Dangerous Driving: Hundal, Beatty, & Roy
R v Hundal, SCC 1993
Cory J. (majority
reasons)
Issue: Is there a
subjective element in
the fault component of
dangerous driving?
P.876
[pattern of driving]
R v Beatty, SCC 2008
Charron J. (majority
reasons)
Issue: Clarifying the
uncertainties of the
modified objective test
in the context of a
“momentary lapse of
attention” by restating
the test in Hundal:
para. 21, para.43,
para.68
[momentary lapse]
Analysis:
s. 233 CC: Every one
commits an offence
who operates a motor
vehicle on a street,
road, highway or other
public place in a
manner that is
dangerous to the
public, having regard to
all the circumstances,
including the nature,
condition and use of
such place and the
amount of traffic that
at the time is or might
be reasonably be
expected to be on such
place;
fault element for a
particular offence may
be either subjective or
objective: p.882
Subjective fault: what
was actually in the
mind of the accused at
the moment the
Analysis:
Modified objective
test: “…this test for
penal negligence
‘modifies’ the purely
objective norm for
determining civil
negligence…there must
be a ‘marked
departure’ from the
civil norm [which is a
“mere departure” from
“the standard expected
of a reasonably
prudent person”]”:
para. 7
R v Roy, SCC 2012
Cromwell J. (for the
Court)
Issue: The fault
requirement for
dangerous driving: was
there a reasonable
inference that the
accused exhibited a
marked departure from
the standard of care
that a reasonable
person would have
exhibited in the
circumstances?
Paras.3-4
[“a single and
momentary error”:
leaving a stop sign
when unsafe to do so]
Analysis:
Civil negligence does
not concern itself with
the mental state of the
driver. The modified
objective test for penal
negligence allows the
accused to raise a
reasonable doubt
about whether a
reasonable person in
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Dangerous Driving: Hundal, Beatty, & Roy
R v Hundal, SCC 1993
prohibited act
occurred? What did the
accused intend, know
or foresee? P.882
Objective fault:
requires a marked
departure from the
standard of care of a
reasonable person.
“Could”, “ought” or
“should” have foreseen
are words signifying
objective fault: p.883
“modified objective
test”: is used to prove
the fault element for
dangerous driving
because of:
• The
requirement
for a driving
licence: p.884
• The automatic
& reflexive
nature of
driving: p.884
• The wording of
the dangerous
driving section
of the CC:
p.885
• Statistics:
pp.885-886
“It is simply
inappropriate to apply
a subjective test in
determining whether
an accused is guilty of
dangerous driving.”:
p.886
Objective fault is
required for dangerous
driving but “it will
remain open to the
R v Beatty, SCC 2008
the situation of the
accused would have
been aware of the
risks: para.8
R v Roy, SCC 2012
An act of civil
negligence in driving
will not necessarily
constitute penal
negligence: para.20
Criminal fault “can be
based on the voluntary
undertaking of the
activity, the presumed
capacity to properly do
so, and the failure to
meet the requisite
standard of care.”:
para.32
Two difficulties with
the application of the
Hundal modified
objective test:
1. Confusion
regarding the
distinction
between
“objectively
dangerous
driving” and
“marked
departure from
the standard of
care”: para.42
2. Uncertainty in
the case law on
how to deal
with evidence
of the
accused’s
mental state,
for example, is
evidence of the
accused’s
actual mental
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Dangerous Driving: Hundal, Beatty, & Roy
R v Hundal, SCC 1993
accused to raise a
reasonable doubt that
a reasonable person
would have been
aware of the risks in
the accused’s conduct”
[the “modified” part of
the “modified
objective” test]: p.886
“marked departure
from the norm” is part
of the “reasonable
person” analysis: p.887
Summary:
The fault element for
dangerous driving is
assessed objectively
“but in the context of
all the events
surrounding the
incident…As a general
rule, personal factors
need not be taken into
account.”: p.888
R v Beatty, SCC 2008
state relevant?:
para. 42
The Hundal Test Restated:
Actus Reus: Viewed
objectively, was the
driving of the accused
“dangerous” in
accordance with the
wording of the section?
Mens Rea: If the driving
of the accused was
objectively dangerous
based on the wording
of the section, was the
driving a marked
departure from the
standard of care of a
reasonable person in
the same situation as
the accused? The
answer to this question
is based on all the
evidence, including the
accused’s actual state
of mind at the time of
driving: para.43
R v Roy, SCC 2012
The Beatty Test
Amplified:
Actus Reus: Was the
driving dangerous
contrary to the
wording of the section?
The manner of the
driving is the focus.
“There must be a
meaningful inquiry into
the manner of the
driving.”
“The trier of fact must
not simply leap from
the consequences of
the driving to a
conclusion of
dangerousness.”:
paras.33-35
[driving is “inherently
dangerous”: para.2,
para.34]
Mens Rea: “marked
departure” is the
minimum fault
requirement. The
modified objective test
“means that, while the
reasonable person is
placed in the accused’s
circumstances,
evidence of the
accused’s personal
attributes is irrelevant
unless it goes to the
accused’s incapacity to
appreciate or avoid the
risk.”
[Subjective mens rea
that is deliberately
driving dangerously
would support a
conviction for
dangerous driving but
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Dangerous Driving: Hundal, Beatty, & Roy
R v Hundal, SCC 1993
R v Beatty, SCC 2008
R v Roy, SCC 2012
proof of that is not
required. : para.38]
Driving that is
objectively dangerous
will not on its own
support the inference
that there was a
marked departure.
“Only driving that
constitutes a marked
departure from the
norm may reasonably
support the
inference.”: para.42
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