R v. Kerr

In Offences in a Marine Context on (Updated )

The accused was charged with dangerous operation of a vessel causing death and two counts of dangerous operation of a vessel causing bodily harm. The charges stem from an incident on 1 August 2008 when a vessel he was driving collided with an island at night. At the time the vessel was proceeding at a rate of speed of approximately 30 miles per hour. The accused admitted that he did not have a complete understanding of navigation lights and buoys and no understanding of the colours of the lights. He merely knew they marked a hazard. The accused also had no navigation charts.

Decision: Accused acquitted.

Held: The Court reviewed the various authorities and noted that the Crown must prove both the actus reus of the offence (ie. whether the driving viewed objectively was dangerous to the public in all of the circumstances) and mens rea (ie. whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances). The Court held that the actus reus had been proven in that operating the vessel at 30 miles per hour at night was dangerous. Turning to the issue of mens rea, the Court said this depended on two questions: (1) whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible; and (2) whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. The court noted that the conduct must go significantly beyond negligence but that the difference between a mere departure and a marked departure is one of degree. In making this assessment the court must look at all the circumstances including the accused’s frame of mind. In this case the accused believed he had clear water ahead of him. Accordingly, although the accused’s conduct went beyond mere negligence and the case was “close to the line”, the Court concluded that there was reasonable doubt as to whether the mens rea had been proven.