The Supreme Court of Canada is deciding an important case. At its heart is the issue of whether excessive speed alone is sufficient to prove the offence of dangerous driving.
The case at the Supreme Court of Canada is an appeal of the Court of Appeal’s decision to overturn the acquittal of a man accused of dangerous driving causing death and send it back for sentencing.
Facts of the Case
The case was covered in the media at the time. A driver was killed in a collision at an intersection in Vancouver in 2015. The evidence established that the driver of the other car, Ken Chung, approached the intersection at a speed of approximately 140 km/hr – the speed limit was 50 km/hr. Despite braking, he hit and killed the other driver who was making a left turn.
The trial judge found that while Mr. Chung’s driving was dangerous, the mental element of the crime was not established. The Provincial Court concluded that excessive speed alone, if it lasted for only a few seconds, could not be said to constitute a “marked departure from the standard of a reasonably prudent driver” and acquitted Mr. Chung.
The Court of Appeal overturned the acquittal and entered a conviction. It found the standard that the trial judge applied constituted a legal error. In its view, the trial judge’s conclusion that momentary speeding on its own did not constitute dangerous driving failed to take into account the degree to which the speeding departed from reasonable standards.
The Offence of Dangerous Operation of a Motor Vehicle
Dangerous driving is prohibited by s. 249(1) of the Criminal Code, which states it is an offence to operate:
(a) A motor vehicle in a manner that is dangerous to the public having regard to all the circumstances, including 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;
If there were no injuries or deaths as a result of dangerous driving the punishment can be up to five years in prison. For dangerous driving cases resulting in bodily harm or death, the sentences are far more significant.
Dangerous operation causing bodily harm is punishable with up to ten years in prison. A person convicted of dangerous operation causing death is liable to imprisonment for up to 14 years.
Standard of Proof for Dangerous Driving Causing Death
In Canada, a person is only held criminally responsible for dangerous driving if their actions were intended to cause harm, or, if their actions were a “marked departure” from the standard of care expected of a driver in the circumstances of the case.
As with all criminal offences, the standard of proof is much higher than those required for lesser offences.
Excessive speed
The Chung Supreme Court case concerns the dangerous operation of a motor vehicle when the primary issue is excessive speed. Historically, there are a lot of cases that relied upon speed and something else, another factor, in order to secure a conviction for dangerous driving.
This is what happened in Mr. Chung’s provincial court trail. The judge found that in Mr. Chung’s particular circumstances, in which he applied the brakes before the collision, it was not enough to prove the mental element and another element was needed, other than excessive speed, to prove the offence beyond a reasonable doubt.
The Court of Appeal, however, found that while driving moderately in excess of the speed limit will not necessarily amount to a marked departure from reasonable standards of driving, driving at a grossly excessive speed will.
What next
The Supreme Court of Canada is yet to render a judgement. It must decide whether the Court of Appeal misinterpreted the reasons for the trial judge’s decision. Also, whether the Court of Appeal’s decision was based on an argument the Crown did not advance on trial – that momentary excessive speed was sufficient to prove the mental element for dangerous driving.