By Rizwan Ahmad Khan Gondal
On occasions, as would be the case in appellate courts in most provinces, you would come across Judgments of the Supreme Court of Canada where the Court has not issued separate reasons for reaching its decision. In such cases, the Court simply adopts the reasoning of the lower court’s majority or minority opinion, whatever the case may be. This is a good practice in my opinion simply because such a practice saves a lot of time, energy and effort in duplicating what has already been outlined and analysed before. The November 16, 2015 judgment of the Supreme Court in the case of Hecimovic (2015 SCC 54) appears to be a judgment which does exactly that. In dismissing the defendant’s appeal, the Court refers to the reasons given by Mr. Justice Willcock and adopts those reasons as its own for reaching its judgment.
The case concerns an appeal from the British Columbia Court of Appeal allowing the Crown’s appeal to the acquittal of the accused charged under s249(1)(a) of the Criminal Code (RSC 1985, c C-46) for dangerous driving. The defendant had argued a lack of mens rea in the commission of the offence (R v Hecimovic, 2014 BCCA 483 at para 14). The actus reus of the offence was, however, not denied.
The British Columbia Court of Appeal, in reliance upon the reasoning outlined in Roy and Beatty, agreed with the Crown in that the trial judge had erred when she “considered the errors or omissions separately, [and when she] … placed significant weight on the subjective evidence of the respondent in holding [that her conduct did] not constitute a marked departure from the norm” (para 65). The Court held that “it was an error not to have considered the respondent’s conduct in light of all the relevant evidence in order to determine whether it was a marked departure from the standard of care expected of a reasonable person in the respondent’s circumstances. …the Crown’s submission that the analysis was inappropriately limited, [seems plausible] perhaps reflecting the Crown’s emphasis on its principal theory of guilt”. (para 74)
In analyzing the case, the trial judge relied upon the reasoning in R v Beatty (2008 SCC 5) where the Court had “held that a momentary lapse of attention by the accused did not satisfy the mens rea element, and, therefore, he was not criminally culpable” (para 18, 2014 BCCA 483). Re-enforcing that, in R v Roy (2012 SCC 26), Mr. Justice Cromwell outlined the mens rea element of the offence as that:
“The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48)”. (para 19)
“The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee 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”. (para 20)
The Crown argued that the trial judge ‘erred’ when she applied the subjective standard only and failed ‘to apply the modified objective test’ outlined in Roy. (para 21) The ‘modification’ in the objective test is created when the court suggested that the accused must be given ‘the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger’. (para 56)
It is noteworthy that although the Court of Appeal seems to have applied the correct standards concerning the mens rea of the offence, none of the courts seem to have pointed out the fact that the application of the objective standard is built into the statute itself and any deviation from the application of such a standard would in itself constitute an error of law. Section 249(1)(a), in relevant part, clearly states ‘the amount of traffic that at the time is or might reasonably be expected to be at that place’. The mention of the word ‘reasonably’ is an indication that the objective standard needed to have been applied to the conduct of the driver.