The June 20th conviction of a Montreal driver for two counts each of dangerous driving causing death and criminal negligence causing death, highlights once again the difficulty in distinguishing crimes from lesser offences.

The motorist was driving on the A30 in the south shore Montreal suburb of Candiac. The A30 is a four lane closed access expressway. She stopped her Civic in the left or passing lane of the highway when she spotted ducklings on the road. Acting out of a concern to protect them, she intended to collect and place the ducklings in her vehicle. A trial witness reportedly testified that the driver was standing on the shoulder gesturing to the ducks. The driver’s side door of the car was open. The rear flashing lights were not engaged. Moments later a speeding motorcycle slammed into the rear of the vehicle causing the deaths of the motorcycle driver and passenger. The stopped driver was not harmed.

The jury seemed to struggle in its deliberations, asking the trial judge for guidance as to the relevance of the motorcycle’s excessive speed and his assistance in distinguishing between the fault requirements of dangerous driving and criminal negligence. After deliberating for four days, the jury returned the guilty verdicts. Presumably, the two dangerous convictions will be stayed as included offences and the driver will face a maximum of two life sentences for the criminal negligence convictions when she is sentenced in August.

Not so long ago, it would defy belief that a car driver in these circumstances would be labeled a criminal. Would she be the subject of a lawsuit for substantial damages? Certainly. How about a conviction for careless driving under the regulatory highway traffic legislation? Likely, yes. But would she be charged let alone convicted for criminal offences? Not likely on these facts.

The law of criminal negligence has never been clear and straightforward. But prior to the introduction of the Charter and for some years afterwards, most would have agreed that criminal negligence required a degree of advertence or recklessness, meaning that the offender engaged in, what, in the circumstances, was a dangerous act (in the sense that it could seriously injure another person) knowing it was dangerous and not caring about the risk it created to others. It was that “uncaring” element that really distinguished criminal negligence from civil negligence or inadvertence. The offender may not have intended to cause harm to others, but nevertheless the blatant disregard for human safety was so morally repugnant it required a criminal conviction. It was less an objective measure of conduct and more a branding of unacceptable behaviour.

This changed when over the course of several judgments the Supreme Court essentially redefined criminal negligence to be a measure of conduct governed by community standards. The harm must arise from a marked and substantial departure from the standard of care that one would reasonably expect in the circumstances. The accused need only have recognized and run an obvious and serious risk to others or, alternatively, gave no thought to that risk, both being inferred from the accused’s conduct. In assessing the accused’s lack of risk appreciation, the capacity of the accused to appreciate the risk created by his/her conduct is a relevant factor.

Effectively, the Court’s restatement of criminal negligence has broadened the scope of the criminal law. The adverbs “marked and substantial” are obviously intended by the Court to distinguish criminal departures from the standard of care from those departures that engage civil and regulatory liability (a “mere” departure). There is little judicial guidance on what constitutes a marked and substantial departure from other departures, other than it is a question of degree. This creates the risk that a trier of fact may understandably but incorrectly measure the seriousness of the departure by the damage it has caused. Moreover, the offender is no longer required to have known (either actually or through willful blindness) that his/her actions created an obvious and serious risk. “Giving no thought” captures not only an uncaring mind, but also an otherwise caring mind that makes poor decisions in stressful situations, like stopping on the highway to rescue ducklings. To many there is a substantial difference in the moral blameworthiness between the two scenarios, leading to the conclusion that the latter dies not merit the stigma of a criminal conviction.

Going forward, absent a further change in the law, we are going to see more of these types of prosecutions and convictions, and just not for criminal negligence. There are many other criminal offences that are now defined by an objective measure of conduct but with a lower threshold engaging liability (“marked” as opposed to “marked and substantial”). For strictly regulated industries that operate subject to environment, workplace safety, transportation and other legislation, this places a renewed importance on regulatory compliance.