[jasonturbo]

It's quite clear that the accident caused death, the question then becomes "was the driving dangerous?"

Criminal Code of Canada (Dangerous Driving)

249 (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is 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.


The Offence of Dangerous Driving Causing Death



[59] The Supreme Court of Canada in R. v. Beatty, supra, restated the test in R. v. Hundal, supra, for dangerous driving at page 247:


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 was 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 intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused)



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.



[60] Chief Justice McLachlin concurring in the result, concluded the correct statement of the law 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.



[61] Justice Fish, also concurring in the result, stated the test as follows:



The fault element, however, is not the marked departure from the norm of a reasonably prudent driver but the fact that a reasonably prudent driver in the accused’s circumstances would have been aware of the risk of that conduct, and if able to do so, would have acted to avert it. This requisite mental element may only be inferred where the impugned conduct represents a marked departure from the norm; it cannot be inferred from the mere fact that he or she operated the motor vehicle in a dangerous manner.

I think the appeal is valid based on the argument that travelling 140km/h in a 50km/h zone represents a marked departure from the normal manner of driving.

I'm willing to bet that the accused will be back in court shortly.


Somewhat related, dangerous driving causing death vs. manslaughter (It's a bit of a read)

Spoiler!

History of Manslaughter, Criminal Negligence And Dangerous Driving



[88] In order to resolve this issue, it is necessary to review the history of those offences. The offence of “motor manslaughter” has never existed. It is a euphemism for manslaughter arising out of the operation of a motor vehicle. Manslaughter and culpable homicide for these purposes has changed little since the 1892 Criminal Code and has remained in its present form since the 1953-54 Code.


[89] Since 1892 the Code has included an offence of negligence causing grievous bodily harm. It was not until 1910 when an offence referred to a motor vehicle. That offence was driving in a wanton or furious manner or racing and causing bodily harm. In 1938 a further offence was created of reckless or dangerous driving.



[90] In 1955 the Code was completely revised and the offence of operating a motor vehicle in a criminally negligent manner was created. The offences of driving in a wanton or furious manner as well as reckless or dangerous driving were repealed. Dangerous driving was re-introduced in 1961 in basically the same language as section 249(1) today. In 1985 dangerous driving was broken down into subsections distinguishing between dangerous driving simpliciter, dangerous driving causing bodily harm, and dangerous driving causing death with maximum penalties increasing on a scale of seriousness.


[91] Criminal negligence in the operation of a motor vehicle was repealed in 1985 and replaced with the wording in effect today which does not refer to the operation of a motor vehicle. There are separate penalties for criminal negligence causing death and causing bodily harm. Therefore, since 1985 there has not been a specific offence of causing death by operating a motor vehicle constituting criminal negligence or manslaughter.


[92] However, there are two sections in the Code that make it clear the operation of a motor vehicle is intended to apply to both criminal negligence and manslaughter. In 1930 a subsection was introduced to Section 951 which dealt with included offences generally. The new subsection, 951(3), declared that in a charge of manslaughter arising out of the operation of a motor vehicle, the accused could be found not guilty of that offence but guilty of criminal negligence. In 1938, the subsection was changed to make the included offence reckless or dangerous driving. In 1955 the subsection was repealed and not replaced until 1961 when it was added back into the Code as section 569(4). In 1985 the subsection was again repealed and re-enacted as subsection 662(5) as it is today. This was done at the same time as the amendments were made to section 249, splitting dangerous driving into dangerous driving simpliciter, dangerous driving causing bodily harm and death. Subsection 662(5) makes dangerous driving an included offence to criminal negligence causing bodily harm and death, and manslaughter arising out of the operation of a motor vehicle.


[93] The other section that speaks of manslaughter and criminal negligence in the operation of a motor vehicle is section 259 which addresses driving prohibitions. The offence of manslaughter arising out of the operation of a motor vehicle is expressly contemplated in authorizing driving prohibitions. Section 259 was most recently amended in July of 2008 and section 259(2) grants the court discretion to impose a driving prohibition if the offender is convicted of criminal negligence, manslaughter, or dangerous driving, among others, if the offence was committed by means of a motor vehicle.


[94] In my view, it is clear that Parliament intended the offence of manslaughter to be available where death arises out of the operation of a motor vehicle and always has since at least 1930 when section 951(3) was introduced. Commentators have speculated that the amendments were designed to address the reluctance of judges and juries to convict of manslaughter where death arose out of the operation of a motor vehicle. T. D. MacDonald, Q.C. in the article Careless, Negligent, Reckless, Operation of Motor Vehicles at (1963), 6 Canadian Bar Journal 122 stated at page 123:


The awesomeness of the word “manslaughter”, and even the fearsomeness of the words “criminal negligence”, have apparently prevented jurors, most of whom themselves operate motor vehicles, from bringing in verdicts of guilty where the facts warranted and even demanded such a verdict.



[95] This view was also expressed in Harris’s Criminal Law 22nd ed. (1993, Sweet and Maxwell, London) page 445, and in Mewett and Manning Criminal Law, (1978, Butterworths, Toronto), page 466, as well as in R. v. Williams (1982) 63 C.C.C. (2d) 141 (Man. C.A.) at page 148.


Case Authorities



[96] R. v. Williams, supra, is the only case that appears to have dealt with this issue, although in unique circumstances. In that case the offender had been drinking and was driving on the wrong side of the road, causing a head-on collision with a vehicle travelling in the opposite direction, killing two persons and injuring two others. He was charged with two counts of manslaughter by an unlawful act, two counts of criminal negligence causing death, two counts of criminal negligence causing bodily harm, and one count of impaired driving. The trial judge found his conduct fell within the definition of criminal negligence and convicted him of unlawful act manslaughter. The Crown stayed all other charges.


[97] The Court of Appeal found there was no difference between the offence of causing death by criminal negligence, and committing manslaughter by criminal negligence. However, he was not charged with criminal negligence manslaughter. They invited the Crown to re-open the stay of the criminal negligence charges stating they would convict of criminal negligence causing death. The Crown refused, insisting the offender be convicted on the basis of dangerous driving or impaired driving as the predicate offences of unlawful act manslaughter notwithstanding that criminal negligence had been proven.


[98] The Court stated at pages 150 - 151:


Mr. Williams has been found guilty of performing unlawful acts but in association with circumstances of criminal negligence. ...what should be a clear case of causing death by criminal negligence or committing manslaughter by criminal negligence has been obfuscated by the form of the charge... In my respectful view, it would not be right to convict the accused of manslaughter by means of an unlawful act where the evidence leads to a verdict of guilty on one or other of two other charges.


...The result, technical though it may be, must be the setting aside of the verdict of guilty of manslaughter by means of an unlawful act. But it is open to us to enter a conviction for dangerous driving under s. 589(5) [now 662(5)] of the Code where the evidence supports that verdict. I have no doubt that the evidence here proves that offence.



[99] In my view, the Court of Appeal was prepared to confirm a verdict of manslaughter by criminal negligence if it had been open to them by the wording of the charge. This is made clear by the court at page 149:


Obviously, it is contemplated that a manslaughter charge may be laid in motor vehicle cases; no distinction in this regard is made between manslaughter by means of an unlawful act or manslaughter by criminal negligence. ...While prosecutions in motor vehicle cases under s. 205(5)(a) [culpable homicide by means of an unlawful act] are rare, we are obliged to consider manslaughter committed by means of an unlawful act as an offence which has been continued and still exists under the Code.



[100] However, the court did not explain why they were not prepared to confirm the conviction for unlawful act manslaughter when they were prepared to convict of the predicate offence of dangerous driving even though they were convinced the conduct amounted to criminal negligence.


Elements of Manslaughter



[101] In R. v. Creighton, supra, the Supreme Court of Canada set out the elements of unlawful act manslaughter. The essential requirements for the offence are:


a) an unlawful act in the sense of being a criminal offence that

b) is dangerous in the sense of carrying with it the risk of bodily harm to another that

c) results in death, if

d) it is objectively foreseeable that there is a risk of bodily harm that is more than merely trivial or transitory.



[102] At paragraph 12, McLachlin, J. stated:



So the test for the mens rea of unlawful act manslaughter in Canada, as in the United Kingdom, is (in addition to the mens rea of the underlying offence) objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. Forseeability of the risk of death is not required.



[103] It therefore can be seen that dangerous driving causing death does not on its own amount to unlawful act manslaughter. The essential requirement to convict of dangerous driving is driving in a manner that is dangerous to the public. Danger to the public does not necessarily involve a risk of bodily harm. It could involve a risk of property damage arising out of a motor vehicle accident. The mens rea of dangerous driving is the objective foreseeability of the risk and danger involved in the conduct that amounts to the danger to the public. For that conduct to amount to unlawful act manslaughter, it must meet the additional test of objective forseeability of the risk of bodily harm, which is neither trivial nor transitory in the conduct of the dangerous act. The meeting of this additional test would allow a conviction for the more serious offence of unlawful act manslaughter when the unlawful act is dangerous driving causing death and to increase the maximum from 14 years to life imprisonment.


[104] However, no additional requirement is necessary for criminal negligence causing death to also constitute manslaughter by criminal negligence. Criminal negligence requires conduct that amounts to a wanton or reckless disregard for the lives or safety of others based on an objective test of awareness of that risk. Therefore, the objective forseeability of the risk of bodily harm
test has already been met to convict of criminal negligence and nothing further must be proven to convict of manslaughter. The maximum for both offences is life imprisonment. If manslaughter is charged and criminal negligence causing death is proven, it follows a conviction for manslaughter can be entered. The wording of the manslaughter charges in this Information are left open to be proven by any manner of culpable homicide unlike the wording in the Williams Indictment. It is therefore open to the trial court to convict of manslaughter by criminal negligence if criminal negligence causing death is proven, or to convict of unlawful act manslaughter if dangerous driving causing death is proven, and the additional element of objective foreseeability of the risk of bodily harm is proven. As I have found criminal negligence causing death has been proven, so has the offence of manslaughter by criminal negligence, since they are identical. That is the same conclusion the Manitoba Court of Appeal came to in Williams, supra, at page 148:



It is difficult to discern any difference between the offence of causing death by criminal negligence under s. 203 [now s. 220] and the offence of committing manslaughter by criminal negligence under s. 205(5)(b) [now s. 225(5)(b)]. In my view, it cannot be said generally that causing death by criminal negligence is "entirely different" from the offence of manslaughter.


[105] The Supreme Court of Canada also came to this conclusion when dealing with a charge of criminal negligence causing death in a different context not involving the operation of a motor vehicle in R. v. Morrisey (2001), 2000 SCC 39 (CanLII), 148 C.C.C. (3d) 1, at pages 28 and 29:


First, the analysis cannot be confined to the specific offence contained in s. 220(a) of the Code. There is a great deal of overlap between some of the culpable homicides which are not classified as murder, such as unlawful act manslaughter and manslaughter by criminal negligence. Moreover, there is no difference between the offence charged here and manslaughter by criminal negligence. Section 222(5)(b) of the Criminal Code, read in conjunction with s. 234, makes clear that the offence of criminal negligence causing death is a type of manslaughter; see also R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pg. 41-42 per McLachlin, J. (as she then was)...



The circumstances of this case palpably demonstrate the overlap: the accused was initially charged with manslaughter and there is nothing in the record that explains why he was committed for trial on the charge of criminal negligence causing death rather than on the original charge of manslaughter. Nothing turns on this since the two are totally interchangeable.



[106] I therefore conclude, based on these authorities, that manslaughter by criminal negligence and criminal negligence causing death, are identical offences and interchangeable so that proof
of criminal negligence causing death in the operation of a motor vehicle is also proof of manslaughter.