Developments in Dangerous Driving - Zackary Porter

On November 14, Mr. Chung was driving down a street in Vancouver. The posted speed limit was 50 km/h. While approaching the intersection of Oak Street and West 41st Avenue, a dashboard camera from another vehicle captured Mr. Chung accelerate from 50 km/h to 140 km/h over the span of one block, passing at least one car on his right before entering the intersection. As he approached the intersection, the car in front of him began making a right-hand turn. At this point, Mr. Chung started braking. He just narrowly missed the car in front of him, but he collided with another vehicle that was making a left-hand turn while travelling at a speed of 119 km/h. The driver of the other vehicle died at the scene. Mr. Chung was charged with dangerous driving causing death under section 249(4) of the Criminal Code (“the Code”). Before addressing the decision, I will discuss the development of the modified objective test in dangerous driving case law and how it impacted the decision in the case of R v Chung (“Chung”).

Development of the mens rea of dangerous driving

A conviction under section 249 of the Code requires that the Crown first prove that the accused committed the actus reus. For dangerous driving cases, the actus reus of the offence is driving in a manner that is dangerous to the public, having regard to all the circumstances such as nature, conditions, and traffic. Once the actus reus has been established, the Crown must also prove that the accused had the required mens rea, which in cases of dangerous driving is based on the principle of modified objective liability. The mens rea requirement for dangerous driving has developed in three major decisions made by the Supreme Court of Canada (“the Court”), and those are R v Hundal (“Hundal”) (1993), R v Beatty (“Beatty”) (2008), and R v Roy (“Roy”) (2012).

In Hundal, it was determined that driving is an automatic type of behaviour and that a driver gives very little conscious thought to their actions. It would therefore be difficult for a Crown to prove that a driver truly appreciated the risk they were creating at the precise moment when their driving became dangerous. Because of this, the Court decided that a modified objective liability would be most appropriate, and that a court “must be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation”. This was strongly reaffirmed in Beatty (2008), a case in which it was determined that, while conduct may fall “below the standard expected of a reasonable driver, a momentary lapse of attention could not be considered to constitute a marked departure from that standard of care”.

The case of Roy (2012) develops the idea of a momentary lapse of concentration. Roy was driving his motor home on an unpaved mountain road, in unfavourable conditions including snow and poor visibility on account of fog. Roy stopped at an intersection with a major highway and, when turning onto that highway, was struck by a tractor trailer, causing a violent collision that led to the death of Roy’s passenger. Roy was convicted at trial, but his conviction was set aside by the Court, who ruled that Roy’s turning onto the highway was a case of “simple misjudgement of speed and distance in difficult conditions and poor visibility”. In the Court’s view, this was a single momentary error in judgement, not a marked departure from the standard of a reasonable person. This case developed two questions, the first being “whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible”, and if so, 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”.

These cases lead us to the most recent of the Court’s judgments on the modified objective test as it pertains to dangerous driving in the case of Chung.

A momentary lapse becomes a marked departure

At trial, the judge in Chung determined that Mr. Chung’s conduct met the actus reus of dangerous driving as his excessive speeding over a short distance while approaching a major intersection was objectively dangerous to the public. Mr. Chung was acquitted, however, as the judge had reasonable doubt that Mr. Chung’s conduct met the mens rea requirement for dangerous driving. The trial judge concluded that Mr. Chung had not been inattentive while driving, so he turned to a number of cases in which speed was insufficient to establish the mens rea of dangerous driving. The judge reasoned that, although Mr. Chung was speeding excessively, this speed was momentary. Referencing precedent, the judge found that where an accused’s speed is momentary it will not constitute a marked departure where the driving is otherwise proper.

The British Columbia Court of Appeal (“the BCCA”) overturned the trial judge’s decision and entered a guilty verdict on the grounds that the trial judge had erred in law. The error was based on the trial judge’s conception that there is a principle that a brief period of speeding, regardless of how significant the speeding was, could not satisfy the mens rea of dangerous driving. The guilty verdict entered by the BCCA was ultimately appealed by Mr. Chung to the Court on the grounds that there was no error in the trial judge’s reasons.

The Court dismissed Mr. Chung’s appeal and upheld the conviction. This decision was based on the finding of two errors of law made by the trial judge. The first was that which was established by the BCCA, that the trial judge erred by applying the wrong legal principle, and the second was that the trial judge failed to apply the correct legal test from Roy by failing to assess “what a reasonable person would have foreseen and done” in Mr. Chung’s position. The wrong legal principle was that the trial judge focused on the “momentary conduct” of Mr. Chung’s actions rather than the dangers to the public that a reasonable person would have foreseen given that momentary conduct. These were not momentary lapses in attention resulting from the automatic nature of driving that the Court had concluded absolved the defendants from criminal liability in Beatty and Roy. These actions “create[d] foreseeable and immediate risks” that could be considered a marked departure rather than a mere departure from the norm.

The second error was somewhat related. Rather than focusing on what a reasonable person would have foreseen and done, like the test in Roy, the trial judge instead “focused on the type (speeding) and duration (momentariness)” of the conduct. The Court concluded that the trial judge had made the proper findings of fact necessary to determine that there had been a marked departure from the standard of care of a reasonably prudent driver and that, but for the error of law, the accused would have been convicted.

A clear case of a marked departure

I believe the BCCA and the Court came to the correct conclusion regarding the case of Chung. The finding of a marked departure in this case separates it from the cases of Roy and Beatty. In those cases, a mere departure was either a momentary lapse in attention or in judgement. For Mr. Chung, accelerating to speeds nearly three times the posted limit, while entering an intersection with other vehicles, should not fall under the same umbrella and was correctly determined to be a marked departure. Since the decision in Chung, section 249 of the Code has been replaced and dangerous operation of a conveyance is now dealt with under section 320.13. The new section is quite similar, just more concise. One major difference, however, are the penalties associated with section 320.13(3), dangerous operation causing death. Had Mr. Chung been convicted under this new provision, the maximum penalty would have been life in prison, the same as manslaughter, rather than the maximum of 14 years under section 249. It is unclear how this change may affect future cases, but hopefully it serves as a warning for those who choose to drive dangerously.