In R. v. Tweedie, 2023 NSCA 11, February 15, 2023, the accused struck and killed a young girl who was riding a bicycle. He did not stop and later told police he thought he had hit a deer. He was charged with the offences of dangerous driving causing death; having a blood alcohol concentration equal to or exceeding eighty milligrams; and failing to stop after being involved in an accident resulting in death, contrary to sections 320.13(3), 320.14(3) and 320.16 of the Criminal Code.
He was acquitted of the charges, after a trial.
The Crown appealed from the acquittal, arguing that the trial judge erred:
-by failing to give legal effect to the statutory blood-alcohol levels mandated by s. 320.31(4) of the Criminal Code;
-by failing to consider that the mens rea element for the offence of failing to stop at the scene of an accident can be established through the doctrine of wilful blindness; and
-by failing to consider the totality of the evidence presented in relation to the dangerous driving causing death charge.
The appeal was allowed, the acquittals were set aside and a new trial was ordered.
The Nova Scotia Court of Appeal concluded that the trial judge erred (1) in failing to consider the statutory presumptions in section 320.31(4) of the Criminal Code; (2) in failing to consider if the mens rea element for the offence of failing to stop had been established through the doctrine of willful blindness; and (3) by failing to consider the totality of the evidence.
(1) Did the trial judge err by failing to consider the statutory presumption in section 320.31(4) of the Criminal Code?
Section 320.31(4) of the Criminal Code states:
For the purpose of paragraphs 320.14(1)(b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) or (2), as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.
Breath samples had been taken from the accused. At the trial, the Crown called a toxicologist to extrapolate the blood-alcohol analysis back to the time period in issue. The trial judge considered this evidence, but did not apply section 320.31(4).
The Court of Appeal indicated that section 320.31(4) “creates a conclusive presumption. It is not rebuttable” (at paragraph 15).
The Court of Appeal concluded that “it was an error of law for the trial judge not to apply the presumption in s. 320.31(4). In addition, she did not address Mr. Tweedie’s BAC within the two hour period after he stopped driving even though this was an element of the offence. She was in error by only considering his BAC at the time of the collision and not the time frame specified in the Criminal Code” (at paragraph 24).
(2) Did the trial judge err by failing to consider that the mens rea element for the offence of failing to stop had been established through the doctrine of wilful blindness?
The Court of Appeal held that “the mens rea for this offence requires the Crown to prove one of the following” (at paragraph 28):
1) Mr. Tweedie knew he had been in an accident with a person.
2) Mr. Tweedie was wilfully blind as to whether he had been in an accident with a person.
3) Mr. Tweedie was reckless as to whether he had been in an accident with a person.
The Court of Appeal indicated that “[i]n her decision, the trial judge does not discuss the question of whether Mr. Tweedie was wilfully blind to the possibility he had struck a person…[S]he did not consider that issue nor the evidence which may have been relevant to it” (at paragraph 34).
The Court of Appeal concluded that “the failure of the trial judge to consider the question of wilful blindness could reasonably be thought to have impacted her decision to acquit Mr. Tweedie. I would allow this ground of appeal” (at paragraph 39).
(3) Did the trial judge erred by failing to consider the totality of the evidence in relation to the dangerous driving causing death charge?
The Court of Appeal concluded that though the trial judge did not engage “in piecemealing of the evidence in the sense of requiring proof beyond a reasonable doubt for particular parts of the evidence”, the “trial judge erred by not considering the entirety of the evidence and this was sufficiently serious that the acquittal of Mr. Tweedie is undermined and a new trial required” (at paragraph 51).