Section 686(1)(b)(iii) of the Criminal Code permits an appellate court to dismiss an appeal from conviction despite a trial judge's legal error where the Crown satisfies the court that no "substantial wrong or miscarriage of justice has occurred". The Crown may do this either by showing that (1) the error was trivial or could have had only minor effect on the verdict, or (2) that it is clear that the evidence pointing to the guilt of the accused is so overwhelming that conviction was inevitable (R. v. Khan, 2001 SCC 86,  3 S.C.R. 823, at paras. 30-31).
 The appellant argues that the Court of Appeal's reasoning on this issue is flawed and I respectfully agree. I note that the respondent's primary position is that there was no error and very little argument was directed to upholding the Court of Appeal's decision to apply the proviso.
 I do not understand the Court of Appeal to have applied the proviso on the basis that the Crown's case was overwhelming. In any event, that is clearly not the case here. Rather, the Court of Appeal held that the trial judge's reasons show that the legal error had no significant effect. The court relied on two points to reach this conclusion: first, that this was a case of advertent rather than inadvertent negligence and second, that the trial judge's finding of fact that the driving constituted a marked departure from the standard of care made it clear that he had found the fault element to have been established. I set out the operative part of the Court of Appeal's judgment:
The trial judge did not . . . specifically address the second step as it is now articulated in Beatty [i.e., the fault element], but it may easily be inferred from his reasons that the accused had the necessary intent. This was not a case in which the negligence was inadvertent. Rather, the driving that resulted in the collision entailed a deliberate act of driving onto a busy highway, in fog, in the face of oncoming traffic. The trial judge correctly concluded that the appellant's driving did constitute a marked departure from the standard of care of a reasonable person in the circumstances of the appellant, thus satisfying the test for mens rea. [para. 31]
 I respectfully cannot agree with either of these reasons. With respect to the first, there was no evidence to support the Court of Appeal's conclusion that this was "advertent" negligence. Advertent negligence refers to subjective mens rea and applies when an accused actually foresees the risk and decides to take it. While the appellant's act of driving out from the stop sign was apparently a voluntary act, there was no evidence to support the conclusion that the appellant was in fact aware of the risk he was creating in doing so and deliberately chose to run that risk. In my respectful view, the Court of Appeal erred in finding that subjective mens rea had been established on this record. Of course, subjective mens rea is not required, but it certainly was not established on this record.
 As to the judge's finding of a marked departure, my view is, as noted earlier, that the judge reached this conclusion solely by inferring it from the fact that the appellant's driving had been, objectively viewed, dangerous. That erroneous inference cannot provide justification for dismissing that error as harmless.