Richardson: The Mens Rea of Dangerous Driving

On Thursday, August 16, the Supreme Court intends to deliver judgments in fifteen applications for leave to appeal. Notable among this rather interesting collection of applications is the Alberta criminal law case of Rick Wayne Richardson v. Her Majesty the Queen (32005).

In its short, four and a half page judgment, the Court of Appeal for Alberta considered the case of Ricky Richardson, a car enthusiast charged and convicted of dangerous driving causing death. The centrepiece of the judgment is the appellate court’s review of the trial judge’s interpretation of R. v. Hundal [1993] 1 S.C.R. 867. As readers might remember, in Hundal the SCC laid down an innovative and well-considered test for the assessment of the mens rea element of dangerous driving.

On August 5, 2004, Mr. Richardson lost control of his supercharged Corvette after rapidly accelerating to at least two-thirds throttle while on an Edmonton city street. Immediately before acceleration Richardson and a friend had been revving their respective car’s engines as they sat one behind the other at a red light. Upon acceleration Richardson’s car swerved uncontrollably, eventually striking the median, spinning across the lane and mounting the sidewalk, where it struck and killed a pedestrian, Irene Nicholson.

In his defence, Richardson submitted that there existed reasonable doubt as to whether he possessed the requisite mens rea element of the crime. This was the case, he argued, because, unbeknown to him, the car’s traction control mechanism had grossly malfunctioned at the time of the accident. Moreover, Richardson introduced expert testimony stating that the accident would not have occurred if not for the malfunction.

The trial judge was unswayed by Mr. Richardson’s defence, finding that-given the high performance nature of his automobile-the excessive rate at which Richardson had accelerated represented a marked departure from normal driving standards. In other words, the acceleration constituted ‘dangerous driving’ irrespective of any subsequent mechanical malfunction.

The heart of Richardson’s appeal was that, in reaching his decision, the trial judge had not applied Hundal correctly. In their review of the matter, the Alberta Court of Appeal accordingly considered the contours of the test laid down by Justice Cory in 1993. In effect, the Hundal test provides an objective metric that is balanced by an accused’s right to offer explanation relevant to his/her specific, contextualized case. In the eyes of many, such a test provides for a more nuanced understanding of the role of an accused’s state of mind during routinized behaviour such as driving.

Ultimately, the Alberta Court of Appeal unanimously felt that the trial judge had correctly applied Hundal, and that his conclusion contained no palpable and overriding error. In the first leg of the test, the appellate court noted, the trial judge had found a departure from the standard of care expected of a reasonable person. In the second leg of the test, they announced that the trial judge had properly considered the explanation offered by Mr. Richardson. Richardson, however, had not demonstrated that he reasonably believed that the anticipated operation of the traction control system would have negated the inherently dangerous nature of his behaviour. Even evidence suggesting that Richardson had previously driven in similar fashion without incident, the Court of Appeal agreed, was insufficient to prove the accused’s reasonably held belief in the activity’s safety.

The question remains as to whether the SCC will feel the same way.