintenance of the road? A. Well, I called probably – okay - probably three times ... Q. Yeah. Okay. A. ...I’m just going to take a guess. I don’t know. Q. So, not that many then? A. No. Q. Then you say, ‘People are swerving away from the potholes and stuff like that.’ A. Oh, I’m not sure. I can’t talk for other people, that they swerve, but I – I swerved a couple like steps just to go around it a bit, or... Q. Yeah. A. ...one on the side of it. … Q. Okay.

So, is that a common thing for you to be swerving away from potholes on that road? A. No. [Emphasis added] [ 55 ] In addition to Mr. Devoe’s testimony, Corporal Ford’s accident reconstruction report includes extensive photographs of the road approaching and at the scene of the collision. No potholes are visible in the northbound lane. [ 56 ] The trial judge noted Mr. Tweedie had described the condition of the road when he visited the site with the RCMP officers. The transcript of this discussion indicates the following: COLIN TWEEDIE: The road’s really rough a lot of people drive in the middle of the road. CPL.

BERTHIAUME: OK. And was that the case for you? COLIN TWEEDIE: I don’t – I don’t think it was, no but I mean a lot of the time the – the side of the road’s falling apart. [ 57 ] During his interview at the police station, before the visit to the scene, Mr. Tweedie was asked whether he had swerved at the time of the collision: CPL. BERTHIAUME: And you don’t think you were – you were just going kinda the normal speed that you go down you said? COLIN TWEEDIE: Yeah. CPL. BERTHIAUME: OK. Alright. Um, (inaudible ). Do you remember like, um, vehicle swerving or anything like that?

COLIN TWEEDIE: No . [Emphasis added] [ 58 ] In my view, the trial judge’s implication that Mr. Tweedie may have collided with Talia on the wrong side of the road because he swerved to avoid a pothole arose because she did not consider all of the evidence. It was pure speculation. There is no evidentiary basis to support the inference, particularly where Mr. Tweedie himself said he was not swerving. As noted in Blanchard , a finding of reasonable doubt which arises out of speculation is an error of law.

Lighting/Visibility [ 59 ] The question of the lighting at the time of the collision and the visibility of Talia and Mia on their bikes was one the trial judge identified for consideration in her dangerous driving analysis. She discussed some of the evidence on this issue in her decision: [51] Some of the witnesses indicated that it was dusk or just getting dark. David MacLean who came along to the scene shortly after the collision and found the bicycle on the road said it was dark. The time of the collision was 21:42.

The clothing worn by Talia Forrest was dark and other than some reflectors on the bike, there was nothing to stand out in the dark. The video from Clayton Devoe’s camera shows vehicles with their headlights and taillights on and the flashlights or phone lights of the people searching for Talia Forrest are visible. Noelle MacLean who went outside immediately after the collision sent children home to get their parents and flashlights.

Clayton Devoe described a bunch of people with flashlights north of his home when he came out of his house after hearing people screaming. [52] In the photos taken by the accident reconstruction expert, Corporal Ford, there does not appear to be a streetlight which would

illuminate the area where the collision occurred. Corporal Ford described the ambient lighting on the Black Rock Road as minimal. Corporal Ford took photos on July 11, 2020, a year after the accident, to try to show the visibility.

However, it is not clear that the visibility would have been the same in 2019 as there was evidence that the brush along the side of the road had been cut back. [ 60 ] In addition, in her conclusion with respect to the dangerous driving charge, the trial judge made the following findings: [65] In relation to the first question, the circumstances on July 11, 2019, included that but it was dark enough that people searching for Talia Forrest had to use flashlights and the cars on the road in the video had their headlights and taillights on. It was a country road with minimal ambient streetlights.

The bicycles driven by Talia Forrest and her friend did not have headlights. The two girls were not wearing reflective clothing or helmets with reflectors. [ 61 ] The important question for the trial judge to consider was: how visible were Talia and Mia at the time of the collision? They were on Black Rock Road adjacent to civic number 135. It is this location where the trial judge should have focused her attention in relation to lighting and visibility. [ 62 ] There were a number of witnesses who had first-hand knowledge concerning the lighting conditions on Black Rock Road and the visibility of Talia and Mia.

The trial judge did not refer to, and apparently did not consider, some of the more significant evidence. [ 63 ] James MacLean lived at 132 Black Rock Road. On July 11, 2019, he went for an evening drive. On his return, he saw Mia and Talia on the road adjacent to his home and stopped to let them cross. In cross-examination he described the visibility of the girls as follows: Q. Thank you. Thank you. And you originally saw the girls, they were going in the same direction that you were when you were coming back, is that right? A. Yes, but...yes, yes. Q. Yes, and then you saw them turn around at some point. A.

Turn around? Q. Yeah. A. No. Q. No? Okay, you saw them cross the road. A. Yes, I allowed them to cross the road. Q. Yeah. So, I take it you must’ve caught up to them then, is that right? A. Yes... Q. Okay. A. ...because as I said they were right before your – you turn left to go up my driveway. Q. Yeah. And they crossed in front of you? A. Yes. Q. And you could see both of them? A. Yes. Q. And you could see them with your headlights from your – from your Chevy Outlander, correct? A. What, you didn’t need the headlights to see them . Q. That’s not what I asked, sir.

The headlights were shining on them, were they not? A. Yes, but it would not have been dark enough for the headlights ... Q. Sir... A. ... to actually be needed . Q. ...sir, sir, this is going to be a lot easier if you just answer the questions. How far were they in front of you when they crossed over? A. Probably just a couple of feet because as I said I came 20 to a complete stop... Q. Okay. A. ...to allow them to cross.

[Emphasis added] [ 64 ] Mr. MacLean’s encounter with the girls was less than a minute before the collision, and so his description of lighting and their visibility should have been relevant. [ 65 ] Ellen Jane Fraser lived at 70 Black Rock Road with her five children, one of whom was Mia White. She testified that on the evening of July 11 th , Mia ran into the house after the collision. They got in her car and drove up the road where she saw people looking in the drains. She explained what she saw and the lighting conditions as follows: Q. When you got there you saw people? A. Yes. Q.

And what were those people doing? A. They’re searching the drains. Q. And were they saying or calling anything? A. They were calling Talia’s name. Q. And were they using anything to assist them in searching? A. Some of them had cell phones in their hands . Q. And what were they doing with cell phones? A. It was starting to get dark and I saw some...I didn’t have my cell phone on me. I could see where I was look...where I was looking at but I knew it was starting to get dark and I’m assuming that they were using it for lights, or maybe, you know... Q. Okay. A. ...or dialling 9-1-1, I don’t know. Q.

And so, can you describe what time of day this would’ve been? … A. What time of day? Q. Or the time of day or was it evening or night? A. I just – when I’m in the kitchen I have a clock on my stove and I just remember seeing 9:20, and that was right around the time Mia came screeching up the steps and screaming what, you know, Talia’s dead. So, by the time, maybe between 9:00...maybe around 9:30- ish. Q. Okay. A. I – I can’t say for sure. Q. Oh, okay. A. I know it was still somewhat light out. I could still see. I didn’t need my headlights on in my car, or nothing like this.

I was searching through the grass myself without a light . Q. Okay. A. But it was just at that point, it was – I guess you call it dusk . [Emphasis added] [ 66 ] Leah Luker arrived on the scene after the initial first responders. She observed debris on the road and was asked about lighting conditions. She testified: Q. Okay. And the lighting in the area of this scene, did you take any notice of... A. The pole light. Q. The pole light? A. The sky itself wasn’t completely dark yet. It was at the time before being dark and the sun going down. Q. Okay.

And the place where you saw debris, how as the lighting there relative... A. From what I can remember the street was lit up pretty good with pole lights. I don’t remember any dark spots.

Q. Hm..mm. A. And I was outside of the vehicle. [Emphasis added] [ 67 ] Noelle MacLean lived at 135 Black Rock Road. She described the search for Talia as follows: A. …So, I asked her – I waved her into my house. I thought maybe somebody was chasing her or something,

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