In order to be convicted of a crime, it typically must be proven that the person both committed the act (the actus reus, meaning “guilty act”) and intended the act (the mens rea, meaning “guilty mind”).

However, for many driving-related offences, a person can be found responsible even if they did not mean to do anything wrong. In these situations, a judge doesn’t have to look at what the person themselves was thinking. Instead, they will look at what an ordinary, “reasonable person” would have done. If the actions of the accused person and the “reasonable person” are very different, this is called a “marked departure from the standard of care.” This “marked departure” is the mens rea for crimes like dangerous driving causing death.

One example is the case of Mr. Chung. He was charged with dangerous driving causing death in 2015. Mr. Chung was driving on a street with a speed limit of 50km/h. Over the span of one block, just before a major intersection, Mr. Chung moved into the curb lane. He passed at least one car on the right and dodged another while accelerating to 140 km/h. He then hit a car that was turning left. The driver of the other car died.

At trial, the judge found that while speeding and driving as Mr. Chung did certainly amounts to dangerous driving (the actus reus), the judge had doubts that Mr. Chung had the guilty mind. The judge determined that brief speeding, on its own, is not enough to establish the guilty mind for the offence of dangerous driving causing death.

The Court of Appeal held that that finding was a legal error. They replaced the acquittal and found Mr. Chung guilty. Mr. Chung then appealed to the Supreme Court of Canada.

On March 27, 2020, the Supreme Court released its decision: they upheld Mr. Chung’s conviction, as they agreed that even a brief amount of speeding can establish a guilty mind for the offence of dangerous driving causing death.

In particular, the SCC took issue with the trial judge’s ruling that brief speeding, without more, cannot make out the guilty mind. The trial judge had come to this conclusion by comparing what Mr. Chung had done against other dangerous driving convictions where more egregious behavior was present.

What the trial judge should have done first is analyzed whether a reasonable person in these circumstances would have foreseen a danger to the public and what they would have done in the situation. The trial judge should then have compared this to what Mr. Chung did, to ultimately decide if his conduct was a marked departure from the reasonable person’s.

Put differently, the SCC found Mr. Chung’s behavior (a brief period of rapidly changing lanes and accelerating towards an intersection) is not comparable to momentary mistakes that may be made by any reasonable driver. Momentary mistakes should not be equated with a guilty mind.

If you or someone you know has been charged with a driving offence, please contact the team at DeMelo Law so that we can provide legal advice.