The Court Misses the Mark on Errors of Law - Elise Janzen

On November 14, 2015, Ken Chung collided with a vehicle turning left at a major intersection at a speed of 119 km/hr, causing a fatality. The collision occurred in Vancouver at the intersection of Oak Street and West 41st Avenue. The speed limit at both streets was 50 km/hr, but drivers are known to speed. Both roads were wide and straight with dedicated left turning lanes. It was not raining; the road was damp or wet. Five civilians and four pedestrians witnessed the incident and a dashboard camera from another vehicle standing at the intersection managed to capture the collision.

Before entering the intersection Mr. Chung managed to move into the curbside lane, pass at least one car on the right, and accelerate from 50 km/hr to 140 km/hr in the span of a block. As Mr. Chung approached the intersection along Oak Street, a Toyota in front of him took a right turn. To avoid hitting it, he swerved and collided with the victim’s vehicle.

In R v Chung (“Chung”), a 2020 decision of the Supreme Court of Canada (“the Court”), the trial judge had found that Mr. Chung was not inattentive nor did he engage in any dangerous conduct during the prescribed time.

Judicial History

Mr. Chung was charged under section 249(1) of the Criminal Code (“the Code”) for the offence of dangerous operation of a motor vehicle while street racing. At trial, the Provincial Court of British Columbia (“the BCPC”) found that Mr. Chung’s excessive speeding over a short distance towards a major intersection was objectively dangerous to the public and thus that the actus reus for dangerous driving had been established. The BCPC furthermore set out the relevant analysis, derived from R v Roy and R v Beatty for the mens rea for dangerous operation of a motor vehicle while street racing. After looking into all the circumstances and reviewing the relevant case law regarding the mens rea requirement for dangerous driving, the BCPC concluded that reasonable doubt of the presence of the required mens rea and acquitted the accused accordingly.

The Crown in Chung appealed the acquittal to the British Columbia Court of Appeal (“BCCA”), which allowed the appeal and overturned the trial judge’s finding. The BCCA found that “[t]he judge erred in law in his view that excessive speed alone could not constitute a marked departure from the standard expected of a reasonable driver.”

Two errors of law

The Court determined that the sole issue on appeal was “whether the trial judge made an error of law, which would allow the Crown to appeal Mr. Chung’s acquittal under s. 676(1) (a) of the Code”. The Court determined that the answer to that issue was no, that is, that the trial judge had not made an appealable error of law. Accordingly, the Court overturned the BCCA’s verdict. Justice Karakatsanis dissented.

Out of the Court’s decision in Chung, two main takeaways emerged. Firstly, the Court found that momentary excessive speeding on its own can establish the mens rea for dangerous driving. Secondly, the Court found that a failure to consider and answer the core question of an analysis is an error of law whereas a failure to write out the complete thought process was not.

The Court majority’s mistaken analysis

Before starting the analysis, the majority of the Court in Chung first went through section 676 (1) of the Code, which states that “[t]he Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal: … any ground of appeal that involves a question of law alone”.

Writing for the majority, Martin J identified two types of errors of law and defined them based on R v JMH (“JMH”). The first error defined by the Court’s majority in JMH occurs when "the legal effect of findings of fact or of undisputed facts raises a question of law" and the second occurs in the case of "an assessment of the evidence based on a wrong legal principle”. Both of these mistakes essentially show that the trial judge demonstrated an erroneous understanding of the law while applying the legal principles to the facts. Having clarified this, the Court’s majority in JMH moved on to identify the mistakes made by the trial judge.

Two inter-related errors of law were found by the Court:

• applying the wrong legal principle, and

• failing to assess what a reasonable person would have foreseen and done in Mr. Chung’s circumstances, the judge did not apply the correct legal test in Roy, a leading case in dangerous driving setting out the relevant legal analysis.

I. Wrong Legal Principle

While reviewing the whole of the BCPC’s reasoning, the Court’s majority concluded that the BCPC’s analysis led it to the conclusion that the mens rea for dangerous driving could not be established because the excessive speed was momentary. The focus of the analysis should have instead been on whether a reasonable person would have foreseen the dangers of the momentary excessive speeding, especially given the fact that the accused was not inattentive of the surroundings at the time.

The Court’s majority in JMH went on to differentiate a momentary mistake from momentary conduct which could potentially be dangerous. They described momentary mistakes as: “momentary lapses in attention and judgment … often resulting in an "automatic and reflexive nature of driving" (Beatty, at para. 34) or "[s]imple carelessness, to which even the most prudent drivers may occasionally succumb" (Roy, at para. 37).” It was stressed that “the fact that foreseeable consequences occur within a short period of time after someone engages in highly dangerous behaviour cannot preclude a finding of mens rea for dangerous driving.”

II. Incorrect Legal Test

On the second error of law committed by the BCPC, the Court’s majority in JMH found that the BCPC missed analysing the core question of the Roy analysis with regard to the mens rea of the offence of dangerous driving, which is "whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances" (Roy, at para. 36)”.

Having only focused on the type and duration of the accused’s conduct and not the complete picture – the narrow miss of a right turning vehicle, the passing in a curb lane, and the accelerating towards a major intersection – the Court’s majority found that the BCPC had failed to complete a full analysis which would prompt the consideration of a reasonable person foreseeing the risk of the conduct in these circumstances and possibly lead them to take steps to avoid them.

Conclusion

The Court’s majority in JMH concluded that the BCPC had made all the necessary findings of fact, namely, that Mr. Chung’s conduct was a marked departure from the standard of care set out in Roy, which would have supported a verdict of guilty if it were not for the error of law that he had committed. Therefore, the Court dismissed the appeal of the BCCA’s ruling, upholding the overturning of the BCPC’s verdict.

The Court dissent’s convincing analysis

The Court’s dissent in JMH, written by Justice Karakatsanis, disagreed that the BCPC’s decision contained a mistake of law. Contrary to the findings of the Court’s majority, the dissent was not satisfied with the idea that the BCPC relied on the fact that excessive speeding alone is insufficient to establish the mens rea of for dangerous driving as a matter of law. The dissent’s reading of the complete reason led it to find that the BCPC was aware of the relevant tests and used the momentariness of the excessive speed as an important factor, which would mean that it required more consideration than other circumstantial factors. This choice would thus amount to a question of weight given to various factors rather than a question of law.

On the second error of law identified by the Court’s majority, the dissent in JMH did not find that the BCPC’s failure to record the reasonable person analysis meant that the BCPC had failed to conduct it. The core issue in the opinion of the dissent in JMH was the marked departure from the standard of care, not whether a reasonable person analysis had, which in the dissent’s opinion the BCPC had implicitly answered. Having found reasonable doubt on the fact that the conduct amounted to a marked departure, the judge therefore, correctly acquitted the accused.

A mistaken ruling on errors of law

When I first read JMH, I immediately looked up the media coverage and looked for the dashboard clip that showed the collision. On first glance, I was happy with the verdict. However, after reading the analysis and taking the time to study the dissent in JMH, I realized that there were some discrepancies in the majority’s analysis. I have not read the BCPC’s decision. However, I felt that the dissent gave a much more objective analysis of the case, ignoring public opinion. Societal norms have their place in our legal system. Nevertheless, they should not cloud the decisions of our judiciary to the degree that they will try to find errors in law simply to align with public opinion. Having completed my first year of law school, I have come to realize that the public and even politicians do not realize the intricacies of criminal law and its procedures and that listening to them on those matters will not bring the reform that is needed. My hope is that JMH will not set a precedent for appellate courts finding errors of law in places where there are none in order to achieve a desired effect. All things considered, I have to concede that I might have totally misunderstood the message of JMH and am talking complete nonsense.