Hogue, Cotnam, Cournoyer

Appeal from a conviction. Dismissed.

The appellant company was convicted of criminal negligence causing death. The victim, a trucker who was driving a truck owned by the appellant, died when the truck overturned in a curve. The trial judge considered that the failure to maintain the truck and its brakes was a marked and significant departure from the conduct of a reasonable person.

The trial judgment was rendered prior to the Supreme Court of Canada’s judgment in R. v. Javanmardi (S.C. Can., 2019-11-14), 2019 SCC 54, SOQUIJ AZ-51644565, 2019EXP-3128, [2019] 4 S.C.R. 3, which specified the analytical framework for criminal negligence. The judge’s interpretation, based on the Court of Appeal’s judgment in the same case (R. c. Javanmardi (C.A., 2018-05-31), 2018 QCCA 856, SOQUIJ AZ-51499093, 2018EXP-1521), was more favourable to the appellant than the one adopted by the Supreme Court. Indeed, contrary to the principles applied by the judge, the assessment of the act or omission revealing a wanton or reckless disregard for the lives or safety of other persons resides in the fault and not the actus reus. Thus, the standard of fault used by the judge in her analysis was largely favourable to the appellant insofar as the judge carried out the same exercise twice: she assessed the appellant’s conduct with respect to both the wanton and reckless disregard for maintenance and the marked and significant departure. Yet, wanton or reckless conduct is a marked and significant departure in relation to the standard of a reasonable person. These are not two separate standards, as the Supreme Court recalled in Javanmardi.

Furthermore, the judge did not give undue attention to the consequence in applying criminal negligence. The fact that she assessed the marked and significant departure based on a [translation] “standard of care” rather than the standard a reasonable person would observe in the same situation, is not a reviewable error. Even if the expression [translation] “standard of care” that the trial judge used is not the expression accepted by the case law, it underpins the standard of the reasonably prudent person in the same circumstances. What is more, it was open to the judge to analyze the requirement of care because it fluctuates depending on the activity performed, as set out in Javanmardi.

The grounds of appeal on the admissibility of the victim’s statements reported by witnesses in violation of the rule prohibiting hearsay and of propensity evidence are dismissed.

Finally, even if the investigator’s request to obtain documents concerning the appellant held by the Société de l’assurance automobile du Québec pursuant to section 59 of the Act respecting access to documents held by public bodies and the protection of personal information (CQLR, c. A-2.1) constituted an unreasonable search, it did not justify excluding the evidence.

With respect to the destruction of the investigator’s notes before the statements signed by witnesses were prepared and the failure to take notes on the circumstances concerning the meeting of witnesses, the appellant in this case has not established a violation of the fairness of the trial or the integrity of the justice system that would demonstrate that it is one of the clearest of cases where the exceptional remedy of a stay of proceedings is warranted.

Text of the decision: http://citoyens.soquij.qc.ca