Hundal was driving his overloaded dump truck towards an intersection. There were several witnesses who said that he ran a red light. He is charged with "dangerous driving causing death" under s. 233 (now s. 249) of the Criminal Code. Section 249(2) criminalizes simply creating the risk by dangerous driving, (3) deals with bodily harm and (4) when the driving causes death. The difference between these subsections is the punishment that they allow.
- What is the mens rea required to prove the offense of dangerous driving?
To determine this issue the court must interpret s. 249 of the Code. They modify the objective test to allow subjective standards to be brought in as a consideration. They say that overall it is an objective standard of fault that is required. The court looks at the wording of the section and determine that it implies an objective standard. They also look at the nature of driving and determine that it is not required of the court to determine that the individual had the specific knowledge required – if you have the mental capacity to drive, and the license to do it, then you have to meet the standard of not driving dangerously. What you are thinking does not seem to matter in this case.
This is a purposive approach – what is the activity? How is it regulated? They also look at the nature of the activity of driving – it is almost a reflexive activity, as drivers have trouble stating what their specific intent was at any point while driving. Therefore, proof of subjective fault becomes almost impossible. They also look to statistics to say that the objective test is required because it will be easier to get convictions, which will result in deterrence for potential future dangerous drivers. The majority does not make explicit why this does not apply for other crimes we wish to deter, such as murder.
The offence at issue should be assessed objectively within the context of all the surrounding events - "The trier of fact must be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation."
The test for the required mens rea of dangerous driving is a modified objective test - you must take all of the surrounding circumstances into consideration in order to determine if the accused committed a "marked departure" from what a reasonable person in the same circumstances would have done.