Thursday, August 16, 2012

Dangerous Driving

R. v. Adams, 2012 PECA 15 has a helpful summary of the law regarding dangerous driving:

[33] Section 249(1) <> (a) of the Criminal Code <> reads as follows:

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; ...

[34] Like all criminal offences, there are two essential elements that must be proven by the Crown before a conviction is entered against the accused pursuant to s.249 <> . First, the accused must have engaged in prohibited conduct of " ... driving 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..." Second, the Crown must prove the accused acted with the intent necessary to warrant criminal sanction. Dangerous driving is a serious criminal offence; thus, it is very important that the mental element, sometimes referred to as the fault requirement or mens rea, is proven beyond a reasonable doubt.

[35] The offence established by s.249 <> is negligence based. The challenge for the courts has been to assess and find a level of fault which is significantly greater than the level of fault necessary to prove simple negligence. In R. v. Roy, 2012 SCC 26 (CanLII) <> , 2012 SCC 26, Cromwell J., writing for the Court discussed the importance of finding a degree of fault greater than that required to establish civil liability in negligence. At paragraph 31 he stated:

[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 Ins. Co. v. Dickson, [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.

[36] In R. v. Hundal, 1993 CanLII 120 (SCC) <> , [1993] 1 S.C.R. 867 (SCC), the Court concluded proof of the mental element of the offence is determined not by assessing what the accused person subjectively intended, but rather whether on an objective assessment the accused exercised the appropriate standard of care. The intent of the accused should be assessed objectively and in the context of all the circumstances that surround the incident. The trier of fact must be assured the conduct of the accused was a marked departure from the standard of care a reasonable person would observe in the circumstances. See: R. v. Hundal, at paragraphs 24 and 33.

[37] In concurring reasons for herself and Lamer C.J.C., McLachlin J. pointed out that the use of the term "modified objective test" does not mean the court must consider a combination of subjective and objective factors - looking first at what ought to have been in the mind of the accused and then considering what was actually there or not there. To the contrary, McLachlin J. noted in her reasons that the term "modified objective test" was developed to allow the court to take into consideration all the circumstances and to give the accused the opportunity to raise a reasonable doubt as to what the reasonable person would think or do in the circumstances.

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