Driving without due care and attention is a serious offence in British Columbia, carrying significant penalties. This blog post examines the law surrounding this offence, outlines what the Crown must prove to secure a conviction, and discusses potential defences.
What is Driving Without Due Care and Attention?
The Motor Vehicle Act of British Columbia prohibits driving a motor vehicle on a highway:
- (a) without due care and attention,
- (b) without reasonable consideration for other persons using the highway, or
- (c) at a speed that is excessive relative to the road, traffic, visibility or weather conditions.
This post focuses on section (a), driving without due care and attention. This is a separate and distinct offence from driving without reasonable consideration for other persons using the highway.
A person convicted of driving without due care and attention faces a fine of not less than $100. However, the penalty can be significantly higher if the offence results in death or bodily injury to a vulnerable road user.
Proving the Offence
Driving without due care and attention is a strict liability offence. This means the Crown does not need to prove a specific mental state or intent on the part of the driver. The Crown only needs to prove that the accused committed the prohibited act – driving without due care and attention – to secure a conviction, unless the accused can prove on a balance of probabilities that they acted with due diligence or abided by the standard of care.
The test for determining whether someone has driven without due care and attention is objective. The Crown must establish a manner of driving which, in all of the circumstances, departs from the accustomed, sober behaviour of a reasonable person.
The Crown must prove beyond a reasonable doubt that the accused failed to exercise due care and attention in all of the circumstances considering the weather, visibility and traffic conditions that existed at that time.
The Crown must show a manner of driving which in all the surrounding circumstances departs from the accustomed sober behaviour of a reasonable man.
The test is whether it has been proved beyond a reasonable doubt that in light of all the circumstances of which the defendant was aware, or should have been aware, she failed to use the care and attention or to give to other users of the road the consideration that a driver of ordinary care would.
Defences
While the Crown’s burden in these cases is less demanding than in cases requiring proof of a subjective mental state, an accused can still raise defences to the charge of driving without due care and attention.
- Due diligence: The accused can avoid conviction if they can prove, on a balance of probabilities, that they acted with due diligence – in other words, that they took all reasonable steps to avoid the event, given the circumstances. For example, in R. v. Nolt, the accused was found not guilty of driving without due care and attention after he successfully argued that he took all reasonable steps to avoid colliding with a cyclist who swerved into his path.
- Mistake of fact: An accused may also be able to avoid conviction if they can demonstrate that they reasonably believed in mistaken facts which, if true, would have made their actions innocent.
- Accident alone is insufficient: The mere fact that an accident has occurred does not automatically mean that the accused was driving without due care and attention. The Crown must still prove that the accused’s driving fell below the standard of a reasonable person in the circumstances. For example, in R. v. Orban, the accused successfully appealed his conviction because the trial judge relied solely on the fact that an accident occurred and failed to properly consider evidence suggesting the accused was driving below the speed limit.
- Evidence of impairment cannot be based on roadside screening: The results of a roadside screening test, while they may be used to form the basis for a demand for a breath sample, cannot be used as evidence to prove that the accused was driving without due care and attention.
Conclusion
Driving without due care and attention is a serious offence in British Columbia. The Crown must prove, beyond a reasonable doubt, that the accused’s driving fell below the standard of a reasonable person in the circumstances. However, an accused can raise several defences to the charge, including due diligence, mistake of fact, and arguing that the accident alone does not establish the offence. It is crucial to understand these legal principles and consult with a qualified legal professional if you are facing such a charge.
