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PROCEDURE - Trial judge’s duties - Charge or directions - Evidence of witnesses

Monday, November 18, 2019 @ 9:12 AM  


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Appeal by the accused from conviction for dangerous driving causing death and failing to stop at the scene of an accident. During a heated altercation with B, the appellant drove into a driveway at a townhouse complex and struck C. C had approached the appellant’s vehicle during the altercation with B. C was yelling and hit the vehicle with a large steel pipe. Witnesses testified C started to walk away when he was hit by the appellant’s vehicle. The appellant put the vehicle in reverse and left the scene. C later died during surgery for injuries sustained in the accident. The appellant’s wife, who had been in the vehicle, testified that C was a drug dealer to whom the appellant owed money and who had threatened to kill them on prior occasions. The appellant argued at trial that the evidence did not prove he intentionally drove into C. He told the jury that the evidence was not sufficient to prove the actus reus and mens rea for dangerous driving. He also advanced self-defence and accident at trial. The appellant argued that the judge did not adequately direct the jury’s attention to the appellant’s personal circumstances, including his state of mind while driving and his perception of the events surrounding the vehicle. The appellant’s wife was the only witness called by the defence. The appellant did not testify.

HELD: Appeal allowed. New trial ordered. The instructions on the mens rea for dangerous driving causing death did not adequately direct the jury’s attention to the appellant’s personal circumstances. The judge focused the jury’s attention on evidence relevant to the appellant’s state of mind and his perception of the surrounding events only when instructing on lawful excuse of self-defence and accident. After instructing on the defences, the trial judge moved the jury’s attention back to the elements of dangerous driving and again referred to the marked departure standard, identifying the evidence that the jurors should consider in that regard but referred to only objective factors. In this case, the charge did not adequately equip the jury for a meaningful modified objective enquiry on mens rea. It had the effect of compartmentalizing the jury’s consideration of the evidence relevant to that issue, potentially depriving the appellant of its capacity to raise a reasonable doubt on the marked departure standard even if the jury rejected the lawful excuses, as defined by the trial judge. There was a realistic possibility in this case that the jurors inferred a marked departure from the mere fact that the appellant’s driving, viewed objectively, was dangerous to the public. The judge also erred in telling the jurors that evidence of past threats made by C could not be used to the appellant’s benefit unless found to be truthful. The trial judge erred in treating the evidence of prior threats as evidence admitted for the truth of its content. This evidence was not tendered for that purpose but was elicited and admitted as evidence relevant to the state of mind of the appellant and his wife on the date of the offences. It was the fact of the prior statements that mattered, not whether C was being truthful when he said the things relayed by the appellant’s wife in her testimony and actually intended to cause her and the appellant death or physical harm. Considering the purpose for which the evidence of prior threats was before the jury, a hearsay instruction of the nature provided by the trial judge was not appropriate. The wife’s evidence of the events surrounding the accident, as well as the prior dynamics between her, the appellant, and C, was significant evidence in support of the appellant’s non-culpability for the offences based on his state of mind at the time of driving. Juror reliance on a material aspect of the wife’s evidence was rendered dependent on their assessment of C’s truthfulness. Given the nature of the defences advanced in this case and the importance of the wife’s evidence in negating mens rea overall, the erroneous instruction gave rise to a reversible error.

R. v. Delellis, [2019] B.C.J. No. 1885, British Columbia Court of Appeal, M.V. Newbury, S.A. Griffin JJ.A. and DeWitt-Van Oosten J., October 8, 2019. Digest No. TLD-November182019002