R v Beatty: Accidents Will Happen

The line between criminal and civil responsibility has been a difficult one to draw. Generations of scholars have argued that our conception of “crime” must accommodate the fact that systems can and do cause a great deal of harm primarily because people do not take sufficient care. This is most often voiced in circles where advocates forcefully argue for an adjustment of our concept of fault in the criminal law to incorporate corporate criminal liability. Criminal negligence or penal negligence offences are often mined to support this concept of criminal fault.

The biggest obstacle to such an effort is the fact that our notion of moral blameworthiness is traditionally understood as requiring that the actor intend to act badly. Intention is said to be a definitional component of crime and serves to mark the boundary between criminal and civil liability. Certainly, as a logical matter, intent is not the only criterion that can render someone morally blameworthy but it is the one that has come to dominate criminal law theory.

In R v Beatty, [2008] 1 SCR 49 [Beatty], the Supreme Court of Canada (“SCC”) has, once again in the context of dangerous driving, attempted to sharpen the distinction between civil and criminal liability, while striving to maintain a place in Canadian criminal law for penal negligence.

Mr. Beatty was charged with three counts of dangerous driving causing death. He had been working in the sun all day and was driving home on a two way, two-lane highway. It was a sunny, hot, summer day. Those who were traveling behind Mr. Beatty’s car noted nothing remarkable about his driving until, without any precipitating event, he suddenly veered into oncoming traffic and struck a vehicle, killing its three occupants.

There was no evidence of mechanical failure. Nor was there any evidence that Mr. Beatty was intoxicated.

Upon his arrest Mr. Beatty told the police that he must have “went unconscious” attributing it to “heat stroke”. By all accounts he was dazed and stunned by what had happened.

He was acquitted at trial, only to have that reversed and a new trial ordered by the British Columbia Court of Appeal (R v Beatty, 2006 BCCA 229). The difference between the Court of Appeal and the trial judge was in how each assessed the dangerousness of Beatty’s conduct, namely the actus reus. The Court of Appeal ruled that the trial judge erred by focusing on the wrong question. In deciding the actus reus she should have asked whether driving into the oncoming traffic was objectively a dangerous act rather than whether, on the evidence, the conduct of the accused represented a marked departure from the norm. Given that the trial judge had not conclusively determined the mens rea issue the case was remitted for a new trial.

The Supreme Court agreed with the trial judge and restored the acquittals, albeit on a slightly different basis. The Court sought to clarify the notion of moral blameworthiness in the context of this penal negligence offence. In doing so, however, the Court produced three separate opinions regarding the constituent elements of dangerous driving.

For the majority, Justice Charron (writing as well for Justices Bastarache, Deschamps, Abella and Rothstein), defined the actus reus for this offence by focusing upon the objective dangerousness of the conduct. In this case there was little doubt that the conduct was dangerous. In so far as the mens rea is concerned, Justice Charron reasoned that it is at this stage that one considers the circumstances of the accused. That is to say, was the accused’s conduct a marked departure from the norm. This does not require a consideration of the accused’s personal characteristics, rather the reasonable person is literally substituted for the accused in the circumstances of the transaction. In order to determine whether the accused’s conduct is a marked departure one has to weigh the hypothetical reasonable person’s conduct against that of the accused.

Justice Fish wrote a concurring opinion that adds an interesting and compelling clarification to the application of the reasonable person test. He reasoned that what we really should be assessing is whether the reasonable person would have appreciated the risk or their conduct, and if able to do so, would have acted to avert that risk . The beauty in this formulation is the trier of fact’s attention is sharpened to a consideration of alternatives to the conduct of the accused. Without a consideration of alternatives it will be hard to assess whether the accused’s conduct represented a marked departure from the norm.

The Chief Justice authored a separate opinion (joined by Justices Binnie and LeBel) that sadly maintained a degree of confusion that perhaps owes more to precedent than it does to clear thinking. The Chief Justice argued that the notion of marked departure must apply to the actus reus and the mens rea, otherwise there would be no difference between criminal and regulatory provincial offences.  Essentially, both the actus reus and the mens rea must speak to a conduct that is more serious than that governed by provincial regulatory offences.  The difficulty with this is that it tends to conflate the actus reus and mens rea analysis into one question, namely was the conduct a marked departure from the norm.  This obscures the application of the modified objective mens rea test.  The virtue in maintaining the analytical distinction between the actus reus and the internal or requisite mental element is that it forces the trier to focus on moral blameworthiness rather than on the consequences of any given dangerous act. Under the Chief Justice’s construction where the actus reus is satisfied because the trier of fact has found that the conduct was a marked departure from the norm, that finding will foreclose any meaningful assessment of the mens rea component.  All that is left is a consideration of the presence of any rare idiosyncratic features that would render the accused morally blameless, say having experienced a stroke or, as in this case, a momentary lapse of attention.  It is fortunate that this formulation of moral blameworthiness did not carry the day.

Ultimately, the majority judgment provides some needed clarity. As Justice Charron noted, not all dangerous acts are marked departures from the norm. Moral blameworthiness attaches to those persons whose dangerous conduct represents a marked departure from what would be expected of the reasonable person in the very same circumstances. Justice Fish’s clarification should be viewed as complementary to Justice Charron’s formulation. A momentary lapse of attention, without more, does not qualify because the reasonable person would not (more accurately, could not) act to prevent the harm. This recognizes that the criminal law is not always the appropriate response to all dangerous conduct. Quite simply, accidents will happen.