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Legal News

Tom Rees | Criminal Defence Lawyer Winnipeg
10
Apr

Dangerous Driving Causing Death or Bodily Harm

 

This article contains information about the Criminal Code charge of Dangerous Driving, including dangerous driving causing bodily harm and death.

It starts with the Criminal Code Section and the three leading Supreme Court of Canada cases. There are some red light and stop sign cases included. The following is a list of the headings:

  • Criminal Code of Canada
  • Marked Departure – Leading SCC Cases
  • Reference Case
  • Acquittal for Dangerous Driving
  • Red Light and Flashing Red Light Cases
  • Stop Sign Cases
  • Other Cases
  • Sentences for Guilty of HTA Cases

The purpose of this article is to make information about dangerous driving accessible. Each of the cases contains a link to the Decision and some highlights to give an overview of the state of caselaw with respect to dangerous driving.

Criminal Code of Canada

Dangerous operation of motor vehicles, vessels and aircraft

  • 249 (1) Every one commits an offence who operates
    • (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
    • (b) a vessel or any water skis, surf-board, water sled or other towed object on or over any of the internal waters of Canada or the territorial sea of Canada, in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of those waters or sea and the use that at the time is or might reasonably be expected to be made of those waters or sea;
    • (c) an aircraft in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of that aircraft or the place or air space in or through which the aircraft is operated; or
    • (d) railway equipment in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of the equipment or the place in or through which the equipment is operated.
  • Punishment
    (2) Every one who commits an offence under subsection (1)

    • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
    • (b) is guilty of an offence punishable on summary conviction.
  • Dangerous operation causing bodily harm
    (3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
  • Dangerous operation causing death
    (4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

 

Marked Departure – Leading Cases SCC

SCC: R. v. Roy, 2012 SCC 26 (Para 30-42)

This is the leading SCC case.

It was a follow up to the Beatty case (outlined below). I put in some of the pertinent quotes.

https://www.canlii.org/en/ca/scc/doc/2012/2012scc26/2012scc26.html

Facts – Acquitted

Visibility was limited due to fog and the unpaved back road they were on was relatively steep, snow‑covered, and slippery.  The driver of an oncoming tractor‑trailer testified that R stopped before proceeding onto the highway, then drove onto the highway and into the tractor‑trailer’s path. In the resulting collision, R’s passenger was killed.  R survived, but the collision left him with no memory of either its circumstances or of the surrounding events.  R was convicted of dangerous driving causing death and his appeal to the Court of Appeal was dismissed.

Law

[26]    In Beatty, the Court undertook an in-depth analysis of the elements of dangerous driving.  Although three opinions were delivered, the Court unanimously upheld the trial judge’s finding that Mr. Beatty’s momentary lapse of attention did not constitute a marked departure from the standard of care of a prudent driver even though it had tragic consequences.

[30]    A fundamental point in Beatty is that dangerous driving is a serious criminal offence.  It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established.  Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy.  The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree.  The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

[31]    From at least the 1940s, the Court has distinguished between, on the one hand, simple negligence that is required to establish civil liability or guilt of provincial careless driving offences and, on the other hand, the significantly greater fault required for the criminal offence of dangerous driving (American Automobile Insurance Co. v. Dickson, 1943 CanLII 34 (SCC), [1943] S.C.R. 143).  This distinction took on added importance for constitutional purposes.  It became the basis for differentiating, for division of powers purposes, between the permissible scope of provincial and federal legislative competence as well as meeting the minimum fault requirements for crimes under the Canadian Charter of Rights and Freedoms (O’Grady v. Sparling, 1960 CanLII 70 (SCC), [1960] S.C.R. 804; Mann v. The Queen, 1966 CanLII 5 (SCC), [1966] S.C.R. 238; Hundal).  Thus, the “marked departure” standard underlines the seriousness of the criminal offence of dangerous driving, separates federal criminal law from provincial regulatory law and ensures that there is an appropriate fault requirement for Charter purposes.

[32]    Beatty consolidated and clarified this line of jurisprudence.  The Court was unanimous with respect to the importance of insisting on a significant fault element in order to distinguish between negligence for the purposes of imposing civil liability and that necessary for the imposition of criminal punishment.  As Charron J. put it on behalf of the majority, at paras. 34-35:

If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy.  Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.

In a civil setting, it does not matter how far the driver fell short of the standard of reasonable care required by law. The extent of the driver’s liability depends not on the degree of negligence, but on the amount of damage done.  Also, the mental state (or lack thereof) of the tortfeasor is immaterial, except in respect of punitive damages. In a criminal setting, the driver’s mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice.  The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment. [Emphasis added.]

 (3)     The Actus Reus

[33]  Beatty held that the actus reus for dangerous driving is as set out in s. 249(1)(a) of the Code, that is, driving “in a manner that was ‘dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place’” (para. 43).

[34]     In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances.  The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved.  As Charron J. put it, at para. 46 of Beatty, “The court must not leap to its conclusion about the manner of driving based on the consequence.  There must be a meaningful inquiry into the manner of driving” (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public.  It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident.  In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34).  Accidents caused by these inherent risks materializing should generally not result in criminal convictions.

[35]   To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle.  The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness.  There must be a meaningful inquiry into the manner of driving.

  (4)     The Mens Rea

[36]   The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48).  It is helpful to approach the issue by asking two questions.  The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible.  If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. 

[37]   Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.  As noted earlier, Charron J., for the majority in Beatty, put it this way: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy” (para. 34).  The Chief Justice expressed a similar view: “Even good drivers are occasionally subject to momentary lapses of attention.  These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving.  But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving” (para. 71). 

[38]   The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement.  The modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk (para. 40).  Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86).

(5)     Proof of the “Marked Departure” Fault Element

[39]   Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances.  As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused’s actual state of mind (para. 43).

[40]   Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm.  However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving.  The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving.  The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity:  Beatty, at para. 37.

[41]     In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited.

[42]    Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88).  In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.

SCC: R. v. Beatty 2008 SCC 5 (para 30 – 49)

This is the other leading SCC case.

https://www.canlii.org/en/ca/scc/doc/2008/2008scc5/2008scc5.html

Facts – Overturned the decision of the BCCA. Acquittal entered.

Charged with Dangerous Driving Causing Death. For no apparent reason a vehicle swerved into oncoming traffic. No issues with manner of driving or intoxication. Accused must have passed out or fell asleep.

Law

[7]   The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences.  As the label suggests, this test for penal negligence “modifies” the purely objective norm for determining civil negligence.  It does so in two important respects.  First, there must be a “marked departure” from the civil norm in the circumstances of the case.  A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence.  The distinction between a mere departure and a marked departure from the norm is a question of degree.  It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.

[8]   Second, unlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused.  Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct.  The fault lies in the absence of the requisite mental state of care.  Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving.  However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal.  The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact.  This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished.

Objective Mens rea Appropriate for Driving Offences

[30]  First, because driving can only be undertaken by those who have a licence, as a general rule, the law can take it as a given that those who drive are mentally and physically capable of doing so and that they are familiar with the requisite standard of care.  As Cory J. put it:  “As a result, it is unnecessary for a court to establish that the particular accused intended or was aware of the consequences of his or her driving” (p. 884).  In other words, the driver’s capacity and awareness can simply be inferred from the licensing requirements.

[31]    Second, there is no injustice in inferring the requisite mens rea from the voluntary act of driving because, as Cory J. explained, “[l]icensed drivers choose to engage in the regulated activity of driving” and by doing so, “place themselves in a position of responsibility to other members of the public who use the roads” (p. 884).  Hence, those who choose to engage in this inherently dangerous activity and fail to meet the requisite standard of care cannot be said to be morally innocent.  The Court shed further light on how objective fault can thus be reconciled with principles of fundamental justice in R. v. Finlay, 1993 CanLII 63 (SCC), [1993] 3 S.C.R. 103, released later that same year.  In Finlay, the Court confirmed that the modified objective test adopted in Hundal also satisfied minimum fault requirements under s. 7 of the Charter in respect of the offence of storing firearms and ammunition in a careless manner.  Lamer C.J. explained as follows (at p. 115):

It is a basic tenet of the principles of fundamental justice that the state not be permitted to punish and deprive of liberty the morally innocent.  Those who have the capacity to live up to a standard of care and fail to do so, in circumstances involving inherently dangerous activities, however, cannot be said to have done nothing wrong.  The Law Reform Commission of Canada emphasized this point in the following passage from Workplace Pollution, Working Paper 53 (1986), at pp. 72‑73:

 Certain kinds of activities involve the control of technology (cars, explosives, firearms) with the inherent potential to do such serious damage to life and limb that the law is justified in paying special attention to the individuals in control.  Failing to act in a way which indicates respect for the inherent potential for harm of those technologies, after having voluntarily assumed control of them (no one has to drive, use explosives, or keep guns) is legitimately regarded as criminal.   [Emphasis in original.]

[32]  As we can see from this discussion, the adoption of an objective test for negligence-based offences such as dangerous operation of a motor vehicle does not obviate the mens rea requirement.  Fault is still very much a necessary part of the equation.  However, because of the licensing requirement, which “assures . . . a reasonable standard of physical health and capability, mental health and a knowledge of the reasonable standard required of all licensed drivers” (Hundal, at p. 888), from a logical standpoint, criminal fault can be based on the voluntary undertaking of the activity, the presumed capacity to properly do so, and the failure to meet the requisite standard of care.

3.3.2  First Modification to the Objective Test: The Marked Departure

[33]  The Court in Hundal, however, made it clear that the requisite mens rea may only be found when there is a “marked departure” from the standard of care expected of a reasonable person in the circumstances of the accused.  This modification to the usual civil test for negligence is mandated by the criminal setting.  It is only when there is a “marked departure” that the conduct demonstrates sufficient blameworthiness to support a finding of penal liability.  One aspect of driving, “the automatic and reflexive nature of driving”, particularly highlights the need for the “marked departure” requirement in a criminal setting.  Cory J. described this aspect as follows (at pp. 884-85):

  • “Second, the nature of driving itself is often so routine, so automatic that it is almost impossible to determine a particular state of mind of a driver at any given moment.  Driving motor vehicles is something that is familiar to most adult Canadians.  It cannot be denied that a great deal of driving is done with little conscious thought.  It is an activity that is primarily reactive and not contemplative.  It is every bit as routine and familiar as taking a shower or going to work.  Often it is impossible for a driver to say what his or her specific intent was at any moment during a drive other than the desire to go from A to B.”

[34]   Therefore, as noted by Cory J., the difficulty of requiring positive proof of a particular subjective state of mind lends further support to the notion that mens rea should be assessed by objectively measuring the driver’s conduct against the standard of a reasonably prudent driver.  In addition, I would note that the automatic and reflexive nature of driving gives rise to the following consideration.  Because driving, in large part, is automatic and reflexive, some departures from the standard expected of a reasonably prudent person will inevitably be the product, as Cory J. states,  of “little conscious thought”.  Even the most able and prudent driver will from time to time suffer from momentary lapses of attention.  These lapses may well result in conduct that, when viewed objectively, falls below the standard expected of a reasonably prudent driver.  Such automatic and reflexive conduct may even pose a danger to other users of the highway.  Indeed, the facts in this case provide a graphic example.  The fact that the danger may be the product of little conscious thought becomes of concern because, as McLachlin J. (as she then was) aptly put it in R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at p. 59:  “The law does not lightly brand a person as a criminal.”  In addition to the largely automatic and reflexive nature of driving, we must also consider the fact that driving, although inherently risky, is a legal activity that has social value.  If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy.  Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.

[35] In a civil setting, it does not matter how far the driver fell short of the standard of reasonable care required by law.  The extent of the driver’s liability depends not on the degree of negligence, but on the amount of damage done.  Also, the mental state (or lack thereof) of the tortfeasor is immaterial, except in respect of punitive damages.  In a criminal setting, the driver’s mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice.  The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment.

[36]  For that reason, the objective test, as modified to suit the criminal setting, requires proof of a marked departure from the standard of care that a reasonable person would observe in all the circumstances.  As stated earlier, it is only when there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability.  With the marked departure, the act of dangerous driving is accompanied with the presence of sufficient mens rea and the offence is made out.  The Court, however, added a second important qualification to the objective test — the allowance for exculpatory defences.

Paras 37 – 49 also instructive.

R. v. Hundal, [1993] 1 SCR 867

http://www.canlii.org/en/ca/scc/doc/1993/1993canlii120/1993canlii120.html

Facts

Appellant was involved in a fatal motor accident and charged with dangerous driving under s. 233 (now s. 249) of the Criminal Code.  The accident occurred in heavy afternoon traffic on a wet four lane street in downtown Vancouver.  The deceased had waited at the intersection for a red light and was proceeding through it on a green light.  He had crossed the cross‑walk and the two west‑bound lanes when his car was struck broadsides by the appellant’s overloaded truck in the east‑bound passing lane.

The appellant testified that he thought he could not stop when the light turned amber, sounded his horn and proceeded through the intersection.  Several witnesses testified that appellant’s truck entered the intersection after the traffic light had turned red and police testimony established that the light was timed to provide a significant delay between one direction’s receiving an amber light and the other’s receiving a green light.  One witness, who had driven behind the truck for some distance, testified that the appellant had gone through another intersection as the light turned red and estimated the truck’s speed at the time of the collision to be between 50 to 60 km/h.

Reference Case

R. v. Sanford, 2014 BCSC 310

http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc310/2014bcsc310.html

Kid crosses the street on a skateboard and is hit by a vehicle. No alcohol involved.

Guilty of HTA Careless Driving, and Acquitted of Dangerous Driving.

[28]        The legal principles that apply in respect to dangerous driving are set out in the two cases to which I have referred: Beatty and Roy.  The principles are:

a.   The offence of dangerous driving is focussed on the manner of driving, not the condition of the driver; and

b.   The analytical process to determine whether dangerous driving has been proven is defined as follows:

  • 1.         The actus reus is defined in para. 34 of Roy:
    • [34]  In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, “The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving”. A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions. 
    • [emphasis in original].
  • 2.         The mens rea is also described in Roy, at para. 36:
    • [36]  The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.

c.   While the actual consequences that follow upon the driving are not the focus on the enquiry, they are not entirely irrelevant.  They may be considered as part of the risk;

d.   The court must be cautious in finding negligence as constituting a criminal offence.  There is a fine line; driving is an inherently dangerous activity.  The fault component must be carefully examined.  It is important for the court to ensure that the line between civil and criminal liability is respected.  As Cromwell J. made clear in Roy, a mere departure from the standard of care justifies civil liability.  For criminal liability to be found, nothing less than a marked departure will suffice. 

Acquittal for Dangerous Driving

R. v. Plumpton, 2014 ABQB 385

https://www.canlii.org/en/ab/abqb/doc/2014/2014abqb385/2014abqb385.html?resultIndex=1

Vehicle went through stop sign in the country and hit car. 4 counts of Dangerous Driving CBH.

Acquitted.

[99]   On the evidence before this Court, a reasonable person in the circumstances of the Accused would not have appreciated the risk of a momentary lapse of attention, so as to have done something to avoid creating a danger.   

[100]  I conclude that the Crown has not proved beyond a reasonable doubt that the actus reus of dangerous driving by the Accused, in this case, was accompanied by the required, objective mens rea. The evidence before me does not support a reasonable inference that the momentary lapse of attention displayed by the Accused constituted a marked departure from the standard of care expected of a reasonable person in the same circumstances.

R. v. Payne, NLPC, 2016 CanLII 80018

http://www.canlii.org/en/nl/nlpc/doc/2016/2016canlii80018/2016canlii80018.html

The Stop Sign:

[52]   Mr. Grant is not related to either of the families involved in this case.  His description of the driver of the truck does not match Mrs. Payne, but I am satisfied that it was Mrs. Payne that he saw driving to the police station on May 14, 2015.   Mr. Grant’s evidence contradicts the evidence given by Mrs. Payne as to how she operated her motor vehicle at the stop sign near the police station.  Ms. Gilley was not asked about this incident.

[53]   Mr. Grant described Mrs. Payne driving at a fast rate of speed, failing to completely stop at a stop sign and almost having a collision.  However, Mr. Grant’s description of what occurred at the stop sign was of a very general nature.  He did not, for instance, describe how close Mrs. Payne’s vehicle came to the other vehicle.  The offence of dangerous driving requires proof of a marked departure from the applicable standard of care.  Mr. Grant’s evidence, even if accepted in its entirety, does not establish this element of the offence of dangerous driving (see R. v. Zaba, [2016] O.J. No. 1865 (C.A.), at paragraph 41).

R. v. De Ciantis, 2011 BCCA 437

Acquitted after appeal.

http://www.canlii.org/en/bc/bcca/doc/2011/2011bcca437/2011bcca437.html

Accused collided with another car causing death and injury. Some questions about manner of driving. Two lane changes and was in a hurry. No alcohol involved.

[68]  In summary, Mr. De Ciantis was driving at a minimum of 81 km/h at the time of the accident and changed lanes five times beforehand.  Many people travel in excess of the speed limit on this road.  Mr. De Ciantis offered explanations for his lane changes, and at least one of his lane changes was precipitated by another driver’s actions.

[69] In my opinion, when the legal tests are properly applied and the evidence is re-weighed in the limited fashion permitted this Court, there is insufficient evidence to support the convictions and the verdict reached was, therefore, unreasonable.

R. v. Martin, 2012 BCCA 194 

Acquitted – Drove standard transmission Mustang and hit someone while pulling out. Was not used to standard and such a powerful car.

http://www.canlii.org/en/bc/bcca/doc/2012/2012bcca194/2012bcca194.html

[23]  While the trial judge correctly stated the test for the mens rea of dangerous driving, I am satisfied he erred in applying it, and in finding Mr. Martin’s pattern of driving prior to the accident represented a marked departure from the norm, justifying penal consequences. As set out above, on the judge’s findings of fact the only difficulty Mr. Martin had encountered in controlling the Mustang was stalling it when bringing it to a stop. Nothing had occurred when it was in motion to portend a loss of control in the manner that caused the accident. I do not discern in his findings a basis on which the trial judge could properly conclude that a reasonable, prudent driver in Mr. Martin’s circumstances would have recognized a risk of loss of control in a manner dangerous to others and, as a result, would have decided not to drive the Mustang. Nor do I agree his findings support a conclusion that Mr. Martin’s driving immediately prior to the accident represented a marked departure from the norm.

Red Light and Flashing Red Light Cases

R. v. Downs, 2009 BCPC 9

Acquitted – Ran red light, not found to be speeding. Fishtailed.

http://www.canlii.org/en/bc/bcpc/doc/2009/2009bcpc9/2009bcpc9.html

[23]  In the end result, I have confidence in  reaching the following conclusions, but no more, concerning  the Defendant’s driving in the period before the accident:

  • a)  The Defendant entered Beacon Avenue in such a way that he lost control of his vehicle briefly, and then did so a second time before passing Mr. Adams, who was perhaps 1/3 of the way along the Defendant’s travel route on that street. 
  • b)  There is  no reliable evidence about the speed of the Defendant’s travel along Beacon Avenue, but  the roads were wet and there is a reasonable prospect that speed contributed to some extent to the fishtailing in the initial stages;
  • c)  There is no reliable evidence about the speed of the Defendant’s vehicle as it approached Resthaven Drive;
  • d)  There is no reliable evidence about  the extent to which the Defendant’s vehicle was under control when it arrived at the Resthaven Drive intersection; and
  • e)  The Defendant proceeded through a red light at Resthaven Drive and caused the collision with Ms. Masters’ vehicle.

[24]   I should also add, before leaving the factual background, that given my general reservations about the Defendant’s evidence I do not feel able to say whether or not he took evasive action upon discovering that an impact was imminent.  He says that he did and I cannot discount that entirely.  He was, after all, not found by the investigating officers to be impaired in any way, and he was cooperative and coherent after the collision.  Mere self-preservation, if nothing else, would suggest that he probably took steps of some sort to minimize the force of impact, but I cannot be sure.

[25]  Finally, I should add that I take specific note of the police evidence that at lunchtime on a weekday on a main thoroughfare in Sidney such as Beacon Avenue, both vehicle traffic and pedestrian traffic were likely to be heavy.  That evidence is not contested.  There is little evidence of the actual state of the traffic at 12:30 pm  on November 12, 2007, but of course the Criminal Code dictates that in assessing a driving pattern in the context of a s. 249 prosecution reference must be had not only to the actual state of traffic, but also the extent to which traffic could reasonably be anticipated.

[31]   In determining where the dividing line may be between mere negligence and negligence which shows a  “marked departure” from reasonable standards, I find some assistance in the words of the Ontario Court of Appeal  in R. v. Willock, [2006] OJ No. 2451,at  paragraph 31.  In that case, Doherty, JA  remarked that “conduct that occurs in such a brief time frame in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum”. 

[33] In my view, the present case comes close to the dividing line between careless driving and dangerous driving.  If the evidence proved a combination of high speed reckless driving leading up to and followed immediately by a failure to stop for a red light, on a busy city street, I would not hesitate to conclude that dangerous driving had been demonstrated.

[34] Carefully analyzed, however, the evidence does not go anywhere near that far, as I have attempted to explain.  The elements of speed and recklessness, which the Crown attempted to demonstrate as having occurred in Mr. Adams’ immediate presence near  the Fifth Avenue intersection,   have not been proven satisfactorily, and leave open the reasonable possibility that in the period of time immediately before he arrived at the Resthaven Drive intersection the Defendant was proceeding in an unremarkable fashion.  I cannot discount that possibility, even though I do not accept the evidence of the Defendant concerning his driving pattern.

[35] Undoubtedly, in my view, the Defendant did proceed improperly through the red light at Resthaven Drive.  That action plainly amounted to negligence on the Defendant’s part and, equally plainly,  it caused the collision with Ms. Masters’ vehicle to occur.  But I have at least a reasonable doubt that the Defendant’s action in that respect can be tied to any larger pattern of bad driving and thereby categorized as anything more than a momentary lapse.  In the circumstances, therefore, I am bound to conclude that the charge of dangerous driving has not been made out.

R. v. Davidson, 2012 MPQB 202

Acquitted after failing to stop at flashing red light.

https://www.canlii.org/en/mb/mbqb/doc/2012/2012mbqb202/2012mbqb202.html?resultIndex=1

[3]  At approximately 4:37 a.m. on April 11, 2008, Davidson was driving the minivan, entering the intersection of Owen Street and Regent Avenue West (“the intersection”), in the City of Winnipeg.  He was undertaking newspaper delivery services.  He was accompanied in the minivan by two friends, being Christopher and Courtney Kehler (“Courtney”).  Christopher was occupying the front passenger seat, and his sister Courtney was occupying a rear passenger seat.

[4]  The intersection is large and is relatively wide open.  Owen Street consists of two lanes with one running in a northerly direction and the other running in a southerly direction.  Regent Avenue West consists of three lanes for both eastbound and westbound traffic with additional turning lanes at the intersection.  The vehicular traffic at the intersection is directed by traffic control signals.  At the relevant time, red flashing traffic control lights were shown for northbound and southbound traffic on Owen Street, and yellow flashing traffic control lights were shown for eastbound and westbound traffic on Regent Avenue West.

[8]  The minivan, operated by Davidson, exited from an automobile dealership parking lot located on the northeast corner of the intersection.  Davidson proceeded to operate the minivan on Owen Street in a southbound direction, a short distance before reaching Regent Avenue West.  The minivan braked before entering the intersection to cross the westbound lanes of Regent Avenue West, but did not come to a complete stop.  Davidson continued to operate the minivan in a southerly direction through the centre of the intersection into the eastbound lanes of travel of Regent Avenue West at a slow to moderate speed.  A BFI front-end load garbage truck (“BFI truck”), operated by Thomas Hnatiuk, was traveling eastbound in the curb lane of Regent Avenue West, where it collided with the minivan.

[87]  The evidence is clear that Davidson failed to yield the right-of-way to the approaching BFI truck — he did not see it.  The minivan braked before entering the intersection to cross the westbound lanes of Regent Avenue West, against red flashing traffic control lights, but did not come to a complete stop.  From that point until the time of impact, there is no indication that Davidson was aware of the oncoming BFI truck.  His driving, after a review of the testimony and videotaped evidence, may be described as follows:

  •        Davidson was driving in a normal fashion.
  •        There is no evidence of speeding.
  •        The headlights on the minivan were activated.
  •        There is no evidence of swerving.

[88]  The roadway was described by all who testified as being good, and the intersection well lit.  The traffic volume was light.  Was there something that obscured Davidson’s vision to the right and prevented him from seeing the BFI truck?  This is a question that will never be answered as to whether there was something obscuring his line of sight, such as the passenger, the glare of the lighting, the darkness in colour of the BFI truck, or simply inadvertence in failing to see what was plainly there.

[89]   Davidson’s manner of driving was without question careless and negligent in the circumstances as shown by his failure to see the BFI truck.  The issue that must be determined is whether that manner of driving constituted a marked departure from the standard of care that a reasonable person would have exercised in the same circumstances.

[94]  I am not prepared to find that Davidson’s momentary lapse of attention/inadvertence and entering the intersection in the absence of a complete stop can sustain a finding that his driving amounted to dangerous driving under the Criminal Code.  There was nothing abnormal to be determined about his driving with the very drastic exception of his failure to see the approaching BFI truck.  His failure to come to a complete stop before entering onto Regent Avenue West accompanied by his failure to see what was plainly there amounted to carelessness and negligence and a momentary lapse of attention.  His driving was below the standard of care expected of a reasonably prudent driver.  However, as Doherty J.A. indicated in Willock at paragraph 31, which is quoted in Beatty at paragraph 48:

… [C]onduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum. …

R. v. Manty, 2006 MBCA 25

Guilty after going through a flashing red alert light and stop sign

http://www.canlii.org/en/mb/mbca/doc/2006/2006mbca25/2006mbca25.html

2.  The accused, at the time 22 years old with no record, was driving one night on a rural highway on his way from church to bible camp.  The route was one he had followed in the daytime on numerous occasions although never at night.  He was not speeding, nor had he been drinking or using drugs.  Inexplicably, he missed warning signs, and drove into an intersection through a stop sign which was illuminated by a flashing red light.  He struck another vehicle which had entered the intersection at a right angle to his vehicle.  All three passengers in the other vehicle died as a result of the accident, and the driver was seriously injured.  The accused and his passenger suffered some injuries.

26. … Those consequences cannot be taken into account in any assessment of whether the accused’s driving amounted to dangerous driving for the purposes of s. 249(1), although obviously the fact that bodily harm or death resulted is an element of the offences in s. 249(3) and s. 249(4).  The consequences will be relevant when sentence is being considered.

31.  There were a number of highway indicators which should have caused the accused to be aware of his situation (i.e., that he was approaching the intersection where he would be turning south).  Particularly, there was the advance warning sign, the highway turning signs and the large stop sign itself.  On top of the stop sign was a flashing red light.  The stop sign and red light were at an intersection which was illuminated by two streetlights.  For the accused not to respond to that red light/stop sign, given all the factors outlined above, and with more than ample time to appreciate where he was and that the intersection was near, amounts to the marked departure from the standard of care that warrants the judge having convicted him.

R. v. Beaton, 2009 ONCJ 315

Guilty of Dangerous Driving, but Acquitted of Impaired Driving.

http://www.canlii.org/en/on/oncj/doc/2009/2009oncj315/2009oncj315.html

[60] The accused made a conscious decision to operate his motor vehicle when he was tired and after he had consumed between 4 and 6 light beers between 5:30 p.m. and 1:00 a.m.  It was approximately 1:00 a.m. when he decided to drive to the Boston Manor.  He also admitted that he was so preoccupied by his thoughts about his father’s untimely death that he didn’t feel like going to bed, so he decided to go to the Manor to look for friends.  He further admitted that while driving on Longmoor, he had lost his ‘focus’ on his driving to such an extent that he didn’t obey the red light and he drove into the intersection, which caused the Pathfinder to strike his vehicle.

[61]  In my view, this was not a momentary inattention as argued by Mr. Darroch.  This was a continuing and escalating inattention caused by the accused’s continuing preoccupation with the memory of his father’s death.  This preoccupation had been with him ever since his job interview earlier in the day, at supper, and throughout his drinking and watching TV at his girlfriend’s place.  It had become so active in his mind that he couldn’t sleep and that was the state of his awareness of the preoccupation when he decided to drive from his girlfriend’s residence to the Manor.

[62]   In my view, in this case the evidence, which forms the underpinnings of both the actus reus and also the mens rea analysis, is inextricably intermingled.  For example, I find that the decision of the accused to drive under the totality of these circumstances was a marked departure from the standard expected of a reasonably prudent driver.  In addition, in spite of the 1:00 a.m. time of driving, I find that some traffic could be reasonably expected to be travelling southbound on a busy artery like Appleby Line in the city of Burlington.  Therefore, to disobey a red light at the intersection of Longmoor and Appleby could only invite a possible collision, which is exactly what occurred.

[63]  For these reasons, I find that the Crown has established beyond a reasonable doubt that the accused, objectively, was operating his motor vehicle in a manner that was dangerous to the public as defined in s. 249 (1)(a) of the Code.

[64]   With respect to the mens rea, I find that the decision of the accused to drive under all of these circumstances, including his consumption of alcohol, in such a state of mind that he was unable to obey the red light, even after at some point becoming aware of it, was a marked departure from that which a reasonable person would have observed in the accused’s circumstances.  When I consider the accused’s own evidence as to his actual state of mind, I find that my conclusion is only reinforced.  He actually said that his preoccupation with his father’s death finally caused him to lose his focus on his driving to such an extent that he couldn’t obey the red light.

[65]   In addition, the accused’s own admissions that he did express concern to the civilian witnesses that he might ‘blow over’ if the police were called and his admitted efforts to convince them not to call the police, only serve, in my view, to support the conclusion that he possessed a subjective concern that he had made a bad decision to drive at that time.  From the standpoint of the modified objective test too, I find that the reasonable person, under all of these circumstances, would have appreciated the risk and, therefore, refrained from driving in order not to create the danger.

[66]  For all of these reasons, I find that the Crown has proven beyond a reasonable doubt that Mr. Beaton was operating his motor vehicle in the early morning hours of March 7, 2008 in a manner that was dangerous to the public and I find him guilty of that count.

R. v. MacDonald, 2005 ABPC 351

Guilty but says that running a red light on its own is not dangerous driving.

https://www.canlii.org/en/ab/abpc/doc/2005/2005abpc351/2005abpc351.html

[39]  Furthermore, it is also clear that the fact that any one of the acts which make up the driving pattern offend other legislation, such as the Traffic Safety Act, is not determinative of the offence.  For example, proceeding through an intersection against a red light or speeding are violations of the Traffic Safety Act, but neither act is dangerous per se.  See R. v. Topping [1995] B.C.J. No. 2026; R. v. Smith, unreported, ABPC October 21, 1993.

R. v. Singh, 2010 ONSC 1945

Guilty, not a momentary lapse.

http://www.canlii.org/en/on/onsc/doc/2010/2010onsc1945/2010onsc1945.html

Vehicle turned left and was hit by a dump truck driven by the accused.

[82]  In my view, having regard to all the circumstances, Mr. Singh was operating his truck in a manner dangerous to the public.  In fact, given his speed, the nature of the vehicle he was driving, the close proximity of other vehicles using the intersection and his lack of regard for the red signal light, I find that his driving was a marked departure from the standard one would expect of a reasonable person in similar circumstances. 

[83]  Mr. Singh’s counsel did an admirable and efficient job highlighting the differences in the accounts given by the various eyewitnesses.  He also argued that this case was similar to the facts of  R. v. Beattie, supra and urged me to accept that, even if the driving rose to a dangerous level, it was only a momentary lapse and can not be considered a marked departure from the reasonable and prudent standard.  In Beattie, the accused suggested that he must have fallen asleep momentarily when he crossed into the path of oncoming traffic.  The Supreme Court found that the dangerous conduct was the result of a momentary lapse of attention.  There was no evidence of any deliberate intention to create a situation dangerous for other drivers.  The mens rea element of the offence had not been made out.  But that is not the case here.   There was no evidence of any momentary lapse.  Mr. Singh’s driving was deliberate.  It is not necessary that the Crown establish an ongoing period of dangerous operation.  The acts of Mr. Singh in entering the intersection in a massive vehicle at 90km/hr against a red light, resulting in the death of Mrs. Sliwowicz are sufficient on their own to establish the guilt of the accused.  There will accordingly be a finding of guilt entered.

R. v. Lehman, 2000 ABPC 94

Guilty – Running red light a factor – para 101

http://www.canlii.org/en/ab/abpc/doc/2000/2000abpc94/2000abpc94.html

[101]      I have considered the evidence as a whole and find as follows:

  • Mr. Lehman was travelling so that he cut sharply in front of a vehicle driven by Mr. French. In doing so, Mr. Lehman went across two lanes of traffic. Mr. French slowed down to prevent a collision.
  • The Lehman vehicle mounted a curb on its right side and swerved in between the two eastbound travel lanes. Then the Lehman vehicle righted itself.
  • Mr. French slowed down and described the accused was driving “pretty quick”. Mr. Marcellus, his passenger, added it as very fast driving, or “uncontrollably out of control”. In all the circumstances, it is clear that the accused was driving too quickly at that time for the traffic there or that would likely be there.
  • The accused drove quickly through a red light at 111 Street. There was no traffic at that light.
  • The accused continued to drive quickly in the face of a red traffic light that was red for a number of seconds at 109 Street. His truck collided with the L’Hirondelle vehicle that was proceeding through at a reasonable speed through an intersection when the latter vehicle was facing a green arrow. This was a busy traffic location with many vehicles on a Friday afternoon at approximately 3 o’clock could be anticipated to be so.
  • The accused remained at the collision scene at 109 Street for a short period of time after the collision. He slammed the driving wheel with his hands and hit himself on the forehead.
  • He took off quickly to another intersection at 106 Street where he collided with a vehicle driven by Mr. Johnson who was lawfully stopped for a red light. The Johnson vehicle was propelled forward nearly touching the vehicle in front of it. The comments about the number of vehicles in attendance and the anticipated traffic condition is similar.

[103]  The facts of the individual case are determinative whether dangerous driving has been proven. In my view there are similarities and dissimilarities between the fact situation in R. v. Hundal, supra, and the case at bar. In both situations a vehicle proceeded through a red light in heavy traffic and a collision occurred. Fortunately here, the consequences were less tragic. My own view is that the driving outlined in the bullets above to the 109 Street scene was proof beyond a reasonable doubt that the accused was driving and was guilty of dangerous driving in all of the circumstances. I have taken into account as the section indicates, “the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to have been on such a place.” This represented a marked departure from the standard of care that a reasonable person would have observed in the accused’s situation. Therefore, even had I found automatism to be applicable I would find the accused guilty of dangerous driving in these circumstances. A fortiori because I have found that the defence is not applicable to the driving from the first collision scene to the second collision only serves to strengthen and aggravate the circumstances of the commission of that offence.

NOTE* R. v. Hecimovic, 2013 BCSC 1965

Ran red light, acquitted – error at law, new trial ordered at BCCA and again at SCC.

http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc1865/2013bcsc1865.html

R. v. Navaratnam, 2012 ONCJ 163

Guilty – Ran 2 red lights. Also found guilty of impaired and refusal.

http://www.canlii.org/en/on/oncj/doc/2012/2012oncj163/2012oncj163.html 

[29]  In my opinion, the driving of Mr. Navaratnam was objectively dangerous and demonstrated a marked departure from the standard of a reasonably prudent driver in all of the circumstances.  On the facts as I have found them, Mr. Navaratnam’s driving over the period up to the point of collision involved the following:

  • excessive speed, almost continuously, at times over double the posted limit, as on Morningside Avenue;
  • straddling two lanes of traffic at two different times;
  • an improper right turn, made without stopping and at excessive speed;
  • the failure to stop for a stop sign on a narrow residential street;
  • the failure to stop for two red traffic lights;
  • the failure to notice a marked scout car with its emergency lights and siren activated following behind within the residential subdivision, where the only vehicles in motion were the BMW and the police cruiser.

[45]  With respect to the driving, I rely on my findings of fact made in relation to the charge of dangerous driving.  I accept the evidence of the prosecution witnesses that Mr. Navaratnam entered the intersection on a red light and that the light had been red for about a minute.  I reject his evidence that he had an amber light.  Entering a trafficked intersection on a red light is evidence supporting an inference of impaired judgment.  When viewed as part of the continuum of Mr. Navaratnam’s driving, as related by officers Steffler and Tobin, and in light of the evidence of alcohol consumption, I am satisfied that the only reasonable inference is  that Mr. Navaratnam’s mistake about his right of way was the result of judgment impaired in part by alcohol.

Stop Sign Cases

R. v. Hamilton, 2014, ONSC 1823

Acquitted after rolling through a stop sign.

http://www.canlii.org/en/on/onsc/doc/2014/2014onsc1823/2014onsc1823.html

Two Questions to Ask

[73]  In Roy, the Court recommended answering two questions when considering the fault issue in dangerous driving cases:

  • (1)  In light of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible? If yes, then,
  • (2)  Was the Defendant’s failure to foresee the risk and take steps to avoid it, a “marked departure” from the standard of care expected of a reasonable person in the Defendant’s circumstances?

(Cited in R. v. Hamilton) R. v. Davidson (2012), from the Manitoba Queen’s Bench

During the early morning hours, Davidson was delivering newspapers in his minivan. He was accompanied by two friends, the victim and the victim’s sister. As Davidson approached an intersection with a flashing red light, he braked. However, he did not come to a complete stop. He proceeded through the intersection and was struck by a garbage truck that had entered the intersection on a flashing yellow light. Neither driver appeared to see the other, as neither took evasive action or sounded his horn. At the time of the accident the garbage truck was speeding As a result of the accident, Davidson and both passengers were knocked out. One passenger suffered serious injuries. The Crown took the position that Davidson’s actions constituted a marked departure from what a reasonably prudent driver would have done in the circumstances as Davidson, who was rushing to finish his deliveries, ignored the traffic control light and failed to stop. Davidson took the position that his driving was not dangerous and that the accident occurred as a result of a momentary lapse of attention combined with the garbage truck’s speeding. Davidson had no recollection of what occurred

[87]  Davidson was acquitted.  The court held that his driving was careless and negligent as he failed to yield the right-of-way for the oncoming garbage truck, failed to come to a complete stop and failed to take steps to avoid the accident. While his momentary lapse of attention and entering the intersection in the absence of a complete stop constituted driving that was below the standard of care of a reasonably prudent driver, it did not constitute a marked departure from the standard of care that a reasonable person would have exercised in the same circumstances. [8] 

R. v. Garnham, 2012 MBQB 231

Acquitted. Ran Stop Sign causing death.

https://www.canlii.org/en/mb/mbqb/doc/2012/2012mbqb231/2012mbqb231.html?autocompleteStr=r.%20v.%20garnham&autocompletePos=2

Garnham was charged with dangerous driving causing death. Garnham was travelling on a gravel road, approaching an intersection at a busy highway. He checked for traffic but did not see the victim’s vehicle. He “rolled through” the stop sign and collided with the victim as he proceeded onto the highway.

[20]  On the facts before me, the responsibility of the collision rests solely with the accused.  The victim saw the accused come out onto the highway in front of her and did her best to avoid the collision by braking.

[21]  The accused by his own admission rolled through the stop sign.  This is confirmed by the expert who determined the speed of the accused’s vehicle at 65 km/hr at the point of the collision.  The accused realized after the collision that the victim’s van must have been in his blind spot.

[22]  The sun was most likely not a factor contributing to the collision.  The victim’s van was well north of the intersection as the accused approached the stop sign at Richardson and Highway 240.  The sun was directly west of the accused.  If the sun was a factor, the accused would have known of the problems it could cause for a considerable distance.  He should have adjusted his driving by being even more careful.  Instead, he admits to rolling through the stop sign.

[23]  The accused is clearly at fault in:

  • a)  Failing to stop at the intersection;
  • b)  Failing to see the oncoming vehicle;
  • c)  Entering the intersection when it was unsafe to do so;
  • d)  If the sun obscured his vision, failing to take proper precautions to insure he could safely enter the intersection.

[26]  However I must come to the same conclusion as the court in Roy as to the mens rea.  As in Roy, there is no evidence pointing to poor driving prior to the pulling out into the path of the victim’s vehicle.  I must then focus on the momentary decision by the accused to pull onto the highway when unsafe to do so.  I note that the accused looked for traffic but did not see the victim’s vehicle.  Whether that was to due to the sun, the curve in the road or the obstruction of his view due to the metal between his front and side windows (the so-called “blind spot” as the accused terms it) is unknown.  A marked departure requires more than this negligent decision.

[27]   The Crown has failed to prove the mens rea of the offence of dangerous driving beyond a reasonable doubt and there will be an acquittal.

Other Cases

Sentences for Guilty of HTA Causing Death

 

Note: The information contained in this article is not legal advice and should be not relied upon as such.

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