IX Criminal Negligence

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Alan D. Gold (Main Title Contributor) (Updates prepared by LexisNexis Canada Inc.) Halsbury's Laws of Canada - Criminal Offences and Defences IX. CRIMINAL NEGLIGENCE AND RECKLESSNESS

1. Criminal Negligence Generally
HCR-310 Criminal negligence. ___________________________________________________ Cumulative Supplement - Current to December 1, 2009 Note 3 Footnote 3 should read: R. v. F. (J.), [2007] O.J. No. 2632 , 222 C.C.C. (3d) 474 (Ont. C.A.), vard [2008] S.C.J. No. 62 , [2008] 3 S.C.R. 215 (S.C.C.). Note 4 In R. v. F. (J.), [2008] S.C.J. No. 62 , [2008] 3 S.C.R. 215 (S.C.C.) the Supreme Court of Canada considered the offence of manslaughter by criminal negligence in the context of failing to provide proper to care to a child: criminal negligence required proof that the same omission represented a marked and substantial departure from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the child's life or gave no thought to that risk. Note 16 Footnote 16 should read: R. v. Peterson, [2007] O.J. No. 4450 , 201 C.C.C. (3d) 220 (Ont. C.A.). See also R. v. F. (J.), [2007] O.J. No. 2632 , 222 C.C.C. (3d) 474 (Ont. C.A.), vard [2008] S.C.J. No. 62 , [2008] 3 S.C.R. 215 (S.C.C.). Note 29 (CAN) Truth in Sentencing Act, S.C. 2009, c. 29, s. 3 received Royal Assent on October 22, 2009 and upon proclamation will amend (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 719(3) to provide that in determining the sentence to be imposed on a person convicted of an offence, a court may grant credit for time spent by the person in pretrial custody, but the court shall generally limit any credit for that time to a maximum of one day for each day spent in custody. Exceptions to this general rule are outlined in s. 719(3.1). ___________________________________________________ HCR-310 Criminal negligence. It is an indictable offence to cause either death or bodily harm to another person by criminal negligence.1 A person is criminally negligent when he or she shows wanton or reckless disregard for the lives or safety of other persons while doing anything, or while not doing anything that it is that person's duty to do. "Duty" in this context means a duty imposed by law.2 The conduct must constitute a marked and substantial departure from what a reasonably prudent person would do under the circumstances. 3 The extent of criminal liability depends on the consequences of the negligent act or failure to act. "Criminal negligence" has been the subject of intense and somewhat opaque consideration by the courts.4 Criminal negligence does not require proof of intention or deliberation; indifference is sufficient. 5 It is an error to charge a jury that the offence requires deliberateness or wilfulness.6 Such criminal negligence liability does not violate the Charter. 7 On the other hand, an honest though mistaken belief, for example, that a child does not need medical assistance, negatives criminal negligence even though the child does in fact need assistance and the accused's belief was not one a reasonable parent would have held.8

Commission and omission. There appears to be no distinction, as regards the requisite mens rea, between criminal negligence founded upon acts of commission or omission. 9 However, it has been suggested there may be situations where a failure to act where there is a duty to do so will not fall below the legal standard for criminal negligence, whereas actions that actually create a risk will do so.10 Legal duty. The requisite "duty imposed by law" may be a duty arising from statute or common law.11 A parent is under a common law duty to protect a child from violence by the other parent and breach of that duty can found liability for criminal negligence.12 The mere breach of a duty imposed by provincial statute does not per se constitute criminal negligence.13 The legislation that governs the particular activity in which the accused is engaged is relevant to consider.14 Causing death. Foreseeability of the risk of death is not required. 15 Causation in the homicide context requires that the accused's acts be a significant contributing cause to the death.16 The accused can be convicted even though there was no physical contact between his vehicle and the deceased's, where he raced with another car which in fact collided with the deceased's vehicle.17 "Person" should be interpreted to mean the same as "human being" for the homicide provisions and does not include an unborn baby not yet born alive and completely extruded from the mother. 18 The culpability of the surviving driver for the death of his opponent in a drag race poses issues of causation. 19 Criminal negligence causing death is also a form of culpable homicide.20 Bodily harm. This means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.21 Bruises have been held not to constitute bodily harm;22 however, facial bruises and a laceration on the back of the complainant's head that required 10 days to heal were considered bodily harm.23 There is no necessary connection between the duration of the injury and the question whether it is trifling. A life-threatening injury is often resolved in a short time.24 Subjective factors. Outside the motor vehicle context, the main unsettled issue is whether proof of some subjective blameworthy state of mind, described as advertence to the risk, is required. Non-culpable factors affecting capacity to perceive and assess risk, such as mental retardation, must be considered by the trier of fact in assessing liability.25 Age and immaturity are also relevant to the assessment of criminal negligence. In assessing the conduct of a 16-year-old accused who pushed his playmate downstairs, the standard for assessment is that of a reasonable sane and sober 16-yearold.26 Punishment. The maximum punishment for criminal negligence causing death is imprisonment for life. Where a firearm is used in the commission of the offence, the minimum punishment is imprisonment for a term of four years.27 This four-year minimum sentence does not violate the guarantee against grossly disproportionate sentences under s. 12 of the Charter of Rights,28 but may be reduced by pre-trial custody credit29 to a sentence imposed of less than four years.30 The mandatory requirement is satisfied so long as the sentence imposed plus any pre-trial custody credit totals a punishment of at least four years. The sentence over and above the pre-trial custody credit commences when imposed. The maximum punishment for criminal negligence causing bodily harm is imprisonment for a term not exceeding ten years.31
Footnote(s) 1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 219. 2 R. v. F. (J.), [2007] O.J. No. 2632 , 2007 ONCA 500 (Ont. C.A.). 3 R. v. Waite, [1989] S.C.J. No. 61 , 48 C.C.C. (3d) 1 , 69 C.R. (3d) 323 (S.C.C.); R. v. Tutton, [1985] O.J. No. 44 , 18 C.C.C. (3d) 328 , 44 C.R. (3d) 193 (Ont. C.A.), affd [1989] S.C.J. No. 60 , 69 C.R. (3d) 289 (S.C.C.). See also R. v. Sharp, [1984] O.J. No. 46 , 12 C.C.C. (3d) 428 , 39 C.R. (3d) 367 (Ont. C.A.); R. v. Nelson, [1990] O.J. No. 139 , 54 C.C.C. (3d) 285 , 75 C.R. (3d) 70 (Ont. C.A.); R. v. Cabral, [1990] O.J. No. 138 , 54 C.C.C. (3d) 317 (Ont. C.A.); R. v. Anderson, [1990] S.C.J. No. 14 , 53 C.C.C. (3d) 481 , 75 C.R. (3d) 50 (S.C.C.). 4 R. v. Sharp, [1984] O.J. No. 46 , 12 C.C.C. (3d) 428 , 39 C.R. (3d) 367 (Ont. C.A.). 5 R. v. Waite, [1989] S.C.J. No. 61 , 48 C.C.C. (3d) 1 , 69 C.R. (3d) 323 (S.C.C.) and R. v. Tutton, [1985] O.J. No. 44 , 18 C.C.C. (3d) 328 , 44 C.R. (3d) 193 (Ont. C.A.), affd [1989] S.C.J. No. 60 , 69 C.R. (3d) 289 (S.C.C.). 6 R. v. Nelson, [1990] O.J. No. 139 , 54 C.C.C. (3d) 285 , 75 C.R. (3d) 70 (Ont. C.A.). 7 R. v. Tutton, [1985] O.J. No. 44 , 18 C.C.C. (3d) 328 , 44 C.R. (3d) 193 (Ont. C.A.), affd [1989] S.C.J. No. 60 , 69 C.R. (3d) 289 (S.C.C.). 8 R. v. Waite, [1989] S.C.J. No. 61 , 48 C.C.C. (3d) 1 , 69 C.R. (3d) 323 (S.C.C.) and R. v. Tutton, [1985] O.J. No. 44 , 18 C.C.C. (3d) 328 , 44 C.R. (3d) 193 (Ont. C.A.), affd [1989] S.C.J. No. 60 , 69 C.R. (3d) 289 (S.C.C.).

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9 R. v. Canhoto, [1999] O.J. No. 4601 , 140 C.C.C. (3d) 321 , 29 C.R. (5th) 170 (Ont. C.A.). 10 R. v. Coyne (1958), 124 C.C.C. 176 , 31 C.R. 335 (N.B.C.A.). 11 R. v. Popen, [1981] O.J. No. 921 , 60 C.C.C. (2d) 232 (Ont. C.A.). 12 R. v. Titchner, [1961] O.J. No. 571 , 35 C.R. 111 (Ont. C.A.); R. v. Leblanc, [1991] A.Q. no 282 , 4 C.R. (4th) 98 (Que. C.A.). 13 R. v. Leblanc, [1991] A.Q. no 282 , 4 C.R. (4th) 98 (Que. C.A.). 14 R v. Pinske, [1988] B.C.J. No. 1392 , 30 B.C.L.R. (2d) 114 , 6 M.V.R. (2d) 19 (B.C.C.A.), affd [1989] S.C.J. No. 106 , [1989] 2 S.C.R. 979 , 100 N.R. 399 (S.C.C.) (7:0). 15 R. v. Nette, [2001] S.C.J. No. 75 , [2001] 3 S.C.R. 488 , 158 C.C.C. (3d) 486 , 46 C.R. (5th) 197 (S.C.C.). 16 R. v. Rotundo, [1993] O.J. No. 1836 , 47 M.V.R. (2d) 90 (Ont. C.A.); R. v. Olivier, [2002] J.Q. no 1019 (Que. C.A.). 17 R. v. Sullivan, [1991] S.C.J. No. 20 , 63 C.C.C. (3d) 97 (S.C.C.). 18 R. v. Menezes, [2002] O.J. No. 551 (Ont. S.C.J.). 19 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 222(5)(b). 20 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 2. 21 R. v. Dupperon, [1984] S.J. No. 939 , 16 C.C.C. (3d) 453 (Sask. C.A.). 22 R. v. Dixon, [1988] B.C.J. No. 774 , 42 C.C.C. (3d) 318 (B.C.C.A.). 23 R. v. Dixon, [1988] B.C.J. No. 774 , 42 C.C.C. (3d) 318 , per Esson J.A. (B.C.C.A.). 24 R. v. Ubhi, [1994] B.C.J. No. 255 , 27 C.R. (4th) 332 (B.C.C.A.). 25 R. v. Barron, [1985] O.J. No. 231 , 23 C.C.C. (3d) 544 , 48 C.R. (3d) 334 (Ont. C.A.). 26 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 220. 27 R. v. Lapierre, [1998] A.Q. no 91 , 123 C.C.C. (3d) 332 (Que. C.A.); R. v. Roberts, [1998] N.B.J. No. 160 , 125 C.C.C. (3d) 471 (N.B.C.A.). 28 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 719(3). 29 R. v. Wust, [2000] S.C.J. No. 19 , [2000] 1 S.C.R. 455 , 143 C.C.C. (3d) 129 , 32 C.R. (5th) 58 (S.C.C.); R. v. Arrance, [2000] S.C.J. No. 21 , [2000] 1 S.C.R. 488 , 143 C.C.C. (3d) 154 (S.C.C.); R. v. Arthurs, [2000] S.C.J. No. 20 , [2000] 1 S.C.R. 481 , 143 C.C.C. (3d) 149 (S.C.C.); R. v. Morrisey, [2000] S.C.J. No. 39 , [2000] 2 S.C.R. 90 , 148 C.C.C. (3d) 1 , 36 C.R. (5th) 85 (S.C.C.); R. v. McDonald, [1998] O.J. No. 2990 , 127 C.C.C. (3d) 57 , 17 C.R. (5th) 1 (Ont. C.A.). 30 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 221. 31 See (CAN) Criminal Code, R.S.C. 1985, c. C-46, ss. 220, 221 and the discussion above at HCR-310 regarding criminal negligence generally.

Alan D. Gold (Contributor) Halsbury's Laws of Canada - Criminal Offences and Defences IX. CRIMINAL NEGLIGENCE AND RECKLESSNESS

2. Use and Operation of Motor Vehicles, Vessels and Aircraft
HCR-311 Criminal negligence. HCR-311 Criminal negligence. It is an indictable offence to cause either death or bodily harm to another person by criminal negligence.1 The offence of criminal negligence causing death is at the high end of a continuum of moral blameworthiness. A lesser offence along the same continuum is the dangerous operation of a motor vehicle, which requires that the vehicle be driven, "in a manner that is dangerous to the public, having regard to all the circumstances."2 At the lower end of the continuum is careless driving under provincial legislation. 3 Whether specific conduct should be categorized as criminal negligence is one of the most difficult and uncertain areas in the criminal law. Criminal negligence requires a more elevated standard than the modified objective standard applicable to dangerous driving. The departure from the norm must be more marked in both the physical and the mental elements of the offence. The requirement for a greater marked departure in both the physical and mental elements is consistent with the higher level of moral blameworthiness associated with criminal negligence, namely, wanton or reckless disregard for the life or safety of others. Both the physical and mental elements of the offence of criminal negligence must meet a higher standard than that of dangerous driving.4 The offence has, therefore, been described as requiring "proof of driving amounting to a marked and substantial departure from the standard of a reasonable driver in circumstances where the accused either recognized and ran an obvious and serious risk to the lives and safety of others or alternatively gave no thought to the risk".5 Alternatively, criminal negligence has been described as requiring a reckless disregard while dangerous driving requires only a "marked departure" from the standard of reasonable driving conduct.6 The difference seems one of degree only.7 Included offences. Dangerous driving is an included offence on a charge of criminal negligence causing death or bodily harm arising from the operation of a motor vehicle, vessel or aircraft.8 Punishment. The maximum punishment for criminal negligence causing death is imprisonment for life.9 The same applies if the accused is engaged in street racing at the time.10 The maximum punishment for criminal negligence causing bodily harm is imprisonment for a term not exceeding 10 years.11 If the accused is engaged in street racing at the time, the maximum punishment is 14 years.12 Where the offence is committed by means of a motor vehicle, vessel or aircraft and alcohol is involved, evidence that the accused's blood alcohol level exceeded .160 at the time when the offence was committed is deemed to be an aggravating factor on sentencing.13 The court may make a discretionary order of prohibition against driving order upon a finding of guilt.14
Footnote(s) 1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 249. 2 For example, s. 130 of the (ON) Highway Traffic Act, R.S.O. 1990, c. H.8. 3 R. v. L. (J.), [2006] O.J. No. 131 (Ont. C.A.). 4 R. v. Sharp, [1984] O.J. No. 46 , 12 C.C.C. (3d) 428 , 39 C.R. (3d) 367 (Ont. C.A.). See also R. v. J.L., [2006] O.J. No. 131 (Ont. C.A.). 5 R. v. Fortier, [1998] A.Q. no 2449 , 127 C.C.C. (3d) 217 (Que. C.A.).

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6 The difference between criminal negligence and dangerous operation in the context of a motor vehicle was considered in detail in R. v. J.L., [2006] O.J. No. 131 at paras. 14-17 (Ont. C.A.). 7 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 662(5). 8 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 220. 9 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 249.2. 10 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 221. 11 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 249(3). 12 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 255.1. 13 (CAN) Criminal Code, R.S.C. 1985, c. C-46, ss. 259, 260 and 261. 14 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 249(1).

Alan D. Gold (Main Title Contributor) (Updates prepared by LexisNexis Canada Inc.) Halsbury's Laws of Canada - Criminal Offences and Defences IX. CRIMINAL NEGLIGENCE AND RECKLESSNESS

2. Use and Operation of Motor Vehicles, Vessels and Aircraft
HCR-312 Dangerous operation of motor vehicles, vessels and aircraft. ___________________________________________________ Cumulative Supplement - Current to December 1, 2009 Note 2 A momentary lapse of attention resulting in the driver crossing the centre line and killing three occupants of an oncoming vehicle is insufficient to support a finding of marked departure from the standard of care of a reasonably prudent driver. Such a momentary act of negligence is therefore insufficient to constitute dangerous operation of a motor vehicle causing death within the meaning of s. 249(4) of the Criminal Code: R. v. Beatty, [2008] S.C.J. No. 5 , [2008] 1 S.C.R. 49 (S.C.C.). See also R. v. Song, [2009] B.C.J. No. 1698 , 274 B.C.A.C. 86 (B.C.C.A.); R. v. McIvor, [2009] B.C.J. No. 2408 (B.C.C.A.). Note 6 If an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk. Short of incapacity to appreciate the risk or incapacity to avoid creating it, the accused's personal attributes such as age, experience and education are not relevant. The standard against which the conduct must be measured is the conduct expected of the reasonably prudent person in the circumstances. However, the reasonable person must be put in the accused's circumstances at the time when the events occurred in order to assess the reasonableness of the conduct: R. v. Beatty, [2008] S.C.J. No. 5 , [2008] 1 S.C.R. 49 (S.C.C.). Note 7 The Crown is required to prove both the actus reus and the mens rea of the offence of dangerous operation of a motor vehicle. With respect to the actus reus, the accused's conduct must be measured against the wording of s. 249 of the Criminal Code. It is the manner in which the vehicle was being driven that is at issue, and not the consequences of the driving, although the consequence of causing death may make the offence a more serious one under s. 249(4): R. v. Beatty, [2008] S.C.J. No. 5 , [2008] 1 S.C.R. 49 (S.C.C.). Note 11 In R. v. Jiang, [2007] B.C.J. No. 928 , 220 C.C.C. (3d) 55 (B.C.C.A.), a driver who fell asleep at the wheel was acquitted of dangerous driving causing bodily harm and dangerous driving causing death. A sleeping driver is not driving of his or her own volition and acts committed while in that automatic state of mind cannot form the actus reus of dangerous driving. However, a sleeping driver could be convicted of dangerous driving where the actus reus was found to be embarking on driving or continuing to drive in the face of a real risk of falling asleep. In R. v. Smith, [2007] A.J. No. 1207 , 77 W.C.B. (2d) 308 (Alta. Q.B.), the court convicted the accused of dangerous driving offences, finding that the driver, who was in a sleep-deprived condition and felt tired, knew or ought to have known that it was dangerous for him to drive when he was that tired, and there was a real risk that he would fall asleep at the wheel. ___________________________________________________ HCR-312 Dangerous operation of motor vehicles, vessels and aircraft. It is an offence to operate motor vehicles,

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sea-going vessels, aircraft or railway equipment in a manner that is dangerous to the public, having regard to all the circumstances. These circumstances include: o o o o for motor vehicles, 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; for vessels or any water skis, surf-board, water sled or other towed object on or over any of the internal waters of Canada or the territorial sea of Canada, the nature and condition of those waters or sea and the use that at the time is or might reasonably be expected to be made of those waters or sea; for aircraft, the nature and condition of that aircraft or the place or air space in or through which the aircraft is operated; and for railway equipment, the nature and condition of the equipment or the place in or through which the equipment is operated.1

Elements of offence. Dangerous driving is driving which involves a "significant" or "marked" departure from the standard of a reasonable prudent person.2 The mental element is assessed objectively, but in the context of all the events surrounding the incident.3 It is error to equate dangerous driving to failing to exercise the standard of care of a prudent driver.4 The proper test of causation is whether the accused's conduct was a contributing cause beyond the de minimis range.5 It need not be proved that the accused's driving was a "substantial" cause. The Crown is not required to prove the accused's knowledge of the danger his driving created, or to prove recklessness, or deliberateness on the part of the driver. The only guilty intention required on a charge of dangerous driving is that which may reasonably be inferred from the driver's conduct. It remains open to an accused to lead evidence of an explanation that would displace, or cast reasonable doubt upon, the common sense inference which might otherwise be drawn.6 Nor are trial courts required to conduct a frame-by-frame, tomographic-slice analysis of the evidence in dangerous driving cases to determine what piece or pieces of negligence fostered an accident. It is the sum of the driving pattern that prevails, a sum that may be greater than its parts. The establishment of dangerous driving is a direct exercise in the finding of facts and applying the criteria of the offence to them.7 Alcohol consumption. Evidence of alcohol consumption by the driver is always admissible on a charge of dangerous driving. It is relevant to show the cause of the dangerous driving, and to negate any defence that the driving was the result of something beyond the control of the accused.8 However other courts have said it is error to consider alcohol consumption in deciding a dangerous driving case.9 It may be that evidence of speed alone will not necessarily support a conviction of dangerous driving, in combination with other factors it may make the accused's driving constitute of dangerous driving.10 The mere breaching of a provincial traffic law is not sufficiently dangerous to constitute a criminal offence without a further evidentiary finding. Neither speeding nor driving through two stop signs necessarily constituted dangerous driving in the circumstances which existed in one case.11 The accused was convicted of dangerous driving causing death in the following situations: o o o Driving at a high rate of speed through a red light and hitting a motorcycle, causing fatalities of the two passengers, thereby causing a fatal accident, where the motorcycle should have been plainly visible and the accused had no explanation. 12 Driving on a busy highway at night, with a blood alcohol content of 50 mg, while extremely tired to the point the accused fell asleep and veered over to the wrong side of the road.13 Seizing the wheel of a motor vehicle, which was being driven properly by another, causing the vehicle to be out of control.14

Public. The "public" contemplated by the section includes a passenger and the police officer giving chase. 15 Comparison with criminal negligence. 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. If 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 risk and of the danger involved in the conduct manifested by the accused. The standard is the modified objective standard, which is constitutionally valid.16 However, criminal negligence requires a more elevated standard. The departure from the norm must be more marked in both the physical and the mental elements of the offence, consistent with the higher level of moral blameworthiness associated with criminal negligence, namely, wanton or reckless disregard for the life or safety of others. Both the physical and mental elements of the offence of criminal negligence must meet a higher standard than that of dangerous driving.17

Procedure and punishment. Dangerous operation of a motor vehicle, sea-going vessels aircraft or railway equipment is a hybrid offence. The maximum sentence when prosecuted by indictment is five years imprisonment. Where bodily harm or death is thereby caused, the offence is an indictable offence, and the maximum sentence is 10 years imprisonment when bodily harm to another person results, or 14 years imprisonment when the death of any other person results.18 A sentencing judge is bound by the express and implied factual implications of the jury's verdict. Where, on counts of dangerous driving causing death and bodily harm, a jury convicts only of dangerous driving simpliciter, they have negated the factor of causation. Since Parliament has made such causation is an element of the more serious offences, therefore the consequence of death or bodily harm must be taken to be excluded under a determination of guilt of dangerous driving simpliciter.19 A discretionary driving prohibition order may be granted upon a finding of guilt.20 Where this offence is committed by means of a motor vehicle, vessel or aircraft and alcohol is involved, evidence that the accused's blood alcohol level exceeded .160 at the time when the offence was committed is deemed to be an aggravating factor on sentencing.21 Included offences. Impaired driving is not an included offence in dangerous driving. 22 Convictions cannot be entered for both dangerous driving and impaired driving where the act that amounted to dangerous driving was operating a motor vehicle while the ability to do so was impaired by alcohol. 23 However, where the impaired driving is based upon the impairment of capacity followed by driving and does not encompass the manner of driving that forms part of the sequence of acts constituting criminal negligence, the accused can be convicted of both impaired driving causing bodily harm and criminal negligence causing bodily harm.24 Similarly with regard to criminal negligence causing death and impaired driving causing death.25 Street racing. It is an offence to engage in dangerous driving while street racing 26 -- i.e., operating a motor vehicle in a race with at least one other motor vehicle on a street, road, highway or other public place. 27 This is a hybrid offence. The maximum sentence when prosecuted by indictment is five years imprisonment. 28 Where bodily harm or death is thereby caused, the offence is an indictable offence and the maximum sentence is 14 years imprisonment when bodily harm to another person results, or life imprisonment when the death of any other person results.29
Footnote(s) 1 R. v. MacGillivray, [1995] S.C.J. No. 20 , [1995] 1 S.C.R. 890 , 37 C.R. (4th) 221 (S.C.C.); R. v. Rai, [1993] B.C.J. No. 2376 , 86 C.C.C. (3d) 122 (B.C.C.A.); R. v. Blenner-Hassett, [1993] B.C.J. No. 2463 , 86 C.C.C. (3d) 199 , 50 M.V.R. (2d) 241 (B.C.C.A.); R. v. Topping, [1993] B.C.J. No. 2517 , 26 C.R. (4th) 396 , 50 M.V.R. (2d) 274 (B.C.C.A.). 2 R. v. Hundal, [1993] S.C.J. No. 29 , 79 C.C.C. (3d) 97 , 19 C.R. (4th) 169 (S.C.C.). 3 R. v. Bartlett, [1998] O.J. No. 1608 , 124 C.C.C. (3d) 417 , 15 C.R. (5th) 35 (Ont. C.A.). 4 R. v. Arsenault, [1992] P.E.I.J. No. 128 , 16 C.R. (4th) 301 (P.E.I.C.A.). 5 R. v. Piluke, [1993] B.C.J. No. 2412 , 86 C.C.C. (3d) 1 (B.C.C.A.). 6 R. v. F. (D.), [1989] A.J. No. 1040 , 52 C.C.C. (3d) 357 , 73 C.R. (3d) 391 (Alta. C.A.). 7 R. v. Peda, [1968] O.J. No. 1278 , 4 C.R.N.S. 161 (Ont. C.A.); R. v. McDowell, [1980] O.J. No. 488 , 52 C.C.C. (2d) 298 (Ont. C.A.). 8 R. v. Churchill, [2002] B.C.J. No. 2949 (B.C.C.A.). 9 R. v. Quesnel, [1996] B.C.J. No. 1137 , 20 M.V.R. (3d) 46 (B.C.C.A.); R. v. St. Pierre, [2005] B.C.J. No. 3131 (B.C.S.C.). 10 R. v. Mann, [2006] S.J. No. 569 (Sask. Q.B.). 11 R. v. Fotti, [1978] M.J. No. 6 , 45 C.C.C. (2d) 353 (Man. C.A.). 12 R. v. Mason, [1990] B.C.J. No. 2052 , 60 C.C.C. (3d) 338 (B.C.C.A.). 13 R. v. Belanger, [1970] S.C.J. No. 22 , [1970] 2 C.C.C. 206 , 10 C.R.N.S. 373 (S.C.C.); R. v. J.L., [2006] O.J. No. 131 (Ont. C.A.). 14 R. v. Edlund, [1990] A.J. No. 162 , 23 M.V.R. (2d) 31 (Alta. C.A.). See also R. v. MacPhee, [1977] N.S.J. No. 595 , 38 C.C.C. (2d) 49 (N.S.C.A.). 15 R. v. Hundal, [1993] S.C.J. No. 29 , 79 C.C.C. (3d) 97 , 19 C.R. (4th) 169 (S.C.C.); R. v. Demeyer, [1986] A.J. No. 315 , 27 C.C.C. (3d) 575 (Alta. C.A.).

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16 R. v. J.L., [2006] O.J. No. 131 (Ont. C.A.). 17 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 249(2)-(4). 18 R. v. Brown, [1991] S.C.J. No. 57 , 66 C.C.C. (3d) 1 , 6 C.R. (4th) 353 (S.C.C.). 19 (CAN) Criminal Code, R.S.C. 1985, c. C-46, ss. 259, 260 and 261. 20 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 255.1. 21 R. v. Rodgers (1952), 103 C.C.C. 97 , 15 C.R. 55 (B.C.C.A.). 22 R. v. Colby, [1989] A.J. No. 1041 , 52 C.C.C. (3d) 321 (Alta. C.A.). 23 R. v. Andrew, [1990] B.C.J. No. 1364 , 57 C.C.C. (3d) 301 , 78 C.R. (3d) 239 (B.C.C.A.). 24 R. v. Plante, [1997] A.Q. no 3188 , 120 C.C.C. (3d) 323 (Que. C.A.). 25 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 294.4(1). 26 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 2 "street racing". 27 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 294.4(2). 28 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 294.4(3)-(4). 29 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 249.1(1).

Alan D. Gold (Main Title Contributor) (Updates prepared by LexisNexis Canada Inc.) Halsbury's Laws of Canada - Criminal Offences and Defences IX. CRIMINAL NEGLIGENCE AND RECKLESSNESS

2. Use and Operation of Motor Vehicles, Vessels and Aircraft
HCR-313 Flight. ___________________________________________________ Cumulative Supplement - Current to December 1, 2009 Note 6 In R. v. Kulchisky, [2007] A.J. No. 323 , 73 W.C.B. (2d) 38 (Alta. C.A.), a charge of leaving the scene of an accident was judicially stayed, where the accused was also convicted of flight from police and the charges arose out of the same conduct. ___________________________________________________ HCR-313 Flight.It is an offence to operate a motor vehicle while being pursued by a peace officer and fail to stop the vehicle as soon as is reasonable in the circumstances without reasonable excuse and in order to evade the peace officer.1 Procedure and punishment. The offence of flight is a hybrid offence. The maximum sentence when prosecuted by indictment is five years imprisonment. 2 However, where the flight results in bodily harm to or the death of another person by dangerous operation of a motor vehicle, the offence is indictable and the maximum sentence is 14 years imprisonment where bodily harm was caused, and life imprisonment where death was caused.3 A discretionary driving prohibition order may be granted upon a finding of guilt.4 Where this offence is committed by means of a motor vehicle, vessel or aircraft and alcohol is involved, evidence that the accused's blood alcohol level exceeded .160 at the time when the offence was committed is deemed to be an aggravating factor on sentencing. 5 Double jeopardy. Under the Kienapple principle, a charge of failing to stop his vehicle for police was stayed conditionally upon the accused's conviction for dangerous driving.6
Footnote(s) 1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 249.1(1). 2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 249.1(2). 3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, ss. 259, 260 and 261. 4 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 255.1. 5 R. v. McDermott, [2004] B.C.J. No. 709 (B.C. Prov. Ct.). 6 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 250(1).

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Alan D. Gold (Contributor) Halsbury's Laws of Canada - Criminal Offences and Defences IX. CRIMINAL NEGLIGENCE AND RECKLESSNESS

2. Use and Operation of Motor Vehicles, Vessels and Aircraft
HCR-314 Towing a water skier. HCR-314 Towing a water skier. While towing a person on any water skis, surf-board, water sled or other object, it is an offence punishable on summary conviction to operate a vessel: o o when there is not on board such vessel another responsible person keeping watch on the person being towed;1 during the period from one hour after sunset to sunrise.2

This offence is not engaged where a person is towed by a remote-controlled water-skiing device.3
Footnote(s) 1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 250(2). 2 R. v. Gatt, [1992] B.C.J. No. 970 , 72 C.C.C. (3d) 146 (B.C.S.C.). 3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 251(1).

Alan D. Gold (Contributor) Halsbury's Laws of Canada - Criminal Offences and Defences IX. CRIMINAL NEGLIGENCE AND RECKLESSNESS

2. Use and Operation of Motor Vehicles, Vessels and Aircraft
HCR-315 Unseaworthy vessel and unsafe aircraft. HCR-315 Unseaworthy vessel and unsafe aircraft. It is an indictable offence to endanger the life of any person by knowingly: o o o send or be the master of a unseaworthy vessel that is federally registered and that is on a voyage from a place in Canada to any other place in or out of Canada, or from a place on the inland waters of the U.S. to a place in Canada, send or operate an aircraft that is not fit and safe for flight on a flight, or send for operation or operates railway equipment that is not fit and safe for operation. 1

Defences. An accused is not to be convicted of an offence under this section where the accused establishes that: o o the accused used all reasonable means to ensure that the vessel was seaworthy, the aircraft was fit and safe for flight, or the railway equipment was fit and safe for operation; to send or take the vessel while it was unseaworthy, to send or operate the aircraft while it was not fit and safe for flight, or to send the railway equipment for operation or to operate it while it was not fit and safe for operation was, under the circumstances, reasonable and justifiable.2

Procedure and punishment. These offences are not to be prosecuted without the consent in writing of the Attorney General of Canada. The maximum sentence is five years imprisonment. 3
Footnote(s) 1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 251(2). 2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 251(1). 3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 252(2).

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Alan D. Gold (Main Title Contributor) (Updates prepared by LexisNexis Canada Inc.) Halsbury's Laws of Canada - Criminal Offences and Defences IX. CRIMINAL NEGLIGENCE AND RECKLESSNESS

2. Use and Operation of Motor Vehicles, Vessels and Aircraft
HCR-316 Failure to stop at scene of accident. ___________________________________________________ Cumulative Supplement - Current to December 1, 2009 Note 18 In R. v. Kulchisky, [2007] A.J. No. 323 , 73 W.C.B. (2d) 38 (Alta. C.A.), a charge of leaving the scene of an accident was judicially stayed, where the accused was also convicted of flight from police and the charges arose out of the same conduct. ___________________________________________________ HCR-316 Failure to stop at scene of accident. It is an offence for a person who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with another person, a vehicle, vessel or aircraft, or cattle in the charge of another person, to fail to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance, with intent to escape civil or criminal liability.1 An "accident" is any incident in which a person so operates a vehicle so as to cause injury to another person or vehicle, whether the striking is intentional or unintentional. 2 Contact between the accused's car and a motorcyclist was found to constitute an "accident" even though no damage was caused.3 The section does not extend to deliberate act of mischief by use of vehicle to damage another vehicle.4 A sleeping passenger owner does not have "care, charge or control".5 The accused must know of the accident before there can be any inference of an intent to escape liability therefor.6 The civil or criminal liability a person must intend to escape from in failing to remain at the scene must be a liability in connection with the accident. It does not cover "liability" such as being arrested for robbery 7 or avoiding outstanding unpaid fines8 or liability for driving while suspended.9 Presumption. Evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.10 This presumption should be read disjunctively. It applies on proof of a breach of any one of the three duties.11 The accused need not disprove the requisite specific intent. The presumption is displaced by evidence capable of raising a doubt regarding the accused's intent. 12 Absent the presumption, the Crown must prove the requisite specific criminal intent beyond a reasonable doubt.13 Evidence that the accused had stopped, examined the vehicle he had struck, found no no one available in the vicinity, left with the intention to make a report in the morning and did in fact report it, was held to show lack of the requisite intent to escape liability.14 Evidence of drunkenness can constitute "evidence to the contrary" to refute the requisite specific intent.15 The presumption violates s. 11(d) of the Charter, but is saved by s. 1.16 Procedure and punishment. The offence is a hybrid offence, except where bodily harm or death results, in which case the offence is indictable. The maximum sentence when prosecuted by indictment is five years imprisonment, 10 years where the accused knew that bodily harm had been caused to another person involved in the accident, and life imprisonment where the accused knew that another person involved in the accident is dead or that bodily harm had been caused to another person involved in the accident and was reckless as to whether the death of the other person resulted from that bodily harm, and the death of that other person so results.17 The Crown cannot rely on the greater punishments if bodily harm or death results in sentencing unless it has alleged in the Information facts which bring into play those sub-

sections. 18 The accused is entitled to know the extent of the jeopardy he or she faces (including the applicable maximum penalty) before being called upon to make decisions about how they will respond. A discretionary driving prohibition order upon a finding of guilt may be granted.19 Where this offence is committed by means of a motor vehicle, vessel or aircraft and alcohol is involved, evidence that the accused's blood alcohol level exceeded .160 at the time when the offence was committed is deemed to be an aggravating factor on sentencing. 20
Footnote(s) 1 R. v. Hansen, [1988] B.C.J. No. 2600 , 46 C.C.C. (3d) 504 (B.C.C.A.). See also R. v. Mihalick, [1991] B.C.J. No. 144 , 28 M.V.R. (2d) 114 (B.C.C.A.). 2 R. v. Chase, [2006] B.C.J. No. 1252 (B.C.C.A.). 3 R. v. O'Brien, [1987] N.J. No. 406 , 39 C.C.C. (3d) 528 (Nfld. S.C. (T.D.)). 4 R. v. Slessor, [1969] O.J. No. 1515 , [1970] 2 C.C.C. 247 , 7 C.R.N.S. 379 (Ont. C.A.). 5 R. v. Slessor, [1969] O.J. No. 1515 , [1970] 2 C.C.C. 247 , 7 C.R.N.S. 379 (Ont. C.A.). 6 R. v. Fournier (1978), 43 C.C.C. (2d) 468 (Que. C.A.). 7 R. v. Hofer, [1982] S.J. No. 923 , 2 C.C.C. (3d) 236 (Sask. C.A.). 8 R. v. MacLean, [1982] P.E.I.J. No. 6 , 18 M.V.R. 275 (P.E.I.S.C.). 9 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 252(2). 10 R. v. Roche, [1983] S.C.J. No. 35 , [1983] 1 S.C.R. 491 , 3 C.C.C. (3d) 193 , 34 C.R. (3d) 14 (S.C.C.). 11 R. v. Proudlock, [1978] S.C.J. No. 100 , [1979] 1 S.C.R. 525 , 43 C.C.C. (2d) 321 , 5 C.R. (3d) 21 (S.C.C.). 12 R. v. Guay (1978), 44 C.C.C. (2d) 116 (Que. C.A.); R. v. Nolet, [1980] O.J. No. 3027 , 4 M.V.R. 265 (Ont. C.A.); R. v. Gosselin, [1988] O.J. No. 1921 , 45 C.C.C. (3d) 568 , 67 C.R. (3d) 349 (Ont. C.A.); R. v. Colby, [1989] A.J. No. 1041 , 52 C.C.C. (3d) 321 (Alta. C.A.). 13 R. v. Smaggus, [1973] N.S.J. 74 , 5 N.S.R. (2d) 409 (N.S.C.A.). 14 R. v. Nolet, [1980] O.J. No. 3027 , 4 M.V.R. 265 (Ont. C.A.); R. v. Gosselin, [1988] O.J. No. 1921 , 45 C.C.C. (3d) 568 , 67 C.R. (3d) 349 (Ont. C.A.); R. v. Colby, [1989] A.J. No. 1041 , 52 C.C.C. (3d) 321 (Alta. C.A.); R. v. Adler, [1981] S.J. No. 1393 , 59 C.C.C. (2d) 517 (Sask. C.A.). 15 R. v. S.D.T., [1985] N.S.J. No. 197 , 18 C.C.C. (3d) 125 , 43 C.R. (3d) 307 (N.S.C.A.); R. v. Gosselin, [1988] O.J. No. 1921 , 45 C.C.C. (3d) 568 , 67 C.R. (3d) 349 (Ont. C.A.). 16 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 252(1.1)-(1.3) 17 R. v. O'Flynn, [2005] A.J. No. 605 (Alta. Prov. Ct. (Crim. Div.)). 18 (CAN) Criminal Code, R.S.C. 1985, c. C-46, ss. 259, 260 and 261. 19 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 255.1 20 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 216.

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Alan D. Gold (Contributor) Halsbury's Laws of Canada - Criminal Offences and Defences IX. CRIMINAL NEGLIGENCE AND RECKLESSNESS

3. Particular Situations
HCR-317 Surgical, medical and other dangerous acts or failure to act. HCR-317 Surgical, medical and other dangerous acts or failure to act. Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing. 1 Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.2 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.3 Criminal liability. Breach of the above duties may found a prosecution for criminal negligence if death or bodily harm results.4 Criminal negligence causing death is also a form of culpable homicide and manslaughter.5 Breach of a duty imposed by law may found a prosecution for common nuisance.6 A person who donated blood knowing he had AIDS was subject to the legal duty, and guilty of common nuisance.7 Medical treatment. An objective standard on competence and performance of medical or other life-threatening procedures is therefore imposed on practitioners.8 Midwives acting at a home birth are subject to this legal duty,9 appeal dismissed on other grounds,10 further appeal allowed on other grounds.11 Undertaking. An "undertaking" requires something in the nature of a definite commitment justifying reasonable reliance. A mere verbal expression of willingness to act is insufficient. 12 For example, someone who "undertook" a job as a lifeguard and then left his post might well be in breach of this duty.
Footnote(s) 1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 217. 2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 217.1. 3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, ss. 219-221. 4 (CAN) Criminal Code, R.S.C. 1985, c. C-46, ss. 222-37. 5 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 180. 6 R. v. Thornton, [1993] S.C.J. No. 62 , [1993] 2 S.C.R. 445 , 21 C.R. (4th) 215 (S.C.C.). 7 R. v. Rogers, [1968] 4 C.C.C. 278 , 4 C.R.N.S. 303 (B.C.C.A.); R. v. Watson (1936), 66 C.C.C. 233 (B.C.C.A.). 8 R. v. Sullivan, [1986] B.C.J. No. 1692 , 55 C.R. (3d) 48 (B.C.S.C.). 9 R. v. Sullivan, [1988] B.C.J. No. 1494 , 65 C.R. (3d) 256 (B.C.C.A.). 10 R. v. Sullivan, [1991] S.C.J. No. 20 , [1991] 1 S.C.R. 489 , 3 C.R. (4th) 277 (S.C.C.). 11 R. v. Browne, [1997] O.J. No. 2025 , 116 C.C.C. (3d) 183 (Ont. C.A), leave to appeal to S.C.C. refused 118 C.C.C. (3d) vi (S.C.C.) (accused failed to take deceased, with whom he was using drugs, to hospital after promising to do so if it became necessary). 12 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 263.

Alan D. Gold (Contributor) Halsbury's Laws of Canada - Criminal Offences and Defences IX. CRIMINAL NEGLIGENCE AND RECKLESSNESS

3. Particular Situations
HCR-318 Duty to safeguard opening in ice. HCR-318 Duty to safeguard opening in ice. There is a legal duty on persons who make an opening in ice that is open to or frequented by the public or who leave an excavation on land to guard it so as to adequately prevent persons from falling in by accident and warn them as to its existence.1 It is the fact of leaving an excavation on the land that results in the creation of a legal duty. That legal duty is divided into two parts: to guard an excavation in a manner that is adequate to warn and also in a manner that is adequate to prevent persons falling in by accident. 2 Offence. It is an offence to fail to perform such duty imposed. If the death of any person results from the failure to perform such duty, the accused is liable to conviction for manslaughter. If bodily harm results, the accused is liable to conviction for unlawfully causing bodily harm. Otherwise, the offence punishable on summary conviction. 3
Footnote(s) 1 R. v. Aldergrove Competition Motorcycle Assn. (1983), 5 C.C.C. ( 3d) 114 (B.C.C.A.). 2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 263. 3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 215(1)(a).

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