OTTAWA - A reasonable person should foresee the risk of driving almost three times the speed limit towards a major city intersection, the Supreme Court of Canada says in upholding a man's conviction.
The 4-1 decision came Friday in the case of Ken Chung, whose silver Audi hit another car in Vancouver in November 2015, killing the driver.
Chung, who was driving at 140-kilometres-an-hour in a 50-kilometre-an-hour zone, was acquitted at trial of dangerous driving causing death.
Over the span of a block, Chung had moved in to the curbside lane, passed at least one car and accelerated quickly before entering the intersection. The trial judge found Chung was neither inattentive nor driving dangerously prior to this one-block span.
The judge ruled Chung's speeding was only momentary and therefore amounted to a lapse of judgment rather than a significant departure from the standard of a reasonably prudent driver.
British Columbia's appeal court overturned the decision and entered a conviction, prompting Chung to take his case to the Supreme Court.
In its decision Friday, the high court said the trial judge's fixation on the momentary nature of the speeding was an error of law.
In writing for the majority, Justice Sheilah Martin said Chung's actions were not comparable to momentary mistakes that might be made by any reasonable driver, such as a mistimed turn on to a highway or the sudden loss of awareness or control.
"A reasonable person would have foreseen the immediate risk of reaching a speed of almost three times the speed limit while accelerating towards a major city intersection," she wrote. "Mr. Chung’s conduct in these circumstances is a marked departure from the norm."
Driving is an inherently risky activity that is made all the more risky "the faster we drive, the harder we accelerate, and the more aggressively we navigate traffic," she said. "Although even careful driving can result in tragic consequences, some conduct is so dangerous that it deserves criminal sanctions."
However, Martin cautioned against adopting "hard and fast rules" on actions.
It is conceivable that in some cases even grossly excessive speed may not be a notable departure from the standard of care, she wrote.
"Only when there has been an active engagement with the full picture of what occurred can the trial judge determine whether the accused's conduct was a marked departure from the conduct of a reasonable and prudent driver."
