New Brunswick Justice Department’s decision not to appeal R v Johnson defies common sense and is indicative of systemic racism in Canada’s criminal justice.
Calls to transform criminal justice systems have reached a crescendo in the past weeks with reports on a number of suspicious fatalities, including the deaths in the province of Chantel Moore and Rodney Levi.
The acquittal of Maurice Johnson in April 2020 for the hit and run incident that took the life of 22-year-old Brady Francis, a member of the Elsipogtog First Nation, on February 24, 2018, is another event that fueled outrage and demands for change.
The procedural concerns including conducting the trial in French (a language not understood by the family and community) and the minimization of an Indigenous victim’s worthiness along with the hyper-amplification of inconclusive expert testimony to raise a reasonable doubt, overshadowing Indigenous witnesses, including Francis’s parents. These are some of the case’s disconcerting features.
On May 27, 2020, family and community expectations that the acquittal would be appealed were dashed when the Department of Justice and Office of the Attorney General issued a statement from the Director of Public Prosecutions deeming an appeal unwarranted.
The news release stated that the trial judge’s finding that criminal intent was not established because Johnson “might have thought he struck a deer” was a finding of fact that was not appealable. It was “well within the purview of the trial judge” to make this ruling. The Crown’s grounds for the appeal failed to identify a misapplication of the law.
In focusing on the trial judge’s ruling on criminal intent, the news release from the New Brunswick Department of Justice overlooks the mainstay of the Queens’s Bench decision, that the Crown failed to prove the actus reus, or behavioural element, of the criminal offence.
Given the Johnsons’ disclosure that they crashed into a physical being and the fact that Francis’s body was located near the spot where the Johnsons admitted to striking a deer, the Queen’s Bench decision is puzzling and calls for critical reconsideration.
The ruling seems to ask the public to believe there were two accidents that evening: one involving a collision with a deer (which was never located) and a second accident at nearly the same time and location, also involving a GMC truck, crashing into Brady Francis. Unlike the deer, the young man was discovered fatally injured, lying on the road. It is understandable that Francis’s family and supporters find the court ruling incredulous, in seeming defiance of both common sense and criminal law.
The background facts are worth reviewing. Before the tragic incident, Francis’s parents, Jessica Perley and Dana Francis, were driving near Saint-Charles, NB, to meet up with their son. Francis had spent the evening socializing with friends and called them for a ride home. Instead of picking up their son, Perley and Francis arrived at the meeting point to discover his body lying on the road. Dana Francis and others attempted to resuscitate Francis with no success. Items were collected at the accident scene, including a GMC log. Maurice Johnson, a resident of Saint-Charles and owner of a GMC truck, was later charged with failing to stop at the scene of an accident involving bodily harm or death.
Members of the Royal Canadian Mounted Police visited the Johnson residence on February 25, 2018, after scrutinizing surveillance videos from a local store. Johnson gave a statement confirming he had been driving the previous evening and hit what he thought was a deer. Johnson pleaded not guilty and requested a trial before a judge in French. The latter meant that the family and supporters were huddled in a side courtroom attempting to understand the proceedings through a volunteer interpreter.
According to evidence at the trial, the constables who interviewed the Johnsons at their residence, examined the 2003 GMC Sierra truck. Constable LeBlond testified at the trial that there was damage to the front of the vehicle: the plastic bug deflector and the front plastic grille. The GMC logo on the grille was missing. Another Crown witness, RCMP Corporal Lanteigne, gave his expert opinion that the damage was consistent with that of a pedestrian hitting the front of a vehicle. He concluded that the pedestrian must have been standing and that the person’s torso had “wrapped over” the hood.
After scrutinizing all the evidence, Madam Justice Denise LeBlanc acquitted Johnson, ruling that the Crown’s case rested on circumstantial evidence: Johnson’s guilt was not proven beyond a reasonable doubt (R v Johnson 2020 NBQB 067). The ruling seems to give insufficient weight to the fact that both Johnson and his wife admitted that their truck struck a live being on the road that evening. In fact, Justice LeBlanc acknowledged that it was “not denied that on February 24, 2018, Mr. Johnson was driving his truck and that he hit what he thought was a deer.” She stated that Johnson’s truck “was, in all likelihood, at or near the collision scene on February 24, 2018.”
Justice LeBlanc’s failure to probe the veracity of Johnsons’ belief they hit a deer is disappointing. The trial judge appears to have simply accepted Johnsons’ claim they believed they had hit a deer without evaluating their claim.
The carcass of the deer the Johnsons claimed to have hit was never found. Dr. Kimberly Kenny, a defence expert witness and civilian RCMP member, testified that she had not discovered any material from an animal in her inspection of the truck. The trial judge put no weight on the deer’s absence, instead holding the RCMP officers responsible for failing to look for the animal. Justice LeBlanc stressed Constable Grimard-Belisle’s evidence that she had not gone to Saint-Charles Nord Road to check for the deer and was unaware whether other officers had gone. The absence of the carcass and the trial judge’s acceptance of the Johnson’s claim to have struck a deer are some of the inexplicable details about the prosecution and court ruling.
Admittedly, the criminal law in this area is cumbersome, placing responsibility on the Crown to prove several elements beyond a reasonable doubt: that the accused had care or control of the vehicle involved in an accident with another person and that the accused failed to stop, provide their personal information and offer assistance to the human that was struck. To be criminally liable, the accused must have been motivated by an intent to avoid legal accountability. Given the demands on the Crown, it is perhaps not surprising that the recent case in British Columbia, R. v. Prad 2017 BCPC 168 (CanLII) also resulted in an acquittal.
It is disconcerting that there are notable differences in the application of the law when comparing Prad versus Johnson. According to Prad and other cases, one might have expected the Queen’s Bench to have assessed whether Johnson’s determination that he hit a deer was sensible in the circumstances. In Prad, the accused also claimed he believed he struck a deer rather than the cyclist (found deceased by roadside). The court carefully assessed Prad’s credibility and weighed the believability of his claim that he struck a deer. While under no obligation, Prad testified at the trial and was subjected to cross-examination, leading credence to his denial of knowledge as well as his public expressions of remorse.
Prad was ruled believable in his mistaken belief he hit a deer based on several factors including his emotional statements to the police and his testimony at trial. He vigorously sustained the absence of knowledge that he hit a human. The victim was lying about 100 meters from the truck, hidden in a ditch. When it was suggested by the prosecutor that Prad knew he hit a cyclist and left him on the side of the road, Prad exclaimed that if he “hit a guy” that he would not “leave him on the side of the road!” Impacts with deer were found to be common on that problematic stretch of the road; one witness described it as “dark and unlit.” In fact, only a month earlier, Prad had struck a deer at the same place.
Importantly, and in contrast to Johnson, Prad took steps to check what he had struck: he stopped his truck, exited the vehicle to assess what had happened and walked to the rear of his truck. He testified that he did not hear or see anything, causing him to leave the scene. In contrast to the Johnson ruling, the trial judge in Prad affirmed the obligation on the accused to investigate in cases where an impact occurred. The judge in Prad also expressly denounced victim blaming, a tendency that is rife in the Johnson decision due to the repeated references to Francis’s intoxication.
The Prad ruling in 2017 cites R. v. Harrison 2007 BCSC 1801 with approval. Barring exceptional circumstances, the Harrison decision was “generally correct” on the necessary fact- finding process. In Harrison, the accused, Kirsten Harrison, was chastised for behaviour that resembles the Johnson’s behaviour. Notably, the court in Harrison ruled that the accused was expected to “at least determine what she had hit.” If Harrison had stopped and made the necessary inquiries, the bodily harm to the victim would have been apparent. For the judge, Harrison’s failure to stop after the collision “exhibited recklessness” as to whether the victim “lived or died.” The court ruled that Harrison “did not want to learn the truth.” Harrison’s decision to close her eyes to the victim’s body was not a defence, a finding resulting in a conviction.
In the Johnson decision, the Queen’s Bench judge failed to follow the directives in cases like Harrison and to assess whether the Johnsons’ very nominal efforts — by their own admission— to determine what type of being they hit were sufficient. The Queen’s Bench decision cited Jacinthe Johnson’s testimony that they stopped the truck for around a minute and they “looked as far back as they could.” According to his wife, Johnson “wanted to go back to see if there was a deer” but she insisted they drive on because she did not want to see an injured deer.
In his testimonial, Johnson stated “they had made a mistake” and admitted “they should have stopped, but that they did not think it was a person.” Johnson described the evening as a “blur,” which was one reason they had not stopped to check on what they had hit. When giving his confession to striking a live being to the RCMP, Johnson stated “it had been like an accident” and “that he was sorry, that he could not turn back the clock and that he should have stopped and looked.”
From the Johnson ruling, there seems to be no responsibility on the accused to assess the status of the live being in an impact. For the trial judge, it was sufficient that Johnson “said that he had looked,” however briefly, and “had not seen anything.” Justice LeBlanc’s failure to determine the reasonableness of Johnsons’ actions in the immediate aftermath of the collision, namely the absence of appropriate effort to determine what the truck struck, defies the case law, thereby providing the legal question that might have justified the appeal.
Malian Levi is a lawyer for Mawiw Council Inc., an organization representing Elsipogtog First Nation. At the May 27, 2020, rally at the provincial Legislature, Levi stated that this ruling puts all citizens at risk. It grants impunity to an accused who merely asserted a belief —the being he struck was a deer, rather than a human— without any requirement that the accused go beyond a cursory, seconds-long investigation at the time of impact. Accused in subsequent cases may assert squeamishness to seeing a dead animal as their defence to driving on after a fatality, thereby raising the bar for future prosecutions.
Rather than reviewing Johnson’s actions at the time of the collision, Justice LeBlanc focused on the couple’s behaviour in the aftermath. According to the judge, what was most noteworthy was that on the morning after the accident, the couple took steps to speak with police after they were informed on Facebook that the police were looking for a GMC truck in connection with the collision. Allowing an accused to wait to make inquiries after a criminal investigation has ensued to confirm the absence of criminal intent contradicts the cited case law.
Without an appeal in the formal justice system, determining whether Western criminal law was misapplied in the Johnson case is a matter of legal opinion and reasoned speculation. An easier determination can be made, however, that the case and proceedings violated Indigenous law and principles of justice. In comments at the Legislature gathering, Levi eloquently stated “We need a space where truth can be found” and asserted “The truth matters to us.”
Echoing statements by Elsipogtog Chief Aaron Sock, Levi stressed that the responsibility lies with the NB government to make the necessary reforms to achieve justice. In separate statements, both Sock and Levi noted that Indigenous peoples’ protests regarding the destruction of their sacred lands are highly newsworthy. Yet, when an Indigenous person lies dead on those precious lands, the response is too often indifference.
As the Supreme Court of Canada stated in the R. v. Barton 2019 SCC 33 decision, systemic racism is endemic in the criminal justice system. The Supreme Court called upon all levels of the system to make changes, arguing that making assessments on a case by case basis missed the point, since bias existed at the system’s core. Achieving truth and reconciliation means addressing the inequities present in all cases which, by inference, includes R v Johnson.
Over the last decades, numerous proposals have been put forward to transform the criminal justice system, including changing the jury selection system, better adherence to restorative-based sentencing to reduce over-incarceration, the incorporation of Indigenous laws and practices, Indigenous oversight over the system and other proposals put forward by scholars, including Dr. Pamela Palmater.
As these transformations are being considered and as Brady Francis’ family and supporters continue to demand change, scholarship by an Indigenous ally, Hadley Friedland, suggests a starting point. In a 2009 article in the Saskatchewan Law Review, Friedland shared her view that it is in the “dirt and sorrow” of the criminal justice “realm” that the seeds of transformation lie.
For Friedland, “No justice system will ever alleviate all suffering or fear, but if it is to be a legitimate source of order, it should, at least, avoid burdening those in pain with the additional suffering of despair.” Her comments show ways the justice system failed the Francis family and community by furthering their grief and diminishing their loved one. Friedland proposes benchmarks for reform writing: “After all that has passed, a different story could start with this: that there be no spaces where we will not, as a society, honour the enormity of another’s horror and loss.” For the Francis family and supporters, these openings and changes will come too late, yet are still sought in dedication to Francis’s life.
Finally, it is important to remember the mysterious, absent deer. According to some cosmologies, it is possible to imagine that Brady Francis transformed into a deer at the moment of impact. In keeping with this vision, it is possible to conceive of light-footed Francis, running or even resting in a grassy enclave. If there is any wisdom in this vision, it is hoped that Francis has found some elements of the justice that eludes those who hold his memory and who speak on his behalf in the physical realm.
Josephine L. Savarese is a professor in the Department of Criminology and Criminal Justice at Saint Thomas University and advocate for social justice.