



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Romano, 2021 ONCA 211

DATE: 20210408

DOCKET: C65842

Strathy C.J.O., Watt and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Remo Romano

Appellant

Brian Greenspan and James Foy, for the
    appellant, Remo Romano

Holly Loubert, for the respondent, the
    Crown

Heard: November 13, 2020

On appeal from the conviction entered by
    Justice Todd Ducharme of the Superior Court of Justice, sitting with a jury, on
    January 24, 2018 and from the sentence imposed by Justice Brian P. OMarra of
    the Superior Court of Justice on September 13, 2018 with reasons reported at 2018
    ONSC 5172.

Zarnett J.A.:


I.

Introduction

[1]

On the evening of February 12, 2014, the appellant,
    a police officer, was driving an unmarked vehicle on a Toronto street as part
    of a police surveillance team. Having fallen behind the team, and in an effort
    to catch up, he accelerated to about 115 kilometres per hour (km/h) in a zone
    with a posted speed limit of 60 km/h. His vehicle struck and killed Ms. Carla
    Abogado.

[2]

Ms. Abogado had nothing to do with the police
    surveillance. At the time of the fatal collision, she had been on her way home
    from work and was crossing the street (but not at an intersection)
[1]
after exiting a Toronto Transit
    Authority (TTC) bus.

[3]

The appellant was charged with dangerous
    operation of a motor vehicle causing death, contrary to what was then s. 249(4)
    of the
Criminal

Code

of Canada
, R.S.C., 1985, c.
    C-46.
[2]
He has been tried three times for this offence.

[4]

At his first trial, the jury was unable to agree
    on a verdict.

[5]

At his second trial, the appellant was
    acquitted, but the Crown successfully appealed to this Court. The acquittal was
    set aside, and a new trial directed:
R. v. Romano,
2017 ONCA 837, 142
    W.C.B. (2d) 539 (
Romano

2017
).

[6]

At his third trial, the appellant was convicted
    and received a custodial sentence of eight months.

[7]

The appellant appeals both his conviction and
    sentence.

[8]

The conviction appeal relates to the trial
    judges charge to the jury. The appellant submits that the trial judge
    improperly focussed the jury on the consequences of his driving and whether the
    specific accident was foreseeable and avoidable, rather than on the proper questions
     whether the manner of his driving was dangerous to the public and was a
    marked departure from the required standard in the circumstances. The appellant
    also submits that the trial judge failed to provide proper guidance to the jury
    on how to determine what would constitute a marked departure from the
    required standard.

[9]

On the sentence appeal, the appellant submits
    that the circumstances did not require an eight month, or any, term of
    imprisonment. He argues that this court should reduce his sentence or substitute
    a conditional sentence.

[10]

For the reasons that follow, I would dismiss
    both the conviction appeal and the sentence appeal.

II.

BACKGROUND

[11]

In order to put the issues to be decided into
    context, I begin with an outline of the elements of the offence of dangerous
    driving causing death. I then turn to a description of the circumstances of the
    offence and the theories advanced at trial. Against that backdrop, I address
    the grounds of appeal and why, in my view, they should be rejected.

(1)

Dangerous Operation of a Motor Vehicle Causing
    Death

[12]

At the relevant time, ss. 249(1) and (4) of the
Code
provided:

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.

(4) Every one who commits an offence
    under subsection (1) and thereby causes the death of any other person is guilty
    of an indictable offence and liable to imprisonment for a term not exceeding
    fourteen years.

[13]

It was conceded at trial that the appellants
    operation of the vehicle caused Ms. Abogados death. The only issue was whether
    the appellants driving met the elements of the offence of dangerous operation
    of a motor vehicle. The Supreme Court of Canada described these elements in
R.
    v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49 and
R. v. Roy
, 2012 SCC
    26, [2012] 2 S.C.R. 60.

[14]

The
actus

reus
is established
    when the accuseds conduct, viewed objectively, meets the standard in s.
    249(1)(a) of the
Code
of driving in a manner dangerous to the public,
    having regard to all the circumstances, including the nature, condition and use
    of the place at which the motor vehicle was being operated and the amount of
    traffic that at the time was or might reasonably have been expected to be at
    that place:
Beatty
, at paras. 43, 45;
Roy
at para. 28.

[15]

The offence also requires that the accuseds
    objectively dangerous driving be accompanied by the required
mens

rea
.
That will be present where the degree of care exercised by the accused was
    a marked departure from the standard of care that a reasonable person would
    observe in the accuseds circumstances:
Beatty
, at para. 43. While
    the distinction between a mere departure from the standard of care, which would
    justify civil liability, and a
marked
departure justifying criminal
    punishment is a matter of degree, the lack of care must be serious enough to
    merit punishment:
Roy
at para. 28 (emphasis in original). The risks
    created by the manner of driving, and their foreseeability, are an important
    part of the analysis. (T)he trier of fact must be satisfied that a reasonable
    person in similar circumstances ought to have been aware of the risk and of the
    danger involved in the conduct manifested by the accused:
Beatty
, at
    para. 43.

(2)

The Circumstances of the Offence

[16]

The appellant was 46 years old at the time of
    trial. He was an experienced police officer who joined the York Regional Police
    in 2003. He had received surveillance training and had participated in a
    significant number of surveillance operations.

[17]

On the evening of the collision, the appellant
    was part of a team of officers who were engaged in undercover mobile surveillance
    of a van suspected of involvement in unarmed, non-violent break-ins at several
    retail outlets. The teams purpose was to gather information. The circumstances
    were not considered urgent nor to involve risks to public or police safety. No
    arrests were immediately contemplated.

[18]

During the surveillance, the appellant and one
    other officer fell behind the other team members. The appellant testified that
    it was important for team members to stay close as they depended on radio
    contact with each other.

[19]

The appellants vehicle was travelling eastbound
    in the passing lane on St. Clair Avenue East, in the vicinity of Victoria Park
    Avenue. St. Clair is a four-lane road with two lanes for each direction. The
    evening was clear, the area moderately well lit, and the road dry with some wet
    spots.

[20]

To catch up with the other team members, the
    appellant decided to accelerate. He was travelling at 80 to 90 km/h when he
    reached the intersection of St. Clair and Victoria Park, and then progressively
    faster as he continued in an easterly direction on St. Clair, through a section
    (west of Herron Avenue) that had a posted speed limit of 50 km/h and then, on a
    green light, through the intersection of St. Clair and Herron to an area with a
    posted speed limit of 60 km/h. The appellant was familiar with the area; he
    knew it had residential houses on the south side of St. Clair and a healthcare
    facility on the north side. He did not activate his emergency lights or siren,
    given that he was involved in undercover surveillance.

[21]

The Crowns accident reconstruction expert
    testified that at the time the collision occurred on St. Clair just east of the
    intersection with Herron, the appellant had reached a speed of about 115 km/h
    and was still accelerating.

[22]

Ms. Abogado got off a TTC bus at the bus shelter
    just east of Herron on the north side of St. Clair. This was about 40 metres
    from her house. She proceeded to jaywalk across St. Clair toward its south
    side. She was wearing dark, non-reflective clothing.

[23]

The appellants vehicle struck Ms. Abogado just
    as she crossed the centre line of St. Clair into the eastbound passing lane.
    Her body was thrown nearly 80 metres. She died almost instantly.

[24]

The appellant testified that as he approached
    the intersection of St. Clair and Herron, he saw nothing in front of him and so
    he proceeded. The appellant did not see Ms. Abogado until just before the
    collision. He did not apply the brakes and only started to swerve less than one-half
    second before the collision took place. He admitted that, at the speed he was
    travelling, even if he had seen a pedestrian in the roadway, he could not have
    done anything to avoid a collision.

[25]

The appellant agreed that it was foreseeable
    that someone would be jaywalking on St. Clair that evening, as jaywalkers are generally
    foreseeable. He stated that he was focussed on the roadway ahead of me and
    did not account for hazards such as pedestrians and jaywalkers, or traffic
    pulling out or making sudden lane changes.

[26]

The Crowns accident reconstruction expert
    testified that at the speed the appellant was driving and given when an
    unalerted driver would have seen a pedestrian in the circumstances, the
    collision was unavoidable as there was insufficient distance to stop the
    vehicle. He testified that the collision would have been avoidable if the
    appellant had been travelling at 80 km/h or less.

(3)

The Competing Positions at Trial

[27]

The parties did not contest, at trial or in this
    court, that the
Highway Traffic Act
exempts police officers from the
    requirement to comply with posted speed limits in the performance of their
    duties, but does not exempt them from criminal offences such as dangerous
    driving; that police officers must always act reasonably and prudently; and
    that police are subject to a higher standard of care when exercising their
    privilege to drive faster than the speed limit.

[28]

The Crowns theory was that the appellants
    driving was objectively dangerous to the public, that the appellant should have
    foreseen the risks created by his driving and taken steps to avoid them, and
    that his failure to do so was a marked departure from what a reasonably prudent
    police officer in his circumstances would have done. The Crown relied on the common
    sense reality that a jaywalking pedestrian at St. Clair and Herron was foreseeable,
    given that it was, to the knowledge of the appellant, a residential area with a
    health centre and townhouses; that the posted speed limit which other motorists
    and pedestrians would expect vehicles to be travelling at was 60 km/h (the
    appellant believed it was 50 km/h); that the speed that the appellant was
    travelling gave him insufficient time to do anything about a hazard in the
    roadway even if observed from a distance of 85 metres; that the appellant was
    involved in low risk and non-urgent surveillance; and, that there were options
    available to the appellant instead of accelerating to that speed in that area
    to catch up to the rest of the team.

[29]

The theory of the defence was that the
    appellants driving did not meet the elements of the offence. Police officers
    are permitted by law to exceed the speed limit in the lawful performance of
    their duties and are not required to activate emergency lights or sirens. The
    appellant, who was part of an undercover police surveillance team, drove at the
    speed he did without activating emergency equipment because he had fallen
    behind the rest of the team, the traffic signal at St. Clair and Herron was
    green, and the road appeared clear of vehicles and pedestrian traffic. The
    appellants position was that Ms. Abogado made a fateful decision to cross
    the street, and her death was the direct result of this unexpected event. The
    defence relied on the inability of the Crowns expert to answer the question:
    What is a safe speed to avoid an unexpected event?

III.

THE CONVICTION APPEAL

[30]

The appellant submits that the trial judge erred
    in two respects when instructing the jury.

[31]

First, he argues that the trial judge erred by
    inviting the jury to consider the consequences of the appellants driving  whether
    this particular collision was avoidable, and specifically, whether the
    appellant should have foreseen Ms. Abogado and avoided her  rather than addressing
    whether the manner of driving was objectively dangerous to the public and a
    marked departure from the standard of care.

[32]

Second, the appellant submits that the trial
    judge failed to give the jury the necessary guidance on what was required to determine
    whether the appellants driving was a
marked
departure from the standard
    of care.

(1)

Did the trial judge improperly focus the jury
    on the wrong questions?

[33]

As the Supreme Court explained in
Beatty
,
    the issue in a dangerous driving case is the manner of driving, not the
    consequences. The consequences may elevate the offence to one covered by s.
    249(4), and may otherwise be relevant to assist in assessing the risk involved.
    However, (t)he court must not leap to its conclusion about the manner of
    driving based on the consequence. The consequences do not answer the question
    whether or not the vehicle was operated in a manner dangerous to the public:
Beatty
,
    at para. 46; see also
R. v. Anderson
, [1990] 1 S.C.R. 265 at p. 273.

[34]

These principles were applied in this courts
    decision in
Romano
2017
, reversing the appellants acquittal at
    his second trial. Paciocco J.A., writing for the court, explained that for both
    the
actus

reus
and
mens

rea
of dangerous driving, the focus should be on the manner of driving, not the
    consequences or the cause of those consequences: at paras. 68-69. A consequence
    can verify the nature of the risks that existed but should not be used in
    determining whether the manner of driving was dangerous or in marked departure
    from the norm. In assessing the dangerousness of the driving the relevant risk
    is not the risk that the specific accident event would materializewhat is of
    interest is danger to the public generally: at para. 72.

[35]

The charge at the second trial failed to observe
    these requirements. Although it at times referred to the general manner of
    driving and the general risks created, it gave undue focus to the collision,
    and to questions of responsibility for the collision, when it should have
    focused on [the appellants] driving, and whether that driving constituted a
    marked departure from the standard of care expected of a police officer in [the
    appellants] circumstances: at para. 74. The charge had focused the jury on
    the risk posed by Ms. Abogados jaywalking, and not the general risks to the
    public that may have been posed by [the appellants] manner of driving: at
    para. 76.
It put an improper focus on the foreseeability and
    avoidability of the collision with Ms. Abogado: at para. 80, and contained a misdirected
    and misleading focus on the consequence or collision, and on the
    blameworthiness of Ms. Abogado...: at para. 83.
[3]

[36]

The charge at the second trial thus invited the
    jury to:

evaluate the dangerousness of the driving and
    the degree of departure from the norm by examining the circumstances of the
    collision rather than the manner of [the appellants] driving[giving] emphasis
    to the conduct of Ms. Abogado. The issue for the jurywas not the specific
    question of whether the collision with Ms. Abogado was foreseeable and
    avoidable. It was the more general question whether the manner of driving
    presented foreseeable and avoidable risks to the public, including risks that
    would arise if persons entered or were on the roadway: at para. 78.

[37]

The appellant argues that the charge given by
    the trial judge involved a similar error to that identified by Paciocco J.A.  that
    it focussed the jury on whether the specific collision with Ms. Abogado was
    foreseeable and avoidable, and not on the question of whether the appellants
    driving presented foreseeable and avoidable risks to the public, including
    risks that would arise if persons entered or were on the roadway.

[38]

I would not give effect to this argument.

[39]

First, the error in the charge at the second
    trial consisted of placing a focus on the circumstances of the collision with
    an emphasis on the conduct and blameworthiness of Ms. Abogado. That is not the
    error complained of here.

[40]

Second, the trial judges proposed charge was discussed
    at a pre-charge conference and specific submissions were made with a view to avoiding
    the problems identified in
Romano 2017
.
Trial counsel did not
    take the position that the proposed charge, as adjusted at the pre-charge
    conference, would place undue emphasis on the cause of the specific collision.
    Nor was the charge objected to after it was delivered.

[41]

Third, the charge, read as a whole, unlike the
    charge under consideration in
Romano 2017
, did not focus the jury on
    the wrong questions.

[42]

The appellant points to various parts of the
    charge where the trial judge summarized and commented on the evidence of the
    Crown accident reconstruction expert, and told the jury that based on that
    evidence, they might conclude that the appellant would not have been able to
    avoid hitting Ms. Abogado no matter how she got from the curb to the spot
    where she was hit. He also points to the fact that the trial judge invited the
    jury to consider various details about the specific collision including the
    fact that Ms. Abogado was jaywalking; that she was wearing dark clothing that
    would have made it difficult to see her at night; the evidence of various
    witnesses as to when and what they saw of the collision; and the evidence of
    the Crown reconstruction expert as to whether there was enough time, at the
    speed the appellant was travelling, to avoid hitting Ms. Abogado.

[43]

These passages must, however, be considered in
    light of the charge in its entirety. The trial judge cautioned the jury to
    focus on the appellants manner of driving, and not on the tragic consequences
    that occurred, that is, the death of Ms. Abogado. He instructed them that it
    would be wrong to conclude, because a death occurred, that the manner of
    driving must therefore have been dangerous. He instructed them to consider all
    of the risks created by the manner in which [the appellant] was driving, one
    of which was the risk of striking a jaywalker. He told them that [t]he
    collision with Ms. Abogado is only one of the risks that may have been created
    by [the appellants] manner of driving, that the fact that she was jaywalking is
    only relevant to the foreseeability of the risk, and that the question that they
    must ask themselves was in light of all the circumstances, would a reasonable,
    prudent police officer have foreseen the risks created by the manner of driving
    and taken steps to avoid them?

[44]

Moreover, the trial judge specifically cautioned
    the jury that the question was
not
whether the collision with Ms.
    Abogado was foreseeable and avoidable:

Now, while I discuss the circumstances of the
    collision with Ms. Abogado I do not mean to suggest that the dangerousness of
    the driving is to be determined by examining the circumstances of the collision,
    rather than the manner of [the appellants] driving. The issue for you is not
    whether the collision with Ms. Abogado was foreseeable and avoidable. Rather
    the question is whether the manner of [the appellants] driving presented
    foreseeable and avoidable risks to the public, including risks that would arise
    if a jaywalker entered or was on the roadway.

[45]

As these clear and unequivocal statements and cautions
    demonstrate, the charge did not improperly focus the jury on the question 
    Was the specific collision foreseeable and avoidable?  or invite it to overemphasize
    the significance of the consequences of the driving. The jury was instructed
    that the consequences did not answer the question of whether the driving was
    dangerous. The jury was effectively told not to leap to its conclusion about
    the manner of driving based on the consequence:
Beatty
, at para. 46.

[46]

Fourth, the law does not proscribe all reference
    to the consequences of the driving in considering a dangerous driving charge. It
    permits consideration of the consequences to assist in assessing, or to verify,
    the risk involved:
Beatty
, at para. 46;
Romano

2017
,
    at para. 71. It recognizes that in some circumstances, the actions of the
    accused and the consequences flowing from them may be so interwoven that the
    consequences may be relevant in characterizing the conduct of the accused:
Anderson
,
    at p. 273.

[47]

Both sides used the circumstances of the
    collision to assist in assessing or verifying the risks. The defence position
    relied on the circumstances of the collision; that the appellant was driving
    safely and that Ms. Abogados sudden appearance in the path of the appellants
    vehicle, as a result of jaywalking, was an unexpected event of her creation, rather
    than something indicative of a type of risk the appellant should have foreseen
    and avoided. The Crowns position was that the appellants manner of driving
    created the foreseeable risk of being unable to avoid striking a hazard on the
    roadway; Ms. Abogados presence on the road and the collision turned out to be
    a tragic verification of this. The trial judges charge, including the portions
    dealing with the specific collision and the cautions about the proper questions
    to consider, allowed the jury to appropriately consider those positions, without
    falling into the error identified in
Romano

2017
.

[48]

The adequacy of the trial judges charge is assessed
    by considering whether it
left the
    jury with a sufficient understanding of the facts as they related to the
    relevant issues so that the jurors would adequately understand the issues
    involved, the law relating to the charge the accused is facing, and the
    evidence they should consider in resolving the issues:
Romano

2017
,
at para. 84. In my view, it did. I would therefore reject
    this ground.

(2)

Did the trial judge err in his instruction about
    what constitutes a marked departure from the required standard of care?

[49]

The
parties agree that
the
mens

rea

issue in this case was whether the degree of
    care exercised by the appellant was a marked departure from the standard of
    care that a reasonably prudent police officer would observe in the appellants
    circumstances:
Beatty
, at para. 43.

[50]

On that question, the trial judge instructed the
    jury as follows:

And secondly, if so, was [the appellants] failure
    to foresee the risks and take steps to avoid them, if possible, a marked
    departure from the standard of care expected of a reasonable, prudent police
    officer in [the appellants] circumstances?

[]

Now, the dangerous operation of a motor
    vehicle involves more than just carelessness in [the appellants] driving.
    Carelessness, by itself, does not constitute dangerous driving. The offence of
    dangerous driving requires a higher degree of negligence than careless driving.
    Crown Counsel must satisfy you, beyond a reasonable doubt that [the
    appellants] manner of driving was a marked departure from what a reasonable,
    prudent police officer would do in the same circumstances. Your good common
    sense will tell you the difference between simple carelessness and a marked
    departure.

That said, Crown counsel does not have to
    prove that [the appellant] meant to cause death to, or endanger the life of,
    Ms. Abogado, or anyone else who was, or who might have been, there at the time.
    What you have to decide, in these circumstances, is not what [the appellant]
    meant to do, but whether [the appellant] drove in a manner that was a marked
    departure from the manner in which a reasonably prudent police officer would
    operate in the same circumstances. It is the manner of [the appellants]
    driving that you must focus on.

[51]

The appellant submits that this instruction was
    inadequate because it did not properly explain how high the marked departure
    standard is. The jury should have been told that the standard is beyond
    negligence, beyond momentary inattention, and beyond errors of judgment.
    Moreover, the trial judge should have explained the concept by relating it to
    real-world examples.

[52]

The appellant further argues that the instrument
    the trial judge invited the jury to use  its common sense  would not assist
    in evaluating what a trained police officer would do in the circumstances. The suggestion
    invited use of personal and idiosyncratic standards about speeding, but unlike
    the public, the appellant had some latitude to speed while on surveillance. Finally,
    the appellant says the jury should have been explicitly instructed to consider
    how and in what way the appellants driving was a marked departure from the
    standard of care.

[53]

I do not accept these arguments.

[54]

In my view, the
    charge appropriately equipped the jury to appreciate the central
mens

rea
issue,
    namely, that the departure from the expected standard had to be beyond that
    required for civil liability and serious enough to merit punishment:
Roy
, at para.
    28. The charge accomplished this, as the jury was told that the departure had
    to be marked, that more than carelessness was required, and that a higher
    degree of negligence was required than for careless driving. The jury would
    have thus appreciated that more than mere negligence, a momentary lapse of attention,
    or understandable misjudgment was required:
R.
    v. Chung
, 2019 BCCA 206,
    155 W.C.B. (2d) 337 (
Chung (BCCA)
), at para. 30, affd 2020 SCC 8, 386
    C.C.C. (3d) 523 (
Chung (SCC)
).

[55]

It is unclear
    what real-world examples would have assisted the jury to better appreciate this
    standard. Nor was any further explanation about the difference between
    momentary inattention and a marked departure necessary.

[56]

As the Supreme Court
    held in
Chung (SCC
)
at para. 22
:

Although this Court in
Roy
and
Beatty
determined that momentary lapses in attention and judgment would usually not
    raise criminal liability, this was because momentary lapses often result from
    the "automatic and reflexive nature of driving" (
Beatty
, at
    para. 34) or "[s]imple carelessness, to which even the most prudent
    drivers may occasionally succumb" (
Roy
, at para. 37). These are
    examples of conduct that, when assessed in totality against the reasonable
    person standard, only represent a mere departure from the norm. Momentary
    conduct is not assessed differently from other dangerous conduct. Conduct that
    occurs over a brief period of time that creates foreseeable and immediate risks
    of serious consequences can still be a marked departure from the norm (
Beatty
,
    at para. 48). A reasonable person would have foreseen that rapidly accelerating
    towards a major intersection at a high speed creates a very real risk of a
    collision occurring within seconds. This is what actually occurred in Mr.
    Chung's case. Risky conduct at excessive speeds foreseeably can result in
    immediate consequences. Therefore, the fact that foreseeable consequences occur
    within a short period of time after someone engages in highly dangerous
    behaviour cannot preclude a finding of
mens

rea
for
    dangerous driving.

[57]

The jury was
    instructed to consider whether the appellants failure to foresee the risks
    arising from his manner of driving, and to take steps to avoid them, if
    possible, was a marked departure from the standard of care expected of a
    reasonable prudent police officer in the circumstances. The jury was told the
    departure had to be more than carelessness and was thus able to consider
    whether the appellants excessive speeding established
mens

rea
because,
    having regard to all the circumstances, it supports an inference that the
    driving was the result of a marked departure from the standard of care a
    reasonable person in the same circumstances would have exhibited:
Chung

(SCC)
, at
    para. 19.

[58]

I agree with
    the Crowns submission that this is not a case like
R. v. Stephan
,
    2017 ABCA 380, 357 C.C.C. (3d) 10, revd 2018 SCC 21, [2018] 1 S.C.R. 633, (dealing
    with the offence of failing to provide the necessaries of life). In
Stephan
,
the charge was inadequate because it did
    not tell the jury that it needed to consider whether the accuseds conduct fell
    sufficiently below the standard expected of a reasonable parent, nor did it caution
    the jury that notwithstanding the significant medical evidence it had heard, the
    standard was not to be equated to what a doctor would do in the circumstances: at
    paras. 246-54. Unlike in
Stephan
, the jury here was equipped to understand
    the standards of reasonable driving, and how far the appellants conduct
    departed from them.

[59]

Nor is this a
    case like
R. v. Laverdure
, 2018 ONCA 614, 365 C.C.C. (3d), also
    relied on by the appellant. The issue in that case was the failure of a trial
    judge, in a judge alone trial, to fully analyze the evidence related to
mens

rea
. The
    trial judge erred by focussing solely on the
actus reus

and concluding that
    the act of dangerous driving necessarily constituted a marked departure
.
As
    such, he did not identify how and in what way the driver went beyond mere
    carelessness. In this case, the instructions to the jury clearly required them
    to analyze both the
actus

reus

and the
mens

rea
elements
    of the offence.

[60]

Finally,
the issue of how the jury should be charged on this topic was the
    subject of dialogue at the pre-charge conference. The trial judge was asked by trial
    counsel to include the sentence: The offence of dangerous driving requires a
    higher degree of negligence than careless driving. The trial judge did so. The
    charge was not otherwise objected to before or after its delivery.

[61]

While the trial judge has the responsibility of
    adequately charging the jury, counsel are expected to assist in fulfilling that
    responsibility. Here, the trial judge accommodated trial counsels suggestions
    about the charge. Trial counsel did not otherwise object to it. While not
    determinative, this supports the conclusion that the charge on marked
    departure was adequate:
R. v. Mack
, 2014 SCC 58, [2014] 3 S.C.R. 3 at
    para. 60.

[62]

I would therefore reject this ground of appeal.

IV.

The Sentence Appeal

[63]

The appellant asks that we set aside or shorten
    the term of incarceration, or alternatively, impose a conditional sentence.

[64]

The appellant argues that the sentencing judge
    erred by failing to apply the principle of restraint. Under that principle, a
    sentencing judge is required to consider all sanctions apart from incarceration
    and impose imprisonment only when there is no other reasonable punishment:
Code
,
    s. 718.2(d) and (e). It follows that where imprisonment is required, the term
    should be as short as is reasonable given the circumstances. The appellant
    argues that a proper application of the restraint principle leads to no, or a
    shorter, custodial term.

[65]

At the time of sentencing, a conditional
    sentence  a sentence of incarceration served in the community subject to
    conditions  was not available for the offence of dangerous driving causing
    death, since the offence is punishable by a maximum term of imprisonment of 14
    years:
Code
, s. 742.1(c). In
R. v. Sharma
, 2020 ONCA 478, 152
    O.R. (3d) 209, leave to appeal granted, 39346 (January 14, 2021), a majority of
    this court found s. 742.1(c) to be unconstitutional. The appellant alternatively
    submits that this court should substitute a conditional sentence, as this was
    not an egregious case of police misconduct and involved no exploitation of
    power.

[66]

I would not give effect to these arguments.

[67]

In my view, the sentencing judge did not
    overlook the principle of restraint. It was expressly referred to in
    submissions made to him, and he stated that he had considered the principles set
    out in s. 718 of the
Code
.

[68]

The sentencing judge noted the appellants commendable
    personal, familial, and professional history, the lack of a need for specific
    deterrence, and the appellants remorse for the accident. But he also found
    that Ms. Abogados tragic death was an important factor in determining an
    appropriate sentence, and noted that it had had a devastating impact on her
    family. Although he did not agree with the Crown that general deterrence should
    be an overriding or dominant consideration, he did find a need, albeit
    diminished, for the sentence to reflect that principle. Although the defence
    request was for a non-custodial sentence, the sentencing judge found a term of
    eight months incarceration to be required. His reasons can only be taken to
    mean that he found this sanction to be necessary after considering all
    principles of sentencing.

[69]

Appellate variation of a sentence is only
    justified if the sentence is demonstrably unfit, or if the sentencing judge
    made an error of law or principle that had an impact on the sentence imposed
:
    R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 40-41, 43-44.
    The sentencing judge in this case considered the relevant principles and
    exercised his discretion to arrive at a sentence that was not demonstrably
    unfit.

[70]

In light of
Sharma
, it is open to this
    court to consider the appropriateness of a conditional sentence for this
    offence. However, the fact that a conditional sentence is now available does
    not mean that one will necessarily be imposed:
R. v. Gray
,
2021
    ONCA 86 at paras. 44-45. The issue is whether, post-
Sharma
, the sentencing
    judges decision remains sound, given the newfound availability of a
    conditional sentence, after considering the sentencing judges reasons, the
    applicable principles, and any fresh evidence
:

Gray
,
at
    para. 52
.

[71]

The sentencing judge referred, in his reasons,
    to the non-availability of a conditional sentence. But he did not say that he
    would have imposed one if it were open to him to do so. He did not accept the
    defence submission that a non-custodial sentence was appropriate. His view,
    from his reasons read as a whole, was that an actual custodial sentence was required
    because of the nature and circumstances of this particular offence and the harm
    done. His sentencing decision thus remains sound. His findings do not support
    the view that a conditional sentence would be consistent with the fundamental purpose
    and principles of sentencing set out in sections 718 to 718.2:
Code
,
    s. 742.1(a).

[72]

As I have described, the sentencing judge did
    not err in failing to consider the principle of restraint. He did not impose a
    sentence that was demonstrably unfit. It would not be appropriate, on the
    findings that he did make and the relevant principles, to set aside or reduce
    the custodial sentence, or substitute a conditional sentence.

V.

Conclusion

[73]

I would dismiss the conviction appeal. Although
    I would grant leave to appeal sentence, I would also dismiss the sentence
    appeal.

Released: April 8, 2021 G.R.S.

B.
    Zarnett J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. David Watt J.A.





[1]
She was jaywalking.



[2]
In these reasons I refer interchangeably to dangerous operation of
    a motor vehicle and dangerous driving.



[3]

For example, the judge at the second
    trial told the jury:


In considering whether the driving in question was
  dangerous as I have defined it, you will take into account that Ms. Abogado was
  jaywalking, that is, she was crossing St. Clair Avenue East in the middle of
  the road, not at an intersection or at a crosswalk. Jaywalking is an inherently
  risky activity.


Pedestrians must be aware, when they jaywalk, that drivers are not
    always paying attention, not always concentrating on what is going on ahead of
    them. Also, Ms. Abogado was wearing generally dark clothing, meaning that she
    would be more difficult for a driver to see, especially given that it was night
    time and it was dark out.


