The Modified Objective Test - R v Chung 2020 SCC : Keenan Fonseca
On November 14, 2015 Ken Chung was driving on a street in Vancouver when he entered an intersection at 140 kilometers per hour. 1 Chung hit another vehicle attempting to turn left at the intersection and the driver of the vehicle was killed on site. 2 When faced with situations like the one described, the Crown has the option of pursuing three separate driving offences. The first being driving without due care and attention, this is a regulatory offence. The next option, more onerous than the first is section 249 of the Criminal Code, dangerous driving (causing bodily harm or death). Finally, the most serious of the charges available for the crown to pursue is section 220 of the Code, criminal negligence causing death or bodily harm. The first two of these options will be discussed and compared regarding actus reus and mens rea requirements. The development of the modified objective test for s. 249 dangerous driving will be reviewed, followed by a closer look at the recent Supreme Court decision in the case of Chung, and the implications of this ruling.
The Modified Objective Test
Prior to looking to the mens rea of an offence, the actus reus must be met. The actus reus regarding s. 249 requires proof that the accused objectively drove in a manner that endangers the public, with regard to all of the circumstances surrounding the use of a motor vehicle. 3 After establishing the actus reus, the case of R v Beatty 2008 SCC 5 sets out the modified objective mens rea test. The mens rea requirement of dangerous driving requires a marked departure from the standard of a reasonably prudent driver in the same circumstances as the accused, as contrasted with a mere departure sufficient for establishing civil negligence. 4 This involves a modified objective test for mens rea, meaning that it is not necessary for the crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. 5 The modified objective test does not import the idiosyncrasies or personal attributes such as age, experience or education of the accused. 6 While an objective test only looks at what the reasonable person would do, with no inclusion of the accused’s state of mind. This is the standard that would be applied to a regulatory offence such as careless driving. While regulatory driving offences involve a mere departure from the standard of a reasonably prudent driver, it is important to clearly distinguish the difference between mere and marked departures. 7
The issue of mens rea involving s .249 was further developed in R v Roy 2012 SCC 26. In the case of Roy two questions were developed, the first being whether in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it, if possible. 8 If the answer is yes, the second question to pose is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. 9 These developments provide the standard for the modified objective test to be applied in cases involving dangerous driving.
R v Chung - Trial
Having reviewed important case law regarding s. 249, we move to the case of R v Chung 2020 SCC 8. As mentioned in the introduction, Ken Chung had entered an intersection in Vancouver at 140 km/h where the posted speed limit was 50km/h resulting in a collision with another vehicle and the death of the driver. The Crown pursued charges under s. 249(4) dangerous driving causing death against Chung. The judge noted that the driving conditions on that day were not particularly challenging, it was daylight, roads were damp, visibility was good and traffic was relatively light and the intersection in question was a major one. 10 The evidence established that Chung narrowly missed hitting a vehicle turning right from the curb lane as he approached the intersection, and had been travelling at the speed of 140km/h from the last intersection (42nd street) passing cars in the curb lane. 11 The trial judge found that Chung had met the actus reus requirement. 12 When looking at the mens rea of the offence, the judge found that it could not be established, as the speed travelled and the passing of vehicles in the curb lane, as well as the near miss of a right turning vehicle did not amount to a marked departure from the reasonable standard. 13 The Crown appealed this decision.
R v Chung - BCCA
At The British Columbia Court of Appeal (BCCA), the trial judge’s decision was overturned and a verdict of guilty was put forward. 14 The BCCA found that the trial judge erred in the conclusion that momentary speeding, without more could not sustain a conviction, and stated “while it is true that 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”. 15 It is noted that the subjective mens rea alone will be sufficient in sustaining a conviction for s. 249 dangerous driving. 16 While this is true, the BCCA rests their decision on the modified objective mens rea standard, as to not allow the Crown to change tack on appeal. 17
R v Chung - SCC
At the Supreme Court of Canada (SCC) level, the issue was whether the trial judge made an error of law in applying the modified objective mens rea test. 18 Addressing this issue the SCC stated “it would be an error of law if the trial judge failed to compare the accused’s actions to what a reasonable person would have foreseen and done in all of the circumstances “. 19 Regarding the momentary conduct of Chung’s speeding, the court found “the fact that foreseeable consequences occur within a short period of time after someone engages in highly dangerous behaviour cannot preclude a finding of mens rea for dangerous driving”. 20 It was determined that the trial judge erred in applying the correct legal test in Roy, focusing more on the actions of Chung instead of what the reasonable person would have foreseen in Chung’s circumstances. 21 The SCC held the BCCA’s decision of guilty under s. 249, and dismissed the appeal. There was a dissent in this case, where Karakatsanis J. concluded that there was not an error in law at the trial, thus it was not for BCCA or SCC to change this decision, and would restore the acquittal, sending the case back to the provincial court for sentencing. 22
Implications and Outcomes
While the trial judge thought Chung’s conduct was only a mere departure from the reasonably prudent driver, both the BCCA and the SCC found it to be a marked departure. The consequences of mere versus marked for the accused are huge, ranging from a fine and up to six months in jail for the offence of careless driving in British Columbia, 23 compared to a possible 14-year imprisonment for dangerous driving causing death. 24 Considering the gravity of the consequences, the line between mere and marked is a very important one, and has been further developed through this judgment. If not overturned, this ruling could have had grave consequences, allowing drivers who momentarily drive dangerous by excessively speeding to avoid criminal consequences. This case establishes how important it is to carefully and properly apply the modified objective test set out in Roy. It can be taken from the decision of the SCC affirming the BCCA decision holding that driving at a grossly excessive speed will represent a marked departure from the reasonable person. 25 It is established that even if dangerous driving only occurs for a few seconds, it can still represent a marked departure. Section 249 has been repealed and the offence of dangerous driving now lies in s. 320.13 of the Criminal Code. While the section has changed, cases such as Roy, Beatty, and Chung will remain authoritative. The new offence of dangerous driving causing death s. 320.2 is now punishable by a maximum term of life imprisonment. 26
In conclusion, the case of Chung provides a great example of the modified objective test for mens rea in Canadian criminal law. This can be seen as the balancing between an overly stringent objective test, and a potentially insufficient stringent subjective test. Moving forward the new offence of dangerous driving under section 320.13 may bring new additions to this test, or possibly new challenges. This will take time, as currently the SCC has not heard any cases regarding the new offence.
1 R v Chung, 2019 BCCA 206 at para 2 [Chung CA].
2 Ibid at para 1.
3 R v Beatty, 2008 SCC 5 at para 43.
5 Ibid at para 47.
6 Ibid at para 6 & 47.
7 Simon N. Verdun-Jones, “Criminal Law in Canada Cases, Questions and the Code”, 7th (Toronto, Ontario: Nelson Education, 2020) at 114.
8 R v Roy, 2012 SCC 26 at para 38.
10 Chung CA, supra note 1 at para 5.
11 Ibid at para 12 & 21.
12 Ibid at para 19.
13 Ibid at para 22.
14 Ibid at para 45.
15 Ibid at para 33.
16 Ibid at 36.
17 Ibid at 38.
18 R v Chung, 2020 SCC 8 at para 8 [Chung SCC].
19 Ibid at para 16.
20 Ibid at para 22.
21 Ibid at para 25.
22 Ibid at para 42.
23 Offence Act, RSBC 1996, c 338, s 144.
24 Criminal Code, RSC 1985, c C-46, s 249(4).
25 Chung SCC supra note 19.
26 Criminal Code, RSC 1985, c C-46, s 320.2.