Précis: The British Columbia Court of Appeal upheld the conviction of the Fourth Officer of the “Queen of the North” on two counts of criminal negligence causing death and leave to appeal to the Supreme Court of Canada was denied.
Facts: The accused was the fourth officer of the passenger ferry, “Queen of the North”, and the officer on watch and in command of the bridge when the “Queen of the North” struck Gil Island and sank on 22 March 2006. At the time there were 101 passengers and crew on board the ferry. Two individuals lost their lives. The accused was charged and convicted by a jury of two counts of criminal negligence causing death and was sentenced to a prison term of four years. (The sentencing decision is reported at 2013 BCSC 1329.) The accused appealed the conviction on four grounds, namely:
(1) the sections of the Criminal Code pertaining to criminal negligence causing death were contrary to the Charter of Rights (an issue not raised at trial);
(2) the trial Judge failed to properly instruct the jury with respect to the legal duty of the accused and the standard of care;
(3) the trial Judge failed to properly instruct the jury with respect to the essential elements of criminal negligence; and,
(4) the trial Judge failed to instruct the jury on the defence of mistake of fact.
Decision: Appeal dismissed.
(1) The accused challenges the sections of the Criminal Code pertaining to criminal negligence causing death arguing these sections are contrary to s. 7 of the Charter of Rights because they are vague, offend the presumption of innocence and permit an accused to be convicted without a finding of mens rea. This issue was not raised at trial and, generally, a new issue cannot be raised on appeal unless all relevant evidence is in the record. A new charter defence may only be raised on appeal in exceptional circumstances. It is only in circumstances where “balancing the interests of justice to all parties leads to the conclusion that an injustice has been done”, that a new ground may be raised on appeal. The test is not met in this case. There is insufficient evidence to raise this issue on appeal and it is not apparent that refusing to hear the charter issue will lead to an injustice. There are numerous precedents where the Supreme Court of Canada has carefully considered the mens rea component of criminal negligence causing death which the accused impugns.
(2) The accused submits the trial Judge erred in her charge to the jury by stating the accused had a duty to “safely” or “properly” navigate the vessel, as opposed to a duty to simply navigate the vessel. Although the accused argued these adjectives implied guilt regardless of fault, they do not. They are mere forms of speech used to describe an obligation to be careful. Moreover, the Crown’s expert stated the duty as being one of “safe navigation”. The accused also argues the trial Judge failed to properly describe the standard of care by suggesting the accused was bound to follow the Collision Regulations. However, there was no real controversy at trial as to the scope of the duties of a professional mariner. The jury was under no doubt that they were to compare the appellant’s conduct against the standard of a reasonably prudent mariner.
(3) The accused argues the trial Judge conflated the mens rea and actus reus elements of the offence of criminal negligence but the Judge correctly made clear to the jury that they must find both elements and left nothing out of the charge. There is no requirement that these elements be satisfied independently from one another. The Judge’s charge closely followed the model instruction prepared by the Canadian Judicial Council. To prove the accused showed a wanton or reckless disregard for the lives or safety of others, the Crown is not required to prove the accused intended to kill or seriously harm. It is sufficient if the Crown proves, beyond a reasonable doubt, that the accused’s conduct showed a marked and substantial departure from the conduct of a reasonable person and that a reasonable person in the same circumstances would have foreseen that this conduct posed a serious risk of bodily harm.
(4) The accused contends that his evidence of what transpired supported a defence of mistake of fact and that this defence ought to have been put to the jury. The evidence of the accused was that the he had given instructions for a course change prior to the collision. However, the evidence of the Crown did not support this testimony. The Judge instructed the jury that if they believed the accused, they should acquit him. The jury must have accepted the Crown’s evidence and rejected the testimony of the accused.
Comment: An application for leave to appeal to the Supreme Court of Canada was dismissed at 2015 CanLII 26235.