R. v. Jiang (X.H.C.), 2007 BCCA 270

• Judge: Finch, C.J.B.C., Levine and Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 08, 2007
• Jurisdiction: British Columbia
• Citations: 2007 BCCA 270;(2007), 242 B.C.A.C. 196 (CA)

R. v. Jiang (X.H.C.) (2007), 242 B.C.A.C. 196 (CA);

    400 W.A.C. 196

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. MY.028

Regina (appellant) v. Xiao Hong Catherine Jiang (respondent)

(CA33575; 2007 BCCA 270)

Indexed As: R. v. Jiang (X.H.C.)

British Columbia Court of Appeal

Finch, C.J.B.C., Levine and Smith, JJ.A.

May 8, 2007.

Summary:

The accused fell asleep at the wheel of her vehicle while driving her family home. She missed a turn, jumped a curb, went through a parking lot and struck two children, killing one and injuring the other. The accused was charged with dangerous driving causing death and dangerous driving causing bodily harm.

The British Columbia Provincial Court acquitted the accused on both counts on the basis that her conduct in the few seconds before she fell asleep did not constitute dangerous driving under the modified objective test set out in R. v. Hundal (S.C.C.). The Crown appealed.

The British Columbia Court of Appeal dismissed the appeal. The trial judge misapplied the Hundal test to the facts. However, had the test been applied correctly, the result would have been the same.

Criminal Law - Topic 1391

Motor vehicles - Dangerous driving - What constitutes - The accused fell asleep at the wheel of her vehicle while driving her family home in the early evening - She missed a turn, jumped a curb, went through a parking lot and struck two children, killing one and injuring the other - The British Columbia Court of Appeal affirmed her acquittal on charges of dangerous driving causing death and dangerous driving causing bodily harm - The trial judge accepted medical evidence that the accused suffered from a previously undiagnosed sleep disorder and that the accused suddenly and unexpectedly fell asleep as a result of an "intrusive sleep episode" - The court stated that "a sleeping driver is not driving of his or her own volition and acts committed while in that automatic state of mind cannot form the actus reus of dangerous driving. ... The actus reus of the offence may consist not of driving while in a state of sleep, but of embarking on driving or in continuing to drive in the face of a real risk of falling asleep" - Since the accused did not know or ought to have known that she was at risk of falling asleep, she could not be guilty of dangerous driving.

Criminal Law - Topic 1393

Motor vehicles - Dangerous driving - Intention or mens rea - [See Criminal Law - Topic 1391 ].

Cases Noticed:

R. v. Hundal (S.), [1993] 1 S.C.R. 867; 149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241, refd to. [para. 1].

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, refd to. [para. 12].

Bratty v. Northern Ireland (Attorney General), [1961] 3 All E.R. 523; [1963] A.C. 386, refd to. [para. 13].

R. v. Parks, [1992] 2 S.C.R. 871; 140 N.R. 161; 55 O.A.C. 241; 75 C.C.C.(3d) 287, refd to. [para. 14].

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81; 93 C.C.C.(3d) 21, refd to. [para. 15].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1; 134 C.C.C.(3d) 353, refd to. [para. 15].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321; 83 C.C.C.(3d) 386, refd to. [para. 17].

R. v. Jiminez (1992), 173 C.L.R. 572 (Aust. H.C.), refd to. [para. 19].

R. v. Beatty (J.R.), [2005] B.C.T.C. 751; 2005 BCSC 751, refd to. [para. 29].

R. v. Beatty (J.R.) (2006), 225 B.C.A.C. 154; 371 W.A.C. 154; 2006 BCCA 229, refd to. [para. 38].

R. v. Jackson (P.E.) (1994), 52 B.C.A.C. 219; 86 W.A.C. 219; 7 M.V.R.(3d) 195 (C.A.), dist. [para. 45].

R. v. Edwards (K.) (1996), 187 A.R. 305; 127 W.A.C. 305; 22 M.V.R.(3d) 150 (C.A.), dist. [para. 45].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235; 28 C.C.C.(2d) 81, refd to. [para. 60].

Authors and Works Noticed:

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), p. 677 [para. 18].

Counsel:

F. Tischler, for the appellant;

M. Jette, for the respondent.

This appeal was heard on November 30, 2006, at Vancouver, B.C., before Finch, C.J.B.C., Levine and Smith, JJ.A., of the British Columbia Court of Appeal.

On May 8, 2007, Smith, J.A., delivered the following judgment for the Court of Appeal.