Ach-Oops: Sneezing as a Defense for Dangerous Driving (a 1L blawg)

Imagine you’re driving down Portage Avenue at a reasonable speed, when you feel the sudden urge to sneeze. You erupt into a sneezing fit, and unbeknownst to you, your reasonable speed becomes less and less reasonable until you are driving significantly over the speed limit, and so erratically, at which point a police officer pulls you over, intending to charge you with a dangerous driving offense under s249 of the Criminal Code.

For an individual to be found criminally liable for an action, they must be found to have both mens rea—intention to commit a crime—and actus reus—to have perpetrated the guilty action or conduct. Specifically, to be found criminally responsible, a defendant’s conduct must have been voluntary.

While the actus reus typically does not consider the mental element of a crime—that is reserved for mens rea—voluntariness is an exception to this principle, as demonstrated in R. v. Theroux (1993, SCC). For the actus reus to exist, there there must be a connection between the defendant’s conscious mind and their bodily movement.

The absence of voluntariness is of particular interest when it comes to dangerous driving, enumerated in s249(1)(a) of the Criminal Code, which states that “every one commits an offence who operates… 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.”

So, does the sneezing of our driver from the first paragraph constitute sufficient automatism to defend themselves from dangerous driving? While no precise instances of this exist in Canadian jurisprudence, the relevant case law is significant.

In R. v. Hundal (1993), it was found that individuals can be acquitted of dangerous driving if it occurs due to involuntary conduct, as then the actus reus is negated. Examples wherein conduct is involuntary are specified by the Court as including heart attacks, epileptic seizures, a detached retina, and a bee sting. The question, again, is where sneezing would fit into these explanations.

In Ahadizard and Emerton (2002, ACTSC), a case in Australian court, a driver experienced a sneezing attack for over 100 meters, causing his eyes to be shut a majority of the time. The driver lost control of his car, ending up on the wrong side of the road, and collided with an oncoming car. He was charged with “driving in a manner dangerous.” The Australian Supreme Court refused his appeal, saying that he was not completely incapacitated by a sneeze, had a “modicum of control,” and should have taken steps to mitigate the danger—such as pressing the brakes—which he did not do. This decision does not rule out sneezing as a defense in Canada for two reasons. First, Australian precedent is not binding; rather it is merely persuasive, at best. Second, the Court left open the possibility of the sneezing defense were a driver to “take reasonable steps to counteract the danger.”

Relatedly, in the 2014 case of Harry Gurung in the United Kingdom, the defendant was overtaking another car when he sneezed four times, colliding with another vehicle and killing the occupants. At trial, Gurung was acquitted, as he “could not reasonably have taken steps to avoid the collision.” As we are dealing with different jurisdictions, it is unclear where the line is drawn between the two cases. It seems plausible that the degree of control a driver has during a sneezing fit is left to the respective courts to interpret on a case-by-case basis, and that the driver must take any and all reasonable steps to mitigate the danger.

Most notably, in R. v. Ariganello (2013, ONCJ), the defendant was driving and began coughing intensely, eventually becoming dizzy. His eyes closed for two-to-four seconds, in which time he veered off the road, hitting and killing a pedestrian. On appeal, the Court found that the defendant’s eyes “were closed without his control because of a(n)… episode,” and that he had not “chosen to close his eyes in response to the… episode.” As a result, the defendant was acquitted.

Thus, it appears that in Canadian jurisprudence is inclined to find that minor medical episodes, like coughing and sneezing, are involuntarily and sufficient to constitute the defense of automatism in dangerous driving situations. However, any given sneezing-based case could be highly fact-specific in considering whether the accused has acted reasonably to counteract the danger.