R. v. Waite Appeal by the Crown from a verdict of acquittal on charges of criminal negligence. The accused Waite was drinking on the day of the tragic incident. His blood alcohol level was above 0.08 at the time of the accident. He had been driving behind hay wagons which contained participants in the Bethel Church Mennonite hayride. He failed to have his headlights on in the dark, and drove at least 20 miles per hour over the speed limit as he turned and deliberately approached the wagons. He was driving on the wrong side of the road, and told his passenger he was going to see how close he could get. He passed the wagons and struck five young people, killing four of them and seriously injuring the fifth. He was charged with four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. He was acquitted of criminal negligence, but convicted of the lesser included offence of dangerous driving. The Crown claimed the charge to the jury with respect to criminal negligence was in error and placed too high a burden on the Crown. HELD: Appeal allowed, acquittal on charges of criminal negligence set aside, conviction for dangerous driving set aside, and a new trial was directed on the charges of criminal negligence. The law indicated that mens rea or requisite intent was inferred from the driving or act of commission itself. It was only in the case of omissions or failure to act that an objective test was insufficient. The directions stated that in criminal negligence there was an objective standard of dangerous driving, plus the subjective element of deliberate assumption of risk. This indeed placed too high an onus on the Crown. If the error had not occurred, the jury would not necessarily have returned the same verdict. The judgment of the Court was delivered by Factual Background 2 On Saturday, September 8, 1984, the Bethel Church Mennonite hayride took place. When it set out, high spirits and happiness prevailed. It ended in stark tragedy when the Waite car struck five of the participants, killing four and seriously injuring the fifth. Charge to the Jury 8 Upon the completion of the trial judge's charge, the jury retired at 2:18. At 4:10, the jury returned with the question, "What is the moral difference between dangerous driving and criminal negligence? We want a clearer definition." Upon the completion of the recharge, various submissions were made to the trial judge by counsel for the Crown and the accused. As a result of those submissions, he instructed the jury in the following terms: The position is that in dangerous driving the intention or the state of mind, if you wish, of the driver is not important. You look objectively at the manner of driving. You just look at the manner of driving. 9 It is reasonable to assume that not all parts of a charge will be remembered with great particularity by a jury. A question such as the one posed in this case indicates an area of concern for the members of the jury. No matter how careful and extensive the original directions, the question, focusing as it does upon the jury's problem, should be answered carefully and completely even if these later directions seem to be repetitious. 213. Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes or maintains anything whatever which, in the absence of precaution or care, may endanger human life, is under a legal duty to take reasonable precautions against, and use reasonable care to avoid, such danger, and is criminally responsible for the consequences of omitting, without lawful excuse, to perform such duty. 12 Although the section was renumbered as s. 247 in the 1906 Code (R.S.C. 1906, c. 146), the wording remained the same until the 1955 amendment to the Code. Section 247 created the duty. Section 252 created the offence of negligently causing injury. It read as follows: 252. Every one is guilty of an indictable offence and liable to two years' imprisonment who, by any unlawful act, or by doing negligently or omitting to do any act which it is his duty to do, causes grievous bodily injury to any other person. 13 Section 252 became s. 284 in the 1927 Code which was the predecessor of s. 204 in the present Code. The court [in McCarthy] was unanimous in the view that failure to maintain a "proper outlook" amounted, in the circumstances, to culpable negligence within the contemplation of the criminal law, and that, speaking more generally, a want of ordinary care in the circumstances in which persons of ordinary habits of mind would recognize that such want of care is not unlikely to imperil human life, falls within that category. But the decision does not attempt to lay down an abstract rule for determining the incidence of criminal responsibility for negligence. 15 In R. v. Greisman (1926), 46 C.C.C. 172, Middleton J.A., speaking for this Court at pp. 177-78, set forward the test for determining criminal responsibility in criminal negligence in this way: I think the great weight of authority goes to show that there will be no criminal liability unless there is gross negligence, or wanton misconduct. To constitute crime there must be a certain moral quality carried into the act before it becomes culpable. In each case it is a question of fact, and it is the duty of the Court to ascertain if there was such wanton and reckless negligence as in the eye of the law merits punishment. This may be found where a general intention to disregard the law is shown, or a reckless disregard of the rights of others. 16 Middleton J.A., in reaching this conclusion, relied on the reasons of Lord Hewart C.J. expressed in R. v. Bateman (1925), 19 Cr. App. R. 8, where at pp. 10-11 of the report the following appears: The law of criminal liability for negligence is conveniently explained in that way. If A. has caused the death of B. by alleged negligence, then, in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A. owed a duty to B. to take care, that that duty was not discharged, and that the default caused the death of B. To convict A. of manslaughter, the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A.'s negligence amounted to a crime. In the civil action, if it is proved that A. fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In a criminal Court, on the contrary, the amount and degree of negligence are the determining questions. There must be mens rea. (Emphasis added.) 17 Up to this Point, it is clear that the test enunciated by the courts for determining whether criminal negligence existed was an objective one. This was true for criminal negligence which, if death resulted, constituted manslaughter at common law and criminal negligence under the Code prior to 1955. Although some legal writers questioned whether negligence should ever be the basis for criminal responsibility, the law pertaining to criminal negligence in Ontario prior to the enactment of the 1955 Code, like the law of gravity, was well understood. The test to be applied was an objective one to determine if there had been such wanton and reckless negligence that punishment was merited. Juries generally speaking had no difficulty understanding the conduct required to constitute criminal negligence when instructed in accordance with R. v. Greisman, supra and R. v. Bateman, supra. 1955 Amendment to the Criminal Code 18 Section 191(1) of the 1955 Code (S.C. 1953-54, c.51) is identical in its wording to s. 202(1) of the present Code. It reads as, follows: 191.(1) Every one is criminally negligent who 19 J.C. Martin, Q.C. commented upon the introduction of s. 191 and observed that although it was new in statutory form, it was not new in law. He stated: This is new in statutory form although not in law. The Royal Commissioners in their Report [Royal Commission to Revise the Criminal Code, 1947 - 1952], said of it and the two following sections:20 It seems clear from its language that the definition of criminal negligence in the present Code is largely taken from R. v. Greisman, supra.'A great deal of confusion has arisen, particularly in motor manslaughter cases, as to the degree of negligence required to sustain a conviction against an accused person. Much of the confusion arises by reason of the standard of care set forth in section 247 which reads as follows: 21 For some time following the amendment, various appellate courts continued to apply an objective test to determine if the conduct of the accused was culpable. They too seemed to be of the view that the 1955 definition of criminal negligence had not changed the substance of the offence. 22 In R. v. Savoie (1956), 117 C.C.C. 327 (N.B.S.C. App. Div.), it was observed that s. 191 of the Code which came into effect in 1955 did not make any change in the law relating to criminal negligence. 23 Similarly, in R. v. Savard (1957), 26 C.R. 269 (Alta. S.C. App. Div.), Ford C.J.A. commented at p. 270 that the new definition of criminal negligence, if not derived from, was in accord with the leading decisions of Andrews v. Director of Public Prosecutions, [1937] A.C. 576; Rex v. Greisman, supra and Rex v. Bateman, supra. 24 In Andrews v. D.P.P., supra, the House of Lords had considered the issue of manslaughter from the point of view of an unintentional killing caused by negligence. Lord Atkin, expressing the view of all the law lords, approved of R. v. Bateman, supra and put the test in this way at p. 583: The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied "reckless" most nearly covers the case. 25 In R. v. Fortin (1957), 121 C.C.C. 345 (N.B.S.C. App. Div.), Ritchie J.A. expressed the opinion that, notwithstanding the inclusion of s. 191 in the new Code, the earlier authorities dealing with criminal negligence remained pertinent. He put his position in this way at p. 349: The enactment of s. 191 has not eliminated mens rea as an essential ingredient in offences which involve criminal negligence ... In offences involving criminal negligence the element of mens rea is to be found in the blameworthy state of mind which his wanton or reckless disregard for the lives and safety of other persons imputes to the accused. The blameworthy state of mind may be entirely negative. It is not necessary to establish any knowledge or intent. And later, at pp. 350-351: The emphasis should be upon the conduct of the accused. If such conduct, on its face, indicates on the part of the accused, either in the operation of a dangerous agency, such as a motor vehicle, or otherwise, a wanton or reckless disregard for the lives or safety of others, and no exculpatory circumstances appear tending to show his conduct was due to causes beyond his control, then, without more, culpability may be inferred and the jury may convict. (Emphasis added.) 26 From the authorities decided prior to 1960, the following principles can be derived. Neither s. 191 of the 1955 Code nor its earlier predecessor had eliminated mens rea as an ingredient in the offence of criminal negligence. However, the test to be used in determining whether or not the accused had that blameworthy state of mind was an objective one. It was applied by examining the accused's conduct to determine if he had displayed a wanton or reckless disregard for the lives and safety of others in the absence of an exculpatory explanation for his conduct. Absent such an explanation, his conduct without more could be sufficient to demonstrate his culpability. There is a fundamental difference between the subject-matter of these two pieces of legislation which the appellant's argument does not recognize. It is a difference in kind and not merely one of degree. This difference has been recognized and emphasized in the recent writings of Glanville Williams on Criminal Law ... and by J.W.C. Turner in the 17th edition of Kenny's Outlines of Criminal Law. I adopt as part of my reasons Turner's statement of the difference to be found at p. 34 of Kenny:'But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea, and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence; they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. The common habit of lawyers to qualify the word "negligence" with some moral epithet such as "wicked", "gross", or "culpable" has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression to explain itself.' (Emphasis added in part.) And at p. 809: What the Parliament of Canada has done is to define "advertent negligence" as a crime under ss. 191(1) and 221(1). It has not touched "inadvertent negligence". 28 To supplement these reasons it may be helpful to set out some definitions of "advertent" and "inadvertent". The Shorter Oxford Dictionary defines "advertent" as "attentive". "Advert" is defined as "to turn towards or direct". Indeed, I am of the opinion that the instruction as to deliberate intention puts the obligation of the Crown at too high a level in respect of a charge to which criminal negligence is basic. Although the question of the type of mens rea involved in criminal negligence, as defined in s. 191(1), was not directly in issue in the judgments of this Court in O'Grady v. Sparling, Binus v. The Queen, and Peda v. The Queen, these cases support the conclusion that subjective intent is not a necessary ingredient of criminal negligence. 34 The section was again considered by the Supreme Court in Leblanc v. The Queen, [1977] 1 S.C.R. 339. In that case, Leblanc, a pilot, had been retained to fly to a location to pick up two men. When he spotted his clients, he made a low "pass" to frighten them. One of the men was hit by his aircraft and suffered fatal injuries. Leblanc was convicted at trial of criminal negligence causing death and this conviction was upheld by the Quebec Court of Appeal. "In most cases, the fact itself proves the intent. See in this regard the reasons of Pigeon J. in Peda v. The Queen. (Emphasis added.) 40 Dickson J. gave the minority reasons for himself and for Laskin C.J.C. Again it was stressed that subjective intent was not a necessary ingredient of criminal negligence and that thus the mens rea of criminal negligence is to be determined by an objective standard. He put forward his views in this way at p. 346: On a charge of criminal negligence, evidence adduced by the Crown disclosing that by his conduct the accused showed wanton or reckless disregard for the lives and safety of other persons is prima facie evidence of criminal negligence. Laskin J., as he then was, dissenting in Arthurs v. The Queen, at pp. 306-307, commented on the mens rea of criminal negligence:Although the question of the type of mens rea involved in criminal negligence, as defined in s. 191(1), was not directly in issue in the judgments of this Court in O'Grady v. Sparling, Binus v. The Queen, and Peda v. The Queen, these cases support the conclusion that subjective intent is not a necessary ingredient of criminal negligence. 41 Although the question is not free from doubt, the references in the reasons of the majority which appear not to preclude the use of an objective test and the clear statement in the minority judgment that the mens rea for criminal negligence is determined on an objective standard do, I believe, leave it open for this Court to apply such a test to determine whether the conduct in issue demonstrates the requisite mens rea to establish criminal negligence. While it must be granted that mens rea is an essential ingredient in an of fence of criminal negligence, the cases cited above hold that this ingredient of mens rea may be found in evidence of conduct amounting to a wanton or reckless disregard for the lives or safety of other persons - and such conduct alone amounts to criminal negligence, regardless of intention or absence of intention. 45 Lastly, in Regina v. Rogers [1968] 4 C.C.C. 278 (B.C.C.A.), Tysoe J.A. at p. 286 referred to the proposition that the test is an objective one. He concluded that the accused must be judged not by his own standards but by the standards of reasonable people. Nemetz J.A., in concurring reasons, also concluded that a consideration of the whole of s. 191 led to the conclusion that Parliament intended that the conduct of the person charged thereunder was to be tested objectively. Recent Decisions of This Court Pertaining to Criminal Negligence 46 This Court on three occasions in the recent past has considered the provisions of s. 202. This was a case where the putting of the Code definition of criminal negligence to the jury with little more in the way of elaboration would have been sufficient. Proper elaboration would make clear to the jury the necessity for the driving to amount to a marked and substantial departure from the standard of a reasonable driver in the circumstances (which, as indicated earlier, was properly done in this case) and that the driver either recognized and ran an obvious and serious risk to the lives and safety of others or, alternatively, gave no thought to that risk. 49 It is clear that in criminal negligence cases involving driving misconduct, an objective test must be applied in Ontario until such time as the Supreme Court of Canada directs otherwise. Most cases, if not all, where it has been held that the mens rea of criminal negligence is determined by an objective standard have been cases of acts of commission. Where, for example, an accused person drives at a grossly excessive speed through a busy intersection and causes the death of others by so doing, a marked and substantial departure from the standard of a reasonable driver in the circumstances has been held to suffice. It would be open to the jury under such circumstances to find the required blameworthy state of mind in the nature of the accused's driving. 52 The section was next considered in R. v. Barron (1985), 48 C.R. (3d) 334. In that case, Barron, who was at a teenage drinking party, persuaded his friend to join him in "streaking" the girls at the party. Barron and his friend undressed to their underwear but at the landing above the stairs the victim hesitated and said he didn't want to go. Barron then gave his friend a slight push on the back, causing him to lose his balance and fall down the stairs. Unfortunately, he suffered head injuries which led to a fatal infection of his lung. Barron neither intended nor expected that the victim would lose his balance. He was charged with manslaughter, tried by a judge alone and convicted. The combination of such minimal force and momentary inadvertence was sufficient to constitute a departure from the standard of a reasonable man in the circumstances and in that sense constituted negligence, a civil tort. For behaviour to constitute criminal negligence, however, there must be a marked and substantial departure from the standard of a reasonable person. (Emphasis in original) 54 From his reference to the standard of a reasonable man, it is apparent that in considering an act of commission (the push), it was necessary to apply an objective test to the act to determine if it constituted a marked and substantial departure from the conduct of a reasonable man. A person who causes the death of another person by driving a motor vehicle on a road recklessly shall be guilty of an offence. 58 It was determined that there were two aspects to the offence. Firstly, it was necessary to determine whether the driving created an obvious and serious risk of physical injury to other persons. Secondly, it was necessary to find that, in driving in such a manner, the accused did so either without having given any thought to the possibility of there being any risk or, having recognized that there was some risk involved, had gone ahead and undertaken it. The test to be applied by the jury was an objective one comparing the driving of an accused to that of the ordinary prudent motorist. Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting "recklessly" if before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it. In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: First, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and Second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it. It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.tkend 60 From the foregoing, it can be seen that the House of Lords has concluded that an objective test is to be applied in determining whether an accused drove recklessly. But what are we to say of the man who, as in Caldwell, sets a hotel on fire without adverting to the risk that the guests might be burned. Such inadvertence indicates a shocking state of mind, one that cares as little for human beings as for insects. A Consideration of Section 202 62 Quite apart from the decided cases, a reading of s. 202 of the Code appears to lead to the conclusion that an objective test should be applied. In passing, it should be noted that caution should be exercised in applying English cases dealing with what constitutes "recklessly" in different statutes in light of the precise wording of s. 202. The section provides that everyone is guilty of criminal negligence who "shows" a wanton or reckless disregard for the lives and safety of others. The use of the word "shows" indicates that an objective test should be applied. The very driving or act of commission complained of should "show" or demonstrate the criminal negligence. The word "wanton" means "heedlessly". "Wanton" coupled as it is with the word "reckless", must mean heedless of the consequences or without regard for the consequences. If this is correct, then it is immaterial whether an accused subjectively considered the risks involved in his conduct as the section itself may render culpable an act done which shows a wanton or reckless disregard of consequences. The section itself indicates that from the very manner of driving or from the very act committed the mens rea of the accused can be inferred. There is now growing acceptance that there are valid arguments in favour of resorting to objective negligence, especially if we are referring to the Hart/Pickard concept of objective negligence, which makes generous allowance for individual factors. However, arguments justifying a general fault approach apply with considerably less force. 67 Without debating the merits of that argument, I cannot see that it is applicable to criminal negligence cases arising from the manner of driving of the accused. All who drive possess a licence. The possessor of a licence has demonstrated to the licensing authority that he or she knows the rules of the road and possesses the physical and mental ability to drive in a safe manner. Licence holders can be taken to be aware of the reasonable standards required of drivers, and the grave dangers occasioned to others should they fall below those standards. Licence holders should be assumed to know the consequences of their actions and it follows that they may be able to benefit from the deterrence of punishment. Review and Conclusion 68 Section 202 of the Code requires that an objective test be applied in assessing the acts and active conduct of the accused. The requisite criminal intent may be inferred from the very act or acts of the accused that are in issue. Disposition 76 To repeat, in this case, in response to a question from the jury, the following directions were given: So that you have in one, the dangerous driving, there is simply an objective standard, as compared to what the prudent driver would do. In the criminal negligence you have that, plus the subjective element of assumption and deliberate assumption of the risk. 77 This placed too high an onus on the Crown. As indicated by Morden J.A. in Regina v. Sharp, it would have been sufficient had the trial judge simply read s. 202 of the Code to the jury together with the instruction that the driving had to amount to a marked and substantial departure from the standard of a reasonable driver. CORY J.A.
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