ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
J U D G M E N T
BEFORE HIS HONOUR JUSTICE P. B.
On January 28, 2008,
At NEWMARKET, Ontario
CHARGES: s. 249 (1) (a) C.C. – Dangerous Operation Vehicle
C. Raines Counsel for the Crown
T. Pain Counsel for Steven Johns
Monday, January 28, 2008
Justice B., P. (Orally):
On June 15th, 2007, the defendant, Steven Johns, was operating his motor vehicle eastbound on Belleview Side Road. The day was sunny and clear.
Officer Dale was operating an unmarked police cruiser on the same road and was proceeding westbound.
As per exhibit #1, the pictures of the road facing eastbound, Belleview Side Road is flat and straight with one lane in each direction. There is a double centre yellow line with breaks in the line for the eastbound traffic.
There is no dispute that the defendant pulled his vehicle into the westbound lane and proceeded to pass a vehicle, or vehicles, in front of him. The officer stated that the distance between her car and the defendant’s car was approximately 120 metres when he, the defendant, pulled out. The officer felt compelled to slow her vehicle dramatically and pull on to the shoulder in order to allow the defendant to complete his passing manoeuvre. The officer then pulled onto the roadway and chased the defendant for a short distance and he pulled onto the next intersecting road, Kennedy Road, and pulled over.
The officer was not sure how many vehicles that the defendant passed, but said it was at least one. The officer gave no evidence as to her rate of speed and gave no evidence as to the speed of any other vehicles on the road including the defendant’s, other than to say it was fast. She described that there were several vehicles in front of the defendant’s vehicle when he pulled out to pass.
It was clearly her opinion that this action of the defendant amounted to dangerous driving and she so charged the defendant. When at the roadside she described the defendant as polite and he was trying to provide an explanation for his attempt to pass.
The defendant, in his evidence, states that he was proceeding on Belleview Side Road and was not in any hurry. He says that there was a van in front of him, which was going under the speed limit, and he decided to pass. The defendant was originally going to pass, but saw a car approaching and he waited for that car to pass. He then pulled out and saw a beige vehicle approaching and felt he had enough time to pass the van and he sped up.
He thought that the van also started to speed up and seeing time and distance was short, he sped up to at least 110 kilometres an hour, pulled in front of the van and back into the eastbound lane.
He thought that the vehicle immediately behind him, before he went to pass, had closed the distance to the blue van and felt he had to pass the van to get back into the east lane.
The officer was of the opinion that the defendant was going to pass, or did pass, more than one vehicle. She said that she saw, after pulling over onto the shoulder, the brake lights of at least two vehicles in the eastbound lanes. This is, however, consistent with the defendant’s statement that he had passed one vehicle and another came up quickly behind the passed vehicle. The fact that when the officer turned around to go after the defendant and the vehicles moved out of her way when she went eastbound, is also equivocal. There were definitely two other vehicles and another may have gone past before the U-turn was made. It is not that the officer’s credibility is in any doubt. It is that she was in the course of manoeuvring her vehicle in an effort to avoid an accident. I would not expect her to observe all of the traffic around with any great precision at the same time.
By the same set of factors, I have no real reason to doubt the evidence of the defendant as to how he got to that point on Belleview Side Road and his observations, made over a distance of driving, as to the traffic in front and behind him. I note that the officer had only seconds to make similar observations.
I do accept the officer’s evidence that the actions of the defendant caused her to slow down precipitously and she felt the need for safety to pull onto the side of the road. As she was unsure of the exact number of vehicles that the defendant passed, I do not think that she was in a good position, she had to guide her own vehicle at the time, to see exactly what the defendant was doing.
Specifically, I don’t think that he was passing a “line of cars”. I do not think that he pulled out with the intention of forcing anyone off the road.
I do think, however, that the defendant made an error in judgment in the following way:
He pulled out to pass when the officer’s vehicle was too close to allow the manoeuvre to be done without the officer drastically reducing her speed. I think that he probably compounded the error by continuing to attempt to pass the other vehicle instead of trying to get back into his own position.
I do accept his evidence that it was his intention to pass one vehicle. I accept his evidence that the vehicle behind him began to move closer behind the vehicle that he was passing. I accept the general tenor of his evidence that this was an isolated action and not part and parcel of any improper driving manoeuvres up to that point.
I note, specifically, an absence of the following factors:
1. Any indication that the defendant was under the influence of alcohol or drug.
2. Any indication there was any other driving which could be considered in any way risky or dangerous.
3. Any indication that he was speeding on the road before he set out to pass.
4. Any indication that his vehicle was in poor mechanical condition or was in some way dangerous, i.e. bad tires.
5. Any indication there was some other motivation on the part of the defendant other that to simply pass a slower vehicle in front of him.
I now look at the legal framework. The section of the Criminal Code which is operative in this matter is section 249 (1) (a) which reads as follows:
“everyone commits an offence who operates a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.”
As the courts have pointed out on many occasions, there are essentially four different levels of culpability in dealing with the way in which our law treats the negligent operation of a motor vehicle.
At the lowest end of the scale is the civil finding of negligence in a civil case. In that situation there is no specific criminal culpability, although such culpability can exist, it is not necessary to prove it in the civil context. Within that civil context there have been two different levels developed over the years to take into account different fact situations, that being negligence and gross negligence.
Indeed, in the civil standard, where negligence in a proceeding can be apportioned amongst various parties by percentage, the driving fault can be an extremely minor one in order to attract liability.
At the low end of the criminal scale is “careless driving”, which is set out in section 130 of the Highway Traffic Act, and states:
“Every person is guilty of the offence of driving carelessly who drives a motor vehicle or streetcar on a highway without due care and attention or without reasonable consideration for other persons using the highway.”
Under the Criminal Code there are two provisions which deal with the various levels of fault in driving. The first being dangerous driving, which I have set out and which this gentleman is charged with. Another section is section 219 of the Criminal Code which, while not specifically dealing with motor vehicles, is applied to motor vehicles, and it reads:
“Everyone is criminally negligent who in doing anything, or in omitting to do anything that is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.”
For the purpose of this charge it is not necessary to exhaustively define the distinction between these varying levels of culpability. However, I note the leading case of Regina v. Hundal, Justice Cory, in speaking for the majority stated that:
“Thus it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accused subjectively intended, but rather whether, viewed objectively, the accused exercised the appropriate standard of care. There can be no doubt that the concept of negligence is well understood and recognized by Canadians. Negligent driving can be thought of as a continuant that progresses or regresses, from a momentary lack of attention, giving rise to civil responsibility through careless driving under Provincial Highway Traffic Act to dangerous driving under the Criminal Code.”
As for careless driving, there are causes that have held that a momentary inattentiveness or simple error of judgement is insufficient to justify a conviction of careless driving. I cite the case of Regina v. Namink, (1979) 27 Chitty’s Law Reports 289, decision of then County Court of Ontario.
The section which deals with inadvertent negligence contains an absolute prohibition and is directed to the regulation of traffic. The offence is committed by an absence of thought, care and attention per se and since there are no degrees of inadvertence it is unnecessary to consider the further factors.
Regina v. Hundal has some other words of direction and I read them as follows:
“It follows that a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was, it the words of the section, driving in a manner that was ‘dangerous to the public, having regard to all the circumstances, etcetera.’ In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.”
It is, therefore, clear that the standard of driving is a “marked departure from the standard of care that a reasonable person would observe.”
In addition, with regard to the issue of mens rea, the court adopted what it refers to as a “modified objective test”. As the court found Hundal, “to insist on a subjective mental element in connection with driving offences would be to deny reality. It cannot be forgotten that the operation of a motor vehicle is automatic and with very little conscious thought. It is simply inappropriate to apply a subjective test in determining whether an accused is guilty of dangerous driving.”
It is in the light of these directions that courts have attempted to apply these tests to the many and varied different fact situations that come before them. In Regina v. G. L.  O. J. 131, a decision of the Court of Appeal, it talked about the distinctions between dangerous driving and criminal negligence and stated:
“The lesser offence of dangerous driving requires that the accused’s conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation. It an explanation is offered by the accused for his driving, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risks and the danger involved in the conduct manifested by the accused. The standard is the modified objective standard.”
I also cite the decision of Justice Borins in Regina v. Sabela at 2005 CanLII 23222 another decision of the Ontario Court of Appeal where he states:
“The appropriate mens rea is based on a modified objective test. If it is proven, viewed objectively, that the accused was driving in a manner that that was dangerous to the public, having regard to all of the circumstances, and that the driving amounted to a marked departure from the standard of care that a reasonable person in the accused’s situation would observe, a conviction will result. If the accused gives what can be considered an innocent explanation of his manner of driving, the court must take into consideration and determine whether it is to be believed, or whether it raises a reasonable doubt.”
The court, in that case, went on to reiterate that any testimony of an accused, in these terms, must be assessed in accordance with the directions of Regina v. W. (D).
As provided to me by counsel, courts across Canada have wrestled with the application of the specific facts to the legal principals noted above.
In my opinion, being in the wrong lane of traffic raises the spectre of a “marked departure”. However, where there is a reasonable explanation, i.e. an intention to pass a slower vehicle, then I must assess his explanation, and if it provides an explanation which, if believed, would afford a defence, then I must acquit. As indicated by the defendant, the actions he took were clearly negligence, for which he would incur civil liability, if there was a subsequent collision. It is certainly an offence under several sections of the Highway Traffic Act, including section 148 (8), improper passing, and, perhaps, even section 130, careless driving.
However, in the final analysis and taking into account that the burden of proof rests squarely upon the Crown, I cannot say that I am convinced beyond reasonable doubt that the defendant’s driving, on that day, was a “marked departure from the standard of care that a reasonable person would observe in the accused’s situation.”
I must, therefore, make a finding of not guilty to the charge of dangerous driving under section 249 (1) (a) of the Criminal Code.