Operation of What?
This offense is called “dangerous operation” because section 320.13 of the Criminal Code which contains it refers not only to driving a motor vehicle but also to the operation of a vessel, an aircraft, or railway equipment (now collectively referred to as “conveyance”). 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 offense can include imprisonment of up to 10 years if no death or bodily harm is caused. If the offense causes bodily harm, the maximum term of imprisonment increases to 14 years and if death is caused, the maximum term of imprisonment is life.
How Is It Different From Civil Negligence or Traffic Infraction?
Dangerous operation offenses are widely hated by lawyers because they represent the type of crimes that introduce civil law concepts into the criminal law arena. In particular, while criminal offenses normally require subjective analysis of actions and intentions of the accused persons, crimes such as dangerous driving introduce the so-called “modified objective” test in assessing the elements of the offense required for conviction. Sometimes, it seems that a particular incident results in a dangerous driving charge rather than speeding, running a red light, or careless driving simply because the officer was too mean or trigger happy.
The thin line between civil negligence or highway traffic offense on the one hand and criminal charge of dangerous driving on the other is not always easy to see yet a successful defense often depends exactly on that. Therefore, only an experienced criminal lawyer who also has a solid understanding of civil law concepts should be entrusted with defense against this truly dangerous offense.
Section 320.13(1) of the Criminal Code simply states in essence that everyone commits an offense of dangerous operation who operates a conveyance in a manner that is dangerous to the public, having regard to all the circumstances. Not surprisingly this may seem to you like pretty much any driving infraction but to an experienced criminal lawyer, this means many potential defenses and important circumstances which can separate your case from those encompassed by this section of the Code.
Dangerous driving cases generated so much confusing litigation that the principles and elements of this offense 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 offense of dangerous operation does not require subjective intent to commit the offense, 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 a 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 defense 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 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 foreseen 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 defense depends not only on a thorough understanding of legal principles governing this offense 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.
But What if Someone is Injured or Killed – Am I 100% Guilty Then?
Many people charged with dangerous operations fall into despair especially when an accident claims a life or results in serious injuries. While it may be natural to think that if 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 driving are not to be equated with the manner of driving and it is the manner of driving that is the gravamen of the offense. 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.
But the Crown Has an Expert – What Do I Do Now?
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 rubble 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 defense 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 that killed a young woman and seriously injured a child. My experts, however, discovered that while he used the correct formula to calculate the speed of my client’s car, he inserted wrong numbers in that formula in order to arrive at the desired 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 a different approach. Again, with the assistance of defense experts, I was able to show that the new approach was just as wrong because it was not scientifically appropriate to the type of collision in question.
An accident can be the result of dangerous driving, but often an accident is just an accident and an experienced criminal lawyer can assist you and show that your case involved the latter.