Court of Appeal for Ontario

Date: October 10, 2018 Docket: C64437

Justices: Sharpe, Lauwers and van Rensburg JJ.A.

Between

Her Majesty the Queen Appellant

and

Eric Brown Respondent

Counsel

Peter Scrutton, for the appellant Adam Forbes, for the respondent

Heard: October 2, 2018

On appeal from: The acquittal entered by Justice Tamarin M. Dunnet of the Superior Court of Justice on September 21, 2017.

Decision

Sharpe J.A.:

[1] The Crown appeals the respondent's acquittal on the charge of dangerous driving causing death. The respondent drove his car onto a sidewalk. In the course of three seconds, he collided with a metal pole, a bicycle ring, and a refuse bin, he fatally struck the victim and he then knocked down a second bicycle ring and hit a tree. The collision occurred at 1:28 a.m. and the accused was alone in the vehicle. The incident was videotaped and the facts surrounding the incident were not in dispute at trial. There was no evidence of excessive speed or of mechanical failure.

[2] The respondent, who did not testify, admitted the actus reus of dangerous driving but contended that the Crown had failed to prove mens rea.

[3] The trial judge found that the respondent had suffered a momentary lapse of attention and that the Crown had failed to prove a marked departure from the requisite standard.

[4] The sole ground of appeal arises from the trial judge's ruling that the respondent's status as a suspended G1 driver who was not entitled to be driving alone or at the late hour of the collision was irrelevant to the issue of mens rea. In oral argument, the Crown conceded that the licence suspension was not relevant to the respondent's mens rea. However, the Crown submitted that the fact that the respondent breached the conditions of his G1 licence by driving both unaccompanied and between midnight and 5 a.m. was relevant to his mens rea. Accordingly, the Crown argued that the trial judge erred in law and that a new trial is required.

[5] In my view, this submission must be rejected.

Legal Principles

[6] It is common ground that the mens rea for dangerous driving is a modified objective test: was the degree of care exhibited by the accused a marked departure from the standard of care of a reasonable person in the accused's circumstances? Evidence of the accused's personal attributes, such as age, experience and education, is irrelevant unless it goes to the accused's incapacity to appreciate or avoid the risk: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49.

[7] Because of the licensing requirement, drivers are legally presumed to have the required minimum standard of competence. Accordingly, "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": Beatty, at para. 32.

Application to the Facts

[8] I agree with the respondent that, when applied to the facts of this case, these principles support the trial judge's conclusion that the respondent's licensing status was irrelevant to the fault element for this offence. His status as a suspended G1 driver had no logical bearing on whether his driving failed to meet the modified objective standard of the reasonably competent licensed driver. The G1 licence restrictions that the respondent violated apply to all G1 licence holders irrespective of their personal attributes and driving skill. Accordingly, the respondent's breach of those restrictions does not indicate that the respondent was incapable of appreciating or avoiding the risk of his conduct. He could be convicted of driving without a proper licence or in violation of the conditions of his G1 licence, but that is not the same as being convicted for the much more serious offence of dangerous driving causing death.

[9] I agree that if an accused's licensing status is indicative of an incapacity to appreciate or avoid the particular risk, it may be relevant to indicate that the accused possessed the requisite mens rea. For example, if an accused drives in violation of a licensing condition imposed because of some physical attribute that makes it unsafe for the accused to drive in some circumstances, driving in violation of that condition would be relevant. The Crown could use the accused's violation of the licensing condition to prove that the accused was subjectively reckless or wilfully blind to the risk his or her actions posed to other users of the road. Such evidence about the accused's actual state of mind is relevant to a court's objective assessment of whether the accused's conduct constituted a marked departure: Beatty, at para. 47.

[10] However, I am not persuaded that the respondent's G1 licensing status had any bearing on the risk at issue in this case where the trial judge concluded that there had been a momentary lapse of attention. To adopt the Crown's submission would potentially subject all persons who have an accident while driving without a proper licence or contrary to the restrictions of their learner's permit to liability for dangerous driving. That would stretch the limits of criminal liability beyond acceptable limits and would be contrary to the Supreme Court's repeated direction to avoid branding as criminals those who are merely careless or civilly negligent: Roy, at para. 2, citing Beatty, at para. 34. To hold a G1 driver criminally liable for conduct that would not be criminal if committed by a properly licensed driver on the basis of restrictions on his or her licence, and without regard to whether such restrictions are relevant to the driver's ability to appreciate the specific risk, would allow for a variable standard inconsistent with "the principles of equality and individual responsibility which should pervade the criminal law": Beatty, at para. 39, quoting R. v. Tutton, [1989] 1 S.C.R. 1392, at p. 1418.

Conclusion

[11] Accordingly, I would dismiss the Crown's appeal from the acquittal.

Released: October 10, 2018

"RJS" Robert J. Sharpe J.A.

"I agree P. Lauwers J.A." "I agree K. van Rensburg J.A."