R v Chung

R. v. Chung

2020 SCC 8
Supreme Court of Canada — Martin J. (Brown, Rowe and Kasirer JJ. concurring), Karakatsanis J. dissenting | March 27, 2020

Background

On November 14, 2015, Ken Chung was driving north on Oak Street in Vancouver when he accelerated from 50 km/h to 140 km/h over the span of one block while approaching a major intersection at Oak Street and West 41st Avenue. The speed limit was 50 km/h. As he approached the intersection at this excessive speed, a Toyota was making a right turn in front of him, and another driver was making a left turn from the opposite direction. Chung narrowly missed the Toyota but crashed into the left-turning vehicle at 119 km/h, killing the other driver instantly.

Chung was charged with dangerous driving causing death under section 249(4) of the Criminal Code. The trial judge found that Chung's driving was objectively dangerous and satisfied the actus reus, but acquitted him because he had reasonable doubt about whether Chung possessed the required mens rea (guilty mind). The British Columbia Court of Appeal overturned the acquittal and entered a conviction, finding the trial judge had made an error of law.

Issues

1. Did the trial judge commit an error of law that would allow the Crown to appeal the acquittal under section 676(1)(a) of the Criminal Code?
2. What constitutes the proper legal test for mens rea in dangerous driving cases involving momentary excessive speeding?

The Momentary Speeding Error

The Supreme Court majority found that the trial judge made two critical legal errors. First, he applied a wrong legal principle by becoming fixated on the "momentariness" of Chung's speeding, treating brief periods of excessive speed as categorically insufficient to establish criminal fault. The Court clarified that momentary excessive speeding can absolutely establish mens rea for dangerous driving where it represents a marked departure from reasonable care — the duration alone doesn't determine the outcome.

Second, and more importantly, the trial judge failed to apply the correct legal test from R. v. Roy. Instead of asking whether a reasonable person in Chung's circumstances would have foreseen the risk and taken steps to avoid it, the judge focused only on distinguishing this case from others involving longer periods of speeding. He never analyzed what a reasonable person would have foreseen when accelerating to nearly three times the speed limit while approaching a busy urban intersection with other vehicles present.

The Reasonable Person Standard

The Court emphasized that dangerous driving mens rea requires comparing the accused's conduct to what a reasonable person would have done in the same circumstances. A reasonable person would have immediately foreseen the serious risk of accelerating to 140 km/h in a 50 km/h zone while approaching a major intersection. The fact that consequences occurred quickly after the dangerous behavior doesn't preclude finding criminal fault — if anything, it demonstrates how foreseeable the risk was.

Key Takeaway

Brief moments of extremely dangerous driving can still constitute criminal behavior if they represent a marked departure from what any reasonable person would do.

This case clarifies that courts cannot apply rigid rules about duration when assessing dangerous driving — they must consider all circumstances and ask whether a reasonable person would have foreseen the risk and acted differently.