The week before last, Sommit Luangpakham was sentenced to two years less a day for his actions in his horrific collision with five cyclists in 2009. As summarized by the CBC, "[t]he five cyclists were riding single file in the bike lane on March Road in the west Ottawa neighbourhood of Kanata in July 2009 when they were struck by a van that moved into the bike lane. All five were hurt and four were seriously injured."
Mr. Luangpakham was sentenced after having been found guilty in late 2011 on "10 charges of dangerous driving causing bodily harm and leaving the scene of an accident".
I happen to working on a consumer-oriented book project with a colleague on cycling and the law. In light of this recent sentencing, I thought it worth summarizing here some of the standards applicable in these two criminal offences. The following does not, of course, constitute legal advice.
A. Leaving the Scene of an Accident
Most people have heard of the obligation that those involved in an accident have to remain on the scene. Failure to do so is a criminal offence. Specifically, a person may be convicted if, while having care, charge or control of a vehicle that is involved in an accident with another person or vehicle, fails to stop and give name and address and, when someone has been injured, offer assistance, if the failure to stop is one with the intent to avoid liability. In everyday language, we call this failure to stop a “hit and run”.
The criminal offence has several key elements. First, and obviously, there has to be an “accident”. But the accident does not have to be accidental – it can include both intentional and unintentional occurrences. Moreover, while an accident obviously includes an outright collision, a collision is not a necessary ingredient: there need not be actual contact between a vehicle and a bike for there to be an accident. For instance, where a motorist knows he or she has forced a cyclist off the road, and nevertheless fails to stop and leaves the scene, that motorist may be guilty of a hit and run. In fact, there need not be an injury or damage for an accident to arise.
Third, the failure to stop must be done with the intent of avoiding liability, whether criminal or civil. On this issue, there is a presumption that a motorist acts to escape liability where they fail to perform one of their obligations; that is: stop; offer assistance where there is an injury; or give name and address.
B. Dangerous Driving
A motorist colliding with a cyclist is potentially culpable under the criminal offence of “dangerous driving”. The relevant Criminal Code provision makes it an offence to operate 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”.
More than this, to be convicted of this offence, the driver’s behaviour must constitute “a marked departure from the standard of care that a reasonable person would observe in the same situation”. Obviously, the range of behaviour violating this standard is variable and the caselaw contains a host of examples of sometimes deadly use of motor vehicles. The danger and risk posed on these cases tends to be obvious. For instance, dangerous driving may also exist where a motorist operates a vehicle without clearing away condensation that obscures vision through the front windshield. It is also dangerous driving to deliberately drive a vehicle slowly towards a curb, knowing that a cyclist is on the curbside of the vehicle. More than that, the motorist acts criminally in driving at a speed that is excessive in the circumstances. This may true even if it is never proven how the accident actually occurred; all that is necessary is that the prosecutor shows that the motorist was driving too fast to deal with any emergency.
 Criminal Code, s.252.
 R. v. Hansen (1988), 46 C.C.C. (3d) 504 (BCCA).
 R. v. Robson,  OTC 25 (On SCJ).
 R v. Chase, 2006 BCCA 275.
 R. v. Roche,  1 S.C.R. 491.
 Criminal Code, s. 249.
 R. v. Hundal (1993), 79 C.C.C. (3d) 97 (S.C.C.); R. v Beatty,  1 S.C.R. 49.
 R v. Song, 2009 BCCA 470.
 R. v. Robson,  OTC 25 (On SCJ).
 R v. Richards,  O.J. No. 1042 at para. 11 (O.C.A.); R. v. Weldon, 2008 ONCJ 67 at para. 13.
 R v. M.K.M.,  O.J. No. 1606 (O.C.A.); R. v. Weldon, 2008 ONCJ 67 at para. 13.