“Reasonable” speeding - Justin Vermette

Before getting into the facts of R v Chung (“Chung”), it is important to give a brief overview of the critical elements involved in the case, as well as a brief overview of R v Roy, the leading case on dangerous driving prior to R v Chung.

Actus reus (committing the act) and mens rea (having the intention or the knowledge to commit an act) are very basic, fundamental elements of crime. In order to achieve a successful conviction, these two elements must be proven beyond a reasonable doubt. In Chung, the accused was being tried under section 320.13(3) of the Criminal Code of Canada (“the Code”), which states “[e]veryone 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”.

In R v Roy (“Roy”), the tests to establish the actus reus and mens rea elements of dangerous driving offences were established as follows:

• For actus reus, the question considered is “whether the driving, viewing objectively, was dangerous to the public in all of the circumstances?”

• For mens rea, there were two parts to consider. First, “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 a reasonable person would have foreseen the risk, then the second part to consider 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 from a reasonable person in the accused’s circumstances”.

At trial in Chung, the judge did not correctly apply the test from Roy. He articulated the correct test, but instead of applying the test he focused on the duration of the speeding. Since the trial judge made an error of law, the case was appealed and made its way up to the Supreme Court of Canada (“the Court”). The main issue on appeal to the Court was whether or not Chung had the required mens rea for dangerous driving and whether or not the trial judge erred by focusing on the momentary nature of Mr. Chung’s speeding.

An accident which was a marked departure

The accident took place in a busy intersection in Vancouver where the speed limit was 50km/h. Video evidence showed that, over the course of a block, Chung began to aggressively swerve around cars while increasing his speed to 140km/h. When he reached the intersection, he collided with another vehicle, killing its occupant on impact. Since Chung had reached speeds that were almost 3 times over the speed limit, he was charged with dangerous driving causing death.

At trial, it was ruled that Chung had the required actus reus for the crime of dangerous driving but also that Chung did not have the required mens rea for the crime. The trial judge laid out the test to establish mens rea from Roy correctly. However, he made an error in the application of the test. Instead of focusing on whether or not Chung’s actions departed from that of a reasonably prudent driver in a similar situation, he focused heavily on the momentary nature of his speeding. Since there was evidence to show that Chung had increased his speed over the course of a block, the trial judge concluded that there was at least a reasonable doubt that his actions were a marked departure from that of a reasonably prudent driver. The trial judge believed that, in order to be a marked departure from a reasonable person, Chung would have had to have been speeding for an extended period of time.

On appeal to the Court, the majority concluded that the assumption made by the trial judge that momentary speeding could not amount to a marked departure from the reasonable person standard was incorrect. The Court’s majority stated that, even though the trial judge laid out the right test, he had failed to follow through with it. Instead of making that assumption, he should have considered what a reasonable person would have done in Mr. Chung’s situation and then considered whether or not Chung’s actions were a ‘marked departure’ from the standard of the reasonable person.

When the Court conducted the test correctly, they found that Chung’s actions were in fact a marked departure from that of a reasonable person. They reached this decision by distinguishing the facts of this case from the facts in Roy. In Roy, the driver had made a critical mistake due to his inattentiveness. Since the accident in Roy resulted from inattentiveness rather than from some conscious actions on the part of Roy, the Court concluded that his actions were not a marked departure from the standard of the reasonable person. A reasonable person can fall victim to inattentiveness from time to time, so it would have been incorrect to say that his actions were a marked departure.

However, in Chung’s case, his accident clearly did not result from inattentiveness. Driving at nearly 3 times the speed limit and swerving in traffic took conscious effort from Mr. Chung, conscious effort that departed from that of a reasonable person. The majority in Chung therefore had no difficulty concluding that a reasonable person in Chung’s situation would have foreseen the possible danger and would have acted differently. Justice Martin noted that the reasonable person understands that driving is a risky activity, and that “[a] reasonable person would have foreseen the immediate risk of reaching a speed of almost three times the speed limit while accelerating towards a major city intersection,”. Clearly the intentional actions by Chung were vastly different from the lack of action by Roy, which occurred due to inattentiveness. The Court accordingly overruled the decisions of the trial judge and found Chung guilty of dangerous driving resulting in death under section 320.13(3) of the Criminal Code of Canada.

A reasonable driver, not a perfect driver

I think the Court made the correct decision in Chung. Driving is an inherently dangerous activity, but not everyone treats it as such. A majority of collisions are completely avoidable, and I believe that the rules around dangerous driving should be more strict in order to deter people from driving recklessly. Perhaps if there were larger punishments for these types of crimes, that would deter people like Mr. Chung from driving recklessly with no regard for the lives of other drivers. I believe that the test laid out in Roy to determine mens rea in cases of dangerous driving is very fair and that it should be the test that remains the standard for the foreseeable future.

However, on the other hand, I also think that the courts need to be careful in how strictly they are applying the “reasonable person test”. Any reasonable person can make mistakes, and I think that it is important for the reasonable person test to account for the possibility of simple mistakes. For example, someone may sneeze while they are driving or get stung by a bee and swerve as a result. In those types of cases, I think the driver’s actions (while dangerous) should not qualify as a departure from the standards of a “reasonable person”. This was the type of mistake that happened in Roy. Those who make simple mistakes due to inattentiveness or any other unforeseen possibility do not deserve to be held criminally responsible. Every reasonable human being is susceptible to mistakes, and it is critical that the reasonable person test continues to exclude people who make these mistakes from being criminally responsible.

In Chung, it was clear that Chung made more than a simple mistake while driving. It takes a conscious effort to accelerate your vehicle from 50 km/h to 140 km/h and to aggressively swerve in and out of traffic. Clearly, he was intentionally driving recklessly, and justly received a severe penalty for it. I believe the Court in Chung reached an appropriate verdict, but, moving forward, the Court needs to be careful that they do not start to assume that a ‘reasonable person’ is always a perfect driver in every situation.