R. v. Hundal (S.) (1993), 149 N.R. 189 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Surinder Hundal (appellant) v. Her Majesty the Queen (respondent)
(No. 22358)
Indexed As: R. v. Hundal (S.)
Supreme Court of Canada
Lamer, C.J.C., La Forest, L’Heureux-Dubé,
Sopinka, Gonthier, Cory, McLachlin,
Stevenson and Iacobucci, JJ.
March 11, 1993.
Summary:
The accused drove a dump truck through a red light and hit another vehicle, killing the driver. He was convicted of dangerous driving causing death under s. 233 (now s. 249) of the Criminal Code (1985). The accused appealed.
The British Columbia Court of Appeal, Lambert, J.A., dissenting, in a decision reported 63 C.C.C.(3d) 214; 6 C.R.(4th) 215; 29 M.V.R.(2d) 108, dismissed the appeal. The accused appealed. At issue was the mens rea required for the offence of dangerous driving.
The Supreme Court of Canada dismissed the appeal.
Civil Rights – Topic 3161
Trials – Due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Conviction on basis of objective foreseeability – Modified objective test – The Supreme Court of Canada stated that s. 7 of the Charter prohibits the imposition of imprisonment without proof of mens rea – See paragraph 14 – “Depending on the provisions of the particular section and the context in which it appears, the constitutional requirement of mens rea may be satisfied in different ways … In the appropriate context, negligence can be an acceptable basis of liability which meets the fault requirement of s. 7 of the Charter … Thus, the intent required for a particular offence may be either subjective or objective” – See paragraph 15 – The court held that a “modified objective test” was applicable to the offence of dangerous driving – See paragraph 18.
Criminal Law – Topic 1391
Dangerous driving – What constitutes – The accused was driving an overloaded dump truck on wet city streets in a passing lane – The accused went through a red light hitting another car and killing the driver – The trial judge held that the accused’s manner of driving represented a gross departure from the standard of a reasonably prudent driver and convicted the accused of dangerous driving contrary to s. 233 (now s. 249) of the Criminal Code – No explanation was offered by the accused to excuse his conduct – The Supreme Court of Canada held that the objective test was properly applied by the trial judge, noting that the judge carefully examined the circumstances of the accident and the accused offered no explanation which could excuse his conduct.
Criminal Law – Topic 1392
Dangerous driving – Jury charge – The Supreme Court of Canada discussed how a jury should be instructed on the mens rea required to prove the offence of dangerous driving – See paragraph 33.
Criminal Law – Topic 1393
Dangerous driving – Intention or mens rea – The Supreme Court of Canada held that the mens rea required to prove the offence of dangerous driving under s. 249 (formerly s. 233) of the Criminal Code should be determined on the basis of a “modified objective test” – See paragraphs 18 to 33 – The court stated that “although an objective test must be applied to the offence of dangerous driving it will remain open to the accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused’s conduct. The test must be applied with some measure of flexibility. That is to say the objective test should not be applied in a vacuum but rather in the context of the events surrounding the incident.” – See paragraph 27.
Criminal Law – Topic 1393
Dangerous driving – Intention or mens rea – [See
Civil Rights – Topic 3161
and
Criminal Law – Topic 1391
].
Cases Noticed:
R. v. Mason (1990), 60 C.C.C.(3d) 338 (B.C.C.A.), refd to. [para. 5].
Mann v. R., [1966] S.C.R. 238, refd to. [paras. 10, 11].
Binus v. R., [1967] S.C.R. 594, refd to. [para. 11].
Peda v. R., [1969] S.C.R. 905, refd to. [para. 11].
R. v. Beaudoin (1973), 12 C.C.C.(2d) 81 (Ont. C.A.), refd to. [paras. 12, 13].
R. v. Lowe (1974), 21 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 13].
R. v. Mueller (1975), 29 C.C.C.(2d) 243 (Ont. C.A.), refd to. [para. 13].
R. v. Sharp (1984), 3 O.A.C. 26; 12 C.C.C.(3d) 428 (C.A.), refd to. [para. 13].
Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 69 B.C.L.R. 145; 36 M.V.R. 240; 18 C.R.R. 30; 24 D.L.R.(4th) 536, refd to. [para. 14].
R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 60 C.R.(3d) 289; 39 C.C.C.(3d) 118, refd to. [para. 14].
R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193; 8 C.R.(4th) 145, refd to. [para. 15].
R. v. Tutton and Tutton, [1989] 1 S.C.R. 1392; 98 N.R. 19; 35 O.A.C. 1; 48 C.C.C.(3d) 129; 13 M.V.R.(2d) 161; 69 C.R.(3d) 289, refd to. [paras. 17, 29, 36, 44].
R. v. Waite, [1989] 1 S.C.R. 1436; 98 N.R. 69; 35 O.A.C. 51, refd to. [paras. 17, 36].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 14, 15].
Criminal Code, R.S.C. 1970, c. C-34, sect. 233 [para. 1]; sect. 233(1)(a), sect. 233(4) [para. 7].
Criminal Code, R.S.C. 1985, c. C-46, sect. 249 [para. 1].
Authors and Works Noticed:
Burns, Peter, An Aspect of Criminal Negligence or How the Minotaur Survived Theseus Who Became Lost in the Labyrinth (1970), 48 Can. Bar Rev. 47, p. 60 [para. 9].
Canada, Transport Canada, Road Safety and Motor Vehicle Regulation Directorate, Preliminary Fatality Statistics, Leaflet CL 9211(e) (1992), generally [para. 25].
Rosenberg, Marc, The Mens Rea Requirements of Criminal Negligence: R. v. Waite and R. v. Tutton (1990), 2 J.M.V.L. 243, p. 248 [para. 39].
Stalker, M. Anne, The Fault Element in Recodifying Criminal Law: A Critique (1989), 14 Queen’s L.J. 119, p. 127 [para. 39].
Stuart, Don, Canadian Criminal Law (2nd Ed. 1987), pp. 123-125 [para. 16]; 202 [para. 8].
Stuart, Don, Criminal Negligence: Deadlock and Confusion in the Supreme Court (1989), 69 C.R.(3d) 331, pp. 333 [para. 39]; 336 [para. 41].
Counsel:
S.R. Chamberlain, Q.C., for the appellant;
Alexander Budlovsky, for the respondent.
Solicitors of Record:
Giusti, Chamberlain & Ellan, Vancouver, British Columbia, for the appellant;
Ministry of the Attorney General, Vancouver, British Columbia, for the respondent.
This appeal was heard on January 30, 1992, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on March 11, 1993, including the following opinions:
Cory, J. (L’Heureux-Dubé, Sopinka, Gonthier and Iacobucci, JJ., concurring) – see paragraphs 1 to 35;
La Forest, J., concurring reasons – see paragraph 36;
McLachlin, J. concurring reasons (Lamer, C.J.C., concurring) – see paragraphs 37 to 46.
Stevenson, J., took no part in the judgment.
