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PROCEDURE - Trial judge’s duties - Charge or directions

Wednesday, November 06, 2019 @ 6:23 AM  


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Appeal by SK, a young person, from conviction for first degree murder under ss. 229(c) and 231(4)(a) of the Criminal Code. The appellant, then 15, was joyriding his father’s van at night without permission. Police stopped him for speeding. When the appellant refused to leave the vehicle, the officer opened the driver’s door of the van, reached over the appellant and attempted to undo the appellant's seat belt. The van then started moving and accelerated with the lower part of the officer’s body hanging out the open driver’s door. The officer then jerked the steering wheel to the left, causing the van to roll over and eject the officer from the van, resulting in the officer’s death. The appellant testified he was trying to push the brakes, he did not intentionally push the accelerator pedal, he could not breathe with the officer on top of him, and he had no control over the vehicle as it accelerated onto the highway. To support the appellant’s claim, the defence called a biomechanical engineer to explain the phenomenon of pedal misapplication, a form of unintended acceleration. The appellant argued he was only 15 at the time of the accident and, on all the evidence, in a state of panic. He argued that the trial judge should have drawn these facts to the jury’s attention when assessing whether the common-sense inference he knew his dangerous driving was likely to cause the officer’s death should be drawn.

HELD: Appeal allowed. New trial ordered. The trial judge erred in failing to instruct the jury that the appellant’s age and level of maturity were important factors for them to consider in assessing whether he knew his dangerous driving was likely to cause the officer’s death. The trial judge also erred in failing to review the evidence relevant to that issue. In the context of a case tried under s. 229(c) of the Criminal Code where a finding of knowledge of the likelihood of death was required, factors that could point against relying on the common-sense inference to draw an inference of actual knowledge of consequences should be drawn specifically to the jury’s attention. It was important that, once the jury concluded that the appellant’s actions were intentional, they were cautioned not to rely on the common-sense inference to find that the appellant knew his actions were likely to cause the officer’s death without carefully considering all relevant evidence capable of pointing away from it. In his closing address to the jury, Crown counsel linked the officer’s perception of the danger he was in to the perception of the 15-year-old appellant. The Crown’s summary of its position for the jury came very close to inviting the jury to apply an objective standard to the mental element of the offence. In these circumstances, it was necessary for the trial judge to caution the jury that 15-year-olds did not have the same life experience as adults and that, as a result, a 15-year-old might not have the level of maturity to foresee the consequences of a particular course of action. In addition to cautioning the jury to consider the age and maturity level of the appellant, it would have been important for the trial judge to review various statements and actions of the appellant before, during, and after the incident as evidence from which one might conclude that he lacked mature judgment.

R. v. S.K., [2019] O.J. No. 4960, Ontario Court of Appeal, J.M. Simmons, M.H. Tulloch and D.M. Brown JJ.A., October 1, 2019. Digest No. TLD-November42019008