Although not decided on the basis of the Charter, this case provides valuable insight into the necessary fault requirement for a criminal conviction, breathing new meaning into the “principles of fundamental justice” stemming from our common law tradition, and later enshrined in Section 7 of the Charter of Rights and Freedoms.
The Appellant, Randy Roy, had been convicted of dangerous driving causing death after he drove his vehicle onto the highway and into the path of a tractor-trailer, resulting in the death of his passenger. Roy was also injured and had no memory of the accident, and therefore no explanation for his conduct.
The Supreme Court overturned Roy’s conviction, stating that “the trial judge erred in law erred by equating fault with the failure to explain the conduct,” and concluded that the accident was a result of “a single and momentary error in judgment with tragic consequences.”
The common law, the court concluded, had long required some level of fault or moral blameworthiness (as opposed to mere negligence) to support a criminal conviction, but this distinction took on special significance with the advent of the Charter:
From at least the 1940s, the Court has distinguished between, on the one hand, simple negligence that is required to establish civil liability or guilt of provincial careless driving offences and, on the other hand, the significantly greater fault required for the criminal offence of dangerous driving (American Automobile Ins. Co. v. Dickson,  S.C.R. 143). This distinction took on added importance for constitutional purposes. It became the basis for differentiating, for division of powers purposes, between the permissible scope of provincial and federal legislative competence as well as meeting the minimum fault requirements for crimes under the Canadian Charter of Rights and Freedoms (O’Grady v. Sparling,  S.C.R. 804; Mann v. The Queen,  S.C.R. 238; Hundal). Thus, the “marked departure” standard underlines the seriousness of the criminal offence of dangerous driving, separates federal criminal law from provincial regulatory law and ensures that there is an appropriate fault requirement for Charter purposes.
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