Aggravated Driving Offences: Causing Bodily Harm or Death

• Author: Karen Jokinen/Peter Keen
• Pages: 181-205



Aggravated

DrivingOences:

Causing Bodily

Harm or Death

11

I. Introduction ............................................. 182

II. Summary of the Categories of Aggravated Driving Oences ....... 182

A. First Category ...................................... 183

B. Second Category .................................... 183

C. Dierences Between the First and Second Categories ...... 185

D. Third Category ...................................... 185

III. The General Law of Causation ............................... 187

A. Factual Causation ................................... 187

B. Legal Causation ..................................... 189

C. Reasonable Foreseeability and Intervening Acts ........... 189

D. Thin-Skulled Victim .................................. 191

E. Examples .......................................... 191

IV. Case Law Analysis, Section by Section ........................ 192

A. Dangerous Driving Causing Death or Bodily Harm—

Sections 320.13(2), (3) ............................... 192

B. The Aggravated Impaired and Per Se Limit Oences—

Sections 320.14(2), (3) ............................... 194

C. The Aggravated Failing or Refusing to Comply

Oence—Sections 320.15(2), (3) ...................... 198

D. The Aggravated Failing to Stop Oences—

Sections 320.16(2), (3) ............................... 203

V. Conclusion .............................................. 204

© 2023 Emond Montgomery Publications. All Rights Reserved.

 Impaired Driving and Other Criminal Code Driving Oences

I. Introduction

Drinking and driving is one of the leading causes of criminal death in Canada. Many

practitioners will deal with those sad cases that involve tragic consequences. The

driving oences set out in sections 320.13 to 320.16 of the Criminal Code1 all have

aggravated forms that apply if the oence is linked to bodily harm or death. By way

of example, one can be charged with dangerous operation, dangerous operation caus-

ing bodily harm, or dangerous operation causing death. The Criminal Code sets out

progressively more serious penalties for the aggravated oences.

Other chapters describe the actus reus and mens rea of the simple forms of the

oences. We will not duplicate that analysis here. When bodily harm or death results,

the Crown must prove an additional element. For some oences, the Crown must

establish that the underlying oence caused the death or bodily harm. For others, the

Crown must show the accused committed the underlying oence and while doing

so caused bodily harm or death to another person. For still others, the Crown must

prove that the accused, while committing an underlying oence, was involved in an

accident that resulted in death or bodily harm, but the accused need not have caused

the accident.

Although we will focus on the current legislation, we will also explain some of the

substantial developments in the law over time. Counsel may not be able to rely on

the legal principles expressed in decisions about older versions of the legislation, as

the elements of the aggravated oences have changed. Counsel considering consti-

tutional challenges to the current legislation will need to be familiar with how the law

has developed.

We will begin by summarizing the categories of aggravated driving oences and

explaining which oences fall into each category. We will then provide a detailed

description of the law of causation. Next, we will analyze each of the categories in

more detail before finally describing a number of unusual fact patterns that have chal-

lenged the courts.

II. Summary of the Categories of Aggravated Driving

Offences

To prove the aggravated form of all driving oences, the Crown must prove the sim-

ple version of the oence and an additional aggravating element that involves death

or bodily harm. This aggravating element sometimes requires the Crown to prove the

accused caused the death or bodily harm.

1 RSC 1985, c C-46.

© 2023 Emond Montgomery Publications. All Rights Reserved.