Careless Driving – Are Careless Driving – Are Beauchamp and Namink Beauchamp and Namink

still relevant?still relevant?

PAO Conference October 21, PAO Conference October 21, 20142014

Hans Saamen, Senior Hans Saamen, Senior Counsel, Prosecutions, York Counsel, Prosecutions, York

RegionRegion

Careless DrivingCareless Driving

Careless drivingCareless driving 130.    Every person is guilty of the offence of Every person is guilty of the offence of

driving carelessly who drives a vehicle or street driving carelessly who drives a vehicle or street car on a highway without due care and attention car on a highway without due care and attention or without reasonable consideration for other or without reasonable consideration for other persons using the highway and on conviction is persons using the highway and on conviction is liable to a fine of not less than $400 and not more liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition more than six months, or to both, and in addition his or her licence or permit may be suspended for his or her licence or permit may be suspended for a period of not more than two years. 2009, c. 5, a period of not more than two years. 2009, c. 5, s. 41.s. 41.

Careless Driving – evolution of the Careless Driving – evolution of the lawlaw

The nature of the offence of careless driving has The nature of the offence of careless driving has evolved since evolved since R. v. Beauchamp, R. v. Beauchamp, [1953] O.R. 422, (Ont. [1953] O.R. 422, (Ont. C.A.) C.A.)

BeauchampBeauchamp must be viewed in the context of must be viewed in the context of comments made by the Supreme Court of Canada and comments made by the Supreme Court of Canada and the Ontario Court of Appeal in:the Ontario Court of Appeal in: O’GradyO’Grady v. Sparling, v. Sparling, [1960] S.C.R. 804,[1960] S.C.R. 804, R. v. McIver, R. v. McIver, [1965] 2 O.R. 475, (Ont. C.A.) affd [1966] S.C.J. [1965] 2 O.R. 475, (Ont. C.A.) affd [1966] S.C.J.

No. 4, (S.C.C.), No. 4, (S.C.C.), R. v. Beatty, R. v. Beatty, [2008] 1 S.C.R. 49, (S.C.C.)[2008] 1 S.C.R. 49, (S.C.C.) R. v. Roy, R. v. Roy, [2012] S.C.J. No. 26, (S.C.C.). [2012] S.C.J. No. 26, (S.C.C.).

Cases decided before these decisions or without Cases decided before these decisions or without reference to these decisions must now be re-assessed reference to these decisions must now be re-assessed as to their applicability and whether they are still good as to their applicability and whether they are still good law.law.

BeauchampBeauchamp

R. v. BeauchampR. v. Beauchamp, [1953] O.R. 422-434 , [1953] O.R. 422-434 (Ont. C.A.)(Ont. C.A.)

Bus driver is pulling a bus out of a bay. He Bus driver is pulling a bus out of a bay. He checks the street before backing up and checks the street before backing up and sees it is clear. He gets in the bus. A sees it is clear. He gets in the bus. A vehicle parks on the road. He backs up vehicle parks on the road. He backs up very slowly, does not see the vehicle and very slowly, does not see the vehicle and barely hits it.barely hits it.

BeauchampBeauchamp

““To support a charge under s. 29(1) of The To support a charge under s. 29(1) of The Highway Traffic Act, the evidence must be Highway Traffic Act, the evidence must be such as to prove beyond reasonable doubt such as to prove beyond reasonable doubt that the accused drove in the manner that the accused drove in the manner prohibited by the subsection, namely, prohibited by the subsection, namely, without due care and attention or without without due care and attention or without reasonable consideration for others.  The reasonable consideration for others.  The standard of care and skill to be applied has standard of care and skill to be applied has been long established and is not that of been long established and is not that of perfection.”perfection.”

BeauchampBeauchamp

““It is, I think, correctly stated in Mazengarb, op cit., at pp. 176-7, It is, I think, correctly stated in Mazengarb, op cit., at pp. 176-7, as follows: as follows:

      "The law does not require of any driver that he should exhibit "The law does not require of any driver that he should exhibit 'perfect nerve and presence of mind, enabling him to do the best 'perfect nerve and presence of mind, enabling him to do the best thing possible.'  It does not expect men to be more than ordinary thing possible.'  It does not expect men to be more than ordinary men.  Drivers of vehicles cannot be required to regulate their men.  Drivers of vehicles cannot be required to regulate their driving as if in constant fear that other drivers who are under driving as if in constant fear that other drivers who are under observation, and apparently acting reasonably and properly, may observation, and apparently acting reasonably and properly, may possibly act at a critical moment in disregard of the safety of possibly act at a critical moment in disregard of the safety of themselves and other users of the road. themselves and other users of the road.

      "But the law does insist upon a reasonable amount of skill in the "But the law does insist upon a reasonable amount of skill in the handling of a vehicle which is a potential source of danger to other handling of a vehicle which is a potential source of danger to other users of the road. ... The question always is 'What would an users of the road. ... The question always is 'What would an ordinary prudent person in the position of the plaintiff have done ordinary prudent person in the position of the plaintiff have done in relation to the event complained of?'" (Pollock on Torts uses the in relation to the event complained of?'" (Pollock on Torts uses the term "average man".)”term "average man".)”

BeauchampBeauchamp

““The use of the term "due care", which means care The use of the term "due care", which means care owing in the circumstances, makes it quite clear owing in the circumstances, makes it quite clear that, while the legal standard of care remains the that, while the legal standard of care remains the same in the sense that it is what the average same in the sense that it is what the average careful man would have done in like circumstances, careful man would have done in like circumstances, the factual standard is a constantly shifting one, the factual standard is a constantly shifting one, depending on road, visibility, wheather conditions, depending on road, visibility, wheather conditions, traffic conditions that exist or may reasonably be traffic conditions that exist or may reasonably be expected, and any other conditions that ordinary expected, and any other conditions that ordinary prudent drivers would take into consideration. It is prudent drivers would take into consideration. It is a question of fact, depending on the circumstances a question of fact, depending on the circumstances in each case.”in each case.”

BeauchampBeauchamp

““There is a further important element that must also be There is a further important element that must also be considered, namely, that the conduct must be of such a considered, namely, that the conduct must be of such a nature that it can be considered a breach of duty to the nature that it can be considered a breach of duty to the public and deserving of punishment.  This further step must public and deserving of punishment.  This further step must be taken even if it is found that the conduct of the accused be taken even if it is found that the conduct of the accused falls below the standard set out in the preceding falls below the standard set out in the preceding paragraphs.  This principle may be somewhat difficult to paragraphs.  This principle may be somewhat difficult to apply, but I think it might be illustrated by the common apply, but I think it might be illustrated by the common example of a motorist attempting to park at the curb in a example of a motorist attempting to park at the curb in a space between two other parked vehicles. Frequently one space between two other parked vehicles. Frequently one or other of the parked vehicles is bumped in the or other of the parked vehicles is bumped in the process.  Damage seldom arises, because cars are process.  Damage seldom arises, because cars are equipped with bumpers, but if damage were caused it equipped with bumpers, but if damage were caused it might well give rise to a civil action for damages, but it might well give rise to a civil action for damages, but it could hardly be said to be such a lack of care or attention could hardly be said to be such a lack of care or attention as would be considered to be deserving of punishment as a as would be considered to be deserving of punishment as a crime or quasi-crime.”crime or quasi-crime.”

NaminkNamink

R. v. NaminkR. v. Namink, [1979] O.J. No. 317, (Ont. Cty. Ct.), [1979] O.J. No. 317, (Ont. Cty. Ct.) The defendant was driving behind another vehicle. The defendant was driving behind another vehicle.

He attempted to pass the vehicle. It was safe to do He attempted to pass the vehicle. It was safe to do so since vehicles travelling in the opposite so since vehicles travelling in the opposite direction were far away, and the place he was direction were far away, and the place he was passing was an area where passing was permitted.passing was an area where passing was permitted.

The vehicle suddenly lost control, spun and hit the The vehicle suddenly lost control, spun and hit the vehicle the defendant was trying to pass. The vehicle the defendant was trying to pass. The defendant speculated that it might have been an defendant speculated that it might have been an icy patch in the road, but could not be certain. It icy patch in the road, but could not be certain. It was unexpected, unanticipated and occurred very was unexpected, unanticipated and occurred very quickly.quickly.

NaminkNamink

““¶¶ 10      It is trite to say that this is a quasi- 10      It is trite to say that this is a quasi-criminal charge, and that to make out a criminal charge, and that to make out a charge under this section the evidence charge under this section the evidence must bespeak conduct deserving of must bespeak conduct deserving of punishment in the way of a conviction under punishment in the way of a conviction under this section of our Highway Traffic this section of our Highway Traffic Act.  Mere momentary inattention, or a Act.  Mere momentary inattention, or a simple kind of error of judgment, does not simple kind of error of judgment, does not bespeak the kind of conduct over which the bespeak the kind of conduct over which the net of this section is cast.”net of this section is cast.”

NaminkNamink

““¶¶ 11      Here I see no evidence of the kind of  11      Here I see no evidence of the kind of conduct aimed at in this section.  At best, and I conduct aimed at in this section.  At best, and I put it that way, "at best" there was momentary put it that way, "at best" there was momentary inattention here, and mere momentary inattention inattention here, and mere momentary inattention is not enough to justify a conviction under this is not enough to justify a conviction under this section.  There is no evidence of speed here, no section.  There is no evidence of speed here, no evidence of risk taking in the passing movement, evidence of risk taking in the passing movement, and whether the effective cause of this accident and whether the effective cause of this accident was momentary inattention or sudden slippage on was momentary inattention or sudden slippage on an icy patch, which could not be anticipated, the an icy patch, which could not be anticipated, the criteria for conviction under this section cannot, in criteria for conviction under this section cannot, in law, be made out.  In other words, the evidence law, be made out.  In other words, the evidence here is so fragile that a conviction on that here is so fragile that a conviction on that evidence cannot be supported in law.”evidence cannot be supported in law.”

O’Grady v. SparlingO’Grady v. Sparling

O’Grady v. Sparling, O’Grady v. Sparling, [1960], S.C.R. 804, (S.C.C.)[1960], S.C.R. 804, (S.C.C.) The Supreme Court dealt with the validity of s. 55 of The Supreme Court dealt with the validity of s. 55 of

the Manitoba Highway Traffic Act – Careless Drivingthe Manitoba Highway Traffic Act – Careless Driving Section 55(1) of the Highway Traffic Act, R.S.M. Section 55(1) of the Highway Traffic Act, R.S.M.

1954, c. 112, reads: 1954, c. 112, reads: "Every person who drives a motor vehicle or a "Every person who drives a motor vehicle or a

trolley bus on a highway without due care and trolley bus on a highway without due care and attention or without reasonable consideration for attention or without reasonable consideration for other persons using the highway is guilty of another persons using the highway is guilty of an offence." offence."

O’Grady v SparlingO’Grady v Sparling

The relevant sections of the Criminal Code are ss. The relevant sections of the Criminal Code are ss. 191(1) and 221(1), as follows: 191(1) and 221(1), as follows:

"191(1) Every one is criminally negligent who "191(1) Every one is criminally negligent who "(a)in doing anything, or"(b)in omitting to do "(a)in doing anything, or"(b)in omitting to do

anything that it is his duty to do,shows wanton or anything that it is his duty to do,shows wanton or reckless disregard for the lives or safety of other reckless disregard for the lives or safety of other persons." persons."

"221(1) Every one who is criminally negligent in the "221(1) Every one who is criminally negligent in the operation of a motor vehicle is guilty of operation of a motor vehicle is guilty of

"(a) an indictable offence and is liable to "(a) an indictable offence and is liable to imprisonment for five years, or imprisonment for five years, or

"(b) an offence punishable on summary conviction." "(b) an offence punishable on summary conviction."

O’Grady v. SparlingO’Grady v. Sparling

Mr. Justice Judson stated the difference between Mr. Justice Judson stated the difference between the criminal and provincial offences as follows:the criminal and provincial offences as follows:

““ What the Parliament of Canada has done is What the Parliament of Canada has done is to define "advertent negligence" as a crime under to define "advertent negligence" as a crime under ss. 191(1) and 221(1). It has not touched ss. 191(1) and 221(1). It has not touched "inadvertent negligence". "inadvertent negligence". Inadvertent Inadvertent negligence is dealt with under the provincial negligence is dealt with under the provincial legislation in relation to the regulation of legislation in relation to the regulation of highway traffic. That is its true character highway traffic. That is its true character and until Parliament chooses to define it in and until Parliament chooses to define it in the Criminal Code as "crime", it is not crime.the Criminal Code as "crime", it is not crime.

JacobsenJacobsen

R v. JacobsenR v. Jacobsen, [1965] 1 C.C.C. 99, , [1965] 1 C.C.C. 99, (B.C.C.A.)(B.C.C.A.)

The BCCA had to consider whether The BCCA had to consider whether the additional element of “conduct the additional element of “conduct deserving of punishment, as set out deserving of punishment, as set out in in BeauchampBeauchamp, was to be applied in , was to be applied in considering whether to convict a considering whether to convict a defendant of careless driving.defendant of careless driving.

JacobsenJacobsen

““The short question to be decided by this Court is as to The short question to be decided by this Court is as to whether or not the learned County Court Judge whether or not the learned County Court Judge misdirected himself on the law in holding that in order misdirected himself on the law in holding that in order to convict the respondent it was necessary that in to convict the respondent it was necessary that in addition to proving addition to proving "... beyond reasonable doubt "... beyond reasonable doubt that the accused, in the right of existing circumstances that the accused, in the right of existing circumstances of which he was aware or of which a driver exercising of which he was aware or of which a driver exercising ordinary care should have been aware, failed to use the ordinary care should have been aware, failed to use the care and attention or to give to other persons using the care and attention or to give to other persons using the highway the consideration that a driver of ordinary care highway the consideration that a driver of ordinary care would have used or given in the circumstances." [see R. would have used or given in the circumstances." [see R. v. Beauchamp, infra] the prosecution must also prove v. Beauchamp, infra] the prosecution must also prove that the conduct was of such a nature that it was "a that the conduct was of such a nature that it was "a case of a breach of duty to the public and conduct case of a breach of duty to the public and conduct deserving of punishment in a criminal way".”deserving of punishment in a criminal way".”

JacobsenJacobsen

““With respect, it is my opinion that the learned With respect, it is my opinion that the learned County Court Judge erred in failing to distinguish County Court Judge erred in failing to distinguish between the statutory offence created by s. 138 between the statutory offence created by s. 138 in a statute directed to the regulation of traffic in a statute directed to the regulation of traffic which contains an absolute prohibition, and which contains an absolute prohibition, and criminal offences in respect of which additional criminal offences in respect of which additional matters, viz., the nature and extent of the matters, viz., the nature and extent of the conduct, are to be considered as "constituting a conduct, are to be considered as "constituting a breach of duty to the public and deserving of breach of duty to the public and deserving of punishment" and requiring additional proof by the punishment" and requiring additional proof by the prosecution. The learned County Court Judge prosecution. The learned County Court Judge misdirected himself on the law accordingly.”misdirected himself on the law accordingly.”

JacobsenJacobsen

““I respectfully regret that for the reasons I respectfully regret that for the reasons mentioned I am unable to follow the judgment of mentioned I am unable to follow the judgment of the Ontario Court of Appeal in R. v. Beauchamp, the Ontario Court of Appeal in R. v. Beauchamp, supra. I have had the advantage which MacKay, supra. I have had the advantage which MacKay, J.A., did not have in R. v. Beauchamp, of having J.A., did not have in R. v. Beauchamp, of having before me the judgment of the Supreme Court of before me the judgment of the Supreme Court of Canada in O'Grady v. Sparling which confirms my Canada in O'Grady v. Sparling which confirms my interpretation of the effect of the judgment of the interpretation of the effect of the judgment of the Court in McLean v. Pettigrew. It may be noted that Court in McLean v. Pettigrew. It may be noted that in R. v. Beauchamp, McKay, J.A., did not deal in R. v. Beauchamp, McKay, J.A., did not deal directly with the judgments in Andrews v. D.P.P. directly with the judgments in Andrews v. D.P.P. and McLean v. Pettigrew, but considered them as and McLean v. Pettigrew, but considered them as they were interpreted by Sissons, C.J.D.C., in R. v. they were interpreted by Sissons, C.J.D.C., in R. v. Parsons (1952), 7 W.W.R. (N.S.) 359, 15 C.R. 409.”Parsons (1952), 7 W.W.R. (N.S.) 359, 15 C.R. 409.”

JacobsenJacobsen

““It was argued by counsel for the respondent that even if in what It was argued by counsel for the respondent that even if in what the learned County Court Judge said about additional steps which the learned County Court Judge said about additional steps which must be taken and the criminal law he had misdirected himself, must be taken and the criminal law he had misdirected himself, there was a finding of fact in favour of the accused and the there was a finding of fact in favour of the accused and the decision of the learned County Court Judge should not be decision of the learned County Court Judge should not be disturbed. However, accepting the facts as proved, the guilt or disturbed. However, accepting the facts as proved, the guilt or innocence of the accused was to be determined on inferences to innocence of the accused was to be determined on inferences to be drawn from those facts. In drawing those inferences and in be drawn from those facts. In drawing those inferences and in quashing the conviction, the learned County Court Judge required quashing the conviction, the learned County Court Judge required a standard of proof which the law does not warrant. See Sayward a standard of proof which the law does not warrant. See Sayward v. Dunsmuir and Harrison (1905), 11 B.C.R. 375 at p. 392, and v. Dunsmuir and Harrison (1905), 11 B.C.R. 375 at p. 392, and Johnson and Stockdill v. Grossman (No. 2), [1944] 1 D.L.R. 679 at Johnson and Stockdill v. Grossman (No. 2), [1944] 1 D.L.R. 679 at p. 680, [1944] 1 W.W.R. 23. p. 680, [1944] 1 W.W.R. 23. In finding that the appellant was In finding that the appellant was not driving with due care and attention the Magistrate not driving with due care and attention the Magistrate complied with all the requirements to support the complied with all the requirements to support the conviction. With respect, he was not required to go further conviction. With respect, he was not required to go further as indicated to be necessary by the learned County Court as indicated to be necessary by the learned County Court JudgeJudge.” .”

McIverMcIver

R. v. McIver, R. v. McIver, [1965] 2 O.R. 475, O.J. No. 998, (Ont. C.A.)[1965] 2 O.R. 475, O.J. No. 998, (Ont. C.A.) Defendant hit a parked car that was off the paved portion Defendant hit a parked car that was off the paved portion

of the road – on the shoulderof the road – on the shoulder No explanation was given as to how the accident occurredNo explanation was given as to how the accident occurred The trial judge applied the rule in Hodge’s case – The trial judge applied the rule in Hodge’s case –

circumstantial evidence – the circumstances were circumstantial evidence – the circumstances were consistent with a person driving without due care and consistent with a person driving without due care and attention and inconsistent with any other rational attention and inconsistent with any other rational conclusionconclusion

The conviction was upheld by the Ontario High Court and The conviction was upheld by the Ontario High Court and the Ont. C.A.the Ont. C.A.

McIverMcIver Porter C.J.O stated “In view of the Porter C.J.O stated “In view of the

judgment of the Supreme Court of judgment of the Supreme Court of Canada in O'Grady v. Sparling, 128 Canada in O'Grady v. Sparling, 128 C.C.C. 1, 33 C.R. 318, [1960] S.C.R. 804, C.C.C. 1, 33 C.R. 318, [1960] S.C.R. 804, and that recently of this Court in R. v. and that recently of this Court in R. v. Mann, [1965] 2 C.C.C. 338, 45 C.R. 296, Mann, [1965] 2 C.C.C. 338, 45 C.R. 296, [1965] 1 O.R. 483, regulatory provincial [1965] 1 O.R. 483, regulatory provincial offences are generally regarded as offences are generally regarded as being offences of strict liability.”being offences of strict liability.”

McIverMcIver

““And see the chapter [VI] on "Strict Responsibility" And see the chapter [VI] on "Strict Responsibility" in Morris and Howard, Studies in Criminal Law in Morris and Howard, Studies in Criminal Law (1964). In these cases it is necessary for the Crown (1964). In these cases it is necessary for the Crown to prove only the actus reus, and not the mens to prove only the actus reus, and not the mens rea.”rea.”

““Having reached these conclusions and Having reached these conclusions and reconsidered the judgment in R. v. Bain, supra, I do reconsidered the judgment in R. v. Bain, supra, I do not think that that case was rightly decided, and it not think that that case was rightly decided, and it therefore should not be followed. I would overrule therefore should not be followed. I would overrule also, R. v. Roseblade, [1943] 80 C.C.C. 128, [1943] also, R. v. Roseblade, [1943] 80 C.C.C. 128, [1943] O.W.N. 355, [1943] 3 D.L.R. 733, and R. v. O.W.N. 355, [1943] 3 D.L.R. 733, and R. v. Patterson, [1964] 2 C.C.C. 176, [1964] 1 O.R. 628.”Patterson, [1964] 2 C.C.C. 176, [1964] 1 O.R. 628.”

McIverMcIver MACKAY, J.A.MACKAY, J.A.:— “I am in agreement with the :— “I am in agreement with the

reasons and conclusion of my Lord the Chief reasons and conclusion of my Lord the Chief Justice. I desire, however, to express my views Justice. I desire, however, to express my views in regard to the application of the rule of strict in regard to the application of the rule of strict liability as it applies to this case.”liability as it applies to this case.”

““Section 60 of the Highway Traffic Act, R.S.O. Section 60 of the Highway Traffic Act, R.S.O. 1960, c. 172, prohibits a defined type of 1960, c. 172, prohibits a defined type of conduct; it is silent as to intent or mens rea. In conduct; it is silent as to intent or mens rea. In such case, the Crown need only prove that the such case, the Crown need only prove that the accused committed the prohibited act and the accused committed the prohibited act and the accused will be convicted unless he can show accused will be convicted unless he can show that the forbidden act was done without that the forbidden act was done without negligence or fault on his part.” negligence or fault on his part.” [page189][page189]

McIverMcIver ““If there were an explanation of this accident If there were an explanation of this accident

having occurred without fault on the part of the having occurred without fault on the part of the accused, it was wholly within his knowledge …”accused, it was wholly within his knowledge …”

““On a charge laid under s. 60 of the Highway On a charge laid under s. 60 of the Highway Traffic Act, it is open to the accused as a defence, Traffic Act, it is open to the accused as a defence, to show an absence of negligence on his part. For to show an absence of negligence on his part. For example, that his conduct was caused by the example, that his conduct was caused by the negligence of some other person, or by showing negligence of some other person, or by showing that the cause was a mechanical failure, or other that the cause was a mechanical failure, or other circumstance, that he could not reasonably have circumstance, that he could not reasonably have foreseen.”foreseen.”

McIverMcIver

““In the present case it was open to In the present case it was open to the accused to show, if he could, that the accused to show, if he could, that the collision of his car with the car the collision of his car with the car parked on the shoulder of the road, parked on the shoulder of the road, occurred without fault or negligence occurred without fault or negligence on his part. He having failed to do so on his part. He having failed to do so was properly convicted.”was properly convicted.”

McIverMcIver McIver recognizes that Careless Driving is a McIver recognizes that Careless Driving is a

strict liability offence. The onus shifts to the strict liability offence. The onus shifts to the accused to explain the accident.accused to explain the accident.

An accident occurring in a situation where a An accident occurring in a situation where a reasonably prudent driver should have seen reasonably prudent driver should have seen what was ahead of them, and with no what was ahead of them, and with no explanation as to why the accident explanation as to why the accident occurred, will lead to the only rational occurred, will lead to the only rational conclusion that the defendant drove without conclusion that the defendant drove without due care and attention. due care and attention.

WilsonWilson

R. v. Wilson R. v. Wilson (1970), 1 C.C.C. (2d) 466, (Ont. C.A.)(1970), 1 C.C.C. (2d) 466, (Ont. C.A.) The court upheld a conviction for careless driving. The court upheld a conviction for careless driving.

The significance of the case is that the court The significance of the case is that the court disapproved of a comment made by the trial disapproved of a comment made by the trial judge. The court stated:judge. The court stated:““Before leaving the matter, however, I should like Before leaving the matter, however, I should like to mention that in the course of his reasons for to mention that in the course of his reasons for judgment the learned trial Judge had this to say: judgment the learned trial Judge had this to say:

... I feel compelled to come to the ... I feel compelled to come to the conclusion in law that inadvertent negligence, conclusion in law that inadvertent negligence, however slight it may be, is sufficient for a however slight it may be, is sufficient for a conviction under this section.”conviction under this section.”

WilsonWilson

““We do not agree with that proposition of law. We do not agree with that proposition of law. Each case must of necessity turn on its own facts. Each case must of necessity turn on its own facts. Mere inadvertent negligence, whether of the Mere inadvertent negligence, whether of the slightest type or not, will not necessarily sustain a slightest type or not, will not necessarily sustain a conviction for careless driving. In each instance, conviction for careless driving. In each instance, the Crown must prove beyond a reasonable doubt the Crown must prove beyond a reasonable doubt that the accused either drove his vehicle on a that the accused either drove his vehicle on a highway without due care and attention, or that highway without due care and attention, or that he operated it without reasonable consideration he operated it without reasonable consideration for other persons using the highway. for other persons using the highway. One of One of these two ingredients must be proven to these two ingredients must be proven to support a conviction under this section.”support a conviction under this section.”

WilsonWilson The importance of the Wilson decision is that the The importance of the Wilson decision is that the

court confirms that all you need to assess is court confirms that all you need to assess is whether the defendant drove without due care whether the defendant drove without due care and attention, or without reasonable and attention, or without reasonable consideration of other persons using the highway. consideration of other persons using the highway.

There is no mention made of the requirement There is no mention made of the requirement that the conduct is deserving of punishment.that the conduct is deserving of punishment.

However, the court’s comment about inadvertent However, the court’s comment about inadvertent negligence is inconsistent with negligence is inconsistent with O’GradyO’Grady where the where the SCC stated careless driving involves inadvertent SCC stated careless driving involves inadvertent negligence.negligence.

Sault Ste. MarieSault Ste. Marie R. v. Sault Ste. Marie, [1978] 2 S.C.R. R. v. Sault Ste. Marie, [1978] 2 S.C.R.

1299, (S.C.C.)1299, (S.C.C.) Leading case on the three categories Leading case on the three categories

of offences: Absolute liability, strict of offences: Absolute liability, strict liability and liability and mens rea mens rea offences.offences.

The court set out the elements of The court set out the elements of proof required for each of these proof required for each of these categories of offence.categories of offence.

Sault Ste. MarieSault Ste. Marie

““I conclude, for the reasons which I have I conclude, for the reasons which I have sought to express, that there are compelling sought to express, that there are compelling grounds for the recognition of three grounds for the recognition of three categories of offences rather than the categories of offences rather than the traditional two: traditional two:

1.Offences in which mens rea, 1.Offences in which mens rea, consisting of some positive state of mind consisting of some positive state of mind such as intent, knowledge, or recklessness, such as intent, knowledge, or recklessness, must be proved by the prosecution either as must be proved by the prosecution either as an inference from the nature of the act an inference from the nature of the act committed, or by additional evidence.committed, or by additional evidence.

Sault Ste. MarieSault Ste. Marie

2. Offences in which there is no necessity for the prosecution 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of took all reasonable care. This involves consideration of what a reasonable man would have done in the what a reasonable man would have done in the circumstances. The defence will be available if the accused circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.Mr. Justice Estey so referred to them in Hickey's case.

3. Offences of absolute liability where it is not open to the 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free accused to exculpate himself by showing that he was free of fault.”of fault.”

Sault Ste. MarieSault Ste. Marie

““The conflict in the above authorities, however, The conflict in the above authorities, however, shows that in themselves the words "cause" and shows that in themselves the words "cause" and "permit", fit much better into an offence of strict "permit", fit much better into an offence of strict liability than either full mens rea or absolute liability than either full mens rea or absolute liability. Since s. 32(1) creates a public welfare liability. Since s. 32(1) creates a public welfare offence, without a clear indication that liability is offence, without a clear indication that liability is absolute, and without any words such as absolute, and without any words such as "knowingly" or "wilfully" expressly to import mens "knowingly" or "wilfully" expressly to import mens rea, application of the criteria which I have outlined rea, application of the criteria which I have outlined above undoubtedly places the offence in the above undoubtedly places the offence in the category of strict liability. category of strict liability. Proof of the prohibited act prima facie Proof of the prohibited act prima facie imports the offenceimports the offence, but the accused may avoid , but the accused may avoid liability by proving that he took reasonable care.”liability by proving that he took reasonable care.”

HundalHundal

R. v. Hundal (1993),79 C.C.C. (3d) 97, (S.C.C.)R. v. Hundal (1993),79 C.C.C. (3d) 97, (S.C.C.) S.C.C. considered the criteria to establish S.C.C. considered the criteria to establish

dangerous drivingdangerous driving The court held that the The court held that the mens reamens rea for dangerous for dangerous

driving is assessed on an objective basis, not a driving is assessed on an objective basis, not a subjective basis.subjective basis.

The importance of this is that driving offences The importance of this is that driving offences are assessed on an objective basis – one looks are assessed on an objective basis – one looks at the driving conduct, not what was in the at the driving conduct, not what was in the drivers minddrivers mind

HundalHundal Justice Cory, writing for the majority, stated:Justice Cory, writing for the majority, stated:

““Depending on the provisions of the Depending on the provisions of the particular section and the context in which it particular section and the context in which it appears, the constitutional requirement of appears, the constitutional requirement of mens rea may be satisfied in different ways. mens rea may be satisfied in different ways. The offence can require proof of a positive The offence can require proof of a positive state of mind such as intent, recklessness or state of mind such as intent, recklessness or wilful blindness. Alternatively, the mens rea wilful blindness. Alternatively, the mens rea or element of fault can be satisfied by proof or element of fault can be satisfied by proof of negligence whereby the conduct of the of negligence whereby the conduct of the accused is measured on the basis of an accused is measured on the basis of an objective standard without establishing the objective standard without establishing the subjective mental state of the particular subjective mental state of the particular accused.” accused.”

HundalHundal ““On the other hand, the test for negligence is an On the other hand, the test for negligence is an

objective one requiring a marked departure objective one requiring a marked departure from the standard of care of a reasonable from the standard of care of a reasonable person. There is no need to establish the person. There is no need to establish the intention of the particular accused. The question intention of the particular accused. The question to be answered under the objective test to be answered under the objective test concerns what the accused "should" have concerns what the accused "should" have known. The potential harshness of the objective known. The potential harshness of the objective standard may be lessened by the consideration standard may be lessened by the consideration of certain personal factors as well as the of certain personal factors as well as the consideration of a defence of mistake of fact.”consideration of a defence of mistake of fact.”

HundalHundal Justice McLachlin (in separate reasons) also described Justice McLachlin (in separate reasons) also described

situations which would not constitute an situations which would not constitute an actus reusactus reus ““Nor does Cory J.'s example of "a totally unexpected Nor does Cory J.'s example of "a totally unexpected heart attack, epileptic seizure or detached retina" (at heart attack, epileptic seizure or detached retina" (at p. 15) [ante, p. 107] which renders an accused unable p. 15) [ante, p. 107] which renders an accused unable to control his or her motor vehicle, require the to control his or her motor vehicle, require the introduction of an element of subjectivity. The better introduction of an element of subjectivity. The better analysis, in my view, is that the onset of a "disease or analysis, in my view, is that the onset of a "disease or disability" makes the act of losing control of the motor disability" makes the act of losing control of the motor vehicle involuntary, with the result that there is no vehicle involuntary, with the result that there is no actus reus. Thus, we do not reach the question of what actus reus. Thus, we do not reach the question of what a reasonable person would have been thinking or a reasonable person would have been thinking or adverting to as the car goes off the road, much less adverting to as the car goes off the road, much less what the accused was in fact thinking or not thinking.what the accused was in fact thinking or not thinking.””

PamenterPamenter

R. v. Pamenter, R. v. Pamenter, [2001] O.J. No. 1399, (Ont. C.A.)[2001] O.J. No. 1399, (Ont. C.A.) The defendant drove through an intersection without The defendant drove through an intersection without

stopping at the stop sign. He struck another vehicle stopping at the stop sign. He struck another vehicle and killed three of the four occupants.and killed three of the four occupants.

The trial judge convicted the defendant of careless The trial judge convicted the defendant of careless driving. driving.

The appeal court reversed the conviction on the The appeal court reversed the conviction on the ground that expert evidence provided another ground that expert evidence provided another rational explanation for missing the stop sign other rational explanation for missing the stop sign other than an extended period of inattention.than an extended period of inattention.

The crown appealed with leave to the Ont. C.A.The crown appealed with leave to the Ont. C.A.

PamenterPamenter

The Ont. C. A. held that the evidence The Ont. C. A. held that the evidence at trial amply supported the trial at trial amply supported the trial justice’s verdict. The sign was clearly justice’s verdict. The sign was clearly visible. It was reasonable to infer that visible. It was reasonable to infer that the sign was missed because the the sign was missed because the defendant was not exercising due defendant was not exercising due care and attention. care and attention.

The conviction was restored.The conviction was restored.

KinchKinch

R. v. Kinch, R. v. Kinch, [2004] O.J. No. 486, (Ont. Sup. Ct.)[2004] O.J. No. 486, (Ont. Sup. Ct.) Defendant was operating a loaded dump Defendant was operating a loaded dump

truck. A tractor trailer was 200 feet in front of truck. A tractor trailer was 200 feet in front of the defendant. The driver of the tractor trailer the defendant. The driver of the tractor trailer slowed down and swung out to the left lane in slowed down and swung out to the left lane in order to make a right turn. The driver did not order to make a right turn. The driver did not signal the intention to turn right. The dump signal the intention to turn right. The dump truck driver sped up. As the tractor trailer truck driver sped up. As the tractor trailer turned right, the defendant hit the tractor turned right, the defendant hit the tractor trailer and killed the driver.trailer and killed the driver.

The trial judge acquitted the defendant. The trial judge acquitted the defendant. The crown appealed the acquittalThe crown appealed the acquittal

KinchKinch

Justice Durno summarized the law regarding careless driving:Justice Durno summarized the law regarding careless driving: ¶¶ 49      A charge of careless driving may be proven by  49      A charge of careless driving may be proven by

evidence the accused either drove the vehicle on a highway evidence the accused either drove the vehicle on a highway without due care and attention, or operated it without without due care and attention, or operated it without reasonable consideration for other persons using the reasonable consideration for other persons using the highway. One of the two ingredients must be proven to highway. One of the two ingredients must be proven to support a conviction. Mere inadvertent negligence, whether support a conviction. Mere inadvertent negligence, whether of the slightest type or not, will not necessarily sustain a of the slightest type or not, will not necessarily sustain a conviction: R. v. Wilson (1970), 1 C.C.C. (2d) 466 (Ont. C.A.). conviction: R. v. Wilson (1970), 1 C.C.C. (2d) 466 (Ont. C.A.).

¶¶ 50  50 The test for careless driving has remained constant The test for careless driving has remained constant since the Court of Appeal decision in Beauchamp, supra. The since the Court of Appeal decision in Beauchamp, supra. The main criteria are the starting point in determining whether main criteria are the starting point in determining whether the Crown has established the trial judge erred in law: the Crown has established the trial judge erred in law:

*The evidence must be such as to prove beyond a reasonable *The evidence must be such as to prove beyond a reasonable doubt that the accused drove without due care and attention doubt that the accused drove without due care and attention or without reasonable consideration for others.or without reasonable consideration for others.

KinchKinch

*The standard of care and skill is not one of perfection. Rather, it *The standard of care and skill is not one of perfection. Rather, it is a reasonable degree of skill, and what an ordinary person is a reasonable degree of skill, and what an ordinary person would dowould do

*The use of the term "due" means care owing in the *The use of the term "due" means care owing in the circumstances. While the legal standard of care remains the circumstances. While the legal standard of care remains the same - what the average careful man would have done in the same - what the average careful man would have done in the circumstances, the factual standard is constantly shifting, circumstances, the factual standard is constantly shifting, depending on road, visibility, weather conditions, traffic depending on road, visibility, weather conditions, traffic conditions and any other condition that ordinary prudent drivers conditions and any other condition that ordinary prudent drivers would take into consideration.would take into consideration.

*The law does not require of any driver that he should exhibit *The law does not require of any driver that he should exhibit perfect nerve and presence of mind, enabling him to do the best perfect nerve and presence of mind, enabling him to do the best thing possible. It does not expect him to be more than ordinary thing possible. It does not expect him to be more than ordinary men. Drivers of vehicles cannot be required to regulate their men. Drivers of vehicles cannot be required to regulate their driving as if in constant fear that other drivers, who are under driving as if in constant fear that other drivers, who are under observation, and apparently acting reasonably and properly, may observation, and apparently acting reasonably and properly, may possibly act at a critical moment in disregard of the safety of possibly act at a critical moment in disregard of the safety of themselves and other users of the roadthemselves and other users of the road

KinchKinch

*The standard was objective, impersonal and universal, in no *The standard was objective, impersonal and universal, in no way related to the degree of proficiency or experience of a way related to the degree of proficiency or experience of a particular driver.particular driver.

*There was a further important element - that the *There was a further important element - that the conduct must be of such a nature that it could be conduct must be of such a nature that it could be considered a breach of duty to the public, and considered a breach of duty to the public, and deserving of punishment. This further step must be deserving of punishment. This further step must be taken even if the accused's conduct fell below the taken even if the accused's conduct fell below the standard.standard.

*The test where an accident has occurred, is not whether the *The test where an accident has occurred, is not whether the accident would not have happened if the accused had used accident would not have happened if the accused had used greater skill or care, but whether it was proved beyond a greater skill or care, but whether it was proved beyond a reasonable doubt that the accused, in the light of existing reasonable doubt that the accused, in the light of existing circumstances of which he knew or should have known, failed circumstances of which he knew or should have known, failed to use the care and attention or to give to other users of the to use the care and attention or to give to other users of the highway the consideration that a driver of ordinary care highway the consideration that a driver of ordinary care would have used, or given in the circumstances.”would have used, or given in the circumstances.”

KinchKinch ¶¶ 51      In cases involving accidents, the gravamen  51      In cases involving accidents, the gravamen

of the offence is whether the prosecution established of the offence is whether the prosecution established the accused was driving carelessly, and not the the accused was driving carelessly, and not the consequences of the driving: R. v. Pyszko [1998] O.J. consequences of the driving: R. v. Pyszko [1998] O.J. No. 1218 (Ont. Ct. J.). No. 1218 (Ont. Ct. J.).

¶¶ 52      Where an accident has occurred, the fact  52      Where an accident has occurred, the fact that serious injury or death has resulted is not, that serious injury or death has resulted is not, except in unusual cases, relevant to an assessment except in unusual cases, relevant to an assessment of whether there has been a departure from the of whether there has been a departure from the standard of care which would justify a finding of standard of care which would justify a finding of careless driving: R. v. Globocki (1991), 26 M.V.R. (2d) careless driving: R. v. Globocki (1991), 26 M.V.R. (2d) 179 (Ont. Ct. J.-Prov. Div.). The Crown had to show a 179 (Ont. Ct. J.-Prov. Div.). The Crown had to show a sufficient departure from the standard of a prudent sufficient departure from the standard of a prudent and reasonable driver to make the driving "deserving and reasonable driver to make the driving "deserving of punishment." In acquitting the accused who had of punishment." In acquitting the accused who had struck a pedestrian in Globocki, the trial judge noted: struck a pedestrian in Globocki, the trial judge noted:

KinchKinch

““¶¶ 62      The key determination is  62      The key determination is whether Her Honour acquitted because whether Her Honour acquitted because she had a reasonable doubt that the she had a reasonable doubt that the accident would inevitably have accident would inevitably have happened regardless of the happened regardless of the Respondent's driving, or whether she Respondent's driving, or whether she had a reasonable doubt he drove had a reasonable doubt he drove carelessly. The above authorities make it carelessly. The above authorities make it clear that if the finding was based on the clear that if the finding was based on the former, her verdict was wrong in law. If it former, her verdict was wrong in law. If it was the latter, it is unassailable.”was the latter, it is unassailable.”

KinchKinch

The problem with Kinch is that the The problem with Kinch is that the court did not consider court did not consider O’Grady v. O’Grady v. SparlingSparling, which, according to the , which, according to the BCCA in BCCA in JacobsenJacobsen, seems to overrule , seems to overrule that part of Beauchamp that deals that part of Beauchamp that deals with “conduct deserving of with “conduct deserving of punishment”.punishment”.

BeattyBeatty

R. v. Beatty, [2008] 1 S.C.R. 49 (S.C.C.)R. v. Beatty, [2008] 1 S.C.R. 49 (S.C.C.) Court considered the elements Court considered the elements

required to prove dangerous driving.required to prove dangerous driving. The court commented on what is The court commented on what is

required to prove the required to prove the actus reus actus reus of the of the offence.offence.

You look at the words used in the You look at the words used in the statute and apply them objectivelystatute and apply them objectively

BeattyBeatty

3.4.1 3.4.1 Determining the Determining the Actus ReusActus Reus 45 45 I deal firstly with the I deal firstly with the actus reusactus reus. The offence is defined . The offence is defined

by the words of the legislative provision, not by the common by the words of the legislative provision, not by the common law standard for civil negligence. In order to determine the law standard for civil negligence. In order to determine the actus reusactus reus, the conduct must therefore be measured as , the conduct must therefore be measured as against the wording of s. 249. Although the offence is against the wording of s. 249. Although the offence is negligence-based, this is an important distinction. As we have negligence-based, this is an important distinction. As we have seen, conduct that constitutes dangerous operation of a motor seen, conduct that constitutes dangerous operation of a motor vehicle as defined under s. 249 will necessarily fall below the vehicle as defined under s. 249 will necessarily fall below the standard expected of a reasonably prudent driver. The standard expected of a reasonably prudent driver. The converse however is not necessarily true - not all negligent converse however is not necessarily true - not all negligent driving will constitute dangerous operation of a motor vehicle. driving will constitute dangerous operation of a motor vehicle. If the court is satisfied beyond a reasonable doubt that the If the court is satisfied beyond a reasonable doubt that the manner of driving was dangerous to the public within the manner of driving was dangerous to the public within the meaning of s. 249, the meaning of s. 249, the actus reusactus reus of the offence has been of the offence has been made out. Nothing is gained by adding to the words of s. 249 made out. Nothing is gained by adding to the words of s. 249 at this stage of the analysis.at this stage of the analysis.

BeattyBeatty

““46 46 As the words of the provision make plain, it is the As the words of the provision make plain, it is the mannermanner in which the motor vehicle was operated that is at in which the motor vehicle was operated that is at issue, not the consequence of the driving. The issue, not the consequence of the driving. The consequence, as here where death was caused, may make consequence, as here where death was caused, may make the offence a more serious one under s. 249(4), but it has the offence a more serious one under s. 249(4), but it has no bearing on the question whether the offence of no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out dangerous operation of a motor vehicle has been made out or not. Again, this is also an important distinction. If the or not. Again, this is also an important distinction. If the focus is improperly placed on the consequence, it almost focus is improperly placed on the consequence, it almost begs the question to then ask whether an act that killed begs the question to then ask whether an act that killed someone was dangerous. The court must not leap to its someone was dangerous. The court must not leap to its conclusion about the manner of driving based on the conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the consequence. There must be a meaningful inquiry into the manner of driving. The consequence, of course, may assist manner of driving. The consequence, of course, may assist in assessing the risk involved, but it does not answer the in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a question whether or not the vehicle was operated in a manner dangerous to the public.” manner dangerous to the public.”

BeattyBeatty The court went on to discuss the The court went on to discuss the mens rea mens rea requirementrequirement 48 48 However, subjective However, subjective mens reamens rea of the kind I have just of the kind I have just

described need not be proven to make out the offence because described need not be proven to make out the offence because the mischief Parliament sought to address in enacting s. 249 the mischief Parliament sought to address in enacting s. 249 encompasses a wider range of behaviour. Therefore, while proof encompasses a wider range of behaviour. Therefore, while proof of subjective of subjective mens reamens rea will clearly suffice, it is not essential. In will clearly suffice, it is not essential. In the case of negligence-based offences such as this one, doing the case of negligence-based offences such as this one, doing the proscribed act with the absence of the appropriate mental the proscribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite state of care may instead suffice to constitute the requisite fault. The presence of objective fault. The presence of objective mens reamens rea is determined by is determined by assessing the dangerous conduct as against the standard assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous expected of a reasonably prudent driver. If the dangerous conduct constitutes a "marked departure" from that norm, the conduct constitutes a "marked departure" from that norm, the offence will be made out. As stated earlier, what constitutes a offence will be made out. As stated earlier, what constitutes a "marked departure" from the standard expected of a reasonably "marked departure" from the standard expected of a reasonably prudent driver is a matter of degree. prudent driver is a matter of degree. The lack of care must The lack of care must be serious enough to merit punishment.be serious enough to merit punishment. There is no doubt There is no doubt that conduct occurring in a few seconds can constitute a that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person. marked departure from the standard of a reasonable person.

BeattyBeatty

The importance of the comment “the The importance of the comment “the lack of care must be serious enough lack of care must be serious enough to warrant punishment” is made in to warrant punishment” is made in the context of the the context of the mens reamens rea analysis. analysis.

For strict liability offences, there is For strict liability offences, there is no need to prove no need to prove mens reamens rea

All that you need to prove is the All that you need to prove is the actus reusactus reus

BeattyBeatty

““51 51 Up to this point in the analysis, I would agree with the Up to this point in the analysis, I would agree with the Court of Appeal. In all the circumstances, Mr. Beatty's failure to Court of Appeal. In all the circumstances, Mr. Beatty's failure to confine his vehicle to his own lane of traffic was dangerous to confine his vehicle to his own lane of traffic was dangerous to other users of the highway. Further, no suggestion was made other users of the highway. Further, no suggestion was made at trial that Mr. Beatty was in a state of non-insane at trial that Mr. Beatty was in a state of non-insane automatism at the time. However, this conclusion only automatism at the time. However, this conclusion only answers the answers the actus reusactus reus part of the offence. The more difficult part of the offence. The more difficult question is whether Mr. Beatty had the necessary question is whether Mr. Beatty had the necessary mens reamens rea. . There is no evidence here of any deliberate intention to create There is no evidence here of any deliberate intention to create a danger for other users of the highway that could provide an a danger for other users of the highway that could provide an easy answer to that question. Indeed, the limited evidence easy answer to that question. Indeed, the limited evidence that was adduced about the actual state of mind of the driver that was adduced about the actual state of mind of the driver suggested rather that the dangerous conduct was due to a suggested rather that the dangerous conduct was due to a momentary lapse of attention. Hence, the trial judge was momentary lapse of attention. Hence, the trial judge was correct in finding that the question of correct in finding that the question of mens reamens rea in this case in this case turns on whether Mr. Beatty's manner of driving, viewed on an turns on whether Mr. Beatty's manner of driving, viewed on an objective basis, constitutes a marked departure from the objective basis, constitutes a marked departure from the norm.”norm.”

BeattyBeatty

The court looks only at the driving to The court looks only at the driving to consider whether the consider whether the actus reusactus reus is is proven.proven.

The “momentary lapse of attention” is The “momentary lapse of attention” is only considered when looking at the only considered when looking at the mens reamens rea component. component.

This supports the argument that This supports the argument that momentary lapses of attention are not momentary lapses of attention are not part of the part of the actus reusactus reus analysis. analysis.

RoyRoy R. v. Roy, [2012] 2 S.C.R. 60, (S.C.C.)R. v. Roy, [2012] 2 S.C.R. 60, (S.C.C.) The court had to again revisit the The court had to again revisit the

offence of dangerous driving. Previous offence of dangerous driving. Previous decisions in Hundal and Beatty resulted decisions in Hundal and Beatty resulted in some differences of opinion on how to in some differences of opinion on how to determine the determine the actus reusactus reus and and mens reamens rea of the offence.of the offence.

Justice Cromwell wrote the decision for a Justice Cromwell wrote the decision for a unanimous courtunanimous court

RoyRoy The appellant pulled his motor home out The appellant pulled his motor home out

from a stop sign onto a highway and into from a stop sign onto a highway and into the path of an oncoming tractor-trailer. the path of an oncoming tractor-trailer. In the collision that resulted, the In the collision that resulted, the appellant's passenger was killed. The appellant's passenger was killed. The appellant was convicted of dangerous appellant was convicted of dangerous driving causing death and his appeal to driving causing death and his appeal to the Court of Appeal was dismissed. the Court of Appeal was dismissed.

The SCC overturned the conviction and The SCC overturned the conviction and entered an acquittal.entered an acquittal.

RoyRoy ““1 1 Dangerous driving causing death is a serious Dangerous driving causing death is a serious

criminal offence punishable by up to 14 years in criminal offence punishable by up to 14 years in prison. Like all criminal offences, it consists of two prison. Like all criminal offences, it consists of two components: prohibited conduct -- operating a motor components: prohibited conduct -- operating a motor vehicle in a dangerous manner resulting in death -- vehicle in a dangerous manner resulting in death -- and a required degree of fault -- a marked departure and a required degree of fault -- a marked departure from the standard of care that a reasonable person from the standard of care that a reasonable person would observe in all the circumstances. The fault would observe in all the circumstances. The fault component is critical, as it ensures that criminal component is critical, as it ensures that criminal punishment is only imposed on those deserving the punishment is only imposed on those deserving the stigma of a criminal conviction. While a mere stigma of a criminal conviction. While a mere departure from the standard of care justifies imposing departure from the standard of care justifies imposing civil liability, only a marked departure justifies the civil liability, only a marked departure justifies the fault requirement for this serious criminal offence.”fault requirement for this serious criminal offence.”

RoyRoy 31 31 From at least the 1940s, the Court From at least the 1940s, the Court

has distinguished between, on the one has distinguished between, on the one hand, hand, simple negligence that is simple negligence that is required to establish civil liability or required to establish civil liability or guilt of provincial careless driving guilt of provincial careless driving offencesoffences and, on the other hand, the and, on the other hand, the significantly greater fault required for the significantly greater fault required for the criminal offence of dangerous driving criminal offence of dangerous driving ((American Automobile Ins. Co. v. DicksonAmerican Automobile Ins. Co. v. Dickson, , [1943] S.C.R. 143). [1943] S.C.R. 143).

RoyRoy

““Thus, the "marked departure" Thus, the "marked departure" standard underlines the seriousness standard underlines the seriousness of the criminal offence of dangerous of the criminal offence of dangerous driving, separates federal criminal driving, separates federal criminal law from provincial regulatory law law from provincial regulatory law and ensures that there is an and ensures that there is an appropriate fault requirement for appropriate fault requirement for CharterCharter purposes.” purposes.”

RoyRoy

““35 35 To summarize, the focus of To summarize, the focus of the analysis in relation to the the analysis in relation to the actus actus reusreus of the offence is the manner of of the offence is the manner of operation of the motor vehicle.”operation of the motor vehicle.”

RoyRoy

The The Mens ReaMens Rea 36 36 The focus of the The focus of the mens reamens rea analysis is on whether analysis is on whether

the dangerous manner of driving was the result of a the dangerous manner of driving was the result of a marked departure from the standard of care which a marked departure from the standard of care which a reasonable person would have exercised in the same reasonable person would have exercised in the same circumstances (circumstances (BeattyBeatty, at para. 48). It is helpful to , at para. 48). It is helpful to approach the issue by asking two questions. The first is approach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a risk and take steps to avoid it, if possible, was a marked marked departuredeparture from the standard of care expected of a from the standard of care expected of a reasonable person in the accused's circumstances.”reasonable person in the accused's circumstances.”

RoyRoy

““37 37 Simple carelessness, to which even the most Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in criminal. As noted earlier, Charron J., for the majority in BeattyBeatty, put it this way: "If every departure from the civil , put it this way: "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals casting the net too widely and branding as criminals persons who are in reality not morally blameworthy" (para. persons who are in reality not morally blameworthy" (para. 34). The Chief Justice expressed a similar view: "34). The Chief Justice expressed a similar view: "Even Even good drivers are occasionally subject to momentary good drivers are occasionally subject to momentary lapses of attentionlapses of attention. . These may, depending on the These may, depending on the circumstances, give rise to civil liability, or to a circumstances, give rise to civil liability, or to a conviction for careless driving.conviction for careless driving. But they generally will But they generally will not rise to the level of a marked departure required for a not rise to the level of a marked departure required for a conviction for dangerous driving" (para. 71).”conviction for dangerous driving" (para. 71).”

Conduct deserving of Conduct deserving of PunishmentPunishment

The The actus reusactus reus of an offence looks objectively at the of an offence looks objectively at the conduct described in the section of the statute (see conduct described in the section of the statute (see R v. R v. Beatty, Beatty, [2008] 1 S.C.R. 49 at par 44-46, and [2008] 1 S.C.R. 49 at par 44-46, and R v Roy R v Roy supra supra at parasat paras. . 1, 28, and 33-35). Since careless driving is 1, 28, and 33-35). Since careless driving is a strict liability offence, and since a strict liability offence, and since mens reamens rea is not a is not a relevant factor to consider, the court should not look at relevant factor to consider, the court should not look at the conduct to determine whether it is blameworthy and the conduct to determine whether it is blameworthy and deserving of punishment (that only becomes relevant deserving of punishment (that only becomes relevant when you consider the penalty to be imposed). One only when you consider the penalty to be imposed). One only looks at the looks at the actus reusactus reus, which is viewed objectively, to , which is viewed objectively, to determine whether the defendant drove without due care determine whether the defendant drove without due care and attention or without reasonable consideration for and attention or without reasonable consideration for others using the highway. The others using the highway. The actus reusactus reus of an offence is of an offence is concerned only with the words used in the statute and concerned only with the words used in the statute and whether the defendant committed the act as set out in whether the defendant committed the act as set out in the statute (see the statute (see RoyRoy supra at par 33-35). supra at par 33-35).

Conduct Desrving of Conduct Desrving of PunishmentPunishment

Furthermore since the S.C.C. in Furthermore since the S.C.C. in BeattyBeatty and and RoyRoy look at blameworthiness and look at blameworthiness and conduct deserving of punishment in the conduct deserving of punishment in the context of context of mens reamens rea, it raises the issue of , it raises the issue of whether the comment in whether the comment in BeauchampBeauchamp is is still good law. still good law. BeauchampBeauchamp was decided was decided before before O’Grady, McIverO’Grady, McIver, and , and Sault Ste. Sault Ste. MarieMarie, in which the S.C.C. and the Ontario , in which the S.C.C. and the Ontario Court of Appeal formally recognized and Court of Appeal formally recognized and created the category of Strict Liability created the category of Strict Liability offences. offences.

Conduct Deserving of Conduct Deserving of PunishmentPunishment

BeauchampBeauchamp was also decided before was also decided before O’GradyO’Grady, in , in which the S.C.C. stated that careless driving which the S.C.C. stated that careless driving involves inadvertent negligence. involves inadvertent negligence. Beauchamp Beauchamp was was also decided before also decided before Roy Roy in which the S.C.C. states in which the S.C.C. states that the that the actus reus actus reus of the offence is looked at of the offence is looked at objectively. If the person does what the section objectively. If the person does what the section sets out, they commit the sets out, they commit the actus reus actus reus of the offence. of the offence. For strict liability offences, one must assume that For strict liability offences, one must assume that the legislature intended such conduct to be the legislature intended such conduct to be deserving of punishment. Moral blameworthiness deserving of punishment. Moral blameworthiness has no place in the context of strict liability has no place in the context of strict liability offences. It only applies to offences. It only applies to mens rea mens rea offences.offences.

Conduct Deserving of Conduct Deserving of PunishmentPunishment

A way to interpret the second component in A way to interpret the second component in Beauchamp Beauchamp (conduct deserving of punishment) (conduct deserving of punishment) is that the court is that the court set aside the conviction since the defendant had a set aside the conviction since the defendant had a defence of due diligence. The defendant had checked to defence of due diligence. The defendant had checked to see that there were no vehicles parked behind the bus see that there were no vehicles parked behind the bus before he backed up the bus. As he was backing up the before he backed up the bus. As he was backing up the bus, a person drove up and parked their car behind the bus, a person drove up and parked their car behind the bus. The concept of strict liability offences and the bus. The concept of strict liability offences and the defence of due diligence had not yet evolved. If defence of due diligence had not yet evolved. If Beauchamp Beauchamp is interpreted in this way, one would limit the is interpreted in this way, one would limit the decision to its facts. The comments concerning conduct decision to its facts. The comments concerning conduct deserving of punishment would be inapplicable since the deserving of punishment would be inapplicable since the defendant had a due diligence defence. He took all defendant had a due diligence defence. He took all reasonable care to avoid committing the offence. reasonable care to avoid committing the offence.

Inadvertent NegligenceInadvertent Negligence

It is clear from the comments by the It is clear from the comments by the Supreme Court of Canada that simple Supreme Court of Canada that simple negligence or inadvertent negligence negligence or inadvertent negligence is the type of conduct that gives rise is the type of conduct that gives rise to the offence of careless driving. to the offence of careless driving. Momentary lapses of attention can Momentary lapses of attention can give rise to a conviction for careless give rise to a conviction for careless driving (driving (Roy – par. 37)Roy – par. 37)

Inadvertent NegligenceInadvertent Negligence As was stated by the S.C.C. in As was stated by the S.C.C. in O’GradyO’Grady and in and in

RoyRoy (supra), inadvertent or simple negligence (supra), inadvertent or simple negligence is sufficient to support a conviction for is sufficient to support a conviction for careless driving. One must look at the careless driving. One must look at the conduct objectively to determine whether the conduct objectively to determine whether the section of the statute is breached. In this section of the statute is breached. In this regard, the comments in regard, the comments in Beauchamp Beauchamp and and R. R. v. Wilson, v. Wilson, [1970] O.J. No. 1658 (Ont. C.A.) [1970] O.J. No. 1658 (Ont. C.A.) that inadvertent negligence is not enough that inadvertent negligence is not enough and that the conduct must be deserving of and that the conduct must be deserving of punishment are inconsistent with the punishment are inconsistent with the comments of the Supreme Court of Canada in comments of the Supreme Court of Canada in O’GradyO’Grady and and RoyRoy supra and should no longer supra and should no longer be followed.be followed.

ConclusionConclusion

Based on the comments made by the Based on the comments made by the S.C.C. and the Ont. C.A. in McIver, S.C.C. and the Ont. C.A. in McIver, the following can be concluded:the following can be concluded:

1.1. Careless driving involves simple, Careless driving involves simple, or inadvertent negligence.or inadvertent negligence.

2.2. Careless driving is a strict Careless driving is a strict liability offence. All that needs to be liability offence. All that needs to be proven is the proven is the actus reus. actus reus.

ConclusionConclusion

3.3. The The actus reus actus reus is assessed by looking is assessed by looking objectively at the driving conduct to objectively at the driving conduct to determine if the conduct, as prohibited by determine if the conduct, as prohibited by the words used in s. 130, occurred.the words used in s. 130, occurred.

4.4. The The actus reus actus reus must be voluntary. must be voluntary. 5.5. Conduct deserving of punishment Conduct deserving of punishment

does not form part of the does not form part of the actus reusactus reus assessment. It now fits better into the due assessment. It now fits better into the due diligence defence analysis.diligence defence analysis.

Recent casesRecent cases

Two recent cases dealt with careless driving:Two recent cases dealt with careless driving: R. v. KrzyzanowskiR. v. Krzyzanowski, [2014] O.J. No. 4336, , [2014] O.J. No. 4336,

(Ont. C.J. – Quon, J.P.) – Sept 12, 2014 good (Ont. C.J. – Quon, J.P.) – Sept 12, 2014 good summary of various careless driving cases, summary of various careless driving cases, but fails to refer to but fails to refer to O’Grady, BeattyO’Grady, Beatty and and RoyRoy

R. v. Zhi Li, R. v. Zhi Li, (unreported – decision June 18, (unreported – decision June 18, 2014 – Milton (Greg Larson, prosecutor)) – 2014 – Milton (Greg Larson, prosecutor)) – court considers court considers Roy, Roy, but court still looked at but court still looked at whether the defendant’s driving involved whether the defendant’s driving involved momentary inattention, and conduct momentary inattention, and conduct deserving of punishmentdeserving of punishment (Namink and (Namink and Beauchamp).Beauchamp).

QuestionsQuestions

Questions?Questions?