DANGEROUS OPERATION MOTOR VEHICLE
R. v. Roy, 2012 SCC 26 (CanLII)
Criminal law — Dangerous operation of motor vehicle — Elements of offence — Mens rea — Whether proof of actus reus without more can support inference that required fault element is present — Whether accused’s conduct displayed a marked departure from standard of care — Criminal Code, R.S.C. 1985, c. C-46, s. 249.
Criminal law — Appeals — Whether trial judge applied incorrect legal principles in addressing fault component of offence — If so, whether error was harmless — If appeal allowed, whether Court should order new trial or direct an acquittal — Criminal Code, R.S.C. 1985, c. C-46, ss. 686(1)(a)(ii), 686(1)(b)(iii).
On an afternoon in late November 2004, R was driving home from work with a passenger. Visibility was limited due to fog and the unpaved back road they were on was relatively steep, snow-covered, and slippery. The driver of an oncoming tractor-trailer testified that R stopped before proceeding onto the highway, then drove onto the highway and into the tractor-trailer’s path. In the resulting collision, R’s passenger was killed. R survived, but the collision left him with no memory of either its circumstances or of the surrounding events. R was convicted of dangerous driving causing death and his appeal to the Court of Appeal was dismissed.
In a decision released shortly before R. v. Beatty, 2008 SCC 5 (CanLII), 2008 SCC 5,  1 S.C.R. 49, the trial judge concluded that R’s conduct was objectively dangerous. He then immediately concluded that R’s driving had constituted a marked departure from the standard of care a reasonable person would observe in the circumstances. Since no explanation was provided for R’s conduct — due in great part to his loss of memory — there was no evidence that could raise a reasonable doubt that a reasonable person would not have been aware of the risks in the circumstances. The appellant’s appeal to the Court of Appeal was dismissed. Although the Court concluded that the trial judge had made a legal error, it was of the view that the error was harmless as it occasioned no substantial wrong or miscarriage of justice.
Held: The appeal should be allowed, the conviction set aside and an acquittal entered.
Dangerous driving causing death, a serious criminal offence punishable by up to 14 years in prison, consists of two components: prohibited conduct — operating a motor vehicle in a dangerous manner resulting in death — and a required degree of fault — a marked departure from the standard of care that a reasonable person would observe in all the circumstances.
However, because driving is an inherently dangerous activity, the trier of fact must not infer simply from the fact that the driving was, objectively viewed, dangerous, that the accused’s level of care was a marked departure from that expected of a reasonable person in the same circumstances. The fault component ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. Determining whether the fault component is present may in turn be done by asking two questions. First, in light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible? Second, was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances? The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault, is a matter of degree, but the trier of fact must identify how and in what way the driver went markedly beyond mere carelessness. This will generally be done by drawing inferences from all of the circumstances. Furthermore, in answering these questions, personal attributes will only be relevant if they go to capacity to appreciate or to avoid the risk. Of course, proof of deliberately dangerous driving would support a conviction for dangerous driving, but it is not required.
In this case, the trial judge erred in law erred by equating fault with the failure to explain the conduct, but also by failing to conduct any meaningful inquiry into whether R had displayed a marked departure from the standard of care to be expected of a reasonable person in the same circumstances. He simply inferred from the fact that R had committed a dangerous act while driving that his conduct displayed a marked departure from the standard of care expected of a reasonable person in the circumstances....