R v. Chung
R v. Chung
R v. Chung
OF BRITISH COLUMBIA
FILED
Citation: •#• Date: #
MAY 25 2018 File No: 243920-1
iiiiiiiiiHimitiMiiiMt Registry: Vancouver
REGISTRY
222 MAIN STREET
REGINA
v.
KEN CHUNG
I. INTRODUCTION
[1] Ken Chung (the "accused") has been charged with a single count of dangerous
driving causing the death of Alphonsus Hui ("Dr. Hui"), contrary to s. 249(4) of the
Criminal Code of Canada (the "Code").
[2] A collision occurred just before 9 AM on Saturday, November 14, 2015, at the
intersection of Oak Street and W. 41st Ave. (the "intersection") in Vancouver, British
Columbia.
[3] Dr. Hui was travelling southbound on Oak Street in his red Suzuki motor vehicle
accused's silver Audi motor vehicle (the "Audi"). The impact caused the Suzuki to spin
around, become airborne, hit a fire hydrant and come to rest in the southeast corner of
[4] It was determined that at the point of impact the Audi was travelling at 119 km/h.
Dr. Hui died at the scene of the collision. His death was caused by multiple blunt force
II. ISSUE
[5] Has the Crown established beyond a reasonable doubt that the accused
operated his Audi in a manner that was dangerous to the public, having regard to all the
circumstances, including the nature, condition and use of the place at the time of the
collision, and including the amount of traffic that at the time was or might reasonably be
[6] West 41st Ave. runs nominally east-west and has two lanes of travel in each
direction. East and westbound traffic are separated by a concrete median. There are
dedicated left turn lanes in both east and westbound directions of travel.
[7] Oak Street runs nominally north-south and has three lanes of travel in each
direction. North and southbound traffic are separated by a solid yellow line. There are
dedicated left turn lanes with their own left turning signals in both north and south
directions of travel.
[8] There are no traffic lights between W. 49th Ave. and W. 41st Ave., either
northbound or southbound: Transcript, February 1, 2019, p. 28, II. 34 - 37.
[9] The area of the intersection is mixed residential/commercial, with a posted speed
limit of 50 km/h. There is a Petro Canada service station with a 7-11 store on the
Lubavitch Centre - on the southeast corner of the intersection. There is a Chevron gas
station on the southwest corner of the intersection. There is a nursing home on the
northwest corner of the intersection. There are bus stops along both W. 41st Ave. and
Oak Street, as well as small retail businesses located south of the intersection along
[10] Pursuant to s. 655 of the Code, the accused admitted the following summarized
facts:
R. v. Chung _^ Page 3
2. Dr. Hui's death was caused by multiple blunt force trauma caused by the
collision.
[11] Mr. Hsieh was driving eastbound on 41st Ave. toward Oak Street in the curb lane
in preparation to make a right turn. The collision was captured by his dashboard
camera. That same day, he called the police and provided them with a video clip, which
[12] Dr. Chan is a cardiologist. He was on his way to his office in the Oakridge Mall
the morning of the collision. He was driving southbound and in the left dedicated turning
[13] He testified that although he did not hear any loud noises, he saw a "spinning
grey vehicle or mass" going in front of him toward the Petro Canada service station.
[14] After the collision, he completed his turn and parked at the Lubavitch Centre, and
returned to the scene of the collision to render assistance. He testified that Dr. Hui did
not have a pulse. With the assistance of other bystanders, he extricated Dr. Hui from
[15] Mr. Millway was on his way to a high school soccer game, driving southbound on
Oak Street in the left dedicated turning lane behind the Suzuki.
[16] He testified that the Suzuki was in the process of clearing the intersection, and
he was about to check whether it was clear for him to go, when a silver Audi entered the
intersection "very, very quickly down the curb lane" and struck the Suzuki. The Suzuki
launched into the air and took out the fire hydrant and a portion of the Petro Canada
service station advertising sign located in the southeast corner of the intersection.
[17] Ms. Gyorgi is a nurse. She was driving home from her hospital shift when she
heard "an engine revving noise" just past 49th Ave. She noticed a "silver car passing
[her] on the right side going at a very high speed down in the curb lane": Transcript,
[18] She recalled that the traffic light at the intersection of 41st Ave. and Oak Street
went from green to yellow. She testified the silver car was not slowing down. She
testified that there was another motor vehicle in front of the silver car making a right-
hand turn eastbound on 41st Ave. The driver of the silver car put his brakes on "for
about a second or so" but then kept going, passing the northbound cars that were
stopped at the intersection. She then heard "a loud metallic bang" and saw the Suzuki
"lifted off the ground, and flying into the Petro Canada service station advertising sign".
R. v. Chung Page 5
[19] Mr. Katarama was driving northbound on Highway 99 towards the Oak Street
Bridge. He described the traffic that morning as "quiet and there is no traffic."
[20] He testified he saw the Audi about "100 yards" in front of him at the south end of
the merge of Bridgeport Road onto the Oak Street Bridge. He moved into the left lane to
allow the Audi to merge. He testified that it seemed to him that the owner was travelling
at "a little bit more than the speed", causing him and another driver in front of him to
briefly brake.
[21] He stated on several occasions in his testimony that it was "customary" for
drivers to give the right-of-way to merging vehicles.
[22] He testified that he recollected that the driver of the Audi was "in a hurry", though
the next time he saw the Audi it was located behind him proceeding northbound on Oak
[23] He arrived before the Audi at the intersection of Oak Street and 41st Ave. He did
not recall that there were cars behind him or on either side of him. The traffic light was
green. He saw the Suzuki turning eastbound in front of him and he thought it had "all the
right time to. turn." As the Suzuki was turning while he was entering the intersection, "the
[24] Mr. Katarama parked next to the Audi and got out to check the driver. He asked
the driver if he was okay and the driver responded, "Yeah, I feel fine." Mr. Katarama
became concerned as he saw smoke coming from the engine compartment and told the
R. v. Chung Page 6
driver to turn off the engine. He asked the driver again if he was okay. The driver
responded by again stating he was okay and went on to state, 'That was a green light."
Mr. Katarama responded by telling the driver, "Yeah, it was a green light but you were
provided to the ICBC adjuster approximately 2.5 months after the collision. I have
[26] Cst. Reynold See is a member of the Vancouver Police Department (the "VPD").
He arrived at the collision scene at 9:26 AM. He began to take photographs of the
collision scene at 10:28 AM. He observed the Suzuki to be heavily damaged on the
northeast corner of the intersection. He observed fluid leaking from the Suzuki. He could
[27] He described the intersection as a major arterial route in the City of Vancouver.
He described the usual traffic conditions at the intersection on a Saturday morning
around 9 o'clock as, "It's not rush hour. It's fairly light. People coming in and out of the
R. v. Chung Page 7
city, going east and west, north and south": Transcript, January 29, 2018, at p. 13, II. 4 -
11.
[28] He described the road surface at the intersection to be wet though it was not
raining outside.
people normally traveled at major arteries within the city. He agreed with the suggestion
that people generally do not travel at 50 km/h; rather, drivers will go above the 50 km/h
[30] Cst. See agreed that looking south along Oak Street from the left dedicated
turning lane of the intersection that there was no appreciable curve in the road that
would obstruct a driver's view of oncoming traffic: Ibid, p. 34, II. 31 - 37.
[31] Cst. See agreed that it would appear that the brake lights of the Audi were
engaged at the stop line at the intersection of the northbound lane of Oak Street at 41st
Ave.: Ibid, p. 40, II. 13-44.
[32] Cst. Rieger is a VPD Collision Unit Analyst and Accident Reconstructionist. He
was qualified in the field of forensic collision reconstruction and analysis. His Motion
Analysis Report was not filed as an exhibit, but parts of this report were adopted into
evidence.
R. v. Chung Page 8
[33] Cst. Rieger testified that he received a call at 8:54 AM advising him of a serious
collision at the intersection. When he arrived at the intersection, the scene was already
"contained" by other first responders. He observed the Suzuki at the southeast corner of
the intersection and the Audi on the east side of Oak Street, at the end of the Petro
Canada service station. He described that there was a lot of debris on the road and the
fire hydrant located near the Petro Canada station had been dislodged and was actively
spilling water onto the street. He noticed skid marks on the road surface from where the
[34] From page 14 of his unfiled report, Cst. Rieger identified a photograph which
depicts a pedestrian countdown timer fixed to a traffic light pole situated on the
southeastern corner of the intersection that controls the north and south traffic on Oak
Street: Transcript, January 31, 2018, p. 16, II. 38 - 47 & p. 17, II. 1 -11.
[35] Cst. Rieger used a frame by frame breakdown of the pedestrian countdown timer
and Mr. Hsieh's dashboard camera video to determine the speed of the Audi between
two fixed curb poles situated along the east side of Oak Street.
[36] According to his calculations, the Audi traveled at a speed of 143 km/h between
the first and the second pole, as determined from the vantage point of the dashboard
camera in Mr. Hsieh's motor vehicle. When Cst. Rieger was asked whether the
accused's Audi was travelling at 143 km/h before it struck the Suzuki, he answered that
his speed calculation was determined between the two poles (a distance of 27.85
meters), but he did not want to speculate on the speed past the two poles: Ibid, p. 19, II.
31 - 43.
R. v. Chung Page i
[37] In cross-examination, Cst. Rieger agreed that according to his on-line Google
search of the accused's Audi's specifications, it had "420 horse power which is a lot for
[38] Mr. Dinn is an expert qualified to give evidence in the area of motor vehicle
collision investigation, reconstruction and analysis. Counsels' questions focused on the
calculated pre-impact positions (as depicted in figure 15 of Ex. 8A) and Mr. Dinn's gap
acceptance theory. His calculations are based on the dashboard camera video,
combined with the 3-D scan of the intersection conducted by Dave Little of Baker
[39] Both at p. 15 of Ex. 8A and in his testimony, Mr. Dinn stated, "Studies of gap
acceptance have shown that 50% of drivers made a left turn to cross traffic when there
was a gap of 6 seconds."
[40] The following calculations are summarized from his direct evidence:
• The Audi was before 42nd Ave. 3.5 seconds prior to impact;
• When the Suzuki started to move, if the Audi traveled at 50 km/h, the gap
would have been 8.3 to 9.6 seconds instead of 3.5 seconds;
• Hypothetical^, if the Audi traveled at 80 km/h, the gap would have been 5.2
to 6 seconds; and,
• Dr. Hui only needed a half second more to complete the turn.
R. v. Chung Page 10
[41 ] Mr. Dinn further testified in direct examination that the gap acceptance analysis
was performed without considering the right-turning vehicle travelling north on Oak
Street at 41st Ave. The Audi was within a half second of striking that vehicle's rear end.
• The Audi was travelling at 139 km/h when it was first captured in the
dashboard camera, between 0.5 and 1.2 second markings;
• The Audi speed at impact with the Suzuki was 119 km/h;
• The speeds were calculated based on the assumption that the Audi was
travelling at 139 km/h. The Audi could have been accelerating or braking; and
• The Audi braked between 0.5 and 1.2 second markings and impact.
[43] In addition, Mr. Dinn estimated using expert auto statistics that it takes 4.5
seconds for the Audi to accelerate from 0 to 100 km/h. He did not have data beyond
those numbers. He agreed this Audi is a powerful vehicle with acceleration capabilities.
He added the calculations assumed the road was dry - the Audi would not have the
same acceleration capabilities on a wet road: Transcript, February 1, 2018, p. 43, II. 28 -
35.
[44] Mr. Dinn did not have data on the standard deviation or confidence levels of the
study on which he relied for gap acceptance. He also had no data on measured
average speed on Oak Street. To his knowledge, there is no research on how the
pedestrian countdown timer influences the driver's decision-making: Ibid, p. 42. II. 46 -
memory. Mr. Hsieh testified that the camera records 30 frames per second. The quality
of the video is 1080 HD.
[46] The dashboard camera video captures 4.9 seconds of the event.
[47] At the time of the collision, Mr. Hsieh's vehicle was in the curb lane travelling
eastbound on W. 41st Ave., about to make a right-hand or southbound turn onto Oak
Street. Mr. Hsieh viewed the video on his computer once he returned home. He
removed footage to and from the intersection on a flash drive and gave the flash drive to
the police.
[48] Beyond trimming the irrelevant video information, there has been no suggestion
that this video has been altered in any manner.
[49] As seen on the video, Dr. Hui's Suzuki was the first vehicle in the southbound
dedicated left turning lane on Oak Street, about to make a left-hand or eastbound turn
onto W. 41st Ave. Dr. Hui yielded to a blue or grey passenger motor vehicle travelling
[50] As the blue or grey motor vehicle passed through the intersection, a green
Toyota motor vehicle pulled up to the intersection in the northbound curb lane of Oak
Street. The driver indicated a right-hand or eastbound turn and slowed down to turn into
the eastbound curb lane of W. 41st Ave. It is at this time that Dr. Hui proceeded to make
[51] As the green Toyota was completing its right-hand turn and Dr. Hui was in the
process of making his left-hand turn, the Audi can be seen approaching the intersection
in the northbound curb lane of Oak Street at a high rate of speed.
[52] Just before entering the intersection, the Audi's brake lights are engaged. It is
unclear from the video whether without braking, the Audi would have rear-ended the
green Toyota.
[53] The Audi then violently crashes into the passenger side of the Suzuki.
[54] A frame-by-frame playback of the video shows four pedestrians were in the area
of the intersection at the time of the collision. Before the Audi reached the intersection,
one pedestrian had finished crossing 41st Ave. and had arrived in front of the Lubavitch
Centre. Another pedestrian was walking westbound on the south side of 41st Ave.
beside the Petro Canada service station, which was very close to where the Suzuki
came to rest after impact. Two more pedestrians could be spotted in front of the
[55] Visibility was good. The sky was overcast but it was not raining. The road surface
(1) "... he was overtaking vehicles while driving in the curb lane": Written
Submission at para. 2;
(2) "... he came within a half second of rear-ending a right turning vehicle in
the curb lane in front of him": Ibid, para. 82;
(3) "... he did not see or could not have seen Dr. Hui's vehicle in the
intersection": Ibid.
• The accused had a duty to yield to Dr. Hui by operation of s. 174 of the Motor
Vehicle Act of British Columbia (the "MVA"): Ibid, paras. 66 - 68;
• there was no evidence regarding the normal speed of vehicles on Oak Street;
• Cst. See testified that from his experience most drivers in Vancouver will go
above the posted 50 km/h speed limit; and
[58] Section 249(1 )(a) of the Code defines dangerous driving as follows:
[59] Section 249(4) of the Code provides the penalty in the event dangerous driving
causes death as follows:
(4) Every one who commits an offence under subsection (1) and thereby
causes the death of any other person is guilty of an indictable offence and
liable to imprisonment for a term not exceeding fourteen years.
[60] In ft v. Beatty, 2008 SCC 5, at para. 43, the Supreme Court of Canada (the
"SCC") set out the requisite elements for 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 the
same circumstances as the accused, as contrasted with a mere departure sufficient for
[61] The test for mens rea is modified objective. It does not import the idiosyncrasies
or personal attributes of the accused such as age, experience and education, but
situates the reasonable driver in the position of the accused. The trier of fact must
examine all of the evidence, including the accused's actual state of mind: Ibid, at paras.
8&47.
[62] The SCC explained the underlying premise in part, at para. 37, as follows:
[63] The SCC in ft v. Roy, 2012 SCC 26, at para. 36, further discussed the requisite
mens rea element by proposing that the trier of fact in examining all of the evidence ask
two questions:
[36] The focus of the mens rea analysis is on whether the dangerous
manner of driving was the result of a marked departure from the standard
of care which a reasonable person would have exercised in the same
circumstances (Beatty, at para. 48). It is helpful to approach the issue by
asking two questions. The first is whether, in light of all the relevant
evidence, a reasonable person would have foreseen the risk and taken
steps to avoid it if possible. If so, the second question 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.
[64] The fault component is critical,"... as it ensures that criminal punishment is only
imposed on those deserving the stigma of a criminal conviction. While a mere departure
from the standard of care justifies imposing civil liability, only a marked departure
justifies the fault component for this serious criminal offence": Ibid, at para. 1.
R. v. Chung _ Page 16
[65] The distinction between a mere departure, which may support civil liability, and
the marked departure required for criminal fault, is a matter of degree, but the trier of
fact must identify how and in what way the driver went markedly beyond mere
[66] Proof of the actus reus on its own does not support a reasonable inference that
the required fault element was present. In other words, the trier of fact cannot simply
infer from the objectively dangerous manner of driving that this conduct constituted a
marked departure from the requisite standard of care: Ibid, at para. 42.
[67] The area of 41st Ave. and Oak Street is a mixed residential/commercial area.
There are bus stops and "little businesses" near the intersection.
[68] There were four identifiable pedestrians captured in the dashboard camera
video. The pedestrian near the Petro Canada service station was most at risk when the
Audi entered the intersection. I cannot determine, and no evidence has been called, to
establish whether or not the accused could see or should have seen this pedestrian.
[69] I find that there is no evidence to establish that there were any pedestrians at any
[70] There was a 7-11 store at the Petro Canada service station. Typically 7-11 stores
are open 24/7. The lights were on at the 7-11 store. It is likely that the 7-11 store was
R. v. Chung Page 17
open at the time of the collision in the intersection. Whether any other businesses in the
[71] I am not prepared to find, as submitted by the accused, that there is no evidence
regarding whether or not any businesses were open or there were any pedestrians in
[72] West 41st Ave. and Oak Street are major arterial roads in the City of Vancouver.
The posted speed limit for both Oak Street and W. 41st Ave. is 50 km/h. I accept the
evidence of Cst. See that in his opinion drivers generally do not travel at 50 km/h;
[73] From a review of the photographs, the dashboard camera video and the
evidence of Cst. See, I find that neither 41st Ave. nor Oak St. has any appreciable curve
that would obstruct a driver's view. Oak Street in both north and south directions had
[74] Witnesses consistently testified that traffic conditions were light on the day of the
camera video establishes that traffic travelling north and south on Oak Street was light
[75] It was daylight at the time of the collision. It was not raining. Both the Crown and
the accused took differing positions on whether or not the road was wet or damp. Mr.
agreed that the Audi driven by the accused was "a powerful vehicle." I find the
R. v. Chung . Page 18
distinction between a wet road surface and a damp road surface to be inconsequential
in this case absent precise calculations with respect to the Audi's road worthiness and
[76] The dashboard camera video was heavily relied upon by both parties.
[77] The SCC in R. v. Nikolovski, [1996] 3 SCR 1197, at para. 28, set two
preconditions for the admission into evidence of a video recording: (1) that the video
accurately depicts the scene of the crime; and, (2) that the recording has not been
altered or changed.
[78] The Transcend DrivePro 200 records 1080 HD quality videos. The video clip
submitted has been trimmed but not altered. I have viewed the recording on numerous
occasions.
[79] I find that the video clip clearly captured the moments prior to, during, and after
[80] I find the dashboard camera video is reliable evidence in capturing the sequence
of events prior to, during, and after the collision.
Gyorgi and Mr. Katarama are the most relevant as they made observations of the
accused's vehicle prior to approaching the intersection.
R. v. Chung Page 19
[82] I find Ms. Gyorgi's evidence to be credible, but ultimately concerning in relation to
her reliability. As noted by the accused in his written submissions at para. 10, there are
some "unequivocal discrepancies" between her evidence and the rest of the evidence.
[83] Ms. Gyorgi testified that the intersection traffic control light had changed to yellow
when the Audi came to the intersection. Mr. Katarama testified that the intersection
traffic control light was a solid green when the Audi came to the intersection.
[84] The evidence of Mr. Katarama on this point is confirmed by the dashboard
camera video, which shows that the intersection traffic control light was green at the
time the Audi entered the intersection and then the collided with the Suzuki.
[85] Ms. Gyorgi testified that she heard the "revving noise" of an engine just past 49th
Ave. and she then noticed a silver car [the Audi] passing on her right side at a high rate
[86] Ms. Gyorgi testified that she was in a state of shock after witnessing the collision
to a point, but she was unable to unlock her cellular telephone. Without question the
collision was violent. Her state of mind may have influenced her perception and
recollection of the events. Accordingly, I have approached her evidence with caution.
[87] I find Mr. Katarama to be the most helpful witness in establishing the accused's
manner of driving prior to the collision. I accept his evidence to be both credible and
reliable. His evidence is consistent with the content of the dashboard camera video and
with the statement he provided to the ICBC adjuster 2.5 months after the collision.
R. v. Chung Page 20
[88] Mr. Katarama testified that he was driving at a speed of approximately 50 km/h.
He first observed the Audi on the south end of the merge of Bridgeport Road onto the
Oak Street Bridge. He testified that the Audi appeared to be "in a hurry" causing him
and another driver to apply their brakes. He also testified that it was "customary" for him
[89] As Mr. Katarama continued northbound on Oak Street, he observed the Audi
behind him. He testified that he was travelling at approximately 50 km/h on that stretch
of the roadway. The Audi remained behind him all the way up to 42nd Ave., when the
Audi passed him in the curb lane between 42nd Ave. and 41st Ave. at a high speed. He
[90] Cst. Rieger and Mr. Dinn gave differing opinions in relation to the speed of the
Audi between 41st Ave. and 42nd Ave. Cst. Rieger opined the Audi was travelling at 143
km/h for a distance of 27.85m. Mr. Dinn opined that based on his calculations, the Audi
was travelling at 139 km/h at some point between 0.5 and 1.2 seconds prior to impact.
[91] Both experts agreed in cross-examination that the Audi is a very powerful car
[92] Mr. Dinn's gap acceptance theory - that Dr. Hui only needed a half second more
to complete the turn - was based on the assumption that that the Audi was travelling at
139 km/h, as well as on the study that 50 percent of drivers would make a left turn when
oncoming traffic is six seconds away. On cross-examination, he agreed that (1) his
R. v. Chung Page 21
calculations of the Audi's speed at certain points in time do not reflect any acceleration
or deceleration that may have been done; and, (2) he did not have the standard
[94] While Cst. Rieger and Mr. Dinn may differ in their opinions of the speed of the
Audi, I find their evidence to be reliable in establishing that the Audi accelerated to a
rate of approximately 140 km/h somewhere between 41st and 42nd Avenues. The
accused applied the brakes to the Audi when entering the intersection, but was only
able to bring the speed down to 119 km/h at the time of impact. By either calculation,
[96] The evidence does not support a finding that the accused was overtaking
vehicles while driving in the curb lane of Oak Street, except between 42nd St. and 41st
[97] While the accused came close to rear ending the right turning vehicle onto E. 41st
Ave., the fact is that no collision occurred. From a careful review of the dashboard
R. v. Chung Page 22
camera video, I would describe what took place as a close call but not indicative of an
[98] I cannot agree with the submission of the Crown that the evidence would
establish that the accused "did not or could not have seen Dr. Hui's Suzuki in the
intersection." From a review of the photographs and the dashboard camera video, it is
clear that the dedicated left turn lane southbound on Oak Street at 41st Ave. is located
on the right half of the roadway. This would be at an angle to traffic travelling
[99] No expert evidence was called to establish hypothetical sightlines that could
assist the Court in determining whether or not the accused could not have seen Dr.
Hui's Suzuki.
[100] There is some evidence that would establish that the accused did see Dr. Hui's
Suzuki and he did not expect Dr. Hui would turn in front of him as he entered the
intersection. Mr. Katamara testified that he went over to check the driver of the Audi
who spontaneously told him, "That was a green light." It would be reasonable to infer
from that statement that the accused saw Dr. Hui's Suzuki, but did not expect that he
would turn in front of him as the accused had the green light.
[101] Additionally, the accused did engage the brakes of his Audi as he entered the
intersection which I infer is more consistent with attention, rather than, inattention to the
[102] I find the accused had the right of way as required by s. 174 of the Motor Vehicle
Act, I do not find that there is any sufficient evidence to establish that Dr. Hui signalled
to make the left turn as required by s. 174 of the Motor Vehicle Act.
[103] The Crown cited several cases in which courts found that excessive speed alone
was sufficient to establish the mens rea of dangerous driving. In R. v. Malkowski, 2014
ONCJ 192, the accused was driving at 152 km/h on a regional road leading into a town
that had a speed limit of 50 km/h, killing a 14-year-old girl. The accused was found
[104] Several factors distinguish Malkowski from the case at bar. It was a Saturday, but
also it was St. Patrick's Day weekend and March break. People were "out and about"
because of the nice weather. The Airport Road in which the accused had been driving
was a two-lane North-South Road with gravel shoulders on both sides. It was dark. It
occasions it has been followed, the circumstances comprise more than the excessive
the wrong lane and cutting corners in R. v. Huynh, 2016 ABPC 79.
[106] In ft v. Ally, 2017 ONCA 67, the appellant was travelling through a residential
area at a high rate of speed at night. Two witnesses testified that the appellant
appeared to be racing with another vehicle. The Crown argued that in the
R. v. Chung Page 24
circumstances, the appellant's speed, particularly combined with racing, established the
offence of dangerous driving. Again, the facts differ from the case at bar.
[107] ft v. St Pierre, 2005 BCSC 1899 is also a pre-Beaffy case. However, it is useful
as it establishes that generally, where speeding is involved, there are other factors that
[21] ... Generally where speeding is involved, there are other factors that
combine with it to amount to dangerous driving, such as failure to maintain
a proper lookout for other cars on the road, as in ft v. Rai, [1993] BCJ No.
2376 (C.A.); missing traffic control signs or devices, as in ft v. R.D.V.,
[1995] BCJ No. 759 (C.A.) and ft v. Newman, [1998] BCJ No. 1414
(C.A.); permitting distractions to take one's attention from the road, as in
ft v. Carlson, [1993] BCJ No. 3066 (C.A.); speeding in a car with which
one is not familiar or which is not in good mechanical condition, as in R v.
Quesnel, [1996] BCJ No. 1137 (C.A.); or speeding at night or in difficult
driving conditions, as in ft v. Reed, [1997] BCJ No. 2821 (S.C.) and ft v.
Topping, [1993] BCJ No. 2517 (C.A.).
[108] In this case, the evidence establishes that 41st Ave. at Oak Street in Vancouver is
a major intersection. The collision occurred shortly before 9 AM on a Saturday. The
residential and small businesses. Traffic was light in the area. There were also several
[109] The posted speed limit is 50 km/h. The Audi is a powerful motor vehicle. This
would have been known to the accused. The Audi accelerated over a short distance
between 42nd Ave. and 41st Ave. to almost three times the posted speed limit. At the
time of impact with the Suzuki the Audi was travelling at 119 km/h.
R. v. Chung Page 25
[110] I find that the excessive speed of the Audi, taking into account all of the
surrounding circumstances, objectively establishes the actus reus for dangerous driving
[111] The accused elected to call no evidence in his defence. He did not provide an
explanation for his conduct. I do not find that the absence of any explanation for the
collision from the accused can make the case for the Crown. The evidence in this case
[112] The mens rea may be proven based on inferences from conduct, though proof of
the actus reus of dangerous driving will not be sufficient on its own to prove the mens
rea. The question is whether the accused's failure to foresee or avoid the risk
constitutes a marked departure from the requisite standard of care that a reasonable
[113] There is essentially no evidence in relation to the accused's driving conduct prior
to the collision that would be described as a marked departure. He was travelling at the
speed limit before 49th Ave. until 42nd Ave. He did not run any red or yellow traffic
control lights. He did not run any stop signs. He did not swerve into oncoming lanes. It
was daylight and traffic was light. I have found that whether the road was wet or damp
to be inconsequential. Visibility was good. The roadway along Oak Street was wide and
[114] I have found that the evidence does establish that the accused engaged the
brakes of the Audi at the time it entered the intersection. I infer from that conduct that
the accused saw Dr. Hui's Suzuki commencing its turn eastbound onto 41st Ave.
[115] In addition, the accused spontaneously expressed to Mr. Katarama after the
collision, "That was a green light." I have inferred from that statement that the accused
saw Dr. Hui's Suzuki, but did not expect that he would turn in front of him as the
[116] The remarks of the Prince Edward Island Court of Appeal in ft v. Adams, 2012
PECA 15, at para. 65, are apposite to this case:
[117] Critically, I find that the excessive speed was momentary - mere seconds in
duration. As Doherty J.A. remarked in ft v. Willock, 2006 CanLII 20679, at para. 31
(ONCA):
[118] Additionally, this is not a case where the evidence would support a finding that
the accused sustained his acceleration over an established distance which would
(F) CONCLUSION
[119] In this case there were fatal and tragic consequences arising from the accused's
standard of a reasonably prudent driver: ft v. Bagri, 2016 BCCA 272, at para. 31.