Dangerous Driving Conviction requires a ‘Marked Departure’, not a Standard of Perfection

In order to prove a charge of dangerous driving beyond a reasonable doubt, the Crown must present evidence that the accused person’s driving was a marked departure from the manner in which a reasonable person would drive under the circumstances.  A driver who makes a temporary error in judgement resulting in a serious accident, is not necessarily guilty of dangerous driving – we all make mistakes at one time or another, and drivers are not held to a standard of perfection.  In a landmark case, R. v. Beatty (2008), the Supreme Court of Canada found that the accused’s momentary lapse of attention did not meet the threshold of a ‘marked departure’ for the standard of care expected of a reasonably careful driver, even though his mistake resulted in the death of three people. 

A TTC driver was recently charged with ‘dangerous operation of a motor vehicle causing death’ and ‘failing to stop at the scene of an accident resulting in death’, in connection with a Toronto car accident.  The accident occurred after a 14-year-old girl disembarked from a TTC bus at the intersection of Finch Avenue and Neilson Road and was then struck by the TTC bus as it was turning right onto Finch.  The defendant was the driver of the bus, and tragically, the girl died as a result of the collision.

In the 2016 trial, R. v. Shergill, there were two key issues that the judge was required to resolve:

• Has the Crown presented sufficient evidence to allow the court to conclude that the accused’s driving was a marked departure from the standard of care expected of a prudent and reasonable person in the same circumstances?
• Has the Crown presented sufficient evidence to prove that the accused failed to stop at the scene of the accident with the intent to escape criminal and civil liability? 

Governing principals in making a finding of ‘dangerous driving’

Relying on R. v. Charemski (1998), ‘sufficient evidence’ is defined as enough evidence that meets the threshold of proving guilt beyond a reasonable doubt.  In R. v. Hundel (1993), the court defined the legal test for dangerous driving as actions where the driver’s conduct amounts to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.  In criminal cases, “penal negligence is aimed at punishing blameworthy conduct”.

The requisite mens rea (i.e. criminal intent or a knowledge of wrongdoing) for criminal negligence, as found in R. v. Beatty (2008), is that there is a ‘marked departure’ from the norm in the given circumstances of the case. This constitutes a stricter test than the test for civil negligence which entails a departure from the standard expected of a reasonably prudent person. In determining whether the actus reas has been met (i.e. the guilty act or criminal conduct), the question is whether the driving was objectively dangerous to the public in all of its circumstances. However, it is the risk created by the defendant’s manner of driving that must be judged, not the consequences of his/her actions, as found in R. v. Roy (2012).

The evidence and discussion

In response to the charges, defence counsel argued that, based on an objective assessment of the accused’s driving, the evidence does not support a marked departure which is required for a finding of dangerous driving. Defence counsel also submitted that there is not evidence that the accused was aware that an accident had occurred or that a person was injured as a result, which means that he had no intent to escape criminal or civil liability.

The collision occurred in the afternoon on December 19, 2014. Digital video from four cameras strategically located on the bus captured evidence of the accident, and showed that the bus did strike the accident victim, Ms. Diljohn-Williams.  Video evidence also suggested that there were two bumps, presumably when the bus ran over Ms. Diljohn-Williams.  After assessing the video evidence, the lead investigating officer on the case testified that the bumps were sufficiently severe to impact several passengers on the bus; however, in cross-examination, he agreed that, based on the videos, none of the passengers seemingly reacted to, or were alarmed by, the bump.

There was no evidence that the bus was speeding or that the driver had consumed alcohol or drugs, on the day of the accident.  Also, the bus was driven in its designated lane, and the driver made a proper right-hand turn and did not disobey any traffic regulations.  Following the accident, the bus continued on its route without any deviation from the normal, which suggests that there is nothing in the driver’s actions that indicates he was aware of the accident.

The lead investigating officer acknowledged that the bus video evidence revealed that no pedestrian could be seen from the windshield and front doors of the bus, when the bus was stopped at the intersection.  Further, it appeared that Ms. Diljohn-Williams did not look towards the bus before or when she stepped in front of it.

A man who had been a passenger on the bus, along with his son, testified that he felt a ‘thump’ at the time the accident likely occurred, but did not consider it to be significant and did not think the bus had run over anyone.  He also stated that “nobody appeared to be concerned about the bump”.

A final witness was a Toronto police officer who is an accident re-constructionist.  The officer testified he believed the bus was travelling at 13.05 km/hr, but likely much slower at the time of the accident.  He also stated that Ms. Diljohn-Williams was walking quickly, at 1.45 meters per second (which is normal for a 14-year-old).  The officer concluded that if the accused had been looking towards his right at Ms. Diljohn-Williams, he would have been able to stop in time to avoid the accident; however, there was no evidence he was aware the bus struck the girl, as there was no change in his manner and he continued to drive normally and appropriately.

In consideration of all the evidence, Justice Hall concluded that there was no evidence that the accused’s manner of driving demonstrates “a marked departure from the standard of care that a reasonable person would have exhibited in the circumstances” and therefore, the evidence does not satisfy the requirements of dangerous driving causing death. The judge also found that there was no evidence to support a conviction on the charge of failure to stop.  Accordingly, both charges against the accused were dismissed.

At the Criminal Law Firm of Ted Yoannou, our experienced criminal defence lawyers have successfully defended many clients accused of dangerous driving and other driving-related offences.  If you require legal assistance, call Ted Yoannou today and our team will ensure you receive the most effective and professional representation.