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  • Lewis Waring

R v Chung - M Ritchie

The case of R v Chung (“Chung”) exemplifies how judges can sometimes err in law and misapply legal principles. In Chung, the trial judge should have followed the reasonable person test set out in R v Roy (“Roy”) to determine whether or not Mr. Chung had the necessary mens rea for a finding of dangerous driving causing death. Instead, the trial judge focused on the speed and duration of Chung’s conduct, which led him to wrongly conclude that the mens rea component was not established.


On Saturday, November 14th, 2015, Mr. Chung was driving approximately three times the speed limit when he crashed into a vehicle head on. This collision happened in Vancouver at the intersections of Oak Street and West 41st Avenue. Mr. Chung was driving a sporty vehicle, and within the span of one block he accelerated from 50 km/h to 140 km/h before entering the intersection and hitting the vehicle in front of him who was making a right hand turn. The driver of the vehicle that Chung hit was killed on the spot. There was dash cam footage of the event which was captured by a vehicle at the intersection and five civilian witnesses were called at the trial who were all driving near the intersection.


Based on these facts, the trial judge found the necessary actus reus of dangerous driving had been established, but did not believe that Mr. Chung had the required mens rea. The trial judge heavily relied on how brief and momentary Mr. Chung’s speeding was and that he had only started speeding on that one street before colliding with the other vehicle. The British Columbia Court of Appeal (“the BCCA”) found this to be erroneous reasoning and said that the trial judge had misconceived that a principle existed where the brief period of speeding did not establish the mens rea element. The BCCA reversed the acquittal and convicted Chung, stating that he would have been found guilty but for the trial judge’s error.

Council for Mr. Chung argued that no such error in law occurred in the trial judge’s reasoning, but the majority of the Supreme Court of Canada (“the Court”) disagreed. The Court found that, when interpreting the reasoning of a trial judge, an appellate court should focus on the reasoning as a whole in the context of the evidence at hand. If the trial judge’s reasoning and application does not seem coherent with the law, then an appellate court is able to find an error of law. In the case at hand, the trial judge analyzed the evidence, and mentioned the correct test from Roy to determine mens rea for dangerous driving causing death. The problem was that the judge did not follow through with the test properly. Instead, the judge incorrectly thought there was a principle that speeding alone is not usually sufficient to establish mens rea for dangerous driving. He then proceeded to place importance on how the speed was merely momentary and that due to this he had reservations about whether Mr. Chung’s conduct represented a marked departure from the standard of care required of the reasonable person.

If the trial judge had merely applied the reasonable person test found in Roy and came to an unreasonable result, the Court would not have agreed that there was an error in law. The problem in Chung was that the trial judge did not actually compare Mr. Chung’s actions with how a reasonable person should have acted in the circumstances of the situation.

The Court found there were two main inter-related errors of law. The first was that the trial judge applied a false legal principle that people speeding briefly do not have requisite mens rea. The second was that the trial judge did not apply the reasonable person test from Roy correctly to the facts of the case.

In addressing the first issue, the Court said that excessive speeding even momentarily can absolutely establish the required mens rea for dangerous driving. This occurs where, in the facts of the case, the driving of the accused demonstrates a clear departure from the standard of care of a reasonable person. The trial judge seemed to believe that, when excessive speed was only momentary, it was incapable of establishing the mens rea for dangerous driving. He placed heavy emphasis on this principle that he believed existed when deciding the case. The Court said that the trial judge should have focused on analyzing whether the reasonable person would have foreseen the dangers from the conduct of Chung rather than on the briefness of the speeding. In Beatty and Roy, the Court did hold that momentary lapses in attention and judgment would typically not result in criminal liability, but those two situations could be differentiated from the situation that Mr. Chung found himself in. Momentary lapses in attention typically occur in the everyday occurrence of driving, and they are automatic and reflexive, whereas Mr. Chung consciously sped up while heading towards the intersection and was aware of what he was doing. A reasonable person in the place of Mr. Chung would have foreseen that accelerating to a very high speed heading towards an intersection would create a serious risk of collision.

The Court then looked at the second issue relating to the trial judge’s error in law. Here, the trial judge did not apply the test laid out in Roy to determine whether the reasonable person in Mr. Chung’s situation would have been able to foresee the risk from his conduct. Instead of addressing this reasonable person analysis, the trial judge instead heavily focused on the speed and duration of Mr. Chung’s accelerated driving. The Court said that the trial judge should have considered all of the circumstances of the case rather than focusing on these two things. A proper analysis in this case should have considered:

  • the duration of the speeding;

  • Mr Chung’s control of the car;

  • the magnitude of the speeding;

  • the location of the speeding; and

  • Mr. Chung’s awareness that there were vehicles at the intersection while he was approaching it.

The Court concluded that, to determine the mens rea component, Mr. Chung did not need to be subjectively aware that the conduct he was engaged in created a serious risk to those around him. They reaffirmed that the test required to establish the mens rea element of the offence of dangerous driving causing death was that of the reasonable person. In Chung, it was held that a reasonable person in Mr. Chung’s shoes would have foreseen the risk which was created by him travelling 140km/h in a 50km/h zone towards a busy intersection. The trial judge’s findings were enough to demonstrate that Mr Chung behaved in a manner that was a marked departure from the standard of care required by a reasonable driver. The Court dismissed the appeal and upheld the conviction of Mr. Chung.

My Opinion

Based on the circumstances surrounding the case, I entirely agree with the Court on the decision. The trial judge clearly did not apply the reasonable person test from Roy to the facts at hand and based his decision on a principle of law that was unfounded. The driving of Mr. Chung was extremely dangerous and, by accelerating to nearly three times the speed limit while heading towards a busy intersection, he was absolutely in breach of the standard of care expected of drivers. If the initial trial judge’s decision stood, it would have set a terrible precedent for future court decisions in cases involving dangerous driving causing death.


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