Lewis Waring
Oct 1, 20216 min
In November 2015, Ken Chung was driving in Vancouver at nearly three times the speed limit towards a major intersection. Chung’s car crashed into a left-turning vehicle causing that driver to die at the scene. It was morning with no rain, but the roads were damp. Traffic was light around the intersection. The roads were wide and straight with dedicated left-turning lanes. The speed limit for both streets was 50 km/h. The accused was not engaged in dangerous driving prior to the one-block span where he accelerated from 50 km/h to 140 km/h before entering the intersection where the crash occurred.
Defining mens rea
Mens rea is the mental element of the individual’s intention to commit a crime. The law recognizes two categories of mens rea: subjective and objective. The subjective element of mens rea focuses on the accused’s intention, knowledge, or awareness at the time of the offence. The objective element of mens rea shifts away from the mental aspect of the accused and draws attention to the standard of the reasonable person. In other words, what would a reasonable person, in the same circumstances of the accused, have known.
In R v Beatty (“Beatty”), the Supreme Court of Canada (“the Court”) accepted “objective fault as an appropriate basis for imposing criminal liability because of the nature of driving offenses, having particular regard to the licensing requirement for driving, the automatic and reflexive nature of driving, the wording of the legislative provision and the obvious and urgent need to control the conduct of drivers”. The Court articulated the adoption of an objective standard in cases that involve dangerous driving because driving is a regulated and voluntary activity and the licensing requirement only protects those who are mentally and physically capable of doing so. When individuals take on the responsibility of driving, they place themselves in a position in which they are responsible for the safety of other people who use the roads. Individuals who fail to meet the standard of care while driving cannot be found morally innocent.
Chung was acquitted at trial for the act of dangerous driving. However, the Court of Appeal for British Columbia found that the trial judge erred in finding that Chung lacked the requisite mens rea, set aside the acquittal, and entered a conviction.
An error of principle and an error in applying the reasonable person standard
In the Court’s decision in Chung, the issue that arose was whether the trial judge made an error of law which would give the Crown the opportunity to appeal Chung’s acquittal under section 676(1)(a) of the Criminal Code (“the Code”).
The issues that I will describe in this paper are the two inter-related errors made by the trial judge as found by the Court in Chung. First, the trial judge erred by applying the wrong principle. Secondly, the trial judge failed to apply the correct legal test by not correctly assessing what a reasonable person, in those circumstances, would have foreseen and done in Chung’s position to avoid the risks.
Under section 676 (1)(a) of the Code, “the Crown may only appeal an acquittal on a question of law alone”. The error that is appealed must be traced to the question of law and avoid being traced to the question about how to weigh evidence and assess whether the evidence meets the standard of proof. In R v Walker (“Walker”), the Court stated that the Crown has no right to appeal a decision that might be an “unreasonable acquittal.”
The first error made by the trial judge was the application of the incorrect legal principle that was fixated on the momentariness of speeding. The trial judge failed to analyze whether a reasonable person would have foreseen the danger imposed on the public from his momentary conduct. In Beatty, the Court held that a momentary lapse of attention on the driver did not constitute a marked departure from the standard of a reasonable driver. Justice Charron found in Beatty that if every departure from a civil norm is criminalized, there is a risk of casting the net too widely and branding individuals as criminals who are not, in reality, morally blameworthy. Furthermore, in R v Roy (“Roy”), the Court found that mere simple carelessness is not generally seen as a criminal act. The Chief Justice in Roy stated that even good drivers are sometimes subjected to a momentary lapse of attention. However, the Court found in Chung that momentary conduct is not assessed differently than other dangerous conduct. Conduct that is briefly lapsed that can create foreseeability and impose serious immediate risks because of serious consequences can be a marked departure from the norm. Under section 320.13 (1) to (3) of the Code, there is an imposition of severe penalties when death or injuries ensue because of dangerous driving.
The second error made by the trial judge in Chung was failing to apply the correct legal test from Roy. The trial judge in Chung had failed to see whether a reasonable person in Chung’s circumstances would have foreseen the risks of accelerating rapidly, speeding into a major intersection, and taking steps to avoid the risks. Trial judges are not in any means required to conduct their analysis in a particular way. However, the two questions set out in Roy are helpful and emphasize the need for the accused’s conduct to be compared to a reasonable person in similar circumstances. The Roy test is an essential tool for determining the objective mens rea. Mens rea for an offence of dangerous driving should be assessed objectively. In R v Hundal (“Hundal”), the Court adopted the modified objective test to determine the requisite mens rea for dangerous driving offences. The modified objective test must be applied with some flexibility, which is to say that the test should not be applied in a vacuum but rather in the context of all surrounding circumstances. Events that take place occur in a framework of other events and actions and therefore it is important to consider all circumstances. For example, there may be situations where the individual’s driving is viewed as objectively dangerous but the individual is not to be convicted. An individual who suffers from an unexpected heart attack could be viewed as dangerous, but those circumstances can provide a complete defence despite the evident dangerous driving.
The trial judge in Chung focused on distinguishing cases where the excessive speed was found to be a marked departure from the circumstances resulting in the case. However, the trial judge should have examined the risks that were created by Chung’s speeding. The trial judge should have asked the correct legal questions and assessed what the reasonable person would have foreseen in Chung’s case. In Beatty, the modified objective test was strongly reaffirmed. The application of the modified objective test resulted in Beatty’s acquittal because a reasonable person in Beatty’s case would not have foreseen the momentary loss of consciousness and a loss of control of the vehicle. The decision by the Court in Beatty applied the mens rea element of the offence of dangerous driving. The totality of the evidence was considered to conclude the decision for Beatty. In the case at hand, if the trial judge had considered the facts of the case fully, there would have been consideration for the duration of speeding, the accused’s control of the car, the magnitude of speeding, the location of speeding and the accused’s awareness of two vehicles approaching the intersection as he approached it.
For the reasons stated above, the Court in Chung held that the appeal should be dismissed, upholding the conviction. Had the trial judge considered the circumstances fully, the trial judge would have addressed that the conduct included momentary excessive speeding and narrowly missing another vehicle that was turning left in front of him.
A strong message on dangerous driving
Dangerous driving incidents are prevalent today in society, causing injury, death, and destruction. The Canadian government completed a survey to address the seriousness of motor vehicle fatalities. In 2018, there were 108,371 fatalities that resulted from driving.
Chung is an important case within the area of dangerous driving because it sets out the test of what does and does not constitute dangerous driving. It is important to assess what message this case has sent to motorists. I believe Chung sends a strong message regarding the importance of being mindful of the standard of care that drivers should provide to others around them. In Chung, Beatty, and Roy, the Court made distinctions between incidents that involved momentary or excessive speeding that would not amount to criminal sanctions. However, it is important to look more closely at Chung, in which the accused was not mindful of the other drivers approaching the intersection. In Chung, the accused sped excessively, disregarding his responsibility to provide a standard of care to the other drivers on the road. Although trial judges might be busy, it is important for the judges to be mindful of the law, how they articulate the law, and how the facts are applied to the law.