Tragic Intersection: The Thin Line Between Mistake and Crime
When does a driving mistake become a crime? The latest Court of Appeal ruling tackles this haunting question through the case of a driver who missed a red light, causing a collision that killed an 18-month-old child and seriously injured the father. Despite the devastating outcome, the court upheld the driver’s acquittal on dangerous driving charges, drawing a careful distinction between tragedy and criminality.
The case illuminates the legal threshold for dangerous driving in Canada. Unlike provincial traffic violations, criminal dangerous driving requires a “marked departure from the standard of care of a reasonably prudent driver.” This distinction carries enormous consequences in BC’s no-fault insurance system, where criminal convictions can leave drivers personally liable for millions in damages with no insurance coverage. The ruling affirms that momentary lapses in attention, while potentially catastrophic, don’t automatically cross into criminal territory.
Also examined was a fascinating estate case spanning nearly four decades. When a terminally ill woman created her will in 1984, she couldn’t have anticipated her modest $50,000 home would be worth $1.2 million by the time her partner died 37 years later. The court had to determine whether her children should receive half the original value or half the current value—ultimately ruling that the original value prevailed. Finally, we explored how “unexplained wealth orders” in civil forfeiture cases can force individuals to account for suspicious assets like million-dollar properties and cash hoards that don’t match their declared income.
These cases remind us how legal decisions shape lives in profound ways, whether determining criminal liability for split-second errors, interpreting decades-old intentions, or requiring explanations for suspiciously acquired wealth. Subscribe to our podcast for more insightful legal analysis that makes complex Canadian law accessible and meaningful.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking Aug 28, 2025
Adam Stirling [00:00:00] Time for a regular segment with Barrister and Solicitor with Mulligan Defence Lawyers joined by Michael Mulligan. Afternoon Michael, how we doing?
Michael Mulligan [00:00:07] Hey, good afternoon. I’m doing great. Always good to be here.
Adam Stirling [00:00:10] Interesting stories on the agenda today including a momentary lapse of attention driving into an intersection causing death and bodily harm. Is that criminal code dangerous driving?
Michael Mulligan [00:00:22] Well, that’s exactly what the Court of Appeal just had to wrestle with on an appeal by the Crown from an acquittal on that fact pattern. And the background of it is this, it’s a case out of Lower Mainland, and it involved a man driving a vehicle, and I should say it’s interesting because the accident in question was recorded from multiple angles, and so there was little doubt about what factually went on. And the issue in the case was whether the driving constituted dangerous driving under the criminal code. And just by way of background to know about that, dangerous driving in the criminal codes is a fairly serious offence.
Adam Stirling [00:01:09] Yeah.
Michael Mulligan [00:01:10] It is distinct from driving without due care and attention under the Provincial Motor vehicle act, r, and particularly in our, current circumstance in BC with no fault, it has really profound implications because if somebody is convicted of a criminal code driving offence, not only does no fault not apply and the person can be sued civilly for damages, but in addition, it also means that you’re in breach of your insurance policy. So you’re completely on your own potentially for, you know, millions of dollars in, damages or loss. And so it really has a real significant impact on what happens. Now the facts in this case, this man was driving along in his vehicle and driving in a completely unremarkable way. The judge found that he was not speeding. He wasn’t driving erratically, testing confirmed he had no alcohol or drugs in his system. His phone hadn’t gone off. They checked the phone. There’s just, he was driving in a straight line at or below the speed limit. Nothing unusual about how he was. His speed varied between 41 and 50 kilometers an hour. And they could calculate it pretty precisely because it was on video and they had data from his car. Everyone agreed. Nothing unusual there. He just drove through a red light is what happened.
Adam Stirling [00:02:28] Yeah.
Michael Mulligan [00:02:28] For reasons unknown, the judge concluded he just didn’t see the red light. And he drove through the red light, another car hit him who was coming through in a green light, causing the driver who went through the red-light vehicle, to roll over onto the sidewalk and tragically it hit a man carrying his 18-month-old. The man was very seriously injured and the 18-month-old was killed instantly. So, tragic accident. He was charged with dangerous driving. And now there was at one point a legal debate in Canada about what the mens rea, the mental requirement for the offence of dangerous driving should be, right? There was at one point a debate about whether that should require what’s referred to as adverse negligence. Like does that require somebody to say, hey, I’m about to do something dangerous. I’m going to go do a street race or something.
Adam Stirling [00:03:20] yeah.
Michael Mulligan [00:03:20] or is it something less of that? And eventually the Supreme Court of Canada concluded that it does not require what would be referred to as adverting negligence. The Crown doesn’t need to prove the person intentionally did something careless, like you know having a street race in the middle of Douglas Street or something.
Adam Stirling [00:03:39] Yeah.
Michael Mulligan [00:03:39] And so what’s applied is this modified objective standard. What’s asked of a judge is to determine whether the driving was objectively dangerous, and no doubt going through a red light is dangerous. That’s, that’s not complicated. But the issue would be, is this a marked departure from the standard of care of a reasonably prudent driver?
Adam Stirling [00:04:02] Hmm.
Michael Mulligan [00:04:03] That’s the language used.
Adam Stirling [00:04:05] Yeah.
Michael Mulligan [00:04:05] And then, in this particular case, the trial judge, having heard three days of evidence, watching all the videos, was admitted in terms of what happened, right. Concluded that this was not a marked departure from the standard of care of a reasonably prudent driver. And in acquitting the man, the judge said this, unfortunately, said, a momentary lapse of judgement without more cannot establish the actus reus and mens rea of the offence of dangerous driving. Now, that statement is not correct legally. And that’s because there is appellate authority for the proposition that a moment period lapse of judgement, you know, somebody, you know, just, if something goes wrong, you don’t see the red light, right?
Adam Stirling [00:04:45] Yeah.
Michael Mulligan [00:04:45] You, it could constitute a marked departure from the standard of care, even though there’s appellate authority for the idea that a momentary lapse of judgement wouldn’t usually result in that sort of high threshold, but it could, right, that’s really what the law amounts to. And in saying that, Court of Appeal and the Supreme Court of Canada said things that, for example, case law realizes that even the most prudent driver from time to time, might experience a momentary lack of attention or judgement and well, that could constitute a marked departure, usually it wouldn’t, but it might. And so the trial judge acquitted the driver saying, well, look, everything was fine for some unknown reason he just said, didn’t see the red light. And to acquitted him, the crown appealed the acquittal. And as the court of appeal pointed out, the circumstances in which the Crown can appeal are relatively modest and there’s acquittals aren’t lightly overturned and they point out the Crown has no right of appeal if they argue that this decision was unreasonable or that the judge should have waved the evidence up differently. The judge, the Crown, would have to show that there has to be sort of a fundamental legal error that tainted the outcome and furthermore that there be a reasonable degree of certainty that the verdict would necessarily, not necessarily have been the same had the error not occurred. So, that statement that the judge made is part of her long reasons is was not correct but the court of appeal went on to point out that when there is an appeal it’s not a matter of picking through line by line a judge’s reasons to see whether you can find that they said anything that was incorrect. Maybe the momentary lapse of judgement is not enough for an appeal, I think would be a way to put it. And so here the Court of Appeal went on to look at the whole analysis because as judges are required to do, they have to explain themselves. They don’t just make a decision.
Adam Stirling [00:06:43] Yeah.
Michael Mulligan [00:06:43] And here the court of appeal pointed out that the well that that’s particular line is wrong, right? It may be that usually the momentary lapse of judgement wouldn’t be enough It could be, but the Court of Appeal pointed out when you read all of the judges’ reasons she went on to analyze the correct cases. She went onto analyze the crack statements of the law. She did analyze it in terms of what ultimately that test is whether it’s a marked departure from the standard of care of a reasonably prudent driver. And so on a two-to-one split, the Court of Appeal dismissed the Crown’s appeal from the conviction and upheld the acquittal. But there are a few things that I thought were interesting. First of all, that sort of analysis on appeal. But it’s also important for people to know that’s how the standard is expressed. And as you can imagine, there is a wide range for discretion when sorting out, you know, is that a marked departure from the standard of care? After all, people don’t usually make a mistake and go through a red light. And it’s also a reminder for people because of course, driving is often sort of a, not an autonomic thing, but you know people are, experienced drivers are not consciously thinking of every press of the pedal and every turn of the wheel, right? People, it’s sort of an activity that sometimes people are doing in a virtually automatic reflexive way. Because they do it so frequently, like walking. You don’t think left foot right foot left foot, right foot you just walked out of the street. And so the case is also an example of just how precarious things are in driving is of course inherently dangerous, but just how even a momentary something right whatever it is, we will never know why the man didn’t see the red light? Can turn into potential criminal liability and not only a tragedy and a death, but, you know, a person could go to prison, they could be financially ruined, they can have no insurance, it could have massive implications when, and all of that really comes down to that decision a number of years ago, but well, what’s required for this concept of dangerous driving? Bearing in mind that ordinarily, criminal law is concerned with people doing things intentionally wrong. You know we don’t criminally punish people for tripping and falling into others, right? We punish people for pushing them, not falling down. But the way that’s been interpreted in terms of this modified objective test is it turns into an assessment as to whether it would be a marked departure from that standard of care. Sometimes when I’m describing that to people, and it doesn’t really fit here, but… sometimes the way I would describe that to people would be you know if it’s the kind of driving which if people saw it they would say oh my goodness this person’s going to kill someone. You know and would sort of phone into, phone the police or something about it right rather than just oh that person You know maybe they shouldn’t be drinking that super big gulp while they’re you know driving down Douglas Street or putting on their Lipstick or something.
Adam Stirling [00:09:41] Yeah.
Michael Mulligan [00:09:42] But that’s the outcome of this case at least on a two to one split and it’s also I think just cause for reflection to people about how we handle these things, not every tragedy of course is a crime. And none of that should and nor should this decision be taken to suggest that somehow what occurred here is not an absolute tragedy for the family of the and the man involved at the eighteen-month-old it absolutely is, but you know what we are all of course very fallible. You know I think many of us could appreciate how it is somebody might make a momentary mistake, sober, nothing else is wrong, they just made a mistake they didn’t see the light, turned into only a tragedy but years of litigation that eventually resulted in this so that’s the latest in the court of appeal on what is and what is not dangerous driving.
Adam Stirling [00:10:32] Michael Mulgan with Mulligan Defence Lawyers. Legally Speaking will continue right after this.
[00:10:37] COMMERCIAL.
[00:10:37] Legally speaking continues on CFAX 1070. Joined as always by Michael Mulligan with Mulligan Defence Lawyer. Michael, what’s next on our agenda?
Michael Mulligan [00:10:45] Next on the agenda is an interesting decision also out of the court of appeal just came out and it deals with Interpreting a will and how that’s supposed to work in a circumstance, which I imagine isn’t terribly uncommon these days. The background of it goes all the way back to 1984 and back in 1984 the woman who was making her will was terminally ill. She knew that she was in hospital and five days before she died, she severed the joint tenancy in the home that she owned with her common law partner, and then two days before she passed away, she created a new will. Anybody ask why? Well, the consideration, I suppose, for her back in 1984 was that she had four adult children from a prior relationship and it appeared she wanted to achieve the objective of having her current partner be able to continue to live in the homes that they purchased together. But she wanted to see eventually her half interest in it be given to her kids. And then, that concept of severing the joint tenancy is that in many cases property is owned in joint tenancies, meaning if two people own it, like a husband and wife, if one of them passes away, the other person just gets the full benefit of the property. They then own it. It doesn’t even go through a will. And so in this sort of a circumstance, the person was concerned about, well, I want my kids to get some benefit of this when eventually my partner passes away. And to achieve that, they created, or she created in her will a relatively unique provision after severing the joint tenancy, saying that her current partner shall receive the benefit of her divided half interest, right, remember she severed it.
Adam Stirling [00:12:32] yeah.
Michael Mulligan [00:12:32] In the property and that he’s permitted to use it for the rest of his life? As long as he lives there, but if he sells it, then he’s got to provide to the kids the value of her half interest minus the amount of the mortgage, or eventually when he dies, that should be the result. So that’s what it said. Now, her common law partner from back in 1984, she passed away just a few days after doing this, two days before her death.
Adam Stirling [00:13:01] mm hmm.
Michael Mulligan [00:13:02] She made the will. Now, he remarried and led a very long life, continuing to live in that very home. And he lived for another 37 years, living in the same home.
Adam Stirling [00:13:13] Wow.
Michael Mulligan [00:13:13] Paid off the mortgage, lived there with his new spouse. No longer was there any mortgage. The original clause said that the adult kids were not responsible for paying for any of the taxes, insurance, repairs, or anything else to do with the home. So he lived there for 37 years and then passed away. And then there are two possible interpretations of what the will indicated. The kids, the adult children, they’re, and I should say this, this is the thing that made this really meaningful. She could not have foreseen what would have happened to real estate prices in the lower mainland between 1984 and 2001.
Adam Stirling [00:13:48] Oh yeah.
Michael Mulligan [00:13:49] And so the home back in 1984 was worth about $50,000 and it had a $22,000 mortgage on it, right?
Adam Stirling [00:13:56] Yeah.
Michael Mulligan [00:13:57] That’s the price of a car in Vancouver now and it was valued in 2001 at $1.2 million and had no mortgage on it. So two possible ways to interpret what she had said, the kid’s argument, the adult children’s argument was, well, what she meant to do was to give her then partner a life interest in the her half of it, and they should get what amounts to $600,000 divided up amongst half of them, the half value of her home. The alternative interpretation argued by the, now the widow of this man, He lived there for 37 years, married in 1997. Her argument was, well, no, no. What they are entitled to, pursuant to how that was drafted, is they were entitled to the value of the home at the time she passed away. So one half of $50,000 minus her half of the 22,000, you know, the mortgage means that they would each receive 25% of $14,000. So the difference is, do you divide up $600,000 or $14,000? And this, first of all, went to, so it was brought to court. This provision, you can come to court to have a judge determine how the will is to be interpreted. And both the initial judge and now the court of appeal, looking at this, concluded that, of course, the woman could not have foreseen what would have happened to the real estate market, nor would she have foreseen the fact that her then partner would have lived at home for a very long life, 37 years. And even though it might now be viewed as unfair from the kid’s perspective, the language of what was said there, including for example, and the judge paid particular attention to the fact of the way the amount was to be calculated was to, be the market value less one half of the indebtedness, the indebtedness was $22,000. The market value was $50,000, and they said, look, you know, the task is not to try to redraft the will in some fairness way that, you now, the purpose of this kind of an interpretation is to try and establish, well, what was the wish of the testator at the time this will was created? And you know there’s no reason to think she had planned for what this property might be worth in 37 years or all of that and so the conclusion was that no the way this is worded it would be the $14,000. What it was what her half share was worth at the time minus the mortgage which of course he eventually paid off presumably living there for 37 years and so that’s what the kids will get and so it’s interesting in terms of people trying to sort out this problem which isn’t going to be a unique one but sure how to how are these things to be considered. And a reminder that generally, you know, when a court is interpreting a will, the starting point is to try to determine what was the primary objective is. What were the intentions of the testator? What were they intending? And to try and give meaning to that rather than have the judge sort of sit in a sort of armchair way now and say, well, what would I have done? And so that’s the latest record of appeal and how that’s to be interpreted in terms of division of property and a will.
Adam Stirling [00:17:11] Alright, we’ve got a minute and a half remaining.
Michael Mulligan [00:17:15] So final case people should know about it’s an interesting and fairly unique case involving civil forfeiture. And it involves this concept of what’s called an unexplained wealth order. And the background of it is that a man and woman owned various properties worth millions of dollars and the police wound up getting called to one of them as a result of gunshots on a blood trail and in the properties eventually were found things including 1,495,000 in Canadian cash, a bunch of US cash, signs of marijuana grow operations, and so on. When then they looked at the income tax returns for these two people they had very modest amounts over the past twenty years they declared as income. also interestingly one of the homes there was paperwork from the woman indicating she was applying to get a thousand-dollar child benefit, claiming she had very little income when she in fact appears to have very large sums of money being deposited into the bank and owning all these properties.
Adam Stirling [00:18:14] Hmm.
Michael Mulligan [00:18:14] And so there is provision in the civil forfeiture legislation to allow the director of civil forfeitures to apply for one of these things called an unexplained wealth order. And what that requires is it requires in this sort of circumstance where a judge is satisfied of all the requirements for one of those.
Adam Stirling [00:18:34] mm hmm.
Michael Mulligan [00:18:34] That the people against whom ultimately the application for civil forfeiture is made, it requires them to provide basically an explanation and accounting for how is it that you own millions of dollars in houses when you claim to make $22,000 a year?
Adam Stirling [00:18:50] yeah.
Michael Mulligan [00:18:50] Where did that pile of cash come from and what was going on with the marijuana grow operations. The woman involved trying to resist this suggested that the money was “lucky money” and had photographs of red envelope supporting this claim, but there was no actual evidence about that. So the net outcome here, people just be aware of it as people can be required to make this apply with this kind of an order and provide a full explanation for how did you wind up with all this money in these houses when you say you made very little in your income tax returns. So that’s what an unexplained wealth order is, so that’s the latest on that, the world of civil forfeiture.
Adam Stirling [00:19:25] All right, Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday, thank you so much.
Michael Mulligan [00:19:31] Thanks so much, always great to be here.
Adam Stirling [00:19:33] All right. Quick break, news is next.
Automatically Transcribed on September 3, 2025 – MULLIGAN DEFENCE LAWYERS