R. v. Alves (L.M.), (2014) 442 Sask.R. 69 (CA)

• Judge: Lane, Herauf and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 26, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 442 Sask.R. 69 (CA);2014 SKCA 82

R. v. Alves (L.M.) (2014), 442 Sask.R. 69 (CA);

    616 W.A.C. 69

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AU.018

Her Majesty the Queen (appellant) v. Luis Manuel Alves (respondent)

(CACR2353; 2014 SKCA 82)

Indexed As: R. v. Alves (L.M.)

Saskatchewan Court of Appeal

Lane, Herauf and Whitmore, JJ.A.

August 5, 2014.

Summary:

The accused was charged with dangerous driving causing bodily harm, contrary to s. 249(3) of the Criminal Code.

The Saskatchewan Court of Queen's Bench found the accused not guilty. The Crown appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 1393

Offences against person and reputation - Motor vehicles - Dangerous driving - Intention or mens rea - [See Criminal Law - Topic 1394 ].

Criminal Law - Topic 1394

Offences against person and reputation - Motor vehicles - Dangerous driving - Elements of offence - The accused was acquitted on a charge of dangerous driving causing bodily harm, contrary to s. 249(3) of the Criminal Code - On appeal, the Crown asserted, inter alia, that the trial judge had erred in law in mistaking a question of fact (the speed at which the accused was driving) as an element of the offence - The Saskatchewan Court of Appeal dismissed the appeal - The issue was whether the trial judge had erred by applying the incorrect mens rea and actus reas to the offence - Despite the trial judge's repeated and unfortunate statements that the accused's speed had to be proven beyond a reasonable doubt, his analysis suggested that he had simply misspoken - He had not confused an issue of fact with either the actus reas or the mens rea of dangerous driving - The trial judge had recognized and applied the correct actus reas - The Crown's case had been built around the issue of speed - By stating that the accused's speed had to be proven beyond a reasonable doubt, the trial judge was not mistaking the mens rea analysis, but was simply conducting his mens rea analysis in response to the way in which the Crown had built its case - See paragraphs 21 to 31.

Criminal Law - Topic 1395

Offences against person and reputation - Motor vehicles - Dangerous driving - Evidence and proof - The accused was acquitted on a charge of dangerous driving causing bodily harm, contrary to s. 249(3) of the Criminal Code - On appeal, the Crown asserted, inter alia, that the trial judge had erred in law by subjecting individual pieces of evidence to the criminal standard of proof, resulting in a piecemeal consideration of only the evidence that was proven beyond a reasonable doubt - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge had erred in applying the criminal standard of proof to the different pieces of evidence related to the accused's speed at the time of the accident - The trial judge had also emphasized that he was not convinced beyond a reasonable doubt that the accused's speed was higher than 93 to 99 kilometres per hour (kph) - Evidence from the Crown and the defence had established a range of speeds from 93 kph to 200 kph - In focussing only on the lowest estimate, which was the only one proven beyond a reasonable doubt, the trial judge failed to consider the different pieces of evidence as a whole - This was an error of law - However, the Crown's case was predicated on excessive speed - Without proof of excessive speed, there were no other factors in the accused's driving that were dangerous as defined by law - Despite the error in law, a new trial was not warranted because the Crown had not established with a reasonable degree of certainty that the acquittal might have been affected by the error - See paragraphs 39 to 52.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Criminal Law - Topic 4868 ].

Criminal Law - Topic 4802

Appeals - Indictable offences - General principles - Burden on Crown appellant respecting errors by trial judge - The accused was acquitted on a charge of dangerous driving causing bodily harm, contrary to s. 249(3) of the Criminal Code - The Crown appealed - The Saskatchewan Court of Appeal discussed the standard of review, concluding that "the Crown must satisfy this Court of two things: first, the Crown must prove on the standard of correctness that an error of law was made. Second, the Crown must prove that 'the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal.' While the Crown's onus is a heavy one, the Crown is not required to prove that the outcome of the trial would necessarily have been different but for the error or errors of law." - See paragraphs 11 to 16.

Criminal Law - Topic 4802

Appeals - Indictable offences - General principles - Burden on Crown appellant respecting errors by trial judge - [See Criminal Law - Topic 1395 ].

Criminal Law - Topic 4804

Appeals - Indictable offences - General principles - Jurisdiction or review of trial jurisdiction - The accused was acquitted on a charge of dangerous driving causing bodily harm, contrary to s. 249(3) of the Criminal Code - On appeal, the Crown questioned the qualifications of Constable Low, who gave expert opinion evidence regarding the accused's rate of speed - Low had originally been a Crown witness - The Crown suggested that, if a new trial was ordered, it might be appropriate for the court to express an opinion concerning the admissibility of Low's opinion evidence or the weight it should be given if admitted - The Saskatchewan Court of Appeal, having dismissed the appeal, stated, "While the admissibility of evidence is a question of law and is therefore reviewable by this Court on an appeal from an acquittal under s. 676(1)(a) of the Criminal Code, the Crown is not allowed to raise arguments on appeal that it had not raised at trial" - The Crown's submissions constituted a fundamentally different position on Low's qualifications from those that the Crown adopted at trial - The Crown was not entitled on appeal to resile from its position on this issue - Further, the weight to be given to evidence was a question of fact - The court lacked jurisdiction on an appeal from an acquittal to rule on the weight that Low's testimony should receive in a new trial - See paragraphs 53 to 58.

Criminal Law - Topic 4828

Appeals - Indictable offences - Right of appeal - By Crown - [See Criminal Law - Topic 4804 ].

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - [See Criminal Law - Topic 4804 ].

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - [See Criminal Law - Topic 1395 and Criminal Law - Topic 4804 ].

Criminal Law - Topic 4868

Appeals - Indictable offences - Grounds of appeal - Failure to consider evidence - The accused was acquitted on a charge of dangerous driving causing bodily harm, contrary to s. 249(3) of the Criminal Code - On appeal, the Crown asserted, inter alia, that, as a result of mistaking speed for an element of the offence, the trial judge had erred in law by failing to consider relevant evidence - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge was very clearly aware of the evidence that the Crown submitted had received inadequate consideration - While the Crown had argued that the trial judge's reasons did not make adequate findings of fact, the trial judge was not obliged to refer to every piece of evidence - Nor was the trial judge obligated to explain exactly how each piece of evidence was weighed or considered - See paragraphs 32 to 38.

Criminal Law - Topic 4944

Appeals - Indictable offences - New trials - When available - General - [See Criminal Law - Topic 1395 ].

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of the Court of Appeal - Appeal from an acquittal - [See Criminal Law - Topic 4804 ].

Cases Noticed:

R. v. Despins (D.A.) (2007), 299 Sask.R. 249; 408 W.A.C. 249; 2007 SKCA 119, refd to. [para. 12].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 13].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 14].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 15].

Johnson v. R., [1975] 2 S.C.R. 160, refd to. [para. 21].

R. v. Ciglen, [1970] S.C.R. 804, refd to. [para. 21].

R. v. Beatty (J.R.), [2008] 1 S.C.R. 49; 371 N.R. 119; 251 B.C.A.C. 7; 420 W.A.C. 7; 2008 SCC 5, refd to. [para. 22].

R. v. Roy (R.L.), [2012] 2 S.C.R. 60; 430 N.R. 201; 321 B.C.A.C. 112; 547 W.A.C. 112; 2012 SCC 26, refd to. [para. 22].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 33].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142, refd to. [para. 34].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81, refd to. [para. 34].

R. v. Penno, [1990] 2 S.C.R. 865; 115 N.R. 249; 42 O.A.C. 271, refd to. [para. 54].

R. v. Varga (E.) (1994), 72 O.A.C. 141; 90 C.C.C.(3d) 484 (C.A.), refd to. [para. 54].

Counsel:

W. Dean Sinclair, for the appellant;

Michael W. Owens, for the respondent.

This appeal was heard on June 26, 2014, by Lane, Herauf and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. On August 5, 2014, Herauf, J.A., delivered the following reasons for judgment for the court.