A 23-year-old woman was driving her vehicle on Highway 401 in Toronto, returning from a trip to Montreal, when her car left the passing lane and travelled onto the shoulder, crashing into the rear of a parked car and tragically resulting in the deaths of the vehicle occupants. The woman’s sister, mother and father were passengers in her car at the time of the collision. Weather conditions and visibility were good on the day of the accident, and there was no evidence of a skid or that the woman’s brake lights came on. Also, the accused’s vehicle was in good mechanical condition.

The driver was charged with two counts of dangerous operation causing death. In the trial, R. v. Chan, both counsels agreed it was likely that the accident happened because the accused fell asleep at the wheel and collided with the other vehicle. The issue to be decided in this case was whether the actions of the accused require criminal sanction – for example if she had reason to believe she was falling asleep but did not stop driving.

Two psychiatrists were called as defence witnesses, both of whom dealt with sleep disorders in their practice. The accused was assessed at a sleep clinic run by one of the psychiatrists, who was an acknowledged sleep disorder expert. Based on the results of these assessments, the second expert, a forensic psychiatrist, diagnosed the accused with ‘idiopathic hypersomnolence’ (excessive sleepiness of unknown cause). He gave the opinion that she was unaware of her sleep disorder and also testified that the condition can significantly impact alertness and reaction time and may lead to unsafe driving and potentially, accidents. The Crown was not able to successfully challenge the psychiatrists’ testimony.

The accused testified that she had only 5 to 5 ½ hours sleep on the night before the accident, although she normally sleeps about 7 hours at night. She did not consume alcohol or drugs. After breakfast, she drove all the way from Montreal and did not feel tired, or she would have asked her sister (who was willing) to drive. The accused’s sister testified that she did not perceive anything wrong with her sister’s driving and saw no indication that her sister was sleepy.

The Crown’s only evidence that could potentially contradict the evidence of the two sisters, was the testimony of another driver who was driving nearby on Highway 401 and witnessed the accident. The witness testified that the accused was travelling with the flow of traffic and her driving was largely unremarkable; however, on two or three occasions before the incident, her vehicle drifted onto the shoulder by about one foot, before she corrected “in an immediate and gentle manner”. The accused had no memory of these ‘driftings’.

Justice Hogan suggested that the ‘driftings’ pose the only real issue in this trial. In making his decision, the judge referred to the Supreme Court of Canada case, R. v. Beatty (2008), where the facts were very similar to the current case, as the driver seemingly fell asleep and suddenly crossed into the path of an oncoming vehicle, causing the death of all three occupants. In Beatty, Justice Charron found that the ‘actus reus’ (i.e. guilty act) of dangerous driving had been established but not the ‘mens rea’ (i.e. guilty mind or intention of wrongdoing) and asserted that a court should not leap to a conclusion on the manner of driving based on the consequence of the driving. She also noted “if the court is satisfied beyond a reasonable doubt that the manner of driving was dangerous to the public within the meaning of s. 249, the actus reas of the offence has been made out”, but this does not answer the more difficult question — which is whether the accused driver had the necessary ‘mens rea’.

Justice Charron declared that, in the case of negligence-based offences, one needs to assess the dangerous conduct against the standard expected of a reasonably prudent driver. If the conduct is markedly different from the norm, it constitutes an offence. The judge further stated that the lack of care must be serious enough to merit punishment. Although conduct that occurs in a few seconds can constitute a marked departure from the standard of a reasonable person, as asserted in R. v. Willock (2006), “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”. And, if the evidence shows beyond a reasonable doubt that the ‘objectively dangerous conduct’ represents a marked departure from the norm, one must then consider evidence on the accused’s state of mind in deciding whether a reasonable person in the accused’s position would have been cognisant of the risk created by their actions.

In Beatty, the trial judge found that there was no evidence of improper driving before the truck crossed into the path of the other vehicle, and a momentary lapse of attention is not sufficient to make a finding of criminal culpability or a marked departure from a standard of care of a prudent driver.

In the present case, Justice Hogan stated that without the evidence of ‘driftings’, no further examination would be needed to conclude that there is insufficient evidence of a criminal action. However, the ‘driftings’ gave cause to question whether the accused had warnings that she was falling asleep, which indicated that it was time for her to stop driving. However, the judge surmised that someone who suddenly falls asleep and realizes it would likely correct their driving in a quick and jerky manner, not gently, and the lack of evidence meant that she could only speculate on the reason for the ‘driftings’.

As there was insufficient evidence that the accused was falling asleep and should have stopped driving, Justice Hogan concluded that the key facts of this case are no different than in Beatty and justify the same result. Therefore, the accused was found not guilty on both counts.

The penalties for dangerous driving are far more serious than for careless driving, as dangerous driving is a criminal offence and anyone convicted of this charge will carry a criminal record and the disadvantages that go along with it. If you were charged with dangerous driving or another driving-related offence, contact an experienced lawyer at Kruse Criminal Law and let us apply our considerable experience and expertise in getting the charge dropped.

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