When Is A Momentary Lapse Behind The Wheel Criminal?

• Published date: 01 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Transport, Criminal Law, Rail, Road & Cycling, Trials & Appeals & Compensation, Construction & Planning, Crime
• Law Firm: McDougall Gauley
• Author: Mr Clayton B. Barry

A momentary lapse. We have all had them behind the wheel. Thinking a little too long about that one troubling thing, reaching for something you or your passenger (maybe a child) has dropped, searching for a radio station a little too long, becoming too engaged in a conversation, nodding off, using a smartphone . . . running a stop sign.

Sometimes we are lucky during these momentary lapses (no oncoming traffic, or the intersection is empty); sometimes we are unlucky, or extremely unlucky and the consequences are severe.

When are these "lapses" criminal and when are they a mere traffic violation? Two recent and important cases offer assistance in answering this question for the motoring public and professional drivers. They establish that even a very brief period of inattention can attract criminal liability.

R. v. Mohinder Singh Saini, 2018 ONSC 5260

On October 2, 2015 at 10:30 pm a tractor-trailer unit loaded with 34,000 kilograms of scrap steel and operated by Mr. Saini (72 years of age) was travelling at approximately 100 km/h on Highway #401 when it collided with multiple vehicles at a standstill in a construction zone.

Due to what defence counsel described as momentary inattention, Mr. Saini only applied the brakes approximately one and a half seconds before impact. Mr. Saini failed to foresee stopped and slowing traffic and various traffic signs warning of a construction zone.

Four people died, nine others suffered serious bodily injury, and twenty vehicles were involved in the collision.

Mr. Saini was charged criminally with four counts of dangerous driving causing death, and nine counts of dangerous driving causing bodily harm.

Defence counsel for Mr. Saini argued that an "unexpected momentary lapse of attention" should not attract criminal liability, and that it is not a marked departure in the driving of a reasonably prudent driver.

Mr. Saini was found guilty on all counts and sentenced to 6 years' incarceration. The court found that Mr. Saini:

(a) Was not under the influence of drugs and/or alcohol;

(b) Was not using a smartphone, or otherwise distracted;

(c) Had a clear, unobstructed view of the collision scene;

(d) Was not affected by climatic conditions. Weather was good and roads were dry;

(e) Woke-up at 6:00 am, arrived at the loading dock in Sorel, Quebec at 8:30 am, and retired to his sleeper until 2:00 pm in view of the fact that the shipment was not ready. Thereafter, he began his trip to Montreal;

(f) Worked between 54 and 60 hours in...