Canadian Criminal Law/Offences/Dangerous Operation of a Motor Vehicle

From Wikibooks, open books for an open world
Jump to: navigation, search
Dangerous Operation of a Motor Vehicle
s. 259 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Maximum 6 months jail or $5,000 fine (259)
Indictable Dispositions
Avail. Disp. same as summary
Maximum 5 years jail (259(2))
10 years jail (259(3))
14 years jail (259(4))
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

249. (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including 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;
(b) a vessel 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, in a manner that is dangerous to the public, having regard to all the circumstances, including 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;
(c) an aircraft in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of that aircraft or the place or air space in or through which the aircraft is operated; or
(d) railway equipment in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of the equipment or the place in or through which the equipment is operated.

(2) Every one who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; and
(b) is guilty of an offence punishable on summary conviction.

CCC

Proof of Offence[edit]

In addition to the essential elements of time, location, and identity, the Crown should prove the following:

  1. the accused operated a motor vehicle
  2. the manner the accused operated the vehicle was dangerous to the public in the circumstances
    1. driving over the road lines / driving over curbs
    2. failure to obey road-signs, including stop signs, stop lights and speed limits
    3. driving in close proximity with other vehicles (i.e. "tailgating")
    4. collision with other car(s), bikers, pedestrians / collision with inanimate objects
    5. swerving while driving
  3. the accused knew or ought to have known that the manner of driving was dangerous

Items in bold are essential elements to the offence.

Interpretation[edit]

Proving the operation of the vehicle where there are no first-hand observers of the accused driving, can be determined through inference by the officer touching the hood of the car to detect recent operation of the vehicle and observing the accused in the vicinity.

Actus Reus[edit]

Actus reus of the offence:

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including 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."[1] There must be a "marked departure" from the standard of a reasonable person[2]

Mens Rea[edit]

The mens rea has been established is stated as follows:

The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, 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 and of the danger involved in the conduct manifested by the accused.[3]

Factors[edit]

Personal attributes such as age, experience driving and education are generally not relevant.[4] However, they may be relevant where the accused's personal attributes go to the accused's ability to appreciate or avoid risk.[5]

Falling asleep at wheel is not necessarily a criminal offence R. v. Chan, 2009 ONCJ 598 In fact, what the vehicle does after the accused falls asleep cannot be attributed as part of the dangerous driving but rather only as a consequence to the initial conscious driving.[6]

Depending on the circumstances, speed alone can amount to a "marked departure" from the standard of care of a reasonable person.[7]

  1. R. v. Beatty, 2008 228 C.C.C. (3d) 225 at 43, 46 and 49.
  2. R. v. MacGillivray, 1995 CanLII 139 (SCC), [1995] 1 SCR 890
  3. Beatty, supra
  4. R. v. Beatty, supra
  5. R. v. Roy, 2012 SCC 26 (CanLII)
  6. e.g. R. v. Jiang, 2007 BCCA 270
  7. R. v. B.J.C., 2008 ABCA 331 (CanLII)

See Also[edit]