The Defence Toolkit – February 26, 2022

This week’s top three summaries: R v Janeiro, 2022 ONCA 118: #lost evidence, R v Lynch, 2022 ONCA 136: DO by #sexual impulse, and R v O’Neil, 2022 ONSC 981: the #sun & dangerous #driving

R v Janeiro, 2022 ONCA 118

[February 10, 2022] Lost Evidence: Storage of Videos, Circumstantial Evidence: Fingerprint on a Plastic Bag, Saliva Outside Robbery Scene [Reasons by David M. Paciocco J.A. with I.V.B. Nordheimer and Sossin JJ.A. concurring]

AUTHOR’S NOTE: The challenge with lost evidence applications is that the Defence never really knows what was in the evidence. Here, there was at least some level of description of what was in the lost CCTV footage from the convenience store robbery. The question in the case on lost evidence turned on the issue of whether police took reasonable steps to preserve the recorded footage of the robbery when the case went cold. Putting the video in an unlabelled bag in a general locker was not reasonable in the circumstances given the potential importance of such evidence in a subsequent case. 

The case was also decided on the issue of unreasonable verdict. A bag with multiple fingerprints (one of which matched the accused) where it was unclear if the perpetrator had been wearing gloves (something the video would have shown) was insufficient evidence to prove identity of the robbery beyond a reasonable doubt. A DNA match to some saliva found on the outside pavement near the entrance to the store was not sufficient in the circumstances to prove who was inside committing the robbery.

Overview

[1] Mr. Janeiro appeals his convictions on charges related to the robbery of a donut shop in Bradford, Ontario. For the reasons that follow, I am persuaded that his convictions are unreasonable, and that the trial judge materially misapprehended the evidence with respect to the identity of the robber. I would therefore set aside Mr. Janeiro’s convictions and substitute verdicts of acquittal.

[2] I would also have allowed the appeal of the trial judge’s rejection of Mr. Janeiro’s “lost evidence” Charter application.

Material Facts

[3] On November 7, 2011, shortly before 12:42 a.m. when officers from the South Simcoe Police Service were dispatched to the scene, a Country Style donut shop located at 396 Holland Street West in Bradford, was robbed by a person wearing a ski mask or balaclava and who brandished what the donut shop clerk believed to be a firearm. The clerk was the sole donut shop employee working, and the sole person in the donut shop during the robbery. The robbery was captured on video by a security camera inside the premises (the “security video”). Despite the security video and the description provided by the clerk, the robber could not be identified.

[4] During the investigation, forensic evidence that may have been linked to the robber was discovered, consisting of: (1) five unknown fingerprints suitable for comparison on a white plastic “kitchen” garbage bag the robber left on the counter near the cash register; (2) DNA from saliva found over two hours after the robbery approximately 60 metres from the donut shop on the sidewalk in front of the China Garden Restaurant, located at 382 Holland Street West; and (3) DNA from what appeared to be fresh vomit found in a black ski mask (the “balaclava”) that was found in the parking lot of the Bradford District High School at 70 Professor Day Drive, located kitty-corner from the donut shop some 260 metres away.

[5] Despite the collection of all of this evidence, it did not immediately lead to the identification of a suspect and the case went “cold,” but it was not closed.

[6] In January 2017, more than five years after the robbery, Mr. Janeiro was convicted of a criminal offence, which required him to provide a DNA sample for deposit with the National DNA data bank. On April 12, 2017, a routine computer search conducted by the RCMP Information Centre using Mr. Janeiro’s DNA profile identified a “hit” relative to the saliva sample that had been found in front of the China Garden.

[7] Mr. Janeiro’s DNA proved not to be consistent with the DNA found on the balaclava, but in the opinion of a fingerprint examiner, one of the five fingerprints suitable for comparison from the garbage bag was made by Mr. Janeiro’s left thumb.

[8] ... At the trial, the only live issues were the identity of the robber, and whether the Crown could establish that the robber brandished a “firearm” as defined in s. 2 of the Criminal Code. I will describe the evidence that was presented.

[10] A CFS DNA report that was appended to the ASF stated that the probability of a randomly selected individual unrelated to Mr. Janeiro coincidentally sharing the DNA profile of the saliva was estimated to be greater than one in one trillion.

[11] The appended CFS report relating to the DNA from the balaclava confirmed that the DNA profiles from Mr. Janeiro and the balaclava were “from two different individuals”.

[12] ... Paragraph 9 of the AFS recorded that Cst. McCallum “compared one impression found on the bag to known impressions (fingerprints) that were taken from Mr. Janeiro on April 21, 2016”. Paragraph 10 stated that on September 1, 2017, Cst. McCallum concluded that the “impression #R5 was made by the left thumb of [Mr. Janeiro]”.

[18] When asked if the robber was wearing gloves, the clerk testified that she “originally ... thought” he might have been wearing gloves but said, “I can’t really recall”. Although she expressed uncertainty on this point in the police statement that she provided shortly after the robbery, the clerk had told the police that she believed that the robber “must have” been wearing “gloves” or “regular mittens”, and that she thought she remembered seeing them. She was shown her statement to refresh her memory as to whether the robber in fact wore gloves, but it did not assist her. She was not asked to adopt the statements she had made to the police.

[19] In the following exchange, the clerk offered testimony relating to the balaclava the robber was wearing, which she called a “ski mask”: ...

Q. Do you remember what, what the mask looked like in the photo?

A. It was, it was a different type of style. That’s all I can really remember right now.

...

Q. And I’m going to suggest to you that at the time what you told the officer was actually that you weren’t sure if it was the same mask. Does that sound right?

A. More than likely.

Q. And that, further, that you had thought that there was no mouth hole on the mask the person was wearing but that you weren’t sure?

A. Correct.

The Security Video

[23] The security video that captured the robbery on DVD was filmed by a ceiling mounted security camera in the donut shop. The camera was pointed towards the public doors at the front of the donut shop and provided a view of customers as they approached the counter. The security video was seized and viewed by four police officers of the Criminal Investigation Bureau (“CIB”) as part of the investigation. By the time of trial, the security video had gone missing.

[24] At the outset of the trial, Mr. Janeiro brought a “lost evidence” Charter challenge claiming that the loss of the security video violated his ss. 7 and 11(d) rights guaranteed by the Canadian Charter of Rights and Freedoms. He requested that this breach be remedied by a stay of the proceedings. As indicated, the evidence relevant to this Charter motion was heard during the trial as part of a blended voir dire.

[25] ... PC Fawcett kept the security video in a file folder along with photographs in a locked drawer that belonged to him in the criminal investigation office. The security video remained there after the donut shop robbery investigation was designated as “inactive pending further” due to the absence of new leads in the summer of 2012.

[26] PC Fawcett testified that when he was transferred to the “uniform branch” three years later, in 2015, he secured permission to store multiple videos in his possession in a cabinet in a CIB office where case files were placed by officers who transfer from the unit. He labelled the security video with the occurrence number for the donut shop robbery and then placed it in an unlabelled brown evidence bag, along with multiple other unrelated videos. He then placed the unmarked evidence bag containing these congregated videos in a cabinet in the CIB office, accessible to CIB personnel. The key to the cabinet lock was kept in the lock itself, and the cabinet was not otherwise kept locked.

[27] PC Fawcett testified that although there is a locked property room where evidence is logged by identification officers, and it was “procedure” to store evidence there, he had never seen the locked property room used to store digital evidence, and that there was “no procedure with regards to digital evidence”. He explained, “when I think of a property room, I think of, I don’t know, stolen items recovered or drugs and that sort of thing would go in a property room”.

[28] PC Fawcett also provided evidence that he had viewed the security video on one occasion but took no notes of his observations. His testimony reflected no meaningful recollection of the details of the security video. ...

[29] In 2017, after the donut shop robbery investigation was reactivated following the DNA “hit” relating to Mr. Janeiro, DC Johnson was assigned as OIC. He looked unsuccessfully for the security video. He testified that he looked in the locked and controlled property room, noting that this is where he stores the surveillance videos that come into his possession. ...

[30] DC Johnson ... He testified that the CIB office was not kept locked at the time, but it has since become practice to do so. He said he searched for the security video on multiple occasions but “didn’t find the bag”.

[32] ... He did not view the entire video but prepared a supplementary report of what he observed. He relied heavily on this supplementary report when testifying, stating that he did not remember the content of the video at the time of trial. He believed the video had been in colour because he noted colours in his report. In his testimony he referred only to a “white” horizontal stripe running down the robber’s pant leg, “from hip to toe”. He also testified that the video enabled him to see sufficient detail so that he could see that the robber’s finger was on the trigger of the “gun”.

[33] DC Johnson recorded two additional observations relevant to this appeal. First, he inferred that the robber was left-hand dominant because the robber used his left hand when holding the gun with only one hand. He used his right hand when reaching into the till.

[34] Second, DC Johnson observed that the robber appeared to be the approximate height of the bottom of a poster on a front door to the donut shop. After standing next to the poster, DC Johnson estimated that the robber was approximately 5 feet 91⁄2 inches, his own height, or little bit taller or shorter when allowing for the camera angle. During cross-examination, he agreed that he could not be “confident in a sort of more precise height measurement” because the camera was not at eye level. ...

[38] PC Dietrich testified that he watched the video at the donut shop with then Sgt. Ferrier. ... He recorded, “male, black handgun, black sweater, gloves”. He said he described the perpetrator as a man because that is how it was described in the dispatch, but he agreed that he did not make an independent assessment of the robber’s gender based on his observations of the video itself. He also testified that he could not offer a description of the height of the robber from the video.

Mr. Janeiro's Testimony

[39] Mr. Janeiro testified in his own defence. He denied being the robber. He also denied having access to firearms or fake guns. In the course of his evidence, he said he was approximately 5 feet 7 inches and left-handed.

[40] Mr. Janeiro testified that at the time of the robbery he lived a 30 second walk from the donut shop and worked at a Sobeys grocery store, also a 30 second walk from his place of residence. ...

[41] During cross-examination, the Crown explored the “coincidence” that Mr. Janeiro’s saliva would be on the sidewalk in front of the China Garden on the same night the robbery occurred and where his fingerprint was identified on the bag left behind by the robber. When asked, “and were you in the habit back in November of 2011 of going for walks at 12:30 at night”, Mr. Janeiro said, “I could say yes”. He continued, “I’m a teenager. We’re out at night”. He did not know what he would have been doing in front of the China Garden at that time, commenting that he could have been walking to get a slice of pizza, or meeting friends. He said he did not remember whether he was working the night of the robbery but agreed that if he was working that night, he would probably not have had to pass by the China Garden to get home. He said it would not be a “coincidence” for him to be “walking past the donut shop at 12:30 [at night]” because it was not uncommon for him to do so. He also testified that he smokes and has a habit of spitting.

[42] In cross-examination, the Crown explored Mr. Janeiro’s familiarity with the donut shop. Mr. Janeiro testified that he was unsure of how many times he would have gone to the donut shop during his night shift at Sobeys, estimating maybe one or two or three times, although he had no specific recollection of it being “a regular thing”. He said he did not notice how many people were working at the donut shop at night but did not disagree with the Crown’s suggestion that at that time of night there would be a skeleton staff working.

[44] Mr. Janeiro testified that he did not know how his fingerprint ended up on a bag used in the robbery. When pressed for an explanation he said that perhaps he brought the bag to work and threw it out or disposed of it. ...

[49]  In summarizing his conclusion as to Mr. Janeiro’s guilt, the trial judge said:

The juxtaposition of all the circumstances, as related by the Crown, especially the fresh spit containing DNA that matches Mr. Janeiro’s profile in front of the restaurant, the scene of the robbery, and his fingerprint on the bag being placed on the counter by the robber, in my view lead inescapably to the conclusion beyond a reasonable doubt that Mr. Janeiro was the robber.

Description of the Robber

[51] Based on the testimony of the clerk, the trial judge found that the robber was a “white male”. The trial judge recounted DC Johnson’s conclusion that the robber was left hand dominant because he held the gun in his left hand, and he said DC Johnson “deduced that the robber’s height was about five-nine”. He noted that Mr. Janeiro testified that he was left-handed and “approximately five-seven”. And he recounted the Crown’s submission that the robber is “about [Mr. Janeiro’s] height” and “the robber appears to be left-handed, as is Mr. Janeiro”.

[52] No mention was made of the clerk’s estimate that the robber was “just a little bit taller” than her height of 5 feet 2 inches.

[54] There was not, in fact, “an identifiable fingerprint” on the plastic bag. There were five of them. No mention was made by the trial judge of the four fingerprints that remained unidentified.

[55] ... The trial judge did not make any finding relating to whether the robber had been wearing gloves, saying, “whether or not the robber had gloves would not in my view change the relevance of the fingerprint on the bag”.

The Saliva

[56] The trial judge recounted the DNA evidence that demonstrated that Mr. Janeiro deposited the saliva that was found on the sidewalk in front of the China Garden. He also recounted the defence position that there is no evidence that the saliva was left before the robbery, or that it is connected to the robbery.

[58]  ... as can be seen on the Google map image that was included in the ASF, the perspective from where the saliva was located to the front of the donut shop engages a much sharper angle and involves a greater viewing distance. Put simply, it is materially misleading to assess how opportune the view into the donut shop was from where the saliva was left, by looking at the view depicted in photo 20.

Balaclava

[60] He recounted that the clerk described the “ski mask” as having two eye holes. On three occasions, he stated that the police showed her the balaclava that was seized by the police from the high school, and that she said, “that it was not the same one as the robber wore”. In fact, that was not the evidence. As described above, PC Fawcett showed the clerk a photograph of the balaclava as it lay on the ground. The trial judge made no mention of the clerk’s testimony in cross-examination in which she agreed with defence counsel that what she likely told the officer was that she could not say whether it was the balaclava the robber wore.

[61] With respect to the balaclava that was put into evidence, the trial judge held that he was, “satisfied that that was the mask that [the clerk] testified about when she said it did not match the one that the robber wore”.

The Reasons for Rejecting the “Lost Evidence” Charter Motion

[62] The trial judge recognized that the security video was “disclosable evidence” but denied Mr. Janeiro’s Charter application, finding that although better steps could have been taken, “the process [for storing the security video] described by PC Fawcett was reasonable in all of the circumstances”. He also found that the loss of the security video was not so prejudicial to Mr. Janeiro’s right to full answer and defence that its loss impaired his right to receive a fair trial.

[64] The trial judge understood that in assessing the reasonableness of the steps taken, he should consider the relevance of the evidence. He concluded that the security video was of “little help” on the issue of identity and said, “the video’s usefulness to what would have been at the crux of the case is in my view largely peripheral”. He explained:

[The] sum total of what [the police] could glean with respect to identity from the video was not much at all. A male with a black sweater, an opinion he might be left hand dominant, and his approximate height. Specifically, they could not tell from the video weight, skin colour, or eye colour, or hair colour, or appearance of the face.

[65] The trial judge recognized that the security video may have shed light on the details of the balaclava, enabling the clerk’s evidence to be challenged, but concluded that “we do not know”, and “given the forensic evidence that is before the court, the balaclava is in my view a bit of a side issue”. As for the suggestion that the video might clarify whether the robber was wearing gloves, “whether or not the robber had gloves would not in my view change the relevance of the fingerprint on the bag”.

[66] He also found that “in any case, the video has been viewed by police officers who took notes and were available for cross-examination”.

Unreasonable Verdict

[70] A verdict will be unreasonable if it is one that a properly instructed trier of fact could not reasonably have rendered on the totality of the evidence ...

[71] Guidance has been given on the application of this standard in cases that depend wholly or substantially on circumstantial evidence: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 36. In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, Cromwell J. instructed:

Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence.

[72] ... A verdict will not be unreasonable on this standard if a trier of fact, acting judicially, could reasonably have been satisfied that the accused’s guilt is the only reasonable conclusion: R. v. Youssef, 2018 ONCA 16, 428 D.L.R. (4th) 612, at para. 4, aff’d 2018 SCC 49, [2018] 3 S.C.R. 259.

[73] This is a case that turns wholly on circumstantial evidence. Apart from whether the Crown proved that the object observed by the clerk was a “firearm”, the sole contested issue at trial was whether the Crown had proved beyond a reasonable doubt that Mr. Janeiro was the robber, and there was no direct evidence on this key question.

[74] Although the reasonableness of any conviction turns on the specific facts of the case, the decision in Mars is useful in considering the application of the unreasonable verdict test in a case that turns wholly or mainly on fingerprint evidence. In Mars, a conviction that depended on a fingerprint on a pizza box that had been used by robbers to entice the victims to open the door to their home was found to be unreasonable because the presence of the fingerprint alone was not evidence that the accused’s fingerprint came to be on the box in connection with the robbery. ...

[75] In R. v. D.D.T., 2009 ONCA 918, [2009] O.J. No. 5486, at para. 15, Epstein J.A. suggested a “two-stage approach” in reviewing the reasonableness of verdicts that depend on fingerprint evidence in identifying the perpetrator:

The first stage involves an examination of the reasonableness of the inference that the fingerprints were placed on the object with connection to the crime, at the relevant time and place. The second stage involves an examination of the soundness of the conclusion that the totality of the evidence and reasonable inferences available to the trial judge were sufficient to prove the appellant’s guilt beyond a reasonable doubt.

[82] Assuming that a trier of fact might reasonably disregard the clerk’s height estimate, which was materially inconsistent with Mr. Janeiro being the perpetrator, and accept DC Johnson’s height estimate, the most that could be said from the eyewitness evidence is that both Mr. Janeiro and the robber are white, young, males, possibly around the same height, and that the robber may have been left handed, as Mr. Janeiro is.

[83] Those similarities, of course, remain generic. Mr. Janeiro cannot be ruled out as the perpetrator if the clerk’s height estimate is disregarded, but the eyewitness description evidence contributes little in identifying him as the robber. As the trial judge observed in his decision, the “essential issue” of “identity” is largely informed by the scientific evidence, namely the fingerprint evidence and the DNA evidence.

[84] ... The fingerprint on the plastic bag used by the robber proved that Mr. Janeiro touched the bag, but it is incapable, on its own, of proving that he touched the bag in connection with the robbery. ...

[85] First, although the trial judge only referred to the one matching fingerprint in his Reasons for Judgment, there were in fact five fingerprints on the bag that were suitable for comparison. Only one fingerprint was linked by evidence to Mr. Janeiro. As the Crown fairly conceded during oral argument on appeal, the evidence does not eliminate the possibility that those other prints on the bag could belong to one or more other individuals who also touched the bag.

[86] Second, there was evidence from Cst. Dietrich that the robber was wearing gloves, a conflicting inference from retired Sgt. Ferrier derived from his own conduct that the robber must not have had gloves on, and testimony from the clerk that she believed he had gloves on but could not remember for certain. This conflict in the evidence is material because if the robber was wearing gloves, the prospectthat the robber’s fingerprints were placed on the bag during the robbery is reduced, if not eliminated. I therefore disagree with the trial judge’s conclusion that “whether or not the robber had gloves would not in my view change the relevance of the fingerprint on the bag”. ... [PJM Emphasis]

[88] I do not dispute that additional evidence can overcome the Mars problem. In Youssef, for example, Mr. Youssef’s DNA found on a knife left behind by the perpetrator could not alone link Mr. Youssef to the crime, but that deficit was overcome when additional DNA from Mr. Youssef was found on a t-shirt in the getaway car. ...

[89] The problem with the Crown’s attempt to use the DNA saliva evidence to accomplish a similar outcome in this case is that, unlike in Youssef and Wills, there is no evidence linking the additional evidence – the saliva on the sidewalk – to the robbery. This is not a case where the DNA was extracted from the crime scene or a known flight path, nor was it on an object or vehicle linked to the crime scene. The saliva was found approximately two hours after the robbery approximately 60 metres away from the donut shop on a public sidewalk where Mr. Janeiro could reasonably be expected to have been. Nobody observed the robber in that location either before or after the robbery. Put simply, the DNA put Mr. Janeiro on a public sidewalk in front of a business within metres of his home and his place of employment at some point in time on the evening or night of the robbery. It did not put him at the robbery or otherwise connect him to the robbery. [PJM Emphasis]

[94] The Crown seeks to overcome the absence of a connection between the DNA from the saliva and the robbery by emphasizing the unlikelihood of coincidence that Mr. Janeiro’s DNA would be found in saliva approximately 60 metres from the scene of a robbery in which Mr. Janeiro’s fingerprint was located on a plastic bag used by the robber. The flaw in this reasoning is significant. As indicated, there is absolutely no evidence that this saliva is linked to the robber, or the robbery, and no evidence that diminishes the realistic prospect that Mr. Janeiro, an 18-year old who lived and worked in close proximity to where the saliva was located, could have innocently been in that location when he spit. If the saliva cannot be linked to the robbery, it cannot stand as evidence that Mr. Janeiro was the robber. Moreover, it is entirely circular to rely on Mr. Janeiro’s fingerprint to infer that the saliva must have been connected to the robbery, only to then infer from the saliva that the fingerprint must itself have been connected to the robbery, as opposed to having been placed on the bag on a prior occasion unconnected to the robbery.

[96] ... I can explain in summary form why the verdict is unreasonable. Simply put, I am persuaded that it would not be reasonable for a trier of fact to be satisfied that the accused’s guilt is the only reasonable conclusion that arises in this case, where the accused’s fingerprint is identified along with four unidentified fingerprints as having been placed at some unknown time on a plastic bag used in the robbery; where the description of the robber is limited, indistinct and generic; where there is absolutely no other evidence linking the accused to the robbery; and where it is not suspicious for the accused to have possibly been present in the neighbourhood of the robbery around the time it occurred. [PJM Emphasis]

[97] I would set aside the convictions as unreasonable and substitute verdicts of acquittal.

The Lost Evidence Application

[105] In my view, the trial judge erred in denying the “lost evidence” Charter application. Although this issue may appear moot in light of the decision that I have already arrived at, it is not. As I will explain, I would remedy the “lost evidence” Charter breach I identify by drawing an inference contrary to the Crown that had the lost security video been available, it would not have assisted the Crown. This inference reinforces the unreasonableness of the verdicts that I have identified.

Legal Principles

[107] Where a Charter applicant has shown that disclosable evidence has been lost, a Charter breach contrary to s. 7 will be found unless the Crown has provided a satisfactory explanation for that loss, thereby demonstrating that an abuse of process has not occurred. The Crown may do so by establishing that the evidence has not been destroyed or lost by unacceptable negligence, that is, negligence that goes beyond mere negligence. This can be accomplished by showing that reasonable steps were taken in the circumstances to preserve the evidence, bearing in mind the relevance that the evidence was perceived to have at the time it was lost or destroyed: R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at paras. 20-22; R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 30.

[108] Indeed, the relevance or importance of the evidence is an important consideration in setting the degree of care expected. As the relevance of the evidence increases, so too does the degree of care required in preserving the evidence: La, at para. 21; Hersi, at para. 30. Similarly, as the relevance decreases, the required degree of care is reduced. In R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153, for example, before audiotapes of police interviews were destroyed, a decision had been made not to charge the accused. The investigation was reopened only years later. This reduced the reasonable perception of the importance of the evidence at the time it was destroyed, lowering the standard of care required.

[109] Alternatively, a Charter applicant will succeed even in the face of a satisfactory explanation for the loss or destruction of evidence if they establish that the lost evidence is so important that its loss undermines the fairness of the trial: La, at para. 24. This is a difficult hurdle. In Bero, at paras. 49, 52, Doherty J.A. made it clear that showing a reasonable possibility that the lost evidence could have assisted the defence is not enough to establish that the right to full answer and defence has been undermined. This is so even though the inability to determine whether the lost evidence was harmful, neutral, or helpful to the defence may arise because of the loss of the evidence by the police. In order to demonstrate irremediable prejudice when seeking a remedy, a Charter applicant must establish that the evidence would have played an important role in their defence. I see no reason why the same standard would not apply in determining whether a Charterbreach occurred on the basis that the loss of evidence undermined the fairness of the trial.

[111] If a breach is identified on either of the alternative bases I have just described, the second question – the appropriate remedy – arises. ...

The Trial Judge Erred in Finding There Was No Charter Breach

[112] In my view, the trial judge made three errors in determining that the Crown had shown that the police had taken reasonable steps to preserve this evidence and had not lost the evidence as the result of unacceptable negligence.

[113] First, he once again misapprehended the evidence. He found that before he placed the exhibit bag containing the security video into a cabinet in the CIB office, PC Fawcett labelled it. That was not the evidence. PC Fawcett said he did not label the brown paper exhibit bag. This was therefore a case where the security video was stored in an unmarked bag, not a case where the contents of the bag could be readily identified.

[115] The trial judge formed the view that the video was of “little help” and “largely peripheral” because he incorrectly evaluated its relevance based solely on whether the video showed identifying detail of the robber. I make no quibble with the apparent shortcomings of the security video in disclosing identifiable features of the robber. However, the security video may have informed the degree of confidence that could be put in DC Johnson’s height estimate. More importantly, as the trial judge recognized, the security video may have clarified whether the robber was wearing gloves or provided information relevant to whether the balaclava that was found was the one worn by the robber.

[116] The trial judge considered the role that the video would play in clarifying whether the robber was wearing gloves to be irrelevant to the probative value of the fingerprint. I have already expressed my disagreement with that suggestion; given that the probative value of the fingerprint evidence turned on a determination of whether there was evidence that could link the fingerprint to the robber, this detail was important.

[117] The trial judge also concluded that the unavailability of the video depicting the balaclava was unimportant because “the balaclava is in my view a bit of a side issue.” With respect, the question of whether the balaclava that was found was the same one worn by the robber was not a side issue. It was a central issue. If there was a reasonable doubt about whether the balaclava found with fresh vomit inside from a third party was the balaclava that the robber wore, the balaclava evidence would have been powerful exculpatory evidence. There is no question that the security video would have provided the trier of fact with observations that could have assisted them in determining whether the balaclava DNA evidence could be disregarded, or whether it raised a reasonable doubt about Mr. Janeiro’s identity as the robber.

[118] Third, the trial judge erred in concluding that the notes that the police officers took when watching the security video diminished the importance of preserving the security video itself. That conclusion is not reasonably available given that the police notes gave rise to disagreement between the officers on the important question of whether the robber was wearing gloves at the time of the robbery.

[119] Moreover, I take issue with the trial judge’s conclusion that “several police officers viewed the video and took notes with an eye to gleaning from it any information it could yield as to the identity of the robber”. PC Fawcett took no notes. DC Johnson watched only part of the security video to look for persons of interest known to him. Apart from describing the pants worn by the robber, DC Johnson gave no evidence from his notes about the description of the robber. ... The notes of the officer’s observations of the security video, such as they were, do not materially diminish the importance of preserving the security video itself. It was contrary to the evidence for the trial judge to find so.

[120] Given the material factual and legal errors made by the trial judge, it is not appropriate to defer to his conclusion that PC Fawcett took reasonable steps to preserve the security video. Based on the evidence, even in light of the factual findings made by the trial judge, I would find that Mr. Janeiro established a s. 7 Charter breach on the basis that the loss of the evidence was not satisfactorily explained.

[121] I begin with the fact that the security video was important evidence that required care in its preservation. As I say, it depicted the entire robbery, and although it was not in high definition, the coloured security video had sufficient resolution to enable DC Johnson to determine that the robber’s finger was on the trigger of the “gun”. The fact that the investigation was inactive does not diminish the importance of this evidence since the investigation remained open in the expectation that new evidence could emerge.

[122] I agree with the trial judge that no issue can be taken with PC Fawcett’s decision to keep the security video in a locked drawer in his office prior to his transfer. Problems emerged when PC Fawcett left the unit and decided to preserve important evidence relating to the serious charge of robbery with a firearm by putting it into an unmarked brown paper bag along with unrelated videos from other investigations and then placing that unmarked brown paper bag into a cabinet in the CIB office, accessible to all police officers. This was far removed from secure or responsible storage. There is no evidence that the bag was filed in an orderly way. It was placed in a “communal filing cabinet” ordinarily used for case files. Moreover, the contents of the bag were not catalogued, and the bag was not labelled to assist in the ready identification of its contents. And those contents were mixed randomly instead of being segregated according to case. Given that the bag was unmarked and filled with videos from unrelated cases, there was every possibility that, if they could find it, numerous officers connected to various investigations would have reason to disturb, or even take or move the bag in connection with their own matters.

[123] PC Fawcett chose this method of storage for important evidence notwithstanding the availability of a controlled property room where evidence is logged, and in the face of his knowledge that it was “procedure” to store evidence there. For some unexplained reason, he believed that digital evidence was somehow different, contrary to DC Thomson’s testimony that “everybody” stored their video evidence in the property room. Although I believe it to be a difficult finding to make on the evidence I have just described, I do accept that it was open to the trial judge to find, as he did, that there was no specific policy that video evidence was to be stored in the property room and that “it was left to each officer” to determine how to store video evidence. However, that does not alter my view that the choice that PC Fawcett made was not reasonable in all the circumstances. Much more should readily be expected of police officers, who control important evidence on which individual liberty will be determined.

[124] In my view, given the importance of this evidence, the steps that PC Fawcett took to preserve that evidence were more than merely negligent, and resulted in the loss of evidence that may well have assisted Mr. Janeiro in his defence. In all the circumstances, I would find that the loss of the evidence breached s. 7 of the Charter. [PJM Emphasis]

[125] I would not, however, stay the proceedings based on this breach. A stay is a remedy of last resort, reserved for the clearest of cases where important evidence has been deliberately destroyed ...

[126] An alternative remedy is to invite the trier of fact to infer that the lost evidence would not have assisted the Crown: Hersi, at paras. 35-36. I would apply that remedy in this case. I would infer that the security video would not have assisted the Crown in showing that the robber was not wearing gloves, or in demonstrating that the balaclava differed from the balaclava that was put into evidence, or in providing verification for the legitimacy of DC Thomson’s height estimate. These inferences reinforce the finding I have already made that Mr. Janeiro’s convictions are unreasonable.

Conclusion

[127] I would allow the appeal, set aside Mr. Janeiro’s convictions, and substitute verdicts of acquittal.

R v Lynch, 2022 ONCA 136

[February 16, 2022] Dangerous Offender by Failure to Control Sexual Impulse [Reasons by K. van Rensburg J.A., with M. Tulloch and I.V.B. Nordheimer JJ.A. concurring]

AUTHOR’S NOTE: Dangerous offender proceedings are usually a very difficult process where imperfect science is deployed to attempt to predict the intractability of human criminal behaviour. This particular case focused on the s.753(1)(b) and the alleged failure of the offender here to control his sexual impulses by committing criminal acts involving pimping behaviour. The Court of Appeal overturned the dangerous offender tag on the basis that this kind of offending does not show a failure to control sexual urges. It is a serious crime, but does not fit within the ambit of s.753(1)(b).

Overview

[1] The appellant appeals his designation as a dangerous offender and the imposition of an indeterminate sentence. The designation and sentence followed the appellant’s conviction for sexual assault and various prostitution-related offences in relation to D.B., who was 14 years old at the time of the offences. The sentencing judge designated the appellant a dangerous offender after concluding that the elements under s. 753(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46, had been satisfied: the appellant had been convicted of a sexual assault which was a “serious personal injury offence” as described in para. (b) of the definition of that expression in s. 752; and by his conduct in any sexual matter he had shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through a failure in the future to control his sexual impulses.

[2] The appellant submits that, in finding him to be a dangerous offender under s. 753(1)(b), the sentencing judge erred by relying on conduct that did not demonstrate a failure to control his sexual impulses. The appellant also contends that the sentencing judge erred in imposing a dangerous offender designation and indeterminate sentence in the face of evidence that his risk of sexual reoffence was manageable.

[3] The appellant asks this court to vacate the dangerous offender designation, and instead designate him a long-term offender, and impose a fixed sentence of 6.5 years’ imprisonment, together with a long-term supervision order (“LTSO”) for ten years.

[4] For the reasons that follow, I would allow the appeal. The sentencing judge erred in concluding, on the evidence before her, that the appellant had shown a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses. The conduct relied on by the sentencing judge consisted of the appellant’s activities in relation to prostitution-related offences, including a sexual assault committed during the predicate offences. Although the appellant’s criminal record included one prior offence of sexual assault, which involved a failure to control sexual impulses, the other evidence, including the opinion of the psychiatrist, Dr. Pearce, did not support this necessary element for a designation under s. 753(1)(b). ... the Crown on appeal relies only on the provision invoked by the sentencing judge, s. 753(1)(b).

[5] I would set aside the dangerous offender designation and designate the appellant a long-term offender. I would impose a determinate sentence of 6.5 years’ imprisonment and an LTSO for ten years. ...

Facts

The Predicate Offences

[6] The predicate offences were alleged to have occurred during a six to nine-month period between late 2004 and May or June of 2005. It was alleged that the appellant had procured D.B., a young teenager, and during their association, had sexually assaulted her and committed other offences.

[7] D.B. testified that she knew the appellant as “Lucky” ... On one occasion, after D.B. had bought a dress, again without Lucky’s permission, he forced non-consensual vaginal intercourse on D.B., after first unsuccessfully attempting anal intercourse. He told her he was doing it to punish her. D.B. testified that there had been other incidents of non-consensual sexual intercourse, where she felt obligated to comply because the appellant “was putting a roof over her head”. ...

[8] After spending several months with Lucky as her pimp, D.B. returned to her former pimp, ...

[10] The appellant was convicted of four offences committed against D.B.: (1) aiding, abetting, and compelling D.B. to engage in prostitution (s. 212(1)(h) of the Criminal Code); (2) living off the avails of the prostitution of D.B. (s. 212(2.1)(b)); (3) sexual assault (s. 271); and (4) uttering threats (s. 264.1(1)).

Dangerous Offender Application

[12] At the start of the sentencing hearing in May 2010, the Crown indicated its intention to proceed with a dangerous offender application. The sentencing judge made a s. 752.1(1) order for the in-custody assessment of the appellant. The assessment was conducted by Dr. Mark Pearce, a staff psychiatrist at the Centre for Addiction and Mental Health in Toronto. ...

[15] It is unnecessary to set out a detailed summary of the sentencing judge’s comprehensive reasons. What is important for the appeal is to highlight the evidence she considered in concluding that the appellant was a dangerous offender within the meaning of s. 753(1)(b), and that an indeterminate sentence was required, and to summarize her findings and analysis based on that evidence.

[17] According to the evidence at the hearing, the appellant’s childhood was essentially unremarkable. He was raised by his mother after his parents separated when he was 12, and he had maintained a good relationship with his mother and older brother. The appellant completed some years of high school. There was no youth record, and no suggestion of any substance use issues or significant psychiatric history.

[19] The sentencing judge referred to the appellant’s lengthy criminal record which began in 1989, when he was 18 years old. The circumstances of three sets of charges were relevant to the dangerous offender application:

• On June 9, 1997 the appellant was convicted of various offences involving S.M., a 19-year-old female sex worker, which took place in January 1996. ... He then forced vaginal intercourse on S.M., without a condom, while continuing to verbally abuse her.
• On October 15, 1997 the appellant escaped the Bath Institution and went to the workplace of his former girlfriend, H.D., where he waited for her to exit. After checking her cellphone and seeing her new partner’s name, the appellant assaulted H.D., pulling her hair and smashing the cellphone into her face. ... He turned himself in to the police the next day. On March 25, 1998 he pleaded guilty to forcible confinement, ...
• On March 22, 2007 the appellant pleaded guilty to and was convicted of several prostitution-related offences in relation to two teenaged girls, T.B. and C.S. ... The appellant had offered C.S., who was 17, a job where she would earn $1,000 to $2,000 per week, asked to be her pimp and then instructed her on how to do the job. T.B., who was 14 years old, was introduced to the appellant by C.S. T.B. was sexually intimate with the appellant and believed he was her boyfriend. After instructing her on how to interact with clients, the appellant took T.B. to an apartment where she worked as an escort, offering sexual services. ... According to the sentencing judge, the documentation from the appellant’s sentencing on these offences indicated that he had “groomed his victims and preyed on their innocence”, it described the appellant as manipulative and dangerous, and noted that the victims were terrified of him. The sentencing judge also observed that the appellant showed no remorse or recognition of the harm he caused his young victims when he discussed these past offences with Dr. Pearce.

[21] The sentencing judge noted that there was much evidence about the appellant’s past and current conduct targeted toward the luring, manipulation, and recruitment of young females in addition to the incidents related in his criminal record....

[22] In October 2011, correctional officers found phonebooks and notes in the appellant’s possession, leading to a search of his cell. The books listed more than 60 female names, referring to some as “bitches”, a term a correctional officer testified he had heard used by inmates involved in prostitution rings. ...

[24] There was other evidence about the appellant’s behaviour while incarcerated. Evidence from the institutional authorities indicated that the appellant was intimidating and manipulative with other inmates, but was typically “friendly, smooth, polite and cooperative” with authorities, particularly where there was an advantage to be gained.

[25] ... Noting that there were no actuarial tools to predict the risk of future prostitution-related offences, he relied on his clinical judgment to assess the appellant’s risk in relation to such offences.

[26] Dr. Pearce was satisfied the appellant did not have a mental illness or any substance abuse issues. The appellant did not have a deviant sexual disorder or any clear conduct disorder, although he likely met the criteria for a mixed personality disorder, with anti-social and narcissistic personality disorder attributes.

[27] Based on the results of various actuarial tests, Dr. Pearce concluded that the appellant was in the moderate to high risk category for reoffending in a sexual offence. And, based on his clinical assessment, he concluded that the appellant was at a moderate to high risk of future prostitution-related charges. This was based on the pattern of adolescent girls who were strangers to the appellant being quickly victimized in rapid succession, suggesting a more likely repetition and greater number of victims in the future.

[28] As for the possibility of controlling the appellant’s risk for reoffence in the community, Dr. Pearce noted as positive factors the recognition that as sexual offenders enter into their sixth decade, there is a dramatic reduction in their propensity for reoffence (since the appellant was in his fifth decade at the time); the appellant’s ability to complete programming if motivated; and the availability of supports for him in the community. The fact that he had a relationship with his daughter was also positive. Dr. Pearce noted as a negative factor the appellant’s poor record of responding to past supervision. The appellant’s past work history and vague aspirations for future employment suggested a guarded prognosis.

[29] Dr. Pearce’s opinion about the possibility that the appellant would be manageable in the community on the expiry of his LTSO was “somewhat mixed”. It was “possible or even likely” he could be managed under an LTSO as a sexual offender, based on his advancing age, the absence of a definitive paraphilic diagnosis, and the likelihood of incarceration for the next several years. As for the risk of the appellant returning to pimping, Dr. Pearce was “much less optimistic about risk managing him”. He had significant concerns about the risk to the community even under an LTSO because of the size of the potential victim pool, the fact that the appellant was so well-equipped to function as a pimp, and his activities while in custody. Indeed, Dr. Pearce testified that he was “at a loss to create a plan for [the appellant] to keep him out of trouble”.

The Dangerous Offender Analysis at Sentencing

[32] The sentencing judge stated that there was no issue on the first prong of the test: “[The appellant] clearly failed to control his sexual impulses in the commission of the sexual assault on D.B. In a rage he tried to force anal sex on D.B. as punishment, and when that did not succeed he raped her vaginally, despite her cries begging him to stop”.

[33] In addressing the second prong, the sentencing judge rejected defence counsel’s argument that there was no reliable evidence on which the court should conclude the appellant by his conduct in any sexual matter had shown a likelihood of causing injury, pain or other evil to others through failure in the future to control his sexual impulses.

[35] ... She noted that the appellant had provided no plan or strategy for the eventual control of his risk, and Dr. Pearce had testified he was “at a loss to create a plan for [the appellant] to keep him out of trouble”. The appellant’s ability to deceive and manipulate made it effectively impossible to control the risk he posed if released into the community.

Grounds of Appeal

[39] The appellant contends that the sentencing judge made two reversible errors. First, he says that, at the designation stage, the sentencing judge erroneously relied on conduct that did not demonstrate that he was incapable of controlling his sexual impulses in the past and future, to find him a dangerous offender under s. 753(1)(b) of the Criminal Code. Second, the appellant asserts that the sentencing judge improperly exercised her discretion (1) to impose a dangerous offender designation at the designation stage; and (2) to impose an indeterminate sentence at the penalty stage, in the face of evidence that his risk of sexual reoffence was manageable.

[40] It is sufficient for the determination of this appeal to address only the first ground. I will address the sentencing judge’s error in designating the appellant a dangerous offender under s. 753(1)(b), where the evidence did not demonstrate the likelihood of harm through failure in the future to control his sexual impulses. [PJM Emphasis]

Analysis

[42] In fact, prostitution-related offences have been the basis for dangerous offender applications in the past. See, for example, R. v. F.E.D., [2009] O.J. No. 819 (S.C.J.), aff’d 2012 ONCA 800, [2012] O.J. No. 5399, where the designation was made under s. 753(1)(a), and R. v. Burton, 2018 ONCJ 153, [2018] O.J. No. 1250, where a designation under s. 753(1)(a) was refused in favour of an LTO designation, as no “pattern of behaviour” was made out.

[46] The appellant submits that there was no evidence of a pattern of behaviour to suggest a lack of sexual impulse control. There was only one such incident: the sexual assault on S.M. Even if the appellant demonstrated a failure to control his sexual impulses in the sexual assault on D.B., this offence occurred ten years after the sexual assault on S.M. and in very different circumstances. Moreover, in addressing his prospective risk, the sentencing judge relied on his record of pimping activities, which, according to the appellant, “did not demonstrate an inability to control his sexual impulses, any more than a drug dealer’s trafficking demonstrates an inability to control a drug addiction.” The other evidence relied on by the sentencing judge did not support the likelihood of the appellant causing harm in the future because of a failure to control his sexual impulses.

[48] It is important to preface the consideration of this issue – that is, whether the elements for a s. 753(1)(b) dangerous offender designation were made out on the evidence relied on by the sentencing judge – with the understanding that the dangerous offender provisions must be interpreted strictly so as to remain within their constitutional bounds. In Boutilier, Côté J., writing for the majority, confirmed that the 2008 amendments to the dangerous offender provisions, like the 1977 regime they replaced, target “a small group of persistent criminals with a propensity for committing violent crimes against the person”: at para. 3. The careful tailoring of the legislation to limit its reach is fundamental to its constitutionality: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 339; Boutilier, at paras. 28, 34.

[49] Section 753(1)(b) is addressed at a particular kind of offender – one who has engaged in a pattern of behaviour showing a failure to control sexual impulses, and who because of that, constitutes a future risk. ...

[50] In Boutilier, the Supreme Court dealt with a dangerous offender designation under s. 753(1)(a)(i) of the Code, which expressly speaks of the need for a “pattern of repetitive behaviour”. The court affirmed, however, that all cases under s. 753(1) require that the offender engaged in a pattern of dangerous conduct. The court noted that s. 753(1)(b) required “in addition to evidence of a pattern of past conduct, an independent assessment of future risk”: at para. 38. Accordingly, to support a designation under s. 753(1)(b), after proving that the offender has been convicted of an offence under ss. 271, 272 or 273 of the Code, the Crown must prove, beyond a reasonable doubt, both a pattern of offending in the past showing a failure to control sexual impulses (which can be found in the circumstances of the predicate offence or the offender’s “conduct in any sexual matter”), and a prospective risk of harm to others through a failure to control sexual impulses.

[51] In many of the reported cases of dangerous offender designations under s. 753(1)(b) or its equivalent, there was no dispute about whether the offender’s past conduct reflected a failure to control sexual impulses, and there was clear evidence of a pattern of such conduct. ...

[52] In a recent decision, the British Columbia Court of Appeal, in allowing an appeal from a dangerous offender designation and directing a new hearing, addressed the “failure to control sexual impulses” element of s. 753(1)(b), and in particular the evidence relevant to the assessment of the offender’s future risk of reoffending. ...

[53] Fitch J.A., for the majority, concluded that the sentencing judge erred in relying on a prior conviction for manslaughter in her consideration of the risk of reoffence in the context of s. 753(1)(b), where the Crown had conceded that there was no evidence that the manslaughter offence was driven or motivated by a sexual impulse. Referring to authorities from across Canada, he observed that “the assessment of future risk must be tied to the past type of criminal behaviour anchoring the application that an offender be designated ‘dangerous’”, and that this principle has also been applied in the context of dangerous offender applications under s. 753(1)(b): at paras. 220-224. He noted that the predicate offence “must form part of a pattern of behaviour that gives rise to the likelihood that the same type of behaviour will continue in the future”, and that “the Crown must prove beyond a reasonable doubt the likelihood that the offender’s past failure to control his or her sexual impulses will manifest itself in the future.”: at para. 225.

[56] There is no question that the evidence supported the conclusion that the appellant was likely to continue to engage in prostitution-related activities, including the procurement and exploitation of young women. This was the risk that was emphasized by Dr. Pearce, and that the sentencing judge concluded was supported by the voluminous evidence at the dangerous offender hearing. This was not, however, evidence that was tied to the type of criminal behaviour that anchored the dangerous offender application: the commission of sexual offences demonstrating a failure to control sexual impulses. [PJM Emphasis]

[58] I agree with the appellant that the central concern here is that the sentencing judge, in assessing his future risk and the ability to control such risk in the community, conflated his conduct in sexual matters, including prostitution-related activities, with an inability to control sexual impulses. ...

[59] As such, in concluding that the appellant met the definition of a “dangerous offender” under s. 753(1)(b), the sentencing judge did not give proper effect to the “failure to control sexual impulses” requirement in her assessment of the appellant’s risk of reoffence. For these reasons I would set aside the dangerous offender designation.

The Appropriate Sentence

[60] The appellant and the Crown agree that, in the event that the dangerous offender designation is set aside on appeal, this court should impose a determinate sentence followed by an LTSO of ten years. ...

[67] For these reasons, I would allow the appeal. I would set aside the designation of the appellant as a dangerous offender, and instead designate him a long-term offender. I would sentence the appellant to a custodial sentence of 6.5 years, to be followed by a period of ten years under an LTSO.

R v O'Neil, 2021 ONSC 981

[February 10, 2022] Dangerous Driving Causing Death - Marked Departure, Mens Rea and the Challenge of a Blinding Sun [Justice Mews]

AUTHOR’S NOTE: Driving is inherently dangerous and sometimes accidents happen. Criminal law must be careful not to penalize the morally innocent. Here a driver of a semi was driving down a highway when his view was very likely obstructed by direct sunshine in his eyes. Consequently he was unable to see traffic ahead of him in time to stop. The factor of a blinding sunshine in the path of travel undermined the Crown's ability to prove a marked departure from the standard of a prudent driver beyond a reasonable doubt. 

Overview

[3] At 6:52 a.m. there was a line of stopped or slow-moving eastbound traffic waiting to leave the highway at exit 632. That is when an eastbound International transport truck operated by the defendant, Robbie O’Neil, failed to stop, and violently struck two vehicles which were in the line. The front of Mr. O’Neil’s tractor-trailer impacted the rear of each of a Chevrolet Orlando crossover style SUV operated by Ross Moulton, and a Chevrolet Cruze sedan operated by Ryan Donlon. As a result, the Orlando was crushed between the trailer part of the tractor-trailer combination and the median wall separating the east and westbound lanes of the highway. The Cruze was spun round and came to a rest against the median, in front of the tractor unit.

[4] Mr. Moulton, who was the sole occupant of the Orlando, was deceased at the scene. Mr. Donlon, who was also alone in his vehicle, received only minor injuries. Mr. O’Neil was uninjured.

[5] Mr. O’Neil now stands charged with the offence of operating a motor vehicle in a manner that was dangerous to the public, thereby causing the death of Ross Moulton, contrary to s. 249(4) of the Criminal Code of Canada.

The Law

(a) The Actus Reus

 The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a 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 that at the time is or might reasonably be expected to be at that place”.

(b) The Mens Rea

The trier of fact must also be satisfied beyond a 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 a marked departure from the standard of care that a 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 a 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.

Analysis and Findings

[50] Driving is an inherently dangerous and complex activity. However, it is one that the prosocial needs of society tolerates. As Charron J. wrote at para. 34 in Beatty, even the most able and prudent driver will, from time to time, suffer from momentary lapses of attention. Such lapses may result in a conclusion that the conduct, viewed objectively, falls below the standard expected of a reasonably prudent driver. In those circumstances, as already explained, the actus reus of the offence of dangerous driving causing death will be met. However, the law does not lightly brand such a person as a criminal. Only if the Crown has also proved beyond a reasonable doubt that the conduct amounts to a marked departure from the norm expected of a reasonably prudent driver will a finding of guilt be recorded.

[51] Furthermore, in having regard to all of the circumstances, the tragic consequences of Mr. O’Neil’s driving are not a relevant consideration. The law makes clear that it is the manner of an accused’s driving that should be considered, not the consequences of the crash (R. v. Tabanao, 2020 ONSC 3501, at para. 415).

[52] As the Crown acknowledges, the case law varies widely because these cases are so fact dependent.

[56] Although Mr. Armstrong described the sun as blinding at times that morning, by putting his visor down, sunglasses on and adjusting his seat, he was able to mitigate its effects. He had started to slow down for the traffic ahead of him about half a kilometre out.

[58] The defence places considerable emphasis on the conclusions of Mr. Williamson and, in particular, on the issue of whether the rising sun was a factor.  Defence counsel submitted that to the extent that the conclusions of Sgt. Martin and Mr. Williamson differed, Mr. Williamson’s opinions should be preferred.

[59] The defence reminded the court that the burden on the Crown to prove criminal liability in cases of dangerous driving is an onerous one.  This is particularly so because many dangerous driving cases turn on circumstantial evidence.  The Crown must show that the only rational conclusion to be drawn from the circumstances is a finding of guilt.  In this case, unless the only inference to be drawn from the circumstances is that Mr. O’Neil had to have been aware that the traffic ahead of him had slowed, he should be acquitted.  While fanciful or implausible explanations will not meet the test, a reasonable alternative explanation will (R. v. Villaroman, 2016 SCC 33 (CanLII), [2016] 1 SCR 1000, at para. 37).

Anyone who has driven a vehicle directly into a setting sun, has experienced what at times can be the debilitating effect of the sun’s glare on their ability to fully gauge their surroundings.  There are moments when the setting sun can amount to far more than a mere nuisance.  It can represent a very real distraction to drivers…It is unquestionably a circumstance that must be considered alongside all others present, when assessing the manner of driving…it is no less a relevant environmental circumstance than the dryness of the roads, of the clarity of the sky.  The only difference is that the setting sun is an adverse condition that would render aspects of driving more challenging.  It is a relevant consideration when pondering what the reasonable driver would do in the circumstances.

Actus Reus

[65] I am prepared to accept that, as was the case with Mr. Donlon, Mr. O’Neil had not seen the one sign in English, some twenty kilometres to the west, warning of the highway closure and detour ahead. Or, if he had seen the sign, it had long since ceased to register with him. I am also prepared to accept that one of the circumstances to be taken into account in determining whether Mr. O’Neil’s driving, viewed objectively, was dangerous to the public, was the effect of the sun. It seems highly probable from the evidence that as he came round the slight bend 600 metres from the area of impact, the sun was just above the horizon and shining directly in his eyes in a cloudless sky and that it was, to use the words of Mr. Armstrong, “blinding at times”.

[67] As a matter of common sense, it seems to me that these are things that a reasonable driver would do. There is no evidence in the field notes, or elsewhere in the record, as to the position of visors in the cab of Mr. O’Neil’s vehicle. Nor is there any indication of whether, like Mr. Donlon and Mr. Armstrong, he was wearing sunglasses.

[68] However, I would accept, largely as a matter of common sense, that any driver, let alone a professional driver, driving east on Highway 401 just after dawn on a clear day, could anticipate that sun might be a factor. A reasonable driver would use visors and/or sunglasses to mitigate the effects. And, depending on the circumstances, slow down. A reasonable inference to draw from the circumstances in this case is that either Mr. O’Neil did not take any of these steps to mitigate the effects of the sun, which had already been up for about twenty minutes by the time the accident occurred, or if that he had done such things they had not been effective.

[69] I am therefore satisfied that the actus reus of the offence is made out.

Mens Rea

[71] There is no evidence about Mr. O’Neil’s actual state of mind at the time of the accident.  However, the existence of the required objective mens rea may be inferred from the fact that he drove in a manner that constituted a marked departure from the norm.  This requires an examination of all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving.  As Cromwell J. explained in Roy, at para. 40:

The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving.  The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity:  Beatty, at para. 37.

[72] I accept the opinion of Mr. Williamson that a combination of the inherent difficulty in determining whether traffic 600 to 800 metres ahead is stopped or moving slowly, combined with the temporary blinding effect of the sun, could explain Mr. O’Neil’s failure to stop in time.

[74] ... In the absence of any evidence of other distractions, mechanical failings, loss of consciousness or driver fatigue, I accept as possible that Mr. O’Neil failed to apprehend and appropriately react to the sudden challenge of a blinding sun after he came past the slight bend and knoll in the highway.  That possibility is supported by the evidence and by the opinion of Mr. Williamson.  It is more than a fanciful possibility or an implausible explanation.  It raises a reasonable doubt as to whether Mr. O’Neil’s driving displayed a marked departure from the standard of care of a reasonable person in the circumstances.  In short, the evidence does not, in my view, warrant a finding of criminal liability.

[76] The requirement that, to constitute criminal conduct, the care exhibited by an accused must constitute a marked departure from the norm, operates so that only a lack of care which is serious enough to merit criminal punishment will lead to a conviction.

[78] Accordingly, I find him not guilty on the charge against him.

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