Couldn’t give classic instruction due to nature of liability for dangerous driving

Criminal Law - Jury - Charging Jury

While driving taxi, accused changed lanes, collided with deceased, who was riding longboard on street, and ran over him, killing him. At trial on charge of second degree murder, accused denied having altercation with deceased and claimed he was looking for fare and did not see deceased. Trial judge gave standard instruction on how to apply burden of proof to issue of credibility in relation to second degree murder and assault as basis for unlawful act manslaughter. However, with respect to dangerous driving as basis for unlawful act manslaughter trial judge instructed jury that even if they accepted accused’s explanation or were left with reasonable doubt that it might be true, they must consider whether reasonable person in similar circumstances ought to have been aware of risk and of danger involved in driving in manner he did. Accused was convicted of manslaughter. Accused appealed arguing trial judge erred in instructing jury on how to apply burden of proof to issue of credibility with respect to liability for manslaughter based on unlawful act of dangerous driving, among other things. Appeal allowed; New trial ordered. Trial judge’s instructions were deficient. Trial judge correctly instructed jury on elements of dangerous driving and correctly concluded that classic instruction on how to apply burden of proof to issue of credibility could not be given due to modified objective nature of liability for dangerous driving. However, accused’s evidence still had exculpatory potential in assessing whether Crown had established elements of dangerous driving, and trial judge’s instructions improperly neutralized that potential by failing to explain how his evidence could raise reasonable doubt.

R. v. Ibrahim (2019), 2019 CarswellOnt 11969, 2019 ONCA 631, Paul Rouleau J.A., Gary Trotter J.A., and B. Zarnett J.A. (Ont. C.A.).

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