Identifying dangerous driving

You might think from my discussion of R v Hayes, blogged 15 February 2008, that analysing the actus reus and mens rea of an offence is quite easy. In R v Beatty [2008] SCC 5 (22 February 2008) the Supreme Court of Canada unintentionally demonstrated just how difficult it can be.

At issue here was the meaning of “dangerous” operation of a motor vehicle. The Court split into separate judgments 5-3-1, and each discussed the actus reus and the mens rea requirements.

This was a case where a driver who had otherwise been driving unexceptionally suddenly crossed the centre line into the path of an oncoming vehicle, resulting in the deaths of all its three occupants. The question was whether a momentary lapse of attention could constitute dangerous driving.

The Court unanimously allowed the appeal and restored the appellant’s acquittal. The reasoning was not unanimous.

As to actus reus, five Judges held that this was established. Charron J delivered the judgment of herself, Bastarache, Deschamps, Abella and Rothstein JJ, saying (para 43):

“…it may assist to restate the summary of the test in terms of both the actus reus and the mens rea of the offence. I respectfully disagree with the Chief Justice that the test for the actus reus is defined in terms of a marked departure from the normal manner of driving (para. 67). The actus reus must be defined, rather, by the words of the enactment. Of course, conduct that is found to depart markedly from the norm remains necessary to make out the offence because nothing less will support the conclusion that the accused acted with sufficient blameworthiness, in other words with the requisite mens rea, to warrant conviction. In addition, it may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused’s manner of driving, evidence about the accused’s actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea. I would therefore restate the test reproduced above as follows:

(a) The Actus Reus
The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of 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”.

(b) The Mens Rea
The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.”

This approach makes the question of the departure from the normal standard of driving relevant to mens rea, and Charron J concluded that although there was an actus reus, there was no mens rea because momentary negligence was insufficient to be a marked departure from the standard of care of a prudent driver.

McLachlin CJ delivered the judgment of herself, Binnie and LeBel JJ, and summarised their position at para 67:

“I therefore conclude that the correct statement of the law is as follows:
1. The actus reus requires a marked departure from the normal manner of driving.
2. The mens rea is generally inferred from the marked departure in the nature of driving. Based on the finding of a marked departure, it is inferred that the accused lacked the requisite mental state of care of a reasonable person.
3. While generally the mens rea is inferred from the act constituting a marked departure committed by the accused, the evidence in a particular case may negate or cast a reasonable doubt on this inference.”

Further, momentary lapse of attention could, without more, establish neither actus reus nor mens rea (para 69).

Accordingly, on this approach there was no actus reus or mens rea, but in particular there was no actus reus as there was no larger pattern of impugned driving.

In the third judgment, Fish J agreed with Charron J about the actus reus being defined according to its statutory context (para 84), and also agreed that there was no mens rea in the circumstances of this case, as the appellant had not failed to meet the objective standard of a reasonable person in the circumstances (para 87).

The difference in this case was over the actus reus: six judges held that it must be determined according to its statutory context, and that here an actus reus was proved, because crossing the centre line was dangerous. Three judges held that the actus reus was not proved because a marked departure from the normal standard of driving was necessary and this was not established by an instance of crossing the centre line in the context of an otherwise unobjectionable pattern of driving (para 66):

“…The actus reus is the act and the mens rea, or guilty mind, the intention to commit that act. If the mens rea of the offence requires a failure to take reasonable care which is inferred from the conduct of driving in a manner that represents a marked departure from the norm, then the actus reus must be the act of driving in a manner that represents a marked departure from the norm.”

This is the critical point of difference between the judges: is the actus reus to be defined as a result of the requirements of the mens rea? Para 66 begs the question in its minor premiss “which is inferred from the conduct of driving in a manner that represents a marked departure from the norm”.

It is not unusual for crimes to involve acts that are apparently innocuous but which are rendered culpable because of the state of mind with which they are done. Attempts are paradigm examples, but there are many others. On the minority view in Beatty, would driving while texting be dangerous, if there was no accident? Should this depend on how normal it is to drive while texting?

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: