SUPREME
COURT OF CANADA
Between:
Justin
Ronald Beatty
Appellant
v.
Her
Majesty the Queen
Respondent
Coram: McLachlin
C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and
Rothstein JJ.
Reasons
for Judgment:
(paras. 1 to 54)
Partially
Concurring Reasons: (paras. 55 to 82)
Partially
Concurring Reasons: (paras. 83 to 91)
|
Charron J. (Bastarache, Deschamps, Abella
and Rothstein JJ. concurring)
McLachlin C.J. (Binnie and LeBel JJ.
concurring)
Fish J.
|
______________________________
R. v. Beatty, [2008] 1 S.C.R. 49, 2008 SCC 5
Justin Ronald Beatty Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Beatty
Neutral citation: 2008 SCC 5.
File No.: 31550.
2007: October 19; 2008: February 22.
Present: McLachlin C.J. and Bastarache, Binnie,
LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Criminal law — Dangerous operation of motor vehicle
causing death — Elements of offence — Distinction between civil and penal
negligence in criminal setting — Accused’s vehicle crossing centre line for no
apparent reason and hitting oncoming vehicle, killing all three occupants —
Whether accused’s momentary lapse of attention satisfies requirements of
offence of dangerous operation of motor vehicle — Criminal Code, R.S.C. 1985,
c. C‑46, s. 249(4) .
The accused was charged with dangerous operation of a
motor vehicle causing death under s. 249(4) of the Criminal Code .
The accident that gave rise to these charges occurred when the accused’s pick‑up
truck, for no apparent reason, suddenly crossed the solid centre line into the
path of an oncoming vehicle, killing all three occupants. Witnesses driving
behind the victims’ car observed the accused’s vehicle being driven in a proper
manner prior to the accident. An expert inspection concluded that the
accused’s vehicle had not suffered from mechanical failure. Intoxicants were
not a factor. The accused stated that he was not sure what happened but that he
must have lost consciousness or fallen asleep and collided with the other
vehicle. The question that divided the courts below was whether this momentary
act of negligence was sufficient to constitute dangerous operation of a motor
vehicle causing death within the meaning of s. 249(4) . The trial judge
concluded that these few seconds of negligent driving could not, without more,
support a finding of a marked departure from the standard of care of a
reasonably prudent driver. The Court of Appeal set aside the acquittals and
ordered a new trial, finding that the accused’s conduct of crossing the centre
line into the path of oncoming traffic could only be viewed as objectively
dangerous and a “marked departure” from the requisite standard of care. The
determining question then became whether 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.
Held: The appeal should
be allowed and the acquittals restored.
Per Bastarache,
Deschamps, Abella, Charron and Rothstein JJ.: Conduct which constitutes a
departure from the norm expected of a reasonably prudent person forms the basis
of both civil and penal negligence. However, 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, but also with the offender’s mental state. The
modified objective test established in Hundal remains the appropriate
test to determine the requisite mens rea for negligence‑based
criminal offences. [6‑7]
The onus lies on the Crown to prove both the actus
reus and the mens rea of the offence of dangerous operation of a
motor vehicle. With respect to the actus reus, the accused’s conduct
must be measured as against the wording of s. 249. The trier of fact must
be satisfied beyond a reasonable doubt that, viewed objectively, the accused
was 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 was being operated and the amount of traffic that at
the time was or might reasonably be expected to have been at that place”. 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 of
whether the offence of dangerous operation of a motor vehicle has been made out
or not. [6] [43] [45-46]
The trier of fact must also be satisfied beyond a
reasonable doubt that the accused’s objectively dangerous conduct was
accompanied by the required mens rea. In making the objective
assessment, the trier of fact should be satisfied on the basis of all the
evidence, including evidence about the accused’s actual state of mind, if any,
that the conduct amounted to a marked departure from the standard of care that
a reasonable person would observe in the accused’s circumstances. Moreover, if
an explanation is offered by the accused, then in order to convict, the trier
of fact must be satisfied that a reasonable person in similar circumstances
ought to have been aware of the risk and of the danger involved in the conduct
manifested by the accused. Short of incapacity to appreciate the risk or
incapacity to avoid creating it, the accused’s personal attributes such as age,
experience and education are not relevant. The standard against which the
conduct must be measured is the conduct expected of the reasonably prudent
person in the circumstances. The reasonable person, however, must be put in
the circumstances the accused found himself or herself in when the events
occurred in order to assess the reasonableness of the conduct. [40] [43]
In the circumstances of this case, the accused’s failure
to confine his vehicle to his own lane of traffic was dangerous to other users
of the highway and the actus reus of the s. 249 offence is made
out. However, the mens rea requirement is not met. There was no
evidence of any deliberate intention to create a danger suggestive of a marked
departure from the norm. Rather, the limited evidence adduced at trial about
the accused’s actual state of mind suggested that the dangerous conduct was due
to a momentary lapse of attention. There was no evidence of improper driving
before the accused’s vehicle momentarily crossed the centre line. Viewed from
an objective basis, this momentary act of negligence was insufficient evidence
to support a finding of a marked departure from the standard of care of a
prudent driver. [51‑52]
Per McLachlin C.J.
and Binnie and LeBel JJ.: The “marked departure” requirement applies to
both the actus reus and the mens rea of the offence of dangerous
operation of a motor vehicle. The actus reus requires a marked
departure from the normal manner of driving. The mens rea is generally
inferred from the marked departure in the nature of driving, although the
evidence in a particular case may negate or cast a reasonable doubt on this
inference. [61] [67]
A momentary lapse of attention without more cannot
establish the actus reus and mens rea of the offence of dangerous
driving, and more particularly the requirement of a marked departure from the
standard of care of a reasonably prudent driver necessary to establish the actus
reus. However, additional evidence may show that a momentary lapse is part
of a larger pattern that, considered as a whole, establishes the marked
departure from the norm required for the offence of dangerous driving. It is
for the trier of fact to consider all of the evidence objectively and determine
if the actus reus of driving in a manner that constitutes a marked
departure from the norm is established. If this is established, the mens
rea will be inferred from the driving pattern, absent excuses presented by
the accused, such as sudden and unexpected illness, which raise a reasonable
doubt as to criminal intent. In cases of momentary lapse of attention, the
Crown does not have to prove that the accused subjectively intended to drive in
a manner that constituted a marked departure from the norm and endanger lives.
[71-72] [75] [77]
Here, the marked departure required for the offence of
dangerous operation of a motor vehicle has not been made out. The only
evidence against the accused is evidence of momentary lapse of attention.
Since the Crown did not succeed in proving that the accused’s manner of
driving, viewed as a whole, constituted a marked departure from the standard of
care of a reasonably prudent driver, it follows that it did not prove the actus
reus of the offence. [70] [81]
Per Fish J.: The actus
reus of dangerous driving consists in the elements of that offence set out
in s. 249(1) of the Code. Accordingly, anyone who commits that actus
reus with the requisite mens rea is guilty of dangerous driving.
The mens rea can be established in two ways. In rare cases, the
prosecution will be able to establish that the accused drove in a deliberately
dangerous manner. The accused’s decision to drive in a dangerous manner within
the meaning of s. 249(1)(a), like his awareness that he is doing
so, amounts to subjective mens rea. The mens rea can also be
established, and generally is, by demonstrating that the accused failed to meet
the objective standard of a reasonable person in the circumstances. In such
cases, the fault element is not the marked departure from the norm of a
reasonably prudent driver, but the fact that a reasonably prudent driver in the
accused’s circumstances would have been aware of the risk of that conduct, and
if able to do so, would have acted to avert it. This requisite mental element,
however, may only be inferred where the impugned conduct represents a marked
departure from the norm; it cannot be inferred from the mere fact that the
accused operated the motor vehicle in a dangerous manner. [84-88]
Cases Cited
By Charron J.
Applied: R. v. Hundal, [1993] 1 S.C.R. 867; referred to: R. v. City of Sault
Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Pappajohn, [1980] 2 S.C.R.
120; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v.
Vaillancourt, [1987] 2 S.C.R. 636; R. v. Tutton, [1989] 1 S.C.R.
1392; R. v. Waite, [1989] 1 S.C.R. 1436; R. v. Finlay, [1993] 3
S.C.R. 103; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Anderson,
[1990] 1 S.C.R. 265; R. v. Willock (2006), 210 C.C.C. (3d) 60.
By McLachlin C.J.
Applied: R. v. Hundal, [1993] 1 S.C.R. 867; R. v. Creighton, [1993] 3 S.C.R. 3; referred
to: R. v. Mann, [1966] S.C.R. 238; R. v. Willock (2006), 210
C.C.C. (3d) 60.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 7 .
Constitution Act, 1867,
s. 91(27) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 219 , 249 .
APPEAL from a judgment of the British Columbia Court of
Appeal (Finch C.J.B.C. and Ryan and Smith JJ.A.) (2006), 225 B.C.A.C.
154, 371 W.A.C. 154, 31 M.V.R. (5th) 188, [2006] B.C.J. No. 1038 (QL),
2006 CarswellBC 1118, 2006 BCCA 229, setting aside the accused’s acquittals
entered by Smith J., [2005] B.C.J. No. 3071 (QL), 2005 CarswellBC
3387, 2005 BCSC 751, and ordering a new trial. Appeal allowed.
Alexander P. Watt
and Jaime D. Ashby, for the appellant.
Alexander Budlovsky,
for the respondent.
The judgment of Bastarache, Deschamps, Abella, Charron
and Rothstein JJ. was delivered by
Charron J. —
1. Overview
[1]
The appellant, Justin Ronald Beatty, was charged with three counts of
dangerous operation of a motor vehicle causing death. The tragic accident that
gave rise to these charges occurred when Mr. Beatty’s pick-up truck, for no
apparent reason, suddenly crossed the solid centre line into the path of an
oncoming motor vehicle, killing all three occupants. The question that divided
the courts below was whether this momentary act of negligence was sufficient to
constitute dangerous operation of a motor vehicle causing death within the
meaning of s. 249(4) of the Criminal Code, R.S.C. 1985, c. C-46 .
[2]
Instructing herself in accordance with the test set out in R. v.
Hundal, [1993] 1 S.C.R. 867, the trial judge found that Mr. Beatty’s
momentary lapse of attention could not, without more, support a finding of a
marked departure from the standard of care of a reasonably prudent driver. She
held, rather, that his “few seconds of negligent driving” fell within the
continuum of negligence that would attract civil liability ([2005] B.C.J. No.
3071 (QL), 2005 BCSC 751, at para. 37). In light of this conclusion, the trial
judge found it unnecessary to consider the limited evidence regarding
Mr. Beatty’s explanation for the accident. The trial judge added,
however, that if she had concluded that Mr. Beatty’s manner of driving was
objectively dangerous, she would have found this evidence insufficient to raise
a reasonable doubt about his guilt. Mr. Beatty was acquitted on all three
counts.
[3]
The British Columbia Court of Appeal was of the view that the trial
judge had asked the wrong question. As the court put it, “[t]he right question
was whether crossing the centre line into the path of oncoming traffic at 90
kilometres per hour, on a well-travelled highway was objectively dangerous”
((2006), 225 B.C.A.C. 154, 2006 BCCA 229, at para. 26). In the court’s view,
such conduct could only be viewed as objectively dangerous and a “marked
departure” from the requisite standard of care. It therefore became incumbent
upon the trial judge to consider whether Mr. Beatty’s explanation raised a
reasonable doubt about whether a reasonable person in similar circumstances
would have been aware of the risk created by this conduct. Accordingly, the
court set aside the acquittals and ordered a new trial.
[4]
Mr. Beatty appeals from this order. He submits that the Court of Appeal
effectively created a legal presumption to the effect that any driver who
causes a car accident by reason of his or her negligence, regardless of the
degree of negligence, will inevitably be convicted for dangerous driving unless
the driver can offer a satisfactory explanation for the accident. This
approach, he submits, not only ignores the higher standard of a “marked
departure” from prudent conduct that distinguishes penal negligence from civil
negligence, it effectively relieves the Crown of its burden to prove the
offence and places the onus squarely on the shoulders of the accused to provide
an exculpatory explanation. He submits that the trial judge’s approach, by
contrast, was consistent with this Court’s jurisprudence and correct. He
therefore asks that his acquittals be restored.
[5]
The Crown takes issue with the trial judge’s approach, submitting that a
“momentary lack of attention” cannot be the determining criterion. The Crown
argues that conduct resulting from momentary inattention may or may not amount
to a marked departure from the norm depending on the circumstances. Where, as
here, such conduct poses a high risk of danger, a reasonable person would have
adverted to the potential risk associated with failing to be attentive and the
objective test for proving the offence is met. The evidentiary burden then
shifts to the accused to raise a reasonable doubt about whether a reasonable
person, in the accused’s position, would appreciate the risk he has created.
“[D]angerous conduct”, the Crown argues, “is no less dangerous when it results
from momentary inattentiveness than when it results from continuing
inattentiveness or recklessness, willful blindness, or even from [an]
intentional decision to engage in the dangerous conduct”. The degree of an
accused’s moral blameworthiness, it is suggested, is a relevant consideration in
sentencing but not in the determination of guilt.
[6]
In my respectful view, the approach advocated by the Crown does not
accord with fundamental principles of criminal justice. Unquestionably, conduct
which constitutes a departure from the norm expected of a reasonably prudent
person forms the basis of both civil and penal negligence. 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.
[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.
[9]
As I will explain, it is my respectful view that the Court of Appeal’s
analysis in effect stopped short at determining that the actus reus of
the offence had been made out and then erroneously placed the burden of
disproving mens rea squarely on Mr. Beatty. By contrast, the trial
judge’s approach reveals no error in principle. I therefore see no reason to
interfere with the verdicts reached at trial. I would allow the appeal and
restore the acquittals.
2. Background
[10]
The tragic accident giving rise to the criminal charges against Mr.
Beatty happened on July 23, 2003 at approximately 2:00 p.m. on Highway 1, about
14 km west of Chase, British Columbia. The weather was clear, sunny and very
hot; the asphalt surface of the road well travelled, in good repair, bare and
dry. The collision occurred when upon reaching a curve on the highway the
pick-up truck driven by Mr. Beatty suddenly, and for no apparent reason,
crossed the double solid centre line into the path of an oncoming vehicle,
killing all three occupants.
[11]
Witnesses driving behind the victims’ car observed Mr. Beatty’s vehicle
being driven in a proper manner prior to the accident. They testified that the
accident happened very quickly or “instantaneous[ly]”. The point of impact was
established at about half a metre into the opposite lane of traffic. Both
vehicles had been travelling at the posted 90 km/h speed limit and there was no
evidence that either vehicle took evasive measures. It was estimated at trial
that it would have taken Mr. Beatty’s vehicle .00268 seconds to cross the
double line and make contact with the oncoming car. An expert inspection
concluded that Mr. Beatty’s vehicle had not suffered from mechanical failure.
Intoxicants were not a factor.
[12]
After the accident, Mr. Beatty exited his vehicle and appeared stunned.
When asked what happened by the attending police officer, he indicated that he
was driving the pick-up and then “went unconscious”. He said he had been
working in the sun all day. A few minutes later, the police officer overheard
Mr. Beatty tell an ambulance attendant “I just lost consciousness. I think it
was heat stroke.” The ambulance attendant testified that Mr. Beatty appeared
dazed and uncomprehending when asked what had happened. After several attempts
at giving an explanation, Mr. Beatty stated that he was not sure what
happened but that he must have fallen asleep and collided with the other
vehicle.
[13]
After reviewing the evidence, the trial judge instructed herself
according to the test laid out in Hundal. I will review the analysis in
Hundal in more detail later in these reasons. The trial judge noted
that “[t]he application of this objective test has been challenging for trial
courts”, as “reflected in a number of decisions that at first blush would
appear to be irreconcilable” (para. 28). After reviewing some of the appellate
jurisprudence, including cases where the accused’s driving had been held to
constitute a “marked departure” from the applicable standard, she concluded as
follows:
The circumstances in this case are different. Here
there is no evidence of any improper driving by Mr. Beatty before his truck
veered into the westbound lane and into the oncoming vehicle. While that act of
driving was clearly negligent it occurred within a matter of seconds.
Moreover, there was no evidence of any evasive measures or evidence of any
obstruction in the eastbound lane that might have caused him to veer into the
westbound lane. In my view, the only reasonable inference to be drawn in these
circumstances, of Mr. Beatty’s manner of driving, was that he experienced a
loss of awareness, whether that was caused by him nodding off or for some other
reason. That loss of awareness resulted in him continuing to drive straight
instead of following the curve in the road and thereby cross the double solid
line. These few seconds of clearly negligent driving, which had devastating
consequences, are the only evidence of Mr. Beatty’s manner of driving. In my
view, Hundal requires something more than a few seconds of lapsed
attention to establish objectively dangerous driving. Criminal culpability
cannot be found, beyond a reasonable doubt, on such a paucity of evidence.
[para. 36]
[14]
The trial judge then expounded on the distinction between criminal and
civil negligence as follows:
This tragic accident occurred from a momentary lapse
of attention and snuffed out the lives of three individuals. There is nothing
a court can do or say that will adequately redress the loss suffered by the
victims’ families in such circumstances. However, in assessing criminal
culpability it is not the consequences of a negligent act of driving that
determines whether an accused’s manner of driving is objectively dangerous. It
is the driving itself that must be examined. In my view, Mr. Beatty’s few
seconds of negligent driving, in the absence of something more, is insufficient
evidence to support a finding of a marked departure from the standard of
care of a prudent driver. As contemplated by Hundal Mr. Beatty’s
negligent driving undoubtedly falls within the continuum of negligence that is
certain to attract considerable civil liability. It is in that forum that
redress for his actions will be found. [Emphasis in original; para. 37.]
[15]
In light of this conclusion, the trial judge found it unnecessary to
consider the limited evidence regarding Mr. Beatty’s explanation for the
accident. However, she added the following comment:
If I had concluded that Mr. Beatty’s manner of driving was objectively
dangerous, I would have found this evidence of a possible explanation for his
dangerous driving insufficient to raise a reasonable doubt that his manner of
driving was objectively dangerous. [para. 38]
[16]
The trial judge therefore acquitted Mr. Beatty on all three counts. On
appeal by the Crown, the Court of Appeal found error in the approach adopted by
the trial judge. The court’s reasoning is aptly captured in paras. 22-27 of the
reasons for judgment where Finch C.J.B.C., writing for the court, stated as
follows:
In this case, there is no evidence that the respondent was speeding,
no evidence that he had consumed alcohol or drugs, and no evidence that he was
driving erratically or improperly at any time before his vehicle crossed into
the oncoming lane of traffic.
However, the evidence showed that there was only one lane for travel
in each direction, the traffic was proceeding at or near the posted speed limit
of 90 kilometres per hour, the highway was well-travelled, there was limited
visibility approaching the curve, and the collision occurred within a split
second of the respondent’s crossing onto the oncoming lane of traffic.
Viewed objectively, the respondent’s failure to confine his vehicle to
its own lane of travel was in “all the circumstances” highly dangerous to other
persons lawfully using the highway, and in particular those approaching in a
westerly direction on their own side of the road.
The trial judge addressed her attention to the respondent’s “momentary
lack of attention” and his “few seconds of lapsed attention”. She held that
such a momentary lapse should not be characterized as dangerous driving.
In my respectful opinion the learned trial judge asked the wrong
question. The right question was whether crossing the centre line into the path
of oncoming traffic at 90 kilometres per hour, on a well-travelled highway was
objectively dangerous. I think that question could only be answered in the
affirmative. Driving in that way is clearly a “marked departure” from the
standard of care a reasonable person would observe in the accused’s situation.
The second part of the Hundal test is whether,
even though the driving is objectively dangerous, there is 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”.
[17]
The Court of Appeal held that the trial judge’s added comments regarding
Mr. Beatty’s explanation were “hypothetical” and that they did “not adequately
engage the analysis required under the second step in Hundal” (para.
28). The court therefore set aside the acquittals and ordered a new trial.
3. Analysis
[18]
In the context of this proceeding, no one disputes that, in crossing the
centre lane into the path of an oncoming motor vehicle, Mr. Beatty’s manner of
driving fell below the standard of care of a reasonably prudent driver. We
recognize here the well‑established standard for the tort of negligence.
As noted by the trial judge, Mr. Beatty’s negligent driving would
therefore undoubtedly attract civil liability. I will refer to the standard
for the tort of negligence simply as “civil negligence”. The more difficult
question is whether Mr. Beatty’s act of negligent driving also attracts
criminal liability for the offence of dangerous operation of a motor vehicle
causing death under s. 249(4) of the Criminal Code .
[19]
The relevant parts of s. 249 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.
[20]
It is well established that dangerous driving is based on a form of
negligent conduct. As is readily apparent from a reading of s. 249 , an act of
dangerous operation of a motor vehicle necessarily falls below the standard of
care expected of a reasonably prudent driver; among other things, it is
expected that a reasonably prudent driver will not drive “in a manner
that is dangerous to the public” as proscribed by this provision. The
converse, however, does not hold true. An act of negligent driving will not
necessarily constitute the offence of dangerous driving. The question raised
on this appeal requires the Court to reiterate the important distinction
between civil negligence and negligence in a criminal setting. The latter has
often been referred to as “penal negligence” so as not to confuse the category
of negligence-based offences in a criminal setting with the particular offence
of criminal negligence under s. 219 of the Criminal Code which, of
course, also forms part of this category. This Court in Hundal adopted
what it called a modified objective test for determining the requisite mens
rea for negligence-based driving offences.
[21]
As evidenced by the decisions in the courts below in this case, the
application of this modified objective test has often proved to be
challenging. I therefore propose to review the test in Hundal and its
underlying rationale in some detail. I will then restate the test in reference
to both constituent elements of the offence, the actus reus and the mens
rea. Before reviewing the test in Hundal, it may be useful to
recall the common law and constitutional principles upon which the decision was
based and to briefly review some of the jurisprudence that preceded the
decision.
3.1 The
Pre-Charter Landscape
[22]
Prior to the enactment of the Canadian Charter of Rights and Freedoms ,
Parliament could prohibit any act and impose any penal sanction for infringing
that prohibition, provided of course that it acted within the scope of its
power with respect to the “Criminal Law” under s. 91(27) of the Constitution
Act, 1867 . In addition, Parliament and provincial legislatures could
create any number of statutory offences within their respective spheres of
legislative power. As long as legislation met this constitutional test, the
role of the court in reviewing the substance of a prohibition was limited to
interpreting its meaning in the light of certain presumptive principles of
criminal justice. A classic and often-quoted statement of one such governing
principle is the following by Dickson J. (as he then was) in R. v. City of
Sault Ste. Marie, [1978] 2 S.C.R. 1299, at pp. 1309-10:
The distinction between the true criminal offence
and the public welfare offence is one of prime importance. Where the offence
is criminal, the Crown must establish a mental element, namely, that the
accused who committed the prohibited act did so intentionally or recklessly,
with knowledge of the facts constituting the offence, or with wilful blindness
toward them. Mere negligence is excluded from the concept of the mental
element required for conviction. Within the context of a criminal
prosecution a person who fails to make such enquiries as a reasonable and
prudent person would make, or who fails to know facts he should have known, is
innocent in the eyes of the law. [Emphasis added.]
[23]
Of course, Dickson J. was identifying here the presumptive common law
principles that apply in the absence of a contrary legislative intention. He
made this context clear in his subsequent judgment (dissenting, but not on this
point) in R. v. Pappajohn, [1980] 2 S.C.R. 120, where he aptly summed up
the pre-Charter legal landscape as follows:
There rests now, at the foundation of our system of
criminal justice, the precept that a man cannot be adjudged guilty and
subjected to punishment, unless the commission of the crime was voluntarily
directed by a willing mind. Blackstone spoke of a “vicious act” consequent
upon a “vicious will” (Commentaries, Book IV, at p. 21). Proof of the
mental element is an essential and constituent step in establishing criminal
responsibility. Parliament can, of course, by express words, create criminal
offences for which a guilty intention is not an essential ingredient. Equally,
mens rea is not requisite in a wide category of statutory offences which
are concerned with public welfare, health and safety. Subject to these
exceptions, mens rea, consisting of some positive states of mind, such
as evil intention, or knowledge of the wrongfulness of the act, or reckless
disregard of consequences, must be proved by the prosecution. The mental
element may be established by inference from the nature of the act committed,
or by additional evidence. [pp. 138-39]
3.2 Fundamental
Principles of Criminal Justice Under the Charter
[24]
With the advent of the Charter , the parameters of valid federal
and provincial legislation became defined, not only along division of powers
lines but by minimal constitutional requirements. Therefore, with the Charter
came a renewed interest in the mental elements of crimes and regulatory
offences. To what extent had the fundamental principles of criminal justice
that gave rise to the common law presumptions on mens rea become
constitutionally entrenched? The question came to the fore shortly after the Charter
came into force in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.
[25]
The British Columbia Motor Vehicle Act, R.S.B.C. 1979, c. 288,
provided for minimum periods of imprisonment for the offence of driving on a
highway or industrial road without a valid driver’s licence or with a licence
under suspension. Moreover, s. 94(2) of the Act provided that this offence was
one of absolute liability in which guilt was established by the proof of
driving, whether or not the driver knew of the prohibition or suspension. On a
reference brought by the provincial government, the British Columbia Court of
Appeal found s. 94(2) inconsistent with s. 7 of the Charter and of no
force or effect. The decision was upheld by this Court. Lamer J. (as he then
was) made it clear that in the post-Charter era, absolute liability and
imprisonment cannot be combined. This holds true regardless of whether
imprisonment is mandatory or not. Though absolute liability provisions are not
in and of themselves unconstitutional, they will be offensive to principles of
fundamental justice entrenched under s. 7 of the Charter to the extent
that they have the potential of depriving of life, liberty, or security of the
person. The fundamental principle at play was stated as follows (at p. 513):
It has from time immemorial been part of our system
of laws that the innocent not be punished. This principle has long been
recognized as an essential element of a system for the administration of
justice which is founded upon a belief in the dignity and worth of the human
person and on the rule of law. It is so old that its first enunciation was in
Latin actus non facit reum nisi mens sit rea.
[26]
It therefore became clear that mens rea, as a presumed element in
Sault Ste. Marie, had acquired a constitutional dimension. As
noted subsequently in R. v. Vaillancourt, [1987] 2 S.C.R. 636 (where the
Court held that subjective mens rea was constitutionally required in
respect of the offence of murder):
Re B.C. Motor Vehicle Act did not decide what level of mens rea
was constitutionally required for each type of offence, but inferentially
decided that even for a mere provincial regulatory offence at least
negligence was required, in that at least a defence of due diligence must
always be open to an accused who risks imprisonment upon conviction.
[Emphasis added; p. 652.]
3.3 Mens Rea
and Negligence-Based Offences
[27]
Not surprisingly, in the years that followed, the requisite mens rea
for certain negligence-based criminal offences attracted much judicial
scrutiny. Even in cases where the constitutional validity of the legislation
was not impugned, the constituent elements of the offence were now interpreted
in the light of minimal constitutional requirements. In particular, the
question whether the test for determining the requisite mens rea for
negligence-based offences was subjective or objective was much debated. In R.
v. Tutton, [1989] 1 S.C.R. 1392, and in R. v. Waite, [1989] 1 S.C.R.
1436, released concurrently, the Court was equally divided (three of the nine
judges did not participate in the decisions) on the question whether the
offence of criminal negligence under s. 202 (now s. 219 ) of the Criminal
Code called for a subjective or objective test. Tutton concerned
parents who caused the death of their son by denying him the necessaries of
life. Waite concerned an impaired driver who caused the death of four
young persons and injured a fifth person when he played chicken with a
hayride. Three judges were of the view that, in order to sit comfortably with
principles of penal liability and fundamental justice, the mens rea for
the offence of criminal negligence must be assessed subjectively, requiring
proof of a positive state of mind such as intent, recklessness or wilful
blindness. Three other judges held that an objective test must be used in
determining criminal negligence, with different opinions on how this objective
test should be applied.
[28]
A few years later, the question whether the constitutional requirement
of mens rea called for a subjective or objective test in respect of the
negligence-based offence of dangerous driving was again the precise issue
before the Court in Hundal. A unanimous Court (Stevenson J. taking no
part in the judgment) resolved the impasse created in Tutton and Waite,
at least in the context of driving offences, by adopting a “modified” objective
test.
3.3.1 Objective
Mens Rea Appropriate for Driving Offences
[29]
The Court accepted objective fault as an appropriate basis for imposing
criminal liability because of “[t]he nature of driving offences”, having
particular regard to: the “licensing requirement” for driving; “the automatic
and reflexive nature of driving”; the wording of the legislative provision; and
the “obvious and urgent” need to control the conduct of drivers (pp. 883-86).
The fact that driving is a regulated and voluntary activity plays a key role in
the adoption of a modified objective test for the mens rea of dangerous
driving. The Court explained how the licensing requirement impacted on the
question of mens rea in two principal ways.
[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] 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] 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.
3.3.3 Second
Modification to the Objective Test: The Allowance for Exculpatory Defences
[37]
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. However,
there will be circumstances where this underlying premise cannot be sustained
because a reasonable person in the position of the accused would not have been
aware of the risk or, alternatively, would not have been able to avoid creating
the danger. Of course, it is not open to the driver to simply say that he or
she gave no thought to the manner of driving because the fault lies in the
failure to bring to the dangerous activity the expected degree of thought and
attention that it required. As Cory J. explained (at p. 885 of Hundal):
It would be a denial of common sense for a driver,
whose conduct was objectively dangerous, to be acquitted on the ground that he
was not thinking of his manner of driving at the time of the accident.
However, because
the accused’s mental state is relevant in a criminal setting, the objective
test must be modified to give the accused the benefit of any reasonable doubt
about whether the reasonable person would have appreciated the risk or could
and would have done something to avoid creating the danger. On these
occasions, even when the manner of driving viewed objectively will clearly be
dangerous, the accused cannot be convicted. Cory J., in Hundal, gave
some useful examples (at p. 887):
Take for example a driver who, without prior warning, suffers a totally
unexpected heart attack, epileptic seizure or detached retina. As a result of
the sudden onset of a disease or physical disability the manner of driving
would be dangerous yet those circumstances could provide a complete defence
despite the objective demonstration of dangerous driving. Similarly, a driver
who, in the absence of any warning or knowledge of its possible effects, takes
a prescribed medication which suddenly and unexpectedly affects the driver in
such a way that the manner of driving was dangerous to the public, could still
establish a good defence to the charge although it had been objectively
established.
[38]
We can readily appreciate the injustice of branding the driver in each
of these examples as a criminal. In the same vein, a reasonably held mistake
of fact may provide a complete defence if, based on the accused’s reasonable
perception of the facts, the conduct measured up to the requisite standard of
care. It is therefore important to apply the modified objective test in the
context of the events surrounding the incident. In Tutton, McIntyre J.
provided the following useful example in the context of a criminal negligence
charge (at p. 1432, repeated in Hundal, at pp. 887-88):
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, 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.
[39]
It is important however not to confuse the personal characteristics of
the accused with the context of the events surrounding the incident. In the
course of the earlier debate on whether to adopt a subjective or objective
test, Lamer J. favoured an objective approach but, in an attempt to alleviate
its potential harshness, he would have made generous allowances for factors
particular to the accused, such as youth, mental development and education:
see for example, Tutton, at p. 1434. Under this approach, the young and
inexperienced driver’s conduct would be measured against the standard expected
of a reasonably prudent but young and inexperienced driver. This approach,
however, was not favoured by other members of the Court. As Wilson J. stated
in Tutton, this individualized approach “sets out a fluctuating standard
which in my view undermines the principles of equality and individual
responsibility which should pervade the criminal law” (p. 1418).
[40]
Some of the language used in Hundal nonetheless left uncertainty
about the degree to which personal characteristics could form part of the
circumstances which must be taken into account in applying the modified
objective test. (See for example the references to “certain personal factors”
at p. 883 and to “human frailties” at p. 887.) This remaining uncertainty was
later resolved in Creighton. Short of incapacity to appreciate the risk
or incapacity to avoid creating it, personal attributes such as age, experience
and education are not relevant. The standard against which the conduct must be
measured is always the same — it is the conduct expected of the reasonably
prudent person in the circumstances. The reasonable person, however, must be
put in the circumstances the accused found himself in when the events
occurred in order to assess the reasonableness of the conduct. To reiterate
the example used above, the reasonable person becomes the one who “without
prior warning, suffers a totally unexpected heart attack, epileptic seizure or
detached retina” or becomes the one who “in the absence of any warning or
knowledge of its possible effects, takes a prescribed medication which suddenly
and unexpectedly” causes him to drive in a manner that is dangerous to the
public. By so placing the reasonable person, the test is not personalized and
the standard remains that of a reasonably prudent driver, but it is
appropriately contextualized.
3.4 Restatement
of the Test in Hundal
[41]
In Hundal, Cory J. summarized the analytical framework for
applying the modified objective test in the following oft-quoted passage (at
pp. 888-89):
It follows then that a trier of fact may convict if satisfied beyond a
reasonable doubt that, viewed objectively, the accused was, in the words of the
section, driving in a manner that was “dangerous to the public, having regard
to all 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 be on such place”. In making the assessment, the trier of fact should be
satisfied that the conduct amounted to a marked departure from the standard of
care that a reasonable person would observe in the accused’s situation.
Next, if an explanation is offered by the accused, such as a sudden
and unexpected onset of illness, then in order to convict, the trier of fact
must be satisfied that a reasonable person in similar circumstances ought to
have been aware of the risk and of the danger involved in the conduct
manifested by the accused.
[42]
In reviewing a number of cases that have applied this test, I have
observed two common difficulties. First, there appears to be some confusion on
the distinction, if any, between “objectively dangerous driving” on one hand,
and a “marked departure from the standard of care” on the other. This
difficulty is quite understandable because some departures from the reasonable
standard of care may not be “marked” or “significant” but are nonetheless
undeniably dangerous. As we shall see, this case is one example. Second,
there appears to be much uncertainty in the case law on how to deal with
evidence about the accused’s mental state. In particular, when is evidence
about the accused’s actual mental state relevant? Is it relevant in
determining whether the conduct constitutes a “marked departure” from the norm
or, as the courts below in this case have done, should it be considered only as
part of a distinct analysis on potential exculpatory defences?
[43]
As we have seen, the requisite mens rea for the offence of
dangerous driving was the sole issue before the Court in Hundal, and the
test was expressed accordingly. In order to clarify the uncertainties I have
mentioned, it may assist to restate the summary of the test in terms of both
the actus reus and the mens rea of the offence. I respectfully
disagree with the Chief Justice that the test for the actus reus is
defined in terms of a marked departure from the normal manner of driving (para.
67). The actus reus must be defined, rather, by the words of the
enactment. Of course, conduct that is found to depart markedly from the norm
remains necessary to make out the offence because nothing less will support the
conclusion that the accused acted with sufficient blameworthiness, in other
words with the requisite mens rea, to warrant conviction. In addition,
it may be useful to keep in mind that while the modified objective test calls
for an objective assessment of the accused’s manner of driving, evidence about
the accused’s actual state of mind, if any, may also be relevant in determining
the presence of sufficient mens rea. I would therefore restate
the test reproduced above as follows:
(a) The Actus
Reus
The trier of
fact must be satisfied beyond a reasonable doubt that, viewed objectively, the
accused was, in the words of the section, 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”.
(b) The Mens
Rea
The trier of
fact must also be satisfied beyond a reasonable doubt that the accused’s
objectively dangerous conduct was accompanied by the required mens rea.
In making the objective assessment, the trier of fact should be satisfied on
the basis of all the evidence, including evidence about the accused’s actual
state of mind, if any, that the conduct amounted to a marked departure from the
standard of care that a reasonable person would observe in the accused’s
circumstances. Moreover, if an explanation is offered by the accused, then in
order to convict, the trier of fact must be satisfied that a reasonable person
in similar circumstances ought to have been aware of the risk and of the danger
involved in the conduct manifested by the accused.
[44]
I wish to elaborate on certain aspects of this test before applying it
to the facts of this case.
3.4.1 Determining
the Actus Reus
[45]
I deal firstly with the actus reus. The offence is defined by
the words of the legislative provision, not by the common law standard for
civil negligence. In order to determine the actus reus, the conduct
must therefore be measured as against the wording of s. 249 . Although the
offence is negligence-based, this is an important distinction. As we have
seen, conduct that constitutes dangerous operation of a motor vehicle as
defined under s. 249 will necessarily fall below the standard expected of a
reasonably prudent driver. The converse however is not necessarily true — not
all negligent driving will constitute dangerous operation of a motor vehicle.
If the court is satisfied beyond a reasonable doubt that the manner of driving
was dangerous to the public within the meaning of s. 249 , the actus reus
of the offence has been made out. Nothing is gained by adding to the words of
s. 249 at this stage of the analysis.
[46]
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. This Court explained this distinction in R. v. Anderson, [1990]
1 S.C.R. 265, as follows:
In the circumstances of this case, the unfortunate
fact that a person was killed added nothing to the conduct of the appellant.
The degree of negligence proved against the appellant by means of the evidence
that he drove after drinking and went through a red light was not increased by
the fact that a collision occurred and death resulted. If driving and
drinking and running a red light was not a marked departure from the standard,
it did not become so because a collision occurred. In some circumstances,
perhaps, the actions of the accused and the consequences flowing from them may
be so interwoven that the consequences may be relevant in characterizing the
conduct of the accused. That is not the case here. [Emphasis added; p. 273.]
3.4.2 Determining
the Mens Rea
[47]
In determining the question of mens rea, the court should
consider the totality of the evidence, including evidence, if any, about the
accused’s actual state of mind. As discussed at length above, the mens rea
requirement for the offence of dangerous driving will be satisfied by applying
a modified objective test. This means that, unlike offences that can only be
committed if the accused possesses a subjective form of mens rea, it is
not necessary for the Crown to prove that the accused had a positive state of
mind, such as intent, recklessness or wilful blindness. Of course, this does
not mean that the actual state of mind of the accused is irrelevant. For
example, if proof is made that a driver purposely drove into the path of an
oncoming vehicle in an intentionally dangerous manner for the purpose of
scaring the passengers of that vehicle or impressing someone in his own vehicle
with his bravado, the requirement of mens rea will easily be met. One
way of looking at it is to say that the subjective mens rea of
intentionally creating a danger for other users of the highway within the
meaning of s. 249 of the Criminal Code constitutes a “marked departure”
from the standard expected of a reasonably prudent driver. Doherty J.A.
similarly equates such deliberate action with a “marked and substantial”
departure from the norm in the context of a criminal negligence charge in R.
v. Willock (2006), 210 C.C.C. (3d) 60 (Ont. C.A.), where he states, at
para. 32:
I think the appellant’s conduct during the two or
three seconds in issue could only reasonably be said to constitute a marked and
substantial departure from the conduct expected of a reasonable driver if the
appellant deliberately jerked the steering wheel to cause the vehicle to
swerve, presumably to either show off or frighten his young passengers. If
that finding was reasonably open on the evidence, then the appellant could
properly have been convicted of criminal negligence, as he was unable to regain
control of the vehicle before it crossed the median and collided with the
westbound vehicle. As indicated, I read the trial judge as making that
finding. With respect, I do not think that finding was reasonably available on
the totality of the evidence.
I agree with the
Chief Justice (at para. 75) that the analysis in Willock does not have
the effect of imposing on the Crown the burden of proving the subjective
intention of the accused in order to make out the offence. Doherty J.A. specifically
held at para. 31 that “conduct occurring in a two to three second interval can
amount to a marked departure from the standard of a reasonable person and
demonstrate a wanton or reckless disregard for the life or safety of others”.
Doherty J.A. simply recognizes, as I do, that evidence about the actual
intention of an accused is relevant to a court’s objective assessment of
whether or not conduct constitutes a marked departure from the norm.
[48]
However, subjective mens rea of the kind I have just described
need not be proven to make out the offence because the mischief Parliament
sought to address in enacting s. 249 encompasses a wider range of behaviour.
Therefore, while proof of subjective mens rea will clearly suffice, it
is not essential. In the case of negligence-based offences such as this one,
doing the proscribed act with the absence of the appropriate mental state of
care may instead suffice to constitute the requisite fault. The presence of
objective mens rea is determined by assessing the dangerous conduct as
against the standard expected of a reasonably prudent driver. If the dangerous
conduct constitutes a “marked departure” from that norm, the offence will be
made out. As stated earlier, what constitutes a “marked departure” from the
standard expected of a reasonably prudent driver is a matter of degree. The
lack of care must be serious enough to merit punishment. There is no doubt
that conduct occurring in a few seconds can constitute a marked departure from
the standard of a reasonable person. Nonetheless, as Doherty J.A. aptly
remarked in Willock, “conduct 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” (para. 31). Although Willock concerned the offence of
criminal negligence, an offence which is higher on the continuum of negligent
driving, this observation is equally apt with respect to the offence of dangerous
operation of a motor vehicle.
[49]
If the conduct does not constitute a marked departure from the standard
expected of a reasonably prudent driver, there is no need to pursue the
analysis. The offence will not have been made out. If, on the other hand, the
trier of fact is convinced beyond a reasonable doubt that the objectively
dangerous conduct constitutes a marked departure from the norm, the trier of
fact must consider evidence about the actual state of mind of the accused, if
any, to determine whether it raises a reasonable doubt about whether a
reasonable person in the accused’s position would have been aware of the risk
created by this conduct. If there is no such evidence, the court may convict
the accused.
4. Application
to this Case
[50]
First, did Mr. Beatty commit the actus reus of the offence? Did
he operate his 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”? I repeat here the Court of Appeal’s analysis of the circumstances for
convenience:
However, the evidence showed that there was only one lane for travel
in each direction, the traffic was proceeding at or near the posted speed limit
of 90 kilometres per hour, the highway was well-travelled, there was limited
visibility approaching the curve, and the collision occurred within a split
second of the respondent’s crossing onto the oncoming lane of traffic.
Viewed objectively, the respondent’s failure to
confine his vehicle to its own lane of travel was in “all the circumstances”
highly dangerous to other persons lawfully using the highway, and in particular
those approaching in a westerly direction on their own side of the road.
[paras. 23‑24]
[51]
Up to this point in the analysis, I would agree with the Court of
Appeal. In all the circumstances, Mr. Beatty’s failure to confine his vehicle
to his own lane of traffic was dangerous to other users of the highway.
Further, no suggestion was made at trial that Mr. Beatty was in a state of
non-insane automatism at the time. However, this conclusion only answers the actus
reus part of the offence. The more difficult question is whether Mr.
Beatty had the necessary mens rea. There is no evidence here of any
deliberate intention to create a danger for other users of the highway that
could provide an easy answer to that question. Indeed, the limited evidence
that was adduced about the actual state of mind of the driver suggested rather
that the dangerous conduct was due to a momentary lapse of attention. Hence,
the trial judge was correct in finding that the question of mens rea in
this case turns on whether Mr. Beatty’s manner of driving, viewed on an
objective basis, constitutes a marked departure from the norm.
[52]
In my respectful view, the Court of Appeal erred in faulting the trial
judge for addressing her attention to Mr. Beatty’s “momentary lack of
attention” and his “few seconds of lapsed attention”. The trial judge
appropriately focussed her analysis on Mr. Beatty’s manner of driving in
all the circumstances. She noted that there was no evidence of improper
driving before the truck momentarily crossed the centre line and that the “few
seconds of clearly negligent driving” was the only evidence about his manner of
driving (para. 36). She appropriately considered the totality of the evidence
in finding that “the only reasonable inference” was that “he experienced a loss
of awareness” that caused him to drive straight instead of following the curve
in the road (para. 36). In her view, this momentary lapse of attention was
insufficient to found criminal culpability. She concluded that there was
“insufficient evidence to support a finding of a marked departure from
the standard of care of a prudent driver” (para. 37).
[53]
Based on the totality of the evidence, I see no reason to interfere with
the trial judge’s assessment of Mr. Beatty’s conduct in this case and her
conclusion on Mr. Beatty’s criminal liability. By contrast, it is my
respectful view that the Court of Appeal leaped too quickly to the conclusion
that the requisite mens rea could be made out from the simple fact of
the accident occurring, leaving no room for any assessment of Mr. Beatty’s
conduct along the continuum of negligence.
[54]
For these reasons, I would allow the appeal and restore the acquittals.
The reasons of McLachlin C.J. and Binnie and LeBel JJ. were delivered by
[55]
The Chief Justice — I
agree with much of Justice Charron’s analysis as well as with her disposition
of the appeal. However, I take a different view on how the test for the offence
of dangerous operation of a motor vehicle should be stated and how this impacts
on cases of momentary lapse of attention, such as this case.
The Test for
the Offence of Dangerous Driving
[56]
At para. 43, my colleague describes the actus reus in terms of
dangerous operation of a motor vehicle and the mens rea in terms of a
marked departure from the standard of care that a reasonable person would
observe in the accused’s circumstances. In discussing the actus reus,
my colleague observes that “[n]othing is gained by adding to the words of
s. 249 at this stage of the analysis” (para. 45).
[57]
With respect, I take a different view. A clear understanding of what is
required to fulfill both the actus reus and mens rea of dangerous
operation of a motor vehicle is important, and I see no impediment to judicial
clarification of either element. Determining what constitutes dangerous
driving without regard to the consequences — as the test requires — is a difficult
task, and one that has given rise to confusion. In my opinion the language of
s. 249 of the Criminal Code, R.S.C. 1985, c. C-46 , is consistent with
requiring a marked departure as part of the actus reus of the offence.
[58]
The jurisprudence of this Court offers assistance on what constitutes
the actus reus and mens rea of dangerous driving and how the two
elements of the offence should be described. R. v. Hundal, [1993] 1
S.C.R. 867, confirmed in R. v. Creighton, [1993] 3 S.C.R. 3, indicates
that the characterization of “marked departure” from the norm applies to the actus
reus of the offence, and that the mens rea of the offence flows by
inference from that finding, absent an excuse casting a reasonable doubt on the
accused’s capacity.
[59]
In Hundal, Cory J., writing for the majority, was concerned
mainly with mens rea. However, after settling this matter, he stated
the overall requirements of dangerous driving in terms of marked departure,
without limiting them to mens rea:
. . . a trier of fact may convict if satisfied beyond a reasonable doubt
that, viewed objectively, the accused was, in the words of the section, driving
in a manner that was “dangerous to the public, having regard to all 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 be on
such place”. In making the assessment, the trier of fact should be
satisfied that the conduct amounted to a marked departure from the standard of
care that a reasonable person would observe in the accused’s situation.
[Emphasis added; p. 888.]
[60]
Cory J. then went on to state that even where this is established,
the accused may offer an excuse such as a sudden and unexpected onset of illness,
thereby raising a reasonable doubt as to mens rea.
[61]
In the absence of language in this passage confining the requirement of
marked departure to the mens rea of the offence, it is reasonable to
conclude that it was intended to apply to both the actus reus and the mens
rea of the offence.
[62]
Any doubt on the matter was removed by the majority decision of this
Court in Creighton, in which Cory J. joined. At pp.
73-74, I wrote:
The foregoing analysis suggests the following line of inquiry in cases
of penal negligence. The first question is whether actus reus is
established. This requires that the negligence constitute a marked departure
from the standards of the reasonable person in all the circumstances of the
case. . . .
The next question is whether the mens rea is
established. As is the case with crimes of subjective mens rea, the
mens rea for objective foresight of risking harm is normally inferred
from the facts. The standard is that of the reasonable person in the circumstances
of the accused. If a person has committed a manifestly dangerous act, it is
reasonable, absent indications to the contrary, to infer that he or she failed
to direct his or her mind to the risk and the need to take care. However, the
normal inference may be negated by evidence raising a reasonable doubt as to
lack of capacity to appreciate the risk. Thus, if a prima facie case
for actus reus and mens rea is made out, it is necessary to ask a
further question: did the accused possess the requisite capacity to appreciate
the risk flowing from his conduct? If this further question is answered in the
affirmative, the necessary moral fault is established and the accused is
properly convicted. If not, the accused must be acquitted. [Emphasis added.]
[63]
This analysis, which defines the actus reus in terms of a “marked
departure” and the mens rea as the normal inference from that conduct,
absent excuse, was penned only a short time after Hundal, and concurred
in by the majority of the Court, including Cory J. Justice Cory’s decision in
Hundal was cited and relied on in Creighton as a basis for this
formulation. It follows that Hundal and Creighton should be
seen as adopting the same test, and that any ambiguity in the discussion of
dangerous driving in Hundal should be resolved in the manner suggested
in Creighton.
[64]
Requiring that the conduct alleged to constitute the actus reus
of the offence constitute a marked departure from the standard of a reasonable
person is consistent with the language of s. 249 of the Criminal Code .
Section 249(1) (a) defines the actus reus in terms of operating a
motor vehicle “in a manner that is dangerous to the public, having regard to
all the circumstances”, and goes on to provide a non-exhaustive list of
circumstances to be taken into consideration. In this context, dangerousness
is properly understood as requiring a marked departure from the conduct of a
reasonable person, in the circumstances.
[65]
If conduct not representing a marked departure is allowed to satisfy the
actus reus requirement for dangerous driving, then it becomes unclear
how Criminal Code dangerous driving is to be distinguished from a
wide variety of provincial motor vehicle offences, at the level of the actus
reus. Provincial motor vehicle legislation exists in part to manage and
minimize the risks associated with the widespread use of motor vehicles. Thus
in many cases, conduct representing a violation of provincial motor vehicle
legislation will be “objectively dangerous” in comparison with strict
compliance with the provisions of the legislation. Yet it would stretch the
meaning of s. 249(1)(a) to suggest that such conduct would be sufficient
to establish the actus reus of dangerous driving. The “marked departure”
requirement provides a standard for determining what is objectively dangerous
in the context of s. 249(1)(a), allowing relatively minor violations of
provincial motor vehicle Acts to fall clearly outside the scope of conduct that
Parliament intended to criminalize.
[66]
I add that this formulation mirrors the theory on which the criminal law
is founded — that the actus reus and mens rea of an offence
represent two aspects of the criminal conduct. The actus reus is the
act and the mens rea, or guilty mind, the intention to
commit that act. If the mens rea of the offence requires a failure to
take reasonable care which is inferred from the conduct of driving in a manner
that represents a marked departure from the norm, then the actus reus must
be the act of driving in a manner that represents a marked departure from the
norm.
[67]
I therefore conclude that the correct statement of the law is as
follows:
1. The actus reus requires a marked
departure from the normal manner of driving.
2. The mens rea is generally inferred from
the marked departure in the nature of driving. Based on the finding of a
marked departure, it is inferred that the accused lacked the requisite mental
state of care of a reasonable person.
3. While generally the mens rea is
inferred from the act constituting a marked departure committed by the accused,
the evidence in a particular case may negate or cast a reasonable doubt on this
inference.
The Problem
of Momentary Lapse of Attention
[68]
The problem at the heart of this case is whether acts of momentary lapse
of attention can constitute the offence of dangerous driving. The accused was
driving in an entirely normal manner until his vehicle suddenly swerved over
the centre line of the road, for reasons that remain unclear. Clearly there
was momentary lapse of attention. The issue is whether this is capable of
establishing the actus reus and mens rea of the offence.
[69]
In my view, momentary lapse of attention without more cannot establish
the actus reus or mens rea of the offence of dangerous driving.
This flows from this Court’s decision in R. v. Mann, [1966] S.C.R. 238,
upholding the constitutionality of the provincial offence of careless driving.
The constitutionality of the provincial offence was attacked on the ground that
the field was occupied by the federal offence of dangerous driving. In order
to resolve this issue, the Court was obliged to define the ambit of dangerous driving
and careless driving, respectively. The Court concluded that the two offences
were aimed at different conduct. In Mann, the distinction between the
levels of negligence required for careless driving and dangerous driving was
essential to upholding the constitutionality of the provincial offence of
careless driving. Although some of the judges in Mann cast their
reasoning in terms of inadvertent versus advertent negligence, concepts which
are no longer the focus of the analysis in cases of dangerous driving (Hundal,
at p. 889), what is clear is that the offence of dangerous driving requires a
higher degree of negligence than careless driving. This Court affirmed the
differing levels of negligence for careless driving and dangerous driving in Hundal.
[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.
[71]
In terms of the test for the offence outlined above, momentary lapse of
attention does not establish the marked departure from the standard of care of
a reasonably prudent driver required for the actus reus of the offence.
As the case law teaches, one must consider the entire manner of driving of the
accused, in all the circumstances. A moment of lapse of attention, in the
context of totally normal driving, is insufficient to establish the marked
departure required for the offence of dangerous driving. In order to avoid
criminal liability, an accused’s driving is not required to meet a standard of
perfection. 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.
[72]
A momentary lapse of attention without more cannot establish the actus
reus and mens rea of the offence of dangerous driving. However, additional
evidence may show that the momentary lapse is part of a larger pattern that,
considered as a whole, establishes the marked departure from the norm required
for the offence of dangerous driving. For example, a momentary lapse might be
caused by the consumption of alcohol or by carrying on an activity incompatible
with maintaining proper control of the automobile. The trier of fact might
conclude in such a case that considering the total driving pattern in all the
circumstances, a marked departure from the norm is established.
[73]
This brings us to the case of R. v. Willock (2006), 210 C.C.C.
(3d) 60 (Ont. C.A.), and the relevance of the subjective intention of the
accused. In Willock, the accused, who had been driving normally,
suddenly steered erratically. His vehicle began to fishtail and ultimately
went out of control, crossing the median into opposing traffic. The accused
offered no explanation for his steering, such as sudden illness. At trial, the
accused was convicted of criminal negligence causing death. The Court of Appeal
overturned the conviction on the grounds that in the circumstances, where the
accused’s driving had otherwise been wholly proper, the Crown had the burden of
proving that the accused deliberately caused his vehicle to swerve.
[74]
The holding in Willock that the Crown be required to prove that
the accused deliberately caused his vehicle to swerve should not be read as
putting a burden on the Crown to show a subjective intention by the accused to
drive dangerously. In Willock, Doherty J.A. did not require the Crown
to establish that the accused appreciated that causing his vehicle to swerve
created a risk that he would lose control of his vehicle, or that this in turn
created a risk of death or bodily injury. It was not necessary that the accused
subjectively appreciated the risks associated with his conduct or that he
appreciated that his conduct represented a marked departure from the reasonable
person standard. Doherty J.A. simply held that in the circumstances, evidence
of the appellant’s intentions was necessary for assessing his conduct on the
objective standard, because on the facts in that case, if the accused had not
intentionally caused the car to swerve, the remaining evidence was not
sufficient to show a marked departure.
[75]
Willock should thus not be read as suggesting that in cases of
momentary lapse of attention, the Crown must prove that the accused
subjectively intended to drive in a manner that constituted a marked departure
from the norm and endanger lives, in order to establish the offence of
dangerous driving. Additional evidence capable of establishing that a
momentary lapse is part of a larger pattern of dangerous driving may indeed be
adduced. But as suggested in Hundal, this will generally be
objective evidence of the accused’s entire driving pattern. The accused’s
conduct and words may be part of this pattern. But since this is a negligence
offence, the concern is with objective mens rea. The ultimate issue is
not what was in the accused’s mind at the time of the aberration, but the
manner of his driving in all the circumstances.
[76]
In Hundal, the majority noted that the objective standard is
justified in part by the difficulty of establishing a driver’s particular state
of mind at a given time, due in part to the automatic and reflexive nature of
driving. Cory J. held that generally, it is unnecessary to inquire into the
accused’s subjective state of mind. Evidence relating to such matters as road
conditions and the condition and behaviour of the accused’s vehicle will
usually be sufficient to determine whether the accused’s manner of driving
constituted a marked departure.
[77]
On the test that I have suggested, the appropriate analysis in cases
such as Willock, where momentary lapse of attention is all the Crown can
prove, is the following. The starting point is that momentary lapse of
attention cannot satisfy the requirements of the offence of dangerous driving,
and more particularly the requirement of a marked departure from the standard
of care of a reasonably prudent driver required to establish the actus reus.
A momentary lapse, without more, is therefore insufficient to establish the
offence. However, additional elements in the proof may establish that the
momentary lapse is part of a larger driving pattern that, considered as a
whole, constitutes a marked departure from the standard of care of a reasonably
prudent driver. It is for the trier of fact to consider all of the evidence
objectively and determine if the actus reus of driving in a manner that
constitutes a marked departure from the norm is established. If this is
established, the mens rea will be inferred from the driving pattern,
absent excuses presented by the accused such as a sudden and unexpected illness
which raise a reasonable doubt as to criminal intent.
[78]
Additional inquiry into the accused’s actual state of mind is
unnecessary. If the only evidence is of momentary lapse of attention, the actus
reus is not established and the Crown’s case fails, making further inquiry
unnecessary. On the other hand, if the accused is driving in a manner that
constitutes a marked departure from the norm, the inference will be that he
lacked the requisite mental state of care of a reasonable person, absent an
excuse, such as a sudden and unexpected onset of illness.
[79]
The appellant in this case was charged with dangerous driving causing
death. There has been some debate in lower courts, and among academic
commentators, regarding the approach to actus reus and mens rea
in driving cases where the offence charged is criminal negligence, rather than
dangerous driving. In this case, the Court does not have to rule on the
elements of the offence for a driving offence charged as criminal negligence,
and these reasons should not be read as deciding that issue.
Application
to this Case
[80]
The only evidence adduced by the Crown in the case at bar was evidence
of a momentary lapse of attention that caused the accused’s vehicle to cross
the centre line of the highway. In all other respects, the accused’s driving
was, on the evidence, entirely normal.
[81]
It follows that all that has been established is momentary lapse of
attention. The marked departure required for the offence of dangerous
operation of a motor vehicle has not been made out. The Crown did not succeed
in proving that the accused’s manner of driving, viewed as a whole, constituted
a marked departure from the standard of care of a reasonably prudent driver.
It follows that it did not prove the actus reus of the offence, and its
case must fail.
Conclusion
[82]
I would allow the appeal and restore the acquittals.
The following are the reasons delivered by
Fish J. —
I
[83]
Justin Ronald Beatty, the appellant, was acquitted at trial on three
counts of operating a motor vehicle in a manner that is dangerous to the public
(or “dangerous driving”) and thereby causing the death of another person
([2005] B.C.J. No. 3071 (QL), 2005 BCSC 751). On an appeal by the Crown, the
British Columbia Court of Appeal set aside his acquittals and ordered a new
trial ((2006), 225 B.C.A.C. 154, 2006 BCCA 229). Like my colleagues, but for
somewhat different reasons, I would allow Mr. Beatty’s appeal and restore the
acquittals entered by the trial judge.
II
[84]
I agree with Justice Charron that the actus reus of dangerous
driving consists in the elements of that offence set out in s. 249(1) of the Criminal
Code, R.S.C. 1985, c. C-46 . Accordingly, in my view, anyone who commits
that actus reus with the requisite mens rea is guilty of
dangerous driving.
[85]
The mens rea, or fault element, signifies a blameworthy state of
mind. That fault element can be established in two ways: the first rare, the
second more common.
[86]
In rare cases, the prosecution will be able to establish that the
accused drove in a deliberately dangerous manner, within the meaning of s.
249(1)(a) of the Code. Where this can be shown, it will be
unnecessary to establish, in addition, that the nature or degree of the
appellant’s conduct represents a marked departure from the conduct of a
reasonable person in similar circumstances. The decision of the accused to
drive in a dangerous manner, like his awareness that he is doing so, amounts to
subjective mens rea and not the volitional element of the actus reus.
It follows, in my respectful view, that a “marked departure” from the norm is
not an invariable or essential characteristic of the actus reus of
dangerous driving.
[87]
It is well established, however, that the fault element of dangerous
driving can be established as well — and generally is — on an objective basis,
by inference and attribution. In that case, the blameworthiness of the
prohibited conduct does not lie in what the accused knew or intended but in the
justification for imputing to the accused a culpable mental state for
reasons of social policy. In this regard, I agree with my colleagues that
the requisite mens rea can be established by demonstrating that the accused
failed to meet the objective standard of a reasonable person in the
circumstances.
[88]
The fault element, however, is not the marked departure from the norm of
a reasonably prudent driver but the fact that a reasonably prudent driver in
the accused’s circumstances would have been aware of the risk of that conduct,
and if able to do so, would have acted to avert it. This requisite mental
element may only be inferred where the impugned conduct represents a marked
departure from the norm; it cannot be inferred from the mere fact that he or
she operated the motor vehicle in a dangerous manner.
[89]
In the result, I agree that we should avoid characterizing the conduct
that represents a marked departure from the norm as the mental element
or mens rea of the offence. It does not follow, in my respectful view,
that a marked departure from the norm must instead be characterized as the actus
reus of the offence. As I have already explained, proof of the actus
reus, coupled with subjective mens rea, will suffice for
conviction. Otherwise, conduct that is found to depart markedly from the norm
is nonetheless necessary for conviction because nothing less will support a
reasonable inference that the accused acted with the objective mens rea
that is an essential element of the offence.
III
[90]
The Chief Justice and Justice Charron, essentially for the same reasons,
have concluded, correctly in my view, that the impugned conduct of the accused
in this case did not amount to a marked departure from the norm. There may well
be circumstances in which inattention, even transitory, will suffice to
establish the fault element of dangerous driving. That was not the case here.
[91]
I would for this reason, like my colleagues, allow the appeal and
restore the acquittals entered by the trial judge.
Appeal allowed.
Solicitors for the appellant: Cates Carroll Watt, Kamloops.
Solicitor for the respondent: Attorney General of British
Columbia, Vancouver.