A majority of the Supreme Court of Canada has held that a momentary lapse of judgment can indeed indicate criminal liability in a dangerous driving case.
In the case at hand, Seyed Ramin Moshfeghi Zadeh was driving in downtown Vancouver at 6 p.m. on a summer evening when he ran a red light in a busy intersection and was struck by another vehicle. His vehicle flipped over and struck two pedestrians, severely injuring a father and killing his 18-month-old daughter.
Kyla Lee of Acumen Law in Vancouver, who specializes in driving offences, found the decision disappointing, particularly because it wasn’t helpful or instructive for dangerous driving cases going forward.
“I think the majority overly focused on a very small part of the judge’s reasons, and overlooked the fact—as the dissent said—that there was extensive analysis of all of the circumstances of the dangerous driving. Ultimately, (the trial judge) concluded that it was a momentary lapse that didn’t fall within the definition of a marked departure.”
She says the decision restated what was said in previous cases and didn’t advance the law in any particular way.
A past chair of the CBA’s criminal justice section, Lee says very careful attention needs to be paid to that mens rea component, especially on this offence.
“There is so much overlap between the actus reus and the mens rea that it can be very confusing for trial judges, for lawyers, for anyone trying to understand the law where the dangerousness of the driving in this case was admitted in terms of the actus reus.”
