People charged with dangerous driving often ask a version of the same question. I made one mistake. I was not driving like that for long. Does that really count?
The Supreme Court of Canada answered that question in R. v. Chung, and the answer is mostly no. Understanding that answer is important if you are charged with dangerous driving, particularly in a case involving a collision.
What happened in Chung
Ken Chung was driving through Vancouver in 2015. Moments before he reached a major intersection at Oak Street and West 41st Avenue, his Audi accelerated to roughly 140 kilometres per hour in a 50 zone. He entered the intersection at that speed and struck a vehicle making a left turn. The driver of the other vehicle, Dr. Alphonsus Hui, was killed.
At trial, the judge acquitted Chung of dangerous driving causing death. The judge accepted that the extreme speeding was brief, only a few seconds, and reasoned that a momentary lapse did not meet the required standard for criminal fault. The British Columbia Court of Appeal overturned that acquittal and entered a conviction. The Supreme Court of Canada upheld the conviction.
Why the fixation on brevity was an error
Justice Sheilah Martin, writing for the 4-1 majority, held that the trial judge had focused too narrowly on how long the dangerous driving lasted. The test for dangerous driving is not about duration. It is about whether the manner of driving was a marked departure from what a reasonable driver would have done in the same circumstances.
Reaching nearly three times the speed limit while accelerating toward a busy intersection is not comparable to a genuinely momentary mistake, Justice Martin explained, such as a mistimed turn or a brief loss of awareness. It is a deliberate, sustained-enough choice that a reasonable driver would foresee would create immediate risk. The shortness of the episode did not shrink it into the category of ordinary driving error.
What this means for dangerous driving cases today
Dangerous driving cases are not decided by how long the bad driving lasted. They are decided by what the driving was, what the conditions were, and what a reasonable driver would have foreseen in those conditions. Arguments like “it was just a few seconds,” “I have never done this before,” or “I am normally a safe driver,” rarely get the charge reduced or dismissed on their own.
What does work is careful analysis of what actually happened. Was the driving truly a marked departure, or could it be characterized as ordinary negligence, which is not a crime? Were there factors the Crown is overlooking, such as road conditions, the behaviour of other drivers, a mechanical malfunction, or an emergency? Was the accused properly identified as the driver? Was the Crown’s evidence of speed, manner, and location reliable, or was it reconstructed after the fact from incomplete sources?
The specific elements the Crown must prove
For a dangerous operation conviction under section 320.13, the Crown must prove three things beyond a reasonable doubt.
First, that the accused operated a motor vehicle. This sounds trivial but is not always. Identification of the driver, especially after a collision where multiple people may have exited the vehicle, is a recurrent issue.
Second, that the manner of operation was dangerous to the public. This is assessed objectively, considering all the circumstances, including the nature, condition, and use of the place, and the amount of traffic present or that could reasonably be expected.
Third, that the manner of driving represented a marked departure from the standard of care a reasonable person would have exercised in the same circumstances. This is the heart of the offence. Ordinary carelessness is not enough. The conduct must rise to a level that a reasonable person in the same position would have seen was creating serious risk.
Where dangerous driving cases actually get fought
In practice, dangerous driving cases are fought in a handful of specific areas.
Accident reconstruction. Crown collision reconstructionists produce reports that estimate speeds, angles, and braking behaviour. These reports are often treated by untrained readers as objective fact, but they contain assumptions and margins of error that can be probed. Defence experts can be called to challenge the methodology and the conclusions.
Vehicle data recorders. Most modern vehicles record speed, throttle, and brake data. These records sometimes contradict the Crown’s reconstruction, and sometimes support it. Either way, they have to be obtained and reviewed.
Eyewitness reliability. Witness estimates of speed and manner of driving are notoriously unreliable. Cross-examination of civilian witnesses often produces significant inconsistencies with earlier statements.
Video evidence. Traffic cameras, dashcams from other vehicles, and surveillance footage from nearby businesses can change the picture completely. Securing this evidence early is crucial. Many sources overwrite footage within days or weeks.
Alternative explanations. Sudden mechanical failure, medical emergency, or reaction to a third party’s conduct can all displace the “marked departure” conclusion. These require careful evidentiary development, not just assertion.
Why a lawyer is not optional on dangerous driving charges
Dangerous driving causing death or bodily harm is among the most serious charges a driver can face in Canada. Maximum penalties run up to 14 years for causing death. Jail on conviction is a realistic possibility even for first-time offenders. Driving prohibitions are mandatory. Insurance consequences through ICBC are severe. Immigration consequences for non-citizens can be life-altering.
The evidence in these cases is technical. Expert testimony is routine. Disclosure packages run to hundreds of pages. The legal framework is specific and non-obvious. A self-represented accused facing this kind of charge is at a structural disadvantage that no amount of online research can overcome.
What a lawyer specifically does on a dangerous driving case
Here is what a defence lawyer actually does on a dangerous driving file.
A lawyer secures time-sensitive evidence. Traffic camera footage, nearby business surveillance, and vehicle data all need to be preserved quickly. A preservation letter from a lawyer carries weight that an individual request often does not.
A lawyer retains appropriate experts. Accident reconstruction, mechanical experts, human factors specialists, and medical experts all have their place depending on the case. Selecting the right expert for the right issue requires experience.
A lawyer tests the Crown’s case rigorously. This means reading every page of disclosure, attending witness interviews where possible, cross-examining witnesses at preliminary inquiry where appropriate, and bringing Charter applications where the evidence supports them.
A lawyer evaluates resolution options honestly. Not every dangerous driving case is winnable at trial. Sometimes the best outcome is a carefully negotiated plea to a lesser included offence, or a plea with joint submissions on sentence that avoid jail. Knowing when to fight and when to deal is one of the most valuable things experienced counsel provides.
Frequently asked questions
- I was speeding but I did not hit anyone. Can I still be charged with dangerous driving?
Yes. Dangerous driving does not require a collision. It requires a manner of driving that was dangerous to the public in the circumstances. Excessive speed in a busy area can support the charge even without contact.
- The other driver caused the accident. Why am I the one being charged?
The conduct of other drivers is a relevant factor but does not automatically excuse your own driving. If your driving met the marked departure standard, you can still be convicted even if someone else was also at fault. That said, the conduct of others is often a powerful mitigating factor and sometimes a full defence, depending on the facts.
- Is dangerous driving the same as careless driving?
No. Careless driving or driving without due care and attention is a Motor Vehicle Act offence, not a Criminal Code offence. It is significantly less serious and does not create a criminal record. Dangerous driving is a Criminal Code offence with much more serious consequences. Resolving a dangerous driving charge to a Motor Vehicle Act offence is a meaningful victory when it can be achieved.
- I was distracted by my phone. Does that make it worse?
It can. Distraction by phone, by passengers, or by other activities is often treated as evidence of a marked departure, particularly when combined with other features like speed or poor conditions. Whether and how to address distraction evidence is a strategic decision that a lawyer will make with you.
- My insurance might cover my legal fees. Is that worth checking?
Possibly. Some auto insurance policies include legal defence coverage for driving-related charges, though coverage for criminal charges is less common than for civil matters. Review your policy and ask your lawyer about it early.
- How long does a dangerous driving case typically take?
Anywhere from several months to two years or more, depending on complexity, whether a preliminary inquiry is held, whether the trial is in provincial or superior court, and how many expert witnesses are involved. This is also why Jordan considerations, discussed in another post on this site, are always in play.
