Apr 15, 2020
The Supreme Court of Canada has ruled that excessive speeding can amount to dangerous driving, even if the speeding is for a short period of time.
When it comes to dangerous driving, the question courts have struggled with is how bad does someone’s driving have to be before it attracts criminal sanction and consequences as opposed to purely civil consequences? This is a question of degree. We all make mistakes and do dangerous things when we drive. We speed, sometimes excessively, and make bad decisions, like speeding up instead of slowing down when the light turns yellow. Every time we change lanes without doing a shoulder check it’s potentially dangerous to other drivers. But not all of us are charged with or convicted of dangerous driving under the Criminal Code of Canada when we engage in these behaviours. Normally we are issued a motor vehicle violation ticket which can be challenged in traffic court. For good reason, the courts have been concerned not to cast the net of criminal dangerous driving too wide. Not all of our bad, or even dangerous driving behaviour, should result criminal sanctions. However, the recent case from the Supreme Court of Canada in R v. Chung 2020 SCC 8 signals that the net of driving behaviours captured by the offence of criminal dangerous driving is indeed wider than previously believed.
On the morning of Saturday, November 14, 2015, Mr. Chung drove his vehicle at almost three times the speed limit towards the intersection of Oak Street and West 41st Avenue in Vancouver and crashed into a left-turning vehicle. It was not raining, but the road was wet. Traffic was light around the intersection at the time, but other cars were present. The speed limit for both streets is 50 km/h, but the court heard evidence that drivers generally go above that speed limit. Both roads are wide and straight and have dedicated left turning lanes. A dashboard camera video from another vehicle captured 4.9 seconds of the event. Over the span of a block, Mr. Chung had moved into the curbside lane, passed at least one car on the right, and accelerated from 50 km/h to 140 km/h before entering the intersection. The trial judge found that Mr. Chung was not inattentive nor was he engaged in any dangerous conduct prior to this one block span. Mr. Chung was driving a powerful vehicle that could accelerate quickly. As Mr. Chung approached the intersection going north along Oak Street, there was a Toyota in front of him making a right turn. As the Toyota was turning right, the other driver started to make his left turn from going southbound on Oak Street to eastbound on West 41st Avenue. At this point, Mr. Chung started braking, narrowly missed hitting the Toyota, and collided with the victim’s car at a speed of 119 km/h. The driver of the left-turning vehicle died at the scene. Mr. Chung was charged with dangerous driving causing death.
How Dangerous Driving is Determined
Generally speaking, all crimes are composed of two elements: a “guilty act” (referred to in Latin as the “actus reus“) and a “guilty mind” (referred to in Latin as the “mens rea“). To be guilty of a crime, a person must do something that is against the (criminal) law. This is the “guilty act” (“actus reus”). But something has to make the person criminally (as opposed to civilly) responsible for what they’ve done. This is called the “guilty mind” or “mens rea” in Latin.
For some crimes, like dangerous driving, a person can be responsible even if they don’t mean to do anything wrong. Instead, the Judge will look at what an ordinary, sensible person (a “reasonable person”) would have done. If the manner of driving of the accused person and the “reasonable person” are very different, this is considered a “marked departure”. In a case involving a charge of dangerous driving, in assessing a driver’s guilty mind the courts consider whether the manner of driving constitutes a “marked departure” from the manner of driving of an ordinary reasonable person. Driving in a manner that is “marked departure” from that of a reasonable person is the guilty mind for crimes like dangerous driving. The actus reus for this crime is driving in a way that is dangerous to the public.
What constitutes a “marked departure” from the manner of driving of an ordinary reasonable person is a question of degree. Judges in Canada have struggled to apply this test. That’s because dangerous driving attracts criminal as opposed to purely civil consequences. The question courts have struggled with is how bad does someone’s driving have to be before it attracts criminal sanction and consequences. For good reason, the courts have been concerned not to cast the net of criminal dangerous driving too wide. People drive badly every day. People speed, often excessively, and driver’s make poor decisions that result in crashes. But not everyone who speeds, even excessively, or makes a poor decision that results in a crash is charged with or convicted of dangerous driving. If it did, our courts would be inundated with dangerous driving cases, and too many Canadians would have criminal records. Consequently, not all bad driving or even dangerous driving (excessively speeding for example) means the person should be convicted of dangerous driving. The driving behaviour must also constitute a “marked departure” from that of an ordinary reasonable person.
The experienced trial judge said Mr. Chung’s extreme speeding over a short distance met the requirement for the guilty act but he didn’t think Mr. Chung had the “guilty mind” or mens rea. He said even though tragic consequences ensued, the brief period of speeding, on its own, wasn’t enough to establish the “marked departure” required for the offence of dangerous driving.
The Crown appealed. The British Columbia Court of Appeal said the trial judge made an error by concluding that speeding over a short period of time wasn’t enough to show a “marked departure” from that of a reasonable person. The BC Court of Appeal concluded: “In this case, I cannot understand how one could possibly describe the accused’s conduct in driving at almost three times the speed limit into a major urban intersection as anything but a marked departure from the standard expected of a reasonable driver”. The Court of Appeal replaced the “not guilty” finding with a “guilty” finding. Mr. Chung appealed this decision to the Supreme Court of Canada.
The majority of judges at the Supreme Court of Canada agreed that the trial judge erred. They said the trial judge focused on the fact that Mr. Chung’s speeding was for a short period of time but this wasn’t the right thing to focus on. The trial judge should have looked at whether a reasonable person would have foreseen a danger to the public and what the reasonable person would have done in the situation. The trial judge should have compared this to what Mr. Chung did, and then decided if his conduct was a “marked departure” from that of the reasonable driver. The majority said that Mr. Chung’s conduct was a “marked departure.” Like the BC Court of Appeal, the majority judges at the Supreme Court of Canada said a reasonable person would have foreseen that quickly accelerating toward a major intersection at a high speed would create a risk, almost immediately, of hurting someone. The majority of judges said that a reasonable person understands that driving, by nature, is risky. They said the faster someone drives, the harder they accelerate, and the more aggressively they deal with traffic, the more risky it becomes. They said that even careful driving can have tragic results. But some conduct, like the driving in this case, is dangerous enough that it deserves criminal punishment. The majority confirmed that Mr. Chung was guilty of dangerous driving causing death. It is important to note that the “marked departure from the ordinary reasonable driver” was the conduct of approaching a major intersection at three times the speed limit and not the fact that a crash ensued or that the other driver was killed.
The problem with this approach is that from a practical perspective, a charge and conviction for dangerous driving is entirely consequence driven, even though neither the guilty act nor the guilty mind elements of the test for dangerous driving even consider the fact that there was a crash. The reality is that if Mr. Chung had driven excessively through a major intersection and there was no crash, he would have been issued a ticket for excessive speeding and his vehicle would have been impounded for 7 days. The conviction would have been recorded on his driving record only and he would not have incurred a criminal record. In those circumstances, Mr. Chung would not have been charged, let alone convicted, of dangerous driving. This is the case, even though both the “guilty act” and “guilty mind” elements of the offence are the same regardless of whether there is a crash. The guilty act is approaching a major intersection at three times the speed limit. The guilty mind is that this behaviour constitutes a marked departure from the conduct of an ordinary reasonable driver. Note that neither element relies on the consequence of a crash. Yet those that do crash will be charged with dangerous driving and those that do not will not.
Everyone charged with such a serious offence should contact a lawyer well versed in driving offences and driving law in order to receive proper legal advice and representation. Filkow Law has extensive experience with driving offences. Contact us if you need assistance.