R. v. Tayfel (M.), 2007 MBQB 265

• Judge: Beard, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 01, 2007
• Jurisdiction: Manitoba
• Citations: 2007 MBQB 265;(2007), 221 Man.R.(2d) 135 (QB)

R. v. Tayfel (M.) (2007), 221 Man.R.(2d) 135 (QB)

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. NO.027

Her Majesty The Queen v. Mark Tayfel (accused)

(CR 06-01-26621; 2007 MBQB 265)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

Beard, J.

November 1, 2007.

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 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.

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 Manitoba Court of Queen's Bench 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.

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" - The Manitoba Court of Queen's Bench set out what it considered to be the best compendium definition of "wanton and reckless disregard": "For the accused's actions or omissions to constitute wanton or reckless disregard for the lives or safety of others, that conduct must be a marked and substantial departure from what we would expect of a reasonable person in such circumstances; because the conduct must show heedless, reckless disregard for the lives or safety of others, a small error or a momentary lapse in care, that results tragically in death or bodily harm is not sufficient conduct to constitute criminal negligence. The greater the risk of death or bodily harm occurring from the type of conduct engaged in by the accused, the more likely it is that engaging in such conduct shows wanton and reckless disregard for the lives and safety of other persons." - See paragraph 38.

Cases Noticed:

R. v. Tutton and Tutton (1989), 98 N.R. 19; 35 O.A.C. 1; 48 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 16].

R. v. Waite (1989), 98 N.R. 69; 35 O.A.C. 51; 48 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 16].

R. v. Anderson (1990), 105 N.R. 143; 64 Man.R.(2d) 161; 53 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 16].

R. v. Hundal (S.) (1993),149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241; 79 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 16].

R. v. Creighton (1993), 157 N.R. 1; 65 O.A.C. 321; 83 C.C.C.(3d) 346 (S.C.C.), refd to. [para. 16].

R. v. MacGillivray (D.G.) (1995), 179 N.R. 83; 140 N.S.R.(2d) 81; 399 A.P.R. 81; 97 C.C.C.(3d) 13 (S.C.C.), refd to. [para. 16].

R. v. Morrisey (M.L.) (No. 2) (2000), 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 148 C.C.C.(3d) 1; 2000 SCC 39, refd to. [para. 16].

R. v. DeSousa (1992), 142 N.R. 1; 56 O.A.C. 109; 76 C.C.C.(3d) 124 (S.C.C.), refd to. [para. 31].

R. v. Nelson (1990), 38 O.A.C. 17; 54 C.C.C.(3d) 285 (C.A.), refd to. [para. 32].

R. v. Canhoto (M.) (1999), 127 O.A.C. 147; 140 C.C.C.(3d) 321 (C.A.), refd to. [para. 32].

R. v. Landreville (P.) (1994), 63 Q.A.C. 305; 91 C.C.C.(3d) 274 (Que. C.A.), refd to. [para. 32].

R. v. LeBlanc (1975), 8 N.R. 107; 29 C.C.C.(2d) 97 (S.C.C.), refd to. [para. 39].

R. v. Murray (1986), 77 A.R. 310 (Q.B.), refd to. [para. 39].

R. v. Graham (1992), 112 N.S.R.(2d) 356; 307 A.P.R. 356 (Prov. Ct.), refd to. [para. 39].

R. v. Fortier (1998), 127 C.C.C.(3d) 217 (Que. C.A.), refd to. [para. 41].

R. v. J.L. (2006), 206 O.A.C. 205; 204 C.C.C.(3d) 324 (C.A.), refd to. [para. 42].

R. v. Titchner (1961), 131 C.C.C. 64 (Ont. C.A.), refd to. [para. 80].

Authors and Works Noticed:

Wilson, Larry C., Too Many Manslaughters (2007), 52 Crim. L.Q. 433, pp. 446 [para. 34]; 453 [para. 35].

Counsel:

Brian G. Wilford and Michael Desautels, for the Crown;

Balfour Q.H. Der, Q.C., and Lisa M. Burgis, for the accused.

This matter was heard before Beard, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on November 1, 2007.