Arthurs v. R., [1974] SCR 287

Supreme Court of Canada

Arthurs v. R., [1974] S.C.R. 287

Date: 1972-06-29

Baltiman Arthurs (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1972: February 29; 1972: June 29.

Present: Chief Justice Fauteux and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal Law—Charge to Jury—Motor vehicles—Criminal negligence causing bodily harm—Accident as a defence—Whether theory of defence outlined to jury—Criminal Code, 1953-54 (Can.), c. 51, ss. 191, 193.

The appellant was convicted, after a trial before a judge and jury, on a charge of causing bodily harm to one L by criminal negligence in the operation of an automobile. The appellant was in a restaurant when a fight broke out involving L, a white man, and another person, a coloured man who was injured. The appellant, also a coloured man, took the injured man into his car, intending to drive him to a hospital. He then drove off, turned left into a side street, turned off his lights and slowed down as if to park. A minute or two later he accelerated and pulled to the right so as to mount the curb and hit L who had just crossed the street and reached the sidewalk. The appellant continued to the hospital and telephoned the police. In his statement to the police he admitted that when he glanced down at his passenger who was injured, he drove onto the curb and there was a possibility he might then have hit a pedestrian. The appellant gave no evidence and his defence was based on the statement he had given to the police. The conviction was affirmed by the Court of appeal without recorded reasons. The appellant was granted leave to appeal to this Court.

Held (Hall, Spence and Laskin JJ. dissenting): The appeal should be dismissed.

Per Fauteux C.J. and Abbott, Martland, Judson, Ritchie and Pigeon JJ.: The trial judge did not err in refusing to grant the motion for a non-suit made on

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the ground that the evidence did not support a charge under s. 193 of the Code.

The second question is whether the trial judge failed to outline to the jury any theory of the defence which was consistent of the appellant having acted otherwise than with wanton or reckless disregard for the lives and safety of others. The defence was based on the statement the accused had given to the police. It was read to the jury towards the close of the Crown’s case, it was made the subject of extensive comment by counsel for the accused in his address to the jury which was concluded less than an hour before the judge started his charge, and it was left with the jury. The trial judge did not err in not reading it to them again. The theory of the defence that absence of motive (i.e. intent) is established by the statement, was made clear in the judge’s charge.

What would be a proper charge to the jury in a case in which there are no racial overtones does not become an improper charge in a case involving the same facts merely because such overtones exist. In the absence of manifestations of racial prejudice, racial overtones surrounding a trial do not make a proper charge into an improper charge. As there was not suggestion that there had been any manifestation of racial prejudice in the present case, any racial overtones which may have existed at the time of the trial had no relevance to this appeal.

Per Hall J., dissenting: It must have been evident to everyone, and particularly to the presiding judge, that there could be racial overtones to the proceedings with the added dimension that the appellant was defended by a junior counsel of his own race. Crown counsel was white as were the jurors. The trial judge did not put the defence of accident to the jury and, in essence, denigrated the defence contentions to an extent that vitiated the trial.

Per Spence and Laskin JJ., dissenting: The trial judge failed lamentably to put before the jury the defence of the accused. There was not a single sentence in the entire charge that goes to any defence of the accused under the law and, especially in

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respect of the parts of his statement that would be exonerating, if believed. Accident, as a defence, required not only mention but explanation since it could have more than one meaning, including complete absence of negligence as well as momentary inattention. The charge was devoted to a minute repetition of the evidence of the Crown witnesses, and this recital was associated with express to the theory of the Crown. A trial judge does not put the defence to the jury merely by emphasizing that the Crown carries the ultimate burden of proof to the end of the case or by telling the jury what the issues are under the applicable law. If he sends the case to the jury he must send it evenhandedly, with equal fairness to the accused, according to the evidence, and to the Crown. This was not done here; in fact, the charge can best be described as drawing an obscure curtain over any exonerating factors telling in favour of the accused, keeping them from the jury’s view.

APPEAL from a judgment of the Court of Appeal for Ontario, affirming the conviction of the appellant. Appeal dismissed, Hall, Spence and Laskin JJ. dissenting.

A. Maloney, Q.C., and D. O’Connor, for the appellant.

E.G. Hachborn, for the respondent.

The judgment of Fauteux C.J. and of Abbott, Martland, Judson and Pigeon JJ. was delivered by

THE CHIEF JUSTICE—I have had the advantage of reading the reasons of my brothers Ritchie, Hall, Spence and Laskin in this case, and I am in agreement with the reasons and the conclusions stated by my brother Ritchie. I only wish to add that, until after reading the reasons of my brother Hall, I was unaware that any question had arisen or could arise in this case as to justice not having been administered with impartiality, without regard to race, colour, creed or ethnic origin.

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I was not previously aware, from the record or otherwise, of the race, colour, creed or ethnic origin of counsel engaged in the trial, or of the members of the jury. I was aware by the record that the appellant was a coloured man, but there is nothing in the proceedings to indicate that counsel for either side, the trial judge or the jury varied in any way from proper court procedures and the recognized standards of fairness, because of that fact, during the hearing of the evidence, the arguments, or the charge to the jury. Indeed addressing the jury the learned trial Judge said:—

Now, during the course of the trial counsel for the accused, Mr. Lindsay, referred to the fact that his client, the accused man Arthurs is coloured. Now, gentlemen, you must disregard that altogether, because in our administration of justice in Canada, all are equal before the law, regardless of race, colour and creed, and it makes no difference whether a man is black, white, yellow or red, they are all entitled to the same consideration.

My brother Hall says, quite properly, that he does not suggest at all that the trial judge was actuated by malice or prejudice and that he is sure that the trial judge was not so motivated. I would infer from this that it is his view that the errors which he finds in the charge to the jury did not result from the fact that the trial judge knew that the accused was a coloured man.

The substantial criticism which is made is stated as follows:—

“His failure was that he did not hold the scales of justice in balance in a situation in which it should have been made apparent to all that he was so doing.” The latter part of this sentence, I assume, relates back to an earlier statement that “there could be racial overtones to the proceedings” and to “a delicate situation”.

My view is that the duty of the trial judge to hold the scales of justice in balance exists in

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every case. What would be a proper charge to the jury in a case in which there are no racial overtones does not become an improper charge in a case involving the same facts merely because such overtones exist. Racial overtones are only of importance in the event that they result in a charge in which racial prejudice is manifested, in which case the charge is not a proper one. But in the absence of such a manifestation, racial overtones surrounding the trial do not make a proper charge into an improper charge. There is no suggestion that there was any manifestation of racial prejudice in the charge in the present case. That being so, in my opinion, any racial overtones which may have existed at the time of the trial have no relevance to this appeal.

I agree with the disposition of this appeal proposed by my brother Ritchie.

The judgment of Abbott, Martland, Judson, Ritchie and Pigeon JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal of Ontario rendered without recorded reasons, affirming the conviction of the appellant after a trial held before His Honour Judge Walter Martin, sitting with a jury, on a charge that he

on or about the 22nd of September, 1968, at the Municipality of Metropolitan Toronto in the County of York, by criminal negligence in the operation of a motor vehicle caused bodily harm to one Robert Latus, contrary to the Criminal Code.

Leave to appeal to this Court was granted on the two following questions:

(1) Did the learned trial judge err in refusing to grant the application of the defence made at the close of the Crown’s case to dismiss the charge on the ground that the evidence adduced by the Crown did not support a charge under section 193 of the Criminal Code?

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(2) Did the learned trial judge err in failing to outline to the jury in his charge the theory of the defence?

Section 193 of the Criminal Code (now section 204) reads as follows:

Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and is liable to imprisonment for ten years.

“Criminal negligence” for the purposes of the Criminal Code is defined in section 202 (formerly 191) as follows:

202. (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

The evidence in this case is to be tested in accordance with the provisions of the last-quoted section which is to say that conduct disclosing wanton or reckless disregard for the lives or safety of others constitutes prima facie evidence of criminal negligence.

The Crown’s “case” proved against the appellant was that between 4 and 5 a.m. on September 22, 1968, the appellant drove his car south on Avenue Road in the City of Toronto in the centre lane of three south-bound lanes and upon reaching Webster Avenue he turned left into this side street, turned off his lights and slowed down as if to park, but a minute or two later he accelerated and pulled to the right so as to mount the curb and hit Robert Latus who had just crossed the street and reached the sidewalk. Having hit Latus and knocked him four or five feet into the air, the appellant’s car, which had gone about three feet six inches up on the sidewalk, continued towards Hazelton Avenue where it proceeded in the wrong direction down a one-way street. Included in the Crown’s evidence was a statement made by the appellant to the police after he had been duly cautioned, in

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which he admitted that he drove his car down Webster Avenue and that when he glanced down at his passenger who was injured, he drove into the curb and that there was a possibility he might then have hit a pedestrian.

In the face of this evidence, counsel for the defence submitted that there was no case to go to the jury in support of the charge as laid, upon which the learned trial judge made the following ruling with which I agree:

THE COURT: Oh well, there is an abundance of evidence, the accused’s statement to the police officer, Constable Laing, and Detective Stevenson, and the other officer, and he admits he was driving the car and the evidence of the witnesses who saw the man struck, so there is certainly plenty of evidence to go to the jury so your motion is dismissed; of course, it is noted.

It was, however, contended before this Court that the Crown’s evidence and the theory of the prosecution were consistent only with the appellant having run over Latus deliberately and that, while this evidence might support a more serious charge, it negatived “criminal negligence” and thus afforded a good ground for granting the motion for non-suit made by the appellant’s counsel. The only authority cited in support of this proposition was a decision of Crisp J., who, when sitting alone in the Trial Division of the Supreme Court of Tasmania in the case of Regina v. Barnard[1], held that an indictment charging the offence of causing bodily harm by wanton driving could not be supported in a case where the bodily harm occasioned by the wanton driving resulted in the death of the victim.

In the course of his reasons for judgment in the Barnard case, Crisp J. indicated that his reasoning and conclusions in this regard differed from those of his brother Judge, Gibson

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J., who had occasion to make a contrary ruling on the same point in a prior trial of the same accused on the same charge. That Crisp J. was reluctant to disagree with his brother judge is apparent from the following excerpt from his judgment:

…normally I would wish to follow the decision of Gibson J., not only because of the very real respect that I feel for his judgments, but also because of the necessity to maintain the principle of stare decisis. But there are, I feel, some very strong considerations in this matter the other way. The first is that this is a matter which had not been tested in any appellate court or any other superior court that I am aware of,…

Since Mr. Justice Crisp’s decision, the matter does not appear to have been made the subject of an appeal to a higher court, and whatever the law may be under the applicable statute in Tasmania, I have no hesitation in expressing the view that the proposition propounded by counsel for the appellant in reliance on Mr. Justice Crisp’s reasoning is without any substance in relation to a charge under s. 193 (now s. 204) of the Criminal Code of Canada.

As I have indicated, I think that the learned trial judge had no option but to dismiss the motion for a non-suit made by appellant’s counsel and I would accordingly answer the first question in the negative.

I think that the second question must be governed by the test which I indicated at the outset, and that question therefore is whether the learned trial judge failed to outline to the jury any theory of the defence which was consistent with the appellant having acted otherwise than with wanton or reckless disregard for the lives and safety of others.

The appellant gave no evidence and his defence was based, as it had to be, on the statement he had given to the police which his counsel interpreted as evidence of a simple accident that occurred when his attention was momentarily distracted from his driving by the condition of his injured passenger. The state-

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ment speaks for itself and the most relevant portions of it are at the beginning and end.

The appellant opened his statement by saying, with respect to the report that a pedestrian had been hit by his car on Webster Avenue: “Well, there is a possibility that I may have hit him”. He then gave an account of a fight which had taken place in a restaurant on Avenue Road in which a “coloured fellow” had been hurt and continued:

…I left the restaurant and went and sit in the car that was parked on Avenue Rd., just beside the restaurant. A few seconds later the coloured fellow came staggering out and had blood all over his face. So I managed to get him into my car and started up and turned around to go along Webster Avenue and further up the avenue these two fellows were crossing the road, and its a bit hazy what happened there but I can remember them running across the road and the fellow beside me was groaning and I remember glancing at him and I realized I was going into the curb and there was a light post there and I swerved out and there was a impact and I knew the fellows they jumped across and there was a possibility that I might have hit one of the fellows. During this period I realized that one of the fellows was the one who picked on me in the restaurant and out of fear I kept going until I reached the Western Hospital where I phoned the Police. I later learned from one of the officers that one of the fellows was injured thats about all so far.

This statement had been read to the jury by Detective McCleave towards the close of the Crown’s case, it had been made the subject of extensive comment by counsel for the accused in his address to the jury which was concluded less than an hour before the judge started his charge, and the written statement was left with the jury. I do not think that the learned trial judge erred in not reading it to them again. In this regard, Judge Martin told the jury that he had admitted the statements made by the accused and he continued:

…you are to take the statements as evidence, and you will treat them exactly the same as you treat any

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other evidence. In other words, you may believe the statements made by the accused to the police, you may disbelieve them or believe part and disbelieve the remaining part. You treat them exactly the same as you do any other evidence which has been given by witnesses in the witness box during the course of this trial.

And he later said:

I am not going to go over all the contents of the written statement of the accused man because it is quite lengthy. You will have it with you in the jury room and you will have ample opportunity to consider it. He admits he was driving the car. There is no suggestion that he was ill. There is no suggestion that there was something wrong with the car. There was some talk about being hazy. I don’t know what hazy means. The first officer didn’t say anything about being hazy. I think I indicated to you before that insofar as the fight that took place in the restaurant, that does not justify the accused or any other person in running a man down with a car.

It was contended on behalf of the appellant that the learned trial judge did not sufficiently instruct the jury as to the theory of the defence and in particular that the defence of simple accident which had formed the basis of the motion for a non-suit made by appellant’s counsel was not adequately placed before them.

After this motion had been dismissed, no evidence was called on behalf of the defence and, as I understand it, in such a case the theory of the defence must of necessity be based either on some Crown evidence which is capable of affording a defence or upon the more general submission that the Crown has not proved its case beyond a reasonable doubt.

The appellant’s statement had been included in the Crown’s case after the holding of a voir dire which was occasioned by his counsel objecting to its admissibility. As I have indicated, any theory of the defence had to be based on the contents of that statement and in my view the learned trial judge left the matter to the jury on this basis.

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The theory of the defence must be considered in light of the case as submitted by the Crown whereby Crown counsel treated the charge as one which necessarily involved proof that the accused had deliberately run Latus down. In my view, this was a wrong approach which placed an unnecessarily heavy burden on the Crown, but it was the case which the appellant was required to meet.

The theory of the defence as outlined by counsel was that the Crown had failed to establish guilt beyond a reasonable doubt, that it was the duty of the Crown to prove motive and that this was not proved because the jury should believe the statement made by the accused.

In instructing the jury the learned trial judge adopted the approach taken by the Crown and by the defence that in order to succeed the Crown must prove beyond a reasonable doubt that the accused deliberately ran Latus down and he also instructed the jury that they must treat the statement of the accused as they would any other evidence; that they could believe it, disbelieve it, believe part of it or disbelieve part of it. It was the same as evidence given in the witness box and they would have it with them in the jury room, and would have ample opportunity to consider it.

In my view the theory of the defence that absence of motive (i.e. intent) is established by the statement, was made clear in the judge’s charge. This was the only defence urged before the jury on behalf of the appellant and having regard to the course of the trial and the whole of the evidence tendered by the Crown (including the statement) I do not think that any other realistic theories of defence were open to him, or that the learned trial judge erred in failing to outline any other such theory in his charge.

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As deliberation is not, in my opinion, a necessary ingredient of the offence here charged, I consider the learned judge erred in instructing the jury that in order to find the appellant guilty they must be satisfied beyond a reasonable doubt that he “did deliberately run down Robert Latus thereby causing him serious injuries”.

I do not regard this misdirection as dealing only with the burden of proof upon the prosecution, but rather consider it to be a statement of the learned trial judge’s opinion as to the essential ingredient of the offence with which the appellant was charged. In all the circumstances it is difficult to conceive of a misdirection which would be more favourable to the accused, but the jury’s verdict must be construed as meaning that they were satisfied that the appellant not only showed wanton or rockless disregard for the lives or safety of others, but that he ran into his victim deliberately.

As I have indicated, I am, with the greatest respect for those who may hold a different view, unable to find any error prejudicial to the appellant in the charge of the learned trial judge and I would accordingly answer the second question in the negative.

As I understand it, it has long been the practice of this Court that upon leave being granted in respect of specific questions of law, the Court hearing the appeal will confine itself to those questions, and this is particularly so in my view when an attempt is made before the Court hearing the appeal to raise a further question of law which was proposed to and rejected by the Court hearing the application for leave. As I do not consider the question of whether the judge ought to have directed the jury on the offence of dangerous driving to be one which arises under the second question of law upon which leave was granted, I do not find it necessary to deal with that question.

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For all these reasons I would dismiss this appeal.

Since writing the above I have had the advantage of reading the reasons for judgment prepared by the Chief Justice, with which I am in respectful agreement.

HALL J. (dissenting)—The facts and circumstances involved in this appeal are set out in the reasons of my brother Laskin and I agree with him that there should be a new trial and with his reasons therefor. There is an additional aspect to the case which I feel I must comment upon.

The incident which culminated in the charge against Arthurs that he

on or about the 22nd of September, 1968, at the Municipality of Metropolitan Toronto in the County of York, by criminal negligence in the operation of a motor vehicle caused bodily harm to one Robert Latus, contrary to the Criminal Code.

began in the Webster Restaurant in Toronto. Arthurs who is a coloured man entered the restaurant to get something to eat. He was accosted by Robert Latus, a white man, who, on his own admission, was somewhat intoxicated. Arthurs ignored Latus and placed his order. Having eaten and as he was about to leave the restaurant, two other coloured men entered, one of them being Edward Payne. Latus accosted Payne, slapped him in the face and a fight ensued. Arthurs left the restaurant and went to his car which was parked nearby. A few seconds later the coloured man (Payne) that Latus had fought with came staggering out with blood all over his face. Arthurs got Payne into his car, intending to take him to Western Hospital. It was immediately after this that the incident resulting in the charge is said to have occurred and the Crown’s case was that Arthurs had waited until Latus came out and then intentionally ran him down. At the hospital Arthurs phoned the police and Police Constable Donald-

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son interviewed him in the parking lot. Police Constable McCleave came later and the accused was taken into custody.

On arriving at the police station Arthurs gave a statement which was received in evidence in which he said in part: “Well there is a possibility that I might have hit him. I’m not too positive about that.” and later in the statement he said:

So I managed to get him into my car and started up and turned around to go along Webster Avenue and further up the avenue these two fellows were crossing the road, and its a bit hazy what happened there but I can remember them running across the road and the fellow beside me was groaning and I remember glancing at him and I realized I was going into the curb and there was a light post there and I swerved out and there was an impact and I knew the fellows they jumped across and there was a possibility that I might have hit one of the fellows. During this period I realized that one of the fellows was the one who picked on me in the restaurant and out of fear I kept going until I reached the Western Hospital where I phoned the Police.

When Arthurs came on for trial before His Honour Judge Martin and a jury, charged as aforesaid, it must have been evident to everyone, and particularly to the presiding judge, that there could be racial overtones to the proceedings with the added dimension that Arthurs was being defended by a junior counsel of his own race. Crown counsel was white as were the jurors. Here was a delicate situation but one ideally structured to demonstrate that the administration of justice in Toronto could and would be carried out with impartiality and without regard to race, colour, creed or ethnic origin.

Having dealt in great detail with the evidence for the prosecution, the trial judge in his charge referred to Arthurs’ statement but did not put the defence of accident to the jury and, in essence, in my view, denigrated the defence contentions to an extent that vitiated the trial. The verdict cannot stand; there must be a new trial. Justice requires no less than this. I do not suggest at all that the judge was actuated by

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malice or prejudice—I am sure that he was not so motivated. His failure was that he did not hold the scales of justice in balance in a situation in which it should have been made apparent to all that he was doing so. This does not mean that, if guilty, Arthurs should go unpunished, but it does mean that whether guilty or not he was entitled to a fair trial.

SPENCE J. (dissenting)—I have had the opportunity to peruse the reasons delivered by my brother Laskin and I agree with his view that the appeal should be allowed and a new trial directed.

I do not wish, however, to be taken to have agreed with the view expressed by my brother Laskin that there was evidence which justified the learned trial judge in sending the case to the jury at the close of the Crown’s case. I am rather of the opinion that there was not, but I find it unnecessary to deal with that issue in view of my concurrence with the views of my brother Laskin as to the effect of the errors in the charge to the jury.

LASKIN J. (dissenting)—The appellant accused was convicted, after trial before His Honour Judge Walter Martin and a jury, on a charge of causing bodily harm to one Robert Latus by criminal negligence in the operation of an automobile. A three year term of imprisonment was imposed by the trial judge. An appeal against conviction and sentence was dismissed by the Ontario Court of Appeal without recorded reasons. Leave to appeal to this Court was given on the following two questions of law:

(1) Did the learned trial judge err in refusing to grant the application of the defence made at the close of the Crown’s case to dismiss the charge on the ground that the evidence adduced by the Crown did

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not support a charge under s. 193 of the Criminal Code?

(2) Did the learned trial judge err in failing to outline to the jury in his charge the theory of the defence?

Relevant to both questions and to the issues raised thereon are the following considerations: (1) the Crown’s case was built on evidence that could be taken to show that the accused deliberately ran down one Robert Latus in circumstances recounted below; (2) the Crown adduced in evidence a statement in writing given by the accused to the police which indicated not deliberation or recklessness in driving his car at Latus but inadvertent accident which was not, however, free from ordinary negligence; (3) no defence evidence was offered; (4) counsel for the accused moved for dismissal at the close of the Crown’s case, which motion was denied; and (5) the trial judge charged the jury in terms only of the burden on the Crown, without express or direct mention of any defence, referable either to the evidence adduced by the Crown or to the statement of the accused, and without indicating whether a verdict on a lesser charge, that of dangerous driving, was open. I shall refer in more detail to the charge as well as to the evidence, but the foregoing enumeration provides the backdrop for the questions on which leave to appeal was granted.

The accused, a married man with two young children, who was steadily employed prior to his conviction and without any previous record, was in a restaurant in Toronto in the early hours of September 22, 1968, when a fight broke out involving Latus and another person named Payne. The restaurant was on the east side of Avenue Road at the corner of Webster Avenue which runs east from Avenue Road for one block to Hazelton Avenue, a one-way street for north-bound traffic. The restaurant had a front entrance on Avenue Road and a side door on

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the north side of Webster Avenue. Payne was injured in the fight which was seen from the street by a taxi driver parked on the west side of Avenue Road opposite the restaurant.

The taxi driver radioed his dispatcher to contact the police, and shortly afterwards a greenish car heading south on Avenue Road stopped near his cab. The accused was driving and had as his passenger Payne whose face was bloodied. The passenger door had been opened and a third person, unknown to the taxi driver and not identified later, joined the accused and Payne, and they discussed taking Payne to the hospital. The accused then drove off, but instead of heading due south on Avenue Road he turned left to go east on Webster Avenue, at the same time turning off his lights. Thereafter the taxi driver heard the sound of a collision, and on driving to the scene he saw Latus on the south side of Webster Avenue lying partly on the sidewalk and partly on the grass.

Evidence of what occurred on Webster Avenue was given by another taxi driver who happened to be walking east on the north side of Webster Avenue at the material time. He heard a car coming from behind him, and noticed when it passed him that it had no rear lights on. The car, which proved to be that driven by the accused, veered slightly to the right and struck a pedestrian, then continued to the end of Webster Avenue and turned south on Hazelton Avenue in the wrong traffic direction. The injured pedestrian was Latus who had left the restaurant by the Webster Avenue door and was crossing that street at an angle when he was hit as he reached the south side. In his statement, the accused said that he thought it possible he had struck someone; and he kept going out of fear after the impact until he reached the Toronto Western Hospital and there he telephoned the police. He was found by them at the emergency parking lot of the hospital, standing

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beside his car which had headlights and windshield damage and a missing aerial, all on the right side.

After the Crown had completed its case, counsel for the accused moved for a dismissal on the ground that “the Crown… failed to establish a sufficient case to go to the jury”, that is, that there was no evidence to go to the jury in that “the only evidence we have here, what we have here is an accident and that is about all”. This motion was given short shrift, with the trial judge stating “there is an abundance of evidence, the accused’s statement to the police officer… and he admits he was driving the car and the evidence of the witnesses who saw the man struck so there is plenty of evidence to go to the jury…”.

The charge, to which the evidence had to be related, appears to have been an amalgam of the offences created by ss. 193 and 221(1) of the Criminal Code (now ss. 204 and 233(1)); the former makes it an offence to cause bodily harm by criminal negligence; the latter makes it an offence to be criminally negligent in the operation of a motor vehicle; the indictment in this case charged that the accused “by criminal negligence in the operation of a motor vehicle caused bodily harm to one Robert Latus”. However, it is better viewed as charging an offence under s. 193 with an added particular of the criminal negligence that was alleged. Counsel for the Crown and for the accused both treated the charge as one under s. 193. The trial judge, in charging the jury, made a passing reference to s. 193 as having been read by defence counsel, then read to the jury s. 191 of theCriminal Code (now s. 202), which he went on to paraphrase, and towards the end of his charge he read to the jury s. 221(1) and repeated s. 191. He then went on to tell the jury what was “the degree of negligence that the Crown must prove before an accused may be convicted of criminal

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negligence in the operation of a motor vehicle”. I shall return to this instruction shortly but I note that this exposition followed earlier statements in the charge that the two issues in the case were: “Was the accused driving this car at five o’clock in the morning on September 22 on Webster Avenue and was he driving it in a criminally negligent manner”; and that “the theory of the Crown is that the accused deliberately ran down Latus on Webster Avenue causing him serious injuries”.

It is manifest that the trial judge did not present any clear picture of the offence which the jury had to consider; and, if anything, he left them to consider criminal negligence in the operation of a motor vehicle, but associated with the infliction of personal injury upon Latus.

Criminal negligence, as defined in s.191 is as follows:

(1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, “duty” means a duty imposed by law.

The trial judge, after telling the jury that there is a duty in law upon the operator of a motor vehicle “to use reasonable care to avoid endangering the lives and safety of other people on the roads”, instructed them on criminal negligence as follows:

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I direct you gentlemen that the Crown must prove to your satisfaction beyond a reasonable doubt that the accused acted either:—

(a) with the deliberate intention of doing something or omitting to do something which was his duty to do, the consequence of which he knew or should have known would endanger the lives or safety of others, or

(b) with such disregard for the lives and safety of others as would indicate that he was heedless of what the consequences of his conduct would be.

From the foregoing it will be seen that as regards the offence with which the accused Arthurs is charged, the Crown to succeed must prove to your satisfaction beyond a reasonable doubt, each and every one of the following items—

Item I.—that the accused on the 22nd day of September 1968 while driving a motor vehicle along Webster Avenue in the City of Toronto, the accused did deliberately run down Robert Latus thereby causing him serious injuries.

Item II.—that at the place and time aforesaid the accused Arthurs showed wanton or reckless disregard for the lives or safety of Latus and other persons.

This instruction is in the words of the late Mr. Justice Morden speaking for the Ontario Court of Appeal in Regina v. Titchner[2], an instruction which does not appear to have been followed, in respect of its first branch, in other provincial jurisdictions: see, for example Regina v. Belbeck[3], and Regina v. Rogers[4]; and there appears to have been a recession from that instruction by the Ontario Court of Appeal itself: see Regina v. Torrie[5]. Indeed, I am of the opinion that the instruction as to deliberate intention puts the obligation of the Crown at too high a level in respect of a charge to which criminal negligence is basic. Although the question of the type of mens rea involved in criminal negligence, as defined in s.191(1), was not directly in issue in the judgments of this Court in O’Grady

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v. Sparling[6], Binus v. The Queen[7], and Peda v. The Queen[8], these cases support the conclusion that subjective intent is not a necessary ingredient of criminal negligence.

This assessment has a bearing on the position taken by appellant’s counsel on the first question on which leave to appeal was granted. Counsel’s submission was that having regard to the purport of the Crown’s evidence, to the theory of the Crown, and, indeed, to the like view of the case taken by the trial judge (as revealed, for example, in his remarks when imposing sentence), the ascription of deliberation to the accused negatived criminal negligence and hence entitled him to an acquittal. The principal pressed upon this Court was that expounded in Regina v. Barnard[9], where it was held by a single judge (differing from the view of a brother judge on the same point in a prior trial of the accused on the same charge) that an indictment charging the offence of causing bodily harm by wanton driving could not be supported where the evidence showed that the victim died as a result of the wanton driving. Accordingly, at the conclusion of the Crown’s case, the jury was directed to bring in a verdict of not guilty.

I do not find it necessary to consider here whether the Barnard decision states a principle applicable in this case, or how far it turned on particular provisions of Tasmanian law or whether the fact that the evidence tended to

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show culpable homicide meant, in the light of the local law, that it should have been charged as such, or whether it is central to the submission of appellant’s counsel that he be able to show that the appellant would be deprived of the right to plead autrefois convict or acquit, as the case may be, if tried on a charge on which the evidence, as lead, would show a graver offence. As to this last observation, reference may be had to s. 519(1) of the Criminal Code (now s.538(1)) which reads as follows:

Where an indictment charges substantially the same offence as that charged in an indictment on which an accused was previously convicted or acquitted, but adds a statement of intention or circumstances of aggravation tending, if proved, to increase the punishment, the previous conviction or acquittal bars the subsequent indictment.

What is clear here is that at the close of the Crown’s case—and it is with this point of the trial that we are concerned—there was evidence in the statement of the accused denying intent. It was proper, therefore, to send the case to the jury, even on the erroneous instruction given to them, since it could not be said that any conviction, if made, must necessarily rest on evidence which would establish a more serious offence than that charged. This is enough to dispose of the point raised under the first question without embarking on any discussion of the Crown’s discretion to lay a lesser charge than what the evidence that it has, if fully accepted, would support.

Turning to the second question, I am of the opinion that the trial judge failed lamentably to put before the jury the defence of the accused. There is not a single sentence in the entire charge that goes to any defence of the accused under the law and, especially in respect of the parts of his statement that would be exonerating, if believed. Accused’s counsel raised the

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issue of accident when making his motion for dismissal, and, in his address to the jury, read the accused’s statement and asked that it be believed. Accident, as a defence, required not only mention but explanation since it could have more than one meaning, including complete absence of negligence as well as momentary inattention. The statement given by the accused was as follows:

Well there is a possibility that I might have hit him. I’m not too positive about that. It started with me going into the restaurant and after entering the restaurant I was confronted by this fellow who asked me what was I doing there? I asked him what that has to do with him and he insisted to know what did I come in the restaurant for and he appeared to be drunk. So I ignored him and placed my order. I was served and started to go out and these two coloured guys was coming in and this fellow went over to one of the fellows and wanted to know what he was doing in the restaurant also. At one stage when he confronted me he told me that I was black and he was white I replied that I knew this. Now, when he asked this coloured fellow what he was doing inside this fellow smiled and the white fellow got nasty and slapped the coloured fellow and then he slapped back and a fight broke out and I left the restaurant and went and sit in the car that was parked on Avenue Rd., just beside the restaurant. A few seconds later the coloured fellow came staggering out and had blood all over his face. So I managed to get him into my car and started up and turned around to go along Webster Avenue and further up the avenue these two fellows were crossing the road, and its a bit hazy what happened there but I can remember them running across the road and the fellow beside me was groaning and I remember glancing at him and I realized I was going into the curb and there was a light post there and I swerved out and there was an impact and I knew the fellows they jumped across and there was a possibility that I might have hit one of the fellows. During this period I realized that one of the fellows was the one who picked on me in the restaurant and out of fear I kept going until I reached the Western Hospital where I phoned the Police. I later learned from one of the officers that one of the fellows was injured thats about all so far.

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In his charge the trial judge first referred to the statement to support the identification evidence of Crown witnesses. He then told the jury that it was to be regarded in the same way as any other evidence in the case; it could be believed or disbelieved in whole or in part. Pages of the charge were devoted to a minute repetition of the evidence of the Crown witnesses, and this recital was associated with express reference to the theory of the Crown. Towards the end of the charge he came back to the statement in these words:

I am not going to go over all the contents of the written statement of the accused man because it is quite lengthy. You will have it with you in the jury room and you will have ample opportunity to consider it. He admits he was driving the car. There is no suggestion that he was ill. There is no suggestion that there was something wrong with the car. There was some talk about being hazy. I don’t know what hazy means. The first officer didn’t say anything about being hazy. I think I indicated to you before that insofar as the fight that took place in the restaurant, that does not justify the accused or any other person in running a man down with a car.

The only other reference to the accused’s position was this sentence:

So far as the defence is concerned Mr. Lindsay [accused’s counsel] says that the Crown has failed to prove this case beyond a reasonable doubt and he says that Latus is not to be believed.

A trial judge does not put the defence to the jury merely by emphasizing that the Crown carries the ultimate burden of proof to the end of the case or by telling the jury what the issues are under the applicable law. Courts have said time and again that an accused is entitled to have any defence, however poor it may be, which is raised by the evidence, put directly to the jury; and this, whether or not his counsel has advanced it and whether or not defence evidence was offered: see Henderson v. The

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King[10]. A fortiori is this so where a defence has been advanced, as in this case, and where, if accepted or if taken to raise a reasonable doubt when measured against the Crown’s evidence, the verdict must be one of acquittal.

It is of no consequence in a jury trial that the trial judge does not believe in the defences which the evidence raises. If he sends the case to the jury he must send it evenhandedly, with equal fairness to the accused, according to the evidence, and to the Crown. This was not done here; in fact, the charge can best be described as drawing an obscuring curtain over any exonerating factors telling in favour of the accused, keeping them from the jury’s view. Of course, the jury heard the evidence; of course, the accused’s statement was in its hands as an exhibit produced by the Crown (a statement which the trial judge mentioned in its features adverse to the accused when it was mentioned at all). These considerations are not a substitute for the trial judge’s obligation to conduct the case fairly between state and individual. He must tell the jury what is the legal significance of the evidence put in by way of the accused’s statement. If they are to take the law from him (and this is basic to our view of a criminal trial before judge and jury), he cannot default in his duty to bring it into relation to the evidence.

I do not say that the trial judge is under obligation to give a meticulous review of the evidence, although as I have pointed out he did this here in respect of the Crown’s case. From this point of view, I do not dwell, in relation to the present case, on the situation which this Court faced in Azoulay v. The Queen[11]. The paraphrase of the evidence, the question of put-

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ting it substantially to the jury, is only one part of the composite obligation of making clear to the jury what are the defences to a charge. The other part is to give a legal characterization of the evidence. There will be cases where greater or lesser attention is necessary to the details of evidence supporting one or more defences. I cannot, however, conceive of cases where, upon a trial after a plea of not guilty, it is unnecessary to tell the jury what the defence is. In Provencher v. The Queen[12], Cartwright J., as he then was, speaking for the Court, said (at p. 100) “The theory of the defence was simple enough and no elaborate direction was called for; it was however incumbent on the trial judge to point out to the jury [what] this theory was…” [The Italics are mine]. Dispensation with an elaborate direction is one thing; failure to give any direction is something else, and that is the present case.

I would, on this ground, allow the appeal, set aside the conviction and direct a new trial.

One further point was taken by appellant’s counsel under the second question of law, namely, that the trial judge ought to have directed the jury on the offence of dangerous driving, as an included offence, on which a verdict was open under the charge as laid and on the evidence adduced in support of it. I would not construe the second question so narrowly as to exclude this ground, which, indeed, was raised on the application for leave. In any event, it is open to the Court to expand the grounds of leave; and in this case, as its factum shows, the Crown was not taken by surprise and responded fully in its factum to this ground, albeit it was very shortly stated in the appellant’s factum.

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That dangerous driving may be an included offence under a charge of an offence under s.193 is expressly stipulated in s. 569(4) (now s. 589(5)) which, so far as material, provides that “Where a count charges an offence under section…193…arising out of the operation of a motor vehicle…and the evidence does not prove such offence but does prove an offence under subsection 4 of section 221…the accused may be convicted of [the latter] offence…” The only question then is whether the evidence, including the statement of the accused, could be viewed as supporting a conviction of dangerous driving if it was not sufficient to prove the offence charged. In my opinion, such a view was open; and I do not think that the mere assertion of accident, which has a range of meanings, is enough to disentitle the accused to have a direction on the lesser offence. I cannot accept what was said by Richards J. in Regina v. Billingsley[13], as stating a general principle, without regard to the nature of the offence to which a defence of accident is raised.

This second defect in the charge reinforces the direction I would make for a new trial; and I repeat that the appeal should accordingly be allowed and a new trial directed. It would not be proper on the record before us to accede to the request of appellant’s counsel to substitute a conviction of dangerous driving, albeit there is power in this Court so to do.

Appeal dismissed, HALL, SPENCE and LASKIN JJ. dissenting.

Solicitor for the appellant: A. Maloney, Toronto.

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Solicitor for the respondent: the Attorney General for Ontario, Toronto.