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CRIMINAL CODE OFFENCES - Offences against person and reputation - Offences relating to conveyances - Criminal negligence - Causing death

Friday, March 27, 2020 @ 12:48 PM  


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Appeal by Chung from a judgment of the British Columbia Court of Appeal overturning his acquittal on charges of dangerous driving causing death. Chung drove his vehicle at almost three times the speed limit towards a major intersection in Vancouver and crashed into a left-turning vehicle. The driver of the left-turning vehicle died at the scene. Over the span of a block, Chung had moved into the curbside lane, passed at least one car on the right, and accelerated from 50 km/h to 140km/h before entering the intersection. There was no question that Chung drove in an objectively dangerous manner and committed the actus reus of the charged offence. The trial judge acquitted Chung because he had reasonable doubt that the momentariness of Chung’s speeding met the mens rea requirement for dangerous driving. The Court of Appeal found that the trial judge had erred in law by “conceiv[ing] that a principle exists that a brief period of speeding (no matter how excessive the speed) cannot satisfy the mens rea requirement”, and overturned the acquittal. Chung appealed, arguing that the trial judge had made no error of law that would allow the Crown to appeal his acquittal under s.676(1)(a) of the Criminal Code.

HELD: Appeal dismissed. Under s. 676(1)(a), the Crown could only appeal an acquittal on a “question of law alone”. Errors of law could arise, for example, where the legal effect of findings of fact or of undisputed facts raised a question of law and where there was an assessment of the evidence based on a wrong legal principle. Even if the trial judge articulated the right test, appellate courts could find an error of law if the judge’s reasoning and application demonstrated a failure to properly apprehend the law. The trial judge thoroughly reviewed the evidence before him, made clear factual findings and cited the correct test for the mens rea of dangerous driving causing death. He emphasized that Chung’s speed was momentary, noting that although momentary conduct could be a marked departure, it would more usually be only a mere departure where driving was otherwise proper. Therefore, he had reasonable doubt that Chung’s conduct represented a marked departure because the “momentariness of the accused’s conduct in excessively speeding [was] insufficient to meet the criminal fault component”. The trial judge erred by applying a wrong legal principle, and by not assessing what a reasonable person would have foreseen and done in Chung’s circumstances. Momentary excessive speeding on its own could establish the mens rea for dangerous driving where it supported an inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited. A brief period of rapidly changing lanes and accelerating towards an intersection was not comparable to momentary mistakes that could be made by any reasonable driver. It was not necessary to find that Chung was subjectively aware of the risk of his conduct and intentionally created this risk. The test for mens rea was based on the reasonable person. 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. Chung’s conduct in these circumstances was a marked departure from the norm.

R. v. Chung, [2020] S.C.J. No. 8, Supreme Court of Canada, A. Karakatsanis, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., March 27, 2020. Digest No. TLD-March232020011-SCC