Criminal and Quasi-criminal Liability

AuthorNathan Baker
chapter 4
The Criminal Code of Canada1 def‌ines of‌fences of a criminal nature in
Canada, whereas regulatory matters dealing with highway trac law
are assigned to the provinces. This chapter reviews the of‌fences crimin-
alized in the Code and how automated vehicles are likely to af‌fect their
Dangerous driving requires an operation of a conveyance in a way that is
a marked departure from that of a normal driver. What will be considered
a “normal driver” will be af‌fected by the implementation of autonomous
systems in vehicles as stated in the Criminal Code:
320.13(1) Everyone commits an of‌fence who operates a conveyance in a
manner that, having regard to all of the circumstances, is dangerous to
the public.
1 Criminal Code, RSC 1985, c C-46 [Code].
Criminal and Quasi-criminal Liability | 53
1) R v Beatty, 2008 SCC 5
This case is the starting point for dangerous driving. The accused, for no
apparent reason, suddenly crossed the solid centre line into the path of
another vehicle, which caused the death of all three occupants in the other
vehicle. The Supreme Court of Canada reiterated the test for dangerous
driving as whether the actions of the accused are a “marked departure”
from that of a “reasonably prudent driver.” What a “reasonably prudent
driver” is and how they are expected to act is interpreted in relation to the
current societal expectations for drivers. What was reasonable as a driv-
ing behaviour years ago may not be considered as such for all time. Slight
alterations from prudence are expected in the inherently dangerous act of
driving but criminality only attaches for marked departures. As stated in R v
Beatty, “A mere departure from the standard expected of a reasonably pru-
dent person will meet the threshold for civil negligence, but will not suce
to ground liability for penal negligence. The distinction between a mere
departure and a marked departure from the norm is a question of degree.”2
The Court went on to note that the test for mens rea is important in
dangerous driving cases. The modif‌ied subjective/objective test is applied
in such a case. It is not merely whether a reasonable person would have
appreciated the risks but whether the reasonable person, placed in the
position of the accused, would have appreciated it. Defences such as
incapacity or mistake of fact can apply. In assessing the mens rea, and
by implication the “reasonably prudent person,” the Court reviewed and
adopted points from its earlier decision in R v Hundal It found that
“because driving can only be undertaken by those who have a license, as a
general rule, the law can take it as a given that those who drive are men-
tally and physically capable of doing so and that they are familiar with the
requisite standard of care.”4 The Court continued by stating that mens rea
can be inferred “from the voluntary act of driving,”5 and “criminal fault
can be based on the voluntary undertaking of the activity, the presumed
2 R v Beatty, 2008 SCC 5 at para 7 [Beatty].
3 R v Hundal, [1993] 1 SCR 867.
4 Beatty, above note 2 at para 30.
5 Ibid at para 31.
54 | Autonomous Vehicles
capacity to properly do so, and the failure to meet the requisite standard
of care.”6
The criminal standard for driving is not perfection. Perfection is
too high a standard, and departure from perfection is not deserving of
Because driving, in large part, is automatic and ref‌lexive, some depar-
tures from the standard expected of a reasonably prudent person will
inevitably be the product. . . .Even the most able and prudent driver will
from time to time suf‌fer from momentary lapses of attention. . . . Such
automatic and ref‌lexive conduct may even pose a danger to other users
of the highway.7
It is not the personal characteristics of the accused that are imported
into the subjective/objective test but rather the context of the events
surrounding the incident.8 Drivers are measured against the hypothetical
reasonably prudent driver in the context of what the driver knew and was
facing, not the context of who the driver was, such as a young, inexperi-
enced driver. The conduct of the driver and the manner in which they
operate their motor vehicle is the test to determine the actus reus of dan-
gerous driving. It is important not to focus on the consequences, such as
an accident or a death, but to remain intent on the actions of the accused
and the risk they posed, not whether such a risk was actualized into harm.
2) R v Roy, 2012 SCC 26
The Supreme Court of Canada revisited the issue of dangerous driving in
the criminal context in this case. The accused pulled out his motorhome
from a stop sign into the path of another vehicle. The passenger in the
accused’s vehicle died. The Court reiterated the ratio from Beatty that the
“marked departure” standard is what separates civil liability, regulatory lia-
bility, and criminal liability.9 The Court entered an acquittal as the action
6 Ibid at para 32.
7 Ibid at para 34.
8 Ibid at para 39.
9 R v Roy, 2012 SCC 26 at para 31.

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