



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Galletta, 2020 ONCA 60

DATE: 20200129

DOCKET: C66913

Benotto, Paciocco and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Galletta

Appellant

Ian M. Carter, for the appellant

Gavin MacDonald, for the respondent

Heard: January 17, 2020

On appeal from the conviction entered on January 10, 2019
    by Justice Jacqueline Loignon of the Ontario Court of Justice, with reasons
    reported at 2019 ONCJ 571.

REASONS FOR DECISION

OVERVIEW AND ISSUES

[1]

Christopher Galletta
[1]
appeals his convictions by an Ontario Court of Justice judge on two counts of
    criminal negligence causing death, and one count of criminal negligence causing
    bodily harm. He also appeals the findings of guilt made against him of three
    overlapping aggravated dangerous driving offences.

[2]

Mr. Galletta did not dispute at his trial that, objectively, his manner
    of driving was dangerous and that it caused the death of two young female
    passengers in the car he was driving, as well as serious injury to a third
    young female. Nor could he. Mr. Galletta lost control of the vehicle while attempting
    to pass two cars, while approaching the crest of a hill on a narrow country
    road, at a speed that exceeded the 80 km/h speed limit by approximately 100
    km/h. After one of his wheels caught the gravel on the side of the road, the
    vehicle travelled through a ditch and then launched high enough into the air to
    strike a hydro pole 2.71 metres from its base before tearing through 32 metres
    of dense bush, resulting in the unspeakable losses we have described.

[3]

Indeed, Mr. Galletta takes no issue on this appeal with the trial
    judges finding that his manner of driving showed wanton and reckless disregard
    for the lives and safety of others, adequate to support the
actus reus
for
    his criminal negligence convictions. Instead, his appeal is based on the
    treatment by the trial judge of the
mens rea
components of the
    offences charged.

[4]

He contends that she failed to properly consider the circumstances he
    was in at the time of the accident when considering his fault or
    blameworthiness. He was in a state of panic, fleeing from young men who had
    threatened to kill him before chasing him down, boxing his vehicle in with
    their cars, and then smashing the drivers side window to get at him. He had,
    within two minutes of the accident, escaped by accelerating around the
    assailants vehicles and then fleeing down the highway.

[5]

The specific argument made before us by Mr. Galletta can fairly be put
    this way:

A.

The trial judge erred by focusing only on the manner of driving when
    assessing: (i) whether Mr. Gallettas manner of driving constituted a significant
    enough departure from the standard of the norm to ground the criminal liability
    imposed; and (ii) in determining whether a reasonable person in his
    circumstances would have appreciated the risk having been deprived of rational
    considered thought by actions beyond his control; and

B.

The trial judge erred by using the automatism/incapacity standard to
    assess whether Mr. Galletta had the requisite
mens rea
.

[6]

We reject both grounds of appeal. The trial judge stated the relevant
    law impeccably, and she applied it without palpable and overriding error.

A.

Did the trial judge err by focusing only on the manner of driving?

[7]

Criminal negligence and dangerous driving are penal negligence offences.
    They each address objectively dangerous conduct but because they do so by
    imposing criminal consequences, the requisite level of negligence is elevated from
    simple negligence to penal negligence: in the case of dangerous driving, to a
    marked departure from the standard of the norm, and in the case of criminal
    negligence, to a marked and substantial departure from the standard of the norm:
R. v. Hundal
, [1993] 1 S.C.R. 867, at p. 888;
R. v. Javanmardi
,
    2019 SCC 54, at para. 21. Compliance with those standards in driving cases is
    assessed by asking whether a reasonable person in the position of the accused
    would have been aware of the risk posed by the manner of driving and would not
    have undertaken the activity:
R. v. Beatty
, 2008 SCC 5, [2008] 1
    S.C.R. 49, at para. 37.

[8]

In answering these questions, a modified objective test is applied.
    More specifically, the assessments just described are to be made in the
    circumstances the accused was in at the time of the alleged offence. However, the
    modification of the objective test has limits. Since such offences are meant to
    establish appropriate levels of objective care, the personal attributes of the
    offender are not to be considered:
R. v. Roy
, 2012 SCC 26, [2012] 2 S.C.R.
    60, at para. 38;
Beatty
, at paras. 39-40.

[9]

As a result, even if Mr. Galletta was deprived of rational considered
    thought by actions beyond his control because he was too panicked and
    frightened to think clearly, the trial judge was not obliged to assess his
    negligence on that footing unless a reasonable, ordinary person in his circumstances
    (having been threatened, chased down in a car, and assaulted as he was) would
    also be deprived of rational considered thought. If a reasonable, ordinary
    person in those circumstances would not have been deprived of rational thought,
    then Mr. Gallettas deprivation of rational considered thought necessarily
    arises from his personal attributes, not from the circumstances.

[10]

The trial judge understood this, and when her reasons are read in
    context, this is precisely the exercise she engaged in and the conclusion she
    arrived at. She recognized that the confrontation was terrifying, and that Mr.
    Galletta had a reasonable basis for his fear when fleeing the quarry where the
    confrontation occurred. She also accepted that as he sped throughout the 2.7-kilometre
    drive to the accident scene, he was very scared and he repeatedly expressed
    fear for his life. She accepted that he was in such a state that he was
    initially crying and then hyperventilating, and that Ms. Foley, the surviving
    victim, did not believe that the continual pleas from all three victims that he
    calm down, slow down, and stop were registering. After accurately setting out
    the defence position, the trial judge concluded, as she was entitled to, that
    during the one to two minutes that passed, time and distance removed the
    imminent peril. A reasonable, ordinary person in these circumstances, having
    received the repeated warnings and pleas from the victims, coupled with their
    repeated assurances that they were not being followed by the assailants, would
    have foreseen the risk of continuing to drive in the manner he did. Nor would
    that reasonable person have chosen to run the risk of driving in the manner Mr.
    Galletta did in the face of a risk of violence that had passed. The trial judge
    found that Mr. Gallettas departure from these standards was marked and
    substantial. We find no error in her application of the modified objective
    test.

B.

Did The trial judge err by using the Automatism/incapacity standard to
    assess whether Mr. Galletta had the requisite
menS rea
?

[11]

As a matter of law, a finding of automatism or incapacity is a defence
    even if a reasonable person would have foreseen and avoided the risk in the
    circumstances:
R. v. Creighton
, [1993] 3 S.C.R. 3, at p. 61.

[12]

The trial judge understood this. She did not raise automatism to suggest
    that Mr. Gallettas panic had to bring him to a state of automatism or
    incapacity to negate his criminal liability under the modified objective test,
    as Mr. Galletta now suggests. Instead, the trial judge was simply being
    complete in responding to capacity-based evidence and submissions by
    considering whether he had the benefit of the incapacity defence. By the point
    in her judgment where she raised and addressed this issue, she had already made
    the requisite findings to determine that a reasonable person in the
    circumstances would have foreseen and avoided the relevant risk.

[13]

Having undertaken this analysis, the trial judge found that despite his
    condition and Ms. Foleys evidence that the warning and pleas of the women were
    not registering, and even though that case law suggests that panic can produce
    a state of automatism, Mr. Galletta was not incapacitated. He was responsive to
    the inquiries made. As defence counsel conceded at trial, his decision to drive
    as he did was voluntary.

[14]

We see no error in the trial judges use of the automatism/incapacity
    standard.

CONCLUSION

[15]

The appeal is dismissed.

M.L. Benotto
    J.A.

David M.
    Paciocco J.A.

Thorburn J.A.





[1]

In the judgment below, the title of proceedings refers to the
    appellant as Chris Galetta. The correct spelling of his name is Christopher
    Galletta. In the absence of an amendment, the title of proceedings reflects the
    judgment below.


