• Andrea Bracaglia

R v Chung, 2020 SCC 8

Issue on Appeal


The issue is whether the trial judge made an error of law, which would allow the Crown to appeal Mr. Chung’s acquittal under section 676(1)(a) of the Criminal Code. This is the primary purpose of the appeal, which made its way to the Supreme Court of Canada.


At trial, Mr. Chung was acquitted of one count of dangerous driving causing death under section 249(4) of the Criminal Code (this section has since been repealed, and is now s.320.13(3)). Based on the facts, it was found that Mr. Chung was driving three times above the speed limit towards a major intersection and crashed into a left-turning vehicle. The driver of the vehicle passing away at the scene of the crash.


At trial, there was no question that he had committed the actus reus of the offence, meaning there was no doubt that he was objectively driving in a dangerous manner. However, the judge had reasonable doubt on whether Mr. Chung had the mens rea, the “guilty mind”, required for a finding of guilt. The trial judge based his reasoning on the fact that Mr. Chung was found to be excessively speeding only “momentarily”, and that this momentariness did not amount to having a guilty mind and criminal fault.


At the British Columbia Court of Appeal, the issue was whether the trial judge committed an error of law in finding that Mr. Chung lacked the requisite mens rea. The court decided that the trial judge did commit an error of law and entered a conviction against the accused of dangerous driving causing death.


Analysis


In its analysis, the majority for the Supreme Court of Canada found two errors of law. First, the trial judge applied a wrong legal principle. By focusing on the momentariness of the speeding, the trial judge incorrectly applied the legal test for mens rea of dangerous driving. The correct analysis should have been whether a reasonable person would foresee the dangers from the momentary nature of the speeding.


The legal test for the mens rea of dangerous driving causing death comes from the Supreme Court decision in R v Roy, 2012 SCC 26 at paragraph 36:


“The focus of the mens rea analysis is on whether the dangerous manner of driving resulted from a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. It is helpful to approach the issue by asking two questions. The first is whether, considering all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is 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 of a reasonable person in the accused’s circumstances.”


Second, the trial judge failed to apply the correct legal test about what a reasonable person would have foreseen and done in Mr. Chung’s circumstances. The legal test from Roy (quoted above) requires a trial judge to ask, “whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances”. This analysis involves a trial judge comparing an accused’s conduct with that of a reasonable person in the circumstances, which did not happen in this case. Instead, the trial judge focused on the duration and nature of the speeding Mr. Chung engaged in. This narrowed focus did not include the full context of what occurred on the offence date, including Mr. Chung’s awareness of the surrounding vehicles, and the control and speed of his car.


Decision


The majority for the Supreme Court of Canada stated that the trial judge made all of the necessary determinations to find that there was a marked departure from the standard of care of a reasonable and prudent driver. If it were not for the error of law, Mr. Chung would have been convicted of dangerous driving. The majority dismissed the appeal, upholding the conviction of dangerous driving causing death that the British Columbia Court of Appeal entered.

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