R. v. CHUNG, 2020 SCC 8

Driving with excessive speed, even for a short duration is sufficient for liability of dangerous driving causing death.

In Vancouver, on November 14, 2015, Mr.Chung (Appellant) drove his vehicle towards the curb side lane and then entered an intersection with speed accelerated from 50km/h to 140km/h. His vehicle crashed into a left-turning vehicle and the driver died on the spot. The area where the collision took place was an intersection connecting Ook Street and West 41st Avenue, with a 50km/h speed limit. A total of 4.9 seconds of the event was captured from another vehicle’s dashboard camera. Five civilians were driving their cars near the scene and witnessed the collision that was then called at the trial. Under criminal law, elements of Mens Rea and Actus Reus are considered for the establishment of a crime. Mens Rea means to have a “guilty mind” for commissioning the act. A wrongful deed consisting of physical components of crime is termed as Actus Reus. The Trial Judge charged him with Actus Reus (guilty act) establishing that appellant drove with excessive speeding in a short distance which was objectively dangerous to the public. However, trial Court acquitted appellant under s. 249(4) of the Criminal Code by noting that due to the briefness of period of speeding mens rea cannot be attached to the accused on touchstone of “marked departure from the standard of care.”

The British Columbia Court of Appeal overturned this acquittal and found that the trial judge has erred for not founding appellant guilty. Thereafter, an appellant was filed by the appeal ‘as of right’ to the Supreme Court. The majority of judges therein found that the Trial Court’s reliance on momentariness of speeding to negate mens rea was itself was an error of law. Rather it should have focused and analysed whether the danger from the momentary conduct was foreseeable by a reasonable person or not. The Court then referred the case of R.v.Beatty, 2008 SCC 5, wherein it was decided that no criminal liability arises in momentary lapses which result from the automatic and flexible nature of driving. In connotation that such lapse in attention is not assessed differently to that of other dangerous conduct. From the norm, it can be concluded that the foreseeable risks which are immediately conducted can be considered as marked departure. Based on the facts, the court decided that it was not necessary to find whether appellant was subjectively aware of the fact that his conduct intentionally created risk or not as the yardstick used is to be that of a reasonable person. In the light of this, it was obvious for a reasonable person to predict that appellant’s vehicle accelerated towards the intersection with pace and created risk of collision even within a few seconds thereby making his conduct a marked departure from the norm in these circumstances. Consequently, the Court ruled that the trial court has erred in its judgment and upheld the conviction of appellant for dangerous driving causing death.