



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Porto, 2018 ONCA 291

DATE: 20180323

DOCKET: C63513

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jamie Porto

Appellant

David Butt and Maija Martin, for the appellant

Frank Au, for the respondent

Heard: March 20, 2018

On appeal from the
    conviction entered on December 15, 2016 and the sentence imposed on March 22,
    2017 by Justice Bruce G. Thomas of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR
    DECISION

[1]

The appellant argues that the trial judge erred
    in convicting him of dangerous driving causing bodily harm. The appellant, a
    police officer, was responding to an emergency at high speed. He drove through
    a small town where the posted speed limit was 50 kmph, at a speed of 178 kmph.
    He passed a construction zone and a school, and crashed into a vehicle
    travelling in the same direction, but in the process of making a left turn as
    the appellant tried to pass him on the left. Trial counsel conceded that the
    high speed driving amounted to driving in a manner dangerous to the public, and
    thus established the
actus reus
of the
    offence. It was also conceded that the appellants driving was a cause of the
    bodily harm resulting from the collision. The substantial issue for trial was
    whether the Crown had proven beyond a reasonable doubt that the appellants
    driving amounted to a marked departure from the standard of care that a
    reasonable person would observe in the accuseds circumstances. (
R.
    v. Roy
, 2012 SCC 26 at para. 28,
R. v. Beatty
, 2008 SCC 5)

[2]

The appellant argues firstly that the trial
    judge did not apply the criminal standard of proof beyond a reasonable doubt in
    deciding this question. He submits that it was not sufficient for the trial
    judge to simply express disagreement with the appellants argument that his
    driving did not amount to a marked departure from the norm; the trial judge had
    to go further and assess whether this element of the offence was proven beyond
    a reasonable doubt.

[3]

We do not agree that the trial judge failed to
    apply the appropriate standard of proof. The trial judge expressly acknowledged
    the defence arguments at paragraph 75 of his reasons,

The defence
    argues that although the driving was dangerous, I must, at the very least, have
    a reasonable doubt as to whether Constable Portos conduct amounted to a marked
    departure from the standard of care which a reasonable police officer would
    have exercised in the same circumstances. I am reminded that this officer was
    responding to a potential life-threatening call. A call where Constable Porto
    and other testifying officers suggested a few seconds could make a real
    difference in the survival of the injured caller.

[4]

Ultimately, the trial judge concluded that the
    appellants driving amounted to a marked departure from the standard of care of
    a reasonable police officer, at para. 90,

Constable Porto
    should have foreseen the danger posed by Mr. Coombess vehicle. At the speed he
    was travelling, he should have realized that he had no time to react if he
    guessed wrong. I find that the reasonable police officer in these circumstances
    would have reduced his speed dramatically and maintained his eastbound lane
    until he was sure of the intentions of Ryan Coombes. The failure to reduce his
    speed and proceed to pass at this intersection in the middle of the village
    amounted to a marked departure from the standard of care of a reasonable police
    officer.

[5]

The trial judge carefully reviewed all of the
    surrounding circumstances, including those said to raise a doubt as to the
    degree of the appellants departure from the norm:

1.

The serious nature of the emergency call to which the appellant was
    responding;

2.

Police officers training and experience in high speed driving.
    Other officers endorsed the appellants manner of driving;

3.

The exemption in s. 128(13) of the
Highway Traffic Act
R.S.O. 1990, c. H.8 allowing police officers to exceed posted speed limits in
    the performance of their duties;

4.

The condition of the road, wide, straight and dry;

5.

The quiet time of the day, school was in session nearby;

6.

The appellants awareness of the construction zone;

7.

The appellants familiarity with the village;

8.

The contribution to the collision caused by the other vehicles
    failure to pull over to the right in response to the lights and siren of the
    appellants vehicle, and the possible failure of the other driver to signal a
    left turn.

[6]

Having considered all of the circumstances, the
    trial judge concluded that the appellants excessive speed in and of itself
    amounted to a marked departure from the standard of care of a reasonable police
    officer. It was open to the trial judge to reach this conclusion. We are not
    persuaded that he applied a standard of proof less rigorous than proof beyond a
    reasonable doubt.

[7]

This brings us to the second argument made by
    the appellant against conviction, that the trial judge overemphasized speed as
    a factor. Given that the trial judge concluded that speed alone amounted to a
    marked departure, it is difficult to see how he could over-emphasize this
    factor. As the trial judge found, at 178 kmph the appellant had virtually no
    time to react to emergencies or foreseeable conduct by other drivers.

[8]

Accordingly, the appeal from conviction is
    dismissed.

[9]

The appellant also seeks leave to appeal from
    the sentence imposed, a $2500 fine and a one year driving prohibition. He
    acknowledges that the sentence imposed by the trial judge was fit, but asks
    that we consider fresh evidence and on that basis substitute a discharge. The
    gravamen of the fresh evidence is that the appellant is a conscientious and
    able police officer respected by his superiors and his peers. That same
    evidence was before the trial judge and it provides no basis upon which this
    court could interfere with the sentence he imposed. Leave to appeal the
    sentence is granted, the motion to admit fresh evidence is dismissed and the
    appeal from sentence is dismissed.

Robert J. Sharpe J.A.

G. Pardu J.A.

Fairburn J.A.


