Dangerous Operation
Dangerous Operation (AKA Dangerous Driving) is a serious criminal offence under section 320.13 of the Criminal Code. You could be charged with Dangerous Operation even if no one else was on the road at the time. Like with other driving-related offences, a conviction for Dangerous Driving will also impact your driving privileges and insurance.
There are three categories of Dangerous Operation under the Criminal Code:
- Dangerous Operation
- Dangerous Operation Causing Bodily Harm (where the dangerous operation resulted in another person suffering bodily harm)
- Dangerous Operation Causing Death (where the dangerous operation resulted in the death of another person)
What is Dangerous Operation?
A person commits the offence of dangerous operation where he or she operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public. The "circumstances" considered include:
- the nature, condition, and use of the place where the conveyance is being operated;
- the amount of traffic present at the time;
- the amount of traffic reasonably expected to be at that place;
- weather conditions; and
- the accused’s rate of speed.
What is a "Conveyance"?
A conveyance is defined in the Criminal Code as a motor vehicle, vessel, aircraft, or railway equipment.
How is "Dangerous" Assessed?
In determining whether someone has operated a conveyance in a dangerous manner, the Court will apply the following test: whether the manner in which the accused drove, viewed objectively, amounted to a marked departure from the standard of care that a reasonably prudent driver would observe in the accused’s circumstances.
Suppose the accused decides to provide an explanation for their conduct. In that case, it will also be up to the Court to determine if a reasonable person in the accused’s circumstances ought to have been aware of the risk and danger involved in their conduct.
What is a "Marked Departure"?
A "marked departure" must be more than a mere departure from the standard expected of a reasonably prudent person. The difference between a mere departure and a marked departure is a question of degree. For example, a momentary lapse of attention alone (i.e. looking away from the road for a few seconds) would not satisfy the marked departure requirement. At trial, it is ultimately up to the Court to consider all of the evidence objectively to determine if the manner of driving constituted a marked departure from the norm.
Some examples of driving behaviour that may be considered a marked departure from the standard of care of a reasonably prudent driver in the circumstances include, but are not limited to:
- Excessive speeding;
- Failing to obey road signs or traffic lights;
- Driving over road lines;
- Driving over curbs;
- Tailgating another vehicle;
- Swerving while driving; and
- A collision involving other vehicles, pedestrians, or objects.
Possible Penalties if Convicted of Dangerous Operation
Dangerous Operation and Dangerous Operation Causing Bodily Harm are hybrid offences, meaning the Crown can elect to proceed by summary conviction or by indictment. Dangerous Driving Causing Death is a straight indictable offence – there is no Crown election.
The potential penalties are as follows:
- If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
- If the Crown proceeds by indictment: the maximum punishment is ten years imprisonment.
If the offence involved causing bodily harm:
- If the Crown proceeds by summary conviction: a fine of not more than $5,000 or imprisonment for a term of not more than two years less a day, or both.
- For a first offence: there is a mandatory minimum fine of $1000.
- For a second offence: there is a mandatory minimum of 30 days imprisonment.
- For each subsequent offence: there is a mandatory minimum of 120 days imprisonment.
- If the Crown proceeds by indictment: a maximum punishment of fourteen years imprisonment, as well as the following mandatory minimums:
- For a first offence: there is a mandatory minimum fine of $1000.
- For a second offence: there is a mandatory minimum of 30 days imprisonment.
- For each subsequent offence: there is a mandatory minimum of 120 days imprisonment.
If the offence involved causing death:
a maximum punishment of life imprisonment and to the following mandatory
minimum punishments:
- For a first offence: $1000 fine.
- For a second offence: 30 days imprisonment.
- For each subsequent offence: 120 days imprisonment.
Aggravating Factors
If convicted of Dangerous Operation, there are several aggravating factors that the Court will consider when sentencing the accused, including:
- Whether the commission of the offence resulted in bodily harm to, or the death of, more than one person;
- Whether the accused was operating a motor vehicle in a race or contest of speed with at least one other motor vehicle;
- Whether someone under 16 years of age was a passenger in the conveyance operated by the accused;
- Whether the accused was being paid at the time to operate the conveyance;
- Whether the accused’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;
- Whether the offender was operating a large motor vehicle; and
- Whether the offender was not permitted, under a federal or provincial Act, to operate the conveyance at the time.
Defences Available to a Charge of Dangerous Operation
As in every case, the defences that may be available to you depend on the specific facts of your case.
The following list includes defences that may be available in a Dangerous Operation case:
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Factual Innocence: If the Crown is unable to prove the following elements beyond a reasonable doubt, they will have failed to discharge their burden:
- the identity of the accused;
- the date and time of the incident and jurisdiction;
- that the accused operated a "conveyance" as defined in the Criminal Code;
- that the manner in which the accused operated the conveyance was dangerous to the public; and
- that the accused knew or ought to have known that the manner in which he or she operated the conveyance was dangerous.
- Involuntary Intoxication: The involuntary consumption of alcohol or drugs may negate the mental element of the accused’s actions. The accused cannot have taken the substance voluntarily to invoke this defence.
- Unexpected Medical Impairment:A defence may exist where the accused suffered from an unexpected medical emergency while driving, such as a seizure or fainting. However, the availability of the defence will depend on the actions of the accused. Where, for example, the accused had a medical diagnosis, and the impairment occurred as a result of the accused voluntarily choosing not to take his or her medication, the defence will likely not be available.
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Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
- the right against unreasonable search and seizure;
- the right to not be arbitrarily detained;
- the right to be informed promptly of the reasons for arrest;
- the right to retain and instruct counsel without delay; and
- the right to be tried within a reasonable time.
A successful Charter challenge may also result in a stay of proceedings or evidence from your case being excluded.
Next Steps
The information above provides a general overview of the offence of Dangerous Operation, as well as potential penalties and defences. However, no two cases are alike. Every criminal case is fact-specific and ranges in complexity, depending on the issues at play.
Were you charged with Dangerous Operation? Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach that is tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.
