Bélanger v. The Queen, [1970] SCR 567

Supreme Court of Canada

Bélanger v. The Queen, [1970] S.C.R. 567

Date: 1970-03-02

Alfred Frederick Bélanger Appellant;

and

Her Majesty the Queen Respondent.

1970: February 4; 1970: March 2.

Present: Cartwright C.J. and Fauteux, Abbott, Mart-land, Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Criminal law—Dangerous driving—Passenger turned police cruiser into path of oncoming car—Whether within ambit of s. 221(4) of the Criminal Code—Whether dangerous driving under s. 221(4) an included offence on the facts—Criminal Code, 1953-54 (Can.), c. 51, ss. 192, 221(4), 569(4).

The appellant was charged with criminal negligence, contrary to s. 192 of the Criminal Code. The jury found him guilty of dangerous driving. The appellant, whose vehicle had been in an accident in which no other vehicle was involved, was being driven home in a police cruiser. He grabbed the steering wheel with both hands and turned it to the left, causing the cruiser to veer sharply to the left where it immediately collided head-on with an oncoming car, causing the death of one of its occupants. The conviction was affirmed by the Court of Appeal. The appellant was granted leave to appeal to this Court on the grounds that there was no evidence upon which the jury could find that he was driving

[Page 568]

and that the Court of Appeal erred in failing to hold that the trial judge erred in instructing the jury that dangerous driving under s. 221(4) was an included offence on the facts in the case.

Held (Cartwright C.J. and Hall and Spence JJ. dissenting: The appeal should be dismissed.

Per Fauteux, Abbott, Martland, Judson, Ritchie and Pigeon JJ.: For the few moments while the cruiser was being driven from its own right hand lane directly into the lane which was reserved for the traffic approaching from the opposite direction, it was being driven by someone in a manner dangerous to the public. Any person who has created the danger by consciously assuming physical control over the direction of the vehicle is within the ambit of s. 221(4) as being a person whose act caused the vehicle to be driven dangerously. For those few moments, the appellant was “one who drives a motor vehicle on a … highway … in a manner that is dangerous to the public …” within the natural and ordinary meaning of those words as they occur in s. 221(4). There was no error on the part of the trial judge in charging that dangerous driving under s. 221(4) was an included offence on the facts.

Per Cartwright C.J. and Hall and Spence JJ., dissenting: It is not possible by the ordinary usage of the English language, giving to the words “who drives a motor vehicle” in s. 221 (4) their meaning in the speech of plain men, to say that the appellant was driving the cruiser.

APPEAL from a judgment of the Court of Appeal for Ontario affirming the appellant’s conviction for dangerous driving. Appeal dismissed, Cartwright C.J. and Hall and Spence JJ. dissenting.

John O’Driscoll, Q.C., and R.V. Donohue, for the appellant.

R.M. McLeod, for the respondent.

The judgment of Cartwright C.J. and of Hall and Spence JJ. was delivered by

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THE CHIEF JUSTICE (dissenting)—This appeal is brought, pursuant to leave granted by this Court, from a unanimous judgment of the Court of Appeal for Ontario delivered, without recorded reasons, on October 23, 1969, dismissing the appellant’s appeal from his conviction at his trial before Grant J. and a jury at Sarnia on April 3, 1969.

The charge against the appellant was as follows:

At the Township of Moore, in the County of Lambton, on or about the 19th day of January, 1969, ALFRED BÉLANGER did unlawfully cause the death of Viola Momney, by Criminal Negligence, in that he did deliberately grab the steering wheel of a police cruiser in which he was a passenger, from the control of Constable J.W. Bateman, and did recklessly and wantonly turn the said cruiser into the path of an oncoming car with which it collided, contrary to Section 192 of the Criminal Code of Canada.

The verdict of the jury as announced by the foreman was:

The jury finds the prisoner not guilty of the charge of criminal negligence but guilty of the lesser charge of dangerous driving.

The learned trial Judge imposed a sentence of imprisonment in the Ontario Reformatory for six months definite and two months indeterminate and made an order prohibiting the appellant from driving a motor vehicle on the highway in Canada for a period of one year from his release from the Reformatory.

The grounds on which leave to appeal to this Court was granted are:

(1) That there was no evidence upon which the jury could find that the appellant was driving.

(2) That the Court of Appeal erred in failing to hold that the learned trial Judge erred in instructing the jury that ‘dangerous driving’ under Section 221(4) of the Criminal Code of Canada was an included offence on the facts in the case.

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While there was a sharp conflict of evidence at the trial it is clear, from their verdict considered in the light of the charge of the learned trial Judge, that the jury must have accepted the evidence of the Crown witness, Constable Bateman, and the appeal was argued by both counsel on the basis that the relevant facts were as follows.

On the evening of January 19, 1969, at about 8.30 p.m., Constable Bateman at a point on Highway No. 40 about 0.6 miles north of its intersection with Lambton County Road No. 2, found that the appellant’s vehicle had been in an accident in which no other vehicle was involved. The appellant identified himself as the driver of the vehicle; he had with him a passenger named Gary Anderson. At that time, no arrests were made. The appellant’s vehicle, because of the damage it had suffered, could not be operated and Bateman called a tow-truck and then offered to drive the appellant and Anderson back to their homes in Corunna, Ont. This journey commenced at about 9:15 p.m.; Bateman was sitting in the driver’s seat and was driving the police cruiser, the appellant was seated to his right and to the appellant’s right sat Anderson. Almost immediately Bateman told the appellant that he would be charged with careless driving as the result of the accident; Anderson and the appellant argued with Bateman regarding the proposed charge of careless driving, but after a short time, this argument ceased.

As Bateman was proceeding north he had his left hand on the steering-wheel and in his right hand he was holding the two-way police radio and resting this hand on the steering-wheel as he awaited a chance to complete a radio call to the dispatcher at Chatham. At this time neither the appellant nor Anderson said anything; as the police crusier was entering an “S” curve to the north of the Hydro Plant on Highway No. 40, at a speed of about forty miles an hour, the appellant reached over quickly, grabbed the steering-wheel with both hands and turned it to the left, causing the cruiser to veer sharply to the left where it immediately collided head-on with a southbound vehicle; as a result the death of Viola Momney was caused.

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The appellant’s defence was a flat denial of having touched the steering-wheel; it is obvious that this was rejected by the jury.

It seems clear that, in the absence of excuse or explanation, the conduct of the appellant would have warranted a verdict of guilty of criminal negligence; the question of law which we have to decide is whether it fell within the terms of s. 221(4) of the Criminal Code which reads as follows:

(4) Every one who drives a motor vehicle on a street, road, highway or other public place in a manner that is dangerous to the public, having regard to all the circumstances including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place, is guilty of

(a) an indictable offence and is liable to imprisonment for two years, or

(b) an offence punishable on summary conviction.

The two grounds on which leave to appeal was granted really raise a single question. That what the appellant did was dangerous is unquestionable; but can it be said that he drove the police cruiser? I have reached the conclusion that it cannot.

In the course of the argument reference was made to a large number of reported decisions but none of these are directly in point. The closest case on the facts is the decision of my brother Spence, then sitting in the High Court of Justice for Ontario, in McKenzie v. The Western Assurance Company[1], in which it was held that the intoxicated owner of an automobile, which was being driven for him by a competent driver, who suddenly grasped the steering-wheel and thereby caused a collision was not driving the automobile. However, that case is distinguishable from the case at bar in that it was held that the owner’s action in grasping the wheel was unintentional.

The case at bar appears to me to depend on the true construction of the words of s. 221(4), and particularly the words “who drives a motor

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vehicle”. The well-settled rule of construction has recently been re-stated by Lord Reid in Pinner v. Everett[2]:

In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase. We have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute.

Lord Reid went on, at p. 259, to state the task of the Court as follows:

I must therefore consider in what circumstances a person can, by the ordinary usage of the English language, properly be said to be driving a car.

Suppose that after the collision another Police Officer had arrived at the scene and questioned Bateman as to who was driving the cruiser at the time of the crash, can it be doubted that he would have answered: “I was; but this man, Bélanger, caused the collision by grasping the wheel”, or words to the same effect? If the conduct with which the appellant is reproached is to be described in plain English it is not driving the automobile but interfering with the driving of Bateman.

I do not find it possible by the ordinary usage of the English language, giving to the words “who drives a motor vehicle” their meaning in the speech of plain men, to say that the appellant was driving the cruiser.

If the matter were doubtful, which I do not think, I would apply the following passages from the reasons of McRuer J.A., as he then was, giving the unanimous judgment of the Court of Appeal in Rex v. Wright[3]:

In this, as in all criminal cases, the onus is on the Crown to make out a case against the accused beyond a reasonable doubt in law as well as in fact.

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The quotation from Maxwell on Interpretation of Statutes, 7th ed. 1929, p. 244, relied upon by Lord Hewart C.J. in Rex v. Chapman, (1931) 2 K.B. 606 at 609, is directly applicable to this case:

Where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the Legislature which has failed to explain itself.

* * *

I think it is of first importance in interpreting words used in a statute passed for the purpose of regulating the conduct of individuals and imposing penalties, to give to them the meaning that would ordinarily be given by the ordinary individuals whose conduct it is sought to regulate.

I would allow the appeal, quash the conviction and direct a verdict of acquittal to be entered.

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

RITCHIE J.—I have had the advantage of reading the reasons for judgment of the Chief Justice in which he reviews the facts giving rise to this appeal and I will endeavour not to repeat those facts except insofar as appears necessary for the understanding of my own reasons.

As the Chief Justice has pointed out, the appellant was originally charged under s. 192 of the Criminal Code with criminal negligence in that he “did recklessly and wantonly turn the said cruiser into the path of an oncoming car with which it collided …”.

By its verdict the jury found that the appellant was “not guilty of criminal negligence but guilty of the lesser offence of dangerous driving.” This constituted a finding that the appellant was in breach of the provisions of s. 221(4) of the Criminal Code, which gives rise to the question that lies at the heart of this appeal, of whether it can be said that, at the time and place in question, the appellant was “one who drives a motor vehicle on a … highway … in a manner that is dangerous to the public, having regard to all the circumstances.”

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It seems to me important in construing s. 221(4) to consider the context in which the words are used and to have in mind the fact that the section was enacted for the protection of lawful users of the highway against motor vehicles which are being driven to the public danger. In this regard there cannot, I think, be any doubt that for the few moments while the police cruiser was being driven from its own right-hand lane of the highway directly into the lane which was reserved for traffic approaching from the opposite direction, it was being driven by someone “in a manner… dangerous to the public,” and it cannot be said that there was at any time anything “dangerous to the public” in the conduct of the police constable or in his manner of driving.

If a motor vehicle is being driven carefully and lawfully on the public highway and it is suddenly diverted so as to be driven in such a manner as to be dangerous to the public, any person who has created the danger by consciously assuming physical control over the direction of the vehicle is, in my opinion, within the ambit of s. 221(4) as being a person whose act caused the vehicle to be driven dangerously.

The fact is that the police cruiser was driven from its own lane directly into the lane reserved for approaching traffic because the appellant had deliberately grabbed the steering wheel and taken control from the hands of the constable. Under these circumstances, with the greatest respect for those who hold a different view, I am of opinion that for the brief period during which the appellant assumed control, he was solely responsible for the dangerous driving of the cruiser and he was for those few moments “one who drives a motor vehicle on a … highway … in a manner that is dangerous to the public…” within the natural and ordinary meaning of those words as they occur in the context of s. 221(4) of the Criminal Code.

I have given careful consideration to the reasons for judgment rendered by Mr. Justice Spence at trial in McKenzie v. The Western Assurance Co.[4], and like the Chief Justice, I see a clear distinction between the unintentional act

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of McKenzie in grabbing the wheel when he slipped from the seat and the deliberate action of the appellant in grabbing the wheel of the police cruiser and taking control from the constable.

It appears to me to be clear that the charge of criminal negligence under s. 192 was a charge “arising out of the operation of a motor vehicle” and having regard to the provisions of s. 569(4) of the Criminal Code, there was, in my opinion, no error on the part of the learned trial judge in charging the jury that “dangerous driving under s. 221(4) was an included offence on the facts of the case.” The relevant portions of s. 569(4) read as follows:

Where a count charges an offence under section 192 … 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 an offence under subsection (4) of section 221 …

For all these reasons I would dismiss the appeal.

Appeal dismissed, CARTWRIGHT C.J. and HALL and SPENCE JJ. dissenting.

Solicitors for the appellant: O’Driscoll, Kelly & McRae, Toronto.

Solicitor for the respondent: W.C. Bowman, Toronto.