



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2018 ONCA 814

DATE: 20181010

DOCKET: C64437

Sharpe, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Eric Brown

Respondent

Peter Scrutton, for the appellant

Adam Forbes, for the respondent

Heard: October 2, 2018

On appeal from the acquittal entered by Justice Tamarin M.
    Dunnet of the Superior Court of Justice on September 21, 2017.

Sharpe
    J.A.:

[1]

The Crown appeals the respondents acquittal on the
    charge of dangerous driving causing death. The respondent drove his car onto a
    sidewalk. In the course of three seconds, he collided with a metal pole, a bicycle
    ring, and a refuse bin, he fatally struck the victim and he then knocked down a
    second bicycle ring and hit a tree. The collision occurred at 1:28 a.m. and the
    accused was alone in the vehicle. The incident was videotaped and the facts
    surrounding the incident were not in dispute at trial. There was no evidence of
    excessive speed or of mechanical failure.

[2]

The respondent, who did not testify, admitted
    the
actus reus
of dangerous driving but contended that the Crown had
    failed to prove
mens rea.

[3]

The trial judge found that the respondent had
    suffered a momentary lapse of attention and that the Crown had failed to prove
    a marked departure from the requisite standard.

[4]

The sole ground of appeal arises from the trial
    judges ruling that the respondents status as a suspended G1 driver who was
    not entitled to be driving alone or at the late hour of the collision was
    irrelevant to the issue of
mens rea
. In oral argument, the Crown
    conceded that the licence suspension was not relevant to the respondents
mens rea
. However, the Crown submitted that the fact that
    the respondent breached the conditions of his G1 licence by driving both
    unaccompanied and between midnight and 5 a.m. was relevant to his
mens
    rea
. Accordingly, the Crown argued that the trial judge
    erred in law and that a new trial is required.

[5]

In my view, this submission must be rejected.

[6]

It is common ground that the
mens rea
for dangerous driving is a modified objective test: was the degree of care
    exhibited by the accused a marked departure from the standard of care of a reasonable
    person in the accuseds circumstances? Evidence of the accuseds personal
    attributes, such as age, experience and education, is irrelevant unless it goes
    to the accuseds incapacity to appreciate or avoid the risk:
R. v. Roy,
2012
    SCC 26, [2012] 2 S.C.R. 60;
R. v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R.
    49.

[7]

Because of the licensing requirement, drivers
    are legally presumed to have the required minimum standard of competence.
    Accordingly, criminal fault can be based on the voluntary undertaking of the
    activity, the presumed capacity to properly do so, and the failure to meet the
    requisite standard of care:
Beatty
, at para. 32.

[8]

I agree with the respondent that, when applied
    to the facts of this case, these principles support the trial judges
    conclusion that the respondents licensing status was irrelevant to the fault
    element for this offence. His status as a suspended G1 driver had no logical
    bearing on whether his driving failed to meet the modified objective standard
    of the reasonably competent licensed driver. The G1 licence restrictions that
    the respondent violated apply to all G1 licence holders irrespective of their
    personal attributes and driving skill. Accordingly, the respondents breach of
    those restrictions does not indicate that the respondent was incapable of
    appreciating or avoiding the risk of his conduct. He could be convicted of
    driving without a proper licence or in violation of the conditions of his G1
    licence, but that is not the same as being convicted for the much more serious
    offence of dangerous driving causing death.

[9]

I agree that if an accuseds licensing status is
    indicative of an incapacity to appreciate or avoid the particular risk, it may
    be relevant to indicate that the accused possessed the requisite
mens
    rea
. For example, if an accused drives in violation of a
    licensing condition imposed because of some physical attribute that makes it
    unsafe for the accused to drive in some circumstances, driving in violation of
    that condition would be relevant. The Crown could use the accuseds violation
    of the licensing condition to prove that the accused was subjectively reckless
    or wilfully blind to the risk his or her actions posed to other users of the
    road. Such evidence about the accuseds actual state of mind is relevant to a
    courts objective assessment of whether the accuseds conduct constituted a
    marked departure:
Beatty
, at para. 47.

[10]

However, I am not persuaded that the
    respondents G1 licensing status had any bearing on the risk at issue in this
    case where the trial judge concluded that there had been a momentary lapse of
    attention. To adopt the Crowns submission would potentially subject all persons
    who have an accident while driving without a proper licence or contrary to the
    restrictions of their learners permit to liability for dangerous driving. That
    would stretch the limits of criminal liability beyond acceptable limits and
    would be contrary to the Supreme Courts repeated direction to avoid branding
    as criminals those who are merely careless or civilly negligent:
Roy
, at para. 2, citing
Beatty
, at
    para. 34. To hold a G1 driver criminally liable for conduct that would not be
    criminal if committed by a properly licensed driver on the basis of
    restrictions on his or her licence, and without regard to whether such
    restrictions are relevant to the drivers ability to appreciate the specific
    risk, would allow for a variable standard inconsistent with the principles of
    equality and individual responsibility which should pervade the criminal law:
Beatty
,
    at para. 39, quoting
R. v. Tutton
, [1989] 1 S.C.R. 1392, at p. 1418.

[11]

Accordingly, I would dismiss the Crowns appeal
    from the acquittal.

Released: October 10, 2018

RJS

Robert J. Sharpe J.A.

I agree P. Lauwers J.A.

I agree K. van Rensburg J.A.


