Earlier this week, lawyers from our law firm represented a young man on charges of dangerous operation of a motor vehicle causing death.
This was a very tragic case resulting in the death of young woman while walking with her dog on a street in Leslieville in Toronto. This was a very difficult case for everyone involved. Not surprisingly, there was considerable anger, controversy, and frustration over the not-guilty verdict for our client.
As with all offences where someone is found not-guilty, some members of the public are left with disappointment and the belief that someone should be “held accountable” for their actions.
While understandable as a matter of human emotion in times of tragic loss, under the law in Canada a person is only held criminally responsible when their actions were intended to cause harm, or, in the case of dangerous driving, where their actions were a “marked departure” of the standard of care for a driver in the circumstances when the incident happened.
As with all criminal offences, the standard of proof and requirement of fault is much higher than one would find in other contexts.
How is Dangerous Operation (Driving) of a Motor Vehicle in Canada defined under Canadian criminal law?
The offence of Dangerous Driving, is defined in section 249(1)(a) of the Criminal Code 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.
A closer inspection of this offence reveals that all the circumstances of the events are considered when determining if the conduct is dangerous – as opposed to merely careless.
The leading case from the Supreme Court of Canada on Dangerous Driving is R. v. Roy
At paragraph 28 of the decision, Cromwell J., writing for the majority, cites an earlier case, R. v. Beatty. In reviewing the actus reus and mens rea of the offence. He repeats the wording of s. 249(1)(a) offence to find the actus reus and outlines the mens reu as “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.” Cromwell J. later adds that a marked departure is a more serious attracts criminal punishment unlike a mere departure which would only justify civil liability.
The analysis of this is done on a case by case basis to determine how the driving was relative to the incident.
For example, a Court may find that driving at 100km/h and striking a pedestrian is dangerous no matter how attentive one was on the road. However, in another context, driving on the same road and conditions, if one was travelling at 55km/hr and looks away for a brief moment to see why their child is crying may not result in criminal liability.
Although every case involving death is inherently tragedy, the circumstances in which that takes place are different and must be analyzed on a case by case basis. There is no clear answer and Courts must follow the law in deciding whether the actions of the driver meet the definition under Canadian law.
How is Dangerous Driving Different from Careless Driving Under the Highway Traffic Act?
A far more common offence is that of Careless Driving. When people are inattentive even for a moment or do something without “due attention to the road” they can be found guilty of careless driving under s.130 of the Highway Traffic Act. The law defines careless driving and limits its penalties as:
“Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years.”
Changes coming under the Highway Traffic Act in Ontario for Careless Driving Causing Death or Bodily Harm?
In response to the frequency of these pedestrian deaths, there has been considerable legislative interest in changes in the law that would recognize the increased penalties and accountability when death or bodily harm results. In the past, our firm has advocated for such a middle ground in the law so that the high standard and blunt instrument of criminal law does not need to be employed in these cases.
The proposed Bill 213, currently referred to the Standing Committee on the Legislative Assembly, would increase the penalties for Careless Driving when it results in death or bodily harm. The proposed penalty would range from $2,000-$50,000, up to two years in jail, or both. This could possibly be a formidable compromise between the distant standards of mere and marked departure found in Dangerous Driving.