Live from the SCC: Andelina Kristina Hecimovic v Her Majesty the Queen

The Supreme Court of Canada (“SCC”) has handed down another decision on dangerous driving in Andelina Kristina Hecimovic v Her Majesty the Queen. Hecimovic was charged with two counts of dangerous driving causing death. The British Columbia Supreme Court acquitted her. The BC Court of Appeal allowed an appeal from the acquittal and ordered a new trial. The SCC, in a surprising decision, sent the case back for a new trial.

The appellant, Ms. Hecimovic, was driving back from a late night shift at Eagle Ridge Hospital in Port Moody, where she worked as a nurse. She had a particularly hard shift that night dealing with a suicidal young patient, and testified that she was emotionally distraught. She could not wait to get home to her boyfriend and have the night be over.

As she approached an intersection, Hecimovic looked down at her shirt and saw a spot of vomit from one of her patients that evening. Her eyes filled with tears. In her testimony, Hecimovic said that she was not even aware of the intersection until her eyes cleared, and she saw that she had just gone through the red light. Panicking, Hecimovic quickly swerved to avoid hitting a concrete pedestrian island. At this point, she lost control of her vehicle, hitting the curb of the median between the lanes of the highway. Her car flew over the median and sheared the roof off a Suzuki Swift stopped nearby. The young couple inside the car, who were on their way home from a concert, were killed instantly.

The arguments before the SCC last Friday centered around whether the trial judge made an error in law by failing to consider the modified objective intent necessary for the mens rea of dangerous driving. The respondent’s position was that the trial judge focused exclusively on three pieces of evidence rather than the full evidence before the court. This had the effect of giving Ms. Hecimovic the benefit of a subjective test–whether Hecimovic subjectively intended to drive in a deliberately dangerous manner–instead of the correct modified objective test, which asks whether Hecimovic’s behaviour exhibited a marked departure from the standard expected of a reasonably prudent person.

The counsel for the appellant, Jeffrey Ray, began his submissions to the SCC by making two concessions. The first was that the trial judge did indeed use a subjective test. The second was that she did not expressly refer to all of the evidence. Ray went on to say that these concessions were molehills and not mountains. For the first concession, Ray explained that the trial judge used the subjective test intentionally because she was asked to by the Crown, finding once she applied it that Hecimovic did not have the subjective intent to drive dangerously. The trial judge then went on to apply the modified objective test. For the second concession, Ray pointed out that the trial judge did not have to refer to all of the evidence, and the respondent’s position on this point “wrongly imposes a burden on trial judges to consider all factual evidence.”

The SCC judges immediately indicated that they had some concerns with the trial judge’s methods. Karakatsanis J observed, “most of [the trial judge’s] comments are about the subjective state of mind of the appellant […] Looks to me that she stated the test correctly but every time she goes to apply it she mixes in subjective factors.”

Ray used an interesting analogy to address Karakatsanis J’s concerns. He said, “It’s a difficult test – but as I understand it, it’s like a bell curve. The center of the bell curve is the norm. The farther away the conduct moves from the norm, the closer it gets to penal negligence.” He went on to ask, “Where is that line where you cross from civil negligence to penal negligence?”

The SCC was very interested in how Hecimovic’s emotional breakdown in the car may have affected where that line should be drawn. Moldaver J asked whether this was one of those rare circumstances where the personal characteristics of the accused should be taken into account. Counsel vigorously affirmed that this was just such a case. The unique circumstances here–the emotional distress from the late-night hospital shift, the quick blinking back of tears, and the tragic timing–all should be taken into consideration. He went on to say that “the trial judge [was] asking this question: when I look at those circumstances, which I must, and I measure the degree of the standard of care this driver brought to her driving, I find that it was negligent, but it was not a marked departure from the norm.”

Abella J asked: “If somebody was emotionally distraught, a reasonable person, would they drive through an intersection or would a reasonable person pull over? How far can we go with the modified objective test?” Counsel answered this question by pointing to the appellant’s testimony: she teared up, wiped away the tears and then focused on her driving, which is what a reasonable person would do. Unfortunately, by then it was too late. Counsel raised the fact that the accused was incapacitated by her tears.

Justice Brown found this point difficult. He questioned how her emotional upset incapacitated her from perceiving risk and why she had continued driving once the tears obscured her vision.  Counsel, on the defensive, said “We are talking about eight seconds.” Brown interrupted, “Eight seconds where she couldn’t perceive risk.” Counsel quickly retorted, “Well, I guess if you want to attach criminal conduct to eight seconds of perceiving risk…” Counsel did not have time to finish this thought before Justice Brown quickly interjected, “You don’t need to be flip with me. I’m trying to understand why someone having teared up is still unable to perceive the risk of not seeing where she is going for 8 seconds at 100 miles an hour.”

Russell Brown was not the only one struggling with what to do with Hecimovic and the trial judge’s acquittal. Justice Gascon asked whether there was anywhere else in the trial judge’s decision that included an assessment of the accused’s individual circumstances or perceptions. Counsel admitted that the trial judge did not say anything to that effect explicitly, but it was implicit in her reasons.

Justice Moldaver, on the other hand, was clearly sympathetic to Ms. Hecimovic and to the trial judge’s decision, drawing a parallel between this case and a bad sneezing fit. He said, “This judge found as a fact that [the accused] had an unexpected emotional outburst, not unlike someone who has a sneezing fit and carries on driving. If we are going to criminalize these people, we might as well build more jails.”

By the end of Ray’s submission it was still unclear which way the wind was blowing for the judges.

Crown counsel Fred Tischler took a different tack, focusing less on Hecimovic’s emotional outburst and more on the standard of care. Tischler argued that it did not matter, “what she sees or doesn’t see – the ‘not-seeing’ doesn’t go to the mental element of dangerous driving. It’s the amount of care a person brings to the driving.” In this respect, Tischler argued, the trial judge failed to apply the correct test.

Tischler also noted that incapacity as it related to the accused’s emotional outburst was never raised, never advanced, and never mentioned in the trial judgment.

In conclusion, Tischler argued that “the trial judge erred in failing to ask or consider the question of whether the appellant’s failure to think about her manner of driving and all the risks around her represented a marked departure from the standard of a reasonably prudent driver in the circumstances of this case.” The fact that Hecimovic did not see the intersection was “damning” to her as it showed an absence of the requisite mental state of care for this charge.

Ultimately, the SCC found Tischler’s argument the more persuasive of the two. While Moldaver and Karakatsanis dissented, the majority dismissed the appeal, sending Hecimovic back for a new trial rather than allowing the acquittals to stand.

It was clear over the course of the hearing that many of the judges were sympathetic to Ms. Hecimovic. However, there was also a lot of concern raised about the trial judge’s approach to the mens rea element for this charge.

This case could have had some interesting broader significance in light of the ongoing conversation around drunk driving at the SCC, discussed on here and here. These conversations have raised some interesting questions about the nature of punishment and criminal justice for drunk driving offences. However, any contribution this case could have had to the conversation will have to be resumed at a later point. Perhaps the retrial for Andelina will shed more insight on what role criminal justice should occupy in cases of drunk and dangerous driving.


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