Criminal Law Web

R. v. Waite
[1986] O.J. No. 2312
Supreme Court of Ontario - Court of Appeal

Appeal by the Crown from a verdict of acquittal on charges of criminal negligence. The accused Waite was drinking on the day of the tragic incident. His blood alcohol level was above 0.08 at the time of the accident. He had been driving behind hay wagons which contained participants in the Bethel Church Mennonite hayride. He failed to have his headlights on in the dark, and drove at least 20 miles per hour over the speed limit as he turned and deliberately approached the wagons. He was driving on the wrong side of the road, and told his passenger he was going to see how close he could get. He passed the wagons and struck five young people, killing four of them and seriously injuring the fifth. He was charged with four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. He was acquitted of criminal negligence, but convicted of the lesser included offence of dangerous driving. The Crown claimed the charge to the jury with respect to criminal negligence was in error and placed too high a burden on the Crown.

HELD: Appeal allowed, acquittal on charges of criminal negligence set aside, conviction for dangerous driving set aside, and a new trial was directed on the charges of criminal negligence. The law indicated that mens rea or requisite intent was inferred from the driving or act of commission itself. It was only in the case of omissions or failure to act that an objective test was insufficient. The directions stated that in criminal negligence there was an objective standard of dangerous driving, plus the subjective element of deliberate assumption of risk. This indeed placed too high an onus on the Crown. If the error had not occurred, the jury would not necessarily have returned the same verdict.

The judgment of the Court was delivered by
1     CORY J.A.:—At issue in this appeal is the nature of the directions which ought to be given to a jury that is considering a charge of criminal negligence.

Factual Background

2     On Saturday, September 8, 1984, the Bethel Church Mennonite hayride took place. When it set out, high spirits and happiness prevailed. It ended in stark tragedy when the Waite car struck five of the participants, killing four and seriously injuring the fifth.
3     The hayride was composed of three tractors pulling three wagons with bales of hay placed down the centre of each wagon. The tractors and wagons followed a planned route starting from the Bauman farm, proceeding along County Road 7 and then along Bethel Church Road.
4     During the afternoon and early evening of the hayride, Michael Waite had been drinking. At the time of the accident, his blood-alcohol level was over .08. For some time, Waite followed behind the last wagon while driving on the shoulder of the road. He then pulled to the other side of the wagon and continued to drive beside it. While he was alongside the wagon, four or five of the young participants were off the wagons walking on the road beside the tractors. Waite eventually passed the wagons and continued on ahead of them. He then turned around at the top of a hill and started back towards them.
5     By this time, headlights were required yet he had only his fog lights on. The speed limit on the Bethel Church Road was 50 mph. yet he was driving at a speed of at least 70 m.p.h. At this high rate of speed, he deliberately approached, the wagons driving on the wrong side of the road. At this time, Waite said to his passenger something to the effect of, "Let's see how close we can get" or, "Let's play chicken". Still travelling at 70 m.p.h., he finally crossed over to his own side of the road. When he passed the wagons, he struck the five young people with fatal and tragic results.
6     In Waite's words, he had "just turned straight" when he heard a crack and saw his windshield shattered. That was all he could remember until he was past the third tractor when he slowed down and pulled to the left. Following the accident, he went to the trunk of his car and threw one of the coolers of beer into a field.
7     Waite was charged with four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. In the face of this evidence as to his driving, he was acquitted of the criminal negligence charges but convicted on all five counts of the lesser included offence of dangerous driving. The Crown brings this appeal from the acquittal of Waite on the charges of criminal negligence.

Charge to the Jury

8     Upon the completion of the trial judge's charge, the jury retired at 2:18. At 4:10, the jury returned with the question, "What is the moral difference between dangerous driving and criminal negligence? We want a clearer definition." Upon the completion of the recharge, various submissions were made to the trial judge by counsel for the Crown and the accused. As a result of those submissions, he instructed the jury in the following terms:

The position is that in dangerous driving the intention or the state of mind, if you wish, of the driver is not important. You look objectively at the manner of driving. You just look at the manner of driving.

Now, when you go over to criminal negligence, you have to look at two things, the objective driving, as you do for dangerous driving, and you also have to look at the subjective element, that is the attitude, or what is in the mind of the accused. That is whether there is a deliberate and wilful assumption of the risk involved in driving in the manner in which he was driving. So that you have in one, the dangerous driving, there is simply an objective standard, as compared to what the prudent driver would do. In the criminal negligence you have that, plus the subjective element of assumption and deliberate assumption of the risk. (Emphasis added)

9     It is reasonable to assume that not all parts of a charge will be remembered with great particularity by a jury. A question such as the one posed in this case indicates an area of concern for the members of the jury. No matter how careful and extensive the original directions, the question, focusing as it does upon the jury's problem, should be answered carefully and completely even if these later directions seem to be repetitious.
10     In this case, the directions were of great importance for they were given in response to a question from the jury on a matter that was obviously worrying them. I believe they were incorrect in that they indicate that criminal negligence involves a subjective element requiring the accused to deliberately and wilfully assume a risk. Criminal negligence, like many criminal offences, requires a finding of fault, including mens rea or a guilty mind of the accused. However, that guilty mind can be determined objectively from the actions or conduct of the accused. This conclusion, in my view, flows from a historical review of the criminal negligence provisions of the Code, the earlier authorities interpreting the legislation, from a reading of the section itself and from the current authorities dealing with criminal negligence.

Historical Review of Criminal Negligence Sections in the Code
Criminal Negligence Section 1892 to 1955

11     Section 213 of the 1892 Criminal Code (S.C. 55-56 Vic., c. 29), reads as follows:

213. Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes or maintains anything whatever which, in the absence of precaution or care, may endanger human life, is under a legal duty to take reasonable precautions against, and use reasonable care to avoid, such danger, and is criminally responsible for the consequences of omitting, without lawful excuse, to perform such duty.

12     Although the section was renumbered as s. 247 in the 1906 Code (R.S.C. 1906, c. 146), the wording remained the same until the 1955 amendment to the Code. Section 247 created the duty. Section 252 created the offence of negligently causing injury. It read as follows:

252. Every one is guilty of an indictable offence and liable to two years' imprisonment who, by any unlawful act, or by doing negligently or omitting to do any act which it is his duty to do, causes grievous bodily injury to any other person.

13     Section 252 became s. 284 in the 1927 Code which was the predecessor of s. 204 in the present Code.
14     Section 247 (formerly 213) was considered in both the Supreme Court of Canada and this Court. In McCarthy v. The King (1921), 62 S.C.R. 40, the judgments of Idington J. at p. 42 and Brodeur J. at p. 46 went so far as to suggest that neglect of such a character as would lead to civil responsibility would also give rise to criminal responsibility. It was soon recognized that such a proposition went too far. It was specifically rejected in R. v. Baker, [1929] S.C.R. 354. Duff J., speaking for the Court, stated at p. 358:

The court [in McCarthy] was unanimous in the view that failure to maintain a "proper outlook" amounted, in the circumstances, to culpable negligence within the contemplation of the criminal law, and that, speaking more generally, a want of ordinary care in the circumstances in which persons of ordinary habits of mind would recognize that such want of care is not unlikely to imperil human life, falls within that category. But the decision does not attempt to lay down an abstract rule for determining the incidence of criminal responsibility for negligence.

15     In R. v. Greisman (1926), 46 C.C.C. 172, Middleton J.A., speaking for this Court at pp. 177-78, set forward the test for determining criminal responsibility in criminal negligence in this way:

I think the great weight of authority goes to show that there will be no criminal liability unless there is gross negligence, or wanton misconduct. To constitute crime there must be a certain moral quality carried into the act before it becomes culpable. In each case it is a question of fact, and it is the duty of the Court to ascertain if there was such wanton and reckless negligence as in the eye of the law merits punishment. This may be found where a general intention to disregard the law is shown, or a reckless disregard of the rights of others.

16     Middleton J.A., in reaching this conclusion, relied on the reasons of Lord Hewart C.J. expressed in R. v. Bateman (1925), 19 Cr. App. R. 8, where at pp. 10-11 of the report the following appears:

The law of criminal liability for negligence is conveniently explained in that way. If A. has caused the death of B. by alleged negligence, then, in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A. owed a duty to B. to take care, that that duty was not discharged, and that the default caused the death of B. To convict A. of manslaughter, the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A.'s negligence amounted to a crime. In the civil action, if it is proved that A. fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In a criminal Court, on the contrary, the amount and degree of negligence are the determining questions. There must be mens rea. (Emphasis added.)

17     Up to this Point, it is clear that the test enunciated by the courts for determining whether criminal negligence existed was an objective one. This was true for criminal negligence which, if death resulted, constituted manslaughter at common law and criminal negligence under the Code prior to 1955. Although some legal writers questioned whether negligence should ever be the basis for criminal responsibility, the law pertaining to criminal negligence in Ontario prior to the enactment of the 1955 Code, like the law of gravity, was well understood. The test to be applied was an objective one to determine if there had been such wanton and reckless negligence that punishment was merited. Juries generally speaking had no difficulty understanding the conduct required to constitute criminal negligence when instructed in accordance with R. v. Greisman, supra and R. v. Bateman, supra.

1955 Amendment to the Criminal Code

18     Section 191(1) of the 1955 Code (S.C. 1953-54, c.51) is identical in its wording to s. 202(1) of the present Code. It reads as, follows:

191.(1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

19     J.C. Martin, Q.C. commented upon the introduction of s. 191 and observed that although it was new in statutory form, it was not new in law. He stated:

This is new in statutory form although not in law. The Royal Commissioners in their Report [Royal Commission to Revise the Criminal Code, 1947 - 1952], said of it and the two following sections:

'A great deal of confusion has arisen, particularly in motor manslaughter cases, as to the degree of negligence required to sustain a conviction against an accused person. Much of the confusion arises by reason of the standard of care set forth in section 247 which reads as follows:

247...'

This definition appears to impose criminal liability for what might be termed civil negligence, yet the weight of judicial authority is to the effect that in order to sustain a conviction, it must be shown that the negligence of an accused person went beyond a mere matter of compensation and showed such disregard for the lives and safety of others as to amount to a crime against the state and conduct deserving punishment.

. . .

The definition was put in its present form by the Senate Committee ... (Proceedings, June 11th, 1952, p. 24)

. . .

In general the definition does not undertake to define negligence; what it says is that to constitute a criminal offence there must be such negligence as shows a wanton or reckless disregard of life or safety.

(See Martin's Criminal Code (1955), at pp. 370-71.)

20     It seems clear from its language that the definition of criminal negligence in the present Code is largely taken from R. v. Greisman, supra.
21     For some time following the amendment, various appellate courts continued to apply an objective test to determine if the conduct of the accused was culpable. They too seemed to be of the view that the 1955 definition of criminal negligence had not changed the substance of the offence.
22     In R. v. Savoie (1956), 117 C.C.C. 327 (N.B.S.C. App. Div.), it was observed that s. 191 of the Code which came into effect in 1955 did not make any change in the law relating to criminal negligence.
23     Similarly, in R. v. Savard (1957), 26 C.R. 269 (Alta. S.C. App. Div.), Ford C.J.A. commented at p. 270 that the new definition of criminal negligence, if not derived from, was in accord with the leading decisions of Andrews v. Director of Public Prosecutions, [1937] A.C. 576; Rex v. Greisman, supra and Rex v. Bateman, supra.
24     In Andrews v. D.P.P., supra, the House of Lords had considered the issue of manslaughter from the point of view of an unintentional killing caused by negligence. Lord Atkin, expressing the view of all the law lords, approved of R. v. Bateman, supra and put the test in this way at p. 583:

The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied "reckless" most nearly covers the case.

25     In R. v. Fortin (1957), 121 C.C.C. 345 (N.B.S.C. App. Div.), Ritchie J.A. expressed the opinion that, notwithstanding the inclusion of s. 191 in the new Code, the earlier authorities dealing with criminal negligence remained pertinent. He put his position in this way at p. 349:

The enactment of s. 191 has not eliminated mens rea as an essential ingredient in offences which involve criminal negligence ... In offences involving criminal negligence the element of mens rea is to be found in the blameworthy state of mind which his wanton or reckless disregard for the lives and safety of other persons imputes to the accused. The blameworthy state of mind may be entirely negative. It is not necessary to establish any knowledge or intent.

And later, at pp. 350-351:

The emphasis should be upon the conduct of the accused. If such conduct, on its face, indicates on the part of the accused, either in the operation of a dangerous agency, such as a motor vehicle, or otherwise, a wanton or reckless disregard for the lives or safety of others, and no exculpatory circumstances appear tending to show his conduct was due to causes beyond his control, then, without more, culpability may be inferred and the jury may convict. (Emphasis added.)

26     From the authorities decided prior to 1960, the following principles can be derived. Neither s. 191 of the 1955 Code nor its earlier predecessor had eliminated mens rea as an ingredient in the offence of criminal negligence. However, the test to be used in determining whether or not the accused had that blameworthy state of mind was an objective one. It was applied by examining the accused's conduct to determine if he had displayed a wanton or reckless disregard for the lives and safety of others in the absence of an exculpatory explanation for his conduct. Absent such an explanation, his conduct without more could be sufficient to demonstrate his culpability.
1960 -- The Decision of O'Grady v. Sparling, [1960] S.C.R. 804
27     In this case, the Supreme Court had to determine whether or not a provincial statute providing for an offence of driving without due care and attention was constitutionally valid. It had been argued that the careless driving provision was ultra vires on the grounds that it was legislation in relation to criminal law and that the federal legislation had occupied the field by enacting the offence of criminal negligence in the operation of a motor vehicle. In the course of rejecting these arguments, Judson J., for the majority, stated at p. 808:

There is a fundamental difference between the subject-matter of these two pieces of legislation which the appellant's argument does not recognize. It is a difference in kind and not merely one of degree. This difference has been recognized and emphasized in the recent writings of Glanville Williams on Criminal Law ... and by J.W.C. Turner in the 17th edition of Kenny's Outlines of Criminal Law. I adopt as part of my reasons Turner's statement of the difference to be found at p. 34 of Kenny:

'But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea, and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence; they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. The common habit of lawyers to qualify the word "negligence" with some moral epithet such as "wicked", "gross", or "culpable" has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression to explain itself.' (Emphasis added in part.)

And at p. 809:

What the Parliament of Canada has done is to define "advertent negligence" as a crime under ss. 191(1) and 221(1). It has not touched "inadvertent negligence".

Inadvertent negligence is dealt with under the provincial legislation in relation to the regulation of highway traffic.

28     To supplement these reasons it may be helpful to set out some definitions of "advertent" and "inadvertent". The Shorter Oxford Dictionary defines "advertent" as "attentive". "Advert" is defined as "to turn towards or direct".
29     "Inadvertent" is said to be "not properly attentive, inobservant, negligent, heedless, characterized by want of attention hence unintentional".
30     Glanville Williams refers to "advertent" acts in this context as "recklessness or negligence that involved subjective awareness on the part of the accused".
31     From these definitions and the reasons of the Court in O'Grady v. Sparling, supra, it would seem that something more was required than a high degree of negligence in order to convict an accused of criminal negligence. An objective test could no longer be applied to the driving of the accused in order to determine if he was criminally negligent. According to many learned writers, the state of the law with regard to criminal negligence has, since 1960, been in a state of uncertainty. See, for example, Stuart, Canadian Criminal Law (1982); Mewett and Manning, Criminal Law, 2nd ed. (1985); Stalker, "Can George Fletcher Help Solve the Problem of Criminal Negligence?" (1981-82), 7 Queen's L.J. 274.
32     The Supreme Court next considered the section in Arthurs v. The Queen, [1974] S.C.R. 287. The issue in that case was whether or not s. 197 (now s. 202) was applicable in a situation where the accused deliberately drove his motor vehicle so as to injure the victim. Ritchie J., on behalf of a majority of the Court, indicated that the evidence in the case was to be tested in accordance with the provisions of s. 202(1)(b). He expressed the view at p. 292 that "conduct disclosing wanton or reckless disregard for the lives or safety of others constitutes prima facie evidence of criminal negligence". He went on to conclude that deliberation was not a necessary ingredient of the offence. He was thus of the opinion that the trial judge was in error in instructing the jury that in order to find the appellant guilty, they must be satisfied beyond a reasonable doubt that the appellant deliberately ran down the victim, thereby causing him serious injuries.
33     Laskin J. dissented and set forth his opinion that an instruction as to deliberate intention put too high an obligation on the Crown on a charge of criminal negligence. He stated that subjective intent is not a necessary ingredient of criminal negligence. He put his opinion in these words at pp. 306-307:

Indeed, I am of the opinion that the instruction as to deliberate intention puts the obligation of the Crown at too high a level in respect of a charge to which criminal negligence is basic. Although the question of the type of mens rea involved in criminal negligence, as defined in s. 191(1), was not directly in issue in the judgments of this Court in O'Grady v. Sparling, Binus v. The Queen, and Peda v. The Queen, these cases support the conclusion that subjective intent is not a necessary ingredient of criminal negligence.

34     The section was again considered by the Supreme Court in Leblanc v. The Queen, [1977] 1 S.C.R. 339. In that case, Leblanc, a pilot, had been retained to fly to a location to pick up two men. When he spotted his clients, he made a low "pass" to frighten them. One of the men was hit by his aircraft and suffered fatal injuries. Leblanc was convicted at trial of criminal negligence causing death and this conviction was upheld by the Quebec Court of Appeal.
35     One of the issues before the Supreme Court was whether evidence of similar facts, that is to say of three previous low passes, was admissible.
36     Mr. Justice de Grandpré gave the reasons on behalf of the majority of the Court. He concluded that the evidence of the low passes was properly admitted. His reasons can, I think, be interpreted in two ways. Firstly, that the conduct of the accused, viewed objectively without anything further, may be sufficient to demonstrate culpability for the offence. Alternatively, that in addition to the conduct of the accused, the Crown must prove a subjective intent on the part of the accused to act recklessly as a necessary ingredient of criminal negligence.
37     There are several passages in the reasons that tend to provide support for the position that an objective test should be utilized. They include the following: at p. 355, de Grandpré J. quotes with approval from the 1929 decision of R. v. Baker, supra, particularly the reasons of Duff J. to the effect that culpable negligence exists when there is "a want of ordinary care in circumstances in which persons of ordinary habits of mind would recognize that such want of care is not unlikely to imperil human life". On the same page there is a further quote from the reasons of Ritchie J. in Arthurs v. The Queen, supra, where it was said that wanton or reckless disregard for the lives or safety of others constitutes prima facie evidence of criminal negligence.
38     On the other hand, support for the necessity of demonstrating a subjective intent can be found on p. 356 where Mr. Justice de Grandpré refers to O'Grady v. Sparling, supra, which in turn quotes from Kenny's Outline of Criminal Law to the effect that "[t]here are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence."
39     However, at the conclusion to the reference to O'Grady v. Sparling, the learned justice could be taken as supporting an objective test for he significantly observed:

"In most cases, the fact itself proves the intent. See in this regard the reasons of Pigeon J. in Peda v. The Queen. (Emphasis added.)

40     Dickson J. gave the minority reasons for himself and for Laskin C.J.C. Again it was stressed that subjective intent was not a necessary ingredient of criminal negligence and that thus the mens rea of criminal negligence is to be determined by an objective standard. He put forward his views in this way at p. 346:

On a charge of criminal negligence, evidence adduced by the Crown disclosing that by his conduct the accused showed wanton or reckless disregard for the lives and safety of other persons is prima facie evidence of criminal negligence. Laskin J., as he then was, dissenting in Arthurs v. The Queen, at pp. 306-307, commented on the mens rea of criminal negligence:

Although the question of the type of mens rea involved in criminal negligence, as defined in s. 191(1), was not directly in issue in the judgments of this Court in O'Grady v. Sparling, Binus v. The Queen, and Peda v. The Queen, these cases support the conclusion that subjective intent is not a necessary ingredient of criminal negligence.

That is to say, the mens rea of criminal negligence is determined by an objective standard. The majority of the Court in that case did not disagree with the statement by Laskin J.

41     Although the question is not free from doubt, the references in the reasons of the majority which appear not to preclude the use of an objective test and the clear statement in the minority judgment that the mens rea for criminal negligence is determined on an objective standard do, I believe, leave it open for this Court to apply such a test to determine whether the conduct in issue demonstrates the requisite mens rea to establish criminal negligence.
Position Taken by Appellate Courts in Other Jurisdictions Subsequent to O'Grady v. Sparling
42     Subsequent to the decision in O'Grady v. Sparling, appellate courts of other jurisdictions continued to take the position that it was still not necessary to establish a subjective mental element as a requisite element of the offence of criminal negligence. They determined that the requisite mens rea for criminal negligence may be inferred from an objective view of the conduct of the accused. It is sufficient to refer to three examples.
43     In Regina v. McCrea (1969), 70 W.W.R. 663 at 668, Culliton, C.J.S. found that the conduct of the accused in his use of a high powered rifle constituted such a marked departure from that which would have been observed by a reasonably careful map in the same circumstances as to show a wanton or reckless disregard for the lives and safety of other persons. It is clear that he applied an objective test.
44     In R. v. Belbeck, [1968] 2 C.C.C. 331, (N.S.S.C. App. Div.), McKinnon J.A. at p. 342 stated:

While it must be granted that mens rea is an essential ingredient in an of fence of criminal negligence, the cases cited above hold that this ingredient of mens rea may be found in evidence of conduct amounting to a wanton or reckless disregard for the lives or safety of other persons - and such conduct alone amounts to criminal negligence, regardless of intention or absence of intention.

45     Lastly, in Regina v. Rogers [1968] 4 C.C.C. 278 (B.C.C.A.), Tysoe J.A. at p. 286 referred to the proposition that the test is an objective one. He concluded that the accused must be judged not by his own standards but by the standards of reasonable people. Nemetz J.A., in concurring reasons, also concluded that a consideration of the whole of s. 191 led to the conclusion that Parliament intended that the conduct of the person charged thereunder was to be tested objectively.

Recent Decisions of This Court Pertaining to Criminal Negligence

46     This Court on three occasions in the recent past has considered the provisions of s. 202.
47     In Regina v. Sharp (1984), 12 C.C.C. (3d) 428, the Court was considering a Crown appeal of the respondent's acquittal on four charges of criminal negligence causing death arising out of the operation of a motor vehicle. The Crown's complaint was that the trial judge had erred in instructing the jury that both criminal negligence and the included offence of dangerous driving required a mental element of intent or knowledge on the part of the respondent.
48     Morden J.A. gave the reasons for the Court. Although he did not refer to O'Grady v. Sparling or to Leblanc v. The Queen, supra, he concluded that criminal negligence, like dangerous driving, required fault in the sense of a blameworthy state of mind. However, he found that criminal negligence could be determined from the manner in which the accused drove if, objectively viewed, it amounted to a wanton and reckless disregard for the lives and safety of others. He added that the jury should not find fault if there was an explanation arising from the evidence which would account for the driving misconduct and would negative fault. He gave as an example of exculpatory circumstances that were beyond the control of the accused the sudden and unforeseen malfunction of the steering mechanism. At p. 436, the manner in which directions are to be given to juries in Ontario was set out in these words:

This was a case where the putting of the Code definition of criminal negligence to the jury with little more in the way of elaboration would have been sufficient. Proper elaboration would make clear to the jury the necessity for the driving to amount to a marked and substantial departure from the standard of a reasonable driver in the circumstances (which, as indicated earlier, was properly done in this case) and that the driver either recognized and ran an obvious and serious risk to the lives and safety of others or, alternatively, gave no thought to that risk.

49     It is clear that in criminal negligence cases involving driving misconduct, an objective test must be applied in Ontario until such time as the Supreme Court of Canada directs otherwise.
50     The next case was that of Regina v. Tutton and Tutton (1985), 18 C.C.C. (3d) 328. (Leave to appeal to the Supreme Court of Canada was granted on May 23, 1985.) In that case, the accused belonged to a religious persuasion that believed in faith healing. Their five-year old child suffered from a diabetic condition and required regular injections of insulin. The child's mother had a vision that the child had been cured through the powers of the Holy Spirit. She then ceased to give the insulin injections. As a result, the child died. The parents we're convicted of criminal negligence causing death.
51     Dubin, J.A. gave the reasons for the Court. He distinguished the case of Regina v. Sharp as one involving an act of commission or a positive act. He determined that in a situation where omission or failure to act caused the death, a subjective test must be used rather than an objective one. He put forward his position in this way at p. 345:

Most cases, if not all, where it has been held that the mens rea of criminal negligence is determined by an objective standard have been cases of acts of commission. Where, for example, an accused person drives at a grossly excessive speed through a busy intersection and causes the death of others by so doing, a marked and substantial departure from the standard of a reasonable driver in the circumstances has been held to suffice. It would be open to the jury under such circumstances to find the required blameworthy state of mind in the nature of the accused's driving.

52     The section was next considered in R. v. Barron (1985), 48 C.R. (3d) 334. In that case, Barron, who was at a teenage drinking party, persuaded his friend to join him in "streaking" the girls at the party. Barron and his friend undressed to their underwear but at the landing above the stairs the victim hesitated and said he didn't want to go. Barron then gave his friend a slight push on the back, causing him to lose his balance and fall down the stairs. Unfortunately, he suffered head injuries which led to a fatal infection of his lung. Barron neither intended nor expected that the victim would lose his balance. He was charged with manslaughter, tried by a judge alone and convicted.
53     On the appeal, Goodman J.A. gave the reasons for this Court. He quoted with approval the reasons of Morden J.A. in R. v. Sharp, supra. At p. 340, he stated:

The combination of such minimal force and momentary inadvertence was sufficient to constitute a departure from the standard of a reasonable man in the circumstances and in that sense constituted negligence, a civil tort. For behaviour to constitute criminal negligence, however, there must be a marked and substantial departure from the standard of a reasonable person. (Emphasis in original)

54     From his reference to the standard of a reasonable man, it is apparent that in considering an act of commission (the push), it was necessary to apply an objective test to the act to determine if it constituted a marked and substantial departure from the conduct of a reasonable man.
55     From these cases it is possible to set out the current position in this province. In cases where allegations of criminal negligence are based upon the manner of driving or some other act of commission by the accused, an objective test should be applied to determine whether the requisite mens rea has been established. That is to say, the mens rea or requisite intent can be inferred from the driving or act of commission itself. If the driving or the act of commission constitutes a marked and substantial departure from the conduct that could be expected of a reasonable man in the same circumstances, then, in the absence of some explanation, the act itself may determine culpability.
56     If, on the other hand, an omission or failure to act is the basis of the charge of criminal negligence, then an objective test will not suffice. Rather, a subjective test must be applied to determine whether the accused displayed a wanton and reckless disregard for the life and safety of others.
Recent Decisions of the House of Lords
57     The House of Lords has on two recent occasions considered the application to criminal law of the concept of recklessness: Regina v. Lawrence, [1982] A.C. 510 and Commissioner of Police of the Metropolis v. Caldwell, [1982] A.C. 341. It will suffice to refer to Regina v. Lawrence, supra. That case dealt with s. 1 of the Road Traffic Act, 1972 of the United Kingdom which reads:

A person who causes the death of another person by driving a motor vehicle on a road recklessly shall be guilty of an offence.

58     It was determined that there were two aspects to the offence. Firstly, it was necessary to determine whether the driving created an obvious and serious risk of physical injury to other persons. Secondly, it was necessary to find that, in driving in such a manner, the accused did so either without having given any thought to the possibility of there being any risk or, having recognized that there was some risk involved, had gone ahead and undertaken it. The test to be applied by the jury was an objective one comparing the driving of an accused to that of the ordinary prudent motorist.
59     Lord Diplock, speaking for the majority, put his position in this way at pp. 526-527:

Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting "recklessly" if before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.

In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things:

First, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and

Second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it.

It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.tkend

60     From the foregoing, it can be seen that the House of Lords has concluded that an objective test is to be applied in determining whether an accused drove recklessly.
61     It was observed in R. v. Tutton and Tutton, supra, that these last two decisions had been the subject of considerable criticism. However, in fairness, it should be noted that not all the comments were unfavourable. In his article "Subjectivism, Objectivism and the Draft Criminal Code", 101 Law Quarterly Review 540, Professor Stannard at p. 551 writes:

But what are we to say of the man who, as in Caldwell, sets a hotel on fire without adverting to the risk that the guests might be burned. Such inadvertence indicates a shocking state of mind, one that cares as little for human beings as for insects.

A Consideration of Section 202

62     Quite apart from the decided cases, a reading of s. 202 of the Code appears to lead to the conclusion that an objective test should be applied. In passing, it should be noted that caution should be exercised in applying English cases dealing with what constitutes "recklessly" in different statutes in light of the precise wording of s. 202. The section provides that everyone is guilty of criminal negligence who "shows" a wanton or reckless disregard for the lives and safety of others. The use of the word "shows" indicates that an objective test should be applied. The very driving or act of commission complained of should "show" or demonstrate the criminal negligence. The word "wanton" means "heedlessly". "Wanton" coupled as it is with the word "reckless", must mean heedless of the consequences or without regard for the consequences. If this is correct, then it is immaterial whether an accused subjectively considered the risks involved in his conduct as the section itself may render culpable an act done which shows a wanton or reckless disregard of consequences. The section itself indicates that from the very manner of driving or from the very act committed the mens rea of the accused can be inferred.
63     It is particularly appropriate in driving offences to apply an objective test in determining the culpability of the accused. There is some conduct which is so reprehensible in itself that in the absence of an excuse, it merits punishment. For example, if a vehicle were to be driven at night at high speeds through the crowded streets at the C.N.E. during the exhibition without headlights and without a warning signal, it would almost certainly, in the absence of an exculpatory explanation, demonstrate a wanton and reckless disregard for the lives and safety of others. Similarly, to drive after consuming a significant amount of alcohol at 120 kilometres per hour in a 40 kilometre per hour school zone when school children are just coming out of school would almost certainly, in the absence of an explanation, show a wanton or reckless disregard for the lives and safety of others. In those circumstances, it would seem unnecessary and unwarranted to require the Crown to show that the accused subjectively assumed the risk involved and deliberately acted in the face of that risk. The nature of the driving itself or the nature of the act of commission itself could readily be found to show or demonstrate a wanton or reckless disregard for the lives or safety of others. The necessary criminal intent can be inferred from the act itself.
64     The concept of negligence is well understood and readily recognized by most members of society. Were it not for the principles set forth in O'Grady v. Sparling, supra, I would have thought that negligence was a continuum. It progresses or rather retrogresses from the momentary inattention which may give rise to civil responsibility through careless driving, dangerous driving, and culminating in criminal negligence. An objective test seems to be particularly appropriate in assessing driving conduct.
65     Most adult members of society are qualified to drive and do so frequently. Their experience would readily enable them, as jurors, to determine whether the driving of an accused displayed such wanton and reckless disregard for the lives and safety of others that it merited punishment for a breach of s. 202.
66     Those who criticize the inclusion of the concept of negligence in the criminal law do so in part on the grounds that it may be unfair to infer the mens rea from the act itself. An example put forward would be of a mentally retarded accused who sets a fire in a crowded building. It is said that such an accused can have no realization of the consequences of his act, nor can he possess a subjective intent to kill or injure others. It is thus argued that subjective intent should always be demonstrated by the Crown in criminal cases. It is also argued that such a handicapped accused could not learn from the deterrence of punishment. However, it should be observed that even the view that a marked departure from the standard of a reasonable person supplies the fault or mens rea necessary for criminal negligence does not preclude taking into account the disabilities of a handicapped person. In the excellent text, Canadian Criminal Law by D. Stuart, the following appears at p. 185:

There is now growing acceptance that there are valid arguments in favour of resorting to objective negligence, especially if we are referring to the Hart/Pickard concept of objective negligence, which makes generous allowance for individual factors. However, arguments justifying a general fault approach apply with considerably less force.

67     Without debating the merits of that argument, I cannot see that it is applicable to criminal negligence cases arising from the manner of driving of the accused. All who drive possess a licence. The possessor of a licence has demonstrated to the licensing authority that he or she knows the rules of the road and possesses the physical and mental ability to drive in a safe manner. Licence holders can be taken to be aware of the reasonable standards required of drivers, and the grave dangers occasioned to others should they fall below those standards. Licence holders should be assumed to know the consequences of their actions and it follows that they may be able to benefit from the deterrence of punishment.

Review and Conclusion

68     Section 202 of the Code requires that an objective test be applied in assessing the acts and active conduct of the accused. The requisite criminal intent may be inferred from the very act or acts of the accused that are in issue.
69     Prior to 1960, provincial appellate courts and the Supreme Court of Canada had concluded that the requisite mens rea for criminal negligence could be inferred by applying an objective standard to the act or acts of the accused. The acts themselves could be the basis upon which the accused might be found guilty of criminal negligence.
70     When the Code was amended in 1955, it was then thought that the law had not been amended in substance and that the principles derived from the earlier cases would still be applicable. This was the position taken by several provincial appellate courts in the years from 1955 to 1960.
71     In 1960, the decision of the Supreme Court in O'Grady v. Sparling, supra, cast doubt on whether an objective test could still be applied.
72     Following the decision in O'Grady v. Sparling, supra, the appellate courts of other provinces continued to apply an objective test to s. 202.
73     The reasons of the majority in Leblanc v. The Queen seem, once again, to permit the application of an objective test. That was clearly the position of the minority in that case.
74     The House of Lords in two recent decisions considered similar legislation and, in doing so, applied an objective test.
75     This Court has recently determined that an objective test should be applied to s. 202 in those situations where either driving conduct or acts of commission were involved. See R. v. Sharp, supra, and R. v. Barron, supra. For the reasons set out earlier, it was appropriate for this Court to take that position. It is only where the failure to act gives rise to a charge under s. 202 that this Court has held that a subjective test should be applied. See R. v. Tutton and Tutton, supra.

Disposition

76     To repeat, in this case, in response to a question from the jury, the following directions were given:

So that you have in one, the dangerous driving, there is simply an objective standard, as compared to what the prudent driver would do. In the criminal negligence you have that, plus the subjective element of assumption and deliberate assumption of the risk.

77     This placed too high an onus on the Crown. As indicated by Morden J.A. in Regina v. Sharp, it would have been sufficient had the trial judge simply read s. 202 of the Code to the jury together with the instruction that the driving had to amount to a marked and substantial departure from the standard of a reasonable driver.
78     In this case, the Crown has satisfied me that if the error had not occurred, the jury would not necessarily have returned the same verdict. See Vezeau v. The Queen (1976), 28 C.C.C. (2d) 81 at p. 87.
79     In the result, the appeal is allowed, the acquittal on the charges of criminal negligence is set aside, the conviction of the respondent on the charges of dangerous driving will be set aside and a new trial is directed on the charges of criminal negligence.

CORY J.A.
MARTIN J.A. -- I agree
THORSON J.A. -- I agree