Roy turned onto the highway. He clearly did not see the tractor-trailer headed down the highway in the same direction he intended to go. The driver of the tractor-trailer noticed Roy’s headlights, but by the time he realized that Roy had pulled in front of him it was too late. The tractor trailer slammed into Roy’s vehicle. Harrington was killed.
Roy was charged with dangerous driving causing death. He was convicted. He appealed. Cromwell J, on behalf of a unanimous Supreme Court allowed the appeal and entered an acquittal: 2012 SCC 26.
Cromwell J dealt with three issues on appeal. On this ground, Cromwell J held that the trial judge erred by inferring, from the fact that the driving was, objectively viewed, dangerous, that Roy’s level of care was a marked departure from a reasonable person in the same circumstances [para 24]. The trial judge was required to, but erred in not doing so, to conduct an inquiry into whether Roy did in fact display a marked departure [para 44]. This point was perhaps best explained by Cromwell J as follows:
However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving [para 40].
As Cromwell J found that the trial judge erred by failing to conduct the appropriate inquiry, the Court turned to consider the remedy for this error. Ultimately Cromwell J held that an acquittal could be entered. He explained this decision as follows:
In my view, the record does not provide evidence on which a properly instructed trier of fact, acting reasonably, could conclude that the appellant’s standard of care was a marked departure from that expected of a reasonable person in the circumstances. I accept that the driving, objectively viewed, was dangerous. But it must be noted that there was no evidence that the driving leading up to pulling into the path of oncoming traffic was other than normal and prudent driving. The focus, therefore, is on the momentary decision to pull onto the highway when it was not safe to do so. I do not think that the manner of driving, on its own, supports a reasonable inference that the appellant’s standard of care was a marked departure from that expected of a reasonable driver in the same circumstances.
Taking the Crown’s case at its highest, the appellant pulled out from a stop sign at a difficult intersection and in poor visibility when it was not safe to do so. Although the trial judge did not make a specific finding on the point, Mr. McGinnis (the driver of the tractor-trailer) thought that the appellant’s vehicle had stopped before proceeding onto the highway. Mr. McGinnis also testified that when he first saw the lights of the appellant’s vehicle, he guessed that it was about 300-400 feet away but that it could have been as little as 100 feet. It is, of course, reasonable to assume that the appellant could have seen the McGinnis vehicle at least as soon as Mr. McGinnis was able to see the appellant’s vehicle. Given the lighting on the tractor-trailer, it might be concluded that the tractor-trailer may have been visible somewhat sooner. However, on any realistic scenario consistent with the evidence, the time between visibility and impact would be only a few seconds. In my view, the appellant’s decision to pull onto the highway is consistent with simple misjudgment of speed and distance in difficult conditions and poor visibility. The record here discloses a single and momentary error in judgment with tragic consequences. It does not support a reasonable inference that the appellant displayed a marked departure from the standard of care expected of a reasonable person in the same circumstances so as to justify conviction for the serious criminal offence of dangerous driving causing death [paras 54-55].