November 17, 2015 by Canadian Underwriter
A British Columbia nurse acquitted two years ago of two counts of dangerous driving causing death faces a new trial because the original trial judge erred, in applying a “subjective standard,” when considering whether three different acts on the part of the motorist established the mens rea of the criminal offence, the Supreme Court of Canada ruled Monday.
Shortly before midnight Oct. 19, 2010, Andelina Kristina Hecimovic was driving east on Lougheed Highway in Pitt Meadows, about 35 kilometres east of downtown Vancouver. She “went through a red light at Harris Road from a right turn only lane and then swerved to avoid the concrete pedestrian island located in the southeast corner of the intersection,” wrote Madam Justice Miriam Gropper of the B.C. Supreme Court, in a ruling released Sept. 18, 2013. “The island extended halfway into the right lane if that lane were a through lane. Ms. Hecimovic steered to the left to avoid hitting the island and lost control of her vehicle.”
After steering left, Hecimovic’s Toyota Paseo struck a Suzuki Swift, which was facing west on Lougheed Highway in the left-turn lane. The occupants of the Suzuki — 21-year-old John De Oliveira and 19-year-old Rebecca Dyer — were killed. The speed limit was 80 kilometres per hour and an accident reconstruction expert testified that the “range of speed” of Hecimovic’s Toyota was from 100 to 130 km/h.
“The force of the Toyota was sufficient to sheer off the roof of the Suzuki and then to slide or bound a further 20 metres eastward where it came to a stop,” wrote Justice Gropper, who acquitted Hecimovic.
The Crown appealed and Hecimovic’s acquittal was set aside, in a divided ruling released Dec. 12, 2014, when the B.C. Court of Appeal ordered a new trial. Hecimovic was unsuccessful in her appeal to the Supreme Court of Canada, which heard her case Nov. 13 and announced its ruling Nov. 16.
Court records indicate that Hecimovic testified she had been “overwhelmed” from her shift in the emergency room at Eagle Ridge Hospital and decided to travel to her boyfriend’s place by the shortest route.
Section 249(1)(a) of the Criminal Code of Canada stipulates that it is an offence to operate “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 …”
Section 249 (4) states stipulates that everyone “who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”
The onus is on the Crown to prove both the actus reus, or the prohibited conduct, and mens rea, or degree of fault, beyond a reasonable doubt.
In acquitting Hecimovic, Justice Gropper quoted from case history, including a 2008 Supreme Court of Canada decision that restored an acquittal of Justin Ronald Beatty on a dangerous driving charge.
An issue in Beatty’s appeal was the mens rea element.
“Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct,” Madam Justice Louise Charron of the Supreme Court of Canada wrote in Beatty. “The fault lies in the absence of the requisite mental state of care. Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal.”
In Hecimovic, the B.C. Supreme Court “examined what is referred to in the reasons as ‘the deliberateness of the totality of the accused’s actions, but only expressly considered the three acts relied upon by the Crown to support its principal theory: (1) moving into the right-turn-only lane, (2) jumping the red light, and (3) travelling at a high rate of speed,” wrote Mr. Justice Peter Willcock, of the B.C. Court of Appeal. “These are considered separately and collectively. It is noteworthy, in my view, that when she considered the errors or omissions separately, the trial judge placed significant weight on the subjective evidence of the respondent in holding they do not constitute a marked departure from the norm.”
Justice Gropper “erred by applying a subjective standard when she considered whether these acts in isolation established the requisite mens rea,” added Justice Willcock on behalf of himself and Madam Justice Nicole Garson.
Mr. Justice David Tysoe dissented.
Hecimovic’s appeal to the Supreme Court of Canada “should be dismissed substantially for the reasons” of Justice Willcock, wrote Madam Justice Rosalie Silberman Abella of the Supreme Court of Canada on behalf of the majority.
Mr. Justice Michael Moldaver and Madam Justice Andromache Karakatsanis dissented, saying they would have allowed Hecimovic’s appeal “substantially for the reasons” of Justice Tysoe of B.C.’s appeal court.
Siding with the majority were Mr. Justice Thomas Cromwell, Mr. Justice Richard Wagner, Mr. Justice Clément Gascon and Mr. Justice Russell Brown.
Hecimovic “approached an intersection where flashing lights announced the fact that the signal light at the intersection was red,” Justice Willcock wrote in 2014. “As she did so, she passed other vehicles that had stopped or were stopping at the intersection. She passed them without slowing and without any appreciation of the warning light, the actions of other vehicles, the red intersection lights, the fact there was an intersection or the presence of a cement island and pole in front of her.”
Justice Gropper’s ruling in favour of Hecimovic “contains no express consideration of the respondent’s failure to pay attention to the surrounding traffic, the warning signs and signals and the presence of an intersection,” Justice Willock added. “There is no consideration of whether this driver, whose conduct was objectively dangerous, was thinking of her manner of driving as she approached the scene of the accident. What was required in these circumstances was consideration of how the degree of care the respondent brought to her driving measured against the appropriate objective standard.”
Quoting from the Supreme Court of Canada’s 2008 ruling in Beatty, Justice Willcock noted that if a driver’s “dangerous conduct” constitutes a “marked departure” from the “standard expected of a reasonably prudent driver,” then the offence of dangerous driving “will be made out.”
What constitutes that standard expected “is a matter of degree,” Justice Charron wrote in Beatty in 2008. “The lack of care must be serious enough to merit punishment. There is no doubt that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person.”
In acquitting Hecimovic, Justice Gropper wrote that “there were a series of acts and each compounded the other, but I have not found that any of the acts separately constituted a marked departure from the norm.”
She quoted from the Supreme Court of Canada ruling, released June 1, 2012, in favour of Randy Leigh Roy, who had been convicted of dangerous driving causing death. Canada’s highest court set aside Roy’s conviction and entered an acquittal.
“While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment,” Mr. Justice Thomas Cromwell of the Supreme Court of Canada wrote in Roy.
In appealing Hecimovic’s acquittal, the Crown had argued that Justice Gropper “erred when considering the mens rea element by applying a subjective test only and failing to apply the modified objective test” described in Roy, Justice Tysoe noted in his dissenting opinion.
In asking whether dangerous driving “was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances,” it is “helpful” to ask two questions, Justice Cromwell wrote in Roy.
“The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible,” Justice Cromwell explained. “If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.”