R. v. Brown

R. v. Brown Collection Decisions of the Court of Appeal Date 2000-07-10 Docket numbers C33323 Judges Austin, Allan McNiece; Laskin, John Ivan; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 20000710 DOCKET: C33323 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) and WILLIAM JOHN BROWN (Appellant) BEFORE: AUSTIN, LASKIN AND FELDMAN JJ.A. COUNSEL: Irwin Koziebrocki for the appellant Alexander Hrybinsky for the respondent HEARD: June 26, 2000 On appeal from conviction by Marchand J. sitting with a jury, on April 21, 1999 and from sentence imposed on April 22, 1999. ENDORSEMENT [1] William John Brown appeals from his conviction in April 1999 on a charge of criminal negligence causing bodily harm and from the sentence imposed of eighteen months incarceration. The sentence has now been fully served and the appeal from it is therefore moot. [2] The grounds of appeal from conviction, briefly stated, are that the charge on the definition of criminal negligence was misleading, that the jury was wrongly instructed to use an objective test to determine the mens rea and that the verdict was unreasonable. In our view, none of these grounds can succeed. [3] The facts are not complex. By agreement, after an afternoon of shopping, the appellant took home to have dinner with himself and his sixteen year old son, the twenty-three month old daughter of his girlfriend. He decided she needed a bath and after getting her mother’s permission, took her into the bathroom turned on the hot water in the bath tub and undressed her. Then the telephone rang and after turning off the tap and telling her to stay where she was, he went to answer the telephone some twenty feet away. While on the phone he heard her jump, fall or otherwise get into the tub. [4] The water was extremely hot. He had run only hot water as was his habit and he had had the thermostat altered so that when showering he would not have to wait a long time for hot water. He got her out of the tub by means of cold towels and rushed her to the hospital. [5] The victim suffered very serious burn injuries to sixty percent of her body. They were life threatening. She was transferred from the local hospital to the Hospital for Sick Children in Toronto where she remained for five months followed by nine months at the Ontario Centre for Crippled Children. Operations to cope with skin grafts followed annually for four years and thereafter less frequently for five years. She remains grossly scarred. The appellant was not charged until over thirteen years after the event. [6] Turning to the first ground of appeal, the trial judge’s charge to the jury was in part as follows: Thus the fourth ingredient the Crown must prove, that is that Mr. Brown, by his conduct, act or by his omission, showed wanton or reckless disregard to the life or safety of Lindsay. Wanton disregard means a heedless or unrestrained disregard for the consequence of your action or the consequence of your omissions. Likewise, reckless means an indifference to the consequences of your action or of your omissions. For Mr. Brown’s action or omission to constitute wanton or reckless disregard for the safety of Lindsay, that conduct must be a marked and substantial departure from what we would expect of a reasonable person in such circumstances. Remember, Mr. Brown’s conduct must show a heedless, a reckless disregard for the safety of Lindsay. A small error or a momentary lapse in care that results tragically in bodily harm to Lindsay is not sufficient conduct to constitute criminal negligence. (Emphasis added.) [7] The appellant argues that the juxtaposition of the last sentence misled the jurors in two ways. First, it suggested that anything other than a small error or momentary lapse in care could amount to criminal negligence. Second, it placed an evidentiary burden on the appellant to show that his conduct amounted only to a small error or momentary lapse in care. [8] We do not accept either of these propositions. This aspect of the charge appears to have been taken from CRIMJI, an acronym for Canadian Criminal Jury Instructions, a text by Ferguson and Bouck pp. 6.21-10 and 11. We make no comment on the acceptability of this particular charge in other contexts but we see nothing objectionable or misleading about its use in this case. [9] The appellant’s defences were, first, that the conduct complained of did not amount to a marked departure from the norm as required to support a charge of criminal negligence and second, that it amounted to an “inadvertent momentary lapse of judgment”. This expression was used twice and the expression “momentary lapse” once in defence counsel’s brief address to the jury. As a consequence, the trial judge was almost bound to deal with the expression and we see no error in using it as he did. [10] On the second ground of appeal, the trial judge instructed the jury as to the standard for establishing that the appellant’s actions were criminally negligent in the following terms: “The test that you must follow is an objective one; that is, the Crown does not have to prove that Mr. Brown knew or foresaw the consequences of his act or omission in either letting the phone go or taking the child with him. The act of leaving the child alone near a hot tub in order to answer a phone will have to speak for itself. If this act constitutes a marked and substantial departure from what we might expect of a reasonable person in the circumstances in question, then the conduct of Mr. Brown constitutes criminal negligence regardless as to whether or not he recognized the obvious and serious risk to the safety of Lindsay.” [11] Counsel for the appellant at trial objected to this approach and argued that a subjective approach was more appropriate. This objection was not accepted. The majority of the Supreme Court of Canada has stated that the objective test does not require a consideration of personal factors except to the point where those personal characteristics establish an incapacity to appreciate the risk in a course of conduct. None of the factors suggested on behalf of the appellant could have established such an incapacity. R. v. Naglik (1993) 83 C.C.C. (3d) 526 (S.C.C.) per McLachlin J. at p. 546 R. v. Creighton (1993) 83 C.C.C. (3d) 346 (S.C.C.) per McLachlin J. at p. 385 [12] In any event, in this case there was evidence of the appellant’s awareness of the risk to the child. He knew the water was extra hot. He turned off the tap and he told her to sit on the floor. In addition there was evidence, which was challenged but which the jury could have accepted, that the appellant was aware of her having jumped into a tub on an earlier occasion. All of these matters go to the mens rea of the appellant. [13] Finally, as to the reasonableness or otherwise of the verdict, the evidence just reviewed in paragraph 12 precludes us from finding that the verdict was unreasonable. [14] Accordingly, we conclude that none of the grounds of appeal can succeed. The appeal from conviction is therefore dismissed. The appeal as to sentence being moot, it is dismissed as abandoned. [15] Notwithstanding the foregoing, we leave this matter with some misgivings. These arise from the fact that despite a full investigation at the time this event occurred, the matter was not prosecuted for some thirteen years, that the appellant was discharged after a preliminary hearing, that the charge was restored by way of mandamus and that the matter was prosecuted at all. Only the fact that it was fairly tried by a jury reduces, but does not completely abate, those misgivings. “Austin J.A.” “J.I. Laskin J.A.” “K. Feldman J.A.”