• Lewis Waring

The Court Misses the Mark on Errors of Law - Elise Janzen

On November 14, 2015, Ken Chung collided with a vehicle turning left at a major intersection at a speed of 119 km/hr, causing a fatality. The collision occurred in Vancouver at the intersection of Oak Street and West 41st Avenue. The speed limit at both streets was 50 km/hr, but drivers are known to speed. Both roads were wide and straight with dedicated left turning lanes. It was not raining; the road was damp or wet. Five civilians and four pedestrians witnessed the incident and a dashboard camera from another vehicle standing at the intersection managed to capture the collision.

Before entering the intersection Mr. Chung managed to move into the curbside lane, pass at least one car on the right, and accelerate from 50 km/hr to 140 km/hr in the span of a block. As Mr. Chung approached the intersection along Oak Street, a Toyota in front of him took a right turn. To avoid hitting it, he swerved and collided with the victim’s vehicle.

In R v Chung (“Chung”), a 2020 decision of the Supreme Court of Canada (“the Court”), the trial judge had found that Mr. Chung was not inattentive nor did he engage in any dangerous conduct during the prescribed time.

Judicial History

Mr. Chung was charged under section 249(1) of the Criminal Code (“the Code”) for the offence of dangerous operation of a motor vehicle while street racing. At trial, the Provincial Court of British Columbia (“the BCPC”) found that Mr. Chung’s excessive speeding over a short distance towards a major intersection was objectively dangerous to the public and thus that the actus reus for dangerous driving had been established. The BCPC furthermore set out the relevant analysis, derived from R v Roy and R v Beatty for the mens rea for dangerous operation of a motor vehicle while street racing. After looking into all the circumstances and reviewing the relevant case law regarding the mens rea requirement for dangerous driving, the BCPC concluded that reasonable doubt of the presence of the required mens rea and acquitted the accused accordingly.

The Crown in Chung appealed the acquittal to the British Columbia Court of Appeal (“BCCA”), which allowed the appeal and overturned the trial judge’s finding. The BCCA found that “[t]he judge erred in law in his view that excessive speed alone could not constitute a marked departure from the standard expected of a reasonable driver.”

Two errors of law

The Court determined that the sole issue on appeal was whether the trial judge made an error of law, which would allow the Crown to appeal Mr. Chung’s acquittal under s. 676(1) (a) of the Code”. The Court determined that the answer to that issue was no, that is, that the trial judge had not made an appealable error of law. Accordingly, the Court overturned the BCCA’s verdict. Justice Karakatsanis dissented.