G.M. KRAUS THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 82 Date: 2014-08-05 Between: Docket: CACR2353 Her Majesty the Queen and Luis Manuel Alves Coram: Lane, Herauf and Whitmore JJ.A. Counsel: W. Dean Sinclair for the appellant Michael W. Owens for the respondent Appeal: From: Q.B.N.J. No. 30 of 2012, J.C. of Saskatoon Heard: June 26, 2014 Disposition: Dismissed Written Reasons: August 5, 2014 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Whitmore Herauf J.A. I. Introduction [1] The Crown appeals the acquittal of the respondent from charge of dangerous driving causing bodily harm, contrary to s. 249(3) of the Criminal Code of Canada. The respondent was tried on this charge before judge alone and was acquitted on October 10, 2013. [2] For the reasons that follow I would dismiss the appeal. In my view, the Crown has failed to overcome the heavy onus required to overturn appeals from acquittals under s. 676(1)(a) of the Criminal Code. II. Factual Background [3] On May 7, 2011, at approximately 7:30 p.m., Mr. Alves was driving his yellow Corvette on Circle Drive South in Saskatoon. Mr. Chetty was his passenger. Mr. Alves lost control of his vehicle and crashed into guardrail. Messrs. Alves and Chetty both sustained injuries. Mr. Alves was cut on his face and head, while Mr. Chetty was cut on the top of his head, behind his ear, and both his arms. [4] There was testimony that Mr. Alves was travelling anywhere between 93 to 180 kilometers per hour. Mr. Siba, witness who saw the accident, estimated that Mr. Alves’ car was travelling 160 kilometers per hour. Ms. Morgan, witness who was walking her dog near Circle Drive at the time of the accident, testified that she estimated the speed of Mr. Alves’ car to be 110 to 120 kilometers per hour, but that it also may have been travelling faster. Mr. Chetty testified that he saw the speedometer reach 180 kilometres per hour, but also believed he had heard Mr. Alves say the car was travelling 200 kilometres per hour. Mr. Matlock was driving when he was passed by Mr. Alves’ car. Mr. Matlock estimated that the car was travelling between 130 to 140 kilometres per hour, “but that it may have been faster.” [5] Cst. Low was called for the defence as an expert witness at trial (Cst. Low had been called by the Crown as an expert witness at the preliminary inquiry). Based upon his analysis, Cst. Low determined that the minimum speed at the time Mr. Alves’ car impacted the guardrail was 50 to 60 kilometres per hour. Consequently, Cst. Low estimated that at the time Mr. Alves lost control of the vehicle, it would have been travelling at minimum speed of between 93 to 99 kilometres per hour. Mr. Alves testified and said he was driving between 90 to 100 kilometres per hour. Of the witnesses who testified to Mr. Alves’ speed, only Cst. Low had ever had his ability to estimate speed tested. [6] Mr. Siba testified that traffic in the area of the accident was not heavy. He also testified, however, that he noticed “two cars that slowed down immediately in front of the Corvette.” Ms. Morgan, on the other hand, “stated that she had not noticed any other cars immediately before or after the yellow sports car.” Mr. Chetty testified that he saw car swerve off the road to avoid Mr. Alves’ car. Mr. Matlock stated that two lanes of traffic were in front of Mr. Alves’ vehicle, and that both were moving slowly. Mr. Alves testified that he passed two vehicles prior to the accident; immediately after passing the second, he lost control and crashed. [7] There was some conflicting evidence as to whether the accident occurred in construction zone or immediately near one. Cst. Erickson testified that “[a]lthough there was no construction at that exact location, [Cst. Erickson] could see construction had been started just east of that location.” However, Cst. Erickson stated in cross-examination that the speed limit in the area was 90 kilometres per hour. Mr. Siba stated that “the area just prior to the scene of the accident was under construction and that there was 60-kilometre per hour speed limit in the area.” Ms. Morgan, on the other hand, testified that the normal speed limit for that stretch of road was 90 kilometres per hour. Mr. Chetty stated that he believed the accident had occurred in the construction zone, so the speed limit was “probably 60 kilometres per hour.” Mr. Matlock also testified that the incident occurred in traffic zone, where Mr. Matlock himself had slowed to 60 kilometres per hour. Mr. Alves testified that he drove on that particular stretch of road daily, and that he usually travelled at 90 kilometres per hour. [8] As to the manner of Mr. Alves’ driving, Mr. Chetty testified that he asked Mr. Alves to slow down. Mr. Matlock described Mr. Alves’ car as veering from the right lane to the left and then off the road. In describing Mr. Alves’ driving, Mr. Matlock called it “dangerous and very aggressive”. When asked why he would say this, he stated it was “because it was being driven very fast and that he could hear the roar of the engine.” III. The Trial Decision [9] Mr. Alves was acquitted of the charge. The trial judge did “accept the evidence of Cst. Low, collision analyst for the Saskatoon City Police, who testified that based upon his expert analysis the minimum speed at which the car was travelling when it lost control on the roadway would be 93 to 99 kilometres per hour.” The trial judge also accepted “Cst. Low’s analysis that the roadway in question was major freeway in the city, and that although the immediate area was under construction at the time and the posted speed limit was 60 kilometres per hour, no actual construction involving workers or equipment was in the area at the time of the crash.” (See: para. 60 of the trial judgment). The trial judge also found as fact that the lighting at the time of the accident was good, the roadway was dry, and visibility was not an issue. [10] In acquitting Mr. Alves of dangerous driving causing bodily harm, the trial judge reasoned at para. 60: have concluded that the evidence has not established beyond reasonable doubt that the manner of driving of the accused was dangerous to the public in all the circumstances. While am prepared to accept that excessive speed can constitute dangerous driving the surrounding circumstances in those cases were held by the court to make the excessive speed objectively dangerous to the public. In the circumstances of this case, am not satisfied the Crown has established beyond reasonable doubt that the speed of the accused’s vehicle was anything more than 93 to 99 kilometres per hour or that it was objectively dangerous in the circumstances. IV. Jurisdiction and Standard of Review [11] Under s. 676(1) of the Criminal Code, the Crown may appeal to the court of appeal “(a) against judgment or verdict of acquittal or verdict of not criminally responsible on account of mental disorder of trial court in proceedings by indictment on any ground of appeal that involves question of law alone.” The standard of review for questions of law is correctness. [12] This Court’s authority to order new trial is set out in s. 686(4) of the Criminal Code. Under s. 686(4), “If an appeal is from an acquittal the court of appeal may (a) dismiss the appeal; or (b) allow the appeal, set aside the verdict and (i) order new trial.” However, not every error of law will merit new trial. As Jackson J.A. noted in R. v. Despins, 2007 SKCA 119 (CanLII) at para. 15, 299 Sask. R. 299, the Supreme Court has “establish[ed] standard of review against which the Crown’s claim to new trial must be assessed.” [13] That standard of review was most clearly set out in R. v. Graveline, 2006 SCC 16 (CanLII), [2006] S.C.R. 609, Fish J., writing for the majority, held: 14 It has been long established that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different. [Emphasis added] [14] Similarly, in Vézeau v. The Queen, 1976 CanLII (SCC), [1977] S.C.R. 277 at 292, Martland J., writing for the majority, held that it is “the duty of the Crown, in order to obtain new trial, to satisfy the Court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury.” [15] This is significant burden. Adopting Vézeau, Sopinka J. held in R. v. Morin, 1988 CanLII (SCC), [1988] S.C.R. 345 at p. 374: am prepared to accept that the onus is heavy one and that the Crown must satisfy the court with reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. [Emphasis added] [16] In sum, the Crown must satisfy this Court of two things: first, the Crown must prove on the standard of correctness that an error of law was made. Second, the Crown must prove that “the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had material bearing on the acquittal.” While the Crown’s onus is heavy one, the Crown is not required to prove that the outcome of the trial would necessarily have been different but for the error or errors of law. [17] The Crown submits that the trial judge erred in law in three respects. [18] First, the Crown argues that the trial judge erred in mistaking question of fact—Mr. Alves’ speed—with an element of the offence. At issue here is whether the trial judge erred by applying the incorrect mens rea and actus reus to the offence of dangerous driving. [19] Second, the Crown argues that as result of mistaking speed for an element of the offence, the trial judge erred in law by failing to consider relevant evidence. [20] Third, the Crown argues that the trial judge erred in law by subjecting individual pieces of evidence to the standard of proof beyond reasonable doubt. As a corollary to any of the three alleged errors of law, the Crown argues that if this Court orders a new trial, it could rule on the admissibility of Cst. Low’s expert opinion evidence. Alternatively, this Court could rule on the weight to be given to Cst. Low’s evidence. will address all four points in turn. VI. Analysis (a) Did the trial judge mistake the elements of the offence? [21] It is an error of law for the trial judge to mistake the elements of the offence. In R. v. Johnson, 1973 CanLII 198 (SCC), [1975] S.C.R. 160 at p. 170, Ritchie J. for the majority held that “it appears to me that the question of whether or not certain conduct constitutes an offence under the Criminal Code is question of law in the strict sense.” Similarly, in R. v. Ciglen, 1970 CanLII 16 (SCC), [1970] S.C.R. 804 at p. 819, Martland J. held that when trial judge considers evidence “under misconception of law as to what was necessary to be proved in order to establish the Crown’s case,” the trial judge errs in law. [22] The actus reus and mens rea of dangerous driving were set out in R. v. Beatty 2008 SCC (CanLII) at para. 43, [2008] S.C.R. 49, in Charron J.’s majority reasons. These were subsequently affirmed by unanimous Supreme Court in R. v. Roy, 2012 SCC 26 (CanLII) at para. S.C.R. 60. In Beatty, Charron J. held that the actus reus of dangerous driving under s. 249 of the Criminal Code is “defined by the words of the enactment.” The actus reus of dangerous driving therefore requires: The trier of fact must be satisfied beyond reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in manner that was “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 at that time is or might reasonably be expected to be at that place.” [23] The mens rea of dangerous driving is modified objective test. As Charron J. held in Beatty: 43 The trier of fact must also be satisfied beyond reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to marked departure from the standard of care that reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. [Emphasis added] At para. 36 in Roy, the Supreme Court set out helpful two-step approach for trier of fact to approach the mens rea of dangerous driving: first ask whether, “in light of all of the relevant evidence, reasonable person would have foreseen the risk and taken steps to avoid it if possible.” Second, ask “whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was marked departure from the standard of care of reasonable person in the accused’s circumstances.” [25] The Crown argues that the trial judge mistook the issue of Mr. Alves’ speed as necessary element of the offence of dangerous driving. In my view, the trial judge correctly stated and applied the elements of dangerous driving. Despite the trial judge’s repeated and unfortunate statements that Mr. Alves’ speed needed to be proved beyond reasonable doubt, his analysis suggests that he simply misspoke. He did not confuse an issue of fact—Mr. Alves’ speed—with either the actus reus or the mens rea of dangerous driving. At para. 51 of the trial judgment, the trial judge set out five conditions necessary to establish dangerous driving. The trial judge determined that the fourth condition—whether the operation of the motor vehicle was dangerous to the public considering all the circumstances—was at issue. In setting out the actus reus and mens rea of the offence, the trial judge went on to quote extensively from Roy. In particular, he quoted para. 33 of Roy, which adopted the actus reus as it was set out by Charron J. in Beatty. The trial judge was, in other words, clearly alive to the holdings in Beatty and Roy that the actus reus is set out in s. 249(1)(a) of the Criminal Code. The trial judge then quoted the two-step process to analysing the mens rea of dangerous driving, as it was established in Roy and quoted above. [27] The issue as to whether the trial judge mistook question of fact for an element of the offence arose when the trial judge stated at para. 60 of the trial judgment: the evidence has not established beyond reasonable doubt that the manner of driving of the accused was dangerous to the public in all the circumstances. While am prepared to accept that excessive speed can constitute dangerous driving, as shown by previous Saskatchewan cases the surrounding circumstances in those cases were held by the Court to make the excessive speed objectively dangerous to the public. In the circumstances of this case, am not satisfied the Crown has established beyond reasonable doubt that the speed of the accused’s vehicle was anything more than 93 to 99 kilometres per hour or that it was objectively dangerous in the circumstances. [Emphasis added] This statement may appear to suggest that he had mistaken “speed” as an element of the offence, because only elements of the offence need to be proved beyond reasonable doubt. The trial judge went on to state that Mr. Alves’ speed needed to be proved beyond a reasonable doubt several more times. [28] However, a closer reading suggests the trial judge did not confuse the factual issue of Mr. Alves’ speed with either the mens rea or the actus reus. Instead, the trial judge conducted his analysis of the facts against the correct actus reus and mens rea requirements. At para. 60, for instance, the trial judge addressed whether the facts satisfied the actus reus: accept the evidence of Cst. Low, collision analyst for the Saskatoon City Police, who testified that based upon his expert analysis the minimum speed at which the car was travelling when it lost control on the roadway would be 93 to 99 kilometres per hour. As was pointed by Cst. Low, Alves may have been driving his vehicle faster than this, but when proof of his speed is required to be beyond reasonable doubt, the minimum proven speed is what must use. also accept Cst. Low’s analysis that the roadway in question was major freeway in the city, and that although the immediate area was under construction at the time and the posted speed limit was 60 kilometres per hour, no actual construction involving workers or equipment was in the area at the time of the crash. accept the evidence of several of the witnesses who testified that at the time of the accident the lighting conditions were good, the surface of the roadway was dry and there was good visibility. And also accept Cst. Low’s evidence that no pedestrian traffic would be expected on Circle Drive South as is freeway. Finally, Cst. Low testified that at the time of day the accident happened, 7:30 p.m., one would not expect higher than normal traffic flow, although one would expect to find slower moving traffic in construction zone marked 60 kilometres per hour. Although three civilian witnesses estimated that the vehicle may have been travelling faster than Cst. Low’s minimum estimate, they are not trained speed estimators and each admitted in cross-examination that their estimate was “guess”. As was pointed out in R. v. Beatty, 2008 SCC (CanLII), 2008 SCC5, [2008] S.C.R. 49, significant fault element is required in order to establish dangerous driving for the purposes of the imposition of criminal punishment. While the conduct of the accused, Alves, may very well constitute civil negligence, in my opinion it was not dangerous to the public in all the circumstances so as to establish criminal negligence. [Emphasis added] [29] References to proving speed beyond reasonable doubt are troubling, as excessive speed is neither the actus reus nor the mens rea of dangerous driving. However, these passages do not disclose that the trial judge was confused as to the actus reus of the offence. Indeed, they show the opposite: the trial judge recognized and applied the correct actus reus, as set out in Beatty and Roy. What is more, the trial judge incorporated the language of s. 249 into his analysis, stating: “While the conduct of the accused, Alves, may very well constitute civil negligence, in my opinion it was not dangerous to the public in all the circumstances so as to establish criminal negligence.” The trial judge did not confuse the issue of Mr. Alves’ speed with the actus reus. [30] As to whether the facts bore out the mens rea, the trial judge stated at para. 61: Based upon my finding that the Crown has not proved beyond reasonable doubt that the accused’s speed was anything beyond 93 to 99 kilometres per hour, this speed would not be marked departure from the standard of care expected of reasonable person at that time of day on that stretch of roadway assuming that there were no construction workers or construction equipment in the area. [Emphasis added] While problematic that the trial judge suggested that proof beyond reasonable doubt of Mr. Alves’ speed was needed, that appears to be function of how the Crown structured its case. The Crown’s case was, basically, built around the issue of speed. The Crown essentially maintained that Mr. Alves’ driving, in light of all the other circumstances (namely, the construction zone and other traffic moving slowly), was dangerous in the circumstances because it was too fast. The speed of Mr. Alves’ vehicle was therefore at the crux of culpability. By stating that Mr. Alves’ speed needed to be proved beyond reasonable doubt, the trial judge was not, in my view, mistaking the mens rea of dangerous driving; he was simply conducting his mens rea analysis in response to the manner in which the Crown had built its case. Indeed, he specifically held that the facts do not establish “marked departure from the standard of care expected of reasonable person,” which is to say he specifically held that the facts did not meet the mens rea established in Beatty and Roy. This is consistent with the trial judge having instructed himself as to the applicable actus reus and mens rea by quoting Roy extensively. [31] In short, the trial judge assessed Mr. Alves’ speed against the actus reus and mens rea applicable to the offence of dangerous driving, as set out by the Supreme Court in Beatty and Roy. The trial judge did not mistake the elements of the offence, and so did not err in law. This ground of appeal is dismissed. (b) Did the trial judge fail to consider relevant evidence? [32] The Crown argues that “the trial judge misapprehended the essential elements of the offence of dangerous driving. As consequence, he erred in law by failing to consider evidence relevant to the proof of the offence.” Put another way, the Crown alleges that the trial judge incorrectly focused on Mr. Alves’ speed, leading him to disregard relevant pieces of evidence that could have established other circumstances relevant to the actus reus. [33] In R. v. J.M.H., 2011 SCC 45 (CanLII) at para. 24, [2011] S.C.R. 197, the Supreme Court held that in relation to “the issue of when the trial judge’s alleged shortcomings in assessing the evidence constitute an error of law giving rise to Crown appeal of an acquittal,the jurisprudence currently recognizes four such situations.” First, it is an error of law to make finding of fact for which there is no evidence. Second, the legal effect of findings of fact or of undisputed facts is question of law. Third, an assessment of evidence based on the wrong legal principle is an error of law. Fourth and lastly, the trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law. [34] The third situation is at issue here. Interpreting Wilson J.’s decision in R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] S.C.R. 57, Sopinka J. in R. v. Morin, 1992 CanLII 40 (SCC), [1992] S.C.R. 286 at para. 18, held that “[f]ailure to appreciate the evidence cannot amount to an error of law unless the failure is based on misapprehension of some legal principle.” This is difficult error for the Crown to prove. In her concurring reasons in B.(G.), McLachlin J. (as she then was) aptly noted at para. 46 that “the law is clear”, absent misdirection in law, “doubts about the reasonableness of the trial judge’s assessment of the evidence do not constitute questions of law alone, and hence cannot support an appeal from acquittal.” [35] The Crown argues that the trial judge misdirected himself to acquit Mr. Alves if he believed Mr. Alves’ speed was less than 100 kilometres per hour. At para. 46 of the Crown factum, it is stated: “It was wrong because speed was not an essential element of the actus reus or the mens rea. It was also wrong because speed was not the only circumstance to consider.” As discussed above, however, the trial judge did not misdirect himself as to the essential elements of the offence. The trial judge’s statements that speed needed to be proved beyond reasonable doubt, while unfortunate, neither resulted in nor reflected misapprehension of the applicable actus reus and mens rea. [36] First, the Crown argues that the Trial Judge did not consider that Mr. Alves admitted he was speeding in construction zone. However, the trial judge was certainly aware of the issue of the construction zone and addressed it several times throughout his decision. At para. 60 of the trial judgment the trial judge stated: also accept Cst. Low’s analysis that the roadway in question was major freeway in the city, and that although the immediate area was under construction at the time and the posted speed limit was 60 kilometres per hour, no actual construction involving workers or equipment was in the area at the time of the crash. accept the evidence of several of the witnesses who testified that at the time of the accident the lighting conditions were good, the surface of the roadway was dry and there was good visibility. also accept Cst. Low’s evidence that no pedestrian traffic would be expected on Circle Drive South as it is freeway. Indeed, contrary to the Crown’s position, the trial judge clearly addressed the issue of the construction zone. Furthermore, the trial judge went beyond merely considering whether Mr. Alves was in construction zone and accepted as fact that there were no construction workers or equipment in the area. [37] The Crown further submits at paras. 48 and 49 of its factum that: There was no dispute there were other motorists in the construction zone or that they were travelling at much slower speed than he was. There was clear evidence he nearly rear-ended other vehicles before he lost control. There was clear and undisputed evidence from most of the eye witnesses that they foresaw the likelihood of an accident long before it happened. Indeed, his own passenger was so afraid that he repeatedly begged the Respondent to stop or slow down. All of those circumstances deserved consideration. They got none. The trial judge made few if any real findings of fact. For example, he did not say he was accepting or rejecting Mr. Matlock’s evidence that the Respondent nearly collided with slow moving vehicles in the construction zone. He did not say whether he was accepting or rejecting the testimony of Mr. Matlock, Mr. Siba or Mr. Chetty that they all foresaw the accident long before it occurred. He did not accept or reject Mr. Siba’s evidence the Respondent was still accelerating when he passed slower moving vehicles in the construction zone. He did not accept or reject Mr. Chetty’s evidence that the Respondent was driving at “full throttle” or that he saw the speedometer reading to be 180 km/hr. He did not make any of those findings because his focus, from beginning to end, was whether the Crown had proven the Respondent’s speed beyond reasonable doubt. [Emphasis added] However, the trial judge was not blind to this evidence. Indeed, the trial judge provided a thorough review of each witness’s testimony. In reviewing Mr. Siba’s evidence, the trial judge noted at paras. 11 and 13 of the trial judgment that Mr. Siba: saw yellow Corvette automobile coming toward him, which appeared to be going at high rate of speed. The Corvette swerved around couple of cars. As Siba watched in his rearview mirror he saw the Corvette’s brake lights come on, and it went sideways When asked by Crown counsel as to what the traffic was like on the side of the roadway that the Corvette was on, he said it was light. He did, however, notice two cars had slowed down immediately in front of the Corvette. He stated that the area just prior to the scene of the accident was under construction and that there was 60-kilometre-per-hour speed limit in the area. [Emphasis added] As to the evidence of Mr. Chetty, the trial judge similarly addressed the testimony that the Crown submits was neglected. In his summary of Mr. Chetty’s evidence, the trial judge noted at paras. 22 and 23 of the trial judgment that Mr. Chetty: stated that he felt that the car was going full throttle until they smashed into the guardrail. When asked what was the fastest speed he saw them travelling, he stated he recalled seeing the speedometer show 180 kilometres per hour, but that he also thought that he had heard Alves say he was going “like 200 kilometres per hour.” When asked how the accident happened, Chetty indicated that Alves must have gone over too far and that there was built up loose gravel on the shoulder which caused him to lose control. When asked whether there were other vehicles in front of the Alves’ automobile, he indicated that he saw someone “drive off into the ditch to dodge us”. [Emphasis added] As for the testimony of Mr. Matlock, the trial judge summarised his evidence at paras. 33 to 36 of the trial judgment as follows: On May 7, 2011 he was driving his vehicle on Circle Drive South in westerly direction. He saw car in the left-hand lane go by him very fast. It switched lanes, and then the operator of the vehicle lost control, and the car flipped. As this was in construction zone, Mr. Matlock was down to 60 kilometres per hour. He stated that the car that passed him was yellow Corvette. When asked as to its speed, he stated that his “best guess” was 130 to 140 kilometres per hour, but it may have been faster. He stated that there were two lanes of traffic in front of the yellow vehicle going very slowly because it was construction zone. He stated, that he thought that these cars were approximately one-quarter of kilometre in front of him, but he could not say for sure. He stated that the Corvette was very close to the traffic in front of him at the time of the accident and he thought that the Corvette was going to run into this traffic. When asked whether he had observed how the Corvette lost control, he stated that it had veered to the right from the left-hand lane and when its driver hit the brakes the car went to the left and off the road on the left-hand side. When asked how he would characterize the driving of the Corvette, he said it was “dangerous and very aggressive”. After the accident, he pulled over to the side of the roadway and went to the site of the accident. He stated that the car was on its side with both occupants still in the car. The passenger was bleeding very badly. He stated that it took two to three minutes to get the passenger and driver out of the vehicle. He recalls hearing the passenger ask, “why was he driving so crazy”. When asked if there was any response by the driver, he stated, “nothing.” [Emphasis added] [38] The purpose of quoting these passages at length is to simply emphasize that the trial judge was very clearly aware of the evidence that the Crown submits received inadequate consideration. The Crown has no case here. While it was argued that the trial judge’s reasons do not make adequate findings of fact— which in turn was implied to mean that the trial judge did not consider all the evidence—the trial judge is not obligated to refer to every piece of evidence. Nor is the trial judge obligated to explain exactly how each piece of evidence was weighed or considered. This ground of appeal is also dismissed. (c) Did the Trial Judge subject individual pieces of evidence to the criminal standard? [39] The Crown argues that the trial judge erred in law by subjecting individual pieces of evidence to the criminal standard of proof, resulting in a piecemeal consideration of only the evidence that is proved to the criminal standard of beyond a reasonable doubt. [40] In J.M.H., the failure to consider all the relevant evidence was the fourth situation in which trial judge’s assessment of the evidence can amount to an error of law. The “underlying legal principle” of this error is that “it is an error of law to subject individual pieces of evidence to the standard of proof beyond reasonable doubt; the evidence must be looked at as whole.” (at para. 31) This error was originally recognized by Sopinka J. in Morin (1988). [41] Sopinka J. in Morin (1988) explained that to subject individual pieces of evidence to the criminal standard results in “piecemeal” consideration of only the evidence that is proved beyond reasonable doubt, rather than proper consideration of all the relevant evidence. The problem that arises from subjecting individual pieces of evidence to the criminal standard is that the trier of fact is left with only those (presumably) small parts of the Crown’s case that could be proved beyond reasonable doubt. Indeed, The effect of the misdirections referred to above may very well have been that the jury examined evidence that was crucial to the Crown’s case in bits and pieces. Standing alone or pitted against the evidence of the accused without the support of other evidence, much of this evidence might have been discarded as not measuring up to the test. When the jury came to consider the Crown’s case as whole there may not have been very much left of it. [at pp. 358-9, Emphasis added] [42] However, as the Supreme Court noted in J.M.H., the application of this error is limited to circumstances where the trial judge clearly subjects individual pieces of evidence to the criminal standard; it has no application where the trial judge has not offered reasons as to how each piece of evidence was assessed. Explaining this limit in Morin (1992), Sopinka J. held at p. 296 that: To apply Morin, supra, as basis of review of trial judge’s findings of fact whenever the reasons for judgment fail to deal with particular piece of evidence, or the inference from such evidence would require trial judge to record each piece of evidence and his or her assessment of it. This would be misapplication of Morin to the trial process when the trial is by judge alone. trial judge must consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not proper basis for concluding that there was an error in law in this respect. [Emphasis added] [43] In summary, it is an error of law to subject individual pieces of evidence to the criminal standard of proof beyond reasonable doubt. To err in such manner results in an improper and piecemeal consideration of only the evidence that the Crown could prove beyond reasonable doubt. However, this error does not arise if the trial judge has merely not explained how each individual piece of evidence was assessed; it arises only if the trial judge subjected individual pieces of evidence to the criminal standard. [44] In my view, the trial judge erred and applied the criminal standard of proof beyond a reasonable doubt to the different pieces of evidence going to Mr. Alves’ speed at the time of the accident. The trial judge repeatedly emphasized that Mr. Alves’ speed might have been higher than the 93 to 99 kilometres per hour attested to by Cst. Low. However, the trial judge also emphasized that he was not convinced, beyond reasonable doubt, that Mr. Alves’ speed was higher than 93 to 99 kilometres per hour. The trial judge stated at para. 60 of the trial judgment: “In the circumstances of this case, am not satisfied that the Crown has established beyond reasonable doubt that the speed of the accused’s vehicle was anything more than 93 to 99 kilometres per hour or that it was objectively dangerous in the circumstances.” Later in the paragraph, the trial judge again subjected the evidence going to Mr. Alves’ speed to the criminal standard and seemed to suggest that because he thought the issue needed to be proved beyond reasonable doubt, he could not accept evidence that suggested without definitively proving that Mr. Alves was going faster than 93-99 kilometres per hour. The trial judge stated: accept the evidence of Cst. Low, collision analyst for the Saskatoon City Police, who testified that based upon his expert analysis the minimum speed at which the car was travelling when it lost control on the roadway would be 93 to 99 kilometres per hour. As was pointed out by Cst. Low, Alves may have been driving his vehicle faster than this, but when proof of his speed is required to be beyond reasonable doubt, the minimum proven speed is what must use. [Emphasis added] When he addressed Mr. Alves directly, the trial judge reiterated that Mr. Alves was fortunate the evidence of his speed had not been proven beyond reasonable doubt. At para. 62 of the trial judgment he stated: Mr. Alves, you are very lucky man. Obviously the accident could have caused death to you and/or your passenger or much more serious injuries than were experienced. Furthermore, had there been any highway workers in the area you could have caused death or serious injury to them for which am sure you would have never forgiven yourself. You are also lucky that there was no police radar to record your exact speed. You are lucky because the Crown is unable to prove beyond reasonable doubt that your speed exceeded 93 to 99 kilometres per hour even though it may have been much faster. [Emphasis added] [45] All the while acknowledging that Mr. Alves may very well have been travelling much faster than the 93 to 99 kilometres per hour attested to by Cst. Low, the trial judge emphasized that the Crown’s failure to prove evidence of Mr. Alves’ speed beyond reasonable doubt precluded finding Mr. Alves guilty of dangerous driving. Perhaps more to the point, the trial judge’s statement that “the minimum proven speed is what must use” suggests that he felt obligated to accept the lowest speed offered in any of the testimonies—and therefore discard the evidence of higher speeds—because the lowest possible speed was necessarily the only uncontested evidence as to speed, and therefore the only evidence of speed that was proved beyond reasonable doubt. Consequently, the trial judge erred in law by subjecting evidence of Mr. Alves’ speed to the criminal standard of beyond reasonable doubt. [46] It may be argued that since the trial judge did not expressly state that he was subjecting the testimonies of Messrs. Siba, Chetty, and Matlock and that of Ms. Morgan to the criminal standard, the limits to the Morin (1988) rule that Sopinka J. identified in Morin (1992) are applicable here. In my view, that would be incorrect. It is clear from the above-quoted passages that the trial judge believed evidence of speed needed to be proved to the criminal standard. He consequently felt he was under an obligation to accept the lowest speed proffered in testimony, which is to say the only speed proved beyond reasonable doubt. In so doing, the trial judge necessarily must have discarded other evidence of higher speeds, simply because that evidence was not proved beyond reasonable doubt. Or rather, the trial judge’s reasons as whole—and treatment of Cst. Low’s testimony in particular—show that he subjected evidence of Mr. Alves’ speed to the criminal standard of proof beyond reasonable doubt. [47] The trial judge focused only on the estimate that was proved beyond reasonable doubt: the lowest estimate—Cst. Low’s. He did not consider all the different pieces of evidence going to Mr. Alves’ speed as whole. Accordingly, this case falls within the application of the Morin (1988) rule and does not run afoul of the limits thereto set out in Morin (1992). The trial judge erred in law. [48] Based upon Graveline, supra, the analysis does not stop here. Identification of an error of law is the first step. The next step is to determine if the Crown has proved that the error might reasonably be thought to have material bearing on the acquittal. [49] It is worthwhile to reiterate that the Crown’s case was predicated upon Mr. Alves travelling at an unsafe speed in construction zone where the speed limit would be 60 kilometres per hour. Evidence from both Crown and defence witnesses peg the speed at low of 93 kilometres per hour to high of 200 kilometres per hour. The trial judge was tasked with determining guilt beyond reasonable doubt based upon this somewhat bizarre range of speeds. [50] All the Crown witnesses were effectively cross-examined by defence counsel at trial. For example, the certainty of the speed estimates provided by Crown witnesses during examination-in-chief changed in cross-examination to admissions that the speed estimates were “guesses”. One of the witnesses in cross-examination admitted that she observed the vehicle in question for only one to two seconds. Another witness clarified in cross-examination that the reference to his observation that Mr. Alves’ vehicle “weaved” was simply that the vehicle changed lanes and was not meant to infer that the vehicle was all over the road. In addition, two of the Crown witnesses in cross-examination confirmed that they did not observe any other vehicle in the vicinity of the Alves vehicle applying their brakes in order to take evasive action. As well, Mr. Chetty’s reliability was called into question after his admission of substantial consumption of alcohol and use of illegal drugs on the date of the offence. [51] More telling is the evidence of Cst. Low. As already noted, Cst. Low was called by the Crown as an expert witness at the preliminary inquiry. He was called by the defence at the trial. At trial, he was qualified by consent of counsel “as an expert, enabled to give opinion evidence regarding the ability to calculate speed of vehicle from physical evidence at the accident scene…”. Cst. Low spent at least five hours at the accident scene analysing the physical evidence. He took measurements and made calculations. He took into the account the “guesses” of speed provided by the witnesses except Mr. Chetty. He took photographs of the accident scene and prepared report on his conclusions which was filed as an exhibit at trial. In his expert opinion, he estimated Mr. Alves to have been travelling at between 93 and 99 kilometres per hour at the time of the accident. Cst. Low “was not convinced that at that speed [93 99 kilometres per hour] it was necessarily dangerous driving on Circle Drive.” [52] After careful consideration, I am not convinced that, notwithstanding the identified error of law, the verdict would necessarily have been different. Without proof of excessive speed, there are no other factors in the driving itself that were dangerous as defined by law. The circumstances do not warrant ordering new trial since the Crown has not established “with reasonable degree of certainty” that the acquittal may have been affected by the error of law. (d) The admissibility of Cst. Low’s expert opinion evidence. [53] Even though new trial has not been ordered it is worthwhile to address this issue. In its factum, the Crown questions Cst. Low’s qualifications to give expert opinion evidence. At para. 70 of its factum, the Crown suggests that “[i]n the event the Court orders new trial it may be appropriate for the Court to express an opinion concerning the admissibility of Cst. Low’s opinion evidence.” To the contrary, it would be inappropriate for this Court to rule on the admissibility of Cst. Low’s evidence. [54] While the admissibility of evidence is a question of law and is therefore reviewable by this Court on an appeal from an acquittal under s. 676(1)(a) of the Criminal Code, the Crown is not allowed to raise arguments on appeal that it had not raised at trial. In R. v. Penno, 1990 CanLII 88 (SCC), [1990] S.C.R. 865 at p. 895 McLachlin J. (as she then was), wrote in her concurring opinion: Crown counsel argued that drunkenness could not serve as defence because of the presumption created by s. 237(1)(a) of the Code. cannot accept this submission in view of the fact that the Crown chose not to assert this presumption at trial, but rather chose to rely exclusively on evidence that the accused had exercised care or control under s. 234(1)(a) of the Code. To allow the Crown to assert the presumption on appeal would result in the accused being deprived of the opportunity to make full answer and defence that could have been made if it had been raised at trial. [Emphasis added] Relying partially on McLachlin J.’s reasons in Penno, the Ontario Court of Appeal in R. v. Varga (1994), 1994 CanLII 8727 (ON CA), 90 C.C.C. (3d) 484 at 494 held that: [a] Crown appeal cannot be the means whereby the Crown puts forward different case than the one it chose to advance at trial. It offends double jeopardy principles, even as modified by the Crown’s right of appeal, to subject an acquitted, to second trial based on arguments raised by the Crown for the first time on appeal. Double jeopardy principles suffer even greater harm where the arguments advanced on appeal contradict positions taken by the Crown at trial. [55] On appeal, the Crown in Varga argued that the trial judge erred in holding that none of the contested records in question were privileged. The Crown had not adopted position on the privilege issue at trial. Indeed, The trial record reveals that Crown counsel had seen all of the documents, and that his decision not to advance any argument in favour of the privilege asserted by the complainant was considered one. This is more than an instance of the Crown failing to object, which, as the law now stands, is not necessarily fatal to Crown appeal It amounts to an affirmative decision not to litigate an issue at trial. That decision had certain potential benefits for the Crown in the conduct of the trial. conviction following unrestricted access to the records would be potentially easier to sustain on appeal than one following restricted access to these records. The Crown must live with that decision both at trial and on appeal. The accused’s liberty should not be jeopardized by permitting the Crown to join issue on the question of privilege for the first time on appeal. [at p. 496, Emphasis added] The Crown also appealed the trial judge’s ruling that the parties could contest the relevance of the documents in question, once defence counsel had decided which of the documents would be raised at trial. As Doherty J.A. remarked, Crown counsel then suggested that relevancy should be argued if and when defence counsel sought to refer to the contents of one of the documents in his cross-examination. The trial judge agreed with this suggestion and copies of the documents were turned over to defence counsel. At no time did Crown counsel suggest that defence counsel’s access to the documents required preliminary showing of materiality. Privilege was the only objection to production raised at trial. On appeal, Crown counsel resiles from that position, and argues that the trial judge was required to make some additional finding of materiality before the documents could be turned over to the defence. It would be an abuse of the appellate process to accede to this argument. Just as the Crown cannot challenge an acquittal by advancing theory of liability for the first time on appeal, it cannot secure new trial by advancing new test for admissibility that contradicts the one advanced at trial. [at p. 497, Emphasis added] [56] While it would not be accurate to say that the Crown is changing its theory of liability in suggesting that this Court rule on the admissibility of Cst. Low’s expert opinion, the Crown is completely reversing its position on Cst. Low’s qualifications from that which it adopted at trial. Cst. Low was originally Crown witness. When the issue of which side was to call Cst. Low as witness was being argued, the trial judge expressly addressed the Crown on whether it was seriously contesting the qualifications of Cst. Low. The trial judge stated, “I gather you’d be hard pressed to indicate that he wasn’t an expert, since you called him at the prelim and qualified him as an expert.” In response, the Crown clearly indicated it accepted Cst. Low’s qualifications as an expert: “Absolutely. I—I agree with that hundred percent. believe he’s an expert.” The Crown’s submissions in its factum to the contrary constitute fundamentally different position on Cst. Low’s qualifications than that which it adopted at trial. The Crown is not entitled on appeal to resile from its position on the issue. [57] In the alternative, the Crown submits that this Court should offer an opinion as to the weight that should be ascribed to Cst. Low’s testimony. However, this would not be appropriate. The weight to be given to evidence is question of fact. In Morin (1992), Sopinka J. remarked that [w]ith respect to the weighing of evidence, the manner in which the jury assessed individual pieces of evidence was not question of law in respect of which the trial judge was required to instruct the jury. The basic requirement was that the jury was to be instructed that they must consider the whole of the evidence and determine on that basis whether the guilt of the accused has been established beyond reasonable doubt. [at pp. 295-6] This Court therefore lacks jurisdiction on an appeal from an acquittal to rule on the weight that Cst. Low’s testimony should receive in new trial. [58] Moreover, it does not appear as if there is any principled reason for this Court to offer an opinion on the weight to be given to or the admissibility of Cst. Low’s expert evidence. If this Court had ordered new trial, it would be open to the Crown to make the admissibility of and appropriate weight to be given to Cst. Low’s opinion evidence live issue. Both parties would then be in position to make submissions to the trial judge who can rule appropriately. [59] The appeal is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 5th day of August, A.D. 2014. “Herauf J.A.” Herauf J.A. concur. “Lane J.A.” concur. “Whitmore J.A.” Whitmore J.A.
The Crown did not meet the onus under s. 676(1)(a) of the Criminal Code, and therefore the appeal was dismissed. The Appeal Court found that the Crown must satisfy the court of two things: 1) that an error of law was made on the standard of correctness; and 2) that the error had a material bearing on the acquittal. The Court of Appeal dealt with the Crown’s arguments as follows: 1) while it is an error to mistake the elements of an offence the Court found that the trial judge did not do so. The trial judge did, unfortunately, state that the speed needed to be proved beyond a reasonable doubt but the trial judge did not confuse the factual speed issue with either the mens rea or actus reus; 2) the trial judge thoroughly reviewed each of the witnesses’ testimony. The trial judge did not have to refer to every piece of evidence or explain exactly how each piece of evidence was weighed or considered in the reasons; and 3) the trial judge did err in applying the criminal standard of proof beyond a reasonable doubt to the different pieces of evidence going to the vehicle’s speed. The trial judge concluded that the minimum speed must be accepted because the higher speeds were not proven beyond a reasonable doubt. The Court of Appeal concluded that the verdict would not have necessarily been different but for the error in law; speed was the only driving factor suggested to be dangerous. The Crown also questioned the admissibility of the analyst’s opinion evidence on appeal, although they did not at trial. The Crown was not allowed to raise arguments on appeal that were not raised at trial. The analyst was originally a Crown witness at the preliminary inquiry and then he was a defence witness at trial. Further, the Appeal Court declined to give an opinion on the weight that should have been given to the analyst’s testimony because that was a question of fact for the trial judge.