



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stanton, 2014
    ONCA 29

DATE: 20140115

DOCKET: C56151

Goudge, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Robert Stanton

Respondent

Benita Wassenaar, for the appellant

Timothy E. Breen, for the respondent

Heard: November 26, 2013

On appeal from the acquittal entered on September 24,
    2012 by Justice Marietta L. D. Roberts of the Ontario Court of Justice.

Juriansz J.A.:

[1]

On the night of May 20, 2010, Adam Hofstetter was cycling on a rural
    road when a motor vehicle driven by the respondent, Mr. Stanton, struck and
    killed him.

[2]

This is a Crown appeal from the trial judges acquittal of the
    respondent of failing to stop at the scene of an accident, contrary to s. 252
    of the
Criminal Code
, R.S.C. 1985, c. C.46 (the 
Code
).

Background

[3]

After work on May 20, 2010, the respondent played a round of golf and
    shared drinks at one of the golfers homes. Later, the respondent drove home
    following a friend on an unfamiliar, tree-lined rural road. A little after
    10:30 p.m., he lost sight of his friends tail lights, and the respondent hit
    something he believed at the time to be a deer. He flashed his lights to get
    his friend to stop, and they spoke on the side of the road. The respondent continued
    home, left his damaged car in his driveway and had a cigarette. His friends
    wife then drove him back to the area of the impact. The police were on the
    scene and had blocked the road. He spoke with someone  likely a police officer
     but did not report that he was involved in an accident. The respondent
    returned home and called the police at 12:40 a.m. to report he had been
    involved in a collision earlier that evening.

[4]

The respondent was charged with failure to stop at the scene of an
    accident under s. 252(1.3) of the
Code
:

(1) Every person commits an offence who has the care,
    charge or control of a vehicle, vessel or aircraft that is involved in an
    accident with

(a) another person,

(b) a vehicle, vessel or aircraft, or

(c) in the case of a vehicle, cattle in the charge
    of another person,

and with intent to escape civil or criminal liability
    fails to stop the vehicle, vessel or, if possible, the aircraft, give his or
    her name and address and, where any person has been injured or appears to
    require assistance, offer assistance.



(1.3) Every person who commits an offence under
    subsection (1) is guilty of an indictable offence and liable to imprisonment
    for life if

(a) the person knows that another person involved
    in the accident is dead; or

(b) the person knows that bodily harm has been
    caused to another person involved in the accident and is reckless as to whether
    the death of the other person results from that bodily harm, and the death of that
    other person so results.

Section 252(2) of the
Code
creates a
    presumption against the accused:

(2) In proceedings under subsection (1), evidence
    that an accused failed to stop his vehicle, vessel or, where possible, his
    aircraft, as the case may be, offer assistance where any person has been
    injured or appears to require assistance and give his name and address is, in
    the absence of evidence to the contrary, proof of an intent to escape civil or
    criminal liability.

[5]

At trial, the respondent conceded he was involved in the collision with Hofstetter
    and that he left the scene without identifying himself or assisting Hofstetter.
    The only issue was whether he failed to stop with the intention of avoiding
    civil or criminal liability. The respondent testified that he thought he had
    hit a deer. The Crown produced lengthy expert evidence from two accident
    reconstruction officers regarding the location and dynamics of the impact to
    establish that he either knew he hit a cyclist or was wilfully blind to that
    fact. Photographs of the respondents car entered into evidence showed severe
    damage to his windshield and to the roof of the vehicle. The front portion of
    the car had almost entirely caved in as a result of the accident. The Crown
    also cross-examined him extensively on his alcohol consumption that evening.

The Trial Judges Reasons

[6]

After reviewing the evidence and the parties submissions, the trial
    judge turned to the central issue as she saw it: whether the respondents
    evidence raised a reasonable doubt about his intent in light of the Crowns
    evidence. She noted the Crowns arguments as to why the respondents evidence
    should not be believed: his testimony was evasive; he drank alcohol that
    evening; he initially lied to the police about his drinking and where he had
    been that night; and he waited to contact the police.

[7]

Applying
R. v. W. (D.)
, [1991] 1 S.C.R. 742, the trial judge found
    that the respondents evidence rebutted the presumption in s. 252(2) because it
    raised a reasonable doubt that his intent was to escape civil or criminal
    liability. Lastly, she described the officers evidence about the mechanics of
    the accident and found that it did not prove the respondents intent beyond a
    reasonable doubt. Accordingly, she acquitted the respondent.

Positions of the Parties

[8]

Pursuant to s. 676(1)(a) of the
Code
, the Crown may appeal an
    acquittal on questions of law alone. The Crown submits that the trial judge
    made three legal errors. First, it argues that the trial judge failed to apply
    the doctrine of wilful blindness properly. Second, it argues that the trial
    judge applied too restrictive a standard of civil or criminal liability, thus
    imposing too high a burden on the Crown with respect to intent. The Crown submits
    that these errors led the trial judge into a third error of failing to consider
    all of the evidence in relation to the respondents mental state:
R. v.
    J.M.H.
, 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 31-32.

[9]

The respondent argues that the trial judge properly stated the mental
    state requirement under s. 252 of the
Code
. Her reasons as a whole
    demonstrate that she considered all of the evidence in finding reasonable doubt
    with respect to the respondents intent. He further argues that, if anything,
    the trial judges analysis of wilful blindness improperly favoured the Crown. The
    doctrine requires subjective suspicions followed by a failure to make inquiries
    to confirm them:
R. v. Jorgensen
, [1995] 4 S.C.R. 55, at paras. 102-03.

Analysis

[10]

The
    authorities are clear that wilful blindness requires subjective suspicions. The
    trial judge seems to have adopted a statement from defence counsels closing
    submissions to the effect that the respondent was not wilfully blind because
    he did not know,
or ought he to have known
that he struck a cyclist
    (emphasis added). However, given her acquittal of the respondent, any error of
    law in this respect did not affect the result: see
R. v. Rudge
, 2011
    ONCA 791, 108 O.R. (3d) 161, leave to appeal to S.C.C. refused, [2012] S.C.C.A.
    No. 64, at para. 36.

[11]

The
    primary thrust of the Crowns submission concerns the application of the
    doctrine of wilful blindness to the evidence. The Crown points to the final
    paragraph of the trial judges reasons in which she states that the evidence
    brought to the attention of this court by the officers is not sufficient to
    prove beyond a reasonable doubt, the specific intent that is required under s.
    252. This statement demonstrates, the Crown argues, that she limited her
    analysis to the officers evidence when determining intent.

[12]

I
    do not agree. The trial judge was alive to all of the evidence the Crown points
    to as indicating that the respondent must have had suspicions that he hit a
    person. She assessed this evidence as well as the respondents evidence that he
    believed he hit a deer. The statement about the officers testimony follows the
    trial judges remark that:

The court must then look at whether or not on the whole of the
    evidence the Crown has proved beyond a reasonable doubt the specific intent
    that he had when he failed to stop and render assistance, whether that was to
    avoid civil or criminal liability.

[13]

Read
    as a whole, and especially in light of this comment and her careful review of
    all the evidence, the trial judges reasons demonstrate that her consideration
    of the officers evidence was just one component of her analysis of the
    respondents intent. She was entitled, on all the evidence, to find a
    reasonable doubt based on the respondents testimony that he believed he had
    hit a deer. Her application of the doctrine of wilful blindness to the facts
    and her assessment of the respondents credibility are, at their highest,
    matters of mixed fact and law. It is therefore not subject to review in this
    appeal. There was no error of law alone.

[14]

The
    trial judge accurately described the intention requirement in s. 252 at every
    point in her analysis. She repeatedly stated that the issue was whether [the
    respondents] intent was to escape civil or criminal liability. The majority
    of the Crowns evidence related to the nature of the accident; it raised the
    inference that the respondent could not have hit the cyclist without seeing him
    or being wilfully blind to that fact. It is therefore not surprising that her
    reasons are responsive to the officers evidence regarding the point of impact.
    The Crown also raised the respondents alcohol consumption as a reason for
    fleeing, and the trial judge referred to his alcohol consumption at several
    points in her reasons.

[15]

In
    my view, the trial judge should not be faulted for focusing on the issues
    raised on the evidence and crafting reasons responsive to the Crowns position
    at trial. She stated the proper test and examined the forms of civil and criminal
    liability the Crown raised. I cannot conclude that she erred in law with
    respect to the intent required under s. 252.

Conclusion

[16]

In
    the final analysis, it seems to me that the Crowns real quarrel is with the
    trial judges factual and credibility findings from which the Crown has no
    appeal. Because I have found the appeal raises no errors of law alone, I would
    quash the appeal.

Released: January 15, 2014                                                  
      R.G. Juriansz J.A.

(S.T.G.)                                                             
    I agree S.T. Goudge J.A.

I agree Gloria Epstein J.A.


