Dangerous Driving in Canada: A Summary in Light of R v Chung - A Bains

Introduction

Section 320.13 (3) of the Criminal Code states that “everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes the death of another person”. From this, it is clear that the actus reus of dangerous driving is driving in a manner dangerous to the public. However, what about the mens rea, the mental element, of dangerous driving?

In this blawg I will first describe the previous Supreme Court of Canada cases on the mens rea of dangerous driving. Then I will discuss R v Chung, the most recent Supreme Court decision that relates to the mens rea of dangerous driving and provide my opinion on the decision.

Previous Case Law

R v Hundal, R v Beatty and R v Roy are three leading Supreme Court of Canada cases that have endeavoured to clarify the mens rea of dangerous driving. First, R v Hundal explained that the mens rea of dangerous driving should be assessed objectively, due to the licensing requirement, as well as the reflexive nature of driving among other things. Specifically, this modified objective test should be looked at in the context of the events surrounding the incident. This requires assessing if the conduct is a “marked departure from the standard of care of a reasonable person in the situation”.

This modified objective test was applied in R v Beatty, and it was determined that a momentary lapse of attention in certain contexts is not considered a marked departure from the standard of care of a reasonable driver. In this case the driver suddenly crossed the centerline while driving on the highway and collided with an oncoming vehicle, killing three individuals in this vehicle. He had been driving appropriately prior to the event, and he was said to have briefly lost consciousness.

Further, in R v Roy it was determined that, again, a momentary error given the circumstances is not considered a marked departure from the standard of care of a reasonable driver. The court determined this by asking two questions:

The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

In this case, the accused turned onto the highway into oncoming traffic in low visibility, and a collision occurred that killed his passenger. The collision resulted in a loss of memory of the circumstances.

This brings us to the most recent Supreme Court case regarding dangerous driving, R v Chung, which clarified these decisions in relation to momentary speeding.

R v. Chung Explained

In this case, Mr. Chung accelerated his vehicle from 50km/h to 140km/h over one block into a major intersection in Vancouver, British Columbia. In doing this, he changed lanes to pass a vehicle, and ultimately hit a vehicle that was turning in the intersection, which resulted in the death of that vehicle’s driver. The trial judge stated that this act was objectively dangerous, and thus the actus reus was established. However, the trial judge also stated that due to the speeding being momentary, the mens rea was not established. The main reasoning of the trial judge was that, due to the accused driving proper prior to the incident, the speeding was only a mere departure from the standard of care of a reasonable person in the circumstances. However, the British Columbia Court of Appeal decided that this was an error of law and the accused should be convicted, and the Supreme Court upheld this decision.

The Supreme Court considered the questions in R v Roy that are indicated above and determined that the trial judge did not focus on what a reasonable person would have foreseen and done, and rather focused on a small portion of the full scenario, namely the momentary speeding. The Supreme Court then said that the full context needed to be considered including “the duration of the speeding, as well as the accused’s control of the car (he switched lanes and then accelerated), the magnitude of speeding (almost three times the speed limit), the location of speeding (approaching a major intersection), and the accused’s awareness of at least two vehicles at the intersection as he approached it”. Considering all of this, it was concluded that this was a marked departure from the standard of care that a reasonable person would exhibit, as he should have foreseen the risk from his conduct.

Commentary

Evidently, this is an important case in the area of dangerous driving as it clarifies that some momentary acts can result in a criminal conviction, whereas some may not. Particularly, the context of the incident plays a major role. In R v Beatty, R v Roy, and R v Chung there was an incident that was momentary. However, the key differentiating feature is that the accused in the latter was aware of his surroundings, and considering everything, decided to speed. I think that it is important to note that there did not seem to be any explanation as to why he sped. Due to this, I agree with this decision, and I believe that it filled an important gap in the current jurisprudence concerning dangerous driving. Driving is something that becomes automatic, and considering this, momentary lapses will happen. However, I think that this case is a great reminder for drivers to take care and avoid needless speeding. A driver, no matter how automatic driving becomes for them, needs to be conscious of their decisions on the road and the impacts these decisions may have.

LEGISLATION

Criminal Code, RSC 1985 c C-46, s 320.13(3).

JURISPRUDENCE

R v Beatty, 2008 SCC 5.

R v Chung, 2020 SCC 8.

R v Hundal, [1993] 1 SCR 867, 43 MVR (2d) 169.

R v Roy, 2012 SCC 26.

Endnotes.....................................

1 Criminal Code, RSC 1985 c C-46, s 320.13(3).

2 R v Beatty, 2008 SCC 5 at para 50 [Beatty].

3 R v Hundal, [1993] 1 SCR 867 at paras 19 – 21, 43 MVR (2d) 169 [Hundal].

4 Ibid at para 30.

5 Ibid at para 32.

6 Beatty, supra note 2 at para 52.

7 Ibid at para 10.

8 Ibid at paras 11–12.

9 R v Roy, 2012 SCC 26 at para 50 [Roy].

10 Ibid at para 36.

11 Ibid at paras 8–9.

12 R v Chung, 2020 SCC 8 at paras 4, 29 [Chung].

13 Ibid at para 5.

14 Ibid at para 6.

15 Ibid at para 15.

16 Ibid at paras 7-12.

17 Ibid at para 25.

18 Ibid at para 26.

19 Ibid at para 29.

20 Ibid.

21 Beatty, supra note 6 at para 34.