249. (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

This section makes it an offence to drive a motor vehicle in a manner that is dangerous to the public. A conviction under this section results in a criminal record and an automatic 1 year driving suspension. This is a hybrid offence. The prosecutor has the discretion to proceed either by indictment or summarily depending on the actual driving. In practice, unless someone suffers significant bodily harm or the offender has a severe previous record for similar offences, the Prosecutor will elect to proceed summarily. If the prosecutor elects to proceed by way of indictment, the maximum punishment for the offence is five years imprisonment. The basis of liability for a dangerous driving charge is negligence.  That means the court is not concerned with whether the driver intended to drive dangerously but rather they are concerned with whether objectively the driver exercised a reasonable standard of care.

Dangerous Driving under the Criminal Code is a separate offence from Careless Driving under the Highway Traffic Act. According to section 130 of the Highway Traffic Act;

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years

This is a Provincial offence. A conviction for careless driving will not result in a criminal record.  A careless driving conviction will result in demerit points, a minimum fine of $400 and increased insurance premiums.  A conviction can also lead to imprisonment for up to six months and a license suspension for up to two years. The standard of driving which will attract a careless driving charge is less severe than driving which attracts a dangerous driving charge. The Ontario Court of Appeal has stated that driving is deemed careless when it is seen as a “breach of the duty to the public and deserving of punishment”.  The Court will consider whether, in light of the circumstances, the driver failed to use care or failed to give others using the highway the consideration that an ordinary driver would have given.  “Highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between lateral property lines. The degree of care drivers are expected to exercise depends on the prevailing circumstances.

During the World Cup finals, the streets are filled with fans and passengers of motor vehicles enjoy hanging out windows with flags in hand.  Drivers will be expected to exercise caution in these circumstances in spite of the fact that their favourite team has won an important game. Drivers should ensure that passenger conduct does not inhibit their ability to exercise care when driving through fan filled streets.

In the spectrum of unlawful driving, where does the division between careless and dangerous driving fall? The Supreme Court of Canada interpreted the meaning of “dangerous” driving in R v Hundal [1993] S.C.J. No. 29. In that case the Court clarified three important points.  First, the level of negligence the prosecutor must prove to secure a conviction is “a marked departure from the standard of care that a reasonable driver would observe under the circumstances”.  The offensive driving must be so out of the ordinary that a reasonable person would consider the operation of the vehicle dangerous. Therefore, minor mistakes and accidents that could have happened to anyone exercising care, will not amount to dangerous driving. In practice, a dangerous driving charge is likely to be laid in circumstances where it appears that the driver was driving recklessly. If you are the driver of a vehicle celebrating a World Cup win you should refrain from hanging out the window as you drive, and be reminded that the ordinary traffic rules are still in force.  The bar may be somewhat lowered to allow for jubilant expression during the World Cup. However, where the celebration puts other motorists or passengers in the driver’s car at risk, a Court is likely to consider such conduct as a marked departure from that of a reasonable driver exercising care. In these circumstances, charges of Dangerous Driving under the Criminal Code, or Careless Driving under the Highway Traffic Act, may be laid.

In deciding whether “driving” is dangerous contrary to the Criminal Code, a Court will consider the nature of the location including, the driving conditions, the way the location is being used and any other prevalent factors. These considerations are particularly important for drivers trying to get through World Cup traffic. During game celebrations, especially during the finals, the streets are filled with cars, pedestrians, bicycles, motorcycles, etc.  Drivers are expected to exercise more caution when driving in these circumstances.  A dangerous driving charge is more likely to result in situations where the unlawful driving lead to serious consequences, such as serious injury or death. When the unlawful driving does not cause injury or death but nevertheless fall outside the scope of reasonable care, a careless driving charge is more likely. In the event of a charge of “dangerous driving” or “careless driving”, the accused can offer an explanation for his/her abnormal driving.  For example, the driver may have experienced a sudden onset of illness. In order to accept an explanation as a justification, the court must be satisfied that a reasonable person in the accused circumstances would have acted in a similar way. During World Cup season many passengers and drivers will be celebrated excitedly inside their moving vehicles.  The driver of a vehicle is responsible for the behaviour of their passengers, especially if it affects the driver’s ability to drive safely or puts their passengers at risk. Celebrate responsibly.  If you have been charged with Dangerous Driving or Careless Driving, contact Kostman and Pyzer, Barristers for the best defence.

In the context of the trial of a criminal allegation, the jury is composed of 12 individuals called “jurors”. Jurors are selected at random from the population. In order to be eligible for jury selection an individual need only be a Canadian citizen over the age of 19.  However, you will be disqualified from serving as a juror if you are a police officer, lawyer, trustee in bankruptcy, employee of the Ministry of the Attorney General or if you have been convicted of certain criminal offences within the last five years. You may also be exempted from jury duty if you meet certain qualifications such as if you are a student or if you suffer from a health condition that impairs your ability to be a juror. Exemptions are decided on a case-by-case basis. Jurors will then undergo a “jury selection process”. During the selection process, jurors may be asked specific questions by the Crown Attorney and the accused individual’s criminal defence lawyer. The lawyers will either approve the person for the jury or “challenge” their presence on the jury, in which case they will not be selected to sit in the jury.

The twelve members of the jury are sworn to render an impartial verdict as to whether an individual is guilty or not guilty of a crime. The jury is charged with determining all questions of fact (such as “was the defendant in a certain location at a particular time” or “did the defendant in fact hit the victim”?) while the judge retains the duty of determining questions of law (such as “is the defence of self-defence available to the accused in these circumstances” “what kind of behaviour qualifies as negligence under the law”). The judge will instruct the jury on issues of law and the jury will try to determine the actual events that transpired and whether they give rise to the alleged offence.

The jury will hear all the evidence which is admissible against the accused person and render a decision in the matter. They will sit in the courtroom at all times when admissible evidence is adduced, and will hear testimony from witnesses, view physical evidence, and receive instructions from the judge on the relevant law. At the end of the trial, the jury will be sequestered in a room to deliberate as to their verdict. The jury must reach a unanimous verdict. When a jury cannot reach a unanimous verdict it is known as a “hung jury”. In the case of a hung jury, a mistrial will be declared and the case may be retried before a new jury. In all other cases, the jury will render a verdict of “guilty” or “not guilty”. A person is never found to be “innocent” of a crime, the jury will simply conclude that there is not enough evidence to find the person guilty and render a verdict of “not guilty”.

During the course of the trial, jurors have a duty to avoid learning about the trial from outside sources such as the media, family or friends. They are not allowed to conduct their own investigation into the crime by speaking to witnesses or collecting evidence outside of the courtroom. They must decide the case based on the facts that have been presented to them during the course of the trial. During the deliberation process this duty is heightened. During deliberation, the jury cannot have contact with any individual other than the other jurors. They are denied access to the media and cannot even phone family or friends until a verdict has been reached. They cannot ask to speak with the accused individual, the Crown Attorney, the criminal defence lawyer or the judge. If they do, this will be seen as a reversible error, meaning that the court of appeal will be forced to order a retrial. In Canada, jurors also have a legal duty to keep the contents of their deliberations secret. They cannot reveal the opinions of other jurors or anything that was said behind closed doors even after the verdict is rendered. This is not the case in the United States where jurors can talk about the contents of their deliberation after the final verdict is rendered. As such, you will sometimes hear American jurors speak to the media about the trials in which they’ve participated. In Canada, if a juror were to do so, he or she could be charged with contempt of court, a criminal offence.

A “head juror”, known as the “foreman”, leads the jury. The foreman is ordinarily chosen before the beginning of their deliberations. The foreman has the duty of asking questions on behalf of the jury. The jury may require clarification on a point of law from the judge and it will fall to the foreman to ask for this information. The foreman is also responsible for reading the verdict in open court once the jury has completed its deliberation.

Every Canadian has a right to choose to be tried by a jury if they are accused of an indictable offence that carries a maximum penalty of five or more years of imprisonment. The process of choosing to be tried by jury is known an “election”. The election is a choice, and, in most cases, an accused person is free to choose to be tried by judge alone. An individual may not choose to be tried by jury if they are accused of a minor offence. That is because these offences are very common and do not result in harsh penalties. Though the jury system is important, it comes at great cost and can be very disruptive for the lives of the individuals who have been chosen as jurors. For this reason, under Canadian law, juries are reserved for the more serious indictable offences. For the most serious offences such as treason or murder the individual must be tried by both judge and jury under s. 469 of the Criminal Code of Canada, unless both the defendant and Crown Attorney agree that judge alone is sufficient. Electing to be tried by jury is a personal decision that you should discus with your criminal defence lawyer prior to making a formal election.

Trust Kostman and Pyzer, Barristers if you are in need of a Toronto criminal lawyer!