This appeal addressed the elements of the offence of criminal negligence causing death with respect to both principal offenders and parties to the offence. Three young men engaged in a street race in which one of the drivers lost control of his vehicle, collided with a lamp post and was killed. The two surviving drivers were charged under s. 249.2 of the Criminal Code with criminal negligence causing death while street racing. The respondent, who was the “flag man” who gave the signal for the drivers to start the race, was charged as a party to the offence on the basis that he had aided or abetted the drivers. The trial judge acquitted the respondent on the basis of a directed verdict, concluding that dropping his jacket to start the race was not sufficient to constitute the offence of criminal negligence causing death, and that it would bring the administration of justice into disrepute if he was found to be a participant in the race. The Crown argued on appeal that the trial judge did not properly apply s. 21 of the Criminal Code.
The Court of Appeal allowed the appeal. It found that the trial judge erred in failing to refer to s. 21 in his reasons. Given this error, the Court then went on to consider the disposition it should make with respect to the respondent’s motion for a directed verdict of acquittal. The Court first determined the elements of the offence of criminal negligence causing death for a principal offender. It noted that the actus reus required a marked and substantial departure from the conduct of a reasonably prudent person. With respect to the mental element, it noted that the mens rea for criminal negligence is whether the accused’s conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances. With respect to the consequence (the death), the Court concluded that the mens rea should be the same as that for unlawful act manslaughter: objective foreseeability of the risk of bodily harm which is neither trivial nor transitory.
It then considered the elements of the offence required to establish liability as a party. It found that the actus reus required only that the accused have done something (or in some cases omitted to do something) that assisted another in committing the offence. With respect to the first element of the mens rea, it found that the Crown must prove that the accused intended to assist the principal in the commission of the offence and that he or she knew that the principal intended to commit it. The aider must do something with intent to assist conduct that is criminally negligent and know sufficient details of the assisted conduct to render that conduct criminally negligent. The Court noted, however, that in some circumstances a higher form of mens rea will be required for an aider than for the principal who committed the offence. In particular, it may require a knowledge of the circumstances which constitute the principal offence in cases where the principal offence involves elements of negligence or a failure to exercise due diligence.
With respect to the second element of the mens rea, the Court was of the view that it is not necessary that an aider have subjective foresight of the consequence of the criminally negligent act he or she is assisting. On the basis of the Supreme Court of Canada’s decision in R. v. Jackson, [1994] 4 S.C.R. 573, the Court concluded that, as for principal offenders, the mens rea requires only objective foresight of bodily harm that is more than trivial or transient.
The Court dismissed the respondent’s motion for a directed verdict. It was satisfied that the respondent, by dropping his jacket, committed an act that assisted the drivers to participate in a street race, constituting the actus reus. It was also satisfied that, given the dangers caused by street racing, there was evidence upon which a reasonable jury could find the drivers’ actions to be criminally negligent. With respect to the mens rea, the Court was satisfied that there was evidence that the respondent intended to assist the street race and that he knew the details of how it would take place. It found that it would be open to a court to conclude that the race, as the respondent anticipated it, was a marked and substantial departure from what was reasonable in the circumstances, and that a reasonable person would have appreciated that bodily harm was a foreseeable consequence. The Court thus allowed the appeal and ordered a new trial.
March 10, 2011
Link to Decision
Julia Wilkes
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