The behaviour of drivers on the road is governed by numerous pieces of legislation and countless court decisions. It can be difficult to discern the state of the law on any given action or failure to act in the operation of a motor vehicle. The Criminal Code governs driving offences. The Motor Vehicle Act also governs driving offences. And two offences, criminal dangerous driving and Motor Vehicle Act careless driving, seem to govern much of the same type of driving.
At one point it appeared there was a clear distinction in law. These days behaviour that might have seemed careless is being successfully prosecuted as a criminal charge.
In the recent decision of R. v. Heth-Klems, 2023 BCCA 246 the appellant, Harrison Heth-Klems, appealed his conviction for dangerous driving causing death. The appellant was on his motorcycle with a passenger. He collided with a slower moving SUV on a straight and flat stretch of road during daylight hours. The trial judge determined that the collision occurred because the appellant was traveling significantly above the speed limit and was “gazing” at an accident on a parallel highway. One witness said he had been looking at the accident for 10-12 seconds.
The appellant argued on the appeal that the judge had failed to specify how his driving conduct went beyond mere negligence and constituted a marked departure from what a reasonable person would have done in the circumstances. He also argued that based on the judge’s factual findings, she could not have convicted him of the offence charged.
The Court of Appeal dismissed the appeal, ruling that the judge had not erred in articulating or applying the applicable legal principles. The judge’s reasons provided a clear basis for her conclusion that the appellant’s driving conduct amounted to a “marked” departure from the standard of care expected of a reasonable person. This departure was characterized by the appellant looking away from the road for an extended and unsafe period while traveling at a high speed, despite being aware of the presence of a slower moving vehicle ahead. The judge was not obligated, as a matter of law, to acquit the appellant based on her factual findings.
For us, it’s hard to accept the evidence that the appellant was looking away from the road for 10-12 seconds. It seems unlikely to us that the witnesses’ approximation of time is reliable. The court concluded it was, however, and sadly findings of fact are deferred to by appellant courts. The practise of accepting findings of fact (not being able to appeal findings of fact generally speaking) is in our view one of the biggest failings of the justice system.
The court emphasizes that the offence of dangerous driving goes beyond simply driving in a dangerous manner. There is a fault element that needs to be proven by the Crown. The Crown must establish that the accused’s objectively dangerous conduct was accompanied by the required mens rea. Specifically, the Crown must prove that the manner of driving amounted to a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.
How is this not simply carelessness?
The driver in this case looked at an accident on another road. This is common behaviour. People do it all of the time and that in itself is not exactly something we could call a marked departure from what driver’s normally do. Until this decision was rendered, we think most lawyers would have viewed this conduct as carelessness with a tragic result. Simple carelessness on the road can cause terrible results.
The careless provisions of the BC Motor Vehicle Act seem to fully cover this type of driving. It reads:
Careless driving prohibited
144 (1) A person must not drive a motor vehicle on a highway
(a) without due care and attention
Careless driving prohibited
BC Motor Vehicle Act
144 (1) A person must not drive a motor vehicle on a highway
(a) without due care and attention
If you look away from the road ahead due to a distraction, that would seem to be a circumstance where you are negligent. Simply put, you are not showing the care and attention you should.
Generally speaking, the requirement of a marked departure from the standard of care used for the Dangerous Driving provisions is intended to avoid imposing criminal liability too broadly. It distinguishes between mere departures that may support civil liability or carelessness and the marked departure necessary for criminal fault.
In our view, the trier of fact should identify how and in what way the departure from the standard of care very clearly goes beyond mere carelessness. In this case, if the driver looked away for 4 seconds, would that be dangerous driving or careless driving?
At this point we are seeing more and more driving behaviour characterized as dangerous and subject to successful criminal prosecution. One may view this as the continuation of a further movement of the courts to substitute their judgment for the generally good judgment of those over whom they preside. In this particular case, we think accepting the time estimate was an error but as a finding of fact it can’t be appealed. And in the end, what was to us careless driving, ended in a conviction for dangerous driving causing death.
Of course, we were not involved in this case and in the end the evidence comes out in testimony before the court. The distinct tasks of direct examination, cross examination and argument are where the performance of counsel is often scrutinized.
What constitutes dangerous driving is less clear now given this decision. One important lesson that comes from this decision is the importance of confronting evidence and getting out the evidence necessary to then deal with the legal tests. It’s one of the reasons we in our firm put so much effort into learning and teaching effective cross examination. If you have been charged with an offence, give us a call. Witnesses can be wrong, people are notoriously bad at estimating short periods of time and we want to ensure you are not convicted of an offence in circumstances where you merely made a mistake.