


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Romano, 2017 ONCA 837

DATE: 20171103

DOCKET: C62805

Cronk, Juriansz and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Remo Romano

Respondent

Roger Shallow, for the appellant

Frank Addario and James Foy, for the respondent

Heard: September 28, 2017

On appeal from the acquittal entered by Justice Brian P. OMarra
    of the Superior Court of Justice, sitting with a jury, on September 21, 2016.

Paciocco J.A.:


INTRODUCTION

[1]

Remo Romano was acquitted by a jury of the charge of dangerous operation
    causing death (dangerous driving causing death), contrary to s. 249(4) of the
Criminal Code
, R.S.C. 1985, c.
    C-46
. This charge arose out of a tragic event that occurred on
    February 12, 2014. Eighteen year old Carla Abogado
[1]
was on her way home from a part-time job when she was struck and killed by a
    Ford F-150 truck being operated at high speed by Mr. Romano. It was around 8:19
    p.m. At the time she was struck, Ms. Abogado was jaywalking, taking the most
    direct route from the bus stop where she had been dropped off to her home
    across the street.

[2]

Mr. Romano was on duty as a police officer at the time. The truck was an
    undercover vehicle. He was operating it at a speed substantially over the speed
    limit in an effort to catch up with other members of a surveillance team he was
    assigned to assist. Evidence was that at the time of the collision he was
    travelling 109 km per hour or more in a 60 km zone.

[3]

The Crown appeals Mr. Romanos acquittal. The Crown contends that the
    trial judge erred in not leaving the included offence of dangerous operation
simpliciter

(dangerous driving), contrary to s. 249(2), with the jury. In essence,
    the Crown contends that a properly instructed jury could have found that Mr.
    Romano drove dangerously, yet did not cause Ms. Abogados death. The trial
    judge disagreed. He concluded that such a finding was not realistically
    available to the jury on the evidence; if a jury was to find dangerous driving,
    it would have to find, in law, that the dangerous driving caused death. The
    trial judge therefore chose not to instruct the jury on the included offence.

[4]

The Crown also argues the jury charge was defective. It says that the
    trial judge erred in his instruction on the
actus reus

and
mens
    rea

elements of dangerous driving, and in the jury directions
    relating to whether Mr. Romano had a lawful justification for his driving.

[5]

I would not give effect to the first ground of appeal. The trial judge
    did not err by refusing to leave the included offence of dangerous driving with
    the jury.

[6]

I would, however, grant the appeal on the related basis that, having
    removed the included offence from the jury, the trial judge erred in law by instructing
    the jury in a way that treated causation of death as a live issue. In effect,
    the trial judge helped arm the jury with the tools needed to make the very
    finding of fact he had concluded was not reasonably open to them.

[7]

In my view, the trial judge also failed to give the jury an adequate
    understanding of how to determine whether Mr. Romanos manner of driving was
    dangerous, and whether it constituted a marked departure from the norm  the
actus
    reus

and
mens rea
elements of the offence. Specifically, the
    focus of the inquiry in each case should have been Mr. Romanos manner of
    driving, not who bore responsibility for Ms. Abogados death, or the
    foreseeability of the specific accident that occurred. Yet the instructions
    related substantially to Ms. Abogados conduct and to the role the accident
    should play in determining whether the driving was dangerous. Although other
    aspects of the charge were pristine, the theme of Ms. Abogados role in her own
    death was sufficiently pronounced that I am satisfied that the jury would not
    have known how to apply the evidence to the dangerous driving and marked
    departure issues.

[8]

I am not persuaded, however, that the trial judge erred on the lawful
    justification issue. He did not direct the jury that s. 128(13) of the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8, provides a defence to dangerous driving,
    and his instruction adequately equipped the jury to consider the significance
    of Mr. Romanos policing role during the event.

[9]

I would therefore allow the appeal, set aside the acquittal, and order a
    new trial on the offence charged, namely dangerous driving causing death.

ISSUES

[10]

This
    Crown appeal from a verdict of acquittal on the charge of dangerous driving
    causing death raises three central issues. First, did the trial judge err in
    law in failing to leave the included offence of dangerous driving

with
    the jury? Second, did the trial judge misdirect the jury on the elements of the
    dangerous driving component of the offence of dangerous driving causing death?
    And third, did the trial judge misdirect the jury on whether Mr. Romano had a
    lawful justification for driving as he did?

ANALYSIS

A.

The Included Offence Issue

[11]

An
    included offence is a separate offence that is necessarily committed where
    the charged offence has been committed. As described in
R. v. G.R.
, 2005 SCC 45,

[2005] 2 S.C.R. 371,
    at para. 25, the included offence is embraced by the charged offence.

[12]

Dangerous
    driving

is an included offence in a charge of dangerous driving
    causing death because it is impossible to commit the offence of dangerous
    driving causing death without satisfying the legal requirements or elements of
    the offence of dangerous driving. Dangerous driving causing death is an
    aggravated version of the offence of dangerous driving, distinguishable only by
    the added legal requirement that the dangerous driving must cause the death of
    another.

[13]

It
    is generally necessary for a trial judge to charge the jury about included
    offences: see
Smith v. The Queen
, [1979] 1 S.C.R. 215. This is because
    a person charged with an offence that includes another offence is effectively
    put on notice that they are alleged to have committed both offences, and are
    technically charged with both offences.

[14]

The
    law is sensible, though. As was recognized in
R. v. Luciano
, 2011 ONCA
    89, 273 O.A.C. 273, at para. 75:

The obligation of a trial judge to instruct jurors about the
    availability of a verdict of an included offence is  conditioned upon an air
    of reality in the evidence adduced at trial to permit a reasonable jury,
    properly instructed, to conclude that the essential elements of the included
    offence have been established.

[15]

The
    propriety of refusing to leave the jury with a verdict option that a reasonable
    jury, properly instructed, could not arrive at makes obvious sense. A jury
    should not be left with the option of making an unreasonable decision.

[16]

It
    follows that included offences that cannot lead to legally appropriate verdicts
    should not be left with juries. As stated in
R. v. Wong
(2006), 211
    O.A.C. 201 (C.A.), at para. 12:

Where on the law applicable to the main charge and the included
    offence there is no reasonable view of the evidence, when considered as a
    whole, that could cause the jury to acquit on the main charge and convict on
    the included offence, an instruction on the included offence is a breeding
    ground for confusion and compromise.

[17]

The
    Crowns first ground of appeal is that the trial judge erred by not leaving the
    included offence of dangerous driving

with the jury. The Crown contends
    there was an air of reality to the possibility the jury could be sure that Mr.
    Romano drove dangerously, yet have a reasonable doubt about whether his
    dangerous driving caused Ms. Abogados death.

[18]

As
    I have indicated, the trial judge disagreed. He held that on the basis of the
    agreed facts, there was no reasonable scenario in which dangerous driving by Mr.
    Romano could be proved, but where the legal requirements of causation of death would
    not be met.

[19]

This
    is because all the law of causation requires is that Mr. Romanos dangerous
    driving be a significant contributing cause of the death of Ms. Abogado: see
R.
    v. Manasseri
, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 190, leave to
    appeal to S.C.C. refused, [2016] S.C.C.A. No. 513; and
R. v. OLeary
,
    2017 ONCA 71, 36 C.R. (7th) 80, at para. 31. The trial judge concluded that,
    given his manner of driving at the time of the collision, there was no
    reasonable prospect that a jury could properly find that Mr. Romanos driving
    was not a significant contributing cause of Ms. Abogados death.

[20]

The
    trial judges view was that it would do nothing other than puzzle the jury to leave
    them with the option of finding that only the offence of dangerous driving had
    been committed. He illustrated his concern during the pre-charge conference by
    describing the jurys anticipated reaction as, [w]ell, if this driving didnt
    cause the death, what did?

[21]

Although
    it was the trial judge who raised the question of not leaving dangerous driving
    with the jury, trial counsel for Mr. Romano quickly agreed. During the
    pre-charge conference, Mr. Romanos counsel paraphrased the trial judges
    position with obvious endorsement: you couldnt envision finding dangerous
    driving causing death anything but, because if they find it they are going to
    find caused death, you know.  He later affirmed, I do not believe that
    leaving dangerous driving
simpliciter
there is any real air of reality
    to that conviction on the facts of this case.

[22]

I
    agree with the trial judge and with Mr. Romanos trial counsel. While Ms.
    Abogado was herself acting in a dangerous manner by jaywalking, there was no
    realistic scenario on the evidence that would enable a properly instructed jury
    to acquit Mr. Romano of the offence of dangerous driving causing death, yet
    convict him of the included offence of dangerous driving.

[23]

The
    central facts of this case were not in dispute. What was in dispute was the
    characterization of those facts.

[24]

The
    Crown theory was that while driving through the city block where the accident
    occurred, Mr. Romano unnecessarily operated his undercover police vehicle at
    such an unreasonable speed that it was impossible for him to adjust his driving
    in response to unexpected but foreseeable events, such as jaywalking
    pedestrians, and that his failure to utilize his lights and siren prevented
    those at risk from taking steps to avoid being harmed.

[25]

If
    this theory, or even part of it, was accepted by the jury in this case, where Ms.
    Abogado was struck by Mr. Romanos car while it was being driven in this
    fashion, there was simply no proper basis on which the jury could find that Mr.
    Romanos driving did not meet the legal requirements of causation.

[26]

The
    law of causation is broadly encompassing. The causation test has two inter-related
    components, often described as factual causation, and legal or imputable
    causation. Factual causation focuses exclusively on the connection between the
    act of the accused and the prohibited consequence, in a mechanical or physical
    sense. Legal causation focuses on the moral or imputable fault of the accused:
    see
R. v. K.L.
, 2009 ONCA 141, 248 O.A.C. 260, at para. 14; and
R.
    v. Malkowski
, 2015 ONCA 887, 92 M.V.R. (6th) 1, at para. 14.

[27]

The
    factual causation test is inclusive in scope:
R. v. Maybin
, 2012 SCC
    24, [2012] 2 S.C.R. 30, at para. 15. As the Supreme Court of Canada held in
Smithers
    v. The Queen
, [1978] 1 S.C.R. 506, at p. 519, it is met if the act of the
    accused is a contributing cause of the prohibited consequence, beyond a
de minimis
    range
. The Latin term means no more than that the contribution cannot be
    minimal.

[28]

Without
    changing that standard, a majority of the Supreme Court of Canada suggested in
R.
    v. Nette
, 2001 SCC 78,

[2001] 3 S.C.R. 488, at para. 71, that the
    term significant contributing cause is a simpler, more familiar way, of
    communicating the same concept. Factual causation therefore exists where the
    contribution by the accused to the prohibited consequence is significant, in
    the sense described:
R. v. Kippax
, 2011 ONCA 766, 286 O.A.C. 144, at
    para. 24, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 92.

[29]

The
    legal causation inquiry recognizes that there are cases where the factual
    causation test is facially met, but where the accused should not be held
    criminally responsible because circumstances affect the level of moral fault or
    blameworthiness of the accused, making it inappropriate to treat his
    contribution to the consequence as significant. As the Supreme Court of
    Canada explained in
Maybin
, at para. 16, [l]egal causation  is [therefore]
    a narrowing concept which funnels a wider range of factual causes into those which
    are sufficiently connected to a harm to warrant legal responsibility. It
    enables some cases where the factual causation test is technically satisfied to
    be removed from the net of criminal liability because moral blame should not be
    imputed to the accused. In effect, circumstances can impel recognition that the
    act of the accused should not be imputed as a significant contributing cause:
Malkowski
,
    at para. 14.

[30]

The
    threshold for breaking the chain of factual causation is not generous. This is
    because, [t]he criminal law does not recognize contributory negligence nor is
    it equipped with any mechanism to apportion responsibility for the harm
    occasioned by criminal conduct, expect as part of sentencing:
K.L.
,

at para. 18. Moreover, if an accused is already engaged in an unlawful act,
    the intensity of the causal connection required to furnish moral blame for the
    consequence can be modest.

[31]

In
    this case, I agree with the trial judges application of these tests in his
    decision to keep dangerous driving from the jury.

[32]

Standing
    alone, the factual causation test would obviously be met, were the jury to
    accept the Crowns characterization of Mr. Romanos manner of driving as
    dangerous. The ineluctable conclusion that would follow would be that Mr.
    Romano struck Ms. Abogado while driving dangerously.

[33]

The
    trial judge also properly considered and rejected the only material analytical
    aid to legal causation that might be of assistance in this case: the doctrine
    of intervening acts.

[34]

The
    doctrine of intervening acts applies where an event independent of the
    accuseds conduct occurs that severs the chain of factual causation between the
    accused and the consequence. It operates by undercutting the moral
    blameworthiness that could otherwise be ascribed to the accused. In effect, the
    intervening act deprives the factual causation contribution of the accused of
    its significance.

[35]

In
Malkowski
, this court recognized that although the standard of legal
    causation remains whether the accuseds dangerous and unlawful acts are a
    significant and contributing cause of the victims death, a finding against
    legal causation will generally occur in one of two situations. Either the
    independent intervening event is not reasonably foreseeable, and/or the
    intervening act is an independent cause of the consequence that is significant
    enough in relative weight to sever or break the chain of causation between the
    act of the accused and the consequence:
Malkowski
, at para. 14. On
    either standard, the trial judge was correct to find here that there was no air
    of reality to the prospect that Ms. Abogados jaywalking could qualify as an
    intervening act.

[36]

First,
    the dangerous driving theory was that jaywalking
is
a foreseeable risk
    that Mr. Romano failed to allow for in his manner of driving. On this theory
    the dangerousness of the driving arises from disregard of a foreseeable risk
    that materialized when Ms. Abogado jaywalked from the bus stop. If the jury
    accepted the Crowns theory it could not have concluded that Ms. Abogados
    jaywalking was unforeseeable.

[37]

Second,
    there was no realistic prospect that Ms. Abogados decision to enter the
    roadway was significant enough that Mr. Romanos driving, if dangerous in the
    sense described, could lose its significance as a contributing cause of Ms. Abogados
    death. Mr. Romano admitted during his testimony that, given the speed at which he
    was travelling, he really could not notice pedestrian traffic in time to do
    anything to avoid pedestrians entering the roadway. On Mr. Romanos own
    testimony, his driving could not properly be said to be nothing more than the
    setting in which Ms. Abogados jaywalking brought about the collision. Nor
    could his driving be seen as merely part of the history of the event, with the
    jaywalking being the active cause of the collision: see
Maybin
, at
    paras. 46-51. Put somewhat differently, if Mr. Romanos driving was judged by
    the jury to be dangerous, it was inevitable that the speed that made his
    driving dangerous, and Ms. Abogados presence on the roadway, each contributed
    significantly to the accident. As this court stated on the broadly comparable,
    albeit more aggravated facts in
Malkowksi
, at para. 21:

[W]e would not characterize the victims conduct as being an
    independent act, unrelated to the appellants conduct. The appellant was
    driving at a speed of 152 km/h shortly after 8 oclock at night in a place
    where both motorists and pedestrians were entitled to expect vehicles to have
    slowed down. The fact that the victim would attempt to cross the road but found
    herself unable to do so in safety is not a matter that is unrelated to the
    appellants conduct; rather, it is a direct materialization of the danger he
    created by driving in the way he did.

[38]

It
    follows, therefore, that any jury properly instructed, accepting the dangerous
    driving theory of the Crown in this case, would have had to find that Mr.
    Romanos dangerous driving caused death.

[39]

I
    would decline to give effect to this ground of appeal.

B.

The Jury Charge

(1)

Leaving Causation as a Live Issue

[40]

Even
    though the trial judge ruled that there was no reasonable factual scenario that
    would support a finding of dangerous driving without a finding that the
    dangerous driving caused death, the trial judge instructed the jury that this
    finding was open to them. He did so by directing the jury in his charge that
    they should not consider the causation issue unless they were satisfied beyond
    a reasonable doubt that dangerous driving had been proven, and then by
    directing them that if they were not satisfied beyond a reasonable doubt that
    Mr. Romanos operation of the motor vehicle caused Ms. Abogados death, they
    must find him not guilty of dangerous [driving] of a motor vehicle causing
    death.

[41]

Simply
    put, the trial judges jury directions specifically contemplated the very factual
    outcome that he had previously ruled was not legally available  a finding that
    dangerous driving occurred without causation. Since the jury was only given the
    offence of dangerous driving causing death, the charge also contemplated a
    complete acquittal if the jury found facts that would support the offence of
    dangerous driving
simpliciter
.

[42]

Technically,
    the trial judge could not avoid directing the jury about causation. A jury
    verdict belongs to the jury. It is for them to decide whether the Crown has met
    its burden on each element of the offence. Accordingly, a trial judge must
    advise the jury of each of the elements of the offence, and of the Crowns
    burden to prove each of those elements beyond a reasonable doubt. This is so
    even where a trial judge has removed an included offence from the jury that
    would be satisfied if the Crown proves only some of the elements of the charged
    offence.

[43]

The
    concern in this case is that the trial judge left causation with the jury as a
    live issue on the facts. After ruling that there was no air of reality to a
    factual finding that dangerous driving occurred without causation, he invited the
    jury to arrive at that very factual finding as one possible outcome. With
    respect, this was an error.

[44]

The
    validation of a dangerous driving but no causation finding began with the trial
    judges decision to delay ruling on whether dangerous driving
simpliciter
would be left with the jury until after counsel addressed the jury. As a
    result, counsel were permitted to address the jury ungoverned by a ruling. Both
    jury addresses delivered by counsel before that ruling featured causation as a
    live issue.

[45]

The
    closing address of the defence was riddled with submissions inviting the jury
    to assign causal blame for the accident to Ms. Abogado:

The Crown will tell you that Constable Romano admitted under
    oath that it was his position that Ms. Abogado was solely responsible for her
    death. Let me be clear: The defence position is that Ms. Abogado made a fateful
    decision to cross St. Clair Avenue at the time and location she did. Ms. Abogado
    is solely responsible for the decision she made.. [T]hats the risk you take
    when you jaywalk. The point is jaywalking is inherently dangerous.

While it may be true that everyone jaywalks, this case is not
    about a casual jaywalker crossing a quiteeth [
sic
] residential street in
    daylight. This case is about stepping into traffic on a four-day [
sic
]
    road at night. This case is about trying to beat the traffic.

In the next three pages of transcript, defence counsel
    continued to address Ms. Abogados fault, and the inevitability of the
    collision given her conduct.

[46]

The
    closing address of Crown counsel at trial (not counsel on this appeal) continued
    this theme. Crown counsel advised the jury that causation was one of the two
    questions that the trial was about. He urged the jury to find that Ms. Abogado
    did not just appear in front of Mr. Romano. Instead, he argued Mr. Romano had
    time to see her and react, but her death was still unavoidable because Mr.
    Romano was speeding and not paying enough attention to react in time. Crown counsel
    chided Mr. Romanos position that he was the victim, not Ms. Abogado, and
    that he did nothing wrong, she did. Crown counsel also described Ms. Abogado as
    the true victim and argued that her decision to jaywalk was commonplace
    based on the reasonable expectation that oncoming traffic would be moving close
    enough to the speed limit to enable her to cross the road safely.

[47]

Clearly,
    by the end of the closing arguments the jury was alerted to causation as a live,
    central issue. It was in this context that the trial judge gave his jury charge,
    which failed to neutralize the emphasis that causation had taken on as an issue
    in the case.

[48]

In
    his charge, after instructing the jury to consider causation, the trial judge introduced
    the legal causation test and told them to consider all the evidence concerning Ms.
    Abogados death in determining whether the Crown had proved that Mr. Romanos
    conduct contributed more than insignificantly to Ms. Abogados death.

[49]

Among
    the evidence recited earlier in his charge was 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, and that she 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. The trial judge also recited
    Officer Smiths evidence that Ms. Abogado ran into the path of Mr. Romanos
    vehicle, and Mr. Sarmientos evidence that she stopped suddenly [on the road]
    and appeared to be startled, as well as Mr. Romanos evidence that he did not
    see any person before Ms. Abogado just appeared in front of his vehicle, and then
    Ms. Taylors testimony that, while trailing Mr. Romanos vehicle, she did not
    see anyone in the road.

[50]

To
    be sure, the trial judge also recounted evidence that might work against Ms.
    Abogados responsibility for the collision, including expert evidence that she
    was not running when hit. He also reminded the jury that whether Ms. Abogado ran
    across or stopped may not matter if they accepted the expert testimony that,
    given the speed at which Mr. Romano was travelling, he would not have been able
    to avoid hitting her. The instant point, however, is that the trial judge invited
    the jury to evaluate the causation issue after having elsewhere in his charge
    recounted evidence that would naturally feed such consideration.

[51]

Most
    significantly, the trial judge made irrelevant and adverse comments about Ms.
    Abogados conduct. After telling the jury to take into account that Ms. Abogado
    was jaywalking he added, [j]aywalking is an inherently risky activity. Then,
    he said [p]edestrians must be aware, when they jaywalk, that drivers are not
    always paying attention, not always concentrating on what is going on ahead of
    them. He then described the darkness of Ms. Abogados clothing, and the poor
    visibility at the time of the collision.

[52]

Although
    these immaterial comments were made while the trial judge was directing the
    jury on how to determine whether the vehicle was being operated dangerously,
    and not when he was describing causation, the inherent risks of jaywalking and
    the obligation of jaywalkers to be aware of the risks of jaywalking have
    nothing to do with whether a vehicle is being operated dangerously. These
    comments, which largely parrot causation arguments made by the defence, could
    only have been understood by the jury as being relevant to responsibility for
    the collision.

[53]

In
    my view, the trial judges charge, taken as a whole and in light of the closing
    arguments, presented causation as a live issue. It instructed the jury to
    resolve the issue, it furnished the legal test, and it armed the jury with
    information that they could use to find no causation.

[54]

The
    fact that the trial judge commented, [i]f you are satisfied beyond a
    reasonable doubt that the driving was dangerous as I have defined it, you
    should not have difficulty in finding that it caused her death, does not
    change this. The trial judge told the jury the case was for them to decide, and
    they were not bound by any opinions he expressed.

[55]

Nor
    does the fact that he told the jury that drivers know people jaywalk and should
    be alert to that possibility, alter the fact that he charged the jury in a way
    that invited the jury to arrive at the very factual decision he had found to be
    without an air of reality.

[56]

In
    my opinion, the trial judge need not, and should not have done so. After deciding
    to remove the included dangerous driving offence from the jury, he should have
    discharged his obligation of advising them of the elements of the offence that
    would have to be found for a conviction, but then made it clear to them that
    causation was not, in law, a live issue in the case that can properly attract
    reasonable doubt.

[57]

The
    trial judge told the jury in his charge that they need not consider
    identification any further because this essential element had been admitted. He
    should have done much the same with the causation issue. While Mr. Romano did
    not formally admit causation, at trial, his counsel acknowledged there was no
    realistic basis in law for finding no causation if a finding of dangerous driving
    was made. That admission was made as a submission in aid of a tactical defence preference
    not to have the offence of dangerous driving left with the jury. In these
    circumstances, Mr. Romano could not have complained had the trial judge
    directed the jury that it was agreed, as a matter of law, that if it was proved
    beyond a reasonable doubt that Mr. Romano drove dangerously, it must follow
    that his dangerous driving caused Ms. Abogados death.

[58]

The
    trial judges failure to provide such a direction after removing the included
    offence of dangerous driving from the jury created a problematic trial in three
    respects.

[59]

First,
    failing to make clear to the jury that causation was not a live issue left resonant
    defence counsels attempt to secure an acquittal based on the absence of
    causation, even though the defence had relied on the submission that causation was
    not a real issue so that it could obtain what it considered to be the tactical
    advantage of removing the dangerous driving charge from consideration.

[60]

Second,
    failing to make clear to the jury that causation was not a live issue created a
    realistic prospect that the trial judges instruction to acquit Mr. Romano entirely
    if only dangerous driving was proved beyond a reasonable doubt, would be acted
    upon by the jury. Of course, if that was the factual finding the jury was to
    make, a proper legal verdict would be a finding of guilt on the very charge the
    trial judge chose not to leave with the jury, namely, dangerous driving.

[61]

Third,
    failing to make clear to the jury that causation was not a live issue left the
    trial judge in a position where he was inviting the jury to arrive at a verdict
    he had already determined to be unreasonable on the evidence.

[62]

Ironically,
    the trial judge removed dangerous driving from the jury in large measure
    because, given how obvious causation was, it would puzzle the jury if he was to
    instruct them that they could find that causation was not proved beyond a
    reasonable doubt and then convict Mr. Romano only of the lesser offence. Instead,
    the trial judge ended up instructing the jury as if they could realistically
    find that that causation was not proved beyond a reasonable doubt, and then
    acquit Mr. Romano entirely  an equally confusing but also legally erroneous
    outcome.

[63]

In
    my view, the trial judge erred in law in giving a charge on the causation issue
    that did not furnish the jury with adequate guidance on how to address the
    issue of causation. Had this been the only error, the proper response on appeal
    would be to order a new trial solely on the included offence of dangerous
    driving. Regrettably, however, as I will next explain, this was not the only
    error in the jury charge.

(2)

The Charge and the
Actus Reus
and
Mens Rea

[64]

The
    Crown argues that the trial judge misdirected the jury by permitting
    considerations of causation to obscure a proper evaluation of the
actus
    reus
and

mens rea
of the dangerous driving component of
    the charged offence, and by permitting the focus to be on the collision, rather
    than Mr. Romanos manner of driving.

[65]

I
    agree with the Crown. The portion of the jury charge addressing whether Mr.
    Romano engaged in dangerous driving, or more technically, operated the motor
    vehicle in a manner that was dangerous to the public, gave undue focus to the
    collision, and to questions of responsibility for the collision. It should have
    focused on Mr. Romanos driving and whether that driving constituted a marked
    departure from the standard of care expected of a police officer in Mr.
    Romanos circumstances.

[66]

To
    make this point, the nature of the dangerous driving element of the offence
    of dangerous driving causing bodily harm requires elaboration.

[67]

As
    explained in
R. v. Roy
, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 28, summarizing
R. v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49, the dangerous driving
    element of the offence of dangerous driving causing death itself has two
    distinct elements, the
actus reus
and
mens rea
components:

The
actus reus
of the offence is 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 (s. 249(1)(a) of the
Criminal Code
). The
mens
    rea
is that 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). The care
    exhibited by the accused is assessed against the standard of care expected of a
    reasonably prudent driver in the circumstances. The offence will only be made
    out if the care exhibited by the accused constitutes a
marked
departure
    from the norm. 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 (para. 48). [Emphasis in original.]

[68]

The
    Supreme Court of Canada has been clear that in examining the
actus reus
element of dangerous driving, the focus should be on the manner of driving, not
    the consequences of driving, or the cause of those consequences. This is
    because it is an offence to drive dangerously even if no-one is injured; the
    act or conduct that the offence of dangerous driving addresses is driving in a
    manner that puts the public at risk that his may happen:
Roy
, at para.
    34. As Charron J. stated in
Beatty
, at para. 46:

As the words of the provision make plain, it is the
manner

in which the motor vehicle was operated that is at issue, not the
    consequence of the driving. The consequence, as here where death was caused,
    may make the offence a more serious one under s. 294(4), but it has no bearing
    on the question whether the offence of dangerous operation of a motor vehicle
    has been made out or not. [Emphasis in original.]

[69]

The
    same holds true, in my view, in assessing the
mens rea
of dangerous
    driving offences. This, again, is because the focus is on whether the manner of
    driving constitutes a marked departure from the standard of care that a
    reasonable person would observe in the accuseds circumstances. There must be a
    meaningful inquiry into the manner of driving, not into the degree of departure
    from the norm that the consequence demonstrates.

[70]

In
Beatty
, Charron J. did, at para. 46, recognize a limited role that
    consequences can play in assessing dangerousness and, by inference, in
    assessing whether a departure is marked:

The consequence, of course, may assist in assessing the risk
    involved, but it does not answer the question whether or not the vehicle was
    operated in a manner dangerous to the public.

[71]

Simply
    put, when asking whether the manner of driving has been dangerous, or
    represents a marked departure, a consequence that has occurred can verify the
    nature of the risks that existed, but that consequence should not be used in
    determining whether the manner of driving was dangerous or in marked departure
    from the norm. Judging whether driving was dangerous by exploring whether the
    accused is at fault for an accident that occurred obscures the proper focus on
    the manner of driving, and duplicates causation considerations that arise when,
    as in this case, an aggravated form of dangerous driving is charged.

[72]

Moreover,
    in assessing the dangerousness of the driving the relevant risk to be
    considered is not the risk that the specific accident event would materialize. As
    the statutory definition of dangerous driving in s. 249(1) of the
Criminal
    Code
makes plain, what is of interest is danger to the public generally.

[73]

Even
    when it comes time to consider causation in the context of intervening acts, the
    relevant foreseeability inquiry is not concerned with whether the specific
    consequence that occurred was reasonably foreseeable; the inquiry is whether
    the general kind of event that constitutes the putative intervening event is
    foreseeable. This is why this court asked in
Malkowski
, at para. 16,
    whether it was reasonably foreseeable that a person would go on to the road in
    some manner at the time and place of the appellants dangerous driving, rather
    than whether it was reasonably foreseeable that someone would attempt to run
    across the road as the victim did in that case.

[74]

In
    my view, the trial judge made these errors in charging the jury on how to
    assess whether Mr. Romanos driving was dangerous. The charge gave undue focus
    to the collision, and to questions of responsibility for the collision, when it
    should have focused on Mr. Romanos driving, and whether that driving constituted
    a marked departure from the standard of care expected of a police officer in Mr.
    Romanos circumstances. I will elaborate.

[75]

The
    trial judge began the relevant portion of his charge properly by giving the
    standard direction to the jury to decide whether the manner of driving was
    dangerous to the public, and to focus on the risks created and not the
    consequences. Further, he told the jury: [e]ven if Ms. Abogado was partly
    responsible for what happened, the fact that she was jaywalking is only
    relevant to foreseeability of risk.

[76]

Leaving
    aside that the trial judge did not go on to explain how Ms. Abogados jaywalking
    was relevant to the foreseeabilty of the risk, the trial judge then took a
    wrong turn. After drawing attention to Ms. Abogados partial responsib[ility]
    for what happened and her jaywalking, he directed the jury to ask, in light
    of all the circumstances, would a reasonable, prudent police officer have
    foreseen
the risk
and taken steps to avoid it (emphasis added). In
    doing so, he focused the jury on the risk posed given Ms. Abogados jaywalking,
    and not the general risks to the public that may have been posed by Mr.
    Romanos manner of driving.

[77]

What
    followed in the trial judges instructions is more problematic, as the focus on
    the collision and Ms. Abogados role in it became more intense. Although I have
    quoted part of these instructions earlier in these reasons, they bear
    repetition in full:

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.

[78]

The
    focus in this passage is wrong in law. The passage instructs 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
    Mr. Romanos driving. The passage also gives emphasis to the conduct of Ms. Abogado.
    The issue for the jury at this juncture was 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.

[79]

In
    fairness, the trial judge did then properly re-orient the jury:

That said, everyone who drives knows that people jaywalk. It
    happens often. Indeed, Mr. Goode, the bus driver, told you that people cross
    St. Clair Avenue, in the way that Ms. Abogado did, pretty frequently. Drivers
    should, therefore, be alert to the possibility of pedestrians [
sic
]
    jaywalking, just as they should be alert to the possibility that another driver
    may do something that will cause a situation that needs to be avoided and be
    prepared to adjust their driving accordingly.

[80]

In
    the following three paragraphs, however, the improper focus on the
    foreseeability and avoidability of the collision with Ms. Abogado was
    reintroduced. The jury was directed to evidence about whether, given the speed at
    which Mr. Romano was travelling, Ms. Abogado could have been seen in time to
    avoid the collision, and whether Ms. Abogado ran in front of or stopped in
    front of Mr. Romanos police vehicle.

[81]

The
    balance of the relevant portion of the charge was appropriate. The trial judge
    addressed Mr. Romanos familiarity with the area where he was driving, and
    identified admissions by Mr. Romano that, given the speed at which he was
    travelling, he could not do anything about pedestrians on the road, like Ms. Abogado,
    and that he did not take into account that a person might be jaywalking from
    the bus shelter, a bus shelter he did not know was there.

[82]

The
    trial judges final paragraph addressing the dangerousness of the driving was exemplary:

In the end result, you will have to decide whether you consider
    the manner in which Mr. Romano was driving, including the speed that he was
    travelling at; the fact it was on a city street with residences around; the
    fact that it was dark but there was street lighting; and the potential for
    pedestrians to be jaywalking, constituted a marked departure from the manner in
    which a reasonable, prudent police officer would drive in the same
    circumstances.

[83]

The
    issue, then, is whether the proper bookending paragraphs of the charge focusing
    on the general manner of driving and the general risks posed by that driving, are
    sufficiently clear to overcome the misdirected and misleading focus on the
    consequence or collision, and on the blameworthiness of Ms. Abogado that is shot
    throughout this part of the charge.

[84]

In
    making this determination, I am required to consider the legal standards that
    are imposed on jury charges. Specifically, the relevant inquiry here is about
    the obligation of the trial judge to assist the jury in understanding the
    factual issues arising out of the legal framework that the jury must resolve,
    and the material evidence relevant to those issues:
R. v. Newton
, 2017
    ONCA 496, 349 C.C.C. (3d) 508, at para. 11. As this court explained in
Newton
,
    at para. 13, while judges have discretion in how to charge and can stray from
    the ideal without error, the sufficiency of the charge in these respects should
    be resolved by asking, functionally: has the jury been left with a sufficient
    understanding of the facts as they relate to the relevant issues; or are we
    satisfied 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. If the answer is no to either question,
    the trial has not been a fair one.

[85]

Looking
    at the matter functionally, I do not believe that general instructions to examine
    the manner of driving, and an exemplary concluding paragraph, could dissuade a
    jury from engaging in the improper exercise the trial judge repeatedly directed
    the jury to undertake. I am reinforced in this conclusion by the fact that some
    of the passages in the charge include irrelevant and adverse comments on the
    inherently risky activity of jaywalking, and on the responsibility jaywalkers
    bear. In the end, the jury was not left with a sufficient understanding of the
    facts as they relate to the relevant issues. Nor would the jurors have
    adequately understood the issues involved, the law relating to the charge the
    accused is facing, and the evidence they should consider in resolving the
    issues.

[86]

To
    summarize, notwithstanding the absence of an objection to the charge by the trial
    Crown, the errors in the charge described above are sufficiently serious that
    the jury was not in a position to evaluate properly the dangerousness of the
    operation of the motor vehicle, leading to a miscarriage of justice.

(3)

The Charge and Lawful Justification

[87]

There
    is no lawful justification defence to the offence of dangerous driving.
    Instead, the law uses the
mens rea

component of the offence of
    dangerous driving to permit emergency personnel to operate motor vehicles in a
    manner that might otherwise be criminal. As I have explained, to establish the
mens
    rea

of dangerous driving the Crown must prove that the manner of
    driving was a
marked
departure from the standard of care that a
    reasonable person would observe in the accuseds circumstances (emphasis in
    original):
Roy
, at para. 28. In applying this modified objective
    test in which the accuseds circumstances are relevant, the status of the
    accused as an on-duty police officer acting in the course of his duties must be
    considered. Unless the manner of driving by the accused is a marked departure
    from the standard of care that a reasonable on-duty police officer would observe
    in the circumstances, dangerous driving cannot be found.

[88]

The
    Crown raises issues with the way the trial judge charged the jury on this
    issue. Specifically, the Crown contends that the charge relating to Mr.
    Romanos role as a police officer was misleading in that it left the impression
    that s. 128(13) of the
Highway Traffic Act
was a defence to dangerous
    driving. The Crown also urges that the overall instruction on this issue was
    confusing, failing to provide guidance on how to evaluate Mr. Romanos role at
    the time of driving as an on-duty police officer. I would not give effect to
    either of these grounds of appeal.

[89]

Section
    128(13) of the
Highway Traffic Act
provides that speed limits do not
    apply to police department vehicles used in the lawful performance of a police
    officers duties. If an officer is in the lawful performance of their police
    duties, this provision exempts police officers from speed limits, but not from
    criminal offences such as dangerous driving.

[90]

Still,
    it was proper for the trial judge to acquaint the jury with s. 128(13) of the
Highway
    Traffic Act
. Since the jury was required by law to evaluate whether Mr.
    Romanos manner of driving was a
marked
departure from the standard
    of care that a reasonable person would observe in the accuseds circumstances,
    the jury had to be instructed that, like other police officers, Mr. Romano was
    lawfully entitled to exceed posted speed limits:
Roy
, at para. 38.

[91]

Had
    the trial judge actually communicated that s. 128(13) of the
Highway Traffic
    Act
is a defence to a dangerous driving causing death charge, he would have
    erred. However, he did not do so. Immediately after introducing the provision
    he directed the jury:

That exemption does not mean, however, that police officers
    have a licence to do whatever they please in terms of driving above the speed
    limit. They are still subject to the criminal law and can face charges for
    their actions, as Mr. Romano does here. In addition, police officers must
    always act in a reasonable and prudent manner with a view to protecting the
    public. They must have regard for their actions, and the consequences of those
    actions, for public safety.

[92]

Nor
    did the trial judge fail to alert the jury to the higher standard of care that
    applies to police officers operating vehicles in the privileged manner permitted
    under s. 128(13). He did so with clarity earlier in the charge.

[93]

The
    related Crown complaint, that the charge was confusing and failed to provide
    guidance on how to evaluate Mr. Romanos role at the time as an on-duty police
    officer, has more foundation. Specifically, parts of the jury charge may be
    read as suggesting that there is a self-standing defence of lawful
    justification. These include the trial judges reference to lawful
    justification or excuse in the charge, and his direction that the jury
    consider whether Mr. Romano had a lawful justification, excuse or explanation for
    [his] driving.

[94]

It
    would have been better had the trial judge avoided such language and simply
    explained directly how Mr. Romanos role as an on-duty police officer must be
    considered in applying the marked departure test. Read in context, however, I am
    satisfied that the isolated passages in question would not have left this jury
    confused. The trial judge did not purport to offer a legal test for identifying
    lawful justification or excuse, as if it was a self-standing defence.
    Instead, he situated this discussion within his canvas of the dangerous driving
    element of the offence. He also posed the correct questions for consideration,
    including whether it was important for Mr. Romano to regain his position with
    the surveillance team, whether it was reasonable not to activate his emergency
    lights, and whether in driving above the speed limit he acted in a reasonable
    and prudent manner with a view to protecting the public. Immediately after
    raising these questions, the trial judge told the jury to decide whether Mr.
    Romano drove in a marked departure from the manner in which a reasonable,
    prudent police officer would have done in the same circumstances. These were
    proper and necessary considerations.

[95]

Accordingly,
    I would not give effect to this ground of appeal.

CONCLUSION

[96]

For
    the reasons given, I would reject the Crowns first and last grounds of appeal.
    The trial judge was correct not to leave the included offence of dangerous
    driving with the jury, and his instructions relating to Mr. Romanos role as an
    on-duty police officer do not reflect reversible error.

[97]

I
    would, however, give effect to other grounds of appeal.

[98]

Having
    removed the dangerous driving charge from the jury, the trial judge erred by
    leaving, as a live issue, the possibility that the jury could make factual
    findings that would support a finding of guilt on a dangerous driving charge, and
    yet acquit Mr. Romano entirely.

[99]

Moreover,
    the jury charge relating to the
actus reus

and
mens rea

elements of dangerous driving was confusing, and failed to give proper
    guidance that would enable the jurors adequately to understand the issues
    involved and the evidence they should consider in resolving these issues.

[100]

I would
    therefore allow the appeal, set aside the verdict of acquittal, and order a new
    trial on the charge of dangerous driving causing death.

Released: November 3, 2017 (D.M.P.)

David M. Paciocco J.A.

I agree. E.A. Cronk J.A.

I agree. R.G. Juriansz J.A.





[1]
Ms. Abogados legal name
, the name included in the indictment,
    is Natasha Abogado. She went by the name of Carla, hence its use in these
    reasons.


