First of all, the offense under section 327 of the Highway Safety Code is different from the charge of dangerous driving provided for in section 249 of the Criminal Code, even if they are related. The legal criteria for the commission of the offense, the degree of fault required, the burden of proof and the defenses are different. In addition, the sentences vary widely between a C.S.R. and a criminal offense.
Section 327 of the Highway Safety Code prohibits any speed or action likely to endanger the life or safety of persons or property:
“327. Prohibited Speed - Any speed or action likely to endanger the track or the safety of persons or property is prohibited. ”
“Application – In addition to public roads, this section applies to roads under the administration of the Ministry of Natural Resources and Wildlife or maintained by it, on private roads open to public traffic vehicles roads and shopping centers and other areas where the public is allowed to
Section 327 therefore creates two separate offenses:
1. Driving at a speed that could endanger the life or safety of persons or property;
2. Commit an action that may endanger the life or safety of persons or property.
In both cases, the prosecution must prove the following three essential elements:
1. the defendant’s conduct or the action of the defendant according to the offense in question;
2. that such conduct or action was likely to endanger the life or safety of persons or property;
3. that the whole took place on a public road, a private road open to public traffic of road vehicles, on a shopping center lot or other ground where the public is allowed to circulate.
A driver is guilty of article 327 C.s.r. as soon as his behavior departs from that of a reasonable person concerned with road safety, with regard to persons and property, placed in similar circumstances. This is an objective standard. It does not matter whether the defendant subjectively or not wanted the possible consequences of his action or conduct.
No proof of culpable intent, gross negligence or recklessness is required. A simple conduct that does not represent the care required or that does not show concern for the risks it incurs to others is enough.
The public ministry does not need to prove that speed or action creates a current danger. A potential and reasonably foreseeable danger that may result from the defendant’s conduct is sufficient.
Article 327 C.s.r. covers, in fact, any situation which constitutes an immediate danger or risk to the safety of persons and property, in its broadest sense or, in other words, which is likely to cause (or which could reasonably have produced) damage, however small they may be.
In short, if the court is satisfied that the appellant’s action is one that represents a departure that can not be reconciled with the conduct of a reasonable person in similar circumstances and that, whether or not the action was could have caused it, he must, subject to a defense of due diligence, declare him guilty of contravening section 327 of the Criminal Code.
The defense of due diligence is to show that every reasonable precaution has been taken to prevent the commission of the offense.
In addition, a defendant may still challenge the very commission of the offense, arguing that his conduct was not dangerous.
