R. v. Daniels

R. v. Daniels Collection Decisions of the Court of Appeal Date 1998-10-28 Docket numbers C27113 Judges Doherty, David H.; Moldaver, Michael James; Borins, Stephen Subject Criminal Decision Content DATE: 19981028 DOCKET: C27113 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. HAROLD DANIELS (Appellant) BEFORE: DOHERTY, MOLDAVER and BORINS JJ.A. COUNSEL: Edward L. Greenspan, Q.C. and Alison Wheeler For the appellant Robert Kelly For the respondent HEARD: October 21, 1998 ENDORSEMENT [1] A friend of the appellant was involved in an altercation outside of a Yorkville nightclub. The appellant left his car to assist his friend. He assumed the role of peacemaker and he and his friend eventually made their way back to the car which was parked in front of the nightclub. Contrary to the wishes of the appellant, the altercation continued. One person struck the car with a pole, while others taunted the appellant’s friend, urging him to get out of the car and fight. The appellant backed up and then drove forward on to the sidewalk in front of the nightclub, striking three pedestrians. Two suffered bodily harm and one was killed. The appellant then struck a parked car before leaving the scene. A passenger in the parked vehicle suffered bodily harm. The appellant was charged with criminal negligence causing death, three counts of criminal negligence causing bodily harm and one count of failing to remain at the scene of an accident. He was convicted on all counts. [2] The appellant testified that he believed that one of the men involved in the altercation had a gun and said something which indicated he was about to use it. No one else testified about this comment, but there was considerable evidence that the people outside the car were in a most combative mood. The appellant testified that he intended to drive away from the scene, but that his car jumped the sidewalk and struck the victims. He contended that the fear and panic of the moment caused him to lose control of the vehicle momentarily. He further said that he left the scene because of his fear and panic and not with the intention of avoiding civil or criminal liability. It was the appellant's position that he did not know that he had struck any of the pedestrians, although he was aware that he had hit the parked vehicle. [3] The appellant's version of events was capable of affording a defence to all of the charges. His position was supported to some extent by the expert evidence of an accident reconstructionist called by the defence. [4] It was the Crown's position that the appellant reacted out of anger as a result of the altercation and drove his car in an aggressive and retaliatory manner whereupon he lost control and drove on to the crowded sidewalk. The Crown's position was supported to some extent by its expert in accident reconstruction. [5] The trial judge properly instructed the jury as to the meaning and application of the doctrine of reasonable doubt in the general part of his instructions. He also properly instructed the jury as to the application of that doctrine to the charge of failing to remain and the defence raised to that charge. [6] In his recharge, in response to a question from the jury, the trial judge's instructions left the impression that the jury had to accept the appellant's contention that he acted out of fear and panic when he drove on to the sidewalk before that explanation could leave the jury with a reasonable doubt. This instruction was directed at the criminal negligence charges. Counsel for the appellant objected to the recharge. [7] Considering the entirety of the charge and the importance of any instruction following a jury's question, the appellant has satisfied us that there was misdirection as to the application of the doctrine of reasonable doubt to the defence put forward on the criminal negligence charges. [8] In most cases, error in the instruction as to reasonable doubt necessitates a new trial. In the unusual circumstances of this case, however, we would apply the curative proviso. The jury was properly instructed on the fail to remain count. In convicting on that count, they were clearly satisfied beyond a reasonable doubt that the appellant did not act out of fear or panic when he left the scene. As that finding is not tainted by any error in the instruction, we are obliged to take that finding into account in deciding whether the curative proviso can be applied to the error made in relation to the other counts. We think that the jury, having decided beyond a reasonable doubt that fear and panic did not precipitate the flight from the scene, would have inevitably concluded beyond a reasonable doubt that the same fear and panic did not cause the appellant to lose control of the vehicle. The events underlying the charges were part and parcel of the same occurrence. We would not give effect to this ground of appeal. [9] The instructions to the jury on the approach to be taken to expert evidence, while by no means perfect, did not constitute misdirection. The trial judge in effect told the jury that in assessing the weight to be given to opinion evidence, they should consider the extent to which the factual assumptions underlying those opinions were or were not borne out by the evidence. This was an appropriate instruction and unlike the impugned instruction in R. v. Travers (1984), 14 C.C.C. (3d) 34 (N.S.C.A.), it did not effectively remove the expert evidence from the jury’s consideration. [10] In the course of listing several "common sense" factors which should be considered by the jury in assessing credibility, the trial judge cautioned the jury against accepting the evidence of anyone who had previously lied about a "significant matter." The appellant admitted he had lied to his girlfriend the night of the accident and it was open to the jury to find that he had also lied to the body shop owner and the first police officer he spoke to about the incident. No other witness fell into this category. The trial judge is entitled to assist the jury by itemizing factors relevant to credibility arising out of the evidence. A lie with respect to a significant matter is potentially an important consideration in assessing credibility. We cannot say that the trial judge went beyond his assigned function in drawing the jury's attention to the potential significance of the appellant's lies in their assessment of his credibility. [11] The appellant led character evidence. That evidence was potentially significant to the assessment of his credibility but, in our view, had little probative value as circumstantial evidence given the nature of the allegation made against the appellant and the substance of the character evidence. The trial judge emphasized the connection between the character evidence and the appellant's credibility in his brief instructions on that evidence. We see no error in that approach. [12] The appellant also appeals against sentence. The sentence imposed was one of 3½ years’ imprisonment, consisting of three years for the offence of criminal negligence causing death, two years concurrent on each of the criminal negligence causing bodily harm counts and six months consecutive for the offence of failing to stop at the scene of an accident. [13] The offences in question were very serious. They resulted in grave and tragic consequences. Three pedestrians were seriously injured and a young woman with great promise was killed. Victim impact statements from family members of the deceased, filed on the sentence hearing, attest to the enormity of the tragedy. [14] Bearing in mind the seriousness and gravity of the offences, the trial judge emphasized the need for general deterrence and he concluded, correctly in our view, that despite the appellant’s positive background and good character, a substantial period of incarceration was warranted. [15] In determining the length of the sentence, the trial judge placed considerable emphasis on the degree of culpability attributable to the appellant. He rejected the notion that the appellant’s conduct represented a momentary lapse of attention or error in judgment. Rather, he found it to be blatant and a highly reckless disregard for the lives and safety of others. Accordingly, he ascribed a high degree of moral culpability to the appellant. [16] With respect, we are of the view that in assessing the appellant’s level of moral culpability, the trial judge erred in principle by failing to take into account several important mitigating factors which bore directly on this issue. In particular, he failed to recognize that the appellant’s conduct, though highly reprehensible, represented a single isolated act by an otherwise responsible, law-abiding and productive individual in circumstances of severe provocation. The trial judge’s failure to take these factors into account led him to ascribe a higher degree of moral culpability to the appellant than warranted. [17] A second error in principle arises from the trial judge’s failure to take into account the two months of pre-trial custody served by the appellant. In the circumstances of this case, we believe that the appellant should have been credited with four months. [18] As a result of the combined effect of these two errors, we believe that the sentence of 3½ was too high. Under all of the circumstances, we think a fit and just sentence would be one of two years less one day imprisonment. To give effect to this, we would reduce the sentence on the charge of criminal negligence causing death from three years to 18 months less one day. The sentences imposed on the criminal negligence causing bodily harm counts will also be reduced from two years to 18 months less one day concurrent. In all other respects, the sentence will remain unchanged. [19] In the result, the appeal against conviction is dismissed. Leave to appeal sentence is granted and the sentence is varied in accordance with these reasons.