



COURT OF APPEAL FOR ONTARIO

CITATION: Canada v. McDonald, 2019 ONCA 367

DATE: 20190506

DOCKET: C65186 and C65498

Feldman, Miller and Fairburn JJ.A.

DOCKET: C65186

BETWEEN

Her
    Majesty the Queen

in Right
    of Canada

Appellant

and

Louie John McDonald

Respondent

DOCKET: C65498

BETWEEN

Her
    Majesty the Queen

in the
    Right of Ontario

Respondent

and

Louie John McDonald

Appellant

James Sutton and Jeannine Plamondon, for the appellant,
    Her Majesty the Queen in Right of Canada, C65189

Michael Crystal, for the respondent Louie John McDonald

Michael Crystal, for the appellant Louie John McDonald,
    C65498

David Friesen, for the respondent, Her Majesty the Queen
    in Right of Ontario

Heard and released orally: May 1, 2019

On appeal from the acquittal and the conviction entered
    on May 5, 2018 by Justice Leroy of the Superior Court of Justice.

REASONS FOR DECISION

[1]

Mr. McDonald was acquitted of
    conspiracy to commit human smuggling and convicted of two counts of
    manslaughter by criminal negligence. This matter arises out of an incident
    where the appellant, Mr. McDonald, picked up three men on the east shore of
    Cornwall Island and began transporting them on a Sea-Doo in the St. Lawrence
    River. The men were from India. Mr. McDonald was alleged to have been part of a
    conspiracy to transport those individuals to another location in Quebec, their
    ultimate destination being illegal entry into the United States.

[2]

Mr. McDonald arrived at the pickup
    location on his Sea-Doo. In his reasons for judgment, the trial judge expressed
    a strong doubt whether Mr. McDonald arrived at the location knowing that he was
    picking up people, there being considerable evidence that in fact Mr. McDonald originally
    thought he was going there to retrieve and transport contraband.

[3]

In any event, once at the location Mr.
    McDonald was met by his confederate who had made the prior arrangements. At
    that point, Mr. McDonald became aware that he would be transporting three men
    for a considerable distance across the St. Lawrence River. The men did not
    speak English and there was no way to know whether they could swim or not.
    There were no life jackets for the three men.

[4]

The three men and appellant loaded onto
    the Sea-Doo. It capsized with the four men aboard about 25 metres from shore.
    Mr. McDonald was able to swim to shore, one of the men was assisted to shore by
    a concerned civilian, and the other two men drowned.

[5]

The Federal Crown appeals the acquittal
    on the conspiracy to commit human smuggling charge. The Federal Crown alleges
    two errors: first, the trial judge erred by excluding the accuseds statement
    on the basis that while he was initially afforded his right to counsel and availed
    himself of that opportunity, his jeopardy changed before the interview
    commenced and he should have been given another opportunity to speak with
    counsel; and second, that the trial judge erred in excluding the statement of
    the surviving passenger, Mr. Patel, whom the authorities were not able to
    locate by the time of trial.

[6]

We do not agree.

[7]

On the first ground of appeal, the
    Federal Crown accepts that the trial judge stated the law correctly but argues
    that the trial judge misapplied that law to the facts of this case. We
    disagree. When the appellant initially spoke with his counsel, he only knew
    that he was facing charges relating to criminal negligence causing death. He
    did not know that he was facing jeopardy respecting conspiracy to commit human
    smuggling. Particularly in light of the significant mandatory minimum penalty applicable
    to the conspiracy count, it was open to the trial judge to find that the
    additional charge significantly changed Mr. McDonalds jeopardy and that he
    should have been again afforded his right to counsel.

[8]

On the second ground, the Federal Crown
    submits that the trial judge erred in excluding the hearsay statements of the
    surviving passenger Mr. Patel, one of which was a
K.G.B.
statement.  Again, while it is acknowledged that the trial
    judge correctly stated the law, the Crown submits that the trial judge failed
    to apply it correctly, particularly on the criteria related to threshold
    reliability. We would not give effect to this submission. We defer to the trial
    judges determination on the threshold reliability issue, a finding that was
    well supported by the factual record.

[9]

The appeal with respect to the acquittal
    on the conspiracy charge is therefore dismissed.

[10]

Turning to the conviction appeal. Mr.
    McDonald appeals his two convictions for manslaughter by criminal negligence.

[11]

His main ground of appeal is that,
    while the trial judge correctly stated the law, he misstated the test for the
mens
    rea
element of the offence and failed to
    consider all of the relevant circumstances in determining whether the appellant
    was wanton and reckless.

[12]

The trial judge properly referred to
    the law as follows the offence required a marked and substantial departure for
    what a reasonably prudent person would do in the same circumstances. And the
    second part of the test is whether he showed wanton and reckless disregard for
    the lives or safety of others. The trial judge went on to describe wanton and
    reckless disregard as importing some degree of awareness or advertence by the
    accused to the threat to the lives of others.

[13]

The appellant submits that the latter articulation
    minimizes the necessary cognition of risk and he relies on statements in some
    case law that refer to the requirement that the risk be more obvious.

[14]

In our view, the trial judge made no
    error. Regardless of the articulation of the test, the trial judge made the
    following clear finding at para. 127 of the reasons:

The reasonable person would foresee
    risk of the drownings inherent in the circumstances before the Court. A person
    functioning with normal faculties of awareness and engaging in conduct which
    represents a grave departure from the norm is either aware of the risk or is
    wilfully blind to the risk.

[15]

The next issue is the requirement to
    take into account all of the circumstances in determining whether the conduct
    was wanton and reckless. The trial judge focused on three primary factors that
    made the appellants action in taking the three men out on his Sea-Doo to cross
    the St. Lawrence River amount to criminal negligence. The first was overloading
    the Sea-Doo with four men when the load limit was three; the second was that he
    did not have life jackets for the men; and the third was that they did not
    speak English and he had no knowledge of their ability to swim and no way to
    communicate with them.

[16]

The appellant submits that the trial
    judge failed to consider as a relevant circumstance his own earlier finding at
    paras. 99 and 100 of the reasons that the appellant had to reach a quick
    decision whether to take the men and did not have time for reflection.

[17]

We do not accept that the trial judge
    failed to consider that circumstance. The appellant clearly deliberately
    decided to proceed, even though he may have made that decision after he had
    arrived at the location where the men were waiting. The time that he had to
    make the decision to transport the three men did not undermine the appellants
mens
    rea
.

[18]

Mr. McDonald raised additional grounds of appeal in his factum that were
    not advanced in oral argument. We do not agree with those submissions.

[19]

Specifically, Mr. McDonald argued the following. First, that the trial
    judge erred by improperly relying on Canadian safety standards and lay opinion
    evidence in determining that Mr. McDonalds actions constituted a marked and
    substantial departure from the standard of a reasonable person in the
    circumstances.

[20]

We do not agree that the trial judge made any error in taking the safety
    standards into account. The incident occurred in Canadian waters. Furthermore,
    even in the absence of any regulation, it would have been open to the trial
    judge to find the absence of lifejackets to be a significant factor in his
    analysis of the standard of care applicable when crossing a navigable river in
    an open water craft.

[21]

Similarly, the trial judge was entitled to accept the observations of a
    witness that the Sea-Doo capsized as an observable consequence of becoming
    unbalanced from having too many passengers.

[22]

Second, Mr. McDonald argued that the trial judge improperly relied on a
K.G.B.
statement from the surviving witness to the effect that the Sea-Doo capsized
    once prior to the fatal incident. The objection is purely speculative and we do
    not accept it. The trial judge specifically refused to admit the surviving
    witnesss police statements and there is no mention of that evidence in his
    reasons for conviction. The fact that the trial judge made a stray reference to
    the first capsize event in his sentencing reasons does not lead to the
    conclusion that he also considered it in his reasons for conviction.

[23]

Third, Mr. McDonald objects to the admission of a statement he made to
    an EMT worker that was recorded while he was seated in the backseat of a police
    cruiser, and that was overheard by a police officer standing outside of the
    cruiser. There is no need to address this issue in light of the fact that the
    evidence received was duplicative of evidence from other sources.

[24]

The appeal from conviction is dismissed.

K. Feldman J.A.

B.W. Miller J.A.

Fairburn J.A.


