International Law

R. v. Beatty

The Supreme Court takes another hack at criminal negligence for the offence of dangerous driving.

And, in three concurring judgments, offers plenty of grist for the mill. I don’t know if I understand the decision, but since I’m sure I’ll be reading analyses of it for the next couple of years, I can live with my uncertainty.

I won’t go over the facts aside from saying that this is another “momentary lapse of attention” case (the appellant crossed the dividing line and drove into oncoming traffic, killing three people). The majority decision was written by Charron, J. The basic point is that the actus reus of the crime of dangerous driving is expressed in the legislation, which doesn’t incorporate the test of a “marked departure from the norm,” while the mens rea, based on principles of fundamental justice, does require meeting such a standard. In a concurring judgment McLachlin, C. J. (with Binnie and LeBel, JJ.) held that the marked departure requirement applies to both the mens rea and actus reus. And in a separate concurring judgment, Fish, J. held that neither the actus reus nor the mens rea require a marked departure from the norm.

As far as logic and precedent have it (without getting into a discussion of the logic of the jurisprudence on criminal negligence generally), I think the Chief Justice probably has it right. I am confused by the majority’s seeming conflation of the mental element of the offence and the accused’s objective conduct (in his judgment Justice Fish even finds it necessary to warn against equating the two, which gives you some idea of how mixed up it all is). McLachlin, C. J.’s approach seems more coherent in this regard. She also addresses the specific fact situation here, which is notoriously tricky, directly:

In my view, momentary lapse of attention without more cannot establish the actus reus or mens rea of the offence of dangerous driving.

…

It follows that if the only evidence against the accused is evidence of momentary lapse of attention, the offence of dangerous driving is not established. This, in my view, is as it should be. The heavy sanctions and stigma that follow from a criminal offence should not be visited upon a person for a momentary lapse of attention. Provincial regulatory offences appropriately and adequately deal with this sort of conduct.

I’m really not sure where Justice Fish is coming from. On the one hand, “a ‘marked departure’ from the norm is not an invariable or essential characteristic of the actus reus of dangerous driving.” Which is in agreement with Charron, J. But he also finesses the requirement when it comes to mens rea (emphasis in the original):

The fault element . . . is not the marked departure from the norm of a reasonably prudent driver but the fact that a reasonably prudent driver in the accused?s circumstances would have been aware of the risk of that conduct, and if able to do so, would have acted to avert it. This requisite mental element may only be inferred where the impugned conduct represents a marked departure from the norm; it cannot be inferred from the mere fact that he or she operated the motor vehicle in a dangerous manner.

In the result, I agree that we should avoid characterizing the conduct that represents a marked departure from the norm as the mental element or mens rea of the offence. It does not follow, in my respectful view, that a marked departure from the norm must instead be characterized as the actus reus of the offence. As I have already explained, proof of the actus reus, coupled with subjective mens rea, will suffice for conviction. Otherwise, conduct that is found to depart markedly from the norm is nonetheless necessary for conviction because nothing less will support a reasonable inference that the accused acted with the objective mens rea that is an essential element of the offence.

Is that clear?

Upon further review: The CBC has a quick initial reaction from Beatty’s lawyer. As you might expect, the story doesn’t offer much in the way of an analysis of the decision. Apparently this is all we learned (my emphasis): “the Supreme Court has indicated that in the absence of other dangerous driving behaviour, a lapse of attention under normal circumstances is not going to lead to a conviction.” Is that really all the case stands for? How lame.

Full post as published by Criminal Review on February 22, 2008 (boomark / email).