Sep 16, 2015 - CROWN TRYING TO CRIMINALIZE "BEING TIRED WHILE DRIVING": DEFENCE LAWYER


If you doze off behind the wheel and kill someone in the resulting crash, is it a crime?

The Saskatchewan Court of Appeal is pondering the issue of sleepy drivers in a Crown appeal in the case of Marilyn Rose Hunter, who was acquitted last year of criminal driving charges.

She fell asleep while driving, causing a vehicle rollover near Punnichy. Passenger Ryan Dubois, 22, was killed.

On Tuesday, Dean Sinclair, director of appeals, urged the province’s top court to overturn the lower court ruling and find Hunter guilty of dangerous driving causing death. He contended Hunter knew she was at “real risk” of falling asleep, yet didn’t take any action.

“This is not a momentary lapse in judgment,” Sinclair said.

But defence lawyer Bruce Campbell argued the trial judge reached an appropriate conclusion based on the evidence.

“The Crown is trying to criminalize ... being tired while driving,” he charged.

Justices Gary Lane, Neal Caldwell, and Peter Whitmore reserved decision on the matter.

Hunter, now 35, was tried in Regina Court of Queen’s Bench for dangerous driving causing death, impaired driving causing death, and driving with a blood-alcohol level exceeding the legal limit and causing death. The charges stemmed from a crash around 5:45 a.m. on April 22, 2012 on Highway 15 just east of Punnichy. Hunter and her two passengers were headed to Muskowekwan First Nation from Regina.

The drunk driving charges fell by the wayside when Justice Catherine Dawson excluded breathalyzer evidence because Hunter’s rights had been violated.

She acquitted Hunter of dangerous driving after finding it wasn’t reasonable to expect the accused to foresee the risk of falling asleep while driving. “I am not satisfied that the accused’s failure to perceive a risk and take steps to avoid it was a marked departure from the standard of care expected of a reasonable person,” Dawson said in her ruling.

But Sinclair argued Dawson’s legal analysis was flawed. He said if a driver falls unconscious or asleep and causes a collision, it can still be dangerous driving, in some circumstances, if the person was subjectively aware of the “real risk” — more than merely feeling tired ­— and took no action. Hunter had consumed a significant amount of alcohol, lay down at one point that evening, undertook a two-hour drive, left Regina in the early morning hours, later admitted to police she was sleepy but was persuaded to drive by her companions, and felt her eyes shutting near the turnoff to Raymore.

“We’re dealing with a person who clearly was aware of the risk,” Sinclair said. “She made a terrible mistake ... It was a mistake made with eyes wide open,” he said, explaining Hunter knew what could happen if she fell asleep.

But Campbell said Dawson knew all those facts at trial and weighed them accordingly, considering if Hunter’s actions constituted “a marked departure from the standard of care” of a reasonable driver.

“There’s no evidence of bad driving,” he said.

“It’s not enough to say, ‘She’s tired. She knew the risk. Guilty,’” Campbell added.

Source: Regina Leader Post

Last updated on: 2015-10-08 | Link to this post