The decision to lay dangerous driving charges causing death and bodily harm against the truck driver who allegedly caused the Humboldt Broncos bus crash has, unsurprisingly, caused many in Saskatchewan and elsewhere to speculate as to the potential outcome.

This horrific and tragic event has garnered worldwide attention and the decision to lay Criminal Code charges will lead to further attention.

Crown prosecutors and RCMP took three months to consider the laying of charges — ultimately concluding that they had both a reasonable likelihood of conviction and that it would be in the public interest to proceed against the accused.

The Crown likely considered several factors in making the decision to lay charges, including the manner of driving, whether the accused was tired, distracted or otherwise impaired, violation of traffic signs, braking or lack thereof, and excessive speed.

Accident reconstructionist evidence, eyewitnesses and black-box evidence may have also been examined.

Time will tell what evidence they considered in coming to this conclusion.

Presumption of innocence

Understandably, this tragedy has caused a significant emotional response from the community.

Notwithstanding the emotional response to this incident, the Canadian justice system and the Crown's decision to pursue charges is based on principles, not emotion.

No greater principle exists than the presumption of innocence. It must always be remembered that this presumption remains with an accused throughout a criminal prosecution.

It is only displaced if, after considering all the evidence, a judge or jury is satisfied beyond a reasonable doubt that the accused is guilty.

Accused persons, including truck driver Jaskirat Singh Sidhu, have no obligation to prove that they are not guilty, nor have they any obligation to explain the evidence presented by the Crown.

If, at the conclusion of the trial, there is a reasonable doubt on any essential element of the offence, then the law requires that the benefit of the doubt must be given to the accused and he must be found not guilty.

The team bus was travelling northbound on Highway 35. The semi-trailer was coming from the east on Highway 335. The semi had a stop sign and the bus did not. (CBC )

If the Crown succeeds in proving each of the essential elements of the offence beyond a reasonable doubt, then the presumption of innocence is displaced, and the court is required to convict.

In a case like this, the essential elements of the offence of dangerous operation of a motor vehicle causing death and bodily harm include:

That Mr. Sidhu was the operator of the motor vehicle.

That Mr. Sidhu operated the motor vehicle in a manner dangerous to the public.

That Mr. Sidhu's operation of the motor vehicle caused the death and injury to various occupants of the Humboldt Broncos bus.

Supreme Court has ruled on dangerous driving

In 2008, the Supreme Court of Canada in the Beatty case reviewed the elements of the offence of dangerous driving.

How is dangerous driving defined? Dangerous driving is defined in the Criminal Code under s. 249(1) as follows: Everyone commits an offence who operates: (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; (b) a vessel or any water skis, surf-board, water sled or other towed object on or over any of the internal waters of Canada or the territorial sea of Canada, in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of those waters or sea and the use that at the time is or might reasonably be expected to be made of those waters or sea; (c) an aircraft in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of that aircraft or the place or air space in or through which the aircraft is operated; or (d) railway equipment in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of the equipment or the place in or through which the equipment is operated.

The court unanimously held that Justin Ronald Beatty's momentary lapse of attention did not constitute a marked departure from the standard of care of a prudent driver, even though it — much like this incident — had very tragic consequences.

In that case, the accused was charged with three counts of dangerous operation of a motor vehicle causing death. The accused's truck had suddenly crossed the solid centre line into the path of an oncoming motor vehicle, killing all occupants.

Witnesses to the accident had observed the accused's vehicle being driven in a proper manner prior to the accident, and that the collision happened instantaneously.

There was no evidence of speeding and impairment was not a factor. After the crash, the accused stated that he was not sure what happened but that he must have fallen asleep and collided with the other vehicle.

The court in the Beatty case emphasized that, in a charge of dangerous driving, the Crown is required to prove the accused was operating a motor vehicle in a dangerous manner and that the operation was a "marked departure" from the standard of care that a reasonable person would observe in all the circumstances.

The court found that Beatty's failure to confine his vehicle to his own lane of traffic was dangerous to other users of the highway, but that the "marked departure" from the standard of care that a reasonable person would observe in all the circumstances was not made out.

Rather, the evidence suggested that the dangerous conduct was due to a momentary lapse of attention.

Criminal liability equation will be considered

It is often useful to consider a criminal prosecution through a simple equation: act + intention – defences = guilt.

The "act" for dangerous driving is set out in Section 249(1)(a) of the Criminal Code as driving "in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place."

In considering whether the act has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. Courts are careful not to leap to a conclusion about the manner of driving based on the consequences.

'Manner of driving' will be focus

Therefore, the horrific consequences in this case should have no bearing on guilt or innocence — rather the inquiry should be focused on the "manner of driving."

The manner of driving can properly be qualified as "dangerous" when it significantly endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident.

In conducting this inquiry into the manner of driving, it is often acknowledged that driving is an inherently dangerous activity, but one that is both legal and of social value. Collisions caused by these inherent risks materializing should generally not result in criminal convictions. In fact, the vast majority do not.

The 16 people killed in the Humboldt Broncos bus crash. 'No matter the result of this prosecution, there will be no winners,' says Brian Pfefferle. 'This entire event remains a horrific tragedy.' (CBC)

In 2012, the Supreme Court of Canada, in the case of Randy Roy, again revisited a case of dangerous driving causing death. In that case, Mr. Roy pulled his motor home out from a stop sign onto a highway and into the path of an oncoming tractor-trailer.

In the collision that resulted, Roy's passenger was killed.

At trial, Roy was convicted of dangerous driving causing death. On appeal to the Supreme Court, that court found that Mr. Roy had pulled out from a stop sign at a difficult intersection and in poor visibility when it was not safe to do so.

Standard of care

The driver of the oncoming tractor-trailer thought that Roy's vehicle had stopped before proceeding onto the highway. The time between visibility and impact was only a few seconds.

In the Supreme Court's view, the accused's decision to pull onto the highway was consistent with simple misjudgment of speed and distance in difficult conditions.

The court found that the facts did not support that Mr. Roy displayed a marked departure from the standard of care expected of a reasonable person in the same circumstances so as to justify conviction for the serious criminal offence of dangerous driving causing death.

We will all have to await the due process of our Canadian judicial system — a system built on established legal principles that focus on the circumstances and not the consequences. - Brian Pfefferle

The Supreme Court in Roy reminded us again that dangerous driving is a serious criminal offence. The Humboldt bus crash case will undoubtedly remind us of the same principles. It will be critically important to ensure that the fault requirement for dangerous driving can be established.

Failing to do so inappropriately extends the reach of the criminal law and wrongly brands as "criminal" those who are not morally blameworthy.

The distinction between a "mere departure," which may support civil liability or responsibility, and the "marked departure" required for a dangerous driving conviction is a matter of degree.

Expect the judge or jury to consider the following questions:

In light of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible? If yes, then:

Was the accused's failure to foresee the risk and take steps to avoid it, a "marked departure" from the standard of care expected of a reasonable person in the accused's circumstances?

'There will be no winners'

In its 1993 judgment in the case of Surinder Hundal, the Supreme Court remarked that "Negligent driving can be thought of as a continuum that progresses or regresses, from the momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code."

While we may speculate as to the potential evidence in the Humboldt case and opine as to the proper verdict and where this case fits on that negligence continuum, we will all have to await the due process of our Canadian judicial system — a system built on established legal principles that focus on the circumstances and not the consequences.

No matter the result of this prosecution, there will be no winners.

This entire event remains a horrific tragedy.

This column is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.