A high court majority said a BC trial judge’s mens rea analysis in the case was flawed
The Supreme Court of Canada has ordered a new trial for a driver whose car killed a child and injured the child’s father when he ran a red light in downtown Vancouver, finding that a trial judge conducted a flawed analysis when acquitting the driver.
Writing for a majority of the high court’s justices, SCC Justice Michelle O’Bonsawin said Friday’s ruling in R. v. Moshfeghi Zadeh clarifies when a driver’s lack of attention to the road markedly departs from the standard of care a reasonable person would have exercised in the same circumstances.
This issue is key to determining whether a driver’s conduct has satisfied the mens rea requirement for dangerous driving offences, O’Bonsawin wrote. A driver must meet this requirement, which concerns their mental state, to be convicted of these offences.
Justice Suzanne Côté dissented, arguing that the high court should uphold the driver’s acquittals. Chief Justice Richard Wager and Justices Andromache Karakatsanis and Nicholas Kasirer joined Côté.
The car accident took place in July 2021, when Moshfeghi Zadeh was driving his SUV in downtown Vancouver and ran a red light.
Beyond the red light, several other cues could have informed Zadeh to stop at the intersection. Pedestrians were crossing the street, and another car next to Zadeh had slowed down and came to a stop before the red light. However, Zadeh did not attempt to stop his car and was struck by another car when he entered the intersection.
The impact caused his SUV to flip onto the sidewalk, where it struck and killed an 18-month-old child and seriously injured her father. Zadeh was charged with dangerous driving causing death and dangerous driving causing bodily harm.
At trial, the Provincial Court of British Columbia acquitted Zadeh. The trial judge said that to establish mens rea for the dangerous driving offences, it is first necessary to assess whether a reasonable person would have foreseen a driving-related risk and taken steps to avoid it. If the answer is yes, then the court must determine whether the driver’s failure to foresee the risk and take the steps to avoid it involved a “marked departure” from the standard of care that a reasonable person could be expected to abide by in the same situation.
The trial judge also said that “a momentary lapse of judgment without more cannot establish the actus reus and mens rea of the offence of dangerous driving.” The trial judge made this finding based on former SCC Chief Justice Beverley McLachlin’s concurring minority reasons in a 2008 case called R. v. Beatty.
However, these reasons were not endorsed by the majority of the high court in Beatty and are not legally binding.
The trial judge concluded that Zadeh’s conduct was not a marked departure from the standard of care that a reasonable person would have observed in the same situation, and therefore did not satisfy the mens rea requirement for the driving offences. Zadeh had not been driving erratically and was within the speed limit, the trial judge noted, adding he likely did not see the red light due to a momentary lapse of attention lasting between three and five seconds.
The Crown appealed the ruling, arguing that the trial judge’s analysis was flawed because it cited McLachlin’s reasons even though they are not legally binding.
The BC Court of Appeal agreed that the trial judge had misstated the law when she said that a momentary lapse of attention is never sufficient to find a driver guilty of dangerous driving. However, the appellate court ultimately concluded that the trial judge’s ruling as a whole was not tainted by that error, and upheld the acquittals.
The SCC majority disagreed.
“The trial judge’s reasoning suggests, in effect, that whenever it takes less than five seconds to travel between two traffic lights at the speed limit and the driver otherwise drives normally but fails to stop at the second traffic light, criminal responsibility for dangerous driving is not possible,” O’Bonsawin wrote.
“This is not an application of our law, but a rigid analysis focused on the momentariness of the inattention to the exclusion of the surrounding circumstances that could make even a moment of inattention highly dangerous.”
O’Bonsawin explained that after she wrongly adopted the “without more” language from McLachlin’s reasons in Beatty, the trial judge proceeded to analyze case law through that lens, asking whether the lack of attention in each case was merely a momentary lapse or a marked departure from the standard of care. This led the trial judge to focus too heavily on how long Zadeh’s attention had lapsed.
“This undue focus on whether the inattention was momentary had a material bearing on the acquittals,” O’Bonsawin said. “Had the correct legal standard been applied, other relevant circumstances, such as the busy downtown context and the fact that the stale red light had been visible long before the period of inattention identified by the trial judge, militated in the Crown’s favour.”
The justice added that under a proper analysis of whether Zadeh’s conduct met the mens rea requirement for the driving offences, “the period of inattention is a factor, not the focus.”
In the dissent, Côté agreed with the BC Court of Appeal’s finding that while the trial judge should not have relied on McLachlin’s reasons, the error did not impact the accuracy of her overall judgment.
A spokesperson for the BC Attorney General declined to comment on Friday’s ruling, due to limited resources as the province transitions to a new government following last week’s provincial election.
Counsel for Zadeh did not immediately respond to a request for comment.
