Can a momentary lapse of attention lead to criminal liability?

In R v Beatty, [2008] 1 SCR 49 [Beatty], a case heard by the Supreme Court of Canada (“SCC”) in October of last year, the accused was charged with dangerous operation of a motor vehicle causing death, contrary to s.249 of the Criminal Code, RSC 1985, c C-46. While the case is still awaiting judgment, perhaps it may be an appropriate time to canvass some of the issues raised in the appeal beforehand.

This case deals with a tragic motor vehicle accident which occurred when the accused’s pickup truck failed to negotiate an S-curve on the highway and crossed over the center line, striking an oncoming vehicle and killing its three occupants. At the time, the weather and road conditions were good, neither car was speeding, and there was no evidence of alcohol consumption. Further, eyewitness testimony at trial suggests that the accused was driving his vehicle in a normal and proper manner right up until the brief instant when the collision occurred. The accused cannot remember how the accident occurred and the only explanation he offerred was that he momentarily lost consciousness, either due to a sunstroke or because he fell asleep.

This case invites the SCC to revisit and clarify its own decision in R v Hundal, [1993] 1 SCR 867 [Hundal], which provides an objective test for dangerous driving as a marked depature from the standard of care of a reasonable person. Hundal also provides a subjective element to the test where the accused offers an explanation (such as the sudden onset of an illness); in order to convict, the Crown would then have to establish that a reasonable person would have been aware of the risks or dangers posed by the accused’s conduct.

There is some difficulty in applying this test to the facts of Beatty. In determining whether the accused’s actions were a marked depature from the standard of care, much depends on how one characterizes the actions of the accused. In acquitting the accused, the trial judge characterized the accused’s conduct as a “momentary lapse of attention,” holding that while this conduct was negligent and would likely attract civil liability, it could not be elevated to a marked departure which would attract criminal sanctions.

In contrast, the British Columbia Court of Appeal (R v Beatty, 2006 BCCA 229) solely focused on the accused’s act of driving his vehicle passed the center line into oncoming traffic, concluding that this act was objectively dangerous and a “‘marked departure’ from the standard of care a reasonable person would observe in the accused’s situation.” Consequently, the Court of Appeal allowed the appeal, set aside the acquittal, and ordered a new trial to determine, among other issues, whether the accused’s explanation raised a reasonable doubt that his driving was objectively dangerous.

One problem with the approach taken by the Court of Appeal is that it appears to create a presumption that any accident caused by the negligence of a driver will result in a conviction unless a reasonable explanation by the driver can be provided. This effectively reverses the onus from the Crown to the accused. Many fatal accidents involve some degree of negligence and if a driver’s actions are characterized in such a way as to simply isolate the driving error, it may be difficult not to conclude that it was “objectively dangerous.” This is particularly true when this mistake led to another person’s death.

The act of driving, in and of itself, is dangerous business. Every day, motorists out on the road frequently have brief lapses in concentration and make countless errors in judgment. These mistakes may even lead to driving maneouvers that many would consider objectively dangerous. However, most do not lead to fatal accidents, only close calls.

The SCC should see the accused’s actions for what it truly was, not a grossly negligent act that should attract criminal sanctions by the state, but a momentary lapse of awareness that led to tragic consequences.

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