R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 SCR 867

R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 SCR 867

Surinder Hundal Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Hundal

File No.: 22358.

1992: January 30; 1993: March 11.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson* and Iacobucci JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Dangerous driving ‑‑ Mens rea ‑‑ Objective or subjective standard ‑‑ Motorist killed by truck driving through intersection as light turned red ‑‑ Trucker thinking not possible to stop ‑‑ Evidence that trucker's driving outside the norm ‑‑ Whether objective or subjective standard should apply ‑‑ Criminal Code, R.S.C. 1970, c. C-34, s. 233(1), (4), as am. by S.C. 1985, c. 19, s. 36 (now R.S.C., 1985, c. C-46, s. 249(1), (4)).

Appellant was involved in a fatal motor accident and charged with dangerous driving under s. 233 (now s. 249) of the Criminal Code. The accident occurred in heavy afternoon traffic on a wet four lane street in downtown Vancouver. The deceased had waited at the intersection for a red light and was proceeding through it on a green light. He had crossed the cross‑walk and the two west‑bound lanes when his car was struck broadsides by the appellant's overloaded truck in the east‑bound passing lane.

The appellant testified that he thought he could not stop when the light turned amber, sounded his horn and proceeded through the intersection. Several witnesses testified that appellant's truck entered the intersection after the traffic light had turned red and police testimony established that the light was timed to provide a significant delay between one direction's receiving an amber light and the other's receiving a green light. One witness, who had driven behind the truck for some distance, testified that the appellant had gone through another intersection as the light turned red and estimated the truck's speed at the time of the collision to be between 50 to 60 km/h.

The trial judge found that the appellant's actions represented a gross departure from the standard of care to be expected from a prudent driver and found him guilty of dangerous driving causing death. That decision was upheld on appeal. At issue here is whether there is a subjective element in the requisite mens rea which must be established by the Crown in order to prove the offence of dangerous driving described in s. 233 (now s. 249) of the Criminal Code.

Held: The appeal should be dismissed.

Per L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: The mens rea for the offence of dangerous driving should be assessed objectively but in the context of all the events surrounding the incident. The objective test meets the requirements of s. 7 of the Canadian Charter of Rights and Freedoms and was properly applied here.

Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code.

Section 233 (now s. 249) of the Criminal Code requires an objective standard. This standard is quite appropriate given the need to reduce highway carnage. A consideration of the personal factors essential to determining subjective intent is generally not necessary given the fixed standards of physical and mental well‑being coupled with the basic knowledge of the standard of care required of licensed drivers. A driver, whose conduct was objectively dangerous, should not be acquitted because he or she was not thinking of his or her manner of driving at the time of the accident. The nature of driving itself is often so routine and automatic that it is almost impossible to determine a particular state of mind of a driver at any given moment. The question to be asked, therefore, given that liability for dangerous driving is based on negligence, is whether, viewed objectively, the accused exercised the appropriate standard of care‑‑not whether the accused subjectively intended the consequences of his or her action. The accused can still raise a reasonable doubt that a reasonable person would have been aware of the risks of his or her conduct. The test must be applied flexibly in the context of the events surrounding the incident.

The trier of fact must be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation. If the accused offers an explanation, such as a sudden and unexpected onset of illness, the trier of fact, in order to convict, must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. A charge to the jury need only follow this reasoning. It need not be long or complex. Neither the section nor the offence requires it.

Per Lamer C.J. and McLachlin J.: The reasons of Cory J. were agreed with, subject to certain observations on the concept of fault and the "modified objective test". An objective test applied here; the question is not what was in the accused's mind but the absence of the mental state of care inferred from conduct of the accused. The fault is established if that conduct evinces a want of care judged by the standard of a reasonable person in similar circumstances. The relevant circumstances may include circumstances personal to the accused relating to whether the accused lacked the capacities or powers necessary to attain the mental state of care required in the circumstances.

Either the objective or the subjective test is capable of establishing the mens rea of a criminal offence. A dangerous or repugnant act, coupled with want of care representing a marked departure from the standard of a reasonable person in all the circumstances, may constitute a criminal offence. A clear distinction, however, must be made between subjective and objective mens rea. The phrase "modified objective test" was introduced to ensure that jurists applying the objective test take into account all relevant circumstances in the events surrounding the alleged offence and give the accused an opportunity to raise a reasonable doubt as to what a reasonable person would have thought in the particular situation in which the accused found himself or herself. This phrase, if it is taken to suggest an amalgam of objective and subjective factors and looks at what ought to have been in the accused's mind, but goes on to consider what was actually there or not there, blurs the distinction between subjective and objective mens rea. On the objective test, the Crown is not required to establish what was in the accused's mind as a matter of fact. Under the objective test, only an honest and reasonably held belief can exonerate the accused. It is no defence that the accused thought he or she was being careful. Circumstances may arise where the accused's action was involuntary, with the result that there was not actus reus.

Per La Forest J.: Substantial agreement was expressed for the comments of Cory J. on the mens rea required for the offence of dangerous driving. It was noted, however, that this provision (a quasi-regulatory offence) differs in both its wording and object from the general offence of criminal negligence which requires a subjective mens rea.

Cases Cited

By Cory J.

Considered: Mann v. The Queen, 1966 5 (SCC), [1966] S.C.R. 238; Binus v. The Queen, 1967 15 (SCC), [1967] S.C.R. 594; R. v. Beaudoin (1973), 1973 390 (ON CA), 12 C.C.C. (2d) 81; referred to: R. v. Mason (1990), 1990 1895 (BC CA), 60 C.C.C. (3d) 338; Peda v. The Queen, 1969 22 (SCC), [1969] S.C.R. 905; R. v. Lowe (1974), 1974 692 (ON CA), 21 C.C.C. (2d) 193; R. v. Mueller (1975), 1975 1385 (ON CA), 29 C.C.C. (2d) 243; R. v. Sharp (1984), 1984 3487 (ON CA), 12 C.C.C. (3d) 428; Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636; R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154; R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392; R. v. Waite, 1989 104 (SCC), [1989] 1 S.C.R. 1436.

By McLachlin J.

Considered: R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392.

By La Forest J.

Referred to: R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392; R. v. Waite, 1989 104 (SCC), [1989] 1 S.C.R. 1436.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 7.

Criminal Code, R.S.C. 1970, c. C-34, s. 233(1), (4), as am. by S.C. 1985, c. 19, s. 36 (now R.S.C., 1985, c. C-46, s. 249(1), (4)).

Authors Cited

Burns, Peter. "An Aspect of Criminal Negligence or How the Minotaur Survived Theseus Who Became Lost in the Labyrinth" (1970), 48 Can. Bar Rev. 47.

Canada. Transport Canada. Road Safety and Motor Vehicle Regulation Directorate. Preliminary Fatality Statistics. Leaflet CL 9211 (e). Ottawa: May 1992.

Rosenberg, Marc. "The Mens Rea Requirements of Criminal Negligence: R. v. Waite and R. v. Tutton" (1990), 2 J.M.V.L. 243.

Stalker, M. Anne. "The Fault Element in Recodifying Criminal Law: A Critique" (1989), 14 Queen's L.J. 119.

Stuart, Don. Canadian Criminal Law, 2nd ed. Toronto: Carswell, 1987.

Stuart, Don. "Criminal Negligence: Deadlock and Confusion in the Supreme Court" (1989), 69 C.R. (3d) 331.

APPEAL from a judgment of the British Columbia Court of Appeal (1991), 1991 5752 (BC CA), 63 C.C.C. (3d) 214, 6 C.R. (4th) 215, 29 M.V.R. (2d) 108, dismissing an appeal from conviction by Preston Co. Ct. J. Appeal dismissed.

S. R. Chamberlain, Q.C., for the appellant.

Alexander Budlovsky, for the respondent.

McLachlin J.

The reasons of Lamer C.J. and McLachlin J. were delivered by

McLachlin J. -- I agree with the reasons and disposition proposed by Justice Cory, but wish to add certain observations on the concept of fault and the "modified objective test".

As my colleague Cory J. points out, fault in criminal offences may be assessed by an objective standard or by a subjective standard. An offence can require proof of a positive state of mind, such as intent, recklessness or wilful blindness. If so, the Crown must prove beyond a reasonable doubt that the accused possessed the requisite state of mind. This is a subjective test, based on what was actually in the accused's mind. On the other hand, the fault may lie in the accused's negligence or inadvertence. In this case an objective test applies; the question is not what was in the accused's mind but the absence of the mental state of care. This want of due care is inferred from conduct of the accused. If that conduct evinces a want of care judged by the standard of a reasonable person in similar circumstances, the necessary fault is established. The relevant circumstances may include circumstances personal to the accused, relating to whether the accused lacked the capacities or powers necessary to attain the mental state of care required in the circumstances.

Although the fault required by the subjective test is arguably greater than that required by the objective test, either is capable of establishing the mens rea of a criminal offence. As Professor Stuart states, "not thinking, or not thinking properly" can be a sufficient basis for attributing fault to an accused (Don Stuart, "Criminal Negligence: Deadlock and Confusion in the Supreme Court" (1989), 69 C.R. (3d) 331, at p. 333). In his view, when engaging in dangerous behaviour,

. . . a failure to exercise one's capacities and powers to bring about and control conduct and its risks is a culpable failure, and sufficiently morally culpable to attract the criminal sanction. In terms of deterrence, on this notion, we can and do teach ourselves to take care when we know that, if we do not, we will be punished. We are often capable of becoming less inadvertent. There is also an important pragmatic and realistic consideration. The traditional subjective awareness emphasis cannot cope with the truth that many of our acts in the real world, such as driving a motor vehicle, are automatic and reflexive and occur without conscious thought.

Marc Rosenberg similarly suggests that "sometimes it is the very failure to advert to the circumstances which renders the conduct so dangerous" (Marc Rosenberg, "The Mens Rea Requirements of Criminal Negligence: R. v. Waite and R. v. Tutton" (1990), 2 J.M.V.L. 243, at p. 248). Professor Anne Stalker echoes this sentiment: "[n]ot to punish people who engage in such serious behaviour without considering its implications seems to put a premium on ignorance with regard to some very serious conduct" (M. Anne Stalker, "The Fault Element in Recodifying Criminal Law: A Critique" (1989), 14 Queen's L.J. 119, at p. 127). Indeed, as Cory J. aptly puts it at p. 000 of his reasons, "[i]t would be a denial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking of his manner of driving at the time."

It follows that a dangerous or repugnant act, coupled with want of care representing a marked departure from the standard of a reasonable person in all the circumstances, may constitute a criminal offence. To accept the appellant's submission that in all criminal cases the Crown must establish subjective mens rea would be to put the range of culpable conduct described by Stuart, Rosenberg and Stalker -- conduct which has long formed part of our criminal law -- beyond the law's reach. That, to me, does not make sense.

Scholars have emphasized the importance of making a clear distinction between subjective and objective mens rea. Not to do so is dangerous. At the very least, it may induce a judge or jury to take into account the accused's actual state of mind when the only issue is what the accused's state of mind ought to have been. Thus Professor Stuart, supra, at p. 336, states that:

There must be a forthright recognition that there are offences such as criminal negligence which must be based on the objective standard. We need to know very clearly when we are convicting on the basis of the fact that the accused ought to have thought even though he did not.

Cory J. also emphasizes the importance of this distinction at p. 000 of his reasons: "there should be a clear distinction in the law between one who was aware (pure subjective intent) and one who should have taken care irrespective of awareness (pure objective intent)." I am in agreement with this conclusion.

This brings me to the modified objective test. The label "modified objective test" might be taken to suggest an amalgam of objective and subjective factors; a test that looks at what ought to have been in the accused's mind, but goes on to consider what was actually there or not there. If this is what it means, it runs afoul of Professor Stuart's sensible admonition that jurists should be very clear about whether they are convicting on the basis of the subjective test or the objective test. On the objective test, the Crown is not required to establish what was in the accused's mind as a matter of fact.

Consideration of the context in which the term has been used suggests that the phrase "modified objective test" was introduced in an effort to ensure that jurists applying the objective test take into account all relevant circumstances in the events surrounding the alleged offence and give the accused an opportunity to raise a reasonable doubt as to what a reasonable person would have thought in the particular situation in which the accused found himself or herself. Thus Cory J. in discussing the modified objective test at p. 000 stresses that "personal factors" may be raised and affirms at p. 000 that "it will remain open to the accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused's conduct". He goes on to say, "The test must be applied with some measure of flexibility. That is to say the objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident."

If, as my colleague suggests, McIntyre J. was describing a modified objective test in R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392, at p. 1432, the language and example used indicate that his concern too was to ensure that in applying the objective test all relevant circumstances, including those personal to the accused be considered. He reaffirms the objective test by asserting that only "an honest and reasonably held belief" can exonerate the accused. In other words, it is no defence to say, on the subjective level, "I was being careful", or "I believed I could do what I did without undue risk". The defence arises only if that belief was reasonably held. McIntyre J. goes on to offer the example of a welder who is engaged to work in a confined space believing on the assurance of the owner of the premises that no combustible or explosive material is nearby. The welder charged in connection with a subsequent explosion, McIntyre J. asserts, should be allowed to introduce evidence that he believed there were no combustible or explosive materials on the premises. This is an objective test; the fact that the welder had been told there were no combustible or explosive materials on the site is one of the circumstances which a jury should take into account in determining what a reasonable person would have thought and done. Was it reasonable for the welder in these circumstances to turn his torch on in the enclosed space? The answer, on the objective test, is "of course".

Nor does Cory J.'s example of "a totally unexpected heart attack, epileptic seizure or detached retina" (at p. 000), which renders an accused unable to control his or her motor vehicle, require the introduction of an element of subjectivity. The better analysis, in my view, is that the onset of a "disease or disability" makes the act of losing control of the motor vehicle involuntary, with the result that there is no actus reus. Thus we do not reach the question of what a reasonable person would have been thinking or adverting to as the car goes off the road, much less what the accused was in fact thinking or not thinking. Alternatively, if the actus reus were taken as established in these examples, the heart attack or epileptic seizure might be viewed as a circumstance which negates the ordinary inference of want of care which flows from the fact of having lost control of a motor vehicle.

I would dispose of the appeal as proposed by Cory J.

The following are the reasons delivered by

La Forest J.

La Forest J. -- I am in substantial agreement with what Justice Cory has to say about the mens rea required for the offence of dangerous driving and I would, therefore, dispose of the appeal in the manner proposed by him. I would simply add that, both in its wording and object (it is a quasi-regulatory offence), this provision differs from the general offence of criminal negligence which, concurring with Wilson J., I concluded required subjective mens rea; see R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392, and R. v. Waite, 1989 104 (SCC), [1989] 1 S.C.R. 1436.

Cory J.

The judgment of L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by

Cory J. -- At issue on this appeal is whether there is a subjective element in the requisite mens rea which must be established by the Crown in order to prove the offence of dangerous driving described in s. 233 of the Criminal Code, R.S.C. 1970, c. C-34, as am. by S.C. 1985, c. 19, s. 36 (now R.S.C., 1985, c. C-46, s. 249).

Factual Background

The accident occurred at about 3:40 in the afternoon in downtown Vancouver. The streets were wet at the time, a situation not uncommon to that city. The downtown traffic was heavy. The appellant was driving his dump truck eastbound on Nelson Street, a four lane road, approaching its intersection with Cambie Street. At the time, his truck was overloaded. It exceeded by 1160 kg the maximum gross weight permitted for the vehicle. He was travelling in the passing lane for eastbound traffic. The deceased was travelling southbound on Cambie Street. He had stopped for a red light at the intersection with Nelson Street. When the light turned green, the deceased proceeded into the intersection through a cross-walk, continued south across the two lanes for westbound traffic on Nelson Street and reached the passing lane for eastbound traffic. At that moment, his car was struck on the right side by the dump truck killing him instantly.

The appellant stated that when he approached the intersection of Nelson and Cambie Streets he observed that the light had turned amber. He thought that he could not stop in time so he simply honked his horn and continued through the intersection when the impact occurred. Several witnesses observed the collision. They testified that the appellant's truck entered the intersection after the Nelson Street traffic light had turned red. It was estimated that at least one second had passed between the end of the amber light and the time when the dump truck first entered the intersection. A Vancouver police officer gave evidence that the red light for Nelson at this intersection is preceded by a three second amber light and there is a further one-half second delay before the Cambie light turned green. One witness observed that the deceased's vehicle had travelled almost the entire width of the intersection before it was struck by the truck. Another witness, Mr. Mumford, had been travelling close to the appellant's truck through some twelve intersections. He testified that on an earlier occasion, the appellant went through an intersection as the light turned red. He estimated the speed of the truck at the time of the collision was between 50 to 60 kilometres per hour.

Judgments Below

The County Court of Vancouver

The trial judge rejected the evidence of the appellant and accepted that of the other witnesses. In his view, the Crown was required to establish "that the accused did not exercise the care of a prudent driver having regard to all the circumstances that were in existence at the time that this collision occurred". He reviewed all the surrounding conditions and found that the appellant's actions represented a gross departure from the standard of care to be expected from a prudent driver. He therefore found the appellant guilty of dangerous driving causing death.

British Columbia Court of Appeal (1991), 1991 5752 (BC CA), 63 C.C.C. (3d) 214

Majority

Legg J.A., with Locke J.A. concurring, rejected the view that a conviction under s. 249 requires the Crown to prove that the appellant persisted in driving when he knew that, in all the circumstances, his driving was dangerous. He referred extensively to the decision in R. v. Mason (1990), 1990 1895 (BC CA), 60 C.C.C. (3d) 338 (B.C.C.A.). Legg J.A. found that proof of a marked departure from the norm was sufficient to sustain a conviction for dangerous driving without any express finding of advertent negligence. He held that there was ample evidence to support the finding of the trial judge that the appellant's actions represented a gross departure from the standard of care of a prudent driver. The appeal was therefore dismissed.

Dissent

Lambert J.A. reviewed the jurisprudence dealing with criminal negligence and its relationship to dangerous driving. He determined that the lower court should apply the test that was more favourable to the accused. He therefore concluded that the Crown must establish advertent or subjective negligence in order to obtain a conviction under s. 233 (now s. 249). He found that the trial judge had not turned his mind to the issue of whether the Crown had proved beyond a reasonable doubt the subjective element of the mens rea of dangerous driving. He therefore would have directed a new trial.

Analysis

The relevant portions of s. 233 read as follows:

233. (1) Every one commits an offence who operates

(a) a motor vehicle on a street, road, highway or other public place in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place;

(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and is liable to imprisonment for a term not exceeding fourteen years.

At the outset it must be admitted that the cases dealing with driving offences are not models of clarity. Professor Stuart in his book Canadian Criminal Law (2nd ed. 1987), at p. 202, states quite frankly that the law with regard to driving offences is a mess. He writes:

As a matter of theory the law of driving offences has long been in a mess. The offence of careless driving may require simple or gross negligence; the more serious offence of dangerous driving involves simple negligence although sometimes the courts talk about an "advertence" requirement; and the most serious offence of negligent driving required on one view, advertent recklessness and on another gross inadvertent negligence. The law has been so confused that it has almost certainly been ignored. There is a fairyland quality to the esoteric analysis involved. Statistics indicate that most prosecutors have been content to rely on the provincial careless driving offence.

Professor Peter Burns aptly described the search for the appropriate mens rea for dangerous driving as being as "elusive as the legendary Minotaur" (at p. 60 in Peter Burns, "An Aspect of Criminal Negligence or How the Minotaur Survived Theseus Who Became Lost in the Labyrinth" (1970), 48 Can. Bar Rev. 47).

Earlier Cases Dealing with this Section

In Mann v. The Queen, 1966 5 (SCC), [1966] S.C.R. 238, it was held that the provincial careless driving offences were constitutional. The complicating factor arising from that case is that this finding of constitutional validity was based upon a conclusion that the provincial offences did not duplicate the federal laws as the Criminal Code driving offence required more than "inadvertent negligence".

The majority in Binus v. The Queen, 1967 15 (SCC), [1967] S.C.R. 594, confirmed the ruling in Mann v. The Queen, supra, that dangerous driving required more than inadvertent negligence. However, there appears to be some contradictory aspects to the case since the majority also upheld the jury charge which was in these terms at p. 602: "if you find on the facts that the manner of driving was dangerous, in your opinion you may disregard the matter of intent". Later in Peda v. The Queen, 1969 22 (SCC), [1969] S.C.R. 905, the majority held that it was necessary to instruct the jury on the difference between advertent and inadvertent negligence when dealing with the offence of dangerous driving.

These cases unfortunately support the contention of academic writers that decisions relating to dangerous driving are somewhat confusing if not contradictory and provide little in the way of guidance. For their part, lower courts have increasingly tended to fix an objective standard for the offence. For example, in R. v. Beaudoin (1973), 1973 390 (ON CA), 12 C.C.C. (2d) 81, the Ontario Court of Appeal set forth an objective test for determining if the offence had been committed. At p. 85, the court stated:

To support a charge of dangerous driving the prosecution must prove by credible evidence beyond a reasonable doubt:

1. that the lives or safety of others were endangered by the defendant's driving, and

2. that such jeopardizing resulted from the driver's departure from the standard of care that a prudent driver would have exercised having regard to what actually were or might reasonably have been expected to be the condition, nature or use of the place where he was driving (including the amount of traffic thereon).

In R. v. Beaudoin, supra, the Court of Appeal went on to hold that while the onus of proof was on the Crown, an accused could offer an explanation of his or her conduct and thereby discharge the evidential onus. It was determined that if the accused does not offer an explanation, then simply to read the section to the jury would provide sufficient instruction. However, there would have to be further directions to the jury if an explanation was offered by the accused. This approach was followed in several Ontario cases. See: R. v. Lowe (1974), 1974 692 (ON CA), 21 C.C.C. (2d) 193 (Ont. C.A.), R. v. Mueller (1975), 1975 1385 (ON CA), 29 C.C.C. (2d) 243 (Ont. C.A.), R. v. Sharp (1984), 1984 3487 (ON CA), 12 C.C.C. (3d) 428 (Ont. C.A.). What then is required to establish the requisite mens rea for this offence?

The Constitutional Requirement of Mens Rea

The appellant contends that the prison sentence which may be imposed for a breach of s. 233 (now s. 249) makes it evident that an accused cannot be convicted without proof beyond a reasonable doubt of a subjective mental element of an intention to drive dangerously. Certainly every crime requires proof of an act or failure to act, coupled with an element of fault which is termed the mens rea. This Court has made it clear that s. 7 of the Canadian Charter of Rights and Freedoms prohibits the imposition of imprisonment in the absence of proof of that element of fault. See Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, and R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636.

Depending on the provisions of the particular section and the context in which it appears, the constitutional requirement of mens rea may be satisfied in different ways. The offence can require proof of a positive state of mind such as intent, recklessness or wilful blindness. Alternatively, the mens rea or element of fault can be satisfied by proof of negligence whereby the conduct of the accused is measured on the basis of an objective standard without establishing the subjective mental state of the particular accused. In the appropriate context, negligence can be an acceptable basis of liability which meets the fault requirement of s. 7 of the Charter. See R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154. Thus, the intent required for a particular offence may be either subjective or objective.

A truly subjective test seeks to determine what was actually in the mind of the particular accused at the moment the offence is alleged to have been committed. In his very useful text, Professor Stuart puts it in this way in Canadian Criminal Law (2nd ed.), at pp. 123-24 and at p. 125:

What is vital is that this accused given his personality, situation and circumstances, actually intended, knew or foresaw the consequence and/or circumstance as the case may be. Whether he "could", "ought" or "should" have foreseen or whether a reasonable person would have foreseen is not the relevant criterion of liability.

In trying to ascertain what was going on in the accused's mind, as the subjective approach demands, the trier of fact may draw reasonable inferences from the accused's actions or words at the time of his act or in the witness box. The accused may or may not be believed. To conclude that, considering all the evidence, the Crown has proved beyond a reasonable doubt that the accused "must" have thought in the penalized way is no departure from the subjective substantive standard. Resort to an objective substantive standard would only occur if the reasoning became that the accused "must have realized it if he had thought about it". [Emphasis in original.]

On the other hand, the test for negligence is an objective one requiring a marked departure from the standard of care of a reasonable person. There is no need to establish the intention of the particular accused. The question to be answered under the objective test concerns what the accused "should" have known. The potential harshness of the objective standard may be lessened by the consideration of certain personal factors as well as the consideration of a defence of mistake of fact. See McIntyre J. and Lamer J., as he then was, in R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392, and R. v. Waite, 1989 104 (SCC), [1989] 1 S.C.R. 1436). Nevertheless, there should be a clear distinction in the law between one who was aware (pure subjective intent) and one who should have taken care irrespective of awareness (pure objective intent).

What is the Mens Rea Required to Prove the Offence of Dangerous Driving?

The nature of driving offences suggests that an objective test, or more specifically a modified objective test, is particularly appropriate to apply to dangerous driving. I say that for a number of reasons.

(a) The Licensing Requirement

First, driving can only be undertaken by those who have a licence. The effect of the licensing requirement is to demonstrate that those who drive are mentally and physically capable of doing so. Moreover, it serves to confirm that those who drive are familiar with the standards of care which must be maintained by all drivers. There is a further aspect that must be taken into consideration in light of the licensing requirement for drivers. Licensed drivers choose to engage in the regulated activity of driving. They place themselves in a position of responsibility to other members of the public who use the roads.

As a result, it is unnecessary for a court to establish that the particular accused intended or was aware of the consequences of his or her driving. The minimum standard of physical and mental well-being coupled with the basic knowledge of the standard of care required of licensed drivers obviate that requirement. As a general rule, a consideration of the personal factors, so essential in determining subjective intent, is simply not necessary in light of the fixed standards that must be met by licensed drivers.

(b) The Automatic and Reflexive Nature of Driving

Second, the nature of driving itself is often so routine, so automatic that it is almost impossible to determine a particular state of mind of a driver at any given moment. Driving motor vehicles is something that is familiar to most adult Canadians. It cannot be denied that a great deal of driving is done with little conscious thought. It is an activity that is primarily reactive and not contemplative. It is every bit as routine and familiar as taking a shower or going to work. Often it is impossible for a driver to say what his or her specific intent was at any moment during a drive other than the desire to go from A to B.

It would be a denial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking of his manner of driving at the time of the accident.

(c) The Wording of Section 233 (now Section 249)

Third, the wording of the section itself which refers to the operation of a motor vehicle "in a manner that is dangerous to the public, having regard to all the circumstances" suggests that an objective standard is required. The "manner of driving" can only be compared to a standard of reasonable conduct. That standard can be readily judged and assessed by all who would be members of juries.

Thus, it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accused subjectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care. It is not overly difficult to determine when a driver has fallen markedly below the acceptable standard of care. There can be no doubt that the concept of negligence is well understood and readily recognized by most Canadians. Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code.

(d) Statistics

Fourth, the statistics which demonstrate that all too many tragic deaths and disabling injuries flow from the operation of motor vehicles indicate the need to control the conduct of drivers. The need is obvious and urgent. Section 233 (now s. 249) seeks to curb conduct which is exceedingly dangerous to the public. The statistics on car accidents in Canada indicate with chilling clarity the extent of the problem. The number of people killed and injured each year in traffic accidents is staggering. Data from Transport Canada shows that, in 1991, the number of deaths related to traffic accidents in Canada was 3,654. In 1990, there were 178,423 personal injury traffic accidents, 630,000 property damage accidents and 3,442 fatal accidents. These figures highlight the tragic social cost which can and does arise from the operation of motor vehicles. There is therefore a compelling need for effective legislation which strives to regulate the manner of driving vehicles and thereby lessen the carnage on our highways. It is not only appropriate but essential in the control of dangerous driving that an objective standard be applied.

In my view, to insist on a subjective mental element in connection with driving offences would be to deny reality. It cannot be forgotten that the operation of a motor vehicle is, as I have said so very often, automatic and with little conscious thought. It is simply inappropriate to apply a subjective test in determining whether an accused is guilty of dangerous driving.

(e) Modified Objective Test

Although an objective test must be applied to the offence of dangerous driving it will remain open to the accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused's conduct. The test must be applied with some measure of flexibility. That is to say the objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident.

There will be occasions when the manner of driving viewed objectively will clearly be dangerous yet the accused should not be convicted. Take for example a driver who, without prior warning, suffers a totally unexpected heart attack, epileptic seizure or detached retina. As a result of the sudden onset of a disease or physical disability the manner of driving would be dangerous yet those circumstances could provide a complete defence despite the objective demonstration of dangerous driving. Similarly, a driver who, in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly affects the driver in such a way that the manner of driving was dangerous to the public, could still establish a good defence to the charge although it had been objectively established. These examples, and there may well be others, serve to illustrate the aim and purpose of the modified objective test. It is to enable a court to take into account the sudden and unexpected onset of disease and similar human frailties as well as the objective demonstration of dangerous driving.

A modified objective test was aptly described by McIntyre J. in R. v. Tutton, supra, at p. 1413. Although he was dealing with criminal negligence, his words, at p. 1432, are apt in considering the dangerous driving section which is essentially concerned with negligent driving that constitutes a marked departure from the norm:

The application of an objective test under s. 202 of the Code, however, may not be made in a vacuum. Events occur within the framework of other events and actions and when deciding on the nature of the questioned conduct surrounding circumstances must be considered. The decision must be made on a consideration of the facts existing at the time and in relation to the accused's perception of those facts. Since the test is objective, the accused's perception of the facts is not to be considered for the purpose of assessing malice or intention on the accused's part but only to form a basis for a conclusion as to whether or not the accused's conduct, in view of his perception of those facts, was reasonable. . . . If an accused under s. 202 has an honest and reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the reasonableness of his conduct. For example, a welder, who is engaged to work in a confined space believing on the assurance of the owner of the premises that no combustible or explosive material is stored nearby, should be entitled to have his perception, as to the presence or absence of dangerous materials, before the jury on a charge of manslaughter when his welding torch causes an explosion and a consequent death.

In summary, the mens rea for the offence of dangerous driving should be assessed objectively but in the context of all the events surrounding the incident. That approach will satisfy the dictates both of common sense and fairness. As a general rule, personal factors need not be taken into account. This flows from the licensing requirement for driving which assures that all who drive have a reasonable standard of physical health and capability, mental health and a knowledge of the reasonable standard required of all licensed drivers.

In light of the licensing requirement and the nature of driving offences, a modified objective test satisfies the constitutional minimum fault requirement for s. 233 (now s. 249) of the Criminal Code and is eminently well-suited to that offence.

It follows then that a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place". In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation.

Next, if an explanation is offered by the accused, such as a sudden and unexpected onset of illness, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. If a jury is determining the facts, they may be instructed with regard to dangerous driving along the lines set out above. There is no necessity for a long or complex charge. Neither the section nor the offence requires it. Certainly the instructions should not be unnecessarily confused by any references to advertent or inadvertent negligence. The offence can be readily assessed by jurors who can arrive at a conclusion based on common sense and their own everyday experiences.

Application of These Principles to the Facts

Let us now consider whether the modified objective test was properly applied in this case. The trial judge carefully examined the circumstances of the accident. He took into account the busy downtown traffic, the weather conditions, and the mechanical conditions of the accused vehicle. He concluded, in my view very properly, that the appellant's manner of driving represented a gross departure from the standard of a reasonably prudent driver. No explanation was offered by the accused that could excuse his conduct. There is no reason for interfering with the trial judge's finding of fact and application of the law.

In the result the appeal must be dismissed.

Appeal dismissed.

Solicitors for the appellant: Giusti, Chamberlain & Ellan, Vancouver.

Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.

• Stevenson J. took no part in the judgment.