COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Kelly, 2025 ONCA 92
DATE: 20250210
DOCKET: COA-24-CR-0015
Nordheimer, Sossin and Copeland JJ.A.
BETWEEN
His Majesty the King
Appellant
and
Dayton Kelly
Respondent
Matthew Morley, for the appellant
Maija Martin and Stephanie Brown, for the respondent
Heard: January 17, 2025
On appeal from the acquittals entered on December 8, 2023, by Justice Ronald Minard of the Ontario Court of Justice.
Sossin J.A.:
[1] The Crown appeals from a decision acquitting the respondent of charges of causing death while driving with excess blood-drug concentration (“BDC”) and dangerous driving causing death. The trial judge convicted the respondent of the simpliciter offence of having an excess BDC within two hours of ceasing operation (i.e., “driving with excess BDC”), but did not find him guilty of the driving with excess BDC causing death offences on the basis that the causal nexus between the excess BDC and the deaths had not been established. The trial judge did not find the respondent guilty of the dangerous driving causing death offences on the basis of a reasonable doubt as to whether the respondent demonstrated a marked departure from the norm to be expected of a reasonable driver in the circumstances. For the conviction on the simpliciter offence alone, the respondent was fined $1,500 and prohibited from driving for 18 months.
[2] For the reasons set out below, I would allow the appeal, set aside the acquittals, and order a new trial.
BACKGROUND
[3] On October 24, 2021, at approximately 8:46 p.m., the respondent was speeding eastbound on Highway 86 in his Honda Civic. The weather was clear. The respondent was described by witnesses as driving in a “fairly aggressive” manner by unsafely passing vehicles and speeding down winding roads. The posted speed limit on Highway 86 was 80 km/hr, but the respondent was driving between 100-120 km/hr.
[4] At the same time, a horse and buggy operated by Daniel Martin and occupied by his wife, Esther Martin, was travelling southbound on Sideroad 16 which intersected with Highway 86. As Mr. Martin was crossing Highway 86, the respondent’s car crashed directly into the passenger side of the buggy, resulting in the destruction of the two vehicles. Mr. Martin died at the scene and Ms. Martin died two weeks later.
[5] Later that night, after being unable to obtain legal counsel, the respondent waived his rights to counsel and consented to providing blood samples, which were taken at 12:44 a.m., and a second at 12:46 a.m. By that point, he had admitted to being a chronic marijuana smoker, and having smoked “one bowl” in the morning. The results indicated that the respondent had 17 nanograms of THC per millilitre, over three times above the legal limit of 5 nanograms. From this, the toxicologist determined that his BDC would not have been below the legal limit at the time of the accident in light of the investigating officer’s observation that the respondent had not consumed any cannabis post-accident.
[6] The respondent was charged with operating a conveyance with a blood content level exceeding the legal amount (s. 320.14(1)(c)); two counts of committing an offence under s. 320.14(1)(c) causing death (s. 320.14(3)); and two counts of dangerous operation of a conveyance causing death (s. 320.13(3)).[^1]
Decision Below
[7] At trial, the Crown introduced several witnesses to testify as to their observations of the respondent’s driving leading up to the accident. The trial judge also considered the evidence of two qualified accident reconstructionists who agreed that there was no evidence of braking prior to the point of impact; but differed in their analysis of the post-impact skid marks, finding that they indicated that the respondent’s speed at the point of impact was approximately 121 km/hr or 116 km/hr, respectively.
[8] The respondent testified in his defense and gave evidence that he had been alternating between cruise control of 90 km/hr and manual driving to pass cars on the highway. He had consumed marijuana earlier that day, in the morning, as he typically did. He was aware there were buggies on the road. Since it was dark, he had his vehicle headlights on, but testified that at the time of the accident, he did not have his high beams on as he had just passed some cars and rounded a bend. The respondent testified that shortly after coming around the bend, roughly ten seconds, he perceived a “big, black board” with no lights on it about five feet in front of him and slammed on the brakes. By that point, it was too late to avoid the collision. He did not know it was a buggy until afterwards when observing the wreckage.
[9] The trial judge found that on the first count of driving with excess BDC, the essential elements had been met. However, on the counts related to causing death while driving with excess BDC, he held that a causal nexus must be established between the BDC level in the respondent’s blood and the death of the Martins.
[10] The Crown did not dispute that there was no evidence of such a causal nexus in this case, but argued the essential elements of the offence only require that the accused cause the accident while operating a motor vehicle if the relevant BDC or blood alcohol concentration (“BAC”) is proven. The trial judge did not accept this argument, relying on De Sa J.’s ruling in R. v. Kalkhoran, 2023 ONSC 1997, that “[t]he Crown retains the burden of establishing that the impaired operation was a significant contributing cause of the accident which resulted in the harm/death which is the subject of the charge”: at para. 10.
[11] The trial judge found that the modified objective standard for establishing dangerous driving had not been made out either, since aside from the speed at which he was travelling, “there was nothing particularly erratic about [the respondent’s] driving.” For one, the bend in the road would restrict the respondent’s opportunity to see the intersection and the buggy. Second, at impact, the respondent’s vehicle was squarely in the center of his lane. Third, there was “no doubt that the [the respondent’s] vehicle had the right of way” and fourth, the buggy should have yielded the right of way but instead crossed “directly into the path of the oncoming… vehicle.” As a result, the trial judge found that the Crown failed to prove beyond a reasonable doubt that the respondent’s driving constituted a marked departure from the norm to be expected of a reasonable driver in the circumstances. He was therefore acquitted of the remaining four counts.
ISSUES
[12] The Crown appeals from the acquittals on the causing death while driving with excess BDC counts and the dangerous driving causing death counts and asks this court to substitute convictions. The Crown raises the following issues on appeal:
Did the trial judge err in law in his interpretation of the elements of causing death while driving with excess BDC in s. 320.14(3) of the Criminal Code?
Did the trial judge err in law by failing to consider the evidence establishing dangerous driving causing death under s. 320.13(3) of the Criminal Code?
Did the trial judge err in law in his causation analysis when analyzing whether the respondent’s driving was a significant contributing cause of death under s. 320.13(3) of the Criminal Code?
ANALYSIS
(1) The paths to establish drug-impaired or excess BDC driving
[13] It bears noting that s. 320.14(1) of the Criminal Code is comprised of four distinct offences. A conviction may flow either from evidence of impairment (s. 320.14(1)(a)) or by demonstrating that the accused was driving with an excess BAC (s. 320.14(1)(b)), BDC (s. 320.14(1)(c)), or both (s. 320.14(1)(d)). For the purposes of ss. 320.14(1)(b)-(d), “excess” includes a level that is “equal to or exceeds” the prescribed threshold limits within two hours of operating a vehicle.[^2]
(2) The evolution of excess blood level driving provisions in the Criminal Code
[14] The simpliciter BAC driving offence that criminalized driving with a BAC in excess of 80 mg/100 ml of blood (“driving over 80”) was first enacted in 1969: see Criminal Law Amendment Act, 1968-69 (Can.), c. 38, s. 16. The BAC offence obviated the need, and the difficulty, of proving that a driver is impaired by resort to witness observations. The Supreme Court of Canada in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, at para. 13, noted the inherent risk of danger presented by being behind the wheel of a motor vehicle with a BAC over the legal limit, independent of factual evidence of impairment.
[15] In 2008, Parliament first enacted the excess BAC causing death offence in s. 255(3.1) to accompany the already-existing s. 255(3), which read at the time: “Every one who commits an offence under paragraph 253(a) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life.” (Emphasis added.)
[16] At the same time, the English text of s. 255(3) was amended by replacing the word “thereby” with the expression “as a result” to instead read as “Everyone who commits an offence under paragraph 253(1)(a) and causes the death of another person as a result is guilty of an indictable offence and liable to imprisonment for life” (emphasis added): Tackling Violent Crime Act, S.C. 2008, c. 6, at s. 21(3). Examining the legislative record for these amendments, the Quebec Court of Appeal in R. c. Gaulin found that Parliament, in enacting s. 255(3.1), sought to lighten the burden of proof on the prosecution to causally link a driver’s excess BAC to impairment: R. c. Gaulin, 2017 QCCA 705, 353 C.C.C. (3d) 330, at para. 29.
[17] The global provision for impaired driving offences as it stands today, s. 320.14, was enacted in 2018: An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, s. 15 (“Bill C-46”). The overall objective of Bill C-46 was to reduce injuries and deaths caused by dangerous or impaired operation. To achieve its objective, Parliament sought to strengthen and simplify the law as it relates to impaired driving.
(3) Distinguishing alcohol vs. drug impairment
[18] In the 2019 Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) (the “2019 Backgrounder”), the Department of Justice justified the BDC limits imposed by grounding them in the science available to approximate levels that correlate with impairment. However, it was noted at p. 13, that impairment by drugs is different and more complex than detecting impairment by alcohol:
Alcohol is an exceedingly simple molecule with predictable impairing effects. Essentially, as alcohol is consumed, the BAC rises; the higher the BAC, the more profound the impairment and the greater the risk of a fatal accident. The same correlation does not exist for drugs, which have various impairing effects and impacts on driving behaviour.
There is no dispute that THC can impair the ability to drive. However, the relationship between the concentration of THC in the blood and degree of impairment is more complex than with alcohol. If cannabis is smoked, the THC level in the blood rapidly rises and then declines quickly as the THC redistributes to the fatty tissues (sometimes before smoking is finished). As the THC level drops, impairment can persist such that a person can be significantly impaired even though they have a low level of THC in their blood. If cannabis is ingested (e.g., as an edible food product), the level of THC increases and declines more slowly than if it is smoked. Further, in chronic or regular users (including medical users), detectable levels of THC can persist in the blood (often called a “body burden”) long after the impairing effects have worn off.
[19] This divergence in detecting impairment between alcohol and drugs was explored further in R. v. Robertson, 2022 ONCJ 160, 507 C.R.R. (2d) 137, in which the accused challenged the constitutionality of the simpliciter offence of excess BDC driving, among other provisions, arguing that the limit of 5 nanograms of THC per millilitre violated s. 7 of the Charter. Having the benefit of expert evidence that canvassed the current science as it related to THC levels and driver impairment, Caponecchia J. accepted the following, at paras. 27-30:
[27] An individual can have a THC reading in excess of 5ng/ml and have no measurable impairment. Conversely, an individual can have less than 5ng/ml of THC in their blood and be impaired. An expert would need to have more information to give an opinion as to impairment one way or another.
[28] For an expert to be able to give an opinion as to whether an individual is suffering from the impairing effects of THC in cannabis, it is necessary to know how recently they consumed the drug.
[29] Recent use of cannabis is highly associated with impairment. Evidence of recent use is the most important factor in determining whether an individual is impaired by THC.
[30] A single blood THC reading can provide evidence of recent use. The higher the THC concentration, the more likely that the use of cannabis was more recent. Ms. Chow agreed that a THC level of 20ng/ml or more is a reasonable indicator of recent use that takes into account the spectrum of users from naïve to habitual. A lesser level can also imply recent use. [Footnotes omitted.]
[20] In short, the correlation between BDC levels and impairment is imperfect but informed by credible science. For this reason, Bill C-46 authorizes the Governor in Council to set BDC limits by regulation to allow for “a more flexible and prompt response to the evolving science”: 2019 Backgrounder, at p. 25. As with the BAC limit, the BDC limit seeks to address inherent risks in drug-impaired driving and lighten the burden of proof placed on the prosecution.
(4) The trial judge erred in interpreting the causation element of causing death while driving with excess BDC
[21] As set out above, the trial Crown conceded there was no evidence of impairment in this case. The Crown also conceded that there was no proof that the respondent’s BDC had itself contributed to the collision. The Crown’s position was that the respondent’s driving was a “substantial contributing cause” of the crash, regardless of impairment. As the respondent was committing dangerous driving, over the BDC limit, and caused the fatal collision while driving, he was guilty on all counts.
[22] The trial judge heard submissions on the issue of whether s. 320.14(3) requires the Crown to establish that a person’s operation of a vehicle has caused the death of a person, or whether the Crown must also establish that the impairment itself was a cause of the death.
(a) Trends in s. 320.14(3) jurisprudence
[23] Courts in Alberta, British Columbia, New Brunswick, and Yukon have interpreted s. 320.14(3) as requiring proof that the accused, not necessarily their impairment or BAC/BDC directly, was a significant contributing cause of the fatality: R. v. Thijs, 2022 ABKB 608, at paras. 174-75; R. v. Bakko, 2022 ABPC 217, at paras. 38-39, aff’d 2024 ABCA 2, 433 C.C.C. (3d) 17, at paras. 22-30; R. v. Sakhon, 2024 BCPC 9, at paras. 133-35; R. v. Bulmer, 2023 NBKB 135, 538 C.R.R. (2d) 55, at para. 327-35; and R. v. Andre, 2022 YKTC 9, 178 W.C.B. (2d) 98, at paras. 40-46, aff’d 2024 YKCA 1, 2024 W.C.B. 87, at paras. 45-46.
[24] For the courts adopting this interpretation of s. 320.14(3), the distinction between factual causation and legal causation is key. In Bakko, at paras. 21-22, the Alberta Court of Appeal described this distinction in these terms:
Factual causation is an inquiry into the mechanism of death, in a medical, mechanical or physical sense. It is determined by the “but for” test; but for the acts of the accused, would the victim have died: R v Maybin, 2012 SCC 24, para 15, [2012] 2 SCR 30; R v Nette, 2001 SCC 78, para 44, [2001] 3 SCR 488. Factual causation is not at issue on this appeal. But for Ms Bakko entering the left eastbound lane, and travelling slowly, perhaps as slow as 8 to 16 kilometres per hour in a 110 kilometre per hour zone at night, this accident would not have occurred.
Legal causation establishes moral culpability; were Ms Bakko’s actions a “significant contributing cause” to the outcome? The “accused’s unlawful actions need not be the only cause of death, or even the direct cause of death; the court must determine if the accused’s actions are a significant contributing cause of death”: Maybin, para 1; R v Smithers, 1977 CanLII 7 (SCC), [1978] 1 SCR 506, 519, 522, 34 CCC (2d) 427; R v Thijs, 2022 ABKB 608, paras 175-178. Legal causation queries whether an accused should be held responsible in law for the death that occurred, while guarding those not morally blameworthy from criminal punishment. “[T]he proper standard of causation expresses an element of fault that is in law sufficient, in addition to the requisite mental element, [the mens rea] to base criminal responsibility”: Nette, para 47.
[25] In this context, causation is established where the Crown proves that an accused caused the death while driving, and at the same time committed the underlying offences of either ss. 320.14(1)(a) or (b).
[26] In Ontario, the trend has leaned the other way, with courts holding that s. 320.14(3) requires proof of a causal link between the impairment and the collision: Kalkhoran, at para. 10; and R. v. Di Luciano, 2023 ONSC 6621 [unreported: Boswell J., 22 November 2023]. The case law in Ontario has not been monolithic in this regard. These decisions appear to depart from the earlier decision in R. v. Hourihan, 2017 ONSC 727, 8 M.V.R. (7th) 76, in which Dunphy J., interpreting a preceding provision in the Criminal Code for impaired driving causing bodily harm, held that the Crown is not required to demonstrate that any particular level of impairment caused the bodily harm. Before the trial judge, the Crown relied on Hourihan at trial, along with the appellate decisions from other provinces.
(b) The trial judge’s analysis
[27] The trial judge rejected the line of case law advanced by the Crown, and stated his conclusion on the proper test to be applied in the following terms:
I have considered the Crown's position carefully. I observe first that it is a cornerstone principle of the criminal law that to find a person guilty, there must be some causal nexus between the offence and the act complained of. In other words, there must be some causal nexus between [the respondent’s] THC blood, drug content and the death of the Martins. The Crown has, as I have stated, conceded – in my view, correctly – that there is no evidence of such a causal nexus in this case.
I appreciate the criticisms that [the Crown] has levelled at the decision of Mr. Justice De Sa in R. v. Kalkhoran, 2023 ONSC 1997. I have concluded that what was of concern to me was of concern to Justice De Sa. That what is at stake here is this long-held cornerstone principle of the criminal law, requiring some nexus between the offence and the act complained of. Kalkhoran was a blood alcohol case as was Justice Dunphy's case Hourihan. But the same argument was made in Kalkhoran and in my view, the same principles apply. Justice De Sa at paragraph 10 states "in my view, the offence set out in section 320.14(3) requires that there be a causal link between the impairment and the accident which caused the death. The Crown retains the burden of establishing that the operation was a significant contributing cause of the accident which resulted in a death, which is the subject of the charge."
I take the position that I prefer the reasoning of Justice De Sa, notwithstanding the able submissions of [the Crown]. I find that it is essentially binding upon me, I take it as binding upon me despite his arguments that it is in effect obiter and accordingly I find that the accused, in the absence of any evidence of causation between the blood, drug content and the deaths of Mr. and Mrs. Martin, not guilty on counts 2 and 3. [Emphasis added.]
[28] The Crown argues that the trial judge erred in this conclusion.
(c) The correct interpretation of s. 320.14(3)
[29] The Crown submits that the approach to the interpretation of s. 320.14(3) taken outside of Ontario is consistent with the direction from the Supreme Court in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, to interpret statutory provisions “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.”
[30] The respondent argues that it was appropriate for the trial judge, applying horizontal stare decisis, to adopt the interpretation applied in Kalkhoran. Further, the respondent submits that where a provision of the Criminal Code is ambiguous, there is a presumption that the statute be interpreted in a manner that benefits the persons whose liberty interests may be impacted by the provision. In other words, there is a presumption that Parliament only intends to expand the reach of criminal law provisions through express language and not through implication, relying on Marcotte v. Canada (Deputy Attorney General) (1974), 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108, at para. 7; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at paras. 54-55 and 59; and R. v. Fernandes, 2013 ONCA 436, 115 O.R. (3d) 746, at paras. 59-60.
[31] In my view, s. 320.14(3) of the Criminal Code is not ambiguous. A plain reading of s. 320.14(3) establishes that the elements are made out simply by operating a vehicle while impaired or with excess blood levels, and causing the death of a person. An additional causal nexus between the impairment or excess BAC/BDC and the cause of death is not required.
[32] Subsections 320.14(1) and (3) provide:
320.14 (1) Everyone commits an offence who
(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or
(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.
320.14 (3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person. [Emphasis added.]
[33] Based on the above, the elements of the offence require: (1) driving while committing the predicate offence, established through impairment and/or a BAC or BDC higher than permitted; and (2) a driver who causes the death of another person. The wording of the provision, and particularly, the addition of the relative pronoun, “who”, does not imply that the impairment must cause the death, rather that the person committing the offence must cause the death.
[34] I am persuaded by the Crown’s submissions that the text, object, and purpose of the provision militate in favour of an interpretation that would give effect to Parliament’s intention to increase road safety by “deterr[ing] persons from driving while impaired by alcohol or drugs”: 2019 Backgrounder, at p. 9. Additionally, I agree that this interpretation is consistent with this provision’s legislative and judicial history, as outlined above.
[35] Finally, as the Crown argues, where Parliament wishes to clarify a specific causation test as part of an offence, it does so expressly. For example, s. 320.13(3) (dangerous operation causing death) provides, “Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes the death of another person.” (Emphasis added.)
[36] The respondent argues that the interpretation of this provision urged by the Crown is tantamount to an absolute liability offence or a substituted mens rea. Absolute liability offences with a possibility of incarceration have been held to violate s. 7 of the Charter: Re: B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486. Similarly, the respondent highlights that offences where proof of an element of the offence may be substituted for proof of another fact will violate the presumption of innocence guaranteed by s. 11(d) of the Charter if proof of the substituted fact does not lead inexorably to the conclusion that proof of the essential element exists. Accordingly, the respondent submits that interpretations that are Charter-compliant should be preferred: R. v. Raham, 2010 ONCA 206, at paras. 16, 37-38.[^3]
[37] The Crown disputes that interpreting the provision as it proposes constitutes an absolute liability offence. The fact that s. 320.14(3) does not require the proof of a specific causal link between the driver’s impairment, BAC, or BDC, and the fatality does not prevent the application of a causal analysis. A driver with excess BDC, who becomes involved in a fatal collision, may not be guilty of the offence under s. 320.14(3) if the trier has a reasonable doubt that the driver’s actions were a significant contributing cause of the collision, whether because of an unforeseeable intervening act, or an independent intervening act overwhelms the accused’s role: see R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 3-4, 49, and 71-72.
[38] Finally, the Crown also argues that the interpretation of causation adopted by the trial judge would lead to absurd results. For example, requiring proof that a motorist’s BAC or BDC was itself a cause of the death would incentivize the obstructive practice of post-driving consumption following serious collisions. If the Crown must relate the accused’s BAC or BDC to the time of the actual collision in bodily harm or death cases, then the accused may foil those efforts by consuming, or credibly claiming to have consumed, the impairing substance after the collision, known as the “bolus drinking defence”. According to the Crown, obstructionist post-collision consumption would remain criminalized under the simpliciter offences but would be a viable method of avoiding criminal liability for having injured or killed someone, which cannot have been Parliament’s intention when criminalizing post-collision consumption of impairing substances.
[39] I would accept the Crown’s position with respect to the concerns arising from the trial judge’s interpretation of s. 320.14(3). I also would reject the characterization of the approach adopted in other provinces, and advanced by the respondent in this case, as giving rise to an offence of absolute liability or substituted mens rea.
[40] In my view, there is good reason not to adopt the reasoning in Kalkhoran, which was subsequently adopted in Di Luciano [unreported], at para. 11.
[41] In Kalkhoran, De Sa J. primarily relied on the reasons of Trotter J. (as he then was) in R. v. Phan, 2015 ONSC 2088, 120 W.C.B. (2d) 370.
[42] In finding that the Crown had not proved the causation element in Phan, at para. 84, Trotter J. did not hold that the Crown must prove that the accused’s BAC caused the collision. Interpreting the two predecessor “cause death” provisions, Trotter J. found that: “Section 255(3) requires that the death was caused by impaired driving, whereas s. 255(3.1) requires that an individual, being in a state of "over 80", causes an accident and that death ensues from the accident”. While the accused’s driving was clearly a factual cause of the death on the “but-for” standard, Trotter J. had “grave doubts” that any driver in the same position could have done anything to avoid the collision.
[43] According to the Crown, the accused in Phan was acquitted of the “cause death” offences, not because the Crown failed to prove that his BAC was a cause of the collision, but because the collision was “unavoidable”, and therefore Trotter J. determined that the accused did not significantly contribute to the death. In other words, in Phan, legal causation was not established.
[44] De Sa J. viewed this scenario as a reason to interpret the provision as having an added element of legal causation – proof of a causal link between the excess BAC and the accident causing the death: Kalkhoran, at para. 27. He stated, at para. 17, “In some cases, however, pedestrians can act unpredictably or place themselves in harm's way. Situations can arise where the accident was unavoidable, and the impairment may not be a contributing factor in bringing about the injury and/or death: see R. v. Phan, supra, at paras. 77-82.”
[45] In my view, Trotter J.’s analysis in Phan does not support the need for an additional element to legal causation under s. 320.14(3). Rather, it illustrates how legal causation (or its absence) for this offence should be determined.
[46] Further, I do not agree with the concern raised by De Sa J. in Kalkhoran, at paras. 19-20, that the Crown's suggested interpretation would import an “automatic” legal presumption of liability for the death where there is an illegal BAC/impairment, and that a conviction under this approach would have no necessary correlation to an accused's moral blameworthiness.
[47] Adopting a precautionary approach, intended to increase road safety by deterring drug users from getting behind the wheel of a car after having consumed a drug, Parliament has chosen to criminalize the conduct of causing a death while driving with a BDC above 5 nanograms. A conviction under this provision is directly related to the moral blameworthiness of the accused’s conduct.
[48] Accordingly, properly interpreted, the essential question under s. 320.14(3) is whether the respondent caused the deaths in this case. While there is no factual dispute that the respondent was driving the car that struck the buggy and killed Daniel and Esther Martin, the Crown must also establish legal causation as set out above – i.e., that the respondent’s actions were a significant cause of the deaths.
[49] Because of the trial judge’s error with respect to the interpretation of the causal element of s. 320.14(3), the trial judge did not make findings with respect to the legal causation of the death of the Martins. For this reason, in my view, a new trial on these counts is required.
(5) The trial judge erred in applying the test for dangerous driving causing death
[50] The respondent was also acquitted of dangerous driving causing death because the trial judge found “the Crown has failed to prove beyond a reasonable doubt that the accused was driving dangerously.… Or that the accused’s driving constituted beyond a reasonable doubt, a marked departure from the norm to be expected of a reasonable driver in these circumstances.”
[51] The Crown appeals this acquittal on the basis that the trial judge erred in setting out and applying the proper test for dangerous driving causing death.
(a) The modified objective standard test
[52] The actus reus of dangerous operation requires the Crown to prove that the accused was driving in a manner that is dangerous to the public, viewed on an objective standard, having regard to all the circumstances, including the nature, condition, and use of the place, and the amount of traffic that was or might reasonably have been expected to be there. It is the manner of driving, not its consequences, that matter. The mens rea requires the trier of fact to be satisfied beyond a reasonable doubt “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”: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43.
[53] The core question to be addressed in a determination of dangerous driving has been described by the Supreme Court as follows: “[W]hether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited”: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 41.
(b) The trial judge’s analysis
[54] The trial judge instructed himself on the test to be applied under this provision of the Criminal Code in the following terms:
The test for this under section 249(1) of the Criminal Code was set out in the decision of R. v. Burger, 2017 ONCA 101 at paragraph 31 where the Court states under section 249(1) of the Criminal Code, the actus reus of the offence is driving in a manner that viewed objectively is "dangerous to the public having regard to all the circumstances". Further, where the accused offers an explanation, the judge must also 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".
When considering the mens rea element, the Court applies a modified objective standard. That is the Court examines all of the circumstances and asks whether a reasonable person placed in the same circumstances would have foreseen the risk and taken steps to avoid it. The Court then considers whether the accused’s failing to do so constitutes a marked departure from the standard of care expected of a reasonable person in all of the circumstances, such that an inference of fault from the manner of driving is appropriate. See again paragraph 53 of R. v. Burger.
(c) The correct test for establishing dangerous driving
[55] The Crown argues that this description of the test is in error. According to the Crown, the trial judge erroneously quoted Burger as holding that, on the actus reus, he 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”. That assessment is, in fact, part of the modified objective standard applied to the assessment of the mens rea element.
[56] The respondent submits that, while the trial judge could have been clearer in separating the actus reus from the mens rea, he properly considered, through an objective lens, whether the respondent was driving in manner that was dangerous to the public, having regard to all the circumstances.
[57] The Crown contends that the trial judge’s error was not simply a lack of clarity in the above description of the test for the actus reus and mens rea for the offence but a misapprehension of the correct standard which persisted through his analysis. The Crown further submits that, while the trial judge identified some factors relevant to the assessment of the respondent’s manner of driving, he failed to conduct any meaningful analysis of the broader risks that driving created. In other words, rather than assessing the risk to the public created by the respondent’s manner of driving, the trial judge focused on the risk to the Martins.
[58] The Crown highlights that this error is apparent in the trial judge’s explanation of his finding of a reasonable doubt. The trial judge accepted that the respondent was speeding at the time of the collision. In addition to the respondent’s speed, the trial judge described four factors “pertinent to the fundamental issue” of “whether or not the Crown has met the onus of proof in terms of the modified objective standard”: (1) the bend in the road would restrict the respondent’s opportunity to see the intersection and the buggy; (2) the respondent’s vehicle was in the middle of his lane at impact; (3) the respondent had the right of way; and (4) the buggy “inexplicably” crossed in front of the respondent’s vehicle. The Crown reiterates that while these factors may have been relevant to the cause of the collision, they were not addressed to whether the respondent’s driving created a risk to the public.
[59] I agree. However, the trial judge may have understood the relationship between the actus reus and mens rea of the offence, the factors considered by the trial judge do not relate to a proper analysis of the marked departure standard. For example, the fact that the victims may have made a mistake with respect to the right of way may have played a role in the collision, but could not have rendered the respondent’s driving less dangerous.
[60] Additionally, the factor of the bend in the road appears to have been referred to by the trial judge as explaining, in part, why the Crown had failed to establish that the respondent’s driving at the time of the collision was dangerous. However, under the proper test for dangerous driving, the fact that the respondent did not slow down at the bend in the road, notwithstanding the respondent’s restricted vision of the approaching intersection, would appear to be evidence supporting a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited of his driving.
[61] As Paciocco J.A. stated in R. v. Romano, 2017 ONCA 837, 142 W.C.B. (2d) 539, at para. 71, “Judging whether driving was dangerous by exploring whether the accused is at fault for an accident that occurred obscures the proper focus on the manner of driving, and duplicates causation considerations that arise when, as in this case, an aggravated form of dangerous driving is charged.”
[62] The concern with the trial judge’s analysis is not simply the irrelevant aspects of the record he considered but also the relevant aspects of the record he failed to consider. The trial judge was required to assess the evidence of the accused’s state of mind as measured against the standard of care of a reasonable driver. As the Crown highlights, the factors relevant to that assessment that were entirely absent from the trial judge’s analysis, include the respondent’s knowledge that there were buggies and other vehicles on the road, his desire to get home quickly even if it meant taking an unfamiliar route, the reflective signage marking the intersection, the testimony of other motorists as to what speed was safe at that place and time, and the respondent’s choice to ingest an impairing substance before driving.
[63] For these reasons, in my view, the trial judge erred in his analysis of dangerous driving causing death and the acquittals of the respondent on those charges should be set aside.
DISPOSITION
[64] For the reasons set out above, I would allow the appeal.
[65] The Crown invited this court, if it allowed the appeal, to substitute convictions for the acquittals in relation to causing death while driving with excess BDC.
[66] As set out above, my view is that a new trial is necessary on the charges of causing death while driving with excess BDC. Because of the analytical path the trial judge took on those offences, he never made factual findings in relation to legal causation in the deaths of Daniel and Esther Martin. He did not set out whether he was satisfied that the respondent’s actions were a significant contributing cause of the death of the Martins. Those findings are necessary in order to reach a conviction for these counts on the record and, in my view, must be considered afresh in a new trial.
[67] A new trial for the driving with excess BDC causing death counts also will allow the respondent, if he wishes, to raise constitutional issues with the interpretation of driving with excess BDC causing death that does not impose an additional causal nexus between the impairment and death. However, I note that the constitutionality of the simpliciter offence establishing the limit of 5 nanograms of THC per millilitre of blood in s. 320.14(1)(c) and s. 2 of SOR/2018-148 was upheld in the aforementioned case of Robertson, at paras. 125-28.
[68] The Crown concedes that with respect to dangerous driving causing death, a new trial is needed in light of the error of the trial judge in setting out and applying the proper test.
[69] For these reasons, the acquittals found in relation to the two counts of causing death while driving with excess BDC driving (s. 320.14(3)) and two counts of dangerous driving causing death (s. 320.13(3)) are set aside and a new trial ordered.
Released: February 10, 2025 “I.N.”
“L. Sossin J.A.”
“I agree. I.V.B. Nordheimer J.A.”
“I agree. Copeland J.A.”
[^1]: A conveyance is defined in s. 320.11 of the Criminal Code, R.S.C. 1985, c. C-46, as “a motor vehicle, a vessel, an aircraft or railway equipment”. I use the term “operation of a vehicle” or “driving” when referring to the offences hereafter.
[^2]: The only drugs that include a permissible range of BDC upon testing are Tetrahydrocannabinol (THC) and Gamma hydroxybutyrate (GHB). Any detectable level of all other drugs is prohibited: see Blood Drug Concentration Regulations, SOR/2018-148, s. 2.
[^3]: Although the respondent argued that the Charter should be used as a tool in the statutory interpretation of s. 320.14(3), the constitutionality of s. 320.14(3) as it relates to excess BDC is not before the court in this appeal.