SUPREME
COURT OF CANADA
Between:
Randy
Leigh Roy
Appellant
and
Her
Majesty The Queen
Respondent
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein
and Cromwell JJ.
Reasons for
Judgment:
(paras. 1 to 56):
|
Cromwell J. (McLachlin C.J. and LeBel, Deschamps, Fish,
Abella and Rothstein JJ. concurring)
|
R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60
Randy Leigh
Roy Appellant
v.
Her Majesty The
Queen Respondent
Indexed as: R. v. Roy
2012 SCC 26
File No.: 33699.
2011: November 9; 2012: June 1.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein and Cromwell JJ.
on appeal from the court of appeal for british columbia
Criminal law —
Dangerous operation of motor vehicle — Elements of offence — Mens rea — Whether
proof of actus reus without more can support inference that required fault
element is present — Whether accused’s conduct displayed a marked departure
from standard of care — Criminal Code, R.S.C. 1985, c. C‑46, s. 249 .
Criminal law — Appeals
— Whether trial judge applied incorrect legal principles in addressing fault
component of offence — If so, whether error was harmless — If appeal allowed,
whether Court should order new trial or direct an acquittal — Criminal Code,
R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).
On an afternoon in late November
2004, R was driving home from work with a passenger. 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.
In a decision released shortly
before R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, the trial judge
concluded that R’s conduct was objectively dangerous. He then immediately
concluded that R’s driving had constituted a marked departure from the standard
of care a reasonable person would observe in the circumstances. Since no
explanation was provided for R’s conduct — due in great part to his loss of
memory — there was no evidence that could raise a reasonable doubt that a
reasonable person would not have been aware of the risks in the circumstances.
The appellant’s appeal to the Court of Appeal was dismissed. Although the court
concluded that the trial judge had made a legal error, it was of the view that
the error was harmless as it occasioned no substantial wrong or miscarriage of
justice.
Held: The appeal should be
allowed, the conviction set aside and an acquittal entered.
Dangerous driving causing death, a
serious criminal offence punishable by up to 14 years in prison, consists of
two components: prohibited conduct — operating a motor vehicle in a dangerous
manner resulting in death — and a required degree of fault — a marked departure
from the standard of care that a reasonable person would observe in all the
circumstances. However, because driving is an inherently dangerous activity,
the trier of fact must not infer simply from the fact that the driving was, objectively
viewed, dangerous, that the accused’s level of care was a marked departure from
that expected of a reasonable person in the same circumstances. The fault
component ensures that criminal punishment is only imposed on those deserving
the stigma of a criminal conviction. Determining whether the fault component is
present may in turn be done by asking two questions. First, in light of all of
the relevant evidence, would a reasonable person have foreseen the risk and
taken steps to avoid it if possible? Second, was the accused’s failure to
foresee the risk and take steps to avoid it, if possible, a marked departure
from the standard of care expected of a reasonable person in the accused’s
circumstances? The distinction between a mere
departure, which may support civil liability, and the marked departure
required for criminal fault, is a matter of degree, but the trier of fact must
identify how and in what way the driver went markedly beyond mere carelessness.
This will generally be done by drawing inferences from all of the
circumstances. Furthermore,
in answering these questions, personal attributes will
only be relevant if they go to capacity to appreciate or to avoid the risk. Of
course, proof of deliberately dangerous driving would support a conviction for
dangerous driving, but it is not required.
In this case, the trial judge
erred in law by equating fault with the failure to explain the conduct, but
also by failing to conduct any meaningful inquiry into whether R had displayed
a marked departure from the standard of care to be expected of a reasonable
person in the same circumstances. He simply inferred from the fact that R had
committed a dangerous act while driving that his conduct displayed a marked
departure from the standard of care expected of a reasonable person in the
circumstances.
The Court of Appeal erred in
finding that this error was not a substantial wrong or a miscarriage of
justice. There was no evidence to support the finding that R was aware of the
risk he was creating and deliberately chose to run that risk, and fault could
not be inferred from the fact that the driving was, objectively viewed,
dangerous. The record here discloses a single and momentary error in judgment
with tragic consequences. Since the record did not provide evidence on which a
properly instructed trier of fact, acting reasonably, could have concluded that
R’s standard of care was a marked departure from that expected of a reasonable
person in the circumstances, entering
an acquittal is the appropriate course.
Cases Cited
Applied:
R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, rev’g 2006 BCCA 229, 225
B.C.A.C. 154; referred to: R. v. Hundal, [1993] 1 S.C.R. 867; American
Automobile Insurance Co. v. Dickson, [1943] S.C.R. 143; O’Grady v.
Sparling, [1960] S.C.R. 804; Mann v. The Queen, [1966] S.C.R. 238; R.
v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. MacNeil, 2009 NSCA
46, 277 N.S.R. (2d) 22; R. v. D.C.S., 2000 NSCA 61, 184 N.S.R. (2d) 299.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 249(1) (a), (4) , 259(4) , 686(1) (b)(iii).
APPEAL from a judgment of the British Columbia Court of Appeal (Levine,
Neilson and Garson JJ.A.), 2010 BCCA 130, 285 B.C.A.C. 57, 482 W.A.C. 57,
92 M.V.R. (5th) 28, [2010] B.C.J. No. 437 (QL), 2010 CarswellBC 583,
affirming the convictions entered by Blair J., 2006 BCSC 2107, [2006] B.C.J. No. 3660 (QL), 2006
CarswellBC 3851. Appeal allowed.
Christopher J. Nowlin, for the appellant.
Michael J. Brundrett, for the respondent.
The
judgment of the Court was delivered by
Cromwell
J. —
I. Overview
[1]
Dangerous driving
causing death is a serious criminal offence punishable by up to 14 years in
prison. Like all criminal offences, it consists of two components: prohibited
conduct — operating a motor vehicle in a dangerous manner resulting in death —
and a required degree of fault — a marked departure from the standard of care
that a reasonable person would observe in all the circumstances. The fault
component is critical, as it ensures that criminal punishment is only imposed
on those deserving the stigma of a criminal conviction. While a mere departure
from the standard of care justifies imposing civil liability, only a marked
departure justifies the fault requirement for this serious criminal offence.
[2]
Defining and applying
this fault element is important, but also challenging, given the inherently
dangerous nature of driving. Even simple carelessness may result in tragic
consequences which may tempt judges and juries to unduly extend the reach of
the criminal law to those responsible. Yet, as the Court put it in R. v.
Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, 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”. Giving careful attention to the fault element of the
offence is essential if we are to avoid making criminals out of the merely
careless.
[3]
The fault requirement
for dangerous driving is at the centre of this appeal, which raises three issues:
1. Did the trial judge apply
incorrect legal principles when he addressed the fault component of the
offence?
2. If he applied incorrect legal
principles, was his error harmless in the circumstances?
3. If the judge erred and the error
was not harmless so that the appeal must be allowed, should the Court order a
new trial or direct an acquittal?
[4]
In my view, the trial
judge made a serious legal error in relation to the fault element: he simply
inferred from the fact that the appellant had committed a dangerous act while
driving that his conduct displayed a marked departure from the standard of care
expected of a reasonable person in the circumstances. This error is not one
that may be dismissed as harmless. I would allow the appeal and set aside the
appellant’s conviction for dangerous driving. As in my view the evidence in
the record does not support a reasonable inference that the appellant exhibited
a marked departure from the standard of care that a reasonable person would
have exhibited in the circumstances, I would allow the appeal and enter an
acquittal.
II. Facts
and Proceedings
A. Overview of the Facts
[5]
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.
[6]
On an afternoon in late
November 2004, the appellant and Mark Anthony Harrington decided to return home
after work at a sawmill near Vavenby, a town north of Kamloops, British
Columbia. They left work together in the appellant’s motor home to head back
to a trailer park where they lived. They took a shortcut via the Harmon Road
to reach Highway 5, the Southern Yellowhead Highway, and then planned to head
south on the highway to the trailer park.
The Harmon Road is an unpaved back road which becomes relatively steep as it
approaches the intersection with the highway. The appellant knew the Harmon
Road well, having driven it to and from Highway 5 about 500 times before.
[7]
The Harmon Road
intersects with Highway 5 in such a way that vehicles intending to turn from
the road onto the highway to head south, as the appellant did to return to the
trailer park, usually first veer towards the north in order to come squarely to
the intersection. This enables them to better see the oncoming northbound
traffic and better determine when it is safe to turn left, and cross the
northbound lanes to head south. Constable Campbell testified that to turn onto
the highway, he has “to turn towards the right so I can come square at the
intersection so I can see both ways” (A.R., vol. II, at p. 167). That
afternoon, visibility was limited due to fog and the Harmon Road was
snow-covered and slippery.
[8]
On the afternoon of the
accident, Michael McGinnis, accompanied by his daughter Darlene, was driving a
tractor-trailer northbound on the highway. As he was approaching the Harmon
Road intersection at about 3:00 p.m., the fog was thickening and the visibility
was poor. The trial judge accepted Mr. McGinnis’s evidence that the weather
conditions led him to decrease his speed to between 75 and 80 kilometres per
hour. That was the speed he was driving when, from a distance, he noticed the
headlights of what we now know to have been the appellant’s vehicle pointing
towards him from what Mr. McGinnis assumed was the shoulder of the highway or
the top of the side road. Although the trial judge did not make a specific
finding on the point, both Mr. McGinnis and his passenger thought that the
appellant’s vehicle had stopped before proceeding onto the highway, although
his passenger was not sure. Mr. McGinnis also testified that when he first saw
the lights of the appellant’s vehicle, he guessed that it was about 300-400
feet away but that it could have been as little as 100 feet.
[9]
When Mr. McGinnis saw
the headlights, he took his foot off the accelerator. When he then realized
that the appellant’s vehicle was proceeding onto the highway, he applied his
brakes, but it was too late. His truck violently collided with the appellant’s
vehicle, killing Mr. Harrington. The appellant survived, but the collision
left him with no memory of either its circumstances or of the surrounding
events.
[10]
The appellant was
charged with and convicted of dangerous driving causing the death of Mr.
Harrington, contrary to s. 249(4) of the Criminal Code, R.S.C. 1985, c.
C-46 . The relevant provisions read 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;
. . .
(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.
[11]
The appellant was also
convicted under s. 259(4) of the Criminal Code of operating a motor
vehicle while disqualified from doing so by reason of an order issued under the
Criminal Code . The driving while disqualified charge is not in issue
here.
B. Proceedings
(1) Supreme Court of British Columbia (Blair J.),
2006 BCSC 2107 (CanLII)
[12]
As noted, the appellant
was convicted at trial of dangerous driving causing death. At the time of
trial, the Court had not yet rendered its decision in Beatty. The trial
judge therefore relied on the law as set out in R. v. Hundal, [1993] 1
S.C.R. 867, and in the British Columbia Court of Appeal’s judgment in R. v.
Beatty, 2006 BCCA 229, 225 B.C.A.C. 154, a decision which this Court
subsequently reversed.
[13]
The trial judge
considered that, in order to convict the appellant, he had to be satisfied
beyond a reasonable doubt that the appellant was driving in a manner that was
dangerous to the public. In making this assessment, he had to satisfy himself
that the conduct of the appellant amounted to a marked departure from the
standard of care that a reasonable person would observe in the accused’s
situation. If the appellant offered an explanation for his conduct, such as a
sudden and unexpected onset of illness, then he had to be convinced that a
reasonable person in similar circumstances ought to have been aware of the risk
and of the danger involved in the conduct he manifested.
[14]
Turning to the facts of
this case, the trial judge noted that vehicles entering Highway 5 from Harmon
Road had to comply with a stop sign which gave highway traffic the right of
way. He accepted that, at the relevant time, the surface of Harmon Road was
slippery and that its steepness would have slowed the progress of a motor home
attempting to proceed through the northbound traffic on to the southbound lanes
on Highway 5. He was of the view that the fog on Highway 5 would have
“obscured [the appellant’s] ability to ascertain the presence of other traffic”
on it (para. 25). Finally, the evidence, the trial judge held, entitled him to
infer that the appellant was well aware that Highway 5 “is a major traffic
conduit between British Columbia and the Prairies and as such it attracts a
considerable amount of traffic, including tractor trailer units at all times”
(para. 26).
[15]
The trial judge
concluded that the appellant’s conduct in proceeding “from the stop sign onto
Highway 5 from [Harmon] Road, with visibility diminished by fog, into the path
of oncoming traffic, specifically Mr. [McGinnis’s] tractor trailer unit” was
objectively dangerous (para. 27) and then immediately concluded that the
appellant’s driving had constituted a marked departure from the standard of
care a reasonable person would observe in the circumstances. Further, given
that no explanation was provided for the appellant’s conduct — due in great
part to his loss of memory — there was no evidence that could raise a
reasonable doubt that a reasonable person would not have been aware of the
risks related to his behaviour in the present case.
[16]
The critical part of
the judge’s analysis is as follows:
The
question is whether Mr. Roy’s conduct in proceeding from the stop sign onto
Highway 5 from [Harmon] Road, with visibility diminished by fog, into the path
of oncoming traffic, specifically Mr. [McGinnis’s] tractor trailer unit, was
objectively dangerous.
I
conclude that given the test as expressed in Hundal and as
further considered by the B.C. Court of Appeal in [Beatty], that the
question must be answered in the affirmative. I find that Mr. Roy’s driving
constitutes a marked departure from the standard of care a reasonable person
would observe in the accused’s situation.
The
second part of the test in Hundal is found in ¶38 and 43 and that is
whether, even though the driving is objectively dangerous, there was an
explanation for the accused’s conduct that would raise a reasonable doubt that
a reasonable person would have been aware of the risks in the accused’s
conduct.
There is no explanation for Mr. Roy’s
conduct. He recalls nothing of the events surrounding the collision and
therefore there is no evidence to consider that might raise a reasonable doubt
that a reasonable person would have been aware of the risks in the accused’s
conduct. [Emphasis added; paras. 27-30.]
(2) Court of Appeal for British Columbia (Garson
J.A., Levine and Neilson JJ.A. concurring), 2010 BCCA 130, 285 B.C.A.C. 57
[17]
The appellant’s appeal
to the Court of Appeal was dismissed. Although the court concluded that the
trial judge had made a legal error, it was of the view that the error was
harmless as it occasioned no substantial wrong or miscarriage of justice.
[18]
The appellant argued
that the trial judge had erred in law at para. 28 of his reasons by equating
the actus reus of the offence — that is, driving which viewed
objectively was dangerous — with the mens rea requirement — that is,
that the appellant’s level of care was a marked departure from the standard
expected of a reasonable person in the same circumstances. The Court of Appeal
noted that the trial judge’s reasons had to be reviewed in light of this
Court’s decision in Beatty.
[19]
The Court of Appeal
held that the trial judge erred in his legal analysis because he had equated
the fault (“mens rea”) inquiry “with the question of whether
there was an explanation for the accused’s conduct” (para. 21). Had the trial
judge applied the test set out in Beatty, “his analysis would have
reflected two enquiries. First, . . . was his driving objectively dangerous?
Second, was it a marked departure from the standard of care that a
reasonable person would observe in the accused’s circumstances?” (para. 23).
His failure to specifically address both questions opened his verdict to
appellate review.
[20]
Notwithstanding the
trial judge’s error, the Court of Appeal dismissed the appeal. It applied the
proviso set out in s. 686(1) (b)(iii) of the Criminal Code , because
in its view the error had not occasioned any substantial wrong or miscarriage
of justice. Although the trial judge had not specifically addressed the second
step of the dangerous driving inquiry as articulated in Beatty, it could
“easily be inferred from his reasons that the [appellant] had the necessary
intent” (para. 31). Indeed, this case was not one where the appellant’s
negligence was inadvertent. “Rather, the driving that resulted in the
collision entailed a deliberate act of driving onto a busy highway, in fog, in
the face of oncoming traffic” (para. 31). Further, “[t]he evidence at trial
did not reveal any explanation as to why he left the stop sign without first
ascertaining that it was safe to do so” (para. 1). In light of these
considerations, the trial judge was correct, in the court’s view, to hold that
the appellant’s driving constituted a marked departure from the standard of care
expected of a reasonable person in his circumstances. This satisfied the fault
requirement of dangerous driving and therefore no substantial wrong or
miscarriage of justice resulted from the trial judge’s failure to inquire
separately into the appellant’s state of mind.
[21]
The appeal was dismissed.
III. Issues
[22]
As noted, the appeal to this Court raises three
issues:
1. Did the trial judge apply
incorrect legal principles when he addressed the fault component of the
offence?
2. If he applied incorrect legal
principles, was his error harmless in the circumstances?
3. If the judge erred and the error
was not harmless so that the appeal must be allowed, should the Court order a
new trial or direct an acquittal?
[23]
I will address these
issues in turn.
IV. Analysis
A. First Issue: The Fault Element of
Dangerous Driving
[24]
The respondent defends
the appeal to this Court by submitting that, contrary to the finding of the
Court of Appeal, the trial judge did not err in his consideration of the fault
component of the offence. I do not agree. In brief, my view is that the trial
judge did exactly what the Court unanimously said in Beatty must not be
done: without further analysis of the fault component of the offence, he
inferred simply from the fact of driving that was, objectively viewed,
dangerous, that the appellant’s level of care was a marked departure from that
expected of a reasonable person in the same circumstances.
[25]
To explain my
conclusion, it will be helpful first to review the main principles established
by the Court in Beatty and then to set out how in my respectful view the
trial judge failed to apply them in substance in this case.
(1) Beatty in Overview
[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.
[27]
Beatty addressed concern that the Court’s reasons
in Hundal did not sufficiently emphasize the importance of giving
careful attention to the fault requirement of dangerous driving. Hundal
did not expressly differentiate between the two elements of the offence — the
prohibited conduct and the required fault. There was concern that judges and
juries might infer the existence of the fault element too quickly and without
sufficient analysis, simply from the fact that a motor vehicle had been
operated in a dangerous manner. (This, I add parenthetically, is, in my view
precisely what happened in this case.) The Court in Beatty sought to
ensure that a meaningful analysis of both elements would be performed in
every case and it did this by defining and separating the conduct and mental
elements of the offence.
[28]
In Beatty, the
majority of the Court spoke through the reasons of Charron J. which of course
are the authoritative statement of the relevant principles. In brief, the
Court decided as follows. The actus reus of the offence is driving in a
manner dangerous to the public, having regard to all the circumstances,
including the nature, condition and use of the place at which the motor vehicle
was being operated and the amount of traffic that at the time was or might
reasonably have been expected to be at that place (s. 249(1) (a) of the Criminal
Code ). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard
of care that a reasonable person would observe in the accused’s circumstances (Beatty,
at para. 43). The care exhibited by the accused is assessed against
the standard of care expected of a reasonably prudent driver in the
circumstances. The offence will only be made out if the care exhibited by the
accused constitutes a marked departure from that norm. While the
distinction between a mere departure from the standard of care, which would
justify civil liability, and a marked departure justifying criminal
punishment is a matter of degree, the lack of care must be serious enough to
merit punishment (para. 48).
[29]
It will be helpful to
reiterate the main elements of the majority reasons in Beatty.
(2) The Importance of the Fault
Requirement for Dangerous Driving
[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] 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] S.C.R. 804; Mann v. The Queen,
[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.
[43]
I now turn to the
question of whether the trial judge committed reversible error in this case.
(6) Did the Trial Judge Err With
Respect to the Fault Element?
[44]
The Court of Appeal
found that the trial judge erred by equating the fault component of the offence
with the question of whether there was an explanation for the accused’s conduct
(para. 21). I agree. But I also agree with the appellant that the trial
judge’s error goes beyond that. In my respectful view, the trial judge erred
in law by failing to conduct any meaningful inquiry into whether the appellant
displayed a marked departure from the standard of care to be expected of a
reasonable person in the same circumstances. Specifically, he inferred the
marked departure simply from the fact that the driving was, objectively viewed,
dangerous: trial judge’s reasons, at paras. 27-28. This is precisely what all
of the members of the Court held in Beatty must not be done. Of course,
the trial judge did not have the Court’s decision in Beatty.
[45]
The respondent argues
that the trial judge did not err and that the Court of Appeal was wrong to find
that he had. It is submitted that the Court’s decision in Beatty only
reformulated, not substantively modified, the test in Hundal. It
follows, the respondent says, that by faithfully following the test established
in Hundal the trial judge did not make any legal error. The respondent
points out that the Court did not suggest in Beatty that verdicts
rendered under the Hundal analysis were automatically subject to
appellate intervention. That being the case, the respondent submits, it was
not open to the Court of Appeal to intervene simply because the trial judge had
used the Hundal test to reach his verdict.
[46]
I agree that, if the
trial judge had correctly applied the law in substance, it would not have been
an error simply to fail to carry out his analysis using the Beatty
framework, which of course he could not have known of at the time of his
decision. However, my view is that the trial judge erred in substance and not
merely in form. As explained above, the trial judge inferred the necessary
fault element simply from the fact of dangerous driving. As Beatty
makes clear, this is an error of law.
[47]
The next question is therefore whether the trial
judge’s error was harmless because it resulted in no substantial wrong or
miscarriage of justice.
B. Second Issue: Was the Error Harmless?
[48]
Section 686(1) (b)(iii)
of the Criminal Code permits an appellate court to dismiss an appeal
from conviction despite a trial judge’s legal error where the Crown satisfies
the court that no “substantial wrong or miscarriage of justice has occurred”.
The Crown may do this either by showing (1) that the error was trivial or could
have had only a minor effect on the verdict, or (2) that it is clear that the
evidence pointing to the guilt of the accused is so overwhelming that
conviction was inevitable (R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823,
at paras. 30-31).
[49]
The appellant argues
that the Court of Appeal’s reasoning on this issue is flawed and I respectfully
agree. I note that the respondent’s primary position is that there was no
error and very little argument was directed to upholding the Court of Appeal’s
decision to apply the proviso.
[50]
I do not understand the
Court of Appeal to have applied the proviso on the basis that the Crown’s case
was overwhelming. In any event, that is clearly not the case here. Rather,
the Court of Appeal held that the trial judge’s reasons show that the legal
error had no significant effect. The court relied on two points to reach this
conclusion: first, that this was a case of advertent rather than inadvertent
negligence and second, that the trial judge’s finding of fact that the driving
constituted a marked departure from the standard of care made it clear that he
had found the fault element to have been established. I set out the operative
part of the Court of Appeal’s judgment:
The trial judge did not . . .
specifically address the second step as it is now articulated in Beatty
[i.e., the fault element], but it may easily be inferred from his reasons that
the accused had the necessary intent. This was not a case in which the
negligence was inadvertent. Rather, the driving that resulted in the collision
entailed a deliberate act of driving onto a busy highway, in fog, in the face
of oncoming traffic. The trial judge correctly concluded that the appellant’s
driving did constitute a marked departure from the standard of care of a
reasonable person in the circumstances of the appellant, thus satisfying the
test for mens rea. [para. 31]
[51]
I respectfully cannot
agree with either of these reasons. With respect to the first, there was no
evidence to support the Court of Appeal’s conclusion that this was “advertent”
negligence. Advertent negligence refers to subjective mens rea and
applies when an accused actually foresees the risk and decides to take it.
While the appellant’s act of driving out from the stop sign was apparently a
voluntary act, there was no evidence to support the conclusion that the
appellant was in fact aware of the risk he was creating in doing so and
deliberately chose to run that risk. In my respectful view, the Court of
Appeal erred in finding that subjective mens rea had been established on
this record. Of course, subjective mens rea is not required, but it
certainly was not established on this record.
[52]
As to the judge’s
finding of a marked departure, my view is, as noted earlier, that the judge
reached this conclusion solely by inferring it from the fact that the
appellant’s driving had been, objectively viewed, dangerous. That erroneous
inference cannot provide justification for dismissing that error as harmless.
C. Third Issue: New Trial or Acquittal?
[53]
The appellant asks the
Court to allow the appeal, set aside his conviction and enter an acquittal.
The Crown’s position is that if the appeal is to be allowed, a new trial should
be ordered. The decision as to what order to make turns on whether there is
any evidence upon which a properly instructed trier of fact could have
convicted. If there is not, then generally entering an acquittal is the
appropriate course (see R. v. MacNeil, 2009 NSCA 46, 277 N.S.R. (2d) 22,
at paras. 16-18; R. v. D.C.S., 2000 NSCA 61, 184 N.S.R. (2d) 299, at
paras. 46-50). In my view, that is the appropriate course in this case.
[54]
In my view, the record
does not provide evidence on which a properly instructed trier of fact, acting
reasonably, could conclude that the appellant’s standard of care was a marked
departure from that expected of a reasonable person in the circumstances. I
accept that the driving, objectively viewed, was dangerous. But it must be
noted that there was no evidence that the driving leading up to pulling into
the path of oncoming traffic was other than normal and prudent driving. The
focus, therefore, is on the momentary decision to pull onto the highway when it
was not safe to do so. I do not think that the manner of driving, on its own,
supports a reasonable inference that the appellant’s standard of care was a marked
departure from that expected of a reasonable driver in the same circumstances.
[55]
Taking the Crown’s case
at its highest, the appellant pulled out from a stop sign at a difficult
intersection and in poor visibility when it was not safe to do so. Although
the trial judge did not make a specific finding on the point, Mr. McGinnis (the
driver of the tractor-trailer) thought that the appellant’s vehicle had stopped
before proceeding onto the highway. Mr. McGinnis also testified that when he
first saw the lights of the appellant’s vehicle, he guessed that it was about
300-400 feet away but that it could have been as little as 100 feet. It is, of
course, reasonable to assume that the appellant could have seen the McGinnis
vehicle at least as soon as Mr. McGinnis was able to see the appellant’s
vehicle. Given the lighting on the tractor-trailer, it might be concluded that
the tractor-trailer may have been visible somewhat sooner. However, on any
realistic scenario consistent with the evidence, the time between visibility
and impact would be only a few seconds. In my view, the appellant’s decision to
pull onto the highway is consistent with simple misjudgment of speed and
distance in difficult conditions and poor visibility. The record here
discloses a single and momentary error in judgment with tragic consequences.
It does not support a reasonable inference that the appellant displayed a
marked departure from the standard of care expected of a reasonable person in
the same circumstances so as to justify conviction for the serious criminal
offence of dangerous driving causing death.
V. Disposition
[56]
I would allow the
appeal, set aside the appellant’s conviction and enter an acquittal.
Appeal
allowed.
Solicitor
for the appellant: Christopher J. Nowlin, Vancouver.
Solicitor for the
respondent: Attorney General of British Columbia, Vancouver.