R. v. MacGillivray (D.G.), (1995) 179 N.R. 83 (SCC)

• Judge: Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 30, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 179 N.R. 83 (SCC);140 NSR (2d) 81;[1995] 1 SCR 890;97 CCC (3d) 13;11 MVR (3d) 1;1995 CanLII 139 (SCC);179 NR 83;37 CR (4th) 221

R. v. MacGillivray (D.G.) (1995), 179 N.R. 83 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Daniel George MacGillivray (appellant) v. Her Majesty The Queen (respondent)

(23933)

Indexed As: R. v. MacGillivray (D.G.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier,

Cory, McLachlin, Iacobucci and Major, JJ.

March 30, 1995.

Summary:

A swimmer was struck and killed by a motor boat driven by the accused. The accused was convicted of operating a vessel in a manner dangerous to the public contrary to s. 249(4) of the Criminal Code. The accused was sentenced to 90 days' imprison­ment (intermittent), plus two years' probation and a five year prohibition against operating a motor vessel. The accused appealed his conviction. The Crown appealed the sen­tence.

The Nova Scotia Court of Appeal, in a judgment reported 126 N.S.R.(2d) 275; 352 A.P.R. 275, dismissed both the conviction and sentence appeals. The accused appealed, claiming the trial judge applied the wrong test for determining whether the vessel was operated in a manner dangerous to the pub­lic.

The Supreme Court of Canada, Lamer, C.J.C., Sopinka, McLachlin and Major, JJ., dissenting, dismissed the appeal.

Criminal Law - Topic 1486

Ships and vessels - Dangerous operation of - The accused drove his motor boat in a bay area known to be frequented by swimmers - He struck and killed a boy as he waved to persons on shore - He did not see persons in the water and on shore attempting to warn him - His bow was raised, blinding his view ahead - No one kept a proper lookout and his speed was excessive in the circumstances - Visibility was clear and the seas were calm - The Nova Scotia Court of Appeal stated that the modified objective test for operation of a vessel in a manner dangerous to the public (Criminal Code, s. 249(4)) was whether the accused's conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation - The court affirmed the accused's conviction, noting that the trial judge had in fact applied a more stringent test respecting the mens rea for the offence - The Supreme Court of Canada affirmed the decision.

Cases Noticed:

R. v. Hundal (S.), [1993] 1 S.C.R. 867; 149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241, refd to. [para. 7].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 249(4) [para. 1].

Authors and Works Noticed:

Shorter Oxford English Dictionary (3rd Ed. 1990) [para. 10].

Counsel:

Joel E. Pink, Q.C., for the appellant;

Robert C. Hagell and William Delaney, for the respondent.

Solicitors of Record:

Pink Murray, Halifax, N.S., for the appel­lant;

The Attorney General of Nova Scotia, Halifax, N.S., for the respondent.

This appeal was heard on February 23, 1995, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada was delivered in both official lan­guages on March 30, 1995, and the follow­ing opinions were filed:

Cory, J. (La Forest, L'Heureux-Dubé, Gonthier and Iacobucci, JJ., con­curring) - see paragraphs 1 to 13;

Lamer, C.J.C. (Sopinka, McLachlin and Major, JJ., concurring), dissenting - see paragraphs 14 to 16.