



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reynolds, 2013 ONCA 433

DATE: 20130624

DOCKET: C56027

Blair, Hoy and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Reynolds

Appellant

P. Berk Keaney, for the appellant

Avene Derwa, for the respondent

Heard: June 3, 2013

On appeal from the conviction entered on June 5, 2012, by
    Justice W.F. Fitzgerald of the Ontario Court of Justice.

ENDORSEMENT

[1]

Mr. Reynolds appeals his conviction for dangerous operation of a motor
    vehicle causing bodily harm, contrary to s. 249 of the
Criminal Code
.

The Setting

[2]

The incident giving rise to the conviction occurred on January 30, 2011. 
    Mr. Reynolds was parked in a moderately busy shopping plaza containing a number
    of stores, including a Walmart store.  He backed his vehicle out of his parking
    spot into a lane that ran perpendicular to the row of stores and faced the
    Wal-Mart store.  The lane opened into a broader roadway that could, perhaps, be
    described as a thoroughfare running parallel to the row of stores.  As Mr.
    Reynolds began to turn left into the thoroughfare lane, his vehicle struck a
    pedestrian who had just left the Wal-Mart store and who was walking quickly
    across the thoroughfare.

[3]

Unbeknownst to Mr. Reynolds  who testified he did not know he had
    struck the pedestrian and did not feel any impact -- the pedestrian became
    lodged under his vehicle and was dragged some distance as he turned left and
    entered the thoroughfare lane.  His vehicle almost immediately ran over a speed
    bump and the pedestrian was dislodged.  Thinking that the odd behaviour of his
    vehicle was due to some ice that had become caught in his wheel-well, Mr.
    Reynolds unfortunately backed his vehicle up towards the speed bump in an
    attempt to dislodge the ice, and ran over the pedestrian again.  He did not
    realize there was a problem until several onlookers reached his car and began
    banging on the window.  He then brought the car forward off the pedestrian.

[4]

Mr. Reynolds testimony  not rejected by the trial judge  was that he
    was proceeding carefully and slowly, checking his mirrors and looking for
    pedestrian traffic and vehicular traffic in his own lane.  As he approached the
    thoroughfare lane, intending to turn left onto it, he noticed a van in the
    parallel lane to his left that was preparing to turn right into the
    thoroughfare.  He thought that the driver of the van was giving him the go
    ahead to proceed first and that it was safe to turn.  He took no other
    precautions to ascertain whether the thoroughfare itself was clear of traffic.

[5]

The unfortunate incident occurred.  Miraculously, the pedestrian was not
    killed or seriously injured.

Analysis and Law

[6]

On behalf of the appellant, Mr. Keaney argues that the trial judge erred
    in failing to conduct any meaningful analysis of the
mens rea
component
    of the offence of dangerous driving, as established by the Supreme Court of
    Canada in
R v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49, and
R v. Roy
,
    2012 SCC 26, [2012] S.C.J. No. 26.  That component requires a consideration of
    whether the accuseds failure to foresee the risk and take steps to avoid it
    (if it could have been avoided) constituted a marked departure from the
    standard of care to be expected of a reasonable person in the accuseds
    circumstances.  His argument is a combination of the submission that the trial
    judge failed to address his mind to the
mens rea
component of the
    offence and the submission, based on
R v. Sheppard
, 2002 SCC 26, that the
    trial judges reasons were insufficient to enable the court, and the appellant,
    to appreciate whether he did or did not.

[7]

In his factum, Mr. Keaney raised the argument that the trial judge
    failed to conduct a 
W.D.
 analysis.
[1]
He did not press that issue in oral argument, however.

[8]

For the reasons that follow, we agree that the appeal must be allowed.


The
W.(D.)
Factor

[9]

The trial judge stated at the beginning of his reasons that [he did
    not] find this a matter which involves any consideration of
W.(D.)
.  We
    will not dwell on this issue, except to say that, in our view, it is unwise for
    a trial judge, in most cases where the accused testifies or where there is
    evidence favouring the defence, not to conduct a
W.(D.)
analysis.  That said,
    there is authority for the view  at least where it is an objective element of
    the defence that is in play  that the
W.(D.)
formulation does not
    always work; in some circumstances, it may be possible to find an accused
    guilty even where the trier of fact accepts his or her evidence: see
R v.
    Dunchie
, 2007 ONCA 887, at para. 15, and
R v. Sadiqi
, 2013 ONCA
    250,at para. 21.

[10]

It
    could be argued that this is one of those cases where the
W.(D.)
analysis
    would not have been dispositive in the end, because the trial could have
    accepted the testimony of the appellant in full, yet still weighed whether, in
    all the circumstances, the appellants failure to foresee the risk constituted
    a marked departure from the reasonable driver standard.

[11]

We
    need not resolve this issue here, however, because in our view the appellant is
    correct in his submission regarding the trial judges analysis  or, lack of
    analysis  of the
mens rea
factor.  The trial judge failed to assess
    whether the appellants evidence, in the context of all of the driving
    circumstances and the place where the incident occurred  assuming he accepted
    the appellants evidence in its entirety  raised a reasonable doubt as to
    whether the requisite mental element of the offence of dangerous driving had been
    made out.

Mens
    Rea

[12]

In
    his reasons, the trial judge carefully reviewed the evidence of the appellant
    and, briefly, that of the pedestrian.  He appears to have viewed the
    appellants testimony favourably and, indeed, made no findings of credibility against
    him.  Nor was there any issue with respect to the evidence of the pedestrian.

[13]

The
    trial judge considered the provisions of s. 249(1)(a) of the
Criminal Code
which state:

Every one commits an offence who operates

(a) A motor vehicle in a manner that is
    dangerous to the public, having regard to all the circumstances, including the
    nature, condition and use of the place at which the motor vehicle is being
    operated and the amount of traffic that at the time is or might reasonably be
    expected at that place.

[14]

He
    also alluded to the
Roy
and
Beatty
decisions dealing with the
actus
    reus
and the
mens rea
, and the concept of marked departure.  Respectfully,
    however, he erred in focusing his analysis almost entirely on the
manner of
    operation
of the vehicle  a consideration that goes to the
actus reus
of the offence and not directly to the
mens rea
component.

[15]

For
    example, immediately after citing the provisions of s. 249, the trial judge
    said:

So what the Parliament of Canada is direct[ing] me to do is to
    determine and to examine
the manner of the operation
of the accuseds
    motor vehicle considering all of the circumstances that existed or might
    reasonably be expected at that place.  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.
    [Emphasis added]

[16]

Then,
    at the conclusion of his reasons  after completing his review of the
    appellants evidence  the trial judge made his only comment with respect to
    the marked departure test.  He said:

In examining the issues to which Ive been directed by both of
    these cases of the Supreme Court of Canada  the
Rou
and the
Beatty
matters, dealing with the
actus reus
and the
mens rea
, and the
    concept of marked departure, it seems to me on all of this evidence
that
    its inescapable that the manner of the operation
in all these
    circumstances that existed at that parking lot at this time or might reasonably
    be expected was a manner that was dangerous to the safety of the public and it
    seems to me, further,
that the operation of the vehicle
in the manner [as]
    Ive described it constitutes a marked departure from what a reasonably prudent
    motor vehicle operator would do. [Emphasis added.]

[17]

This
    approach fastens on the prohibited conduct aspect of the dangerous driving
    offence and fails to address the important fault element, which is necessary to
    elevate lack of care to the level necessary to merit criminal punishment.
Beatty
and
Roy
clarify that the
actus reus
of the offence is the conduct
    set out in s. 249(1)(a) of the
Criminal Code
, i.e., the manner in which
    the vehicle is operated in all of the circumstances; the
mens rea
requires proof the manner of driving was the result of a degree of care
    exercised by the accused that constitutes a marked departure from the
    standard of care that a reasonable person would have exercised in the same
    circumstances.  See
Roy
, and its summary of the
Beatty
principles, at paras. 26  38.

[18]

The
actus reus
exercise and the
mens rea
exercise are therefore quite
    different.  Why this is so is a function of the fact that the offence of
    dangerous driving involves the criminalization of driving conduct.  As Cromwell
    J. described it in
Roy
, at para. 30:

A fundamental point in
Beatty
is that dangerous driving
    is a serious criminal offence.  It is, therefore, critically important to
    ensure that the fault requirement for dangerous driving has been established. 
    Failing to do so unduly extends the reach of the criminal law and wrongly
    brands as criminals those who are not morally blameworthy.  The distinction
    between a
mere
departure, which may support civil liability, and the
marked
    departure
required for criminal fault is a matter of degree.
The trier
    of fact must identify how and in what way the departure from the standard goes
markedly
beyond mere carelessness
. [Italics in original; underlining added]

[19]

Here,
    the trial judge did not engage in the exercise of [identifying] how and in
    what way the appellants failure to foresee and respond to the risk amounted
    to a departure from the standard [that] goes
markedly
beyond mere
    carelessness.  Respectfully, he failed to address the
mens rea
component of the offence at all.  Instead, he appears to have conflated the
actus
    reus
and
mens rea
components of the offence and to have concluded
    that, because the vehicle had been operated in a dangerous manner the offence
    had been made out.  This is the type of reasoning that
Beatty
and
Roy
sought to overcome.

[20]

The
    point is made by Cromwell J. in
Roy
at para. 27:

Beatty
addressed concern that the Courts reasons in
Hundal
[2]

did not sufficiently emphasize the importance of giving careful attention
    to the fault requirement of dangerous driving.
Hundal
did not expressly
    differentiate between the two elements of the offence  the prohibited conduct
    and the required fault.  There was concern that judges and juries might infer
    the existence of the fault element too quickly and without sufficient analysis,
    simply from the fact that a motor vehicle had operated in a dangerous manner.  
    The Court in
Beatty
sought to ensure that a meaningful analysis of
both
elements would be performed in every case and it did this by defining the
    separating the conduct and mental elements of the offence. [Italics in
    original]

[21]

This
    is not to say that the manner of operation of the vehicle is not a factor in
    determining the marked departure fault element.  Quite often it will be.  But
    it may not be enough standing alone, and the trier of fact must go on and
    examine all of the circumstances relating to the accused at the relevant time. 
    In dealing with the proof of the marked departure fault element made the
    following observation in
Roy
, at para. 40:

Generally, the existence of the required objective
mens rea
may be inferred from the fact that the accused drove in a manner that
    constituted a
marked departure
from the norm.  However, even where the
    manner of driving is a marked departure from normal driving, the trier of fact
    must examine all of the circumstances to determine whether it is appropriate to
    draw the inference of fault from the manner of driving.  The evidence may raise
    a doubt about whether, in the particular case, it is appropriate to draw the
    inference of a marked departure from the standard of care from the manner of
    driving.

[22]

As
    we have already observed, the difficulty here is that the trial judge failed to
    conduct the required meaningful analysis of the
mens rea
component.  Without
    that analysis, we cannot know whether the evidence gave rise to a reasonable
    doubt about whether the Crown had established the mental element of the
    offence.

[23]

The
    entire incident was recorded by a security camera surveying the parking lot. 
    Ms. Derwa asked that we view the DVD, which we did, and argues that it, in
    effect, speaks for itself in terms of proving the offence.  Unsettling as it is
    to observe the force of the impact between the vehicle and the pedestrian and to
    follow the incident as it unfolded, we are not persuaded that the contents of
    the surveillance sequence are sufficient, alone, to replace the need for the
    foregoing type of
mens rea
analysis.  Whether the impact between his
    vehicle and the pedestrian was the product of momentary inattention on the
    appellants part, flowing from his distraction by the van in the adjoining
    lane, or whether it was the product of other factors constituting a marked
    departure from the norm, is not self-evident from the video recording or from
    the evidence as a whole, on its face.  An assessment of the mental element of
    the offence in the context of all of the circumstances  including Mr.
    Reynolds evidence that he proceeded carefully and slowly, checking his mirrors
    and looking for pedestrian and vehicular traffic in his own lane, before
    entering the thoroughfare  was required.  Respectfully, the trial judge failed
    to conduct such an assessment.

Disposition

[24]

For
    these reasons, the appeal is allowed and a new trial ordered.

R.A. Blair
    J.A.

Alexandra
    Hoy J.A.

M.H. Tulloch J.A.





[1]
See
R v. W.(D.)
, [1991] 1 S.C.R. 742, at para. 28.



[2]

R v. Hundal
, [1993] 1 S.C.R. 867.


