In order to be found guilty of the criminal offence of dangerous driving, a person must be driving in a dangerous manner and have a “guilty mind”. In dangerous driving cases, a person has a guilty mind when they drive with a “marked departure from the standard of care which a reasonable person would have exercised in the same circumstances” (R. v. Roy 2012 SCC 26 at para 36).
In the recent Supreme Court decision of R. v. Chung, the Court found that conduct that “creates foreseeable and immediate risks of serious consequences can still be a marked departure from the norm” even if the conduct is only momentary (para 22). This is a distinction from previous decisions where the Court found that momentary lapses in attention or judgement commonly occur due to the “automatic and reflexive nature of driving” and therefore, would not be enough to demonstrate a guilty mind (R. v. Beatty, 2008 SCC 5 at para 34).
In this case, Mr. Chung rapidly accelerated to a speed of 140 km/h and changed lanes quickly in order to pass a vehicle that had slowed down to turn. Mr. Chung did so while approaching an intersection where another driver was in the process of turning left across his path. The collision of the two vehicles resulted in the death of the other driver. The Supreme Court found that a reasonable person in the same circumstances would have foreseen the risk from “accelerating rapidly and speeding into that major intersection” and would have taken different actions (R. v. Chung at para 23).
Justice Karakatsanis wrote a dissenting opinion arguing that the finding of not guilty from the trial judge should be restored. Crown prosecutors do not get to appeal any trial decision they disagree with. A trial judge must make an error in their use of the law in order for a Crown to be able to appeal. Justice Karakatsanis found that in this case, the trial judge demonstrated a proper grasp of the law. However, all of the other judges hearing Mr. Chung’s appeal found that the trial judge did not use the correct legal test by failing to consider what a reasonable person would have foreseen and done in the same circumstances As a result, Mr. Chung was found guilty of dangerous driving causing death.