R.+c.+Hundal

- Hundal was driving a truck 1160kg over the maximum weight permitted. - Hundal hit a car at an intersection, killing the driver of that car. - Hundal claims to have gone through a yellow light, thinking he couldn't stop in time. - Witnesses allege that Hundal went through a red light.
 * Facts:**

//233. (1) Commet une infraction quiconque conduit, selon le cas: a) un véhicule à moteur dans une rue, sur un chemin, une grande route ou dans un autre endroit public d'une façon dangereuse pour le public, compte tenu de toutes les circonstances y compris la nature et l'état de cet endroit, l'utilisation qui en est faite ainsi que l'intensité de la circulation à ce moment ou raisonnablement prévisible à cet endroit; (4) Quiconque commet une infraction mentionnée au paragraphe (1) et cause ainsi la mort d'une autre personne est coupable d'un acte criminel et passible d'un emprisonnement maximal de quatorze ans.//

BC superior court, Vancouver: - The judge believed the witnesses rather than Hundal's account. - Hundal is guilty of having flagrantly strayed from the norm of prudence of a reasonable driver.

BC Court of Appeal: - Hundal is guilty.


 * Issue:** Is the //mens rea// required to establish the infraction of dangerous driving (art. 233) objective (proof of a marked deviation from a norm of behaviour) or subjective (ie: intention, insouciance, or voluntary blindness)?
 * Held:** Objective.

-** Jurisprudence on the topic of driving infractions is a mess: some cases say the actus reus of being negligent is enough and no //mens rea// is required; others say there needs to be a mental state of "insouciance" (heedlessness) on the part of the driver.
 * Reasoning (Cory J.):

__Explanation of the constitutional requirement of //mens rea://__ - Hundal argues: according to s.7 of the Charter, you cannot be imprisoned without proving, beyond a reasonable doubt, the subjective moral element of the infraction (the //mens rea//). - Some infractions required a subjective fault (ie: intention, insouciance, or voluntary blindness) and some require only an objective fault (proof of a marked deviation from a norm of behaviour) - For negligence, the criteria for fault is objective: a marked deviance from the norm of diligence of a reasonable person. There is no need to establish the intention of the accused. The question is what the accused __should have__ known. - The severity of the objective criteria is attenuated by taking into consideration personal factors, and the use of the defence of error of fact. - Pure subjective intention: person who was conscious of her action - Pure objective intention: person who should have been careful, independent of conscience

__What is the //mens rea// required for dangerous driving?__ - An objective criteria is better than a subjective one for the following reasons: (1) Requiring drivers to get a driver's licence establishes that drivers are physically and mentally capable, and that they know the norms of diligence to which they will be held. Drivers choose to exercise the dangerous activity of driving and thus assume responsibility towards other road users. Personal factors need not even be taken into consideration since all holders of driver's licenses are held to the same norms. (2) Most drivers don't really think about driving; driving is, by its very nature, a reactive and automatic activity for accustomed drivers. It is hard for a driver to say at a particular moment what she had in mind. It would be illogical to acquit a driver who drove objectively dangerously just because at the moment of the accident she wasn't think of her way of driving. (3) The wording of art. 233 ("//d'une façon dangereuse pour le public, compte tenu de toutes les circonstances"//) is objective. It is easy to judge which way of driving is criminal. The scale goes from momentary inattention (leading to a civil lawsuit) to imprudent driving (sanctioned by the province) to dangerous driving (sanctioned by the Criminal Code). (4) Statistics of deaths on the road show the need to control drivers' driving. It would be unimaginable to only prosecute dangerous drivers who were subjectively at fault.