Dangerous Driving and Negligence

R. v. Robertson,  2013 BCCA 268 is a useful analysis of the distinction between dangerous driving and negligence.  Merely driving badly is not sufficient to establish dangerous driving:

[5]           The more salient issue in the case revolves around the second submission advanced on behalf of this appellant, namely that the verdict was unreasonable and not supported by the evidence. It is not entirely easy to characterize precisely the parameters of the offence charged, dangerous driving, and it can be challenging to attempt to reconcile all of the previous appellate authorities. A useful point of commencement is a consideration of the case of R. v. Hundal, [1993] 1 S.C.R. 867. In that case, a heavy truck ran a stop light in Vancouver with fatal consequences. Cory J.said this:

[35]      … it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accused subjectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care. It is not overly difficult to determine when a driver has fallen markedly below the acceptable standard of care. There can be no doubt that the concept of negligence is well understood and readily recognized by most Canadians. Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code.

[6]           He went on to advert to a passage taken from the judgment of McIntyre J. in an earlier case concerning criminal negligence [R. v. Tutton [1989] 1 S.C.R. 1392]:

The application of an objective test under s. 202 of the Code, however, may not be made in a vacuum. Events occur within the framework of other events and actions and when deciding on the nature of the questioned conduct surrounding circumstances must be considered. The decision must be made on a consideration of the facts existing at the time and in relation to the accused's perception of those facts. Since the test is objective, the accused's perception of the facts is not to be considered for the purpose of assessing malice or intention on the accused's part but only to form a basis for a conclusion as to whether or not the accused's conduct, in view of his perception of those facts, was reasonable ... . If an accused under s. 202 has an honest and reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the reasonableness of his conduct. For example, a welder, [page 888] who is engaged to work in a confined space believing on the assurance of the owner of the premises that no combustible or explosive material is stored nearby, should be entitled to have his perception, as to the presence or absence of dangerous materials, before the jury on a charge of manslaughter when his welding torch causes an explosion and a consequent death.

[7]           More recently, in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R., a case involving crossing of a centre line by a motorist with tragic results, Charron J. said this at paras 6 and 7:

… However, it is important not to conflate the civil standard of negligence with the test for penal negligence. Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender's mental state. The onus lies on the Crown to prove both the actus reus and the mens rea. Moreover, where liability for penal negligence includes potential imprisonment, as is the case under s. 249 of the Criminal Code, the distinction between civil and penal negligence acquires a constitutional dimension.

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. … there must be a “marked departure” from the civil norm in the circumstances of the case. … The distinction between a mere departure and a marked departure from the norm is a question of degree. …

[8]           It is important not to conflate the civil standard of negligence with the test for penal negligence. Unlike civil negligence, which is concerned with the apportionment of fault, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law in penal negligence must concern itself not only with conduct that deviates from the norm which establishes theactus reus of the offence but with the offender’s mental state. The onus lies on the Crown to prove both actus reus and mens rea. Since, liability for penal negligence includes potential imprisonment as is the case under s. 249 of the Criminal Code, R.S.C. 1985, c. C-46, the distinction between civil and penal negligence acquires a constitutional dimension.

[9]           Justice Charron went on to observe at para. 46 of the judgment:

As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The consequence, as here where death was caused, may make the offence a more serious one under s. 249(4), but it has no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. … Again, this is also an important distinction. If the focus is improperly placed on the consequence, it almost begs the question to then ask whether an act that killed someone was dangerous. 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. The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public.

[Emphasis added.]

[10]        Justice Charron then went on to refer to the case of R. v. Anderson, [1990] 1 S.C.R. 265 and said this at para. 70:

It follows that if the only evidence against the accused is evidence of momentary lapse of attention, the offence of dangerous driving is not established. This, in my view, is as it should be. The heavy sanctions and stigma that follow from a criminal offence should not be visited upon a person for a momentary lapse of attention. Provincial regulatory offences appropriately and adequately deal with this sort of conduct.

[11]        Recently the Supreme Court of Canada revisited this area of the law in the case R. v. Roy, 2012 SCC 26. The facts are set out at in para. 5 of the reasons of the Court:

The appellant pulled his motor home out from a stop sign onto a highway and into the path of an oncoming tractor-trailer. In the collision that resulted, the appellant’s passenger was killed. The appellant was convicted of dangerous driving causing death and his appeal to the Court of Appeal was dismissed. The facts are as simple as they are tragic.

[12]        The Court noted that visibility at the scene of the accident had been limited by fog and that the road was snow covered. In the instant case, the day was clear and the road was dry.

[13]        In Roy, the appellant had been convicted at trial of dangerous driving causing death and the conviction was sustained on appeal to this Court. On further appeal to the Supreme Court of Canada, the appeal was allowed and a verdict of acquittal was entered. At para. 32 of the judgment, Cromwell J., who gave the judgment of the Court, adverted to a passage from the judgment of Charron J. in Beatty at para. 34:

… 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.    [Emphasis in the original.]