Accused’s decision consistent with simple misjudgment but not marked departure from standard of care

DANGEROUS DRIVING

Accused’s decision consistent with simple misjudgment but not marked departure from standard of care

Accused driving on unpaved back road which was relatively steep, snow-covered and slippery. Visibility limited due to fog. Driver of oncoming tractor-trailer testified accused stopped before proceeding onto highway but drove into tractor-trailer’s path. Accused’s passenger killed and accused had no memory of collision. Accused convicted of dangerous driving causing death. Trial judge concluded accused’s conduct objectively dangerous and driving constituted marked departure from standard of care reasonable person would observe in circumstances. No evidence that could raise reasonable doubt that reasonable person would not have been aware of risks since accused had no memory. Court of Appeal dismissed accused’s appeal, finding trial judge made legal error but error harmless. Appeal to Supreme Court of Canada allowed, conviction set aside and acquittal entered. Must be meaningful analysis of both prohibited conduct and required fault elements. Actus reus is driving in manner dangerous to public in circumstances. Focus on risks created by accused’s manner of driving, not consequences. Mens rea is that degree of care exercised by accused was marked departure from standard of care reasonable person would observe in accused’s circumstances. Dangerous driving is serious criminal offence and critically important to ensure fault requirement established. Distinction between mere departure, which may support civil liability, and marked departure required for criminal fault, matter of degree. Simple carelessness generally not criminal. Determining whether required objective fault element proved generally matter of drawing inferences. Required mens rea may be inferred from fact accused drove in manner constituting marked departure from norm. Proof of actus reus, without more, not supporting reasonable inference that required fault element present. Trial judge erred by failing to conduct meaningful inquiry and simply inferred marked departure from fact that driving was objectively dangerous. Court of Appeal erred in finding trial judge’s error harmless. No evidence to support conclusion this was “advertent” negligence and trial judge’s finding of marked departure erroneous. Appropriate to enter acquittal. Record not providing evidence on which properly instructed trier of fact, acting reasonably, could conclude accused’s standard of care was marked departure from norm. Accused’s decision consistent with simple misjudgment but not supporting reasonable inference of marked departure from reasonable standard of care expected.

R. v. Roy (June 1, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ., File No. 33699) Decision at 87 W.C.B. (2d) 155 reversed. 100 W.C.B. (2d) 695 (31 pp.).