R v Hunter, 2015 SKCA 137

Court of Appeal for Saskatchewan Docket: CACR2473 Citation: R v Hunter , 2015 SKCA 137 Date: 2015-12-09 Between: Her Majesty the Queen Appellant And Marilyn Rose Hunter Respondent Before: Lane, Caldwell and Whitmore JJ.A. Disposition: Appeal Dismissed Written reasons by: The Court On Appeal From: CRIM 762/12, J.C. of Regina Heard: 15 September 2015 Counsel: W. Dean Sinclair, Q.C. for the Appellant Bruce Campbell for the Respondent The Court [ 1 ] The Crown appeals pursuant to s. 676(1) (

a) of the Criminal Code against the acquittal entered by a trial judge on the indictable offence of dangerous driving.

As such, the Crown must establish the trial judge committed an error of law alone and that the error might have had a material bearing on the acquittal (see R v Graveline , 2006 SCC 16 at para 14 , [2006] 1 SCR 609 and R v Alves , 2014 SKCA 82 at paras 13–16 , 442 Sask R 69); however, we are not satisfied these requirements have been met in this case and, therefore, the Crown’s appeal must be dismissed. [ 2 ] As background, Marilyn Rose Hunter was driving a motor vehicle with two passengers from Regina to her Reserve near Punnichy. They left Regina at approximately 4:00 a.m. She drove nearly 120 kilometres.

At around 5:30 a.m., when she was near the Reserve, she fell asleep at the wheel. The vehicle rolled, ejecting one passenger. He died instantly. After a trial, the judge acquitted Ms. Hunter on a charge under s. 249(4) of the Criminal Code of operating a vehicle in a manner dangerous to the public [dangerous driving] causing death. [ 3 ] The trial had proceeded on the basis of viva voce evidence and an agreed statement of facts. In the agreed statement of facts, Ms. Hunter accepted, as proof of its contents, a DVD recording of her warned statement given to an RCMP constable on the date of the accident.

In that warned statement, Ms. Hunter had acknowledged feeling tired and that her eyes had been shutting just before the accident. She said she had wanted to ask one of her passengers to take over driving; but, she continued driving because she was “this close” to her destination. On this basis, the trial judge found the actus reus of dangerous driving had been made out: The act of going into the ditch, hence, was not voluntary. In the accused’s statement, where she attempted to address what happened, she testified -- or she told the officer, she thought she fell asleep.

She told the officer she felt tired at the Raymore turnoff, but the evidence is unclear that she felt tired prior to this. She had been drinking, although the evidence does not establish impairment. So the question in respect to the actus reus , is whether she drove in circumstances where she knew, or ought to have known, that there was a real risk that she could fall asleep. She knew that she felt tired at Raymore, and she knew her eyes were shutting. She voluntarily continued to drive on the highway, when she knew or ought to have known that there was a real risk that she could fall asleep.

I am satisfied, based on this evidence, that the test for the actus reus is satisfied. [Emphasis added] [ 4 ] The trial judge next addressed the mens rea of the offence: So the question, then, is whether the mens rea component has been satisfied. The question is whether a reasonable person, in the position of the accused, should have appreciated the risk of falling asleep while she was driving.

As stated by [Justice] Cory -- in the Supreme Court of Canada case in [ R v Roy , 2012 SCC 26 , [2012] 2 SCR 60] the question could be posed as this: First, 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 circumstances. [ 5 ] After again reviewing the facts as she found them, the trial judge concluded her mens rea analysis in this way: The accused here woke up at 11:30 a.m., on the day before the accident. She drove to Regina that same evening. She, by her own admission, consumed alcohol.

Two beer between nine and 10:30 p.m., on the night before the accident, and then three to six glasses of cooler, but it is unclear as to how many ounces of alcohol or liquor would have been consumed. She was forthcoming in her statement to police about that consumption. She also told the paramedics she consumed alcohol. She told the police officer, she did not feel drunk. The accused had spent the night in Regina, visiting with family and friends. The accused acknowledged -- it is clear the accused acknowledged that she felt tired at the Raymore turnoff. She felt her eyes close.

It is this admission, which the Crown indicates it relies on, in respect of the Crown’s suggestion that it has satisfied the mens rea component of the charge. The accused continued to drive after, ostensibly, because she thought she did not have much farther to go. So the question is whether a reasonable person in the circumstances of the accused, the circumstances of a person who slept until 11:30 the day before, had driven to Regina, visited with friends, had consumed some alcohol, and who drove home in the early morning hours. And who, at about 15 kilometres, prior to the accident, felt tired.

Her eyes momentarily closing. The question is, would a reasonable

person have foreseen the risk of falling asleep and taken steps to avoid it, if possible? One must remember that driving tired does not, byitself, connote a risk of falling asleep. It is not a criminal offence to drive after a restless night or a long day. And this is not a situation,like some, where the evidence has been clear that the accused had been, over a long time, sleep deprived or had a known sleep disorder.The evidence here is not clear that the accused felt tired, prior to Raymore.

And there is no evidence that the accused continued toexperience the feeling of tiredness between the feeling at Raymore and the accident, while the accused did note that she felt tired atabout 15 kilometres before the accident and felt her eyes shut. I am not satisfied that a reasonable person in the circumstances would have foreseen the risk of falling asleep. In my view, the lawrequires something more to establish objectively dangerous driving. Criminal culpability cannot be found beyond a reasonable doubt onsuch a paucity of evidence.

Secondly, even if I was satisfied that a reasonable person would have foreseen the risk and taken steps toavoid it, the second question, which is whether the accused failure to foresee the risk and take steps to avoid it, was a marked departurefrom the standard of care expected of a reasonable person in the accused’s circumstances. Again, I must answer this question in thenegative. The accused here was driving in the early morning hours. She had slept in til 11:30 a.m., the day before, and had left Regina to drivehome. The drive was about an hour from Regina to her home.

She had been drinking, but did not feel it. She felt tired at about theRaymore turnoff, when her eyes fell shut. The accused was close to home. I am not satisfied that the accused’s failure to foresee the riskand take steps to avoid it, was a marked departure from the standard of care expected of a reasonable person. I have a reasonable doubt,and that doubt must be resolved in favour of the accused. In my view, the evidence, in the absence of something more, is insufficient to --to support a finding of a marked departure from the standard of care of a prudent driver.

Criminal culpability cannot be found beyond areasonable doubt, on such a paucity of evidence. [Emphasis added] [6] The Crown alleges the latter finding—that Ms.

Hunter lacked the necessary objective mens rea—constitutes a reversibleerror of law alone by reason that it stands in direct contradiction to the trial judge’s earlier finding under her actus reus analysis that therespondent subjectively “knew or ought to have known that there was a real risk that she could fall asleep,” (see R v J.M.H., 2011 SCC45 at paras 25–32, [2011] 3 SCR 197 and R v Morin, (SCC), [1992] 3 SCR 286 at 294). [7] With respect, we are not persuaded to that point of view. While there is some evidence of Ms.

Hunter’s subjective state ofmind, in the trial judge’s assessment, it fell short of establishing beyond a reasonable doubt “deliberately dangerous driving,” asdescribed in R v Roy, 2012 SCC 26 at para 38, [2012] 2 SCR 60, and we can see no reversible error in that determination. [8] In the absence of proof of subjective mens rea, the offence of dangerous driving will only be made out if the care exhibitedby the accused constitutes a marked departure from the norm: R v Roy at para 28.

That norm is the standard of care that a reasonableperson would observe in the accused’s circumstances (see R v Beatty, 2008 SCC 5 at para 43, [2008] 1 SCR 49 and R v Roy at para 28).While the distinction between a mere departure from the standard of care—i.e., one justifying civil liability—and marked departure—i.e.,one justifying criminal liability—is a matter of degree, the lack of care must be serious enough to justify punishment (see R v Beatty atpara 48 and R v Roy at para 28).

Cromwell J. explained this in R v Roy in these terms: [30] A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important toensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminallaw and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which maysupport civil liability, and the marked departure required for criminal fault is a matter of degree.

The trier of fact must identify how andin what way the departure from the standard goes markedly beyond mere carelessness. … [36] The focus of the mens rea analysis on whether the dangerous manner of driving was the result of a marked departure from thestandard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful toapproach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would haveforeseen 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 andtake steps to avoid it, if possible, was a marked departure from the standard of care of a reasonable person in the accused’scircumstances. [Emphasis in original] [9] As can be seen, the trial judge identified and understood the law as set forth in R v Roy and she properly applied it to thefacts as she found them. As we read her oral reasons, the trial judge acquitted Ms. Hunter because the trial judge plainly found that,although the care Ms.

Hunter had exhibited was a departure from the standard of care that a reasonable person would observe in hercircumstances, it was not a marked departure from that norm. That is to say, the trial judge found the evidence insufficient to identifyhow and in what way Ms. Hunter’s departure from the norm went “markedly beyond mere carelessness” (see R v Roy at para 30). Forthis reason, the trial judge held a reasonable doubt as to proof of the mens rea element of the offence and entered an acquittal.

We findno reversible error in her approach or her determination in that regard. [10] As, in our assessment, the trial judge’s reasons do not give rise to an error of law alone, the Crown’s appeal must bedismissed.