Judgment of the Court
J.:-The appellant was charged that on the 17th of January, 1958, at Edmonton, he, by criminal negligence, caused the death of Brynjulf Wetting, in the operation of a motor vehicle. He was acquitted by the trial judge, sitting without a jury, but the Appellate Division, Supreme Court of Albertax, quashed the judgment of acquittal and ordered a new trial, Mr. Justice Porter dissenting.
It is contended on behalf of the appellant that there was no question of law alone, such as to enable the Attorney General to appeal the judgment of acquittal to the Supreme Court of Alberta. The majority of the Appellate Division held that the finding of fact of the trial judge raised a question of law, as to whether the accused was guilty of criminal negligence in the operation of his motor vehicle. This exceptional and limited right which the Attorney General has to appeal a verdict of acquittal, is given by s. 584 of the Criminal Code, which says:
The Court of Appeal is therefore incompetent to hear the case if the question raised is not a pure question of law, but involves a mixed question of law and fact. I have reached the conclusion that appellant's argument on this point must prevail, as the question raised was not a matter of law alone.
The learned trial judge considered all the evidence. He found that the appellant went through a red light, was not keeping a proper look-out, that his speed was not above the normal at that intersection and that he stopped within a reasonable distance. He reached the conclusion that he did not see the red light, and that it was his failure to do so that was the determining cause of the accident. That the appellant did not see the red light through an oversight, is a question of fact, which the learned trial judge determined after hearing all the witnesses and weighing all the circumstances of the case. This heedlessness may create civil liability, but the degree of inattention which he found, did not show necessarily in the circumstances, wanton or reckless disregard of the lives or safety of other persons, (Cr.Code 191), which the statute requires to make the act criminal.
The trial judge sitting without a jury was fulfilling a dual capacity. He had, therefore, to discharge the duties attached to the functions of a judge, and also the duties of a jury. As a judge he had to direct himself as to whether any facts had been established by evidence from which criminal negligence may be reasonably inferred. As a jury he had to say whether, from those facts submitted, criminal negligence ought to be inferred. Metropolitan Railway
Company v. Jackson', King v. Morabito . I think that the trial judge directed himself properly, and that when he decided on the facts submitted to him that criminal negligence ought not to be inferred, he was fulfilling the functions of a jury on a question of fact.
It was also contended on behalf of the respondent that the Morabito case, supra, should govern here, and that the judge at the conclusion of the evidence of the respondent, should not have given the appellant the benefit of the doubt. In the latter case, the accused through counsel had made to the trial judge, sitting without a jury, a motion to dismiss, alleging lack of evidence, before declaring whether or not he had any evidence to adduce. In this
Court it was said by Kellock J. concurred in by Rand and
Locke JJ.:
Cases cited
- the Morabito the Morabito case, supra