Texting to a driver could be illegal— here’s why
Wednesday, June 13, 2018 @ 8:37 AM | By Nathan Baker
Lexis Advance® Quicklaw®
- v. R.(M.) 2011 ONCA 190
- v. Shilon  O.J. No. 4896
In the Canadian criminal justice system, a person is guilty of criminal negligence if they do anything, or omit to do something that is their duty, that shows a wanton or reckless disregard for the lives or safety of other people. This is provided for in s. 219 of the Criminal Code. Criminal liability for negligence occurs where there is bodily harm or death caused to an individual (ss. 220-221 of the Code). While it is possible to convict someone for an attempted offence under this section, it is rarely seen as these matters often do not come to light until after the unfortunate injuries or death have already occurred.
In recent years, this section has been applied more and more often to individuals who are not the direct cause of the harm caused but indirectly linked, such as employers who knowingly allow their staff to enter into dangerous environments to work.
The question at law has been phrased as whether the action of the negligent person is a marked and substantial departure from the expected actions of a reasonable person. Juries often struggle with this concept and wonder, quite rightfully, what this reasonable person looks like.
In driving cases, is it the average driver they come across in their community? Is it the standard expected of drivers that most people fall short of? Or is it something lower like a minimally competent driver? Without knowing the starting point, it becomes difficult to determine what is marked and substantially different.
When considering an individual sending messages to a person driving, it is important to consider the knowledge of the individual sending the text. While the person receiving the text and engaging in the dangerous and blameworthy behaviour of texting and driving knows what they are doing and are adverting to some sort of risk, the sender is not in a similar mental state.
That being said, if the sender knows that the receiver is driving and thus at risk of distraction, then the door to guilt starts to open. Presuming that the receiver is not a person who would text and drive may or may not save a person from liability. Honest but mistaken belief in a set of facts can be a defence to this offence.
Thus, where an individual did not know that the person at the other end of the conversation was driving but honestly believed them to be acting safely would be saved by this sort of defence. However, a person who was wilfully blind to the circumstances leans closer to guilt. In R. v. R.(M.) 2011 ONCA 190, the Ontario Court of Appeal discussed party liability in the street racing context for a person acting as a “flagman” in a street race. In that case, the court found that the mental component for an individual charged as a party to a criminal negligence offence requires the party to do something to assist conduct that shows a wanton or reckless disregard for the lives or safety of other people.
As the court put it, there must be an “objective foresight of bodily harm” (para. 50). The court specifically denied the necessity of a subjective appreciation for the consequences. The party need only appreciate that they are aiding in the dangerous action to be guilty.
That being said, reasonable foreseeability of harm is still relevant in a case of this type. Whether the actions of a person in sending a text is objectively capable of creating a reasonable appreciation of bodily harm or death occurring will be very fact specific. The mere fact that a text was sent should not lead to criminal sanction, even if it is known that the other party is driving. The Ontario Court of Appeal in R. v. Shilon  O.J. No. 4896, found that where actions of the other party, like a driver, intervene, then there may be a break in the chain of causation.
A different result may occur where someone engages in continuing distracting behaviour by texting a person, knowing that they are driving and that this affects their ability to safely operate their vehicle and could open the door to criminal prosecution. Since momentary inadvertence does not rise to the level of criminal negligence, the length, nature and involvement in the conversation will all be factors to be assessed. A detailed factual analysis will be needed should such a case come forward.
Finally, as cultural acceptance of texting while driving changes, so too will the determination of guilt. If current trends hold and texting while driving becomes increasingly frowned upon and fewer people engage in this risky activity, then the degree of departure from the normal person widens and increases the likelihood of criminal liability for actions involving texting while driving, both for the driver and the person engaging them in the conversation in the first place.
Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner. He takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at firstname.lastname@example.org.