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Criminal - Dangerous Driving. R. v. Wolfe
In R. v. Wolfe (SCC, 2024) the Supreme Court of Canada allowed a criminal appeal, here where the issue was 'discretionary driving prohibitions' added onto sentencing for convictions for certain CCC offences. This case corrected statutory interpretation confusion that had arisen over the years regarding 'which' convictions this system applied to.
Here the court canvassed some legislative history regarding this issue, including current Bill C-46 driving amendments:[11] Over 30 years later, the government proposed Bill C-46 — a comprehensive revision to the Criminal Code’s driving-related provisions. The legislation proposed major changes (1) concerning the detection and prosecution of drug-impaired driving to coincide with the coming into force of the Cannabis Act, S.C. 2018, c. 16; and (2) authorizing mandatory roadside alcohol screening. These two proposals were largely the focus of the legislative debates.
[12] However, Bill C-46 also contained a complete overhaul of the Criminal Code’s driving provisions. All of the former driving-related offences were to be repealed and re-enacted under the new Part VIII.1 of the Criminal Code (“Offences Relating to Conveyances”). The Minister of Justice explained that this part of the bill’s purpose was to ensure a “clear, coherent structure” in an area that has “become too complex and difficult to understand” (House of Commons Debates, vol. 148, No. 181, 1st Sess., 42nd Parl., May 19, 2017, at p. 11459 (Hon. J. Wilson-Raybould)). Speaking about the impaired driving regime in particular, the Minister noted:This area of the criminal law perplexes even the most seasoned criminal professionals. It has developed in a piecemeal fashion since the first offence was enacted in 1921. It has never been comprehensively reformed, and according to a 1991 report by the former Law Reform Commission, its provisions are “virtually unreadable”.
This state of affairs cannot be permitted to continue, especially in the area of criminal law that is among the most litigated. Bill C-46 proposes to create a clear, simplified, and modernized legislative framework to ensure that the public can better understand the law and also ensure that the police can effectively enforce it.
(House of Commons Debates, vol. 148, No. 224, 1st Sess., 42nd Parl., October 27, 2017, at p. 14638 (Hon. J. Wilson-Raybould); see also Law Reform Commission of Canada, Report on Recodifying Criminal Procedure, vol. 1, Police Powers (1991), at p. 84; Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46), at p. 11.) [13] Bill C-46 was adopted by Parliament, and the new Part VIII.1 of the Criminal Code came into force on December 18, 2018. Various maximum and minimum penalties were increased by the legislation. For example, the maximum punishment for the indictable offence of dangerous operation causing death (contrary to s. 320.13(3)) was increased from 14 years’ imprisonment to life imprisonment — consistent with the maximum penalties available for impaired operation causing death (s. 320.14(3)) and criminal negligence causing death (s. 220). The offence of dangerous operation causing bodily harm (contrary to s. 320.13(2)) was transformed into a hybrid offence, and its maximum penalty, when prosecuted by indictment, was increased to 14 years’ imprisonment (from the previous 10-year maximum). This 14-year maximum is now equal to the potential punishment for impaired operation causing bodily harm (s. 320.14(2)) and exceeds that of criminal negligence causing bodily harm (s. 221).
[14] Bill C-46 also made changes to driving prohibition orders. The new s. 320.24 governs the availability of such orders. Offenders found guilty of impaired operation simpliciter (s. 320.14(1)) or failing to comply with a breath demand simpliciter (s. 320.15(1)) are subject to a mandatory prohibition order under s. 320.24(1). For other driving-related offences, a sentencing judge has the discretion to impose an order under s. 320.24(4), which reads:(4) If an offender is found guilty of an offence under section 320.13, subsection 320.14(2) or (3), 320.15(2) or (3) or under any of sections 320.16 to 320.18, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (5).
(4) Le tribunal qui inflige une peine au contrevenant déclaré coupable d’une infraction prévue à l’article 320.13, aux paragraphes 320.14(2) ou (3) ou 320.15(2) ou (3), ou à l’un des articles 320.16 à 320.18 peut rendre, en plus de toute autre peine applicable à cette infraction, une ordonnance lui interdisant de conduire le moyen de transport en cause durant la période établie conformément au paragraphe (5). Prior to Bill C-46, discretionary driving prohibitions were an available sentencing tool under s. 259(2):(2) If an offender is convicted or discharged under section 730 of an offence under section 220, 221, 236, 249, 249.1, 250, 251 or 252 or any of subsections 255(2) to (3.2) committed by means of a motor vehicle, a vessel, an aircraft or railway equipment, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel, an aircraft or railway equipment, as the case may be ....
(2) Lorsqu’un contrevenant est déclaré coupable ou absous sous le régime de l’article 730 d’une infraction prévue aux articles 220, 221, 236, 249, 249.1, 250, 251 ou 252 ou à l’un des paragraphes 255(2) à (3.2) commise au moyen d’un véhicule à moteur, d’un bateau, d’un aéronef ou de matériel ferroviaire, le tribunal qui lui inflige une peine peut, en plus de toute autre peine applicable en l’espèce, rendre une ordonnance lui interdisant de conduire un véhicule à moteur dans une rue, sur un chemin ou une grande route ou dans tout autre lieu public, un bateau, un aéronef ou du matériel ferroviaire .... Parliament repealed the former s. 259(2) when it enacted Bill C-46 (s. 14).
[15] It is apparent by comparing the versions of the provision that Bill C-46 made two noteworthy changes to discretionary driving prohibition orders. First, the new provision enumerates fewer offences that are eligible for the punishment. Sentencing judges may impose a discretionary driving prohibition for the driving-specific offences of dangerous operation (s. 320.13, formerly s. 249), impaired operation causing bodily harm or death (s. 320.14(2) and (3), formerly s. 255(2), (2.1), (3) and (3.1)), failure/refusal to comply with a demand while knowing or being reckless to whether they were involved in an accident causing bodily harm or death (s. 320.15(2) and (3), formerly s. 255(2.2) and (3.2)), failure to stop after accident (s. 320.16, formerly s. 252), flight (s. 320.17, formerly s. 249.1), and operation while prohibited (s. 320.18, formerly s. 259(4)). Removed from the list and no longer enumerated are the general offences of criminal negligence causing death (s. 220), criminal negligence causing bodily harm (s. 221), and manslaughter (s. 236), along with the now-repealed offences of failure to keep watch on person towed (former s. 250) and unseaworthy vessel/unsafe aircraft (former s. 251).
[16] Second, the description of the event that triggers the provision’s operation has been modified. In the English version of the provision, a driving prohibition could previously be imposed when the offender was “convicted or discharged under section 730” of an enumerated offence. Bill C-46 has changed the trigger to “found guilty”. However, Bill C-46 brought about a more minor change to the French version of the text. The former s. 259(2) permitted driving prohibitions when the offender was “déclaré coupable ou absous sous le régime de l’article 730” of an enumerated offence. Following Bill C-46, a prohibition is available when the offender has been “déclaré coupable”. . R. v. Wolfe
In R. v. Wolfe (SCC, 2024) the Supreme Court of Canada allowed a criminal appeal, here where the issue was 'discretionary driving prohibitions' added onto sentencing for convictions for certain CCC offences. This case corrected statutory interpretation confusion that had arisen over the years regarding 'which' convictions this system applied to:III. Issue on Appeal
[26] The sole issue on appeal to this Court is whether s. 320.24(4) of the Criminal Code permits the imposition of a driving prohibition upon conviction for the offence of criminal negligence causing death or bodily harm committed by means of a motor vehicle.
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(a) The Criminal Negligence Offences Are Not Enumerated in Section 320.24(4)
[35] Section 320.24(4) expressly enumerates 12 offences for which a discretionary driving prohibition is available and authorized. On its face, it establishes a closed list. In interpreting s. 320.24(4) to determine whether a driving prohibition can be imposed where there has been a conviction for a criminal negligence offence, it is very significant that neither s. 220 (criminal negligence causing death) nor s. 221 (criminal negligence causing bodily harm) are expressly included on the list of offences that can attract that punishment. In my view, the maxim expressio unius est exclusio alterius (“to express one thing is to exclude another”) is of interpretive significance here. Sullivan explains that an “implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly” (§ 8.09[1]; see also Canada v. Loblaw Financial Holdings Inc., 2021 SCC 51, at para. 59; Cadieux (Litigation Guardian of) v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, at para. 114). Where express reference is expected, the court can infer that the failure to mention something is the result of a deliberate decision to exclude it.
[36] A driving prohibition is a punishment (see R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 38). ....
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(f) Conclusion on the Text of Section 320.24(4)
[60] In my view, the text of s. 320.24(4) as a whole is clear and does not reveal any ambiguity. Criminal negligence offences are no longer listed as offences that can attract a discretionary driving prohibition. Moreover, Parliament’s use of the phrase “found guilty” strongly points to the need for an express judicial determination of guilt on an offence stipulated in the charging document or included in one that is (in situations where the charged offence is not proved). The Crown fails to persuade me that a finding of guilt on an included offence — sufficient to attract punishment under s. 320.24(4) — necessarily flows from conviction on the charged offence. This a very weak basis on which to argue that the text implies the inclusion of something that was repealed and not carried forward in a fundamentally altered scheme for driving offences.
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[78] I agree with the Court of Appeal that Bill C-46 furthered objectives of “coherence, efficiency, simplification, and modernization of the Criminal Code provisions relating to driving offences” (para. 57; see also Boily, at para. 11). With this legislation, Parliament repealed the Criminal Code’s driving-related provisions and re-enacted them in a new, self-contained Part VIII.1 (“Offences Relating to Conveyances”). This new part contains the declaration of principles, driving offences, punishments, other sentencing provisions, investigative provisions, and evidentiary rules. Several offences were transformed from straight indictable to hybrid offences, affording greater flexibility to prosecutors in less serious cases (ss. 320.13(2), 320.14(2), 320.15(2) and 320.16(2)). Hansard records reveal that parliamentarians were attuned to this change (House of Commons Debates, May 19, 2017, at pp. 11491-92 (P. Damoff); Debates of the Senate, vol. 150, No. 156, 1st Sess., 42nd Parl., November 7, 2017, at p. 4103 (Hon. G. Boniface)).
[79] Bill C-46 also raised certain maximum penalties, which the Court of Appeal noted was another key theme of the legislation (para. 57). In my view, while these changes no doubt promote the statutory goal of “deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug” (s. 320.12(b)), they mainly serve to further Bill C-46’s aims of simplification, coherence, and efficiency. The new maximum penalty of 14 years’ imprisonment for dangerous driving causing bodily harm (s. 320.13(2)), when prosecuted by indictment, aligns with the punishment provided for the other driving-related offences in situations where bodily harm ensues (ss. 320.14(2), 320.15(2) and 320.16(2)). The same goes for dangerous driving causing death (s. 320.13(3)), whose maximum penalty was increased to life imprisonment — like other driving-related offences resulting in death. Again, parliamentarians recognized that Bill C-46 brought about consistency to the penalty scheme (House of Commons Debates, May 19, 2017, at p. 11492 (P. Damoff); Debates of the Senate, November 7, 2017, at p. 4103 (Hon. G. Boniface)).
[80] It is significant that the increased penalties expressly enacted by Bill C-46 for the dangerous operation offences are greater than or equal to those available for the criminal negligence offences. The maximum penalty for dangerous operation causing death (s. 320.13(3)) is now equal to criminal negligence causing death (s. 220): life imprisonment, the highest prison term available in the Criminal Code. The maximum penalty of 14 years for dangerous operation causing bodily harm (s. 320.13(2)) now exceeds the 10-year maximum available for criminal negligence causing bodily harm (s. 221).
[81] In my view, these changes further Parliament’s objectives of developing a simplified, coherent, and efficient driving offence scheme under a single part of the Criminal Code. They signal that dangerous driving is best addressed by resorting to the dangerous operation offences under s. 320.13, which have been made more versatile (with respect to hybridization) and consistent with other driving offences resulting in similar harm (with respect to penalties). As one parliamentarian noted during the debates: “With the increase of the dangerous driving causing death maximum penalty, there would no longer be a need for the prosecution to pursue separate offences in order to allow for a maximum penalty of life imprisonment” (House of Commons Debates, May 19, 2017, at p. 11492 (P. Damoff) (emphasis added)).
[82] I note that practitioners and courts have recognized the prosecutorial advantages following Bill C-46 of resorting to dangerous operation as opposed to criminal negligence. In their book Impaired Driving and Other Criminal Code Driving Offences, Jokinen and Keen write that they “predict that criminal negligence will fall into disuse in driving cases, as it is a harder offence to prove and other available offences, such as dangerous driving, now bear harsher penalties” (p. 531). They list several advantages, from the Crown’s perspective, of proceeding under the dangerous operation offences: the increased maximum penalties, the hybrid nature of the dangerous operation causing bodily harm offence, and the minimum fines and jail sentences that do not apply to criminal negligence (p. 157). In Boily, Fairburn A.C.J.O. made a similar observation related to the equal maximum penalties of life imprisonment for dangerous operation causing death and criminal negligence causing death (para. 73).
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(4) Conclusion on Interpretation of Section 320.24(4)
[88] A driving prohibition can be imposed under s. 320.24(4) when the offender has been found guilty of an offence enumerated under that subsection. This requires an express judicial pronouncement on an offence stipulated in the charging document or included in one that is (where the charged offence is not proved). This interpretation is supported by the plain and clear text of s. 320.24(4), the surrounding statutory context and purpose, and criminal law principles — which Parliament should not be taken to have departed from lightly. . R. v. Wolfe
In R. v. Wolfe (SCC, 2024) the Supreme Court of Canada allowed a criminal appeal, here where the issue was 'discretionary driving prohibitions' added onto sentencing for convictions for certain CCC offences. This case corrected statutory interpretation confusion that had arisen over the years regarding 'which' convictions this system applied to.
Here the court summarizes the problem and it's solution:[1] The Court is called upon to decide between competing interpretations of s. 320.24(4) of the Criminal Code, R.S.C. 1985, c. C-46. This provision, which came into force in 2018 following the adoption of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, permits sentencing judges to impose a discretionary driving prohibition where an offender has been “found guilty” of one of the provision’s enumerated offences, an express list of driving-specific offences which includes dangerous operation of a conveyance contrary to s. 320.13. The former s. 259(2) provided for the ability to impose a prohibition where an offender had been “convicted or discharged” of a broader list of enumerated offences. Three general offences that apply beyond driving cases are no longer included in the list of offences that can attract a driving prohibition under the new s. 320.24(4): criminal negligence causing death (s. 220), criminal negligence causing bodily harm (s. 221), and manslaughter (s. 236).
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[5] I conclude that the driving prohibitions imposed on the appellant were unlawful. Criminal negligence offences are no longer listed under s. 320.24(4) as offences that can attract a driving prohibition. The Crown’s proposed interpretation depends on the proposition that, following the enactment of Bill C-46, Parliament’s use of the term “found guilty” permits punishment to be imposed by implication and indirectly, rather than expressly and directly. This interpretation is implausible; it conflicts with the text of s. 320.24(4), sits in tension with the surrounding statutory context and purpose, and fails to fully accord with criminal law principles.
[6] With Bill C-46, Parliament endeavoured to create a clear, coherent, and self-contained scheme for driving offences. Driving-specific offences were reorganized into a new part of the Criminal Code, they were made more versatile through hybridization, and their maximum penalties were increased. It is neither absurd nor inconsistent with legislative purpose to exclude criminal negligence and manslaughter — general offences that are not limited to driving cases — from the ambit of s. 320.24(4). Nor has it been shown that Parliament made a mistake in drafting the provision by somehow inadvertently omitting the previously enumerated offences from the new section’s express list of captured offences. Rather, Parliament has broadly signalled through Bill C-46 that resorting to specific driving-related offences is preferable to general criminal negligence offences in driving cases. The changes to the availability of discretionary driving prohibitions reflect a logical and deliberate choice to limit driving-specific punishments to driving-specific offences. This is a choice Parliament was free to make. . R. v. Qureshi
In R. v. Qureshi (Ont CA, 2024) the Court of Appeal considered the offence of dangerous driving [CCC 249], in particular it's mens rea:[10] The trial judge correctly instructed herself on the elements of dangerous driving.
[11] She noted that, as set out in s. 249 of the Criminal Code, (i) the actus reus of the offence requires driving in a manner that is “dangerous to the public, having regard to all of the circumstances” and that (ii) the mens rea or fault element requires a marked departure from the standard of care that a reasonable person would observe in the circumstances. The onus is on the Crown to establish beyond a reasonable doubt “how and in what way” the accused’s driving went beyond carelessness and reached the level of a marked departure from the standard of care, in light of all of the evidence.
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THE TEST TO ESTABLISH THE NECESSARY INTENTION FOR DANGEROUS DRIVING
[26] The mens rea of dangerous driving is proven where the Crown can establish beyond a reasonable doubt, on the basis of all the evidence, including the accused’s state of mind, that his conduct amounted to a marked departure from the standard of care a reasonable person would observe in the circumstances: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43. Dangerous driving should be sufficiently egregious in all of the circumstances to warrant criminalization, compared to other less serious forms of bad driving, such as careless driving: Beatty, at paras. 36-43 and 47-49.
[27] The issues in deciding whether the mens rea for dangerous driving has been established are:1. Whether a reasonable person would have foreseen the risk and taken steps to avoid it; and
2. Whether Mr. Qureshi's failure to do so constitutes a marked departure from the standard of care. [28] The following cases discuss how to address these issues:[29] In R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 28 and 30, Cromwell J. for the majority underscored the importance of the fault element for dangerous driving offences:While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment.
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The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness. [Italics in original; underlining added.] [30] He then set out, at paras. 36 and 40, a two-step process to determine whether the fault element has been established:It is helpful to approach the issue by asking two questions. The first is whether, in light of all 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.
[T]he trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. …The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity. [Italics in original; underlining added.] [31] In R. v. Willock (2006), 2006 CanLII 20679 (ON CA), 40 C.R. (6th) 151 (Ont. C.A.), at para. 31, Doherty J.A. wrote that,conduct occurring in a two to three second interval can amount to a marked departure from the standard of a reasonable person and demonstrate a wanton or reckless disregard for the life or safety of others. However, conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum. [Emphasis added.] [32] More recently, in R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 22, Martin J. for the majority affirmed that a momentary lapse in attention and judgment will not usually raise criminal liability unless the underlying conduct, when assessed in totality against the reasonable person standard, is a marked departure from the norm. Martin J. underscored, at paras. 26-27, the importance of considering the totality of the circumstances when undertaking the mens rea analysis:A full analysis in this case would have considered the duration of the speeding, as well as the accused’s control of the car (he switched lanes and then accelerated), the magnitude of speeding (almost three times the speed limit), the location of speeding (approaching a major intersection), and the accused’s awareness of at least two vehicles at the intersection as he approached it.
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The duration and nature of the accused’s conduct are only some of the factors to be considered with all of the circumstances in the mens rea analysis. They are not factors that can be taken out of context. … Courts must be careful to avoid fettering the analysis in Roy by adopting hard-and-fast rules regarding when isolated factors will or will not be marked departures. Although case law may be helpful in providing examples of what has previously been determined to be a marked departure, courts must still analyze the accused’s actions relative to the reasonable person in the specific circumstances at issue. [Emphasis added.] ....
[34] Where a trial judge fails to apply the correct test to determine whether there was a marked departure, this is an error of law for which the standard of review is correctness. In Chung, at para. 16, Martin J. wrote that:It would not be an error of law if the trial judge simply applied the test in Roy, considered all the circumstances, and came to an unreasonable conclusion regarding whether the accused’s conduct displayed a marked departure from the norm. However, it would be an error of law if the trial judge failed to compare the accused’s actions to what a reasonable person would have foreseen and done in all of the circumstances. This type of error is not a factual matter of weighing evidence, but rather it goes to the legal definition of the mens rea analysis for dangerous driving. [Emphasis added] [35] A trial judge is therefore required to provide “an explanation for ‘how and in what way’ the nature of the [accused’s] driving showed the necessary marked departure from the standard of care that a reasonable person would show in the same circumstances”: R. v. Laverdure, 2018 ONCA 614, 47 C.R. (7th) 290, at para. 26.
[36] While a trial judge’s finding as to the accused’s manner of driving may, in some cases, be sufficiently egregious to permit the finding of the requisite fault element without additional analysis, the manner in which the accused’s conduct is a departure from the standard must be evident. Failure to fully analyze the evidence as it relates to the fault element constitutes an error of law: Laverdure, at paras. 27-28.
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[39] As noted above, conduct within a few seconds of an incident which is otherwise proper, is more often suggestive of civil negligence than dangerous driving: Willock, at para. 31. The reason momentary lapses of inattention will not usually give rise to criminal liability is because they often result from the reflexive nature of driving or carelessness, “conduct that, when assessed in totality against the reasonable person standard, only represent[s] a mere departure from the norm”: Chung, at para. 22. As such, a momentary lapse in attention and judgment will not usually raise criminal liability unless the underlying conduct, when assessed in totality against the reasonable person standard, is a marked departure from the norm.
[40] As the respondent points out, it is not always necessary however, to quantify the period of inattention where the duration was longer than required to avoid the impact.
[41] In R. v. Tabanao, 2020 ONSC 3501, 65 M.V.R. (7th) 30, at paras. 559-60, 578-9, and 591, aff’d 2024 ONCA 85, for example, the trial judge found that while the exact period of inattention was unknown, it lasted at least 7 seconds, the duration was longer than the time needed to stop before impact, and there was a pattern of inattention beginning approximately 55 seconds before impact such that there was no momentary lapse of attention. In this case however, the trial judge did not assess whether the period of inattention was longer than the time required to avoid the impact and unlike Tabanao, there was no evidence of a prior pattern of inattention or otherwise irresponsible driving.
[42] In any case, before concluding that conduct that occurs in seconds constitutes a marked departure from the norm, the trial judge must consider the accused’s behaviour and, in view of the totality of the circumstances, how markedly his behaviour differs from that of a reasonable person in the same position: Chung, at paras. 22-24.
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[44] I disagree with Mr. Qureshi’s submission that in order to find an accused guilty of dangerous driving, there must be some element of active misconduct. Omissions can result in dangerous driving, but again, the seriousness of the transgression must be considered in light of all the circumstances, and it must constitute a “marked departure” from the norm: Chung, at para. 27.
[45] Unlike this case, the cases proffered by the respondent and the transgressions described therein, all involve active misconduct. Unlike the accused in Willock, Mr. Qureshi did not take reckless steps of jerking his steering wheel from side to side on a highway swerving across the median and causing an accident. Unlike Chung, he did not drive nearly three times the speed limit, pass in the curb lane and accelerate toward an occupied intersection. And unlike Tabanao, Mr. Qureshi did not reach down into his vehicle taking his eyes off the road while driving just before the accident nor did he have a prior history of driving irresponsibly. It would seem that in most cases of dangerous driving, the court has found the accused guilty where the transgression involved active misconduct not a momentary failure to pay attention: see e.g., R. v. Yogeswaran, 2021 ONSC 1242, 80 M.V.R. (7th) 39 (where the accident took place in a matter of seconds, it involved excessive speed and unsafe passing, resulting in a conviction); R. v. Markos, 2017 ONSC 90, 5 MV.R. (7th) 88, aff’d 2019 ONCA 80, 37 M.V.R. (7th) 1 (where driver was performing “whip-around passes”).
[46] The trial judge could not, and did not, make a finding that the period of inattention was longer than Mr. Qureshi would have needed to stop. She appears to have reasoned that because Mr. Qureshi failed to take action despite warnings ahead, this was not a momentary lapse. This was evidence of inattention but not evidence of duration that would allow for an inference that this was not a momentary lapse and constituted a marked departure from the standard of care which a reasonable person who is a professional driver, would have exercised in the same circumstances.
[47] For these reasons, I would conclude that the trial judge erred in law by failing to apply the relevant principles to conclude that this was not a momentary lapse.
(iii) Did the Trial Judge Fail to Differentiate Between the Civil Negligence Standard and a Marked Departure From the Standard of Care?
[48] Mr. Qureshi argues that the trial judge also erred in law by conflating the standards for criminal and civil negligence and thereby failed to explain how and why Mr. Qureshi’s conduct was a marked departure from the standard of care.
[49] The trial judge recognized that she was required to explain how and in what way Mr. Qureshi’s inattention and failure went beyond carelessness and reached the level of a marked departure from the reasonable standard of care: Roy, at para. 30. She went on to say that Mr. Qureshi could have taken his foot off cruise control, removed his foot from the accelerator, or stepped on the brake.
[50] However, none of these statements explain how or why the failure to be alert and vigilant and react to warnings on its own, after a sudden act by a third party, where the driver was otherwise driving responsibly, constitutes a marked departure from the standard of care, warranting a criminal sentence.
[51] Rather, her conclusion was that this was a marked departure because, as a professional driver, “a reasonable driver who is driving a heavy truck that can be extremely deadly to others on the highway must drive with the standard of care expected of him” (emphasis added) and “drivers on Highway 401, especially tractor trailer drivers, are required to be alert and vigilant. They must interpret the information that they see and process what they see”.
[52] These grounds merely reiterate the standard of care expected of a reasonable, professional truck driver to be alert and vigilant and act when a hazard arises. This is the civil standard of negligence not the criminal test for dangerous driving which results in a criminal conviction.
[53] What she should have done was to identify how and in what way the accused’s driving was a marked departure from the standard of care: Roy, at para. 30; R. v. Reynolds, 2013 ONCA 433, 309 O.A.C. 14, at paras. 18-19. For example, in the dangerous driving analysis in Tabanao, at paras. 555-72, the trial judge pointed to evidence of Mr. Tabanao reaching down and taking his attention off the road while driving at a high speed and throttling, demonstrating a pattern of inattention leading up to the accident, and that he was thereby aware of the risk created by his driving.
[54] The failure to fully analyze the evidence as it relates to the fault component of the offence constitutes an error in law. I would therefore order a new trial.
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[60] The trial judge must consider plausible theories or other reasonable possibilities “rooted in logic and experience applied to the evidence or absence of evidence”: R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 60. The theories must be reasonable when assessed logically and in light of human experience and common sense: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 36-38, 50 and 56; Stennett, at paras. 59-63 and 69. Findings of fact and factual inferences drawn by a trial judge are entitled to deference.
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CONCLUSION
[66] In some cases, the manner of driving as found by a trial judge will be sufficiently egregious that it is evident that the requisite fault element is met without any additional analysis of the evidence of the fault or intent: Laverdure, at para. 27. The trial judge’s analysis of the evidence is not sufficient to find the requisite fault.
[67] Although the trial judge correctly considered whether a reasonable person would have foreseen the risk and taken steps to avoid the collision: (i) she failed to state how and why, in the totality of the circumstances, there was no momentary lapse, and (ii) she conflated the civil and criminal negligence standards and failed to explain how and why Mr. Qureshi’s conduct constituted not just a breach of the standard of care but a marked departure from the norm. The failure to fully analyze the evidence respecting the fault component of the offence constitutes an error in law.
[68] I would therefore order a new trial.
[69] However, as the evidence could support a finding of the requisite mens rea for dangerous driving, I cannot conclude that the verdict was otherwise unreasonable.
[70] Given that I would order a new trial, I need not address the appeal of sentence.
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