A recent case from the highest court in British Columbia serves to remind drivers of automobiles that bad (albeit sober) decisions behind the wheel of an automobile can be viewed by the courts as criminal behavior. Mr. Song, an inexperienced driver from Richmond, found this out the hard way.

On October 13, 2006, Mr. Song got into a vehicle he borrowed from a friend and noticed a thin layer of condensation on the windshield. He thought he could see well enough. He was tragically mistaken.

Instead of taking the time to ensure his windshield was clear, Mr. Song assumed it would clear up as he traveled. As he proceeded through Richmond, his visibility declined. The evidence indicated he had ample opportunity to pull over and rectify the problem. He decided to continue, relying on an explanation which, upon review the judgment, makes very little sense. In effect, Mr. Song noticed a landscape truck stopped in the inside lane of Granville Avenue in Richmond, the lane in which he was travelling, and instead of stopping, he decided, for reasons which are not clear, to go around that truck. Once he had done so and considered his path clear (naturally, it never truly was), he slowed down to a coasting speed. He was reluctant to stop suddenly for fear of being rear-ended. It doesn’t appear from the judgment, but one infers that his view out his rear window was equally compromised, and his fear of being rear-ended may have been unfounded.

He continued to coast along with his windshield problem worsening and eventually his vehicle found its way into the designated bicycle lane. At the point he entered the bicycle lane, he was, according to the trial Judge, “unable to see two adults on full size bicycles, riding virtually side by side in the bike lane in front of him.” Mr. Song rear-ended and killed one of the cyclists. Mr. Song was charged with operating his vehicle in a manner dangerous to the public in violation of the Criminal Code. After considering the list of things Mr. Song could have done right, and chose not to, the trial Judge detailed everything he did wrong, relying on the fact that it was “a conscious choice on his part to continue to drive.” Her Honor was obviously struck by the fact that Mr. Song was navigating by looking out the side window onto the road lane markings. She convicted him of dangerous driving.

In his appeal of his conviction, Mr. Song argued that the trial Judge had misapprehended the evidence, in particular, the evidence as to the extent of Mr. Song’s inability to see out of his windshield. The Court of Appeal rejected that submission and stated: “Mr. Song’s dangerous driving did not consist of him leaving his home with a slightly fogged windshield – it consisted of him continuing to drive as his ability to see through the window decreased to the point where he could see nothing.”

Mr. Song’s counsel argued that the trial Judge erred in comparing Mr. Song’s situation to that described in a serious previous case in which a driver had deliberately created a terrible risk to others so that he would not be detained for a few seconds on his way home. The Court of Appeal decided that this was exactly what Mr. Song had done by failing to take the time to make a proper decision.

When driving falls so far below the standard of care that a reasonable person in society is expected to observe, it becomes morally repugnant. The Court of Appeal clearly felt Mr. Song’s omissions that day were not simply negligent but that his actual state of mind was criminal and deserved to be denounced.

The criminal law relating to driving recognizes that driving carries a unique potential for harm, which can be caused by a marked departure from the community standard. Sadly, many drivers have become complacent about the risks of driving. Many never awaken from this slumber until disaster strikes, and they face the full penalty of the law.

David Hay is a litigation lawyer and partner at Richards Buell Sutton LLP. He has a special interest in bike injury law.