O'Grady was charged under s. 55(1) of the Manitoba Highway Traffic Act (now s. 188) which prohibited driving "on a highway without due care and attention or without reasonable consideration for other persons using the highway". The defendant challenged the law, claiming that it was beyond the power of the province because the federal government had "occupied the field" with a similar criminal provision in ss. 191/221 (now s. 219) of the Criminal Code, which prohibited driving with "wanton or reckless disregard for the lives or safety of other persons". O'Grady was convicted at trial and an appeal to the Court of Appeal for Manitoba was dismissed.
- Are provincial laws relating to negligence with penal consequences criminal law and therefore ultra vires the province?
Judson, writing for the majority, held that "the power of a provincial legislature to enact legislation for the regulation of highway traffic is undoubted". He reaffirmed the principle that there exists a "general area" or "domain" of criminal law and the two governments can make law on the same matter by creating a distinction between the types of culpability. He quotes from Kenny's Outlines of Criminal Law:
There are only two states of mind which constitute mens rea, and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence; they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. The common habit of lawyers to qualify the word "negligence" with some moral epithet such as "wicked", "gross", or "culpable" has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression to explain itself.
On the facts, Judson found that there was overlap between the laws however "there is no conflict between these provisions in the sense that they are repugnant". The provincial law extended to include "inadvertent negligence" as well as regular negligence. It was enough that “the two pieces of legislation differed both in legislative purpose and legal and practical effect” to justify both of them.
- The distinction between recklessness and negligence is the difference between advertence and inadvertence; recklessness is when an actor does not desire harmful consequences but forsees the possibility and consciously takes the risk.
- There must be an operational incompatibility between federal and provincial law to invoke paramountcy.