Criminal Law

Dangerous driving conviction not automatic in all fatalities

By Paul Russell, Contributor

When a driver makes a mistake in judgment that results in a fatality, that action should not be automatically considered dangerous driving, says Toronto criminal lawyer Kristin Bailey, citing an Ontario Superior Court of Justice case where she obtained an acquittal for a man charged with dangerous driving causing death.

According to court documents, Bailey’s client was driving south on Toronto’s Don Valley Parkway and exited on a ramp for the Bayview extension, but he mistakenly turned on the north ramp instead of the south. Upon reaching Bayview, he made a U-turn to go south. At the same time, two motorcyclists travelling north came around a bend at an undetermined speed, with one scraping against the front of her client’s vehicle but staying in control, while the other hit the driver’s door, before being trapped under the car with fatal injuries.

“The question was, ‘In making that U-turn, which is illegal under the Highway Traffic Act (HTA), was he committing criminally dangerous driving?’” says Bailey, an associate with Hicks Adams LLP.

At trial, she says the Crown tried to make a distinction between a momentary lapse of attention — such as drivers lowering their eyes to look at the radio for a second — and deliberately committing an action prohibited under the HTA, stating that the latter should be considered a criminal act in this circumstance.

“I argued that my client simply made a momentary mistake of judgment and that his actions weren’t criminal,” Bailey tells

The judge agreed in a ruling that started by noting, “Driving is a complex activity requiring skill and attention by the driver … as this case illustrates, improper driving can have devastating consequences.”

Later in the judgment, he quoted from a Supreme Court ruling, which states, “A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident.”

“The judge said that drivers can’t be held to the standard of perfection, as every once in a while a driver will do something that in hindsight wasn’t the best idea,” says Bailey. “However, we only criminalize sufficiently morally blameworthy activities.”

Court documents state the judge considered an earlier Ontario Court of Appeal decision, which found, “The focus is on whether the manner of driving constitutes a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.”

The speed of the motorcyclists before the accident was in dispute during the trial, with the rider who survived estimating the pair was travelling between 75 and 85 km/hr, while a female passenger in the car estimated they were travelling at “close to 100 at least,” according to court documents.

A Toronto Police Service collision reconstructionist estimated they were travelling “approximately 74 km/hr,” as a faster speed would have caused a more extensive debris field.

Under cross-examination by Bailey, the judgment reads, this expert witness “was confronted with her testimony at the preliminary inquiry where she had stated that she was not able to draw any conclusions from the debris field in this case. She was asked whether she agreed with what she had said at that time. After an inordinately long pause, she replied in the affirmative.”

This inconsistency contributed to the judge declaring her an unreliable witness and rejecting her testimony, the judgment states, noting “there is no reliable evidence with respect to the speed of the motorcycles.”

When the acquittal came down, Bailey says her client was relieved, “though everyone recognizes that a terrible tragedy occurred.”

In his conclusion, the judge stated, “I realize that some of the people who have been affected by this tragedy may find this decision to be disappointing and difficult to understand. To be clear, I have not concluded that [her] death was anything other than tragic, senseless and avoidable. Nor have I found that (the car driver) does not bear some responsibility for it.

My task, however, [is] to determine only whether the Crown had proven beyond a reasonable doubt that (his) driving constituted a marked departure from the standard of care. Having carefully considered all of the evidence, I have concluded that the Crown has not done so.”

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