ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 575/11
DATE: 20140321
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Murray Hamilton
Defendant
Cameron Peters, for the Crown
Jeffrey Hershberg and Rafiq Kodsy, for the Defendant
HEARD: March 12, 13, 14 and 17, 2014
MACDOUGALL, J.
Oral judgment
Overview
[1] The Defendant is charged with dangerous driving causing death. The main issue in the case is whether the Defendant’s manner of driving, that is failing to stop at a stop sign and continuing to drive into the intersection, crashing into the victim’s vehicle that was travelling through the intersection, constitutes dangerous driving.
[2] The causation issue is not contested, in that the Defendant has agreed that the truck the Defendant was driving crashed into the Saturn vehicle and caused the death of the victim.
Summary of the Evidence
[3] On March 11, 2011, around 10:00 am, the Defendant was driving his 2007 GMC Sierra pick-up truck taking his young son who was riding with him in the front passenger seat for swimming in Lindsay. The swimming place is about 10-15 minutes driving time from the collision site.
[4] The Defendant resides in the Sunderland area and had been travelling on Farmstead Rd. for at least 8 km in an eastbound direction heading to an intersection with Eldon Rd. which runs north and south. There is a stop sign for vehicles heading easterly at the intersection of Farmstead Rd. and Eldon Rd. Farmstead Rd. leading up to the intersection is straight and the stop sign can be seen for at least 800 to 1000 m. for vehicles travelling easterly on Farmstead Rd.
[5] The Defendant failed to bring his truck to a stop at the stop sign and proceeded into the intersection colliding with the victim’s vehicle that was travelling northbound. The collision resulted in the victim’s death.
[6] The collision occurred shortly after 10 AM. At that time, the road was bare and damp. There were no visibility problems. There is no issue raised about the condition of the road or the weather interfering with the driving.
[7] Farmstead Rd. is an asphalt road without a marked centre line. There are no shoulders and off the asphalt, there are ditches on either side. Eldon Rd. in the area of the intersection with Farmstead Rd. has gravel shoulders, a marked centerline and is a well-travelled road with cars constantly on that road. At the intersection, Eldon Rd. is slightly elevated from Farmstead Rd.
[8] Police investigators arrived on the scene shortly after the collision and made observations of the scene, the location of the vehicles and the damage to the vehicles along with noting tire marks and scrape marks on the road surface. The police took many photographs that were entered as Exhibits. The police also obtained data on the Defendant’s truck’s airbag control module, the ACM.
[9] Ontario Provincial Police Sgt. Bradley Muir, was qualified as a collision Reconstructionist with expertise in the Bosch Crash Data Retrieval System used to upload the data stored on the truck’s ACM.
[10] The ACM in the Defendant’s truck is located under the carpeting on the floor under the driver’s seat. The ACM for the Defendant’s truck electronically recorded parameters with respect to accelerator pedal position, vehicle speed, engine speed, percentage throttle, brake switch circuit state, whether seatbelts were in use and changes in the velocity of the vehicle. The parameters are recorded in half-second increments for 2 ½ seconds prior to airbag deployment which would have occurred at the point of impact.
[11] The information stored on the Defendant’s truck’s ACM indicated that the speed of the Defendant’s vehicle at impact was 35 km/h. At 2.5 seconds prior to impact, the truck’s brake lights were on but came off ½ second later. The accelerator was then engaged from 2 seconds prior to impact up until impact. The Defendant’s truck’s speed increased gradually from 33 km an hour at 2.5 seconds prior to impact to 30 km an hour at the -2 and -1.5 seconds prior to impact, then increased slightly at the -1/2 second point to 32 km an hour. At the ½ second point, the Defendant’s truck’s speed had increased to 35 km an hour.
[12] Sgt. Muir gave his opinion that the Defendant did not come to a stop at the intersection. The Defendant’s vehicle had been traveling faster than 32 km an hour prior to the 2.5 second pre-collision time. The Defendant’s truck had slowed down at some distance back from the intersection and then moderately accelerated into the intersection.
[13] There was no evidence of any heavy braking or any skid marks or any evidence of evasive action that was taken by the Defendant leading up to the collision.
[14] Sgt. Muir gave the opinion that based on this data, the Defendant would have taken his foot off the brake and started accelerating approximately 9.7 m. from the stop sign which acceleration point was 24.3 m. from the area of impact with the victim’s vehicle.
The Defendant’s Testimony
Direct Examination
[15] The Defendant resides in the Sunderland area and on March 11, 2011 he was driving his nine-year-old son to Lindsay for some swimming practice. The scheduled swim time was set for 10:30 AM and the Defendant left his house between 9:45 and 9:50 AM so they would not be rushed. He said he allowed himself a 10 to 15 minute buffer zone so his son could get a locker and get changed for the swimming.
[16] He said en route to Lindsay he was not drinking or eating while driving nor was the radio on or any DVD system on in his truck. His son was sitting in the front passenger seat playing his Game Boy.
[17] When the Defendant turned onto Farmstead Rd., travelling eastbound, he said he was driving at approximately 80 to 90 km an hour. He saw a couple of people walking their dogs in the eastbound lane and he immediately slowed down probably to between 30 to 40 km an hour and took a wide turn around them as he wanted to be careful.
[18] He continued on driving between 80 and 90 km an hour. He did not have cruise control on. He said he was fairly familiar with that road as he had driven it a few times before. As he approached the intersection with Eldon Rd. he knew Eldon Rd. was coming up and he saw the stop sign. He recalled starting to slow his vehicle down by applying the brakes sufficiently to be able to stop at the stop sign.
[19] He agreed that the stop sign was visible that day for several hundred meters back from the intersection. He also agreed that he could easily have stopped at the stop sign.
[20] He said his truck was going quite slowly as he was going to stop at the upcoming stop sign when suddenly his son shouted at him, “Dad, look, Dad, look”. He said he immediately turned to the right as his son was shouting out, “Dad, look Dad look”. He said his immediate response was to turn to the right and look over at his son. His son had his Game Boy in his hand and had a smile on his face as he had apparently accomplished something new. He said he then turned his head back to orient himself forward and then the crash occurred.
[21] He said when he was looking at his son, he was focused on him trying to see what his son was drawing his attention to and as he was turning his head back, that’s when he felt the jolt of the impact.
[22] He said his truck went into a very rapid spin. After the truck came to a stop, both he and his son immediately got out of the vehicle and shortly after that he observed the Saturn vehicle in the ditch and placed a 911 call.
[23] The Defendant said it was his intention to stop at the stop sign at Eldon Rd. as he always does that- that is his standard way of driving. He said he did not see the victim’s Saturn vehicle prior to the accident. He said normally he would stop at the stop sign and look both ways and if the intersection was clear, he would proceed through.
[24] He said after the collision, his mind was in distress as he realized there was an injured person in the Saturn. All he wanted to do was to try and get help for her as quickly as possible.
[25] Shortly after the first responders attended at the scene, he was advised that it would be a good idea for he and his son to go to the hospital to get checked out and they left by ambulance.
Cross-examination
[26] The Defendant stated that he is a long time police officer with the York Regional Police and has experience in investigating motor vehicle accidents. He also has spent a considerable part of his police career driving a police cruiser.
[27] On the day of the collision, he recalled a police officer coming to the Lindsay Memorial Hospital while he was there between 12:00 and 12:30 pm. The police officer told him that he would be coming to the Defendant’s house later that afternoon to take a statement about what happened but never did show up to take a statement from him.
[28] When asked why the data from the ACM showed that around the 2 second mark prior to the collision, his foot came off the brake and onto the accelerator, the Defendant said he couldn’t remember doing that. The last thing he remembered was his foot was on the brake preparing to stop and didn’t remember his foot going to the accelerator. He said at that time he was focusing on his son. He said he didn’t remember making a conscious decision to accelerate.
[29] He said when his son shouted, “Dad, look Dad look”, he said he was “startled”. He didn’t know what his son was shouting about and his attention was drawn to his son. He agreed that he wasn’t thinking that there was anything “untoward happening” when he was startled by his son. When he looked at his son, his son was smiling and holding his Game Boy up to his father.
[30] He said he had “no time” to tell his son that he “would look later because he was driving”.
[31] He agreed that his son on other occasions would yell out. He said on this occasion his son “caught him off guard and then everything unfolded very quickly.”
[32] He said he thought he was very close to the intersection when he looked towards his son.
[33] He acknowledged that as a police officer, he has had experience in high intensity situations in his police work.
[34] When asked whether in approaching this intersection if he had looked to see if there was traffic coming, he said he looked “peripherally” but he didn’t remember specifically looking to see if there was traffic coming from that direction on Eldon Rd. He said he normally would look on both sides of an intersection. He could not remember seeing anything. He said that as he hadn’t stopped at that point, he hadn’t carefully looked.
[35] He said he would never intentionally drive in front of another vehicle or pull out in front of another vehicle at an intersection, particularly with his son in the passenger seat.
[36] He said he would not have consciously taken his foot off the brake and put it on the accelerator at that point close to the intersection.
[37] He acknowledged that the ACM recorded what his truck was doing at the relevant time.
[38] When he was asked why he had never told anyone what had caused him to not stop at the stop sign, he answered that no one had ever asked him about what happened.
[39] He couldn’t recall speaking to Mr. Farr who stopped at the collision scene or saying to him that he had “screwed up”
[40] Crown counsel suggested to him that he “lied to the 911 ambulance dispatcher” when he reported that he had stopped at the stop sign, he said, “no he didn’t lie”, as he thought he had stopped.
Re-Examination
[41] In re-examination Defendant said that his son does shout out quite frequently and would say those words, “look Dad, look”.
[42] He acknowledged that his vehicle did not stop at the stop sign. He could not explain why he didn’t continue to leave his foot on the brake pedal. He said the last thing he recalled before the collision was applying the brakes.
Discussion of the Defendant’s Testimony
[43] There are several aspects of the Defendant’s testimony that I find troubling.
[44] Is it plausible that an experienced police officer travelling with his young son approaching an intersection where he intends to comply with the stop sign and is in the process of braking in order to stop, is so startled by his son saying “Dad look, Dad look” where his son has a habit of shouting out quite frequently with those same words, that the Defendant would take his eyes off the road to look at his son, even though he agreed that that he was not concerned that there is something “untoward happening”, and immediately sees that his son is smiling and holding up his Game Boy, yet that event causes the Defendant, to unconsciously remove his foot from braking and begin to accelerate into the intersection? I find this scenario highly implausible.
[45] In reviewing what was occurring that so “startled” the Defendant from focusing on continuing to apply the brakes to stop at the stop sign as was his intention, the fact that his son was anxious to show the Defendant something and the Defendant turned his head to look at his son, was immediately obvious to him that was nothing of any significance happening. How could that “distraction” have caused the Defendant to lose total focus to such an extent that he would unconsciously stop braking and begin to accelerate when he was only several car lengths from the intersection?
[46] The Defendant knew his son was playing the Game Boy since they left their home approximately 15 minutes earlier. He also knew that his son would shout out quite frequently using those words “look Dad, look Dad”. Is it reasonable to think that on this occasion in those circumstances this shouting out by his son caused such an extreme lack of focus on the Defendant in approaching the intersection and braking with the intention to stop that he transferred unconsciously the braking action to an acceleration action? I think not. Even though it is acknowledged that this all took place in a very few seconds, the Defendant agreed that as soon as he looked at his son he realized it was not urgent as his son was smiling and holding up his Game Boy.
[47] Granted, the Defendant is not specifically stating that, given the evidence from the data on the truck’s ACM, his explanation is that moving his foot off the brake and onto the accelerator in those circumstances was an unconscious action on his part because his focus was momentarily on his son, as he can’t remember, but, this is the inference suggested. As stated in the oft quoted statement in Faryna v. Chorny:
The real test of the truth of the story of a witness is whether it is in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.[^1]
[48] I note that in the Defendant’s direct examination in describing to his legal counsel what was happening when he turned his eyes away from the road to the look at his son, he did not say that his son’s shouting out, “startled him”. However, in cross-examination the Defendant appears to be expanding on his characterization of what was happening to him when his son called out to him. The Defendant expanded his testimony from describing the event where his attention was “distracted” to being, “suddenly startled”.
[49] It would appear that the Defendant was tailoring his testimony. This “modification” of how he described what was happening to him, further weakens the credibility of the Defendant’s description of what was going on in the truck that resulted in him accelerating into the intersection without looking for oncoming traffic.
[50] On the other hand, the Defendant may sincerely believe that he must have been “highly distracted” which caused the attended degree of lack of focus on his driving that he did what he did unconsciously.
[51] In my view, the more likely scenario was that as the Defendant was approaching the intersection and slowing down; he was able to take a quick look for oncoming traffic on Eldon Rd. and seeing none, decided to not come to a complete stop but proceeded through the intersection by moderately accelerating. Unfortunately, he failed to see the victim’s vehicle that was approaching the intersection.
[52] I also find the defendant’s explanation for telling the 911 ambulance dispatcher that he had stopped, also troubling. In answer to the dispatcher’s question, “Okay were you, were you travelling more than 50 mph or 50 km/hour, I mean?” His answer was, “No I, I uh, I stopped at the stop sign and then I, I pulled out and I didn’t see the car, I just uh…” The Defendant said this was not a lie.
[53] The fact that, even after the collision that occurred in the intersection, he still thought he had stopped at the stop sign makes no sense. He could not have thought he had in fact stopped and looked and didn’t see the Saturn, then pulled out.
[54] Even though anyone in that situation would have been in a great deal of stress, it was very obvious that the collision had taken place in the intersection because he had failed to stop before entering the intersection.
[55] As well, as noted, the Defendant is a long-time trained police officer with experience responding to high stress situations.
[56] After the collision, the Defendant clearly knew that he had not stopped at the stop sign; otherwise there would not have been a collision in the intersection. I find the Defendant was intending to mislead the 911 dispatcher and attempting to minimize his culpability for causing the collision.
Summary of the Law of Dangerous Driving
[57] In 2008, the Supreme Court of Canada in the case of Beatty[^2], undertook an in-depth analysis of the elements of the offence of dangerous driving. The Supreme Court unanimously upheld the trial judge's finding that Mr. Beatty's momentary lapse of attention did not constitute a marked departure from the standard of care of a prudent driver even though it had tragic consequences.
[58] In that case, the accused was charged with three counts of dangerous operation of a motor vehicle causing death under s. 249(4) of the Criminal Code. The accused’s truck had suddenly crossed the solid centre line into the path of an oncoming motor vehicle, killing all three occupants. Witnesses had observed the accused’s vehicle being driven in a proper manner prior to the accident, and that the accident happened instantaneously. There was no evidence of speeding or vehicle failure and intoxicants were not a factor. After the accident, the accused stated that he was not sure what happened but that he must have fallen asleep and collided with the other vehicle.
[59] The court in Beatty emphasized that in a charge of dangerous driving the Crown is required to prove the two components: i) prohibited conduct, that is, operating a motor vehicle in a dangerous manner, (referred to as the actus reus), and ii) the required degree of fault – that is a “marked departure” from the standard of care that a reasonable person would observe in all the circumstances, (referred to as the mens rea).
[60] The court found that that Beatty’s failure to confine his vehicle to his own lane of traffic was dangerous to other users of the highway and the “prohibited conduct” (the actus reus) was proven. However, the fault requirement that is, driving that was a “marked departure” from the standard of care that a reasonable person would observe in all the circumstances (the mens rea) was not made out. The was no evidence of any deliberate intention to create a danger suggestive of a marked departure from the norm. Rather, the evidence suggested that the dangerous conduct was due to a momentary lapse of attention. Viewed from an objective basis, this momentary act of Beatty’s negligence was insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver.
Discussion of the alleged prohibited conduct (Actus Reus)
[61] The actus reus for dangerous driving is as set out in s. 249(1) of the Criminal Code, that is, driving "in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place".
[62] In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the Defendant’s manner of driving, not the consequences, such as an accident in which he or she was involved. The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the “manner of driving".
[63] A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value. Accidents caused by these inherent risks materializing should generally not result in criminal convictions.[^3] Conduct that constitutes dangerous operation of a motor vehicle as defined under s. 249 of the Criminal Code will necessarily fall below the standard expected of a reasonably prudent driver. The converse however is not necessarily true - not all negligent driving will constitute dangerous operation of a motor vehicle.
Findings on the prohibited conduct issue (the actus reus)
[64] In my view, I am satisfied beyond a reasonable doubt that the Crown has proven this component beyond a reasonable doubt. A driver at that time of day that fails to stop and drives through this intersection, when viewed objectively, is driving dangerously by creating a high risk to users of Eldon Rd.
[65] Drivers travelling on Eldon Rd. approaching Farmstead Rd. have the “through road” and are entitled to expect that drivers approaching Eldon on Farmstead will obey the stop sign and stop for oncoming traffic. Otherwise, drivers on Eldon Rd., given their reasonable expectation by being on the “through road”, would be facing a high risk in approaching this intersection that requires the approaching traffic to come to a stop.
[66] An inference that can be reasonably drawn is that the Defendant did intend to continue through the intersection (a “rolling stop”) if the way was clear. That would be the explanation for the evidence from the ACM as to why the Defendant took his foot off the brake pedal and applied acceleration and continued with his foot on the accelerator up to the collision. The Defendant looked and thought there was no oncoming vehicle but obviously failed to see the victim’s vehicle approaching the intersection when it was there to be seen.
[67] The Defendant’s manner of driving would constitute a high risk to users of Eldon Road in these circumstances, given the speed of the Defendant’s truck with only a “quick glance” for oncoming traffic. The prohibited conduct has been proven.
[68] Even considering the Defendant’s testimony as to his distraction and loss of focus on his driving, for the reasons he gave, in being that close to this intersection, I find that in those circumstances when viewing this conduct objectively, this loss of focus to his driving would also prove the prohibited conduct component.
[69] A reasonable driver approaching the stop sign, in these circumstances described by the Defendant, would have continued to concentrate and complete his stop of the vehicle, look to see if there was oncoming traffic, before proceeding into the intersection, and would not have been as distracted and lose focus as appears the Defendant was.
Discussion of the fault element (Mens Rea)
The Law
[70] In 2012, the Supreme Court of Canada, in the case of Roy[^4], again revisited a case of dangerous driving causing death. In that case, Mr. Roy pulled his motor home out from a stop sign onto a highway and into the path of an oncoming tractor-trailer. In the collision that resulted, Roy's passenger was killed. At trial, Roy was convicted of dangerous driving causing death and his appeal to the Court of Appeal was dismissed. The trial judge considered that, in order to convict Roy, he had to be satisfied beyond a reasonable doubt that Roy was driving in a manner that was dangerous to the public. No explanation was provided for Roy's conduct due in great part to his loss of memory. The Court of Appeal held that the trial judge erred in his legal analysis and convicted Mr. Roy of dangerous driving causing death.
[71] On further appeal to the Supreme Court, that Court stated that Mr. Roy had pulled out from a stop sign at a difficult intersection and in poor visibility when it was not safe to do so. The driver of the oncoming tractor-trailer thought that Roy’s vehicle had stopped before proceeding onto the highway. On any realistic scenario, the time between visibility and impact would be only a few seconds. In the court’s view, Mr. Roy’s decision to pull onto the highway was consistent with simple misjudgment of speed and distance in difficult conditions and poor visibility. The record disclosed a single and momentary error in judgment with tragic consequences. It did not support a reasonable inference that Mr. Roy displayed a marked departure from the standard of care expected of a reasonable person in the same circumstances so as to justify conviction for the serious criminal offence of dangerous driving causing death.
[72] The Supreme Court in Roy reminded us again that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a “mere departure”, which may support civil liability, and the “marked departure” required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.
Two Questions to Ask
[73] In Roy, the Court recommended answering two questions when considering the fault issue in dangerous driving cases:
(1) In light of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible? If yes, then,
(2) Was the Defendant’s failure to foresee the risk and take steps to avoid it, a “marked departure” from the standard of care expected of a reasonable person in the Defendant’s circumstances?
Question #1
[74] In light of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible?
[75] Dealing firstly with the inference to be drawn from the Defendant’s testimony, if believed, of being “startled” by his son. In the context of this case, the question is: would a reasonable person in the circumstances of the Defendant, that is a person proceeding on Farmstead Rd. and in no particular hurry, driving normally and up to that point driving attentively, approaching a stop sign that is visible for some distance with the intention of coming to a stop at the stop sign, and because the person is intending to stop at the stop sign and has not looked for oncoming traffic on the “through road”, have foreseen the risk of momentarily turning his head away and lose focus on his driving?
[76] A reasonable person in those circumstances, in my view, if startled as the vehicle is braking and approaching and the intersection with the intention of stopping would not have turned away and stopped paying attention to operating a motor vehicle in a careful manner.
[77] I will also consider the other scenario previously described which can, in my view, be reasonably drawn from the evidence, that the Defendant approaching this intersection on a road he was familiar with and given the layout of the intersection could make some observation of whether or not there was oncoming traffic on the “through road”, and failed to see the victim’s oncoming vehicle when it was there to be seen, decided that because it would not be unsafe to continue through the intersection without stopping, took his foot off the brake pedal and accelerated moderately through the intersection
[78] In that scenario, Question 1 becomes: Would a reasonable person in the circumstances of the Defendant, that is, a person proceeding on Farmstead Rd. and in no particular hurry, driving normally and up to that point driving attentively, approaching a stop sign that is visible for some distance with the initial intention of coming to a stop at the stop sign, quickly check for oncoming vehicles on the “through road”, Eldon Rd. and not seeing any, decide to proceed through this intersection without stopping?
[79] Again, my answer would be, no. A reasonable driver in those circumstances would not have failed to foresee the risk in only taking a “quick glance” at best and would not have proceeded through this intersection without stopping.
Question #2
[80] Was the Defendant’s failure to foresee the risk and takes steps to avoid it, a “marked departure” from the standard of care expected of a reasonable person in the Defendant’s circumstances?
The Law
[81] Again quoting from the Supreme Court in Roy, starting at para. 37:
Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in Beatty, put it this way: "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy" (para. 34). The Chief Justice expressed a similar view: "Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving" (para. 71).
The marked departure from the standard expected of a reasonable person in the same circumstances -- a modified objective standard -- is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused's circumstances, evidence of the accused's personal attributes (such as age, experience and education) is [generally] irrelevant…[^5]
[82] Again in Roy, the Supreme Court discussed proof of the "marked departure" fault element as follows:
Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused's actual state of mind (para. 43).
[T]he question is whether 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.
Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (paragraph references omitted). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.[^6]
Case References
[83] Counsel have referred me to a number of cases involving dangerous driving cases either causing death or bodily harm. I will briefly reference several of them since the Beatty decision in 2008.
R. v. Garnham (2012), from the Manitoba Queen’s Bench
[84] Garnham was charged with dangerous driving causing death. Garnham was travelling on a gravel road, approaching an intersection at a busy highway. He checked for traffic but did not see the victim's vehicle. He “rolled through” the stop sign and collided with the victim as he proceeded onto the highway.
[85] The court held that the Crown had established the actus reus of the offence. Pulling into traffic on a busy highway without coming to a full stop was dangerous to the public. However, the Crown did not prove the mens rea. A marked departure from the standard of care expected of a reasonable person required more than a negligent decision. Garnham was acquitted.
[86] The Court stated:
However I must come to the same conclusion as the court in Roy as to the mens rea. As in Roy, there is no evidence pointing to poor driving prior to the pulling out into the path of the victim's vehicle. I must then focus on the momentary decision by the accused to pull onto the highway when unsafe to do so. I note that the accused looked for traffic but did not see the victim's vehicle. Whether that was due to the sun, the curve in the road or the obstruction of his view due to the metal between his front and side windows (the so-called "blind spot" as the accused terms it) is unknown. A marked departure requires more than this negligent decision.[^7]
R. v. Davidson (2012), from the Manitoba Queen’s Bench
During the early morning hours, Davidson was delivering newspapers in his minivan. He was accompanied by two friends, the victim and the victim's sister. As Davidson approached an intersection with a flashing red light, he braked. However, he did not come to a complete stop. He proceeded through the intersection and was struck by a garbage truck that had entered the intersection on a flashing yellow light. Neither driver appeared to see the other, as neither took evasive action or sounded his horn. At the time of the accident the garbage truck was speeding As a result of the accident, Davidson and both passengers were knocked out. One passenger suffered serious injuries. The Crown took the position that Davidson’s actions constituted a marked departure from what a reasonably prudent driver would have done in the circumstances as Davidson, who was rushing to finish his deliveries, ignored the traffic control light and failed to stop. Davidson took the position that his driving was not dangerous and that the accident occurred as a result of a momentary lapse of attention combined with the garbage truck's speeding. Davidson had no recollection of what occurred
[87] Davidson was acquitted. The court held that his driving was careless and negligent as he failed to yield the right-of-way for the oncoming garbage truck, failed to come to a complete stop and failed to take steps to avoid the accident. While his momentary lapse of attention and entering the intersection in the absence of a complete stop constituted driving that was below the standard of care of a reasonably prudent driver, it did not constitute a marked departure from the standard of care that a reasonable person would have exercised in the same circumstances.[^8]
R. v. Sherstobitoff (2013), from the Saskatchewan Provincial Court
[88] The driver reached down to pick up a lit cigarette and crashed into a parked car after failing to stop at a T-intersection. There was no evidence that the accused was driving inappropriately or dangerously prior to going through the stop sign. There was no evidence on which to conclude that he was speeding. His attention was momentarily diverted. The court held that the driver did not have the mens rea to commit the offence of dangerous driving. Driving through a stop sign was a simple act of carelessness, not a marked departure from the norm.[^9]
R. v. Robertson (2013), from the British Columbia Court of Appeal
[89] Robertson was stopped at a stop sign and was facing a four-lane through street. When Robertson crossed the four-lane street, a motorcycle collided with Robertson’s truck, killing the motorcyclist. Robertson never saw the motorcyclist prior to the accident.
[90] The court held that Robertson’s conduct, while inadequate, did not rise to the level along the continuum of constituting a criminal offence of dangerous driving. Conduct that occurred in such a brief timeframe in the course of driving, which was otherwise proper in all respects, was more suggestive of the civil rather than the criminal end of the negligence continuum.
[91] In that case, the court found that it was evident that Robertson failed to see what was there to be seen, namely the approaching motorcyclist. While the decision to cross at that place and time disclosed a judgmental lapse, the question was whether such conduct rises to the level of fault requisite to support a verdict of guilty of dangerous driving.
[92] Robertson’s driving was unexceptional prior to the occurrence of this tragic incident. The question in this case was: should the heavy sanctions and stigma that follow from a criminal offence be visited upon this appellant for what could be fairly characterized as a momentary lack of attention? The court said answered no and subsequently acquitted Robertson.[^10]
Version 1 – inferences from Defendant’s Testimony
[93] There is no question that the Defendant could see the stop sign. He knew the stop sign was there and the evidence from the ACM data along with the testimony of Sgt. Muir the accident constructionist confirms that the Defendant was slowing down and had applied his brakes coming towards the intersection. The Defendant’s truck’s brakes were on 2.5 seconds prior to the collision when the Defendant’s truck had slowed down to 30 km/hour.
[94] I have found the Defendant’s version of being so distracted by his young son in the front passenger seat to have resulted in the Defendant failing to stop at the stop sign and accelerating into the intersection to be implausible. I find that on the evidence before me, that a reasonable inference that I can draw is, that the Defendant in slowing down as he approached the intersection, took a quick look to see if there was oncoming traffic and decided to proceed through the intersection by mildly accelerating his vehicle. The Defendant unfortunately failed to see the victim’s vehicle that was there to be seen approaching on the “through road” travelling at highway speeds in a northerly direction resulting in the fatal crash.
[95] Up until the 2.5 second part of the collision, the Defendant’s driving was quite proper. There was no evidence of speed or aggressive driving. His testimony was that he earlier slowed down and gave the people walking on Farmstead Rd. a wide berth. This was confirmed by the evidence of Mr. Farr, who personally observed this.
[96] I do not find that the Defendant had seen the oncoming vehicle and was attempting to get through the intersection ahead of it, particularly with his son in the passenger seat most exposed to the oncoming vehicle.
[97] As the Chief Justice stated in Beatty:
Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for conviction for dangerous driving.
[98] When considering all of the circumstances, I am not satisfied that this conduct amounts to a “marked departure” from the standard of care expected of a reasonable person in the Defendant circumstances.
[99] On the basis of the inference to the drawn on the evidence, particularly the evidence from the Defendant’s truck’s ACM and of Sgt. Muir, I would find the Defendant not guilty of dangerous driving causing death.
[100] If I am wrong in rejecting the Defendant’s testimony of how his son “startled” him to such a degree to cause him to totally lose focus in his driving to the extent that he would unconsciously, in the process of breaking to stop at the upcoming intersection facing a stop sign, that his foot would come off the brake pedal and go on to the accelerator, I will also conduct a “fault analysis” on that scenario as well. Although I do not accept the Defendant’s evidence of his distraction, I cannot say that his testimony does not leave me with a reasonable doubt.
[101] Chief Justice McLaughlin in Beatty, under the subheading “The Problem of Momentary Lapse of Attention”, stated at para. 69 and following:
In my view, momentary lapse of attention without more cannot establish the actus reus or mens rea of the offense of dangerous driving.
And at para. 70:
It follows that if the only evidence against the accused is evidence of momentary lapse of attention, the offence of dangerous driving is not established. This, in my view, is as it should be. The heavy sanctions and stigma that follow from a criminal offense should not be visited upon a person for a momentary lapse of attention. Provincial regulatory offenses appropriately and adequately deal with this sort of conduct.
[102] In the Defendant’s version of what he said occurred, could that Defendant’s conduct constitute a “marked departure” or is it “a departure”, that is negligent driving on the civil end of the continuum rather than on the penal end of the continuum?
[103] Although it is highly unlikely that the Defendant’s son in those circumstances would have so distracted the Defendant and startled him to such an extent that his focus would be completely lost and he would have unconsciously begun to accelerate, I cannot find that that scenario, although improbable, was not impossible. In those circumstances, I would again agree that this conduct cannot be considered to be a “marked departure” from the standard of care expected of a reasonable person in the Defendant’s circumstances
[104] I find, therefore, that in considering the inferences to be drawn from the Defendant’s version of what caused him to proceed through the stop sign and crashing into the victim’s car, that would not constitute a “marked departure” for dangerous driving.
[105] In conclusion, therefore, I find the Defendant not guilty as charged.
Mr. Justice B. MacDougall
[^1]: See: Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.)
[^2]: R. v. Beatty, 2008 SCC 5, [2008] S.C.J. No. 5
[^3]: See: Beatty, supra paras. 31 and 34
[^4]: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60
[^5]: R. v. Roy, supra, para 37-38
[^6]: R. v. Roy, supra, para. 39, 40 and 41
[^7]: R. v. Garnham, [2012] M.J. No. 292; at para. 26
[^8]: R. v. Davidson, [2012] M.J. No. 280
[^9]: R. v. Sherstobitoff, [2013] S.J. No. 417
[^10]: R. v. Robertson, [2013] B.C.J. No. 1486