Dangerous Operation of a Motor Vehicle, …..
This offence is called “dangerous operation” because section 249 of the Criminal Code which contains it refers not only to driving a motor vehicle, but also to operation of a vessel or any water skis, surf-board, water sled or other towed object on or over any of the internal waters of Canada or the territorial sea of Canada; an aircraft; and railway equipment. Of course, in reality, the most frequent application of this section is in the cases of dangerous operation of a motor vehicle or, in other words, dangerous driving.
The punishment for this offence can include imprisonment of up to five years if no death or bodily harm is caused. If the offence causes bodily harm, the maximum term of imprisonment increases to ten years and if the death is caused, the maximum term of imprisonment is 14 years. If the offence is committed while street racing, the punishment is five years if no death or bodily harm is caused. If bodily harm is caused, the maximum punishment is 14 years and if death is caused, the maximum punishment is life imprisonment. Same increased sanctions apply to the cases where dangerous driving causes bodily harm or death and is committed in combination with failure to stop while pursued by police in order to evade a police officer.
Dangerous operation offences are widely hated by lawyers because they represent the type of crimes which introduce civil law concepts into criminal law arena. In particular, while criminal offences normally require subjective analysis of actions and intentions of the accused persons, crimes such as dangerous driving introduce so-called “modified objective” test in assessing the elements of the offence required for conviction. Sometimes, it seems that a particular incident results in a dangerous driving charge rather than speeding, running red light or careless driving simply because the officer was too mean or trigger happy.
The thin line between civil negligence or highway traffic offence on the one hand and criminal charge of dangerous driving on the other is not always easy to see yet a successful defence often depends exactly on that. Therefore, only experienced criminal lawyer who also has solid understanding of civil law concepts should be entrusted with defence against this truly dangerous offence.
Dangerous driving cases generated so much confusing litigation that the principals and elements of this offence had to be restated twice recently by the Supreme Court of Canada.
The result of those two cases was that while the Supreme Court confirmed that the offence of dangerous operation does not require subjective intention to commit the offence, the application of the “modified objective test” requires that punishment be imposed only upon those with “a blameworthy state of mind”. The accused’s conduct must constitute a “marked departure” from the norm to result in conviction. Accordingly, the prosecution must present a case of objectively dangerous driving and further determination must be made whether the prosecution has also proven that the conduct involved a marked departure from the standard of care of a reasonable person in the circumstances that is deserving of punishment. In addition, the defence may still raise a reasonable doubt that a reasonable person in the position of the accused would not have been aware of the risk posed by the manner of driving or, alternatively, would not have been able to avoid creating the danger.
The Supreme Court also required that a meaningful inquiry be conducted into the manner of driving with the focus on the risk of damage or injury created by it. This inquiry has to take into account the fact that driving is an inherently dangerous, but a socially valuable activity, and that accidents caused by inherent risks associated with driving generally should not result in criminal convictions. The judge should determine whether (a) a reasonable person would have forseen the risk and taken steps to avoid it if possible; and (b) if so, whether the accused’s failure to forsee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. The court is required to identify how the departure from the standard goes markedly beyond mere carelessness. The guilty state of mind required for conviction cannot be inferred simply because the manner of driving was a marked departure from the norm, but only if it can be inferred that the driving, viewed in all the circumstances, was the result of a marked departure from the requisite standard of care.
If all of this makes your head spin, don’t be alarmed, it should. This is the reason why you need an experienced criminal lawyer on your side to fight against the charges of dangerous driving. Successful defence depends not only on thorough understanding of legal principles governing this offence but also the correct application of those principles to the facts of your particular case to show that your driving was not dangerous at all or, even if it was, it did not rise above (or rather fell below) the standard associated with mere carelessness or civil negligence or conduct punishable by provincial highway traffic legislation so as to protect you from criminal consequences of the conviction for dangerous driving.
Many people charged with dangerous operation fall into despair especially when an accident claims a life or results in serious injuries. While it may be natural to think that if the life is lost or serious injuries are caused, someone must be at fault, this is not true in the legal world. In fact, the Supreme Court specifically emphasized that the consequences of the driving are not to be equated with the manner of driving and it is the manner of driving which is the gravamen of the offence. In other words, if the manner of driving is not proven to have been dangerous in the circumstances of the case, the accused should not be found guilty just because the driving resulted in death or bodily harm.
Another factor which intimidates many accused is that in many cases, especially those involving death or serious injuries, the police prepare accident reconstruction reports in which police accident reconstruction experts conduct various tests and scientifically explain the reason for the collision and the manner of driving leading to it. While the police experts may sound very smart and convincing, you would be surprised how often their “expert” opinions can be reduced to rubbles by an experienced criminal lawyer. Of course, the lawyers in these situations cannot and should not act alone. An experienced criminal lawyer has access to highly qualified defence experts in the field of accident reconstruction who review the police accident reconstruction reports with a view of undermining the conclusions contained in them.
In one of my recent cases, the police expert with many years of experience claimed that my client was traveling on the highway at almost twice the speed limit in total disregard of others and was involved in an accident which killed a young woman and seriously injured a child. My experts, however, discovered that while he used correct formula to calculate the speed of my client’s car, he inserted wrong numbers in that formula in order to arrive at the desirable result. My job was then to discredit him on the witness stand and to show to the judge that his “expert” opinion was worthless. The Crown then called another police “expert” who arrived at similar findings using different approach. Again, with assistance of defence experts, I was able to show that the new approach was wrong because it was not scientifically appropriate to the type of collision in question.