Dangerous Driving

DANGEROUS OPERATION also known as DANGEROUS DRIVING
Dangerous Operation, also known as Dangerous Driving is an offence under Section 320.13 of the Criminal Code. You need not be involved in a collision or accident to be charged. It is the manner of your driving that must be considered “Dangerous”.
If you think you or someone you love might be charged, see our section below entitled “ Should I speak to the Police and Other Tips” and “What should I do when the Police Show Up” and call Lawyer UP immediately.
The offence of Dangerous Driving involves:
- Driving by operating a conveyance (including as a motor vehicle, a vessel, an aircraft or railway equipment)
- In a manner that, having regard to all of the circumstances, is dangerous to the public
- “In all the circumstances” includes many factors such as:
1. the time of day or night,
2. the location, whether the driving is on a busy street or rural road,
3. Whether near a populated area or not
4. Near a school or community centre, church or shopping area especially when the public would be present;
5. on a busy highway at rush hour vs in the middle of the night with no traffic on the roads,
6. The road conditions: slick road conditions due to snow
or ice or dry roads,
7. Presence of Pedestrians and Cyclists – existence of pedestrians and cyclists on the roads
8. Other general conditions on the road that might be reasonably expected at that time and place.
WHAT CONSTITUTES DANGEROUS DRIVING?
You can be charged with Dangerous Driving even if there is no accident or collision. This is because the Court will focus on the manner in which a conveyance or vehicle is being operated.
DOES THERE NEED TO BE AN ACCIDENT?
- The mere fact of a collision even ones where serious property damage, injury or death occurs does not prove that the vehicle was operated dangerously.
WHAT IMPACT DOES SPEEDING HAVE?
- In some cases, depending on the circumstances, speeding alone can constitute a marked departure from the standard of care of a safe and prudent driver and thus amount to Dangerous Driving.
- The Court would have to look at all the relevant factors at the time of the driving to determine if, in totality, the driving amounted to Dangerous Driving. For example:
- Nature of the roadway
- other factors in addition to the speed
- actual speed including top speed(s)
- distance over which the speed was maintained
- whether the accused had control of the vehicle at speed
- the speed of other drivers at the time
- safe speed for the roadway at the time
- ability to stop in the event of a sudden event
If a driver was travelling at 190 km per hour on Hwy 400 at 4 pm on a weekday plus weaving in and out of heavy traffic which included school buses on wet roads in an older vehicle with poor brakes that could not be stopped quickly that would likely amount to Dangerous Driving.
WHAT IF I’M SIMPLY NEGLIGENT?
- Simple negligence can cause serious accidents and negligence is not a criminal offence, although you could be sued in civil court for negligence.
WHAT IS THE “MARKED DEPARTURE” TEST?
- One test of Dangerous Driving is whether there was a “marked departure from a standard of care that a reasonable person would observe in the same situation that the accused was in on the occasion in question.
- The driving conduct would not be viewed from the point of view of what is reasonable for the accused, but from that of a reasonable person.
- The departure in driving required would have to be “marked” that means significant, strikingly, conspicuous, and noticeable;
- Even dangerous deviations from the reasonable man’s standard of care may not be considered significant enough to be “marked” which is what is necessary to deserve Criminal punishment.
- Slight or mere deviation from reasonably prudent and safe driving would not be considered “Dangerous Driving”.
- As an example, weaving in and out of rush hour traffic at high speed with near misses causing other motorists to brake suddenly or swerve would clearly be Dangerous Driving.
DO I NEED INTENTION TO DRIVE DANGEROUSLY?
- It is not necessary for the Crown to prove intention to drive dangerously, only that the driving in and of itself was Dangerous;
- In essence, even when there is no specific intent to drive “dangerously” a poorly trained driver, who has not learned to drive safely and reasonably and who drives with great risk to themselves and others on the roadway will be convicted due to the departure from a reasonable standard of driving. The intent will be proven from this departure from the reasonable standard alone.
WHAT DOES “DANGEROUS” MEAN?
- Operating a vehicle in a manner “dangerous” to the public means driving in a perilous, hazardous or unsafe manner.
THREE TYPES OF DANGEROUS DRIVING
The Criminal Code sets out 3 types of Dangerous Operation offences. Each type has different penalties for obvious reasons.
1. Dangerous Driving
2. Dangerous Driving Causing Bodily Harm
3. Dangerous Driving Causing Death
The Provisions of the Criminal Code are as follows:
The following are the relevant sections of the Criminal Code on sentencing for Dangerous Driving in each of the three scenarios:
Dangerous Driving, Dangerous Driving Causing Bodily Harm, and Dangerous Driving Causing Death.
Dangerous operation
320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.
Operation causing bodily harm
(2) 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 bodily harm to another person.
Operation causing death
(3) 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.
Minimum Sentence for Dangerous Driving
Dangerous Driving is considered a serious offence in Canada carrying up to life imprisonment in some cases. The Parliament of Canada has set mandatory minimum sentences for any cases involving either bodily harm or death. These minimums are as follows:
- for a first offence, a fine of $1,000,
- for a second offence, imprisonment for a term of 30 days, and
- for each subsequent offence, imprisonment for a term of 120 days;
PENALTIES FOR DANGEROUS DRIVING (CRIMINAL CODE)
In brief, a person found guilty of dangerous driving can expect the following range of sentence:
1. Dangerous Driving
- 2 years less a day in jail if by summary conviction
- up to 10 years in jail if by indictment
2. Dangerous Driving Causing Bodily Harm
- Up to 2 years less a day in jail or a fine of $5,000 or both if by summary conviction
- Up to 14 years in jail for indictable offences
- Minimum sentences for both summary and indictable offences are applicable as follows:
- for a first offence, a fine of $1,000,
- for a second offence, imprisonment for a term of 30 days, and
- for each subsequent offence, imprisonment for a term of 120 days;
3. Dangerous Driving Causing Death
- Is a straight indictable offence with a maximum penalty of life imprisonment
- Minimum sentences offences are also applicable as follows:
- for a first offence, a fine of $1,000,
- for a second offence, imprisonment for a term of 30
days, and - for each subsequent offence, imprisonment for a term
of 120 days;
CRIMINAL CODE PROVISIONS: PUNISHMENT
The following consequences
Punishment — dangerous operation and other offences
(5) Every person who commits an offence under subsection 320.13(1) or 320.16(1), section 320.17 or subsection 320.18(1) is guilty of
- an indictable offence and liable to imprisonment for a term of not more than 10 years; or
- an offence punishable on summary conviction.
- Punishment in case of bodily harm
320.2 Every person who commits an offence under subsection 320.13(2), 320.14(2), 320.15(2) or 320.16(2) is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days; or
(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to the minimum punishments set out in subparagraphs (a)(i) to (iii).
Punishment in case of death
320.21 Everyone who commits an offence under subsection 320.13(3), 320.14(3), 320.15(3) or 320.16(3) is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,
- for a first offence, a fine of $1,000;
- for a second offence, imprisonment for a term of 30 days; and
- for each subsequent offence, imprisonment for a term of 120 days.
AGGRAVATING FACTORS ON SENTENCING
In addition to any other aggravating factors that the Court can consider, the Criminal Code sets out a number of factors that the Court MUST take into account when considering sentencing. These are listed below.
Aggravating circumstances for sentencing purposes
320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 shall consider, in addition to any other aggravating circumstances, the following:
- the commission of the offence resulted in bodily harm to, or the death of, more than one person;
- the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
- a person under the age of 16 years was a passenger in the conveyance operated by the offender;
- the offender was being remunerated for operating the conveyance;
- the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
- the offender was operating a large motor vehicle; and
- the offender was not permitted, under a federal or provincial Act, to operate the conveyance.
DRIVING LICENCE SUSPENSIONS & PROHIBITIONS
A conviction for Dangerous Driving will also result in the following driving consequences:
a) An AUTOMATIC suspension of driving licence by the Ministry of Transportation (Ontario) for 12 months.
b) A DISCRETIONARY Driving Prohibition as part of the Criminal Court order. For such a period of time as set out in the Court order. The Court could order no Driving Prohibition up to the Maximums they are permitted by law plus any discretionary amounts that they are permitted to add. The parameters have been set out in the Penalties section above.
- If a person receives both a driving suspension and a Driving Prohibition they will run concurrently
- A prohibition order in respect of a motor vehicle applies only to its operation on a street, road or highway or in any other public place
- Any driving Prohibition Order takes effect immediately. Therefore, if a prohibition order was made in your case, you can be arrested and charged after leaving the Court after your sentencing if you try to drive your vehicle home after Court. This happens very commonly.
- The basis for the Driving Prohibition stems from the discretion granted to the Court pursuant to Section 320.24 (4) of the Criminal Code. This section provides:
- Discretionary order of prohibition — other offences
- (4) If an offender is found guilty of an offence under section 320.13, subsection 320.14(2) or (3), 320.15(2) or (3) or under any of sections 320.16 to 320.18, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (5).
- This Prohibition is not mandatory. The Court can theoretically impose a Prohibition for as little as a single day but the minimum is likely to be in the 1 to 5 year range.
320.24 (4):
- Subsection 320.24 (5) provides details on the driving prohibition periods:
(5) The prohibition period is
(a) if the offender is liable to imprisonment for life in respect of that offence, of any duration that the court considers appropriate, plus the entire period to which the offender is sentenced to imprisonment;
(b) if the offender is liable to imprisonment for more than five years but less than life in respect of that offence, not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment; and
(c) in any other case, not more than three years, plus the entire period to which the offender is sentenced to imprisonment.
DRIVE UNDER PROHIBITION
All Prohibition Orders take effect on the day they are made. Therefore, it would be unwise to return to your car in the Court parking lot and attempt to drive it home. It is very common for the police to be observing to see if you attempt to do this. You will then be charged with another Criminal Offence: Drive under Prohibition.
OTHER CONSEQUENCES OF CONVICTION
In addition to any sentence imposed upon conviction, and depending on the type of Dangerous Driving charge you face, whether basic, or causing bodily harm or death, you could face some or all of the following:
- CIVIL LAWSUITS – You may be sued and a finding of guilt in a Criminal case may seal your fate in the Civil case.
- EMPLOYMENT CONSEQUENCES – Many employers require that you be bondable, have good driving records, and be of good character. Having a criminal record would make it difficult to work in many industries. You may have ongoing security or criminal checks in your current employment that may result in loss of your employment . Even for Driving records, you could be dropped from your employment if you are convicted of a substantial charge as it would increase their fleet insurance.
- EDUCATIONAL RESTRICTIONS – Many Colleges and Universities do not admit persons with certain Criminal Records.
- IMMIGRATION CONSEQUENCES – A conviction could seriously jeopardise your ability to remain in Canada if you are not a citizen and removal / deportation proceedings would likely be commenced.
- RISK OF BREAK OF PROBATION – If you are charged with another Criminal offence or BREACHING your PROBATION TERMS, you will likely face another Criminal Offence of Breach of Probation.
- CRIMINAL RECORD – Records are a stigma both publicly and personally.
- EXPENSE OF APPLYING FOR A PARDON -You will have to incur the expense of applying for a Pardon many years down the road.
- TRAVEL RESTRICTIONS- Having a Criminal Conviction will create difficulty for future travel abroad alone or with your family, especially the United States and the U.K.
- PROPERTY DAMAGE DENIED – Your own vehicle damage claim denied if you are involved in an accident.
- INSURANCE INCREASES- Insurancerate increases for 3 years – likely 100% increase. In the most severe of cases, your policy may be cancelled.
- DNA ORDER – The Crown has discretion to seek a DNA order.
RELEASE AFTER ARREST & BAIL HEARINGS
If you are arrested, you could face one of two scenarios:
- You could be released at the station by the Officer in Charge on a Promise to Appear – this is discretionary and if you make your phone call to us from the station or before you are charged we can attempt to negotiate your release in this manner. Otherwise, you will be held for a bail hearing.
- In any bail hearing it will be a “reverse onus” meaning instead of the Crown having to demonstrate why the accused should not be released, the onus is on the accused to show why they should be released. This higher onus means if you are charged, you need to be prepared seriously for any bail hearing, with sureties and a solid bail plan. We can help if this situation arises.
RECORD SUSPENSIONS AND PARDONS
If you have been convicted of Dangerous Driving we can apply on your behalf for a record suspension pursuant to the Criminal Records Act. Contact us to discuss this.
DEFENCES
- MOMENTARY LOSS OF ATTENTION – While driving a driver can easily be distracted or lose focus on the driving for a split second or a few seconds. This can result in the vehicle moving into another lane, an oncoming lane, into a ditch, or going through a red light or crosswalk, or becoming involved in a serious accident. A momentary loss of attention can be caused by fatigue, or simple inattention for a few seconds and this could give rise to civil liability, but it would not constitute a basis for the Criminal Charge of Dangerous Driving. Hence it is a valid defence if raised and demonstrated effectively.
- MECHANICAL FAILURE – A mechanical failure in a vehicle can lead to unsafe movements, swerving, or the inability to track or stop properly, or complete or partial loss of control of braking or steering. If this can be shown then this would be a viable defence to the charge.
- INVOLUNTARY CONSUMPTION OF DRUGS/ALCOHOL Anyone who has ingested drugs or alcohol without their knowledge or consent could raise this defence as they would be unaware when they got behind the wheel that they could become a hazard to others on the road.
- MEDICAL EPISODE – Any medical issues that give rise to dangerous unexpected driving can be a defence. Examples include Diabetic lows, seizures, heart attacks, black-outs, asthma attacks, strokes, and some mental health issues. If however a person has a medical episode as a result of voluntarily not taking medications to prevent these symptoms, then the defence may not be available. The Court would have to review the history of the accused and their history of these episodes, take into account their awareness of the connection of the episodes with the taking of the medication, whether they had been told by their Doctors that they could not drive if they were not taking the medication regularly, and their understanding of their medical diagnosis and a number of factors before determining the validity of the defence in these circumstances.
APPEALS OF CONVICTION & SENTENCE
If you have been convicted, you can appeal both your conviction or sentence or both. Usually, an appeal must be filed within 30 days of the date that sentence is imposed otherwise leave to appeal must be obtained. We would be happy to discuss with you your case and your appeal options.
Because time is of the essence, don’t delay, call right away to arrange a consultation.
SHOULD I SPEAK TO THE POLICE & OTHER TIPS?
Typically, any person potentially involved in a crime should not be speaking to the police before getting proper legal advice because:
- They may or may not know that you were involved with any certainty. Using camera technology the police can identify persons and also track their vehicles on roadways, get vehicle plate numbers and locate the owner of the vehicle. Police have other investigative tools as well to locate potential suspects.
- The Police may call you or show up at your residence when you are not prepared to speak to them.
- The Police may say they are there to try to “clear up” a situation or to exclude you from being involved and ask where you were on a specific day and time. If you lie, you will have further problems.
- The Police may try to tempt you by saying if you “cooperate” they may not lay any charges. Remember that the Police are there to conduct an investigation.
- They are allowed to lie as an investigative tool in order to secure statements from persons they are investigating
- Do not rely on “advice from the police” as they are not acting in your interest
WHAT SHOULD I DO WHEN THE POLICE SHOW UP?
- Do not speak to the police about the matter. Listen to what they say and then tell them sorry, you have nothing to say. I’m going to call a lawyer. Then call us.
- If they ask you “do you mind if we step inside to speak” you should say you would rather they stay outside because once you invite them inside, anything they inside will be fair game for them. If they see anything linking you to the crime they are investigating, or any other potential crime they can charge you. For example, if they see Marijuana plants growing in a room, and you have no licence for this, you would be charged.
- Do not make any decisions based on what the police tell you or before you have all the facts. Make that decision AFTER speaking to our office.
- Do not post evidence or comments online or speak to others about any potential crime as you create a public record.
- Do not speak to others about the potential crime as you’ll only create more possibility of witnesses against you.
- Advise them that you are exercising your right to remain silent and your right to contact your lawyer.
- They may take you into custody and arrest you but you are far better off in all criminal cases to make no statement to the police.
- Insist upon calling our office if you are arrested for advice.
- Remember that any statement you give will likely be used against you.
- If you give any statements, you end up pinning yourself down to a version of events that you are stuck with and that will hamper your defence.
- Do Not take any cell phone with you to the police station if you are taken into custody as the police commonly will do forensics on your cell phone while you are in custody.
- Do Not Consent to any form of Search of your home or vehicle. Police need a search warrant to conduct any search.
REASONS TO CHOOSE LAWYER UP TO DEFEND YOU
- We know the Law: We understand the charges you are facing and have the skill to deal with the complex legal issues in them.
- Legal System for You: We make sure the legal system works not just for the police and the Crowns but for you !
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- We Listen: You can reach us by phone/email anytime.
- Progress Updates: Regular progress updates on the case.
- You are Never Alone: We communicate with you. You’ll never be in the dark.
- Peace of Mind: Wego to Court for you so you don’t have to, except when absolutely required by the Court.
- We Go Above and Beyond to Have your Back: We are in your Corner and dig deep, working hard and smart leaving no stone unturned to protect your rights using all legal means available.
- Flexible Financial Plans: We’ll work out financial payments that you can manage.
- We See the Big Picture: We’ll protect ALL of your rights. Under Canadian law you are presumed innocent until proven guilty. You are not required to prove your innocence, only raise a reasonable doubt as to your guilt, based on all the evidence before the Court.
- We seek to minimize all negative Consequences: We try to minimize the negative effects of a conviction and criminal record on you which could expose you to civil actions, risk to employment, education, or travel plans and harm your immigration status.
- One Stop Legal: We can deal with any spin off legal issues including your immigration, employment or any civil actions if needed so you won’t have to find another lawyer. Since we know your case, you’ll save money.
- Our Goal: We aim is to investigate the facts and to negotiate a conviction-free result for you. We always seek a conviction-free resolution with NO CRIMINAL RECORD. Secondly, we always seek to have you avoid any jail time, by looking for alternate opportunities available in sentencing other than jail. We bring to the Crown’s and Court’s attention all factors that mitigate against a harsh sentence and in the worst scenario if Jail is the only option available, we will pursue a Conditional Sentence so any time may be served under House Arrest allowing you to continue to see your family and go to work.
- Fair treatment and Vigorous Defence: We are relentless to obtain an acquittal or resolution at the earliest opportunity for you. We do our best to ensure you receive fair treatment throughout any allegations are vigorously defended by tough negotiation, and tough cross-examination when necessary, and by bringing all required Court Motions to protectall your legal and procedural rights from beginning to end.
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