R. v. Qureshi, 2024 ONCA 131
what you need to know
-The mens rea of dangerous driving is proven where the Crown can establish beyond a reasonable doubt, on the basis of all the evidence, including the accused’s state of mind, that his conduct amounted to a marked departure from the standard of care a reasonable person would observe in the circumstances.
-the accused’s conduct must be more than a mere departure from the standard of care, which would justify civil liability, only a marked departure is sufficient to justify criminal punishment. The lack of care must be serious enough to merit criminal sanction.
-A momentary lapse in attention and judgment will not usually raise criminal liability unless the underlying conduct, when assessed in totality against the reasonable person standard, is a marked departure from the norm.
-Omissions can result in dangerous driving, but, the seriousness of the transgression must be considered in light of all the circumstances, and it must constitute a “marked departure” from the norm.
Background
The appellant, Jamil Ahmad Qureshi, was convicted of dangerous driving causing bodily harm and dangerous driving causing death. The convictions stem from a tragic traffic accident on Highway 401. On November 27, 2017, at approximately 10:27 p.m., a tractor trailer driving along the right EB lane slowed suddenly and significantly near a collision in the WB lanes. As a result, traffic behind this truck came to a sudden slowdown. The vehicle immediately behind the truck put on its four-way flashers. The appellant was driving a tractor trailer 5 vehicles behind the truck that slowed down suddenly. The appellant was travelling 104 km/h, on a 100 km/h road, for at least 90 seconds before the collision. He attempted to brake 0.25 seconds before impact but failed to stop in time to avoid a collision. His vehicle collided with the vehicle ahead of him, which in turn collided with other vehicles. The resulting collision involved five vehicles. Two people died and three others were injured. The truck that slowed down suddenly fled the scene and has not been identified.
At trial, the appellant concede that his failure to stop his vehicle resulted in the deaths and bodily harm but argued that his driving didn’t amount to dangerous driving. The central issue at trial was weather his driving were a marked departure from the standard of care expected of a reasonable person in the circumstances - a necessary element for a conviction for dangerous driving.
Ultimately, he was convicted of all counts and sentenced to 3 years.
THE TEST TO ESTABLISH THE NECESSARY INTENTION FOR DANGEROUS DRIVING
The mens rea of dangerous driving is proven where the Crown can establish beyond a reasonable doubt, on the basis of all the evidence, including the accused’s state of mind, that his conduct amounted to a marked departure from the standard of care a reasonable person would observe in the circumstances: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43. Dangerous driving should be sufficiently egregious in all of the circumstances to warrant criminalization, compared to other less serious forms of bad driving, such as careless driving: Beatty, at paras. 36-43 and 47-49.
In assessing whether the mens rea for dangerous driving is established, the court must consider:
(1) Whether a reasonable person would have foreseen the risk and taken steps to avoid it; and,
(2) Whether the accused’s failure to do so constitutes a marked departure from the standard of care.
Notably, the accused’s conduct must be more than a mere departure from the standard of care, which would justify civil liability, only a marked departure is sufficient to justify criminal punishment. The lack of care must be serious enough to merit criminal sanction.
Dangerous driving does not require some element of active misconduct. Omissions can result in dangerous driving, but, the seriousness of the transgression must be considered in light of all the circumstances, and it must constitute a “marked departure” from the norm.
standard of review
When a trial judge fails to apply the correct test to determine whether there was a marked departure, this is an error of law for which the standard of review is correctness. As noted in Chung, it is an error of law for the trial judge to fail to compare the accused’s actions to what a reasonable person would have foreseen and done in all of the circumstances. This type of error is not a factual matter of weighing evidence, but rather it goes to the legal definition of the mens rea analysis for dangerous driving.
Dangerous driving & momentary lapse of attention
Conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum. Recently, the Supreme Court, in R. v Chung, 2020 SCC 8, affirmed that a momentary lapse in attention and judgment will not usually raise criminal liability unless the underlying conduct, when assessed in totality against the reasonable person standard, is a marked departure from the norm. It is not always necessary, however, to quantify the period of inattention where the duration was longer than required to avoid the impact. In any case, before concluding that conduct that occurs in seconds constitutes a marked departure from the norm, the trial judge must consider the accused’s behaviour and, in view of the totality of the circumstances, how markedly his behaviour differs from that of a reasonable person in the same position.
the trial judge’s errors
It was established that:
Mr. Qureshi was going 104 km/h;
He first saw warning signs when he was either 7-8 or 10-12 truck lengths away from the accident site;
He braked 0.25 seconds before
While omissions can establish dangerous driving in some circumstances, most cases that involve dangerous driving are established where the transgression involved active misconduct not a momentary failure to pay attention.
The trial judge could not, and did not, make a finding that the period of inattention was longer than Mr. Qureshi would have needed to stop. She appears to have reasoned that because Mr. Qureshi failed to take action despite warnings ahead, this was not a momentary lapse. This was evidence of inattention but not evidence of duration that would allow for an inference that this was not a momentary lapse and constituted a marked departure from the standard of care which a reasonable person who is a professional driver, would have exercised in the same circumstances. The trial judge thereby erred in law by failing to apply the relevant principles to conclude that this was not a momentary lapse.
The trial judge further erred in failing to differentiate between the civil negligence standard and a marked departure from the standard of care. While she recognized that she was required to explain how and in what way the appellant’s inattention and failure went beyond carelessness and reached the level of a marked departure from the reasonable standard of care, she went to say that Mr. Qureshi could have taken his foot off cruise control, removed his foot from the accelerator, or stepped on the brake.
None of these statements explain how or why the failure to be alert and vigilant and react to warnings on its own, after a sudden act by a third party, where the driver was otherwise driving responsibly, constitutes a marked departure from the standard of care, warranting a criminal sentence.
Rather, her conclusion was that this was a marked departure because, as a professional driver, “a reasonable driver who is driving a heavy truck that can be extremely deadly to others on the highway must drive with the standard of care expected of him” (emphasis added) and “drivers on Highway 401, especially tractor trailer drivers, are required to be alert and vigilant. They must interpret the information that they see and process what they see”.
These grounds merely reiterate the standard of care expected of a reasonable, professional truck driver to be alert and vigilant and act when a hazard arises. This is the civil standard of negligence not the criminal test for dangerous driving which results in a criminal conviction. What she should have done was to identify how and in what way the accused’s driving was a marked departure from the standard of care. The failure to fully analyze the evidence as it relates to the fault component of the offence constitutes an error in law.
Disposition - Appeal allowed. New trial ordered.
For more information on the mens rea for dangerous driving, check out Emond’s “Impaired Driving and Other Criminal Code Driving Offences, 2nd Edition”, chapters 10, 8, 4 and 2.