The Supreme Court of Canada in 2012 clarified the law regarding what constitutes dangerous driving under the Criminal Code. The decision, R v. Roy, has implications for people who may be inadmissible to Canada for criminality. Indeed, in Jolly v. Canada (Citizenship and Immigration), the Federal Court of Canada affirmed that it will be a reviewable error if visa officers do not assess criminal equivalency for dangerous driving based on the mens rea standard articulated in Roy.
Section 249 of the Criminal Code provides that:
249. (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
In R v. Roy, the Supreme Court noted that (emphasis added):
It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedlybeyond mere carelessness.
Accordingly, the actus reus of s. 249 of the Criminal Code is driving in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place. The focus of the actus reus inquiry is on the risks created by the accused’s manner of driving, not the consequences.
The mens rea for the offence is a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. Simple carelessness, to which even the most prudent drivers may occasionally succumb, does not meet the mens rea requirement.
Finally, even where the manner of driving is a marked departure from normal driving, s. 249 requires that the dangerous driving be a result of the marked departure from the norm.
In Okolo v. Canada (Citizenship and Immigration), 2021 FC 1100 the Federal Court of Canada conducted an indepth analysis of the facts in Roy, as well as R v Beatty, 2008 SCC 5, to determine whether a refugee had demonstrated the mens rea for an offense abroad that would equate to a criminal offence in Canada.