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Criminal - Dangerous Driving. 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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