Impaired Driver who Killed 6 Year Old Found Not Guilty of Causing Boys Death.

by John McKiggan

Brogan Not Guilty of Impaired Driving Causing Death

Last week Patrick Brogan was found not guilty of criminal negligence and impaired driving causing the death of 6 year old Joshua Penny. Judge Anne Derrick acquitted Mr. Brogan of the criminal charges even though he had already pleaded guilty to impaired driving and the uncontested facts were that Brogan was driving the car that hit and killed Josh Penny.

How Could This Happen?

The decision has caused a great deal of anger and frustration amongst community members in Cape Breton, much of it unfairly directed at Judge Derrick. I have had a number of people ask me basically the same questions about this case:

“Brogan pleaded guilty to impaired driving. Brogan was driving that car that killed Josh Penny. How could he be found not guilty?”

The Burden of Proof

This tragic case is a sad illustration of the differences in the burden of proof required in a criminal prosecution as opposed to a civil lawsuit for compensation for wrongful death.

Accident was “Unavoidable”

In the Brogan case, both the Crown Prosecutor and the defence hired accident reconstruction experts to determine how, exactly, the accident happened. The Crown’s own expert witness testified at Brogan’s trial that Josh Penny veered out in front of Brogan’s vehicle so quickly that it would have been impossible for a sober driver to have reacted fast enough to stop their car in time to avoid hitting the little boy.

In her decision, Judge Derrick states:

“There was a sudden and unpredictable collision with Joshua Penny. An accident reconstruction expert, making responsible and supportable assumptions, arrived at the conclusion that the tragic accident was unavoidable. That opinion, and the other evidence I have reviewed, raises a reasonable doubt that Mr. Brogan’s impairment cause the accident that killed Joshua.”

Read the whole decision here.

I have a great deal of respect for Judge Derrick. She is a woman with an unequalled sense of fairness and respect for the law. It would have been easier (and far more popular) for Judge Derrick to have ruled differently in the Brogan case. Unfortunately, the facts of the case, and the law, dictated that Mr. Brogan be found not guilty.

Burden of Proof in Criminal Cases

In a criminal proceeding the Crown lawyer bears the burden of proving its case beyond reasonable doubt. The easiest way to understand this concept about the burden of proof is to think of a pair of scales. In a criminal case, all of the evidence against the accused is placed on the “guilty” side of the scale.

In order to prove the charges beyond reasonable doubt the Crown lawyer has the burden of tipping the scales all most all the way over to the guilty side.

Burden of Proof in Civil Lawsuits

On the other hand, in a civil claim the plaintiff has the burden of proving his or her claim “on the balance of probabilities”. If you think of the scales again, in a civil claim all of the evidence for the plaintiff is placed on one side of the scale. All of the evidence against the plaintiff (in favour of the defendant) is placed on the other side of the scale.

As long as the scales tip even a little bit, to the side in favour of the plaintiff, then the plaintiff has met the burden of proof on the balance of probabilities.

A Famous Example

That explains why in some circumstances a person may be found not guilty of criminal charges but later found liable, based on the same facts, in a civil suit. The most famous example of this difference in the burden of proof is, of course, O.J. Simpson.

As everyone in the world knows, at his criminal trial O.J. Simpson was found not guilty. In other words, the prosecutors were not able to convince the jury beyond reasonable doubt that O.J. Simpson had murdered his wife, Nicole Simpson and Ron Goldman.

On the other hand, when the Goldman family and Nicole Simpson’s family sued O.J. Simpson, he was found liable for causing their death. In other words, the plaintiffs were able to prove on the balance of probabilities that O.J. Simpson had caused the deaths of Nicole Simpson and Ron Goldman.

Brogan Decision Based on the Law not Emotions

I have had some very vigourous debates over the last week about the Brogan case. When a child dies and the driver admits to being impaired, it just does not seem fair when the driver is found not-guilty of causing the child’s death. But based on the evidence, and based on the law (rather than emotions), it appears that based on the facts the law required a finding of not guilty.

If Josh’s family sues Brogan the results will almost certainly be different.

What do you think?

I have been representing victims of serious personal injuries for 18 years. I wrote The Consumers Guide to Car Accident Claims in Nova Scotia to help victims of car accidents in Nova Scotia get fair compensation for their injuries. You can get a free copy of the book by visiting my website at or call me toll free at 1-877-423-2050.

One Response to “Impaired Driver who Killed 6 Year Old Found Not Guilty of Causing Boys Death.”

December 31, 1969 at 6:00 pm, joshua said:

brogan is not guity not right joshua penny is my friend i miss josh rip

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