Appellate court sets aside conviction of criminal negligence causing death where accused found not guilty of dangerous driving
By: Murray D. Segal
3. — Criminal negligence causing death; Dangerous driving causing death; Inconsistent verdicts; Conviction set aside on appeal; S. 662(5) makes dangerous driving included in criminally negligent driving; S. 662(5) reliance obviates need for separate counts and potential inconsistent verdicts; Criminal Code, ss. 220, 249(4), 662(5).
Failing to remain; Evidence to the contrary; Incorrect instruction took away possibility that presumption could be rebutted by evidence to the contrary which was not necessarily accepted but which raised a reasonable doubt.
R. v. Al-Kassem (2015), 2015 ONCA 320, 2015 CarswellOnt 6657 (Ont. C.A.), May 8, 2015:
The appellant was convicted by a jury of criminal negligence causing death but acquitted of dangerous driving causing death arising out of the same conduct. He was also convicted of failing to remain. It arose out of a parking lot confrontation. At trial the appellant argued self-defence, accident and that his driving was not a marked or substantial departure from the norm. There can be no doubt that the act of driving a motor vehicle in a parking lot in such a fashion as to strike a nearby person and drag him under the car for some distance is objectively dangerous. For criminal negligence the Crown has to prove that the conduct amounted to a marked and substantial departure from the conduct of a reasonably prudent driver. For dangerous driving, the Crown has to prove that the conduct amounted to a marked departure from the conduct of a reasonably prudent driver. The court found that there was no logical basis in this case for the jury to find both elements present for criminal negligence but one not proven for dangerous driving. To order a new trial on criminal negligence would invite another inconsistent verdict. Given that s. 662(5) provides that dangerous driving is included in criminal negligence, reliance on it, as opposed to charging separate counts, avoids juror confusion and inconsistent verdicts.
While the charge on evidence to the contrary was originally correct, it was subsequently diminished by an instruction that took away the possibility that the presumption could be rebutted by evidence to the contrary which was not necessarily accepted, but which raised a reasonable doubt.
The conviction from criminal negligence causing death was set aside and an acquittal was entered. A new trial was ordered in the failing to remain count.