R v Chung : Accelerating Quickly Gets You Nowhere Fast
The concept of mindfulness involves being present in the moment and allows an individual to take into consideration their surroundings, which may play a role informing their decision making. When someone is mindful of their circumstances, especially when driving, arguably they are in much better position to achieve the best results. The Supreme Court of Canada (“SCC”) recently dismissed an appeal against a conviction found for dangerous driving causing death in R v Chung, 2020 SCC 8 [Chung]. In arriving at their decision, the SCC analyzed two essential elements: when a Crown can appeal against an acquittal on a question of law, and what the correct legal test is when assessing the objective mens rea of dangerous driving.
The initial decision to acquit Ken Chung (“Chung”) at trial of the dangerous driving charge causing death under s. 249(4) of the Criminal Code, RSC 1985, c C-46 in 2018, sparked a furry of shock and disappointment in Vancouver. The judgement led the victim’s family members to open a petition online through Change.org calling for Crown prosecutors to appeal the decision, and for the government of British Columbia to enact stricter legislation to deter dangerous driving.
Dr. Alphonsus Hui (“Hui”) was driving to his clinic Saturday morning on November 14th, 2015, when after turning left at an intersection, he was struck by Mr. Chung’s Audi on the passenger side of his Suzuki. A dashcam from a vehicle that was sitting at the intersection, recorded 4.9 seconds of the horrific event (R v Chung, 2018 BCPC 133, para 46). The evidence confirmed Hui’s death was caused by multiple blunt force trauma he received from the impact (R v Chung, para 10). The Audi accelerated to 139 km/h right before entering the intersection and declined to 119 km/h when Chung hit the Suzuki (R v Chung, para 42). The speed limit at the intersection was 50 km/hr, although police evidence given at trial confirmed drivers generally travel above the speed limit (R v Chung, para 29).
Justice Rideout acquitted Chung at trial. In doing so, he relied on R v Roy, 2012 SCC 26 [Roy], a case that involved a mistimed turn on to a highway resulting in a collision causing death, to set out the elements required for a dangerous driving conviction (R v Chung, para 63). Justice Rideout had no difficulty finding that the actus reus (the prohibited act) of dangerous driving was made out by Chung’s excessive speed, which increased to almost three times the posted speed limit in a short distance (R v Chung, para 109). However, the trial judge did not think the mens rea (fault component) was met. Justice Rideout accurately articulated the test for mens rea set out in Roy at para 36,
The mens rea analysis is on 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.
In applying this test, the SCC in Roy added,
It is helpful to approach the issue by asking two questions. The first is whether, in light of 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 (R v Chung, para 63).
The trial judge focused on the fault component as a critical element when assessing the mens rea, as he declared, “it ensures that criminal punishment is only imposed on those deserving of the stigma of a criminal conviction” (R v Chung, para 64). A major reliance on the distinction between a ‘mere’ and ‘marked’ departure played a significant role in the final verdict at trial (R v Chung, para 120). In reaching his decision, Justice Rideout distinguished the facts of the case from a number of cases cited by the Crown where excessive speed met the mens rea requirement (R v Chung, paras 103–107). He also emphasized the excessive speed employed by Chung was “momentary – mere seconds in duration” which provided at least a reasonable doubt that such conduct amounted to a marked departure from the standard of a reasonably prudent driver (R v Chung, paras 117, 119).
Defining Mens Rea
The mens rea may be different depending on the type of crime. The law recognizes two distinct fault elements of mens rea: subjective and objective. A subjective mens rea focuses on what is perceived by the accused at the time the crime is committed; the objective category focuses on what a reasonable person in the same circumstances of the accused would have known (A Lesson in First Year Criminal Law Principles).
Charron J in R v Beatty, 2008 SCC 5 [Beatty] articulates the rationale for an objective standard in cases such as dangerous driving due to the fact that, “driving is a regulated and voluntary activity,” and the licencing requirement ensures only those who are mentally and physically capable of doing so and familiar with the requisite standard of care, can take part in this activity (Beatty, para 30). She also adds that taking on the activity of driving, individuals, “place themselves in a position of responsibility to other members of the public who use the roads,” and therefore, those who fail to meet the standard of care cannot be morally innocent (Beatty, para 31).
The SCC, in a 5-1 decision, sided with the Court of Appeal, who reinstated a conviction and remitted the case back to the provincial court for sentencing. In doing so, the SCC examined under what circumstances a case could be appealed on a question of law and what the correct legal test is for the objective mens rea for dangerous driving.
Justice Karakatsanis only dissented in relation to the second element: that the trial judge’s decision to acquit Chung was not tainted by an identifiable legal error. In Karakatsanis’ dissent, she swiftly deals with her reasons for upholding the trial judge’s decision and defends his judgment out of respect for their heavy workload stating, “Busy trial judges cannot be expected to write perfect reasons” (Chung, para 33).
Justice Karakatsanis also emphasized that deference should be extended by the appellate courts when assessing a trial judge reasons. Subsequent courts must read the judgement as a whole, taking everything into consideration, to give the trial judge the benefit of the doubt as they are presumed to understand the law (Chung, para 33). Justice Karakatsanis disagreed that the trial judge misunderstood the applicable legal principles and found that Justice Rideout was aware that both excessive speed and momentary conduct could meet the marked departure standard, depending on the circumstances (Chung para 36). She concluded that when a trial judge is applying a legal test, his discretion to choose which elements are important to focus on are not questions of law alone (Chung, para 28). The trial judge’s decision cannot be appealed merely because it is deemed unreasonable as that option is not open to Crown (Chung, para 42). Justice Karakatsanis held the fact that an acquittal may be on its face unreasonable, does not lead to the finding that an error of law was committed in coming to the decision to acquit (Chung, para 32).
Justice Martin wrote for the majority with Justices Brown, Rowe and Kasirer concurring. They began their discussion with an analysis of when the Crown can bring an appeal against an acquittal, and cited section 676(1)(a) of the Criminal Code which states that a Crown can only bring an appeal on a “question of law alone.” The SCC stipulated that, “Even if the trial judge articulates the right test, appellate courts may find an error of law if the judge’s reasoning and application demonstrate a failure to properly apprehend the law” (Chung, para 13).
Justice Martin discussed the errors of law made by the trial judge using the same method Justice Karakatsanis did, by reviewing the trial judge’s decision in its entirety, however, arrived at the opposite conclusion. The majority of the SCC agreed that the trial judge actually made two inter-related errors. Justice Rideout erred by applying the incorrect legal principle by fixating on the momentariness of the speeding and by failing to apply the correct legal test by not determining what a reasonable person would have foreseen and done in the circumstances (Chung, para 19).
The SCC found that the trial judge did not apply the correct legal test set out in Roy because he failed to turn to the core question at issue: whether the dangerous manner of Chung’s driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. Dangerous driving has an objective mens rea, which as the SCC stated does not require Chung to have been subjectively aware of the risk of his conduct nor aware of the fact that he intentionally created this risk (Chung, para 29).
Justice Martin acknowledges that trial judges are not required to set out their analysis in a particular way, however, felt the two questions established in Roy to assist in applying the mens rea test, were essential for determining objective mens rea (Chung, para 24). Instead of taking part in this analysis, the trial judge, “focused on the type (speeding) and duration (momentariness) of Chung’s conduct, to the exclusion of the full picture” (Chung, para 25). In focusing on the momentary nature of Chung’s conduct, Justice Martin held that the trial judge failed to analyze whether the reasonable person would foresee dangers to the public from the excessive acceleration (Chung, para 21). The SCC concluded, “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,” and confirmed the guilty verdict (Chung, para 29).
The collision occurred in 2015, but this case persisted through the appeals process over a span of two years. It finally ended at the SCC in March 2020. During that time, after the initial acquittal was released, society was left wondering what message this would send to motorists. Drivers should be accountable and mindful to the standard of care when involved in a dangerous activity that carries inherit risk on a daily basis. I agree with both the majority and dissenting opinions that respect for the busy schedules of trial courts, large workloads and giving deference to the trial judge’s decision is of utmost importance for appellate courts to practice. I also agree with Justice Martin’s conclusion that “Courts must be careful to avoid fettering the analysis in Roy by adopting hard and fast rules regarding when isolated factors will or will not be marked departures” (Chung, para 27).
Trial judges who receive evidence firsthand, are in a privileged position to set standards for society. This responsibility requires a mindful approach in how society will be impacted. A part of that responsibility is being mindful of the standard of care required to drive with the goal of not endangering the lives of the public. Fatal collisions continue to rise over most years, as is shown by a survey completed by the Canadian government. There were 108, 371 fatalities resulting from driving in 2018 across Canada.
The majority in the SCC distinguished between cases where momentary or dangerous excessive speeding would not amount to a criminal sanction. However, taking into account the facts that Chung was not mindful of the other cars in the approaching intersection and proceeded to disrespect his role to meet the standard of care owed to other drivers, this decision sets a precedent for how seriously the law does and should react to instances of an objective marked departure from what is expected. Judges must be mindful at times to look at the bigger picture for the criminal law to set standards of what is acceptable behaviour for being a responsible member of society.