Thursday, February 27, 2014

Dangerous Driving

The requirement that the vehicle be operated in a manner “dangerous” to the public relates to the manner in which the vehicle is operated as opposed to the consequences of the  driving : Roy, 2012 SCC 26, at para. 34. The focus is on the risk created of damage or injury; however, the materialization of risks that are inherent in  driving  should not be found to be culpable: Roy, at para. 34. The word “dangerous” is defined in Black’s Law Dictionary, 6th ed. to mean (at 394): “Attended with risk; perilous; hazardous; unsafe.” The Concise Oxford Dictionary, 6th ed. defines “dangerous” to mean (at 258): “Causing danger, unsafe; …” The Concise Oxford Dictionary, 6th ed. defines “danger” to mean (at 258): “1. Liability or exposure to harm, risk, peril, (of one’s life, of death or other evil; in – of, likely to incur etc.; …)”.

The Crown is not required to prove that a person was actually endangered by the accused's  driving  and a conviction may be entered if the accused's  driving  was  dangerous  to the public which might reasonably be expected to be present: Mueller (1975), 29 C.C.C.(2d) 243, [1975] O.J. No. 1190 (C.A.), at paras. 7 and 9.

The determination of whether a driver has fallen markedly below the standard of care that a reasonable person would have exercised in the situation involves an assessment of the  driving  on a continuum of negligent  driving  and moral blameworthiness which encompasses: (a) a momentary lack of attention, or lack of reasonable care in the circumstances, giving rise to civil responsibility; (b) careless  driving  contrary to provincial highway traffic legislation; (c)  dangerous   driving ; and (d) criminal negligence: Hundal (1993), 79 C.C.C.(3d) 97 (S.C.C.), at 106; L.(J.), [2006] O.J. No. 131 (C.A.), at para. 13; DeGoey (2005), 197 C.C.C.(3d) 24 (Ont.C.A.), at para. 47.

The trier of fact should identify how and in what way the departure from the standard goes markedly beyond mere carelessness: Roy, 2012 SCC 26, at para. 30; Reynolds, 2013 ONCA 433, at paras. 18-19 (Endorsement). However, the trial judge’s failure to expressly identify the two questions recommended in Roy, above, for assessing the fault element is not, of itself, an error of law: Baker, 2013 ONCA 746, at para. 6 (Endorsement).

In general, momentary inadvertence, thoughtlessness, or an error in judgment in the course of  driving  that is otherwise proper does not constitute negligence that reaches the point of a marked departure from the standard of care that a reasonable person would have exercised so as to found liability for  dangerous   driving . Thus, in Willock, [2006] O.J. No. 2451 (C.A.), evidence that the accused's jerked the steering wheel over a period of a few seconds in order to regain control of the vehicle which had "fishtailed", suggested a momentary lapse of attention, but could not reasonably sustain a finding of  dangerous   driving . The court stated that conduct that occurs in a two to three second interval, in the course of  driving , that is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum.

The analysis in Willock, above, was referred to with approval in Beatty, 2008 SCC 6, where the accused's negligent  driving  was limited to a few seconds when he failed to follow the curve on the 90 km/h highway, crossed a few feet into the opposing lane and struck an oncoming vehicle. In these circumstances, the Supreme Court of Canada found no reason to interfere with the trial judge's conclusion that the accused's momentary lapse of attention was insufficient to support a finding of a marked departure from the standard of care of a prudent driver.

Similarly, in Roy, 2012 SCC 6, the marked departure threshold was not reached where the objectively  dangerous   driving  was limited to the appellant, when situated in his motor home at a stop sign, having proceeded in poor  driving  conditions (snow covered roads and fog) to move across the lanes of an intersecting highway in order make a left turn (south), when he was struck by a northbound transport truck. The appellant’s passenger was killed. As there was no evidence that the appellant’s earlier  driving  was other than normal or prudent, the appellant’s culpability had to be founded on the momentary decision to enter onto the highway when it was unsafe to do so. Given that the time between visibility and impact was only a few seconds, his decision to do so was consistent with simple misjudgment of speed and distance in difficult conditions and poor visibility. The record thus disclosed a single and momentary error in judgment with tragic consequences. It could not support a reasonable inference that the appellant displayed a marked departure from the standard of care of a reasonable person in the same circumstances so as to justify a conviction for the serious criminal offence of  dangerous   driving  causing death.

However, where a lapse of attention forms part of a pattern of improper  driving  it cannot be considered a momentary lapse of attention: Needham, 2008 ONCA 562, at para. 3 (Endorsement). Similarly, the circumstances of an accused crossing almost entirely into the lane for oncoming traffic when negotiating a gentle curve at an excessive speed may be properly distinguished by the trial judge from those in which a driver finds himself or herself unable to negotiate a curve because of momentary inattention: Baker, 2013 ONCA 746, at para. 8 (Endorsement). More obviously, the manner of  driving  cannot be characterized as a momentary failure of judgment where it involves an extensive pattern of seriously improper  driving : Battaglini, 2013 ONCJ 587; Kowal, 2013 BCSC 520, at para. 140; Clarke, 2013 ONCJ 571; Kohut, 2012 ONSC 645, at para. 42; Hodgson, 2011 ONSC 784, at para. 13; Overland, 2011 ONSC 7563; Hekmati, 2011 ONSC 3948, at para. 227; Abdelmalak, 2010 ONSC 668, at paras. 7-8; Regier, 2009 CanLII 74657 (Ont.S.C.J.); Tippett, 2009 CanLII 90055 (Ont.S.C.J.); Battaglini, 2013 ONCJ 587, at para. 35, Clarke, 2013 ONCJ 571; Gallagher, 2013 ONCJ 707.

Culpability has also been established where the conduct involves deliberately  driving  towards pedestrians (Agostino, 2010 ONSC 2806; Smith, 2010 ONSC 2904, at para. 132; Simpson, 2009 CanLII 71717 (Ont.S.C.J.), at para. 91); racing and “road rage” (Torok, 2010 ONCA 244 (Endorsement); Alli, 2012 ONCJ 49; Gomes, 2008 CanLII 36525 (Ont.S.C.J.); Telesford, 2008 CanLII 43773 (Ont.S.C.J.); Kumar, 2008 CanLII 21230 (S.C.J.); Trakas, 2008 ONCA 410, at paras. 7 and 61-62; operation while use of legs severely compromised by a medical condition (Walker, 2008 CanLII 32324 (Ont.S.C.J.)); and speeding in a vessel in the area of persons outside the swimming area adjacent to a park and within 25 metres of the shore (Haig, 2009 CanLII 3787 (Ont.S.C.J.)).

As the element of fault is a significant and separate component of the offence, per Beatty and Roy, above, a trial judge errs in failing to conduct a meaningful analysis to identify how and in what way the accused’s failure to foresee and respond to the risk amounts to a departure from the requisite standard of care markedly beyond mere carelessness or in providing an analysis that improperly conflates the actus reus and the mens rea – finding that as the  driving was objectively  dangerous  it was, therefore, a marked departure from the norm: Reynolds, 2013 ONCA 433, at paras. 14-22 (Endorsement); Akuamoah-Boateng, 2013 ONSC 7169, at paras. 52-57.

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