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Criminal - Dangerous Driving (2). R. v. Serkissoon
In R. v. Serkissoon (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown criminal appeal, this brought against acquittals for "impaired driving counts on a directed verdict application" and for "dangerous driving counts after a judge-alone trial."
Here the court considers the mens rea for 'dangerous driving', here while assessing the adequacy of reasons for decision:[75] I am mindful that it is not the function of this court to parse the reasons of the trial judge in search of error. However, I am satisfied that the Crown has identified a significant legal error in the trial judge’s analysis that is dispositive of this ground of appeal.
[76] Specifically, the trial judge erred in his application of the test for mens rea by not considering all the relevant evidence. The trial judge put undue focus on whether the other driver was distracted, rather than analyzing whether a reasonable person would foresee the danger to the public posed by the respondent’s conduct.
[77] Relying on the other driver’s role in the accident as a basis for determining what a reasonable person would do was an error. As explained by Paciocco J.A. in R. v. Romano, 2017 ONCA 837, 41 C.R. (7th) 305, at paras. 68-71:.... [T]he focus is on whether the manner of driving constitutes a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.
....
Judging whether driving was dangerous by exploring whether the accused is at fault for an accident that occurred obscures the proper focus on the manner of driving. [78] Instead of evaluating the manner of the respondent’s driving and the degree of departure from the norm, the trial judge erred by examining the circumstances of the collision and the other driver’s role in it, to the exclusion of other potential risks posed by the driver’s conduct.
[79] The issue was not whether the collision with the driver turning left was foreseeable and avoidable. Rather, the issue was whether the respondent’s manner of driving created foreseeable and avoidable risks to the public, including risks that would arise if people or other cars were on the roadway: Romano, at para. 78.
....
[84] As Martin J. explained in Chung, in order to evaluate the mens rea for dangerous driving, a trial judge must conduct an objective assessment comparing the accused’s conduct to the conduct of a reasonable person in their circumstances, with reference to all relevant evidence. She went on to explain, at para. 24:At some point in the mens rea analysis, the trial judge must work with the facts as found and consider whether, in the totality of the circumstances, a reasonable person would have foreseen the risk and taken the same actions as the accused. Only where there has been an active engagement with the full picture of what occurred can the trial judge determine whether the accused’s conduct was a marked departure from the conduct of a reasonable and prudent driver. [Emphasis added.] [85] In sum, I am persuaded by the Crown’s submissions that the trial judge’s decision to acquit the respondent on the dangerous driving counts was tainted by his focus on the other driver’s conduct and his failure to consider all the relevant evidence. This was significant legal error. Therefore, the respondent’s acquittals in relation to the dangerous driving counts should be set aside and remitted for a new trial.
[86] At the new trial, it will be for the trial judge to decide whether, on the correct analysis and considering all the relevant evidence, the respondent should be convicted or acquitted of these counts. . R. v. Refaeh
In R. v. Refaeh (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions for "dangerous driving causing bodily harm and failing to remain at the scene of an accident where bodily harm was caused".
The court considered causation, here in a dangerous driving (street racing) context:[23] Third, the trial judge’s instructions on causation were correct and taken from R. v. Kippax, 2011 ONCA 766, 286 O.A.C. 144, at para. 28, leave to appeal refused, [2012] S.C.C.A. No. 92. The appellant’s dangerous driving supported an inference that he intended the outcome or foresaw the risk and persisted in the face of the risk. His alleged subjective change of heart is of no moment. Absent an intervening act, which is not present here, when two motorists engage in street racing, both are considered in law to have caused injury to an innocent third party who is harmed because of their racing: R. v. Williams, 2020 ONCA 30, 55 M.V.R. (7th) 179, at paras. 15-20. Again, notably, defence counsel took no issue with this instruction. . R. v. Kerr
In R. v. Kerr (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeals, here brought against convictions for "dangerous driving causing death and five counts of dangerous driving causing bodily harm".
Here the court considers the appropriate jury charge for dangerous driving:[2] The appellant argues that, in her charge to the jury in the dangerous driving trial, the trial judge failed to distinguish between the actus reus and the mens rea of the offences of dangerous driving causing death and dangerous driving causing bodily harm, giving rise to the risk that the jury would conflate these two elements.
[3] We disagree.
[4] The charge generally followed the model instruction in Watt’s Manual of Criminal Jury Instructions, 2024 ed. (Toronto: Thomson Reuters, 2024), at pp. 767-769 (Final 320.13-C). At the outset of her instructions on the dangerous driving offences, the trial judge instructed the jury on how it should decide whether the appellant drove in a manner that was dangerous to the public:To decide whether Mr. Kerr operated the motor vehicle in a manner that was dangerous to the public, you must consider all the circumstances including, but not limited to, evidence such as:. the nature, condition and use of the place where the driving occurred;
. the amount of other traffic, both vehicles and pedestrians, actually there at the time; and
. the amount of other traffic, both vehicles and pedestrians, that might reasonably be expected to be there at the time. [5] This instruction focuses on the actus reus element of the offence.
[6] Following this instruction, the trial judge elaborated on the fault element, that is, whether the appellant’s driving constituted a marked departure from the standard of care expected of a reasonable person in the appellant’s circumstances:If you are satisfied that a reasonable person would have foreseen the risk of driving the way Mr. Kerr did, and taken steps to avoid or mitigate the risk, ask yourselves whether Mr. Kerr’s failure to foresee the risk posed by his driving, and take steps to avoid or mitigate the risk, was a marked departure from the standard of care expected of a reasonable person in Mr. Kerr’s circumstances. [7] This instruction, which reprises a passage in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 36, focuses on the mens rea element of the offence. The remaining instructions elaborated on how the jury should determine whether the appellant’s driving was a marked departure and reviewed the evidence relevant to this issue.
[8] It was clear from the instructions that the jury had to determine both whether the appellant’s manner of driving was objectively dangerous and whether it was a marked departure from what a reasonable, prudent driver would do in the same circumstances. This is particularly so when the instructions are considered in conjunction with the parties’ closing arguments.
[9] Read as a whole, the instructions equipped the jury to decide the case: R. v. Bruzzese, 2023 ONCA 300, 167 O.R. (3d) 81, at para. 12, citing R. v. Hassanzada, 2016 ONCA 284, 130 O.R. (3d) 81, at para. 105. There was no risk that the jury would convict the appellant without determining that he was driving in an objectively dangerous way. There was likewise no danger that the jury would infer that the appellant was criminally liable solely because he hit another vehicle and skidded into a group of pedestrians, killing one and seriously injuring five others. The trial judge cautioned the jury that it should focus on the manner in which the appellant operated the motor vehicle, not who caused the collision or its consequences.
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