Court of Appeal of Quebec

Sarazin c. R.

June 26, 2018


Dufresne, Levesque, Healy

Appeal from convictions. Allowed in part, with dissenting reasons.

After convicting the appellant of criminal negligence causing death (count No. 1); dangerous driving causing death (count No. 2); impaired driving causing death (count No. 3); and operating a motor vehicle while his blood alcohol level exceeded the legal limit (count No. 4), the trial judge ordered a stay of proceedings on counts 2 and 3 due to the principle stated in Kienapple v. R. (S.C. Can., 1974-02-12), SOQUIJ AZ-75111060, [1975] 1 S.C.R. 729.

With respect to counts 1 and 2, the judge properly directed himself in pointing out that criminal negligence is established once the prosecution proves beyond any reasonable doubt that the accused’s behaviour was a marked and substantial departure from the behaviour of a reasonably prudent person placed in the same circumstances. Criminal negligence is not a mens rea offence because it does not require evidence of a state of mind; it is an objective fault that may, in principle and strictly according to context, apply to any circumstance and any behaviour, action or activity. However, the grounds justifying a conviction on all counts pose a problem because the judge considered only the accumulation of the various elements. Thus, it is not possible to determine what distinguishes negligence from dangerous driving or establish the connection between the evidence and the constitutive and essential elements of the four offences charged. In addition, it is impossible to know what elements of the appellant’s behaviour exceeded the threshold of marked departure and marked and substantial departure compared to the conduct of a reasonable person placed in the same circumstances. In fact, the evidence does not clearly ground a conclusion that the appellant was impaired when driving. Consequently, an acquittal will be entered on count 3 and a new trial on counts 1 and 2 will be ordered. 

Moreover, count 4 is the legal equivalent of unlawful act manslaughter, which is, in practice, the legal equivalent of criminal negligence causing death as worded in the first count. Even if criminal negligence does not necessarily entail an excessive level of alcohol, and vice versa, the rule stated in Kienapple applies between the first and the fourth counts because they are two forms of culpable homicide that are legally equivalent. Despite the fact that the constitutive elements are not identical, both offences in this case have the same basis. Thus the rule against multiple convictions should have been applied at trial and could possibly apply to the fourth count if a conviction follows the new trial on counts 1 and 2.

*Summary by SOQUIJ
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