Dangerous Operation of a Conveyance (Offence)

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Dangerous Operation of a Motor Vehicle
s. 320.13(1), (2) and (3) of the Crim. Code
Election / Plea
Crown Election	Indictment (harm or death) Hybrid (no bodily harm or death) summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)
Minimum	None
Maximum	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	Discharge (730)* Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)* (* varies)
Minimum	None
Maximum	5, 10, 14 incarceration or Life
Reference
Offence Elements Sentence Digests

Overview

Offences relating to dangerous operation of a motor vehicle are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings

Template:PleadingsHybridListTemplate:PleadingsIndictableList

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)

Offences under s. 320.13(1) [no bodily harm or death] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 320.13(2) or (3) [causes bodily harm or death] are straight indictable. There is a Defence election of Court under s. 536(2).

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 249(2)	Template:ReleaseProfileAll
s. 249(3) or (4)	Template:ReleaseProfileOnlyBail

When charged under s. 249(2), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

• while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
• "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
• where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
• where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

A peace officer who charges a person under s. 249(2), (3), (4) of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 320.13(2) or (3)

Offences under s. 320.13(2) or (3) are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.
(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.
(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.

– CCC

320.13...
(5) Everyone who commits an offence under subsection 320.13(1) ... is liable

(a) on conviction on indictment, to imprisonment for a term of not more than 10 years; or

(b) on summary conviction, to imprisonment for a term of not more than two years less a day.

320.19...
(5) Everyone who commits an offence under subsection 320.13(1) ... is liable

(a) on conviction on indictment, to imprisonment for a term of not more than 10 years; or

(b) on summary conviction, to imprisonment for a term of not more than two years less a day.

Proof of the Offence

Proving dangerous operation of a motor vehicle under s. 320.13(1) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) the culprit operated a motor vehicle the manner the accused operated the vehicle was dangerous to the public in the circumstances driving over the road lines / driving over curbs failure to obey road-signs, including stop signs, stop lights and speed limits driving in close proximity with other vehicles (i.e. "tailgating") collision with other car(s), bikers, pedestrians / collision with inanimate objects swerving while driving the culprit knew or ought to have known that the manner of driving was dangerous

Proving dangerous operation of a motor vehicle under s. 249(3) should include: same elements as s. 249(1); another person suffers bodily harm; the harm was "caused" by the alleged act; Proving dangerous operation of a motor vehicle under s. 249(4) should include: same elements as s. 249(1); another person dies; the death was "caused" by the alleged act;

Interpretation of the Offence

Proving the operation of the vehicle where there are no first-hand observers of the accused driving, can be determined through inference by the officer touching the hood of the car to detect recent operation of the vehicle and observing the accused in the vicinity.

Section 2 defines "motor vehicle", "bodily harm", and "railway equipment". Section 214 defines "aircraft", "vessel", and "operates".

The offence under s. 320.13(1) does not violate s. 7 of the Charter for vagueness.

Actus Reus

Actus reus of the offence:

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place." There must be a "marked departure" from the standard of a reasonable person

The focus of analysis is upon the "risks created by the accused’s manner of driving, not the consequences".

The judge must make "meaningful inquiry into the manner of driving". This could include such considerations as:

• the traffic conditions at the time;
• the accused's speed of travel;
• nature of the road; and
• the weather conditions.

Failure on the part of the judge to inquire into the manner of driving may result in a finding of an unreasonable verdict.

Failure to do so may result

Mens Rea

The mens rea has been established is stated as follows:

The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied 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. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

Factors

Personal attributes such as age, experience driving and education are generally not relevant. However, they may be relevant where the accused's personal attributes go to the accused's ability to appreciate or avoid risk.

Falling asleep at wheel is not necessarily a criminal offence. In fact, what the vehicle does after the accused falls asleep cannot be attributed as part of the dangerous driving but rather only as a consequence to the initial conscious driving.

Depending on the circumstances, speed alone can amount to a "marked departure" from the standard of care of a reasonable person.

Other Issues

Sleeping Driver
A driver who is sleeping "is not driving of his or her own volition and acts committed while in that automatic state of mind cannot form the actus reus of dangerous driving".

If the sleeping driver was consciously "embarking on driving or in continuing to drive in the face of a real risk of falling asleep" then the offence can be made out. There must still be a marked departure from the standard of a reasonable person.

Evidence of Alcohol Consumption
The Court may consider evidence of consumption of alcohol even where the accused was acquitted for impaired driving.

Participation of Third Parties

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 259(2)), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 249(2) and 249.4(2)	Summary Election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 249(2) and 249.4(2)	Indictable Election	5 years custody
s. 249(3)	N/A	10 years custody
s. 249(4) or 249.4(3)	N/A	14 years custody
s. 249.4(4)	N/A	life in custody

Offences under s. 249(2) and 249.4(2) are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .

Offences under s. 249(3) or (4) and 249.4(3) or (4) are straight indictable. The maximum penalty is 10 years under s. 249(3), 14 years under s. 249(4) and 249.4(3), or life incarceration under s. 249.4(4).

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 249(2) and 249.4(2)	any
s. 249(3)	N/A
s. 249(4), 249.4(3) and 249.4(4)	N/A

For offences under s. 249(2), 249(3) and 249.4(2), all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

If convicted under s. 249(4), 249.4(3) and 249.4(4) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 249(4), 249.4(3) and 249.4(4) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

The Court’s primary emphasis is placed on general deterrence.

When an offender has a history of improper driving, specific deterrence will be emphasized.

The Dangerous Operation offences are classified as more serious than impair driving and less than criminal negligence.

The sentence must be proportionate to the nature of the harm inflicted.

There must be an emphasis on denunciation and general deterrence, particularly where the consequences are devastating, in order to make clear that these are "true crimes" rather than mere accidents.

In R v Grenke, 2012 ABQB 198 (CanLII), [2012] AJ No 323 (QB), per Germain J, a number of principles have been set out:

1. while jail sentences of less than two years exist, appeals taken from these sentences often result in the sentence being increased to a three to four-year range;
2. lower or lighter sentences are handed out for dangerous driving causing death or bodily harm where there is any involvement of alcohol or drugs, and the driving pattern is at the lower end of riskiness;
3. an early plea of guilt, as a sign of remorse, is often mentioned in lower sentences but I hasten to add that an accused should not be treated more harshly, than the appropriate range of sentence, for exercising their constitutional right to a fair trial;
4. where an offender has a previous record that involves drinking and driving or other dangerous tendencies relating to the rules of the road, sentences tend to be harsher;
5. where an offender is a youthful and less experienced driver, more emphasis may be placed on rehabilitation and less on punishment and deterrence; and
6. where there are multiple convictions the courts should ensure that no one gets a free crime simply because one offence is eclipsed with a more serious one, but, in total and globally the sentence should not be excessive; the sentencing levers of consecutive and concurrent sentences may be used to ensure that, globally, the sentence is appropriate.

Causing Bodily Harm or Death

Where bodily harm is involved, it is among the more serious of motor vehicle offences as it places the public, including completely innocent bystanders at risk of harm.

Primacy is given to denunciation and deterrence .

There is an inherent danger in an object such as a motor vehicle moving at high speed in areas where people frequent.

The regular range for dangerous driving or impaired driving causing bodily harm is between a conditional sentence and two years less a day.

Factors

The aggravating factors to consider include:

1. the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a “motorised pub crawl”;
2. greatly excessive speed; racing; competitive driving against another vehicle; “showing off'”;
3. disregard of warnings from fellow passengers;
4. a prolonged, persistent and deliberate course of very bad driving
5. aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking);
6. driving while the driver's attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held);
7. driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills;
8. driving when knowingly deprived of adequate sleep or rest;
9. driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns;
10. other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle;
11. previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving;
12. more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable);
13. serious injury to one or more victims, in addition to the death(s);
14. behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape;
15. causing death in the course of dangerous driving in an attempt to avoid detection or apprehension;
16. offence committed while the offender was on bail; and
17. dangerous driving while in a residential area or in area where people frequent.

Potential mitigating factors include:

1. a good driving record;
2. the absence of previous convictions;
3. a timely plea of guilty;
4. genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);
5. the offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence), and
6. the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.

Ranges

see also: Dangerous Operation of a Motor Vehicle (Sentencing Cases)

In Alberta, the period of incarceration for motor vehicle offence causing death or injury is usually between 3 to 4 years.

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 249(2), (3), (4)	If an offence under s. 249(2) is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b). For conviction under s. 249(3) and (4), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Driving Prohibition Orders	s. 249(1), (2), (3), or (4)	if under 249(1), (2): Max 3 years / Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time) if under 249(3), (4): Max 10 years
Delayed Parole Order	s. 249(3) or (4)	Periods of imprisonment of 2 years or more for convictions under s. 249(3) and (4) are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
Forfeiture of Vehicle

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

History

Until December 18, 2018, the relevant section was s. 249, which read:

Dangerous operation of motor vehicles, vessels and aircraft
249. (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

(b) a vessel or any water skis, surf-board, water sled or other towed object on or over any of the internal waters of Canada or the territorial sea of Canada, in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of those waters or sea and the use that at the time is or might reasonably be expected to be made of those waters or sea;

(c) an aircraft in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of that aircraft or the place or air space in or through which the aircraft is operated; or

(d) railway equipment in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of the equipment or the place in or through which the equipment is operated.

Punishment
(2) Every one who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

Dangerous operation causing bodily harm
(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Dangerous operation causing death
(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 249; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 57; 1994, c. 44, s. 11.

– CCC

The change in language from s. 249 to 320.13(1) preserved the substance of the offence, but used simpler language.

Section 249.4 was entirely repealed December 18, 2018. It previously read:

Dangerous operation of motor vehicle while street racing
249.4 (1) Everyone commits an offence who, while street racing, operates a motor vehicle in a manner described in paragraph 249(1)(a).
Punishment
(2) Everyone who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

Dangerous operation causing bodily harm
(3) Everyone who commits an offence under subsection (1) and thereby causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Dangerous operation causing death
(4) Everyone who commits an offence under subsection (1) and thereby causes the death of another person is guilty of an indictable offence and liable to imprisonment for life.
2006, c. 14, s. 2.

– CCC

See Also

• Duty of Care

Related Offences

• Street Racing (Offence)

References

• Pre-Trial and Trial Motions Checklist