Momentary lapses and mens rea

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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. 

Zadeh was charged with dangerous driving causing death and dangerous driving causing bodily harm, but was acquitted on both charges at trial. The provincial court judge concluded he likely experienced a brief lapse in attention for a few seconds before entering the intersection, which she said, on its own, was insufficient to meet the mens rea test for a conviction.

The test for a conviction is whether the driver had “markedly departed from the standard of care that a reasonable driver would have exhibited in the same circumstances.” Citing former Chief Justice Beverley McLachlin’s concurring reasons in  R. v. Beatty, the trial judge said that “a momentary lapse of judgment without more cannot establish the actus reus and mens rea of the offence of dangerous driving.”

The British Columbia Court of Appeal found the trial judge had misstated the law, but nevertheless upheld the acquittal. 

The Supreme Court of Canada decision was a 5-4 split, but the majority overturned the acquittal and ordered a new trial.

“The trial judge’s reasons were focused on whether the lapse in judgment was momentary, to the exclusion of other relevant factors,” Justice Michelle O’Bonsawin wrote for the majority.

“The undue focus on the brevity of the respondent’s inattention eclipsed the real question that must be asked when considering the mens rea for dangerous driving offences: whether, in these circumstances, a reasonable driver would have foreseen the risk of harm created by a momentary lapse of attention and taken steps to avoid it, and whether the respondent’s failure to do so amounted to a marked departure from that standard of care.”

She said the undue focus on the momentary inattention meant other relevant circumstances, such as the busy downtown context and the fact the red light had been visible long before the period of inattention identified by the judge, were in the Crown’s favour. 

The Crown had called for a conviction, but the majority felt there wasn’t enough of a record to base this on, especially because the dissent at the Court of Appeal had also called for a new trial.

The dissenting judges disagreed that the trial judge had focused solely on the length of inattention.

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.”

She says it’s like walking a tightrope when trying to distinguish between the mental fault in dangerous driving when there is so much overlap with the actual wrongful act itself.

Brad Alford, an associate with Friedman Mansour LLP in Ottawa, suggests the majority implies that trial judges are perhaps becoming complacent by writing off the requisite mental intent for dangerous driving as momentary inattention. By overturning this decision, the Court is signalling that mere inattention is not going to be as “untouchable” as it used to be.

“Judges are going to have to be much more careful about acquitting on dangerous driving cases due to this momentary period of inattention.”

In previous cases, there was a question of what level of moral blameworthiness was required to engage the Criminal Code. While that discussion was not a focal point of this case, he says there does seem to be a signal that they want to expand criminal liability without saying so outright.

The majority’s assertion that a reasonable driver would be unlikely to allow their attention to wander for the period of time necessary to enter the intersection at full speed also gave him pause.

“As a practitioner, I look at that and think that in these other cases where there is this brief moment of inattention, where courts have found that is not sufficient to ground the necessary mens rea, it’s not like those individuals consciously thought about it and let their mind wander,” Alford says. 

“Even with the best drivers, it’s not a conscious decision to be inattentive. It’s a consequence of our fallibility as human beings.”

He has questions about whether reasoning backwards is creeping in, which risks diluting the high criminal standard courts have set.

Practitioners will have to be very careful how they frame future arguments about a moment of inattention. They’ll have to go beyond simply saying their client didn’t intend to do this and that their driving was otherwise fine.

“These close-call cases might end up getting litigated more often,” Alford says.