Superintendent of Motor Vehicles Prohibitions (13:VIII)

A. General

If an individual is charged with a negligent or dangerous driving offence that would result in imprisonment upon conviction, a referral to Legal Services Society (Legal Aid) for legal representation is appropriate. An accused who does not face the risk of imprisonment may receive legal representation from Legal Aid if he or she faces a loss of livelihood upon conviction, has a mental or physical disability that is a barrier to self-representation, or faces immigration complications that may result in deportation.

B. Provincial Driving Offences

1. Careless Driving

Under s 144(1) of the MVA, it is an offence to drive:

• a) without due care and attention;
• b) without reasonable consideration for other persons using the highway; or
• c) at a speed that is excessive given the road, traffic, visibility, or weather conditions.

A person who commits an offence under (a) or (b) is liable on conviction to a fine of not less than $100 (s 144(2)) and six points added to his or her driving record. Subject to the minimum fine, s 4 of the OA states that a fine must be less than $2,000. A person who commits an offence under (c) is liable on conviction to a fine of $173 and three penalty points as per the VTAFR and MVAR.

To convict a driver of any of these offences, the Crown must only prove inadvertent negligence: a lack of proper care or absence of thought. The standard of care is determined in relation to the circumstances and carelessness must be proved beyond a reasonable doubt: R v Beauchamp, [1952] OJ No 495, (1953)106 CCC 6 (Ont CA).

2. Road Racing

Part 7 of the MVA includes street racing provisions. This offence has recently become a major public issue and authorities treat it very seriously. Street racing will also be considered an aggravating factor for other offences including those in the Criminal Code. Clinicians should refer clients to a lawyer to seek advice with these problems.

“Race” includes circumstances in which, taking into account the condition of the road, traffic, visibility, and weather, the operator of a motor vehicle is operating the motor vehicle without reasonable consideration for other persons using the highway or in a manner that may cause harm to an individual, by doing any of the following:

• a) outdistancing or attempting to outdistance one or more other motor vehicles;
• b) preventing or attempting to prevent one or more other motor vehicles from passing; or
• c) driving at excessive speed in order to arrive at or attempt to arrive at a given destination ahead of one or more other motor vehicles.

According to s 243, a peace officer may cause a motor vehicle to be taken to and impounded for 30 days at a place directed by the peace officer if the peace officer has reasonable and probable grounds to believe that:

• a) a person has operated the motor vehicle on a highway in a race and the peace officer intends to charge the person who operated the motor vehicle with a serious offence; and;
• b) the person who operated the motor vehicle had, within two years before the day of the impoundment, operated a motor vehicle that was impounded under s 242 and that impoundment was not withdrawn under s 242(11).

C. Federal (Criminal) Driving Offences

1. Dangerous Operation of a Motor Vehicle

Under the Criminal Code, it is an offence to operate a motor vehicle in a manner that is dangerous to the public having regard to the nature, condition, and use of a highway or other public place as well as the amount of traffic that at the time is, or might reasonably be expected to be, at that place (Criminal Code s 249(1)(a)).

In the absence of death or bodily harm, an offender under s 249(1)(a) is guilty of an indictable offence and is liable to imprisonment for up to five years or is guilty of an offence punishable on summary conviction (s 249(2)).

If the dangerous driving results in bodily harm, an indictable offence has been committed and the driver may be liable to imprisonment for up to 10 years (s 249(3)). If the dangerous driving results in death, an indictable offence has been committed and the driver may be liable to imprisonment for up to 14 years (s 249(4)).

Dangerous driving (s 249) is included in the offences created under Criminal Code ss 220 (causing death by criminal negligence), 221 (causing bodily harm by criminal negligence), and 236 (manslaughter). If there is not enough evidence to prove one of the three offences above, it is still possible to convict under s 249 (Criminal Code s 662.5).

2. Criminal Negligence

This section is not specifically aimed at motor vehicle operators, but is applicable in some circumstances. Under the Criminal Code, criminal negligence involves acts or omissions showing “wanton or reckless disregard for the lives or safety of other persons” (s 219). In Canada, the law surrounding the mens rea requirements for criminal negligence was clarified in R v Creighton, [1993], SCJ No 91. The standard is to be measured by a modified objective test: whether the accused’s conduct constituted a marked departure from that of the reasonable person given all the circumstances. Characteristics personal to the accused will not be considered with the exception of accused’s incapacity to appreciate the nature of the risks associated with his or her actions.

In R v Beatty, 2008 SCC 5, [2008] SCJ No 5,the Court addressed the issue of criminal negligence in the context of dangerous driving. Unlike Creighton, there is no substantive dissent, though five of the newer Supreme Court justices took a slightly different approach to the modified objective test. They noted that the actual (subjective) state of mind of the accused at the time of the accident is relevant in determining if there was a marked departure from the standard of the reasonable person. In Beatty, a momentary lapse of attention with no other evidence of dangerous driving was held not sufficient to warrant criminal sanction under s 249 (criminal negligence causing death).

If the negligence results in death, an indictable offence has been committed and the driver may be liable to life imprisonment (s 220). If the negligence results in bodily injury, an indictable offence has been committed and the driver may be liable to imprisonment for 10 years (s 221).