The Lasting Impact of a Momentary Action – R v Chung: Eva Kwong

On the morning of Saturday, November 14th, 2015, Dr. Alphonsus Hui (“Hui”), a trusted family doctor of over 40 years, was driving to his clinic when he was struck by Ken Chung (“Chung”) at the intersection of Oak Street and 41st Avenue, a major intersection in Vancouver, British Columbia. Hui died at the scene from multiple blunt force trauma resulting from the impact of Chung’s Audi that was travelling in the intersection at approximately 119 km/h. A five-second dashcam video from a vehicle sitting at the intersection showed Chung accelerating to 139 km/h down the right-side lane prior to entering the intersection, where he then swerves to avoid a right-turning driver in the same lane. After avoiding the right-turning driver, Chung slams into the side of Hui who was performing a left-hand turn. The speed limit in this part of the city is 50 km/h, although police evidence has confirmed that drivers generally travel above the speed limit, but not nearly in the same excess.

At trial, Chung was acquitted by Justice Rideout. There was no dispute that Chung’s excessive speeding constituted the actus reus element required for a dangerous driving conviction under s. 249(4) 1 of the Criminal Code. Chung was travelling nearly three times over the posted speed limit in the area. Curiously, the trial judge did not find that the mens rea element was satisfied in this case, as Chung’s actions were momentary and thus lacked the requirements to find him guilty of dangerous driving causing death.

Following Chung’s acquittal in 2018, the case was brought to the British Columbia Court of Appeal, and eventually to the Supreme Court of Canada, to determine whether Justice Rideout committed an error of law in finding that Chung lacked the requisite mens rea. Under s. 676(1)(a) of the Criminal Code, the Crown can only appeal an acquittal on the “question of law alone”. 2 In order to overturn the acquittal, the appealable error must be traced back to the question of law, the Crown cannot appeal the ruling simply because they believe the acquittal was unreasonable. As Justice Martin states in their decision, appellate courts must try to understand the reasoning behind the trial judge’s decision. 3 Further, even if the trial judge is appropriate in their selection of the correct legal test, appellate courts may find an error of law if the judge’s application of that test fails to properly apprehend the law. 4

The trial judge’s emphasis on the momentariness of Chung’s actions stems from the fact that Chung was going the 50 km/h speed limit and only sped excessively for a short time before crashing into Hui. Justice Rideout concluded that Chung was not being inattentive while driving and proceeded to cite a myriad of cases that supported their principle that speeding alone is rarely sufficient to establish the mens rea for dangerous driving. 5 In order to determine whether mens rea was established, the trial judge implemented the test from R. v. Roy. The test is comprised of two questions: whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible, and whether the accused’s failure to foresee the risk and take steps to avoid it was a marked departure from the standard of care expected of a reasonable person in the same circumstances. 6 Justice Rideout then goes on to say that Chung’s speed was momentary, and as such the “momentariness of the accused’s conduct in excessively speeding [was] insufficient to meet the criminal fault component”. 7

The Supreme Court’s findings identify an error in Justice Rideout’s failure to compare the accused’s actions to what a reasonable person would have foreseen and done in the same circumstances. 8 Justice Martin states that the trial judge “erred in focussing the momentary nature of Mr. Chung’s conduct, rather than analyzing whether the reasonable person would foresee the dangers to the public from the momentary conduct”. 9 There was a distinction between the case at hand and those of R. v. Roy and R. v. Beatty, that the momentary lapse in this case did not result from the “automatic and reflexive nature of driving”. 10 It was concluded that a reasonable person would see the danger in rapidly accelerating towards a major intersection. Ultimately, it was found that the mens rea component was met in this case, and therefore Chung’s appeal is dismissed, and the guilty verdict is supported.

The Supreme Court came to a 5-1 decision to uphold Chung’s conviction. The one dissenting party, Justice Karakatsanis, disagreed with the majority decision as they did not consider the question of whether the trial judge should have had less emphasis on the momentariness of Chung’s excessive speed was not a question of the law alone, a requirement under s. 676(1)(a) for the Crown to appeal an acquittal. They noted that trial judges often have a very busy schedule and cannot be expected to come to a perfect reasoning every time. Justice Karakatsanis ultimately disagreed with the majority’s reasoning that the mens rea test was met in the circumstances, and that the trial judge was left with a reasonable doubt surrounding the mens rea component.

I believe this case serves as an important addition to the jurisprudence surrounding the mens rea requirement for criminal driving offences. With Vancouver being my hometown, I am very familiar with the intersection of Oak and 41st. This is an extremely busy intersection that is located in close proximity to both a senior’s centre and an elementary school. Although this anecdotal evidence would not carry much weight in court, the right lane that Chung sped down quite often has a bus or a right-turning driver stopped there. Chung’s behavior in this case is objectively reckless and, to me, represents a gross negligence on his part to not foresee the extreme risk that he was creating to the public. Just two years later in June of 2017, Chung was caught by police doing twice the speed limit just a few blocks away from another busy intersection. Although I agree with Justice Karakatsanis that trial judges should not be expected to be perfect, I cannot comprehend how driving nearly three times the speed limit does not constitute a marked departure from a reasonable standard of care.

The modified objective test set out in R. v. Roy appropriately defines the requirements to satisfy the mens rea component for criminal driving offences. A momentary lapse does have the potential to create tragic and devastating results and in situations like this should be considered a marked departure from the norm. I believe that the trial judge’s error stemmed from their concept of “momentariness”. With the trial judge’s definition, an act that occurs within a small time frame is “momentary” despite the potential risk resulting from that act. Chung’s actions show a blatant disregard for the safety of others and even himself. The fact that his excessive speeding occurred over the span of only one block does not take away from the gravity of his actions. The British Columbia Court of Appeal came to a similar conclusion, stating that the trial judge erred in “conceiv[ing] that a principle exists that a brief period of speeding (no matter how excessive the speed) cannot satisfy the mens rea requirement”. 11

The trial judge’s error in applying the correct legal test arose from their failure to identify the core issue at hand: whether Chung’s uncontrolled driving resulted from his own marked departure from a standard of care. It was found that Chung did not have to be subjectively aware of the risk his conduct created as Chung was not acting as a reasonable person would, dangerous driving has an objective mens rea. In R. v. Beatty, Justice Charron establishes that intentional conduct should be considered in assessing the mens rea for dangerous driving. 12 In this case, Chung’s actions can easily be defined as intentionally creating a risk to the public.

Overall, I believe the Supreme Court and the BC Court of Appeal were correct in their decisions to affirm Chung’s conviction. Chung’s actions were grossly negligent with regard to the safety of others and completely satisfies the mens rea component necessary for conviction. The results of this case will have implications on how similar “momentary” excessive speeding cases will be viewed by the courts. This decision also has the impact of providing a clearer definition of the mens rea component in dangerous driving offences, and I hope this will lead to harsher judgements for dangerous drivers.

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

1 R v Chung, 2020 SCC 8 at para 5 [Chung].

2 Ibid at para 10.

3 Ibid at para 13.

4 Ibid .

5 Ibid at para 15.

6 R v Roy, 2012 SCC 26 at para 36.

7 Chung at para 15.

8 Ibid at para 23.

9 Ibid at para 21.

10 Ibid at para 22.

11 Ibid at para 7.

12 R v Beatty, 2008 SCC 5.