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THE cuaaolm. Cl-lARl.'.0'l'TETOWN of

0 Judge Trainer Gives Reasons

For Judgment in Tweedy Case

The foilowinfrsssons for judg- ment in the case of The King vs. George J. Tweedy. -in which the accused was found guilty of driving to the common of get. were given by Judge C.' St. Clair Trainor in the County Court Judge's Criminal Court of Queen's County. yesterday in delivering judgment:

on the 19th day of June. A.D.. 1951. a Bill of Indictment for manslaughter was preferred by the Attorney-General before the Grand Jury of Queen's County at the June sittings of the Supreme Court against the accused in re- iation to the death of one Gerald Solomon. alleged, to have been caused by the accused on the 14th day of April. 1951. while driving a motor vehicle on a highway at or near Southport in Queen's County. When the Grand Jury had intimated that they would find "No Bill” on the man- slaughter charge but indicated a wiiiingncss to find a "True Bill” on a charge of dangerous driving, the indictment was thereupon amended by leave of the Court and a second Count charging dan- gerous driving was then added. The Grand Jury then dealt with the indictment by finding "No Bill" as to the charge of man- slaughter, but a "True Bill" on the charge of dangerous driving under Section 285(6) of the Crim- inal Code.

On the 26th day of June. A.D. 1951. before arraignment in Supreme Court, the accused. be- ing on bail. appeared before me and elected Trial by a Judge with. out the intervention of a jury. under the provisions of Part. XVIII of the Criminal Code. The trial was then set for July 10. 1951, and the accused. on the said da.V. appeared before this Court and was formally charged as fol- iows: "You. George J. Tweedy. are charged for that you. on the 14th day of April. AD.. 1951. at or near Southport in Queen's County. did unlawfully drive a motor vehicle on a highway in a man- ner dangerous to the public. hav- ing regard to all the circum- stances of the case. including the nature, condition and use of the highwsy slid the amount of traf- fic which was actually at the time or might reasonably have expect- ed to have been on such high- way at the time. contrary to the Statute in such case made and provided.” No objection was taken to the charge or otherwise and a plea of "Not Guilty" was made.

The foregoing charge is laid under the provisions of Sub-Sec- tion 6 of Section 285 of the Crim- inal Code of Canada as enacted by 1938 c.44 s16. which is as fol- lows: -

"Every one who drives a motor vehicle on a street. road. high- way or other public place reck- lessly. or in a Tl'lH'l'il'i!!""Wlllch:ll dangerous to the public. having regard to all the circumstances of the case. including the nature. condition. and use of the street. road, highway or place. and the amount of traffic which is actual- ly at the lime. or which might reasonably be expected to be. on such street. road. highway or place. shall be guilty of an of- fence and liable

is) upon indictment to impris- onment for a term not extfeedlnlg two years or to a fine not ex- ceeding one thousand dollars or

to both such imprisonment and the cue M"rBusri:Il:"c'9TE:"';ini;' fine: or ' ' v (b) on Illhlmlsy conviction to 88 Cioic 51' where." Camnbe"

imprisonment for a term not ex- ceeding three months or to a fine not exceeding one hundred do.- iars or to both such impi'ison- ment and fine."

In a trial such as this I find myself in the unfortunate pos- ition of having to perform the? functions of both Judge and Jury. I. therefore. must diret-t myself as to the law it-volved in the case and apply that law to the facts as disclosed by the ev- idence. .

Many authorities have been cited to me but often they gave but little help because of their ap- plication to a set of facts very different from this case. Coun- sel for the accused laid great stress on the case of Rex v. Greisman (1926) 4 D.L.R. 733 (Ont. C. A.) but that- case. al- though contalning references to many sound principles of criminal law, is not helpful in a case in.- volving Section 285(6) of the Criminal Code because it fails to live consideration to the now recognized distinction in degrees in criminal negligence. .

In that case a man had died as I result of a motor accident. The accused was not charged with

nslsughtcr but was charged with a lesser offence and Middle- ton. J. A.. delivering the Juds- tnsnt of the Court at p. 743. said:

In this case death followed the lllesed negligence. If the negli- sonco was criminal at all the sc-

been prosecuted for this offence." The foregoing cannot be accepted as law today. for Lord Atkln in SW1!!! the Judgment of the House of Lords in the case of Andrews VI. the Director of Public Poor- ecuti'o.l;s'. (1037) 2 A.B.lt. 552 at p.

"31". apart altogether from any lnferanca to be drawn from sect. 34. Ieniertain no doubt that the fituiory offence of dangerous H: Vlnl ms be committed.

WI?! the nesiinneo -is not of such a degree as "'""ll'llltter if death ohms. As "' lnltence. in the course of Irsument it was suggested that A man might execute the danger- Dlll manoeuvre of drawing out to bars a vehicle in front with an- other vehicle meeting him. and be lbs to show that hsyoulll have succeeded in his calculated in- tentlon but for some increase of loud in the vehicles in front: a class very doubtfuily of man- :"-llhhr. but very probably of

lustrous driving. I cannot think 0'--Anything worse for users of

in . -' .';':i.'.:.'iii-ll: ”.i'.”.?”'..'i'" ""'

visdof

the b

would amount to 17 Ca

dangerous driving unless his neg- ligence was so great that. if he had caused death. he must have been convicted of manslaughter.

The offence of dangerous driv- ing referred to by Lord Atkin is found in Section 12 of The Eng- lish Road. which is almost ident- ical with Section 285(6) of the Criminal Code.

The Andrews case seems to have been first applied in Canada in Rex v. Carr (1937) 3 D.L.R. 537 before the enactment of the pre sent provisions of 285(6) of the Code and when the alternative verdict on a motor manslaughter charge could be criminal negli- gence under Section 284 In that case Roweli. C..1.C. in delivering the judgment of the Court of Appeal said at pp. 541-2:

"There are three degrees of ne;:- ligence recognized by law of whicl 1! DENY may be guilty in open? B-U118 a motor car. The greatest is described as gross negligence. such as driving recklessly with- out regard to the safety of oth- ers. and if as a result ' of such negligence a person lost his life the Jury would be justified it: returning a verdict of man- "5"3M"- A Very high degree of u ilgence must be proven to es tablish the crime of manalaughtel. The second is a lesser degree of negligence. such as is defined by s. 284 of the Criminal lcode - driving which could. not be de. scribed as reckless but still was beyond the speed limit authorized 3' AW. or not keeping a proper look-out while driving. under cir. cumstances where such conduct 00"” not properly begdescribed 55 Rross negligence. If, as n n-. lsult oftsuch negligence. a person if" M5 "fer 0 Jury would he justifled in returning a vex-aici gt "iminil Negligence. as was

one in the case at bar. The third

liability only. such as a mere "am M "rev although. of course. any degree of negligence may give rise to civil liability. The whoh, question of negligence ill the op- eration of motor vehicles and ggalnaldllubllliy therefore is fully site and the law declared in "'9 recent Judgmenvot the House 3' in Andrews v. Director Cr All ic Prosecutions (1937), 2;-, - PD. R. 344. See Rex v. Bate. ma" (1925 19 Cr- App. R. s. "The negligence

authorized by law.- aside for .1 butt of his

turncd moment to throw the

which he should not He says he that anyone the sidewalk cross the road in the block. and, u was less careful t have been had he "I! a crossing. Motorists. how- eyer. must recognize that the 3 "399 is I Public highway which a pedestrian is entitled to cm”. and e is not limited to crossing at intersections only. and is i. ih. duty of the motorist to keep his eye on the road so as to avoid any accident to a pedestrian who may Come upon th hi h ," The Andrews caseewasgaxgytoi. lowed in o

have did not antic- would step off and attempt to the middle of ndout-tediy. he han he would been approach-

C. -7.. field that Section the Code refers to two offences and at p. 55 says:

with eyes on the Andrews case. and noting Lord Atkin's re- mark that reckiessi is probably the most comprehensive epithet for the fundamental conception of "lmlnll nezllgence, and that 'lt is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would N-ll Justify a conviction for man- aiaughter'. 583) Parliament cannot be supposed to have in- f9"39d '0 "Dilly the expression recklcsaly' to a lesser kind or de- gree of negligence. It therefore seems clear to me that the ex- pressions 'recklessly' and 'ln a manner dangerous to the public' in s. 285(6) are not intended as alternative ways of describing the some offence. but refer to two distinct offences. Driving reck- lessly would be driving with a gross and criminal disregard of the lives and safety of others. and would therefore be appropriate to cases where death or grievous bodily harm is not proven to be caused thereby: driving in a mall- ner dangerous to the public would involve the lesser kind or degree- of negligence. but would be ap- plicable irrespectively of the act- ual results.

"Thus Parliament. in following substantially the English Road Traffic Act. as distinguished by the l-lousa' of Lords. transferred to the field of Dominion crim- inal law the offence of driving in a manner dangerous to the pub- lic. which was formerly dealt with by provincial statutes and gen- erally known as driving to the common danger" .

"So that. tho gh this offence hsl now become 'crimlnal' in the sense of being enacted under the DolninIon's jurisdiction in matters of or insl law. it cannot be said to be so in the some of invoking the fundamental conception of criminal negligence. In it. Dra- per (1942). I D.L.R. 719. C. . 237. a. CC. res. Robertson. C. .1. O. in the judgment of the On- tario Court of Appeal on an un- successful appssl from conviction for dangerous driving under s 85(0), says 0- 721 D.LR-t ll- 154 Can. C.C.): 'Counul for appel- lant properly re resented to the Court that sppo ant is a man of high character. a man of standing and sliility. and an experienced driver. who has for many years driven safety. If this charge won one that involved a question of moral turpltuds or a course of conduct. one would attach IN”

285(8) or distinct

. . , convince the Court that Appel- lant could be guilty of any such misconduct."

"There the appellant had turn-' ed left to pass I car without making sun that the left portion of the highway was free from ap- proaching traffic."

At page 51 the learned Chief Justice continued:

"In spite of 35 years of mo- toring in England under a Par- liamentary law prohibiting dan- gerous drivins. and a similar pa- rlod in Canada with provincial statutes prevailing up to 1937 and with the Dominion Cr. Code s. 285(6) in force since that date. there is remarkably little affirm- ative definition of dangerous driv- ing in any of the reported cases. The reasons would appear to be that. as ! shall shortly indicate, the expression driving in a man ncr. dangerous to the public is in itself so readily understandable. and that the conception resolves itself almost entirely into s quest- ion of fact. i "The appellant objects that the Judge in this case has not in- structed on the difference between the degree of negligence in civil cases and dangerous driving char- ges, and that he failed to, instruct the jury regarding the alstlngulsb- ing marks of originality and the high degree of negligence and the moral quality carried into the act which would be necessary to sup- port the present verdict. Appel- lant's counsel very properly re- ferred in this connection to the charge of O'Connor J. in R. I. Colllson. (1941) 1 W.W.R. 362. But. while Mr. Justice O'Connors charge to the jury is a model of

clarity in most respects. it is pronounced under a general di rection of the applicable law to

the following effect (p. 363): 'ln order to convict (on a charge of dangerous driving) you must find facts which in your opinion show that the dangcrousdriving show- ed such a disregard for the life and safety of others as to amount to a crime against the state and conduct deserving 0! P1111153" ment.'

"If it is suggested that the ex- pressions thcre used invoke the recognized fundamental conception of criminal negligence. as exP0lmd' ed in the Bateman and Andrews cases. and in so many cases which have followed them. such a con- tention is misleading as it would ignore the marked distinction drawn by Lord Atkin in the An- drews case. Unfortunately. the words used are exactly the ex- pressions which have been auth- oritatively used to describe the negligence involved in manslaugh- ter. and it has been repeiledly held that dangerous driving does not involve the same high degree of negligence nor does it involve the importation of any moral quality into the act. lf. 011 me other hand. the expression used by O'Connor J. means merely that Parliament has made dsozafm-'l5 driving a statutory offence against the criminal law of the land and has prescribed punishment for those offending against the SW- uic. such an expression would seem to be clear and obvious to the Jury without any comment by the Judge. No intermediate mean- ing for the ex. is susse-sled by counsel. 1 am again reminded of Lord Atakin's statement I1 P- ass of the Andrews ludement: i1 do not myself find the connota- tions of mens no helpful in dis- tinguishinp between degrees of negligence. nor do the ideas of crime and punishment in them- selves carry I ll!!! mum Nrleher in deciding whether in I partic- ular case the degree of neshaence shown is a crime and deserve! punishment".

”In my view. the expression 'driving in a manner dangerous to the public' is a conception much more readily understood than eith- er of the highly d9VCl0PGd Md often. technical conceptions of criminal negligence or civil neg- llgence. To attempt W explain dangerous driving to I 1111'? by reference tb-civil neslisence W0"1d be a definition per isnotlut The same offence of dangerous driving has been provinciaiiy prosecuted for many years before Magistrates and lay Justices with very little difficulty and a. nasal) still sl- iows an alternative enforcement by summary conviction.

"There is. of course, an import- ant distinction between this of- fence and civil negligence. as. ap- pellsnt's counsel properly pomiqd out by reference to Lord Porters judgment in Akerele v. The King (1043) A.C. ass at p. 204. namely that guilt here depends on the 'probalb1e. not the actual result' of the negligence. if any.

"The same distinction is more pointedly drawn in a case before the English Court of Criminal Ap- peal. involving 5. ill of the Road Tnffio Act. 1030. namely. King- man vs. seager, (193) 1 KB. 397. a case in which an acquittal by Justices was reversed by the Court of Appeal. a procedure (as Hum- phreyl J. pointed out) requiring a very strong case. Lord Horwart C. J. at p. 399 says: The justices seem to have confounded the po- tential with the Ictusl. snd to have taken the view that, for the .eapondent to be guilty, they had to find that there wu in fact danger to ascertained members of the public...The justices. as a reasonable tribunal. could not find that there was not a real. al- though a potential. danger to traffic which might reasonably be expected to be on the rosd'. "And i-lumphreys J. on the ,fol- lowing page II!!! '1 lInd0"”"d the finding of the Justices to mean that a speed cannot be 'dInler0u! unless some element of actual danger is proved. Tllst. is wrong. The conception of dInl0l'0"N11'lV' ing is therefore seen to be at once broader and narrower than that of civil negligence but in both directions it appears to me to be more understandable than civil negligence from 1110 Mint 0' view of the lay jury. I cannot think of any expression which would more clearly explain to I Jury the conception of a probable or potential danger than the skin

I ngus of s. sssa). The well- I:aowa”word 'da I' notori- ously lnsans likely or probsbll to

cause ury. sad the loomed trial Judge essriy impressed on the jury that they must take into consideration all tbs circumstan-

Importance to those matters. for ll would

bsnsxvesodinsly difficult to urs. condition sad use

street. road, highway or plaoe."'

From the evidence it appears that on the afternoon of April 14th. 1951. Gerald Solomon of Georgetown. accompanied by his fiancee. Mary MacDonald. and one Chutes Gardiner left George- town for Charlottetown in it. 1945 Ford truck, commonly spoken of as a three-ton truck. After st.- tcnding to various items of busi- ness and having had a meal at a restaurant they left Charlottetown on return to Georgetown. It is said that the lights of the truck were turned on at the Hiilsbor-' ough Bridge. They followed the pavement around South-port and passed a further curve at the end of the Keppoch Road, from which point the line of road is almost straight to a point somewhat be- yond whero the collision hereafter referred to occurred.

From Southport corner onward there were several breaks in the. pavement with the last and worst. being about 429 feet west of the scene of the accident. in passing over this last rough spot or bump the tail gate of the truck became loose. The driver stopped the truck to the-right of the centre the pavement and he and Charles Gardiner got out and went to the rear of the truck to replace the tail gate.

When the truck stopped the lights were on and were left. on until Solomon returned from the rear of the truck to procure a hammer for the purpose of driv- ing the gate into place. when he turned them off. He then return- ed to the rear of the truck and having replaced the gate and when both men were on the ground tying it in place. a car driven by the accused suddenly ran into the truck from the rear, knocking Charles Gardiner to the right shoulder of the road and crushing Gerald Solomon to in- stant death.

From the evidence of Whiston Smith as to calling the R.C.M.P. and their report of the time of re- ceiving the call. the accident prob- ably took place about 7:20 p.m.. A.S.'I'.

No Crown witness admits hav- ing seen the actual collision. Mrs. Isabel Seller, who was driving in the car with the accused. was called but her evidence was of a very indefinite and unsatisfactory kind. She says the first thing she noticed wrong was the car coming to a stop by the applica- tion of brakes. She felt no im- pact; and did not see the parked truck until after she got. out of the car. from which she does not remember getting. It. is most dif- ficult to understand this unless the shock: from circumstances and events erased ail- records from her mind. She does say that it was not dark but it was dusk. Her evidence in all of the circumstan- ces renders little help in the case. Mrs. Bessie Duffy. whose home is near the scene and some dist- once south of the pavement. and who was proceeding to visit at the home of Whiston Smith. which is situated at the intersec- tion of the paved highway and a side road oalled the Kinlock Road. gave evidence. She says she was about half way down across their field towardsv-the road when she first saw the truck. She gave an estimate of the dist- ance between her and the truck as 75 yards. which would be an under-estimate lbsho were but half way down. She said she had no difficlllty in seeing the truck and did not notice that it had lights on. She passed along into Smith's and saw the men at the tail of the truck and as she knock- ed at Smith's back door she heard the screeching of brakes and she heard a crash. Whiston Smith did not hear the crash but came to the door immediately. Both hurried out. to the scene about loo feet away. Smith said it was turning dusk but he had no trouble seeing. Gordon Gay at a distance of also of a mile east of