Quels sont les critères à évaluer dans le cas d’une infraction relativement à une conduite dangereuse pour assurer une défense pleine et entière à l’accusé ?

R. v. Hecimovic, 2015 SCC 54R. v. Hecimovic, 2014 BCCA 483 :

[70] What was required in assessing the mens rea of the offence was consideration whether the degree of care exercised by the respondent was a marked departure from the standard of care that a reasonable person would observe in the respondent’s circumstances. The respondent’s evidence with respect to her circumstances is relevant. Her conduct is not criminal if it arose from a risk a reasonable person in her position might not have anticipated or appreciated, or, if she acted under a reasonably held mistake of fact. The fact she did not appreciate or anticipate a risk and the fact she was mistaken is the starting point, not the end of the analysis. The fact she did not intentionally decide to take a dangerous route; the fact she did not observe the light to be red; and the fact she thought she was travelling at or just above the speed limit, do not assist in determining whether her conduct was a marked departure from the standard expected of her. In my view, the trial judge erred by applying a subjective standard when she considered whether these acts in isolation established the requisite mens rea.

[71] The trial judge also rejected the argument that the combination of these acts amounted to such a departure from the norm as to establish the requisite mens rea. Clearly referring to the three specific acts said to constitute evidence of an intention to beat the light she noted:

[48]            Here, there were a series of acts and each compounded the other, but I have not found that any of the acts separately constituted a marked departure from the norm. When considered together, I find that they do not establish the mens rea element of the defence. These three acts were part of a momentary error and even together they do not show a marked departure from the norm or something other than simple carelessness.

[Emphasis added.]

[72]        While this conclusion is expressed in the shorthand version of the modified objective test as described in para. 28 of Roy, it is expressed only in relation to the three acts, individually and collectively, that were said by the Crown to evince intentional conduct. These acts, even considered together, do not constitute the whole Crown case against the respondent. The respondent approached an intersection where flashing lights announced the fact that the signal light at the intersection was red. As she did so, she passed other vehicles that had stopped or were stopping at the intersection. She passed them without slowing and without any appreciation of the warning light, the actions of other vehicles, the red intersection lights, the fact there was an intersection or the presence of a cement island and pole in front of her. The judgment contains no express consideration of the respondent’s failure to pay attention to the surrounding traffic, the warning signs and signals and the presence of an intersection. There is no consideration of whether this driver, whose conduct was objectively dangerous, was thinking of her manner of driving as she approached the scene of the accident. What was required in these circumstances was consideration of how the degree of care the respondent brought to her driving measured against the appropriate objective standard.

[73]        There is no express description of when the respondent became overwhelmed by events and started to cry. The Crown points to the passage, at para. 35 of the reasons, where the judge found the respondent “at the moment she went through the red light” had lost her focus and began to cry. I agree with Tysoe J.A. that this passage cannot be read as a finding that the respondent was not affected by her emotions before entering the intersection. However, in my view, that passage and the absence of any explicit consideration of the respondent’s failure to earlier recognize that she was approaching traffic at a controlled intersection and a red light reflects the limited consideration of the respondent’s conduct.

[74]        In my view, it was an error not to have considered the respondent’s conduct in light of all the relevant evidence in order to determine whether it was a marked departure from the standard of care expected of a reasonable person in the respondent’s circumstances. I agree with the Crown’s submission that the analysis was inappropriately limited, perhaps reflecting the Crown’s emphasis on its principal theory of guilt, focusing upon only three aspects of the respondent’s conduct. Examining only those acts said to evince intent to drive dangerously in effect resulted in the application of a subjective standard. In my view, this amounted to an error of law pursuant to s. 686(1)(a)(ii) of the Criminal Code.