Criminal Law: Impaired Driver Convicted of Manslaughter
On May 15, Alberta resident Jonathan Pratt was convicted of three counts of manslaughter contrary to s.236(b) of the Criminal Code.
Early on November 26, 2011, Mr. Pratt drove his pick up truck into the rear of a Pontiac Grand Prix. Mr. Pratt’s estimated rate of speed was 199 km/hr. The car was travelling at the posted limit of 70 km/hr. The truck crushed the car, killing all three occupants. Mr. Pratt’s blood alcohol content was .174, more than twice the legal concentration. The road was clear and dry. He made no attempt to evade colliding with the other vehicle.
In addition to finding that Mr. Pratt was guilty of three counts of each of impaired driving causing death (s.255(3)) and over 80 causing death (s.255 (3.1)), the trial judge convicted Mr. Pratt of manslaughter on the bases that:
(1) The fatalities had been caused by Mr. Pratt’s unlawful act (s.222(5)(a)); and,
(2) The fatalities had been caused by Mr. Pratt’s criminal negligence (s.222(5)(b))
This decision received national news coverage because of the underlying horrific circumstances and the very rare finding that drunk driving causing death was, in the circumstances, manslaughter. But it is also of interest because it is demonstrative of the difficulties that can be encountered by the courts and counsel in attempting to interpret and apply the relatively new criminal law concept of penal negligence based on an “objective” fault requirement and distinguish between offences that rely on it.
The test for unlawful act manslaughter (s.235(a)) developed by the Supreme Court is the commission of a predicate offence (criminal or regulatory/strict liability) within the context of a dangerous act, from which the risk of bodily harm, neither trivial or transitory, is objectively foreseeable. Objective foreseeability of bodily harm is the fault element. In interpreting what constitutes an objectively dangerous act (i.e. one that is likely to cause bodily harm), criminal liability requires more than mere inadvertence. The departure from the standard of care must be marked and substantial.
Significantly, in this case the trial judge did not identify the degree of departure from the standard of care required to attract criminal liability. Absent this requirement, any unlawful act that causes death could attract criminal liability. If mere inadvertence was the test, most workplace fatalities would be manslaughter.
As to criminal negligence, the trial judge appears to have found that what separates the offences of criminal negligence causing death and manslaughter by criminal negligence is that the former requires only a marked departure from the standard of care, while the latter requires a marked and substantial departure. If that is the conclusion the trial judge intended, it is not supported by the recent Supreme Court case law which provides that criminal negligence requires a marked and substantial departure from the standard of care. But the finding is interesting for at least three reasons:
(1) it serves as a reminder that the offences of criminal negligence causing death and manslaughter by criminal negligence are essentially the same in the sense that they share the same level of moral culpability;
(2) what may distinguish the offences of wrongful act manslaughter from criminal negligence causing death is not the requisite fault component, but their scope. Unlawful act manslaughter is limited in the sense that it is based on a predicate criminal or regulatory/strict liability offence likely to cause bodily harm. Criminal negligence has a potentially wider application because there is no requirement of a predicate offence likely to cause bodily harm. In addition, in the situation of criminal negligence by omission, the breach of any duty, statutory or common law, can engage liability; and,
(3) both offences effectively share the same element of the risk of harm. Criminal negligence requires that the accused need only have recognized and run an obvious and serious risk or, alternatively, gave no thought to that risk. Wrongful act manslaughter requires that the accused’s failure to foresee bodily harm be marked and substantial. If there is a difference between the two, it is conceptual to the point of irrelevance.
None of the foregoing observations are intended to suggest that the convictions against Mr. Pratt are faulty and should be reversed. The facts of the case are so egregious the unlawful act manslaughter convictions should stand, regardless of technical errors, if any, that may have arisen in the trial judge’s reasons in reviewing and applying the law.
Here is a copy of the judgment.