Omission of second and third branches of W.(D.) instruction constituted non-direction

Motor vehicle driven by accused overturned after accused failed to negotiate curve and left roadway, resulting in significant injuries to two passengers. Witness overheard accused say “I don’t know what happened, my car just lost control”, and Crown adduced that statement as part of its case. While there was evidence accused was impaired, one of passengers testified that accused lost control after hitting gravel and accident reconstruction expert testified that prior damage to shock absorber could have caused accident. In charge to jury, judge stated that jury must find accused not guilty if they accepted accused made statement attributed to her by witness and accepted accused’s explanation that vehicle lost control and that loss of control was caused entirely by mechanical failure or if jury found loss of control was not entirely caused by mechanical failure, but evidence of mechanical failure raised reasonable doubt or Crown failed to prove impairment was significant contributory cause of loss of control. In recharge judge substituted requirement that jury find loss of control referred to in accused’s statement “was not caused by her in any way” for his initial formulation “was caused entirely by mechanical failure”. Accused was convicted of two counts each of impaired operation causing bodily harm, driving with excessive alcohol causing bodily harm and dangerous driving causing bodily harm. Accused appealed. Appeal allowed. Trial judge did not err in instruction on onus and reasonable doubt in initial charge to jury. In explaining how accused’s statement could be interpreted as exculpatory, trial judge did not cause jury to give extra scrutiny to defence evidence, but rather emphasized interpretation of statement defence argued in address. Judge’s instruction made it clear that even if accident were not entirely caused by mechanical failure acquittal was possible if evidence of mechanical failure raised reasonable doubt or if Crown failed to prove on basis of evidence they did accept that accused was guilty. Interpretation of exculpatory statement in recharge was more general, but was consistent with defence theory of case and based on evidence favourable to accused. However, as judge did not address second and third branches of W.(D.) in recharge, it would not have been clear to jury whether initial instruction on those branches was still applicable. Omission of second and third branches of W.(D.) instruction constituted non-direction amounting to misdirection with respect to crucial aspect of defence and did not appropriately reflect burden of proof on Crown with respect to pivotal element of causation.

R. v. Bacci (2018), 2018 CarswellOnt 20529, 2018 ONCA 928, Alexandra Hoy A.C.J.O., David Watt J.A., and Edward Then J. (ad hoc) (Ont. C.A.).