Dangerous Driving Conviction overturned due to insufficient jury instructions and the Judge’s Conduct at trial.

Published On: Aug 02,2019

Dangerous Driving in Canada, Section 320 of the Criminal Code of Canada.
Dangerous Driving in Canada and the scope of Judicial Intervention Required to give rise to a reasonable apprehension of bias.

The Ontario Court of Appeal, in Regina v. Ibrahim, 2019 ONCA 631, overturned the accused’s conviction for manslaughter and ordered a new trial. In that case, the accused, who was driving a taxi in downtown Toronto, collided with a skateboarder, killing him instantly. The accused was charged with second degree murder. The allegation posited by the Crown alleged that, while the accused was in a state of road rage, the accused intentionally struck the deceased with his taxi.  The defence raised by the accused that was that he was unaware of the deceased’s presence, and collided with the deceased as a result of a momentary lapse of attention as he was changing lanes. The jury found the accused guilty of manslaughter.

The Court of Appeal allowed the accused’s appeal on the basis that the trial judge’s instructions to the jury were deficient. Specifically, the trial judge erred in his instructions on how to apply the principles in Regina v. W.(D.), 1991 CanLII 93, [1991] 1 S.C.R. 742 to liability for manslaughter based on the unlawful act of dangerous driving.

The court stated (at para. 59): “Taken together, the trial judge’s instructions on the application of W.(D.) were confusing. His instructions had the effect of improperly neutralizing any exculpatory value of [the accused’s] testimony as it related to dangerous driving.

The Court explained that:

… the  jury should have been instructed in no uncertain terms that the appellant’s evidence – whether accepted as true or not – was relevant to whether the Crown had proved each of the elements of dangerous driving beyond a reasonable doubt. We acknowledge that the trial judge’s third and fourth points set out above could be taken as an attempt to revive the appellant’s testimony as being capable of amounting to reasonable doubt. But this can only be achieved by construing the qualifying words (underlined in the quoted passage at para. 57 above) “on any element of the offence you are then considering” and “of the offence you’re then considering” as including the offence of dangerous driving. However, dangerous driving had already been immunized from this treatment in earlier portions of the charge. Considered as a whole, the final instructions on how to deal with the appellant’s evidence in relation to dangerous driving would have been confusing.

The court declined to give effect to the accused’s other ground of appeal, namely, that the trial judge’s conduct during the trial created a reasonable apprehension of bias. However, the Court’s comments concerning how the trial was conducted is worth noting. The Court of Appeal stated:

  • They were of the view that the trial judge conducted the mistrial application in an injudicious manner. The trial judge made unfounded and unfair allegations that defence counsel had engaged in potentially disciplinable conduct, and accused defence counsel of “petulance” when he complained about those allegations. However, given that this portion of the proceedings occurred entirely in the absence of the jury, we are not persuaded that this aspect of the trial judge’s conduct had any impact on the overall fairness of the proceedings.

  • While some of the trial judge’s comments and interventions during defence counsel’s examination of some witnesses, and during defence counsel’s submissions, were unwarranted, we are not satisfied that these interventions, either individually or in combination, gave rise to a reasonable apprehension of bias. The law affords trial judges wide latitude in discharging trial management responsibilities. As this court said in  v. Hamilton2011 ONCA 399 (CanLII), 271 C.C.C. (3d) 208, at para. 30, leave to appeal refused, (2012), [2011] S.C.C.A. No. 547; [2012] S.C.C.A. No. 46; [2012] S.C.C.A. No. 151; [2012] S.C.C.A. No. 166: “When evaluating interventions by a trial judge, the fundamental question is whether the interventions led to an unfair trial. This assessment is made from the perspective of a reasonable observer present throughout the trial” (citations omitted).

  • The court was concerned about “the allegations regarding the trial judge’s deportment during the trial – his facial expressions, body language, and vocal communications – and about the manner in which he responded to these complaints in his written reasons”. However, the Court stated that they were constrained in our ability to evaluate these claims because, amongst other things, the Court was not invited to listen to the recordings at trial.

The court concluded that, although it was not persuaded that the trial judge’s conduct gave rise to a reasonable apprehension of bias, the trial “was not a model of ‘judicial decorum’” (at para. 112).

If you have been charged with Dangerous Driving under s. 320 of the Criminal Code of Canada, contact Mr.  J. S. Patel, Barrister at 403-585-1960 to schedule a free consultation.