R. v. Chung, 2020 SCC 8
ERRORS OF LAW - APPELLATE REVIEW - DANGEROUS DRIVING
Key Facts
The accused, Mr. Chung, drove his vehicle nearly 3x the speed limit towards a major intersection in Vancouver. He crashed into a left-turning vehicle, killing the driver. It was morning. It was not raining, but the road was damp. Traffic was light. The roads were wide and straight, and have dedicated left turning lanes. The accused was not engaged in any dangerous conduct prior to a 1-block span where he accelerated from 50 km/h to 140 km/h before entering the intersection.
Reviewable Errors in Crown Appeals
Under s. 676(1)(a) the Crown can only appeal an acquittal on a question of law alone, rather than a question about how to weigh evidence and assess whether it meets the standard of proof.
Errors of law include a TJ’s application of legal principles to evidence that demonstrates an erroneous understanding of the law either because (1) the TJ errs in the application of a legal test, or (2) the TJ assesses the evidence in a way that misapprehends the law. Even where the TJ articulates the right test, an appellate court may find an error of law where the judge’s reasoning demonstrates a failure to understand the law.
Crown cannot appeal merely because an acquittal is “unreasonable.”
When interpreting a TJ’s reasons, appellate courts must read them as a whole, in the context of the evidence, issues and arguments at trial (See R v Laboucan, 2010 SCC 12).
Dangerous Driving
Actus Reus
Note: this case does not address the actus reus for dangerous driving. I have included the most current iteration as set out in Roy for completeness.
In Roy, the SCC set out the actus reus as follows: “whether the driving, viewing objectively, was dangerous to the public in all of the circumstances?”
The focus is on the manner of the driving, rather than the consequences. The trier of fact should consider the nature, condition, and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.
Mens Rea
The mens rea standard for dangerous driving causing death is as follows:
(1) whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible; and
(2) if so, 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. (See R v Roy, 2012 SCC 26 at para 36)
Application
Although the TJ articulated the proper standard, he erred in law in applying it. The TJ concluded that the accused’s conduct was not a marked departure given the momentariness of the speeding. This was an error as even momentary excessive speeding can establish the mens rea for dangerous driving (if, in the circumstances, it represents a marked departure from the standard of care that a reasonable person in the circumstances would have exhibited). In other words, a reasonable driver would have foreseen that quickly changing lanes, passing cars and accelerating towards an intersection even for a brief period of time creates a very real risk. This is distinguishable from momentary mistakes made by a reasonable driver (i.e. mistimed turn onto the highway [Roy], momentary loss of awareness [Beatty], or sudden loss of control [Willock]).
It was also an error of law for the TJ to focus on the type of dangerous driving (speeding) and the duration rather than inquiring what a reasonable person would have foreseen and done in the circumstances. While the duration and nature of the driving are relevant factors, they are only some of the factors to be considered. The TJ should have also considered the magnitude of the speeding, the accused’s control of the car, the location of the speeding, etc. The TJ then should have considered, based on these factors, whether a reasonable person would have foreseen the risk by engaging in this conduct and taken steps to avoid it.
Martin J, writing for the majority, dismissed the appeal and upholds the conviction.