R. v. Tayfel (M.),

• Jurisdiction: Manitoba
• Judge: Steel, Hamilton and Chartier, JJ.A.
• Neutral Citation: 2009 MBCA 124
• Citation: (2009), 245 Man.R.(2d) 300 (CA),2009 MBCA 124,250 CCC (3d) 219,245 Man R (2d) 300,245 ManR(2d) 300,(2009), 245 ManR(2d) 300 (CA),245 Man.R.(2d) 300
• Date: 16 December 2009
• Court: Court of Appeal (Manitoba)

R. v. Tayfel (M.) (2009), 245 Man.R.(2d) 300 (CA);

      466 W.A.C. 300

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. DE.032

Her Majesty The Queen (respondent) v. Mark Tayfel (accused/appellant)

(AR 08-30-06907; 2009 MBCA 124)

Indexed As: R. v. Tayfel (M.)

Manitoba Court of Appeal

Steel, Hamilton and Chartier, JJ.A.

December 16, 2009.

Summary:

The accused was the pilot of a commercial aircraft that made a forced landing on a highway after running out of fuel. Several passengers were injured. One later died. The accused was charged with one count of criminal negligence causing death, four counts of criminal negligence causing bodily harm and one count of dangerous operation of an aircraft (included offence under the criminal negligence charges). At issue on the criminal negligence charges was whether the fault requirement was based on an objective or subjective test, and whether the accused's actions or omissions constituted a wanton or reckless disregard for the safety of others.

The Manitoba Court of Queen's Bench, in a judgment reported at (2007), 221 Man.R.(2d) 135, found the accused guilty of criminal negligence causing death, four counts of criminal negligence causing bodily harm and dangerous operation of an aircraft. The court assumed that the dangerous operation of an aircraft conviction, being an included offence to criminal negligence, would be conditionally stayed. The accused appealed the criminal negligence convictions.

The Manitoba Court of Appeal allowed the appeal and set aside the convictions for criminal negligence causing death and criminal negligence causing bodily harm. The accused was properly convicted of dangerous operation of an aircraft.

Criminal Law - Topic 214.2

General principles - Common law defences - Mistake of fact - [See Criminal Law - Topic 1225 ].

Criminal Law - Topic 1225

Criminal negligence - General (incl. what constitutes) - A commercial aircraft pilot miscalculated the amount of fuel needed, ran out of fuel, and made a forced landing on a Winnipeg street after an aborted airport runway landing - Several passengers were injured - One later died - The pilot deliberately ignored the fuel requirements for an instrument flight rules (IFR) flight contrary to the Canadian Aviation Regulations - The trial judge convicted the pilot of criminal negligence causing death and four counts of criminal negligence causing bodily harm - Applying a modified objective standard, the pilot's conduct was a marked and substantial departure from that of a reasonable and prudent person flying a commercial aircraft over a populated area - The pilot showed a wanton and reckless disregard for the lives and safety of others - By ignoring available information that led him to underestimate the fuel on board, by ignoring possible fuel gauge problems, by intentionally breaching the IFR fuel requirements, and by taking less fuel than required by the weather, the pilot left himself no options when he ran into trouble - This was not a small error or momentary lapse in care - The pilot could not rely on the defence of an honestly believed mistake of fact, because his subjective belief that he had enough fuel to make the trip safely was not reasonable - The Manitoba Court of Appeal set aside the criminal negligence convictions, but affirmed the conditionally stayed conviction for dangerous operation of an aircraft - The trial judge erred in importing into the actus reus inquiry the separate marked and substantial departure inquiry of the mens rea element, which influenced the finding of a wanton or reckless disregard for the lives or safety of others - The Crown failed to prove the actus reus - The court stated that "no witness criticized the accused's procedures before or during the flight other than his method of fuel calculation and his decision to fly VFR for an IFR flight. The accused did address safety issues before and during the flight. His conduct cannot be said to have shown a complete disregard for the consequences of his actions. However flawed his conduct was in addressing the sufficiency of the fuel for the flight, I am of the view that his conduct, when considered in the context of all of the evidence, is not conduct that meets the very high threshold of wanton or reckless disregard for the lives or safety of other persons" - See paragraphs 47 to 99.

Criminal Law - Topic 1226

Criminal negligence - Intention or mens rea - [See Criminal Law - Topic 1225 ].

Criminal Law - Topic 1227

Criminal negligence - "Wanton and reckless disregard" - [See Criminal Law - Topic 1225 ].

Criminal Law - Topic 1497

Aircraft - Operating aircraft in a manner dangerous to the public - [See Criminal Law - Topic 1225 ].

Cases Noticed:

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. 2].

R. v. J.F., [2008] 3 S.C.R. 215; 380 N.R. 325; 242 O.A.C. 338; 2008 SCC 60, refd to. [para. 2].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 46].

R. v. Tutton and Tutton, [1989] 1 S.C.R. 1392; 98 N.R. 19; 35 O.A.C. 1, refd to. [para. 52].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 64].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 64].

R. v. Anderson, [1990] 1 S.C.R. 265; 105 N.R. 143; 64 Man.R.(2d) 161, refd to. [para. 70].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 72].

R. v. J.L. (2006), 206 O.A.C. 205; 204 C.C.C.(3d) 324 (C.A.), refd to. [para. 83].

R. v. Menezes (C.), [2002] O.T.C. 118; 50 C.R.(5th) 343 (Sup. Ct.), refd to. [para. 83].

R. v. Waite (1986), 30 O.A.C. 58; 28 C.C.C.(3d) 326 (C.A.), refd to. [para. 84].

R. v. Melynk (1985), 41 Sask.R. 10 (Q.B.), affd. (1985), 45 Sask.R. 258 (C.A.), refd to. [para. 85].

Counsel:

B.Q.H. Der, Q.C., for the appellant;

B.G. Wilford and M.M. Desautels, for the respondent.

This appeal was heard on April 14, 2009, before Steel, Hamilton and Chartier, JJ.A., of the Manitoba Court of Appeal.

On December 16, 2009, Hamilton, J.A., delivered the following judgment for the Court of Appeal.