The Newfoundland case highlights the importance for the judge to see the big picture


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John L. Hill

When we use the idiom “can’t see the forest for the trees”, we say there is an inability to grasp the big picture due to excessive focus on detail. In criminal trials, the Crown paints the “big picture” by presenting individual pieces of evidence, “the trees”. When the evidence is considered as a whole, a judge should be able to distinguish “the forest” beyond a reasonable doubt.

Sometimes, when a judge overanalyzes specific pieces of evidence, it becomes impossible to discern “the big picture”. Injustice may result. A good example is the acquittal of Neila Blanchard in Newfoundland and Labrador (R.v. Blanchard [2019] NJ No. 364).

On September 11, 2017, Blanchard was driving his red 2007 Honda CRV down a main street in the community of Cow Head. His vehicle left the freeway, went up the sidewalk, hit a sandwich panel and came into contact with 17-year-old Justin Hynes, who was walking on the sidewalk on his way to school. The front of the Blanchard vehicle was dented; there was a damaged windshield. Chips of red paint, similar to missing paint on the Honda’s hood, were found on the grass. Tire marks similar to the impressions the 2007 Honda would make were also discovered. Hynes’ body was found in the street, his head lying in a pool of blood. Police charged Blanchard with dangerous driving causing death.

The prosecution presented its case thoroughly. He called several witnesses who indicated that the Blanchard vehicle was traveling at high speed when it crashed into the sandwich panel and eventually into Hynes. There is no doubt that the Crown considered its main witness, RCMP Sgt. Oliver Whiffen, was the expert he needed to prove his case. Whiffen was qualified as an expert and his expertise as an accident reconstructor was not disputed. He inferred that the Hynes boy had been struck from behind by the Honda and in a “wrap-around trajectory” had hit his head against the windshield and been thrown into the street. According to scientific calculations, the car was traveling at 74 kilometers per hour.

None of this convinced the trial judge. She particularly took issue with the evidence presented by Whiffen, saying he was not qualified to make his comments, particularly regarding the trajectory and speed of the envelopment. There was no expert evidence matching the paint chips with the Honda or evidence that the tread marks were made by the Blanchard vehicle. The accused was acquitted. The Crown appealed.

The appeal was heard on May 13, 2021, but the unanimous three-judge panel was not released until March 8, 2022. The acquittal was set aside and a new trial ordered. The reasons for the appeal decision are set out in R.v. Blanchard 2022 NLCA 15. Judgment is essentially a lesson in evidence and how it should be received.

Judge Lois Hoegg, writing for the court, criticizes the trial judge for reviewing each piece of evidence and discerning whether it was proof beyond a reasonable doubt. The trial judge’s preoccupation with the details of the evidence ignored the principle enunciated long ago by Justice Robert Taschereau in side c. The king [1941] SCJ No. 49 where it was pointed out that it is only when all the facts must be gathered to establish proof that a crime has been committed.

The court was highly critical of the trial judge’s rejection of Whiffen’s opinions. There was nothing to prevent him from being called an expert. He was introduced as a witness with specialized knowledge beyond the experience and knowledge of the trier of fact. In Blanchard’s case, no objections were made to his testimony beyond his expertise and a judge should be very slow to dismiss expert evidence unless it is objected to. and an argument.

The fatal error in the judge’s acquittal of Blanchard was that she was too engrossed in reviewing the evidence by demanding that every insignificant piece prove guilt beyond a reasonable doubt rather than assess the situation. in general. It was a case where she couldn’t see the forest for the trees.



John L. Hill practiced and taught prison law until his retirement. He holds a JD from Queen’s and an LL.M. in Constitutional Law from Osgoode Hall. Contact him at [email protected].

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