On Friday, March 27, 2020, the Supreme Court of Canada is releasing its decision in R. v. Chung. At issue is the test for dangerous driving and whether it was appropriate for the Court of Appeal to overturn an acquittal absent a clear legal error. Head over to Fantasy Courts and lock in your prediction.

In Chung, the accused accelerated rapidly when reaching a major intersection in Vancouver. He reached a speed of 140 km/hr in a 50 km/hr zone. He narrowly missed hitting a car that was turning right, then proceeded into the intersection, where he collided with a left-turning vehicle, killing its driver. The accused’s speed at the point of collision was 119 km/hr. The trial judge found that his driving was dangerous, but acquitted him on the basis that “momentary” speeding alone did not constitute a marked departure from the standard expected of a reasonable driver. For the offence of dangerous driving, the actus reus 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 the motor vehicle. The mens rea 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.

The Crown appealed. The BC Court of Appeal allowed the appeal and entered a conviction. The Court of Appeal found the trial 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. The accused deliberately proceeded at a speed that was grossly excessive in the circumstances and that was a marked departure from the standard expected of a reasonable driver.

The accused appealed as-of-right to the SCC. On appeal, he argued that the Court of Appeal misinterpreted the reasons for judgment and incorrectly determined that the trial judge had committed an error of law by misconceiving the test for the mens rea of dangerous driving. He also argued they erred by substituting a guilty verdict based on a theory of liability not advanced by the Crown at trial. Finally, he argued that the Court of Appeal did not have the jurisdiction to overturn the acquittal and that the Crown has no right to appeal an acquittal arising from the application of the legal standard to the facts. In response, the Crown argued that the trial judge made a number of errors and created an artificial and unjustified impediment to the Crown proving its case.