R v Roy

R. v. Roy

2012 SCC 26
Supreme Court of Canada — Cromwell J. | June 1, 2012

Background

On a foggy November afternoon in 2004, Randy Roy was driving his motor home back from work with his passenger Mark Harrington near Kamloops, BC. They took a shortcut on the unpaved Harmon Road, which becomes steep and slippery as it approaches Highway 5. Roy stopped at the intersection, then pulled onto the busy highway into the path of an oncoming tractor-trailer driven by Michael McGinnis. The collision killed Harrington instantly. Roy survived but lost all memory of the accident.

Roy was convicted of dangerous driving causing death under section 249(4) of the Criminal Code and sentenced to up to 14 years in prison. The trial judge found that Roy's driving was objectively dangerous, then immediately concluded it was also a "marked departure" from reasonable care — the mental element required for criminal conviction. The Court of Appeal upheld the conviction, saying any error was harmless.

Issues

1. Did the trial judge apply the wrong legal test when determining fault?
2. If so, was the error serious enough to overturn the conviction?
3. Should Roy get a new trial or an acquittal?

The Critical Distinction: Dangerous vs. Criminal

The Supreme Court unanimously allowed Roy's appeal and entered an acquittal. Justice Cromwell explained that dangerous driving has two separate elements: the prohibited conduct (driving dangerously) and the required fault (a "marked departure" from reasonable care). The trial judge made a fundamental error by inferring fault simply from the fact that the driving was dangerous.

This distinction matters enormously. As the Court emphasized, "if every departure from the civil norm is to be criminalized, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy." Simple carelessness — even with tragic consequences — isn't enough for criminal conviction. The fault must be a marked departure from what a reasonable person would do.

The Court found that Roy's case showed only "a single and momentary error in judgment with tragic consequences" — likely a misjudgment of speed and distance in difficult conditions. Without evidence that Roy was aware of the risk he was creating and deliberately chose to run it, there was insufficient proof of the marked departure required for criminal fault.

Key Takeaway

Objectively dangerous driving alone cannot prove criminal fault — there must be evidence of a marked departure from reasonable care.

This case sets the bar high for dangerous driving prosecutions, requiring more than just proof that an accident happened or that driving was objectively risky. The Crown must prove fault beyond simple negligence.