Facing a dangerous driving charge can be an incredibly stressful and complex experience. When an incident results in tragic consequences, understanding the difference between civil and criminal liability is crucial. A recent case, R. v. Moshfeghi Zadeh, 2025 BCCA 293, from the BC Court of Appeal, helps to answer some questions about the degree to which driving must depart from the norm to be dangerous driving.
In this case, the Crown’s appeal was dismissed, and Mr. Moshfeghi Zadeh’s acquittal on charges of dangerous driving causing death and bodily harm was upheld.
Mr. Moshfeghi Zadeh was involved in a collision where he drove into a busy intersection on a red light, striking another vehicle. His SUV then flipped onto the sidewalk, seriously injuring a pedestrian and tragically killing his infant daughter.
At trial, there was no dispute that his driving was dangerous to the public – this is known as the actus reus (the ‘guilty act’). The key legal issue was whether he had the requisite mens rea (the ‘guilty mind’ or level of fault). For dangerous driving, the Crown needed to prove that Mr. Moshfeghi Zadeh’s driving was a marked departure from the standard expected of a reasonable person in the circumstances.
This is a critical distinction: a departure might be civil negligence, like careless driving, but a marked departure is required for a criminal conviction.
The trial judge found that Mr. Moshfeghi Zadeh’s driving before the incident was unremarkable. He was travelling around the speed limit, showed no erratic driving, impairment, or distraction from his phone or other activities. His conduct was characterized as a momentary lapse in attention, lasting between three and five seconds, just before he entered the red-light intersection. Thus, it did not amount to a marked departure required for criminal liability. It was considered more akin to civil negligence.
The Crown appealed, arguing the trial judge made legal errors. However, the Court of Appeal found these arguments to be without merit.
Was there a Misstatement of Law about Momentary Lapses of Attention?
The Crown argued the trial judge incorrectly said a momentary lapse of judgment without more cannot establish the mens rea of dangerous driving. Justice Riley agreed that, in isolation, this was an incorrect legal statement.
However, the Appeal Court found this error was isolated and immaterial. The trial judge’s written reasons, when read as a whole, demonstrated that she understood and applied the correct legal test. She consistently asked whether the conduct was a marked departure and appreciated that a momentary lapse can, in certain circumstances, rise to that level. Therefore, this misstatement didn’t actually change the outcome of the trial.
Did the Trial Judge Fail to Apply the Correct Legal Test for Mens Rea?
The Crown suggested the trial judge focused too much on the driver’s subjective state of mind instead of an objective assessment.
Justice Riley clarified that evidence of an accused’s actual state of mind is absolutely relevant when making the objective assessment under the modified objective test for dangerous driving. The trial judge correctly outlined and applied the two-step inquiry required by law, which involves considering the foreseeability of risk and whether the failure to avoid it was a marked departure.
Did the Trial Judge Discount Important Evidence?
The Crown claimed the trial judge ignored crucial visual cues like four red lights visible for 20 seconds, pedestrians in the crosswalk, and an adjacent vehicle slowing down in a busy downtown area.
Justice Riley found this unconvincing. The trial judge’s reasons showed she was fully cognizant of these cues and referred to them in her assessment. The Crown’s real issue was how the judge weighed this evidence. A court of appeal’s role is not to re-weigh evidence or substitute its own factual findings; it can only intervene if there’s an extricable legal error, which wasn’t found here.
Even in cases with tragic outcomes and seemingly clear dangerous actions, the prosecution must prove a marked departure from the standard of a reasonably prudent driver, not merely ordinary negligence. While the circumstances of this case were undeniably serious, the majority concluded that the trial judge understood and applied the correct legal principles, and her factual findings were not tainted by reviewable legal error.
If you are facing dangerous driving charges, understanding these nuances can be the difference between being found guilty and being not guilty. Criminal law sets a very specific standard for what constitutes a criminal act, and navigating these complexities requires expert legal advice.
