Risky driving is regulated on a gradient in Ontario, ranging from the criminal offence of Dangerous Driving to the regulatory offences of Careless Driving and Stunt Driving under the Ontario Highway Traffic Act.[1] Dangerous Driving and Careless Driving both focus on the risk that driving behaviour creates for others on the road, with Dangerous Driving focusing on more severe risks. Stunt Driving applies to more “extreme” driving behaviours such as weaving, interfering with the driving of another vehicle, and excessive speeding.
Dangerous Driving (Dangerous Operation of a Conveyance)
Under s.320.13 of the Criminal Code, it is an offence to operate a “conveyance” in a manner dangerous to the public in the circumstances, where conveyance means a motor vehicle, a vessel (any kind of watercraft, including hovercrafts and canoes), an aircraft or railway equipment.[2]
“Motor vehicle” refers to a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.[3] This includes e-bikes and vehicles that can be powered by either pedal or motor (e.g., dual-powered electric bikes and electric longboards), although the crown will generally have to prove that the vehicle was being operated by motor power at the time of the offence for the latter category.[4] It is not relevant whether a vehicle is presently functioning or operable, provided it can be propelled by a means other than muscular power. For example, a car that is out of gas, or an e-bike without a battery, may still be considered a vehicle for the purposes of s.320.13.[5]
Elements of Dangerous Driving
For a conviction of Dangerous, the Crown must establish that the individual drove dangerously and was either aware or ought to have been aware of the risk that their driving created.
Driving is defined as dangerous where it shows a “marked departure” from the standard of a reasonable person in regard to the public within the specific circumstances.[6] This assessment is based on the potential risk that could be created by the driving, rather than the actual or potential danger to the public that it creates.[7] A judge may consider such factors as the traffic conditions at the time, the defendant’s speed, the nature of the road, and the weather, along with any other relevant circumstances. Common examples include driving over road lines or curbs; failing to obey road signs; tailgating; collisions; or swerving while driving.
In addition to proving that the driving itself was dangerous, the Crown must also establish either that the individual was aware of the risk and danger it created or that a reasonable person in similar circumstances ought to have been aware of that risk and danger.[8] Personal attributes such as age, experience, and education may be relevant insofar as they go to the individual’s capacity to appreciate or avoid risk.[9]
Alcohol may act as an independent risk factor and also aggravate other risks, even where it does not rise to the degree of legal impairment.[10] That is, drunk driving may also be considered dangerous driving, and a driver may be expected to drive more carefully to compensate for any alcohol they have consumed even where they are not above the legal limit.
Extenuating circumstances that would not be foreseeable to a reasonable person may act as a complete defence to dangerous driving charges.[11] For example, the sudden onset of a physical ailment (e.g., a heart attack), or a side-effect of a prescription medication that was previously unknown to the driver that impedes driving could both raise a reasonable doubt that the driver was or ought to have been aware of the risk.[12] Similarly, a sleeping driver cannot be held accountable for acts committed while asleep at the wheel.[13] However, dangerous driving may still be established where the driver showed a marked departure from the standard of a reasonable person by choosing to drive while aware of a real risk of falling asleep or other possible extenuating circumstances.[14]
Careless Driving vs. Dangerous Driving
Careless Driving is a provincial regulatory offence under s.130 of the Highway Traffic Act where an individual drives a vehicle or street car on a roadway “without due care, attention, or reasonable consideration for other persons” using the roadway. It is largely similar to Dangerous Driving, with a number of key differences.
- Careless Driving encompasses a wider array of behaviours such as texting, failing to signal, or failing to check a blind spot, that may not rise to the standard of Dangerous Driving.[15]
- Careless Driving does not require the Crown to establish intent. Once the act of careless driving is made out, the onus is on the defendant to show on a balance of probabilities (i.e., that it is more likely than not) that their actions were without negligence or fault.[16]
- Careless Driving applies the wider definition of “vehicle” from the Highway Traffic Act which includes muscular-powered vehicles like bicycles in addition to non-muscle-powered vehicles like cars.[17]
- Careless Driving carries lower penalties and is generally sentenced more leniently. It is also not listed on an individual’s criminal record, whereas Dangerous Driving is a criminal charge that can result in a criminal record.
Racing and Stunt Driving
“Stunt Driving” is the colloquial name for offences under s.172 of the Highway Traffic Act, including driving a motor vehicle on a highway in a race or contest, bet, or wager, or while performing a stunt.[18] As with Careless Driving, the Crown is not required to prove the driver’s intent to commit the offence once the act is made out.[19] However, the defendant may establish that they were not negligent or at fault, such as by showing that they had to speed or swerve to avoid a collision.
In addition to race-like driving of multiple vehicles, “race or contest” also includes a single vehicle:[20]
- Driving at a “marked departure from the lawful rate of speed” such that its ability to adjust to changing circumstances of the highway may be limited;
- Attempting to outdistance other vehicles while driving at such a speed, and;
- Repeatedly changing lanes in close proximity to other vehicles at such a speed.
“Stunts” may include:[21]
- Wheelies, doughnuts, burnouts, drifting, or any other intentional loss of traction.
- Driving in the oncoming lane for longer than is necessary to pass.
- Driving from a position other than the driver’s seat.
- Driving with a person in the trunk.
- Driving 40 km/hr where the speed limit is less than 80 km/hr, 50 km/hr where the speed limit is over 80 km/hr, or driving over 150 km/hr.
- Deliberately preventing another vehicle from passing.
- “Brake-checking” or otherwise stopping or slowing down to cause another vehicle to do the same.
- Driving excessively close to another vehicle.
- Rushing a left turn when a light turns green.
Although Stunt Driving is not a criminal offence that will result in a record, tt carries high mandatory penalties relative to Careless and Dangerous Driving. These include a mandatory fine of $2000-$10,000, a minimum one-year license suspension (escalating upon subsequent offences), and an automatic 30-day license suspension and 14-day vehicle impoundment when charged.[22]
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[1] Criminal Code, RSC 1985 c C-46, s 320.13 [Criminal Code]; Highway Traffic Act, RSO 1990 c H8, ss 130, 172.
[2] Criminal Code, supra note 1, ss 320.11 and 320.13; R v Sillars, 2022 ONCA 510.
[3] Criminal Code, supra note 1, s.2.
[4] E.g., R v Clifford, 2014 ONSC 2388; R v Kulbacki, 2012 ONCJ 532; R v Rookes, 2012 SKPC 80.
[5] R v Morrison, 2015 ONSC 7616; Saunders v The Queen, 1967 CanLII 56 (SCC), [1967] SCR 284.
[6] R v Beatty, 2008 SCC 5 (CanLII), [2008] 1 SCR 49 at paras 43, 46 and 49 [Beatty]; R v MacGillivray, 1995 CanLII 139 (SCC), [1995] 1 SCR 890.
[7] R v Roy, 2012 SCC 26 (CanLII), [2012] 2 SCR 60 at para 34 [Roy].
[8] Beatty, supra note 6.
[9] Roy, supra note 7.
[10] R v Settle, 2010 BCCA 426.
[11] R v Hundal, 1993 CanLII 120 (SCC), [1993] 1 SCR 867.
[12] For discussion, see R v Shah, 2022 ONSC 591 at paras 38-45.
[13] R v Jiang, 2007 BCCA 270 (CanLII), 220 CCC (3d) 55 at para 17.
[14] Ibid; see also R v Jones, 2016 BCPC 256; R v Morin, 2019 SKPC 39; R v St Hilaire, 2018 ONSC 6224.
[15] Krudwig v Johnston (1998), 1998 CarswellOnt 4775 (Ont Gen Div).
[16] R v Veseli, 2015 ONCA 795 at para 6.
[17] Highway Traffic Act, supra note 1, s 1.
[18] Ibid, s 172.
[19] R v Raham, 2010 ONCA 206, 2010 CarswellOnt 1546, [2010] OJ No 1091, [2010] CCS No. 4225, 213 CRR (2d) 336, 253 CCC (3d) 188, 260 OAC 143, 74 C.R. (6th) 96, 87 WCB (2d) 430, 92 MVR (5th) 195, 99 OR (3d) 241.
[20] Ont Reg 455/07 (under Highway Traffic Act, RSO 1990 c H8), s 2 [Ont Reg].
[21] Ibid, s.3.
[22] Highway Traffic Act, supra note 1, s 172(2-10).
