The offence of dangerous driving is carefully analysed in R v Roy, 2012 SCC 26 (1 June 2012), where the appellant had been convicted of dangerous driving causing death. He had pulled out from a stop sign into the path of an oncoming vehicle. There was thickening fog and visibility was poor.
Cromwell J, for the Court, observed [1]:
"Dangerous driving causing death is a serious criminal offence punishable by up to 14 years in prison. Like all criminal offences, it consists of two components: prohibited conduct — operating a motor vehicle in a dangerous manner resulting in death — and a required degree of fault — a marked departure from the standard of care that a reasonable person would observe in all the circumstances. The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence."
On the reach of the criminal law, he continued:
"[2] Defining and applying this fault element is important, but also challenging, given the inherently dangerous nature of driving. Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible. Yet, as the Court put in R. v. Beatty, 2008 SCC 5 (CanLII), 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 34, "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." Giving careful attention to the fault element of the offence is essential if we are to avoid making criminals out of the merely careless."
On 25 February 2008 I discussed Beatty and its various judicial analyses of the ingredients of dangerous driving. A minority approach in that case was to use mens rea to assist in determining whether there was an actus reus, which indeed seems conventional (actus non facit reum nisi mens sit rea, or words to that effect), but it ignores the first requirement which is an act that causes harm. A level of bad conduct must exist before it can come within the reach of the criminal law. Otherwise, outwardly normal driving would be criminally dangerous if the driver's state of mind was a marked departure from the standard of care expected of drivers. In Beatty all judges agreed that the acquittal should be restored, but their reasoning was divergent. McLachlin CJ, Binnie and LeBel JJ held that a momentary crossing of the centre line was not an actus reus of dangerous driving. Charron, Bastarache, Deschamps, Abella and Rothstein JJ held – correctly I think - that it was. All judges agreed there was no mens rea as there was only a momentary lapse of attention.So the Court's attention in Roy was on the sensitive issue of actus reus. It is not, said the Court, the consequences (collision and death) that determine whether there was an actus reus, but the quality of the driving itself [34]:
"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 accused's manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, "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" (emphasis added). 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 (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions."
Personally I would take the consequences of the driving as relevant to whether there was an actus reus: what was the harm? Not just pulling out from a stop sign. Hitting another vehicle was relevant too. Be that as it may, the Court continued by reasoning that if there is an actus reus, attention turns to whether there is a fault element or mens rea:
"[36] The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances."
The "marked departure" requirement serves to separate criminal from civil responsibility. Momentary lapses of attention can occur in good drivers and in appropriate circumstances may give rise to civil liability or to convictions for careless driving [37]. As established in Beatty and cited by the Court in Roy [38]:
"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 irrelevant unless it goes to the accused's incapacity to appreciate or to avoid the risk (para. 40). Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86)."
And now for the tricky point, contentious in Beatty: when can an inference of mens rea be drawn from the actus reus? The Court gave this answer [42]:
"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 (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). 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."
The trouble with this approach is that it is perfectly normal for the law to hold a person responsible for an intended act that causes harm, and intention is usually inferred from the conscious performance of an act. There is no such thing as driving that is merely "simply dangerous" because by definition dangerous driving is driving that is a marked departure from the standard of a reasonable driver. This imagined "simply dangerous" driving should not be immune from the usual approach to determining intention and responsibility, and "on its own" it should support an inference that it was intended. The Court acknowledged [42, above] that "simply dangerous" driving is an actus reus. It is important to remember we are only talking about the drawing of an inference of mens rea, and in the circumstances of a particular case there may be facts giving rise to competing inferences or facts that strengthen the inference of mens rea.The Court in Roy was concerned to avoid extending the reach of the criminal law beyond what was appropriate in view of the law's purposes. It appropriately set a high level for the required harm (the actus reus) but then needlessly constrained the process of inferring the existence of the mental requirements for criminal responsibility. In Roy the trial judge had inferred mens rea from the fact that the driving was objectively dangerous, and the Supreme Court held that that was wrong [44]. Given the thickening fog, the stop sign, the poor visibility and the oncoming traffic, the Court concluded [51]:
" ... While the appellant's act of driving out from the stop sign was apparently a voluntary act, there was no evidence to support the conclusion that the appellant was in fact aware of the risk he was creating in doing so and deliberately chose to run that risk ... ."
This seems to mean that the evidence suggested that the appellant had been well aware of the risk but had simply, and excusably, misjudged the position and speed of the oncoming vehicle. He knew there was a risk but he did not correctly measure the level of risk. The Court's assessment of the facts was [55]:
" ... on any realistic scenario consistent with the evidence, the time between visibility and impact would be only a few seconds. In my view, the appellant's decision to pull onto the highway is consistent with simple misjudgment of speed and distance in difficult conditions and poor visibility. The record here discloses a single and momentary error in judgment with tragic consequences. It does not support a reasonable inference that the appellant 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."
Yes indeed, the defendant was not guilty because of absence of mens rea. I think there was an actus reus, just as there really was one in Beatty: pulling out from a stop sign and hitting an oncoming vehicle is a dangerous act, just as crossing the centre line while driving and hitting a car on the other side of the road is a dangerous act, but in each case the absence of mens rea supported acquittal. There was not the degree of inattention required in the circumstances to support a finding of sufficient fault for attribution of criminal responsibility.