R. v. KELLY, 2025 ONCA 92, FEBRUARY 10, 2025.

FACTS: The accused was involved in a motor vehicle accident in which two people were killed. He was charged with the offences of dangerous driving causing death and causing death while driving with an excess blood-drug concentration level, contrary to sections 320.13(3) and 320.14(3) of the Criminal Code.  Those sections read as follows:

320(13) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes the death of another person.

320.14(3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person.

The accused was acquitted of both offences.  The Crown appealed.  

HELD: The Ontario Court of Appeal concluded that the trial judge erred in his interpretation of both provisions. The acquittals were set aside and new trials ordered.

Causing Death While Driving with an Excess Blood-Drug Concentration Level, section 320.14(3):

The Court of Appeal held that “[a] plain reading of s. 320.14(3) establishes that the elements are made out simply by operating a vehicle while impaired or with excess blood levels, and causing the death of a person.  An additional causal nexus between the impairment or excess BAC/BDC and the cause of death is not required…the elements of the offence require: (1) driving while committing the predicate offence, established through impairment and/or a BAC or BDC higher than permitted; and (2) a driver who causes the death of another person. The wording of the provision, and particularly, the addition of the relative pronoun, ‘who’, does not imply that the impairment must cause the death, rather that the person committing the offence must cause the death” (at paragraphs 31 and 33).

However, the Court of Appeal also pointed out that “[t]he fact that s. 320.14(3) does not require the proof of a specific causal link between the driver’s impairment, BAC, or BDC, and the fatality does not prevent the application of a causal analysis. A driver with excess BDC, who becomes involved in a fatal collision, may not be guilty of the offence under s. 320.14(3) if the trier has a reasonable doubt that the driver’s actions were a significant contributing cause of the collision, whether because of an unforeseeable intervening act, or an independent intervening act overwhelms the accused’s role: see R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 3-4, 49, and 71-72” (at paragraph 37).

The Court of Appeal concluded that “[b]ecause of the trial judge’s error with respect to the interpretation of the causal element of s. 320.14(3), the trial judge did not make findings with respect to the legal causation of the death of the Martins. For this reason, in my view, a new trial on these counts is required” (at paragraph 49).

Dangerous Driving:

The Court of Appeal pointed out that “[t]he actus reus of dangerous operation requires the Crown to prove that the accused was driving in a manner that is dangerous to the public, viewed on an objective standard, having regard to all the circumstances, including the nature, condition, and use of the place, and the amount of traffic that was or might reasonably have been expected to be there. It is the manner of driving, not its consequences, that matter. The mens rea requires the trier of fact to be satisfied beyond a reasonable doubt ‘on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances’: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43” (at paragraph 52).

The Court of Appeal indicated that “[t]he concern with the trial judge’s analysis is not simply the irrelevant aspects of the record he considered but also the relevant aspects of the record he failed to consider. The trial judge was required to assess the evidence of the accused’s state of mind as measured against the standard of care of a reasonable driver. As the Crown highlights, the factors relevant to that assessment that were entirely absent from the trial judge’s analysis, include the respondent’s knowledge that there were buggies and other vehicles on the road, his desire to get home quickly even if it meant taking an unfamiliar route, the reflective signage marking the intersection, the testimony of other motorists as to what speed was safe at that place and time, and the respondent’s choice to ingest an impairing substance before driving” (at paragraph 62).

The Court of Appeal concluded “the trial judge erred in his analysis of dangerous driving causing death and the acquittals of the respondent on those charges should be set aside” (at paragraph 63).