Case information

Criminal law — Offences — Elements of offence — Dangerous driving causing death — Dangerous driving causing bodily harm — Whether modified objective mens rea test for dangerous driving was applied correctly — Criminal Code, ss. 320.13(2), (3).

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(PUBLICATION BAN IN CASE)

On a summer weekday in downtown Vancouver, at 6:02:20 p.m., Mr. Zadeh drove his vehicle into the intersection of Smithe Street and Hornby Street on a red light. His vehicle was struck by another vehicle, flipped and landed on a sidewalk. His vehicle struck a man who was carrying his 18-month old daughter. The man was severely injured and his daughter was killed instantly. Mr. Zadeh was charged with dangerous driving causing bodily harm and dangerous driving causing death. Mr. Zadeh conceded at trial that he drove into the intersection in a manner that was dangerous to the public. The key issue at trial was whether the Crown had proven the requisite mens rea that Mr. Zadeh’s driving constituted a marked departure from the standard of care expected of a reasonable person in the circumstances. The trial judge concluded that Mr. Zadeh suffered a momentary lapse of attention of three seconds or up to five seconds, there was no evidence of a prior pattern of inattentiveness, and his conduct represented a departure from the standard of care expected of a reasonable person in the circumstances but not a marked departure. The trial judge acquitted Mr. Zadeh on both charges. The Court of Appeal unanimously held that, in her reasons for judgment, the trial judge erred by stating that a momentary lapse in attention cannot satisfy the essential elements of the offence of dangerous driving. The majority held that the error did not have a material bearing on the outcome of the trial and dismissed an appeal from the acquittals. Willcock J.A., in dissent, held that the error had a material bearing on the trial judge’s assessment of the evidence and the outcome of the trial. Willcock J.A. held the appeal should be allowed, the acquittals should be set aside, and a new trial should be ordered.