"I know what you're thinking. "Did he fire six shots or only five?" Well, to tell you the truth, in all this excitement I kind of lost track myself. But being as this is a .44 Magnum, the most powerful handgun in the world, and would blow your head clean off, you've got to ask yourself a question: Do I feel lucky?....Well, do ya punk?"
Dirty Harry[1]
Getting behind the wheel of a car is like playing Russian-Roulette – engage the transmission, step on the gas and take your chances. The urban landscape is crawling with armored vehicles, operated at high speeds by human beings subject to the frailties of the human condition. A momentary lapse of attention, an unexpected event or something as simple as minor negligence can result in dire consequences. Notwithstanding the highly publicized carnage on Canada’s highways, citizens happily enter motor carriages without a second thought as to their likelihood of surviving the commute. With so many people sharing limited space, accidents happen. Sometimes accidents are avoidable and sometimes they are not. Accidents can happen to the best of us.
Criminal culpability in Canada is premised upon the notion that people are the intentional authors of their own actions. From a criminal justice perspective, a person cannot be sanctioned for something he or she did not do. The actus reus of an offence must be proven beyond a reasonable doubt. By the same token, a person cannot be punished for something he or she did not intend to do. In many cases the actus reus of the offence is clear, but the mens rea of the crime involves much deeper considerations. This is especially so for allegations of criminal driving. Generally speaking, intentionality involves an assessment of what was transpiring in the actor’s mind at the time of the impugned conduct. Assessing the inner workings of the mind, however, involves deeper, more complex considerations than merely observing or supplying evidence of the act itself. Since motorists seldom intend to injure or kill their fellow citizens, the mens rea of driving offences is often difficult to assess.
From a morality perspective, a person cannot be morally assessed for what is not their fault or for occurrences beyond their control; yet people are regularly prosecuted for crimes of result, rather than crimes of intent. In a civilization where morality is legislated through various laws designed to control human behavior, there are serious questions as to whether prosecutions arising from some allegations of impugned conduct – such as problematic driving – are more logically connected to the result rather than the conduct itself? This paper focuses upon the question: if the underlying conduct would not be criminalized but for an intervening tragic event, should the accused be convicted or even prosecuted at all? This paper suggests that in some cases people are prosecuted and even convicted for behavior in which moral accountability is the same regardless of the consequences.
On August 18th, 2008, Angela Ta was found not guilty of careless driving and other Traffic Safety Act offences in a collision that killed six-year old Jenna Chang. In a carefully worded written decision, Judge Catherine Skene said: “Based on the evidence and testimony that I did have before me, there is evidence to suggest that the two pedestrians stepped off the sidewalk and/or curb, on to the roadway…into the path of Ta’s vehicle when Ta’s vehicle was so close that it was impracticable for the driver to yield the right of way”. As reported by the Calgary Herald, an understandably emotional Wei Chang, the girl’s father said “[i]t’s just very sad…very tough,…[t]his case, justice is not served…”[2]. The Crown obviously agreed, for they appealed the learned trial judge’s decision[3].
R. v. Bjerknes and Conroy began as a prosecution for criminal negligence causing death. Ultimately, both accused were acquitted of criminal negligence and the lesser included offences of dangerous driving causing death and dangerous driving causing bodily harm in relation to a collision involving a pedestrian who stepped suddenly and without prior warning into the path of an oncoming motorcycle travelling approximating 70 km/hour in a 50 km zone. In acquitting the accused of causing death and bodily injury, Mr. Justice Peter McIntyre aptly stated: “In my view, the legal cause of…death was his jaywalking. I doubt the result would have been any different had the accused not been speeding”[4].
The cases of Bjerknes and Ta beg the question: would there have been a prosecution had there not been an intervening tragic event? More precisely, had the pedestrian not stepped in front of Ms. Ta’s vehicle, would she have been prosecuted for careless driving and other Traffic Safety Act offences? Had the pedestrian not impeded the progress of Mr. Bjerknes, would he have been charged with criminal negligence causing death? Arguably the answer is no.
In R. v. J.B., [2003] A.J. No. 508 (Alta. P.C.) the accused was prosecuted for dangerous driving causing death when he lost control of his motorcycle while travelling at speeds up to 84 km/hour in a 50 km zone. In acquitting the accused, Judge Sandra Hamilton astutely commented: "Speed is often a factor in motor vehicle accidents. However, speed is clearly frequently engaged in without any resultant accident. Tragically, as a result of J.B.'s speeding, a family has lost a beloved son and J.B. has lost his best friend. That terrible consequence, however, does not of itself elevate the unlawful behavior of speeding to the crime of dangerous driving. It is not the case that the thousands of people in this country who hurtle down the roads at excessive speeds daily are a mere consequence away from criminality[5]".
Dirty Harry[1]
Getting behind the wheel of a car is like playing Russian-Roulette – engage the transmission, step on the gas and take your chances. The urban landscape is crawling with armored vehicles, operated at high speeds by human beings subject to the frailties of the human condition. A momentary lapse of attention, an unexpected event or something as simple as minor negligence can result in dire consequences. Notwithstanding the highly publicized carnage on Canada’s highways, citizens happily enter motor carriages without a second thought as to their likelihood of surviving the commute. With so many people sharing limited space, accidents happen. Sometimes accidents are avoidable and sometimes they are not. Accidents can happen to the best of us.
Criminal culpability in Canada is premised upon the notion that people are the intentional authors of their own actions. From a criminal justice perspective, a person cannot be sanctioned for something he or she did not do. The actus reus of an offence must be proven beyond a reasonable doubt. By the same token, a person cannot be punished for something he or she did not intend to do. In many cases the actus reus of the offence is clear, but the mens rea of the crime involves much deeper considerations. This is especially so for allegations of criminal driving. Generally speaking, intentionality involves an assessment of what was transpiring in the actor’s mind at the time of the impugned conduct. Assessing the inner workings of the mind, however, involves deeper, more complex considerations than merely observing or supplying evidence of the act itself. Since motorists seldom intend to injure or kill their fellow citizens, the mens rea of driving offences is often difficult to assess.
From a morality perspective, a person cannot be morally assessed for what is not their fault or for occurrences beyond their control; yet people are regularly prosecuted for crimes of result, rather than crimes of intent. In a civilization where morality is legislated through various laws designed to control human behavior, there are serious questions as to whether prosecutions arising from some allegations of impugned conduct – such as problematic driving – are more logically connected to the result rather than the conduct itself? This paper focuses upon the question: if the underlying conduct would not be criminalized but for an intervening tragic event, should the accused be convicted or even prosecuted at all? This paper suggests that in some cases people are prosecuted and even convicted for behavior in which moral accountability is the same regardless of the consequences.
On August 18th, 2008, Angela Ta was found not guilty of careless driving and other Traffic Safety Act offences in a collision that killed six-year old Jenna Chang. In a carefully worded written decision, Judge Catherine Skene said: “Based on the evidence and testimony that I did have before me, there is evidence to suggest that the two pedestrians stepped off the sidewalk and/or curb, on to the roadway…into the path of Ta’s vehicle when Ta’s vehicle was so close that it was impracticable for the driver to yield the right of way”. As reported by the Calgary Herald, an understandably emotional Wei Chang, the girl’s father said “[i]t’s just very sad…very tough,…[t]his case, justice is not served…”[2]. The Crown obviously agreed, for they appealed the learned trial judge’s decision[3].
R. v. Bjerknes and Conroy began as a prosecution for criminal negligence causing death. Ultimately, both accused were acquitted of criminal negligence and the lesser included offences of dangerous driving causing death and dangerous driving causing bodily harm in relation to a collision involving a pedestrian who stepped suddenly and without prior warning into the path of an oncoming motorcycle travelling approximating 70 km/hour in a 50 km zone. In acquitting the accused of causing death and bodily injury, Mr. Justice Peter McIntyre aptly stated: “In my view, the legal cause of…death was his jaywalking. I doubt the result would have been any different had the accused not been speeding”[4].
The cases of Bjerknes and Ta beg the question: would there have been a prosecution had there not been an intervening tragic event? More precisely, had the pedestrian not stepped in front of Ms. Ta’s vehicle, would she have been prosecuted for careless driving and other Traffic Safety Act offences? Had the pedestrian not impeded the progress of Mr. Bjerknes, would he have been charged with criminal negligence causing death? Arguably the answer is no.
In R. v. J.B., [2003] A.J. No. 508 (Alta. P.C.) the accused was prosecuted for dangerous driving causing death when he lost control of his motorcycle while travelling at speeds up to 84 km/hour in a 50 km zone. In acquitting the accused, Judge Sandra Hamilton astutely commented: "Speed is often a factor in motor vehicle accidents. However, speed is clearly frequently engaged in without any resultant accident. Tragically, as a result of J.B.'s speeding, a family has lost a beloved son and J.B. has lost his best friend. That terrible consequence, however, does not of itself elevate the unlawful behavior of speeding to the crime of dangerous driving. It is not the case that the thousands of people in this country who hurtle down the roads at excessive speeds daily are a mere consequence away from criminality[5]".
Though Judge Hamilton was ideally correct, the reality is, in some cases people are a mere consequence away from criminality. Mr. Bjerknes, for example, was convicted of dangerous driving, even though it is arguably unlikely that he would have been prosecuted for criminal negligence or dangerous driving had the accident not occurred. It is beside the point that he may have been liable for speeding, or stunting or some other traffic violation; for there is a distinction between actual criminal behavior and violating one of any number of a seemingly innumerable array of traffic safety laws. To prove the point, the reader need only draw upon personal experience. Simply reflect upon your travels during the morning commute to the office. One would be hard pressed to seriously dispute the fact that at any given moment a veritable gaggle of motorists are hurtling down the street at speeds exceeding the posted limit. Some are even talking on cellular telephones, fiddling with the radio, conducting multiple lane changes while doing a myriad of other things other than keeping their hands at the ten-and-two position and their eyes firmly fixed on the road. Unless the driving is outrageous, most ordinary citizens simply accept minor rule breaking and may even become upset and scold authorities when they enforce a perceived trivial law. Watch the road long enough and you might even see a member of the local constabulary breaking the rules too.
Certainly traffic tickets are issued for minor infractions, such as speeding, but the State is not actively corralling trivial rule breakers and charging them with criminal driving offences. I am sure most people, including lawyers, police, prosecutors, judges, politicians – including our outspoken Minister of Justice – have broken the rules of the road on occasion and perhaps even got a little lucky along the way. Putting it mildly, to say otherwise would be just a little hypocritical. But what if a motorist wasn’t so lucky? What if during the hurried morning commute, the motorist, while sipping his or her coffee and travelling 20 km/hour over the posted speed limit collides with a child that appeared instantaneously from in between a pair of parked cars? Assume for the moment the collision was unavoidable. Should the unlucky motorist be prosecuted for careless driving, dangerous driving or criminal negligence? Other than the collision, what is it about the driving pattern that elevates the responsibility owed by the driver in these circumstances? Obviously there was no actual intent to collide with the child. That the driver was speeding and sipping coffee does not necessarily make the driving dangerous or even careless. Accident or no accident, it seems our lead footed example is only guilty of breaking a relatively trivial Traffic Safety Act law. Yet on occasion, people in similar circumstances, such as J.B., are charged and prosecuted for more serious crimes than they deserve.
Even if many accused are relieved of criminal responsibility after trial, cases such as Bjerknes, Ta and J.B. illustrate that citizens are indeed a mere consequence away from being hauled before the criminal justice system on the basis of an event rather than the underlying conduct. If the accused would not have been charged with the criminal driving offence but for the accident, there are serious concerns as to the real basis for the prosecution.
Anytime an accused is brought before the criminal justice system, there is a chance of conviction. A truly honest lawyer will tell his or her client, “you roll the dice each and every time you go to trial, there are no guarantees”. A fundamental protection for all citizens against the possibility of wrongful conviction is vested both in the Crown’s discretion not to prosecute as well as their discretion to direct the nature of the prosecution. To be fair, in R. v. Ta the Crown very properly exercised her discretion not to prosecute criminally, choosing rather to pursue charges under to the Traffic Safety Act. Regrettably, the same cannot be said in all cases. J.B. was prosecuted for dangerous driving causing death. Astonishingly, Bjerknes and Conroy were prosecuted for criminal negligence causing death. Given the varying degrees of discretion exercised by individuals conducting business in the criminal justice system, J.B., Bjerknes and Conroy were arguably unlucky that the exercise of discretion was not in their favor.
Luck plays an important role in human interactions. Surprisingly, good and bad luck is critical to a comprehensive analysis of moral responsibility. The concept of moral luck presupposes that people cannot be morally assessed for what is not their fault or for occurrences beyond their control. In the words of philosopher Thomas Nagel, “[w]here a significant aspect of what someone does depends on factors beyond his control, yet we continue to treat him in that respect as an object of moral judgment, it can be called moral luck. Such luck can be good or bad”[6]. To illustrate, Nagel imagines a motorist who after failing to have his brakes checked, accidentally runs over a child who unexpectantly enters the path of his vehicle. With this in mind, he says:
"…if the driver was guilty of even a minor degree of negligence – failing to have his brakes checked recently, for example – then if that negligence contributes to the death of the child, he will not merely feel terrible. He will blame himself for the death. And what makes this an example of moral luck is that he would have to blame himself only slightly for the negligence itself if no situation arose which required him to brake suddenly and violently to avoid hitting a child. Yet the negligence is the same in both cases, and the driver has no control over whether a child will run into his path[7]".
Nagel argues there are four ways in which natural objects of moral assessment are subject to luck. Constitutive luck concerns the kind of person you are. Human beings, for example, are constructed from a genetic code transmitted from their parents. In addition to being biological creatures, people are constructed from environment and upbringing. A second kind of luck concerns circumstances. What kind of problems and situations is the moral agent confronted with? As Nagel says, “[t]he things we are called upon to do, the moral tests we face, are importantly determined by factors beyond our control. It may be true of someone that in a dangerous situation he would behave cowardly or heroic fashion, but if the situation never arises, he will never have the chance to distinguish or disgrace himself in this way, and his moral record will be different”[8]. The other two kinds of luck have to do with causes and effects of action. How are situations determined as a result of antecedent circumstances? What are the consequences of actions performed? It is the latter kinds of luck – causes and effects – that are pertinent to this discussion.
In all the circumstances, it was unlucky that the pedestrian unexpectantly obstructed the path of Mr. Bjerknes as he was driving down a busy street. But for this unfortunate, intervening event, Bjerknes and Conroy would very likely have proceeded to their intended destination without incident. Certainly both individuals were guilty of problematic driving. Like thousands of motorists propelling themselves on highways across Canada, they exceeded the posted limit by approximately 20 km/hour. Both motorcyclists revved their engines loudly and accelerated quickly for upwards of five intersections. At each intersection they properly and lawfully brought their vehicles to a halt. Arguably, they raced each other as they accelerated quickly from intersection to intersection. Though both motorcyclists occasionally weaved from lane to lane, they never impeded other users of the roadway. The collision occurred when the pedestrian stepped-out unexpectantly from in between two parked cars. All witnesses unanimously agreed that the collision was instantaneous. Doubtless, Bjerknes did not intend to collide with the pedestrian, in fact, he attempted to avoid the collision. For his efforts, Bjerknes was thrown from his motorcycle. Whether the collision occurred or not, the negligence is the same and Bjerknes had no control over the pedestrian stepping into his path.
What makes this an instance of institutional bad luck is that the accused was prosecuted for criminal negligence causing death for behavior, that but for the collision, would not likely have resulted in any criminal prosecution whatsoever. In fact, it is doubtful that a peace officer would have charged the Bjerknes and Conroy criminally had the extent of the case been an observed driving pattern without the collision. By the same token, what makes this an instance of institutional good luck was that the case was heard by a wise member of the judiciary, capable of fully comprehending the law and making tough decisions. What makes this a case of moral bad luck is that Bjerknes and Conroy sustained increased moral accountability for an instance of fate rather than intentional conduct. Simply stated, they had no control over the pedestrian stepping into Bjerknes’ path.
As Nagel commented “…it is not enough to say merely that our basic moral attitudes towards ourselves and others are determined by what is actual; for they are also threatened by the sources of that actuality, and by the external view of action which forces itself on us when we see how everything we do belongs to a world that we have not created”[9]. Is there really any difference in the world of criminal responsibility? If a moral agent is threatened by sources of actuality outside of his or her control, surely it is not inconceivable that the target of a criminal prosecution may be subject to similar instances arising from participation in a world that he or she did not create.
Though this discussion may seem like some kind of philosophical black magic importing pedantic views into a pragmatic criminal justice system, in this writer’s view, it is precisely the opposite. To be truly pragmatic, participants in the criminal justice system ought to be encouraged to be internally sincere and not to attach criminal culpability for conduct engaged by a multitude of others, including themselves. Unfortunately, not every decision in criminal justice is as honest, erudite and practical as that of Judge Hamilton in R. v. J.B. Make no mistake, sometimes decisions go the other way. In such cases, one is left to wonder whether justice has truly been served.
Get behind the wheel of your car, engage the transmission, step on the gas and take your chances. Do you feel lucky punk?
Submitted by:
David G. Chow
Barrister
Fagan & Chow
________________________________________________________________
[1] http://en.wikipedia.org/wiki/Dirty_Harry
[2] http://www.canada.com/calgaryherald/news/story.html?id=a523a353-e261-4ad8-aa1f-ac1bcd840315
[3] http://edmontonsun.com/News/Alberta/2008/09/18/6800796-sun.html
[4] http://www.canada.com/calgaryherald/news/city/story.html?id=1fd2741a-8cab-4b00-b1f8-b866040c4b33
[5] Para. 8.
[6] Thomas Nagel, “Moral Luck”, Mortal Questions, Cambridge University Press, 1979: pg. 26.
[7] Ibid., 29.
[8] Ibid., 34.
[9] Ibid., 38.
