R. v. Hughes (B.B.), 2011 BCCA 220

• Judge: Rowles, Kirkpatrick and Hinkson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 08, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 220;(2011), 305 B.C.A.C. 112 (CA)

R. v. Hughes (B.B.) (2011), 305 B.C.A.C. 112 (CA);

    515 W.A.C. 112

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. MY.025

Regina (respondent) v. Benjamin Brian Hughes (appellant)

(CA037639; 2011 BCCA 220)

Indexed As: R. v. Hughes (B.B.)

British Columbia Court of Appeal

Rowles, Kirkpatrick and Hinkson, JJ.A.

May 6, 2011.

Summary:

The accused appealed his conviction on four counts of criminal negligence causing death, one count of criminal negligence causing bodily harm, and five counts of failing to stop at the scene of an accident.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 1351

Motor vehicles - Criminal negligence in operation of motor vehicle - Criminal negligence defined - An accident occurred on Highway 1 in the early morning hours of January 28, 2006 - It was windy, dark and raining heavily, and there was a lot of water on the road - Jozic, driving a BMW at a very high rate of speed, struck the rear driver's side passenger door and the mirror of a slower moving Mazda driven by Morin - Jozic lost control of the BMW, which hit the centre median then slammed into a lamp standard and sheared in half - The two pieces of the BMW went over an embankment onto an off-ramp - Jozic and three passengers in the BMW were killed and a fourth passenger was injured - Morin's Mazda was in the right hand lane of the two westbound lanes when it was struck by the BMW - The BMW struck the Mazda while attempting to pass it - Immediately before and for some time prior to the accident, the accused had been driving his Cadillac in the lane to the left of the BMW, more or less adjacent to it, at a similarly high rate of speed - The accused was convicted of, inter alia, four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm - The accused appealed - He argued that the judge's finding of criminal negligence was based on measuring the accused's conduct against an impossibly high standard that had no basis in law - He pointed to a statement in paragraph 25(g) of the judge's reasons that "it was incumbent on the accused to see, hear, note and react to everything that occurred on, or appeared on, that highway" - The accused submitted that, in essence, the finding of criminal negligence was grounded in a failure on his part to anticipate and facilitate the dangerous and negligent driving of Jozic - The British Columbia Court of Appeal rejected the accused's submissions - The sentence in paragraph 25(g) of the judge's reasons was not intended to be an articulation of a legal standard - The judge both stated and measured the accused's conduct against the correct standard, that of a reasonably prudent driver - To take reasonable steps to avoid a potential accident was not tantamount to facilitating the very dangerous driving of another, but rather to take the steps which would be expected of a reasonably prudent driver - The judge did not err in finding the accused's conduct to have been criminally negligent - See paragraphs 43 to 54.

Criminal Law - Topic 1353

Motor vehicles - Criminal negligence in operation of motor vehicle - Causing death or bodily harm - An accident occurred on Highway 1 in the early morning hours of January 28, 2006 - It was windy, dark and raining heavily, and there was a lot of water on the road - Jozic, driving a BMW at a very high rate of speed, struck the rear driver's side passenger door and the mirror of a slower moving Mazda driven by Morin - Jozic lost control of the BMW, which hit the centre median then slammed into a lamp standard and sheared in half - The two pieces of the BMW went over an embankment onto an off-ramp - Jozic and three passengers in the BMW were killed and a fourth passenger was injured - Morin's Mazda was in the right hand lane of the two westbound lanes when it was struck by the BMW - The BMW struck the Mazda while attempting to pass it - Immediately before and for some time prior to the accident, the accused had been driving his Cadillac in the lane to the left of the BMW, more or less adjacent to it, at a similarly high rate of speed - The accused was convicted of, inter alia, four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm - The trial judge found that both the accused and the BMW driver had been criminally negligent during the time leading up to and at the time of the accident and that the accused's criminal negligence had been, in fact and in law, a significant contributing cause of the deaths and bodily harm - The accused appealed, taking issue with the judge's conclusion that factual and legal causation were established - The British Columbia Court of Appeal dismissed the appeal - The accused and Jozic each by his own criminally negligent driving, contributed directly to the crash and the resulting deaths and injury - For the accused to have carved down the margin of error for the BMW to pass the Mazda was part of the physical dynamic of causation in this case - The risk to those in the BMW and the Mazda created by the accused's criminal negligence was reasonably foreseeable - See paragraphs 55 to 73.

Criminal Law - Topic 2748

Attempts, conspiracies, accessories and parties - Parties to offences - Principal offender - Who constitutes - An accident occurred on Highway 1 in the early morning hours of January 28, 2006 - It was windy, dark and raining heavily, and there was a lot of water on the road - Jozic, driving a BMW at a very high rate of speed, struck the rear driver's side passenger door and the mirror of a slower moving Mazda driven by Morin - Jozic lost control of the BMW, which hit the centre median then slammed into a lamp standard and sheared in half - The two pieces of the BMW went over an embankment onto an off-ramp - Jozic and three passengers in the BMW were killed and a fourth passenger was injured - Morin's Mazda was in the right hand lane of the two westbound lanes when it was struck by the BMW - The BMW struck the Mazda while attempting to pass it - Immediately before and for some time prior to the accident, the accused had been driving his Cadillac in the lane to the left of the BMW, more or less adjacent to it, at a similarly high rate of speed -The accused was convicted of, inter alia, four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm - The trial judge grounded his finding of guilt on the basis that the accused was a principal party under s. 21(1)(a) of the Criminal Code as an "actual committer" - The accused appealed - He took issue with the applicability of s. 21(1)(a) of the Code when there was no finding that the accused and Jozic were racing - The British Columbia Court of Appeal rejected the accused's submission that an additional nexus such as a race or a chase was necessary to support the trial judge's conclusion that under s. 21(1)(a), the accused was a principal offender or an actual committer - An agreement to carry out a common purpose was not necessary - No issue could be taken with the trial judge's conclusion that an intention in common was not demanded for the accused's criminal liability to be founded on s. 21(1)(a) - See paragraphs 74 to 79.

Cases Noticed:

R. v. Tutton and Tutton, [1989] 1 S.C.R. 1392; 98 N.R. 19; 35 O.A.C. 1, refd to. [para. 29].

R. v. J.F., [2008] 3 S.C.R. 215; 380 N.R. 325; 242 O.A.C. 338; 2008 SCC 60, consd. [para. 30].

R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 2001 SCC 78, refd to. [para. 34].

R. v. J.L. (2006), 206 O.A.C. 205; 204 C.C.C.(3d) 324 (C.A.), refd to. [para. 49].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 397; 400 N.R. 200; 477 A.R. 70; 483 W.A.C. 70; 2010 SCC 12, refd to. [para. 53].

R. v. Laboucan - see R. v. Briscoe (M.E.) et al.

R. v. Smithers, [1978] 1 S.C.R. 506; 15 N.R. 287, refd to. [para. 59].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 65].

R. v. Maybin (M.L.) et al. (2010), 295 B.C.A.C. 298; 501 W.A.C. 298; 2010 BCCA 527, refd to. [para. 66].

R. v. J.S.R. (2008), 239 O.A.C. 42; 237 C.C.C.(3d) 305; 2008 ONCA 544, refd to. [para. 67].

R. v. Shilon (M.) (2006), 240 C.C.C.(3d) 401 (Ont. C.A.), leave to appeal refused [2007] 2 S.C.R. vi; 374 N.R. 390, refd to. [para. 67].

R. v. Mammolita (1983), 9 C.C.C.(3d) 85 (Ont. C.A.), refd to. [para. 77].

R. v. Pickton (R.W.) (2010), 288 B.C.A.C. 246; 488 W.A.C. 246; 2009 BCCA 299, affd. [2010] 2 S.C.R. 198; 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264; 257 C.C.C.(3d) 296; 2010 SCC 32, refd to. [para. 77].

R. v. Ball (A.G.) et al. (2011), 298 B.C.A.C. 166; 505 W.A.C. 166; 2011 BCCA 11, refd to. [para. 77].

R. v. Myerscough, [2001] O.J. No. 2867 (C.A.), refd to. [para. 78].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 21(1)(a) [para. 74].

Counsel:

G. Orris, Q.C., and K.B. Westell, for the appellant;

B.H. Johnstone, Q.C., for the respondent.

This appeal was heard on March 8, 2011, at Vancouver, B.C., before Rowles, Kirkpatrick and Hinkson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Rowles, J.A., on May 6, 2011.