B charged with dangerous driving causing death under s.249(4). Truck crossed solid centre line and killed 3 people. Prior to this B was driving properly. B doesn’t know what happened, he must have lost consciousness or fallen asleep.
Dangerous Driving, s.249 – Contextualized objective standard
**AR: persons driving is objectively dangerous
**MR: marked departure from the standard of care that reasonable person in circumstances would observe
Does s.249 require a marked departure or simple negligence standard?
A modified objective test for negligent driving is a marked departure, in the circumstances the accused knew at the time, not taking into account personal characteristics, unless incapacity to appreciate the risk.
A modified objective test is the appropriate test to determine the requisite mens rea for negligence based criminal offences
The burden is on the accused to raise a reasonable doubt about whether a reasonable person in the accused position would appreciate the risk he has created.
Hundal - It is only where there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability.
**Personal attributes such as age and experience are not relevant – incapacity to appreciate the risk or incapacity to avoid creating it is relevant
B did not meet the high level of MR required - it was only a few seconds and that does not constitute negligence in this case