COURT OF APPEAL FOR ONTARIO DATE: 20240206 DOCKET: C69429
Trotter, Thorburn and Sossin JJ.A.
BETWEEN
His Majesty the King Respondent
and
Dunhill Tabanao Appellant
Counsel: Melanie J. Webb, for the appellant Manasvin Goswami, for the respondent
Heard: December 4, 2023
On appeal from the convictions entered by Justice Gary W. Tranmer of the Superior Court of Justice on June 8, 2020, reported at 2020 ONSC 3501, and from the sentence imposed on July 22, 2021.
I. OVERVIEW
1On the evening of May 11, 2017, the appellant, a professional truck driver, was driving a loaded tractor-trailer on cruise control at about 100km/h on Highway 401. Visibility and road conditions were good. Traffic in front of him had slowed nearly to a full stop for three kilometres ahead. This stop-and-go traffic was seen by those in it from about 2,300 metres away, with no visual obstructions. The third car from the back of this lineup was an armored Garda truck that had its four-way lights on to signal the slowed traffic, as did other vehicles in the lineup. Behind the Garda truck was a Ford Focus, and behind the Ford, a Hyundai, also with its taillights on. The driver of the Hyundai saw the appellant’s tractor-trailer approaching at such a rapid speed that he chose to suddenly veer off the road into an adjacent field to avoid being struck.
2Without slowing down, the tractor-trailer ran into the Ford Focus square on from behind. The Ford burst into flames and was forced underneath the Garda truck in front of it. All four passengers in the Ford were killed instantly. The appellant’s tractor-trailer also collided with the Garda and destroyed it, injuring all three of its passengers. The impact of the collision caused a six-vehicle pile-up, affecting another tractor-trailer in front of the Garda, and two vehicles in front of that.
3The appellant gave evidence that he had been looking away from the road for a period of time prior to the collision. The evidence also showed that the appellant did not brake in the 7 seconds leading up to impact – and that it would have taken him approximately 5.5 seconds to stop safely.
4Following an 11-day trial, the appellant was convicted on four counts of criminal negligence causing death and three counts of criminal negligence causing bodily harm. He was sentenced to 7 years in prison, a 12-year driving prohibition, and a 10-year weapons prohibition.
5Thirteen witnesses testified for the Crown at trial, including two truck drivers and one passenger involved in the collision, and police witnesses who were qualified as experts in collision reconstruction, forensic mapping, and the extraction and analysis of the engine control module (“ECM”) of the vehicle and location data analysis of the Garda truck.
6The defence tendered, on consent, the preliminary inquiry transcript testimony of Parminder Singh, as well as the police statement of Patryk Fijalkowski, who were two other drivers involved in the collision. The defence called one witness, Scott Walters, who gave evidence as an expert witness. The appellant did not testify.
7Documentary evidence included expert reports, photographs, and two videos of the driving route, among other items. The appellant’s statements to police were considered along with his utterances to others on scene. A prior accident report relating to a September 2015 incident involving the appellant, in which no charges were laid, was admitted into evidence following a voir dire.
II. THE TRIAL JUDGE’S DECISION
8The decision on appeal is lengthy and deals with a voluminous evidentiary record. Various aspects of the trial judge’s decision are addressed in the analysis of each ground of appeal below. Generally, the key findings made by the trial judge, for purposes of this appeal, are as follows.
9The trial judge found that the appellant kept his foot on the pedal of the vehicle at all times, and the ECM data showed he depressed the gas pedal 6 times in the 55 seconds leading up to the accident, sometimes fully and sometimes only partially. As the cruise control was on, this depressing of the gas pedal had no effect on the speed of the truck. The trial judge noted that the appellant did not apply the breaks of his truck in the 55 seconds before the impact, despite the visible traffic. On the record before him, the trial judge found it “reasonable to infer that this evidence reflects inattention to driving” on the part of the appellant.
10The trial judge also found that there were multiple visual cues that would have alerted the appellant to the slowdown in traffic, including the four-way lights of the Garda truck and the tractor trailer in front of it (both with lights at the top rear), the fact that the rear of both large vehicles were predominately white and would have been illuminated by the headlights behind them, and the presence of other illuminated four-way lights and taillights in the lineup, including those of the last car ahead of the appellant when he was approaching the lineup (the Hyundai). He also found that the fact that so many other vehicles had stopped safely demonstrated there were sufficient cues to make this possible.
11The trial judge noted the following statements the appellant made at the scene: “I was reaching down and then I hit them”; “I’m going to jail. I’m going to jail”; “It’s not the first time it happened to me”; “[I] bent to pick up something and then that … that happened.” He relied on this latter statement and the evidence of two eyewitnesses to conclude that the appellant had not seen the slowed traffic until impact.
12The trial judge acknowledged that there was no direct evidence about the duration of the appellant’s inattention to the road but concluded that the appellant’s inattention must have endured for at least the seven seconds before impact.
13The trial judge found that the appellant reached down and turned his attention away from the road for some period of time just before the accident, which was “a dangerous thing to do.” He concluded that a reasonable person in the appellant’s circumstances would have foreseen the risk and taken steps to avoid it, citing R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49; and R. v. Aleksev, 2016 ONSC 1834.
14The trial judge concluded that the appellant’s failure to perceive the risk created by inattention to driving, and his failure to take steps to avoid this risk, amounted to a marked departure from the standard of care sufficient to ground a conviction for the included offence of dangerous driving.
15The trial judge found that the appellant’s state of mind did not raise a reasonable doubt about whether a reasonable person in the appellant’s position would have been aware of the risk created by the conduct. In reaching this conclusion, the trial judge relied on the appellant’s knowledge of his company policy, previous training in safe driving, and a previous 2015 incident where the appellant rear-ended someone in his truck while reaching in a bag (an accident that did not give rise to criminal charges).
16On the criminal negligence charges, the trial judge reviewed the required higher standards of “wanton and reckless disregard for the lives and safety of other persons” and of “marked and substantial departure” from the conduct of a reasonable person. He went on to find a “pattern of inattention” in the 55 seconds prior to impact, based on the repeated pressing of the gas pedal, relying on Beatty, and R. v. Sippel, 2016 ONSC 4742. He repeated the same factual findings and transposed the same analysis of the appellant’s state of mind to conclude that the offences of criminal negligence causing death and bodily harm were made out.
17The trial judge concluded:
The Crown has proven beyond a reasonable doubt either that Mr. Tabanao disregarded the foreseeable risk that he posed to the traffic ahead, or he failed to direct his mind to the risk and the need to take care. In doing so, the Crown has proven beyond a reasonable doubt that Mr. Tabanao’s driving reflected a marked and substantial departure from what is expected of a reasonable person in the circumstances, and that he demonstrated a wanton and reckless disregard for the safety and lives of others reasonably expected to be travelling on Highway 401 at the time.
In respect of this charge of criminal negligence causing death and bodily harm, I have considered the evidence concerning Mr. Tabanao’s actual state of mind as I did when considering the question of dangerous driving. The evidence of his actual state of mind leaves me with no reasonable doubt about his guilt of the crime of criminal negligence.
The evidence in this case proves beyond a reasonable doubt that his driving fits squarely at the highest end of the continuum of criminal blameworthiness.
III. ISSUES
18The appellant raises the following grounds of appeal against his conviction:
The trial judge erred in interpreting the threshold for criminal negligence and in finding that the essential elements of criminal negligence had been met, in all the circumstances;
The trial judge failed to properly apply the higher standard for criminal negligence, as compared to the standard for dangerous driving;
The trial judge failed to provide sufficient reasons to support the conclusion that the appellant’s driving was a “marked and substantial departure” from the conduct of a reasonable person and that the conduct “displayed a reckless and wanton disregard for the safety of other persons”;
The trial judge erred in reaching certain findings, including, relying upon the evidence of the throttle loading as evidence of a “pattern of inattention” in the absence of evidence as to the significance of the use of the throttle; finding that the appellant’s inattention was not “a momentary lapse of attention”; and the admission and treatment of certain evidence, including prior discreditable conduct.
19The appellant raises the following grounds of appeal against his sentence:
The trial judge erred in his reliance upon R. v. Muzzo, 2016 ONSC 2068, 353 C.C.C. (3d) 411 as being analogous to the circumstances of that of the appellant and his degree of moral blameworthiness; and
The sentence was harsh and excessive in all the circumstances.
20I address each ground of appeal below.
IV. ANALYSIS
21For the reasons that follow, I would dismiss the conviction appeal, but grant the appeal against his sentence and reduce the sentence to five years.
A. THE CONVICTION APPEAL
(1) The trial judge did not err in finding the essential elements for criminal negligence causing death or bodily harm were met
22The appellant contends that the trial judge erred by entering convictions when the essential elements for criminal negligence causing death or bodily harm were not met. The appellant argues that the Crown did not establish that his conduct was wanton or reckless, and that the appellant lacked awareness of the threat to the lives or safety of others that he created or a culpable wilful blindness to the threat that he caused.
23To support this, the appellant notes that there was no evidence of inappropriate, improper, dangerous, or aggressive driving before the impact and no evidence of inattention until the collision itself. Instead, the appellant argues, the crash was caused by an unexpected hazard – the slowed or stopped traffic. To support this, the appellant relies on the findings of the trial judge that: the collision occurred at night on a rural stretch of highway; there was no artificial lighting on that stretch of highway; the road before the collision was straight and flat; there were no structures along the side of the highway; there was no signage drawing attention to the traffic; and the only visual cues of the traffic would have ben the lights of the vehicles in the lineup. The appellant also notes the trial judge’s finding that the appellant did not see the slowed and stopped traffic until the impact and that the duration of the appellant’s inattention was unknown. Moreover, the appellant argues that the trial judge’s inference that the appellant was engaged in a pattern of inattention before the impact was not open to him. In these circumstances, it is argued, the evidence was not sufficient to establish wanton and reckless behaviour.
24I do not agree.
25The question posed here is whether, on the evidence before him, the verdict of the trial judge was reasonable. The standard of review for the reasonableness of a verdict is clear: “It is not the role of the reviewing court to retry the case” and instead the question “is whether the verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding, when applied to the evidence as a whole” would preclude the verdict: R. v. Gaetan, 2023 ONCA 114, at para. 58; R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 163, leave to appeal refused, [2015] S.C.C.A. No. 478.
26The actus reus for criminal negligence causing death or bodily harm requires the accused to have done or omitted to do anything that it was their legal duty to do, and that the act or omission caused someone’s death or bodily harm: Criminal Code, R.S.C. 1985, c. C-46, ss. 219(1), 220, and 221; R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at paras. 19-21. The fault element requires that the criminal act or omission represented a marked and substantial departure from the conduct of a reasonably prudent person in circumstances where they either recognized and ran an obvious and serious risk to the public, or, alternatively, gave no thought to that risk: R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at para. 9; and Beatty, at para. 7.
27While the appellant contends that the available evidence did not support a finding that the appellant’s actions were wanton and reckless, the findings of the trial judge were clear, open to him, and reasonable.
28The trial judge found that there were visual cues that should have alerted the appellant to the danger ahead and that, given these cues, he could have stopped safely. There were the brake lights or hazard lights of the many slowed and stopped vehicles that were visible for 2,300 metres before the site of the collision. Many other vehicles saw the traffic and safely slowed down. The trial judge found that “weather conditions, road conditions and the mechanical condition of the [appellant’s] tractor trailer unit did not contribute” to the crash.
29The trial judge also found that the appellant had reached down in his truck cab and did not return his attention to the road until impact. While the exact time of the appellant’s inattention is not known, the trial judge found that the appellant loaded “the throttle commencing and continuing in the 7 seconds before impact, with no driving purpose for doing so” and that “the compelling and only reasonable inference is that Mr. Tabanao was inattentive to his driving and the danger ahead of him for at least 7 seconds prior to impact.” This definite period of inattention, however, was preceded by the appellant loading the throttle 6 times in the 55 seconds before impact, “show[ing] a pattern of inattention on the part of Mr. Tabanao to his primary task of driving commencing 55 seconds prior to impact.”
30During this time before the crash, the trial judge found that the appellant did not take his truck off cruise control, he did not slow down, nor did he attempt to make evasive maneuvers prior to impact, despite having been able to see the traffic ahead and safely slow down.
31Taken together, the trial judge found that this evidence and findings of fact showed beyond a reasonable doubt that the appellant either recognized and ran an obvious and serious risk to the public or that he gave no thought to that risk. In short, the appellant’s prolonged inattention while driving a large and heavy vehicle was wanton and reckless. The path to this verdict was clear and reasonable in all the circumstances of the case.
32Against this, the appellant raises that the inattention was momentary and that the driving did not involve alcohol consumption, drug use, or “aggressive” maneuvers, reducing the degree to which the appellant’s conduct can be considered a marked and substantial departure from the conduct of a reasonably prudent person.
33However, none of these potential factors are prerequisites for a conviction on criminal negligence causing harm or death. Moreover, the trial judge specifically found that the collision was not the result of a momentary lapse in attention and dealt explicitly with the defence evidence in favour of this proposition. The trial judge found that the appellant was inattentive for more than the time needed to stop before the impact and that the evidence showed a pattern of inattention that lasted for almost a minute before the collision. This was sufficient to ground the trial judge’s finding of a marked and substantial departure.
34The appellant also argues that the inference that he was reaching down in the vehicle prior to the collision was speculative. While this inference will be addressed below in more detail, it should be noted here that it was not speculative. It was open to the trial judge to assess the evidence that the appellant did not see the break lights or hazard lights of the vehicles, which were found to be visible from a significant distance, the evidence that the throttle and not the break was pressed before impact, and the statements of the appellant after the event, to come to this conclusion.
35As the trial judge summarized:
[T]he combination of speed and inattention, both known to the appellant, and the deliberate action on his part of reaching down as he described, created a real hazard that any reasonable person in Mr. Tabanao’s circumstances would have realized and taken steps to avoid. He deliberately drove, with the cruise on, at 62 mph, without braking (either system), steering, clutching or shutting the engine off. As Const. Darraugh testified had Mr. Tabanao taken his foot off the accelerator, his vehicle would have slowed. The evidence is that he did not do so.
36These findings were sufficient to conclude that the appellant presented an obvious and serious risk to the lives and safety of those around him and that he gave no thought to that risk or recognized it and continued his manner of driving. The trial judge’s conclusion that criminal negligence was proven beyond a reasonable doubt was reasonable.
37The appellant also takes issue with the trial judge’s reliance on Sippel, because the case was “distinguishable on its facts.” The trial judge stated that the judge in Sippel concluded that the collision in that case “was the predictable result of the manner in which Mr. Sippel operated his motor vehicle in the kilometre leading up to the impact.” Given the trial judge’s analysis of the evidence of inattention leading up to the collision in the case on appeal, the analogy to Sippel was proper.
38Similarly, the appellant argues that the trial judge misinterpreted and misused this court’s decision in R. v. Willock (2006), 210 C.C.C. (3d) 60 (Ont. C.A.). Willock involved an appeal from a conviction for criminal negligence that was allowed based in part on the view that the inattention in that case was characterized as “a momentary lapse of attention”: at para. 36. However, in his reasons, the trial judge in this case found that the appellant’s conduct extended beyond a “two to three second interval,” rendering the caveat in Willock inapplicable. I see no error in the trial judge’s reference to and use of Willock in his reasons.
39This ground of appeal fails.
(2) The trial judge properly applied the higher standard for criminal negligence
40The appellant raises a related ground of appeal, that the trial judge failed to properly apply the “marked and substantial departure” standard for criminal negligence causing death and instead applied the lower “marked departure” needed for the offence of dangerous driving. Specifically, the appellant argues that the situation involved a momentary, rather than prolonged, lapse of attention, such that the appellant’s conduct should have fallen on the lower end of the negligence continuum – dangerous driving. The appellant also argues that the trial judge erred by providing a mens rea analysis for the lesser included offence of dangerous driving, but not for the offence of criminal negligence.
41I am not persuaded by this argument. The trial judge specifically engaged with and properly applied the different standards for criminal negligence and the included offence of dangerous driving.
42The fault element of criminal negligence is assessed by the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances. For some negligence-based offences, such as dangerous driving, a “marked” departure satisfies the fault element: J.F., at para. 10; Beatty, at para. 33; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 30. For criminal negligence causing death, however, the requisite degree of fault is elevated to a “marked and substantial” departure: Javanmardi, at paras. 19-21.
43Both fault requirements ask whether the accused’s actions created a risk to others, and whether “a reasonable person would have foreseen the risk and taken steps to avoid it if possible”: Javanmardi, at para. 22; Roy, at para. 36. The distinction between the two standards is a matter of assessing the degree to which the conduct departs from that of a reasonable person: Javanmardi, at para. 21.
44The trial judge’s reasons make repeated reference to the higher fault standard of criminal negligence and the standard required for dangerous driving. His reasons include specific and extensive discussion of the difference between the two standards. The trial judge explained the differences between the two standards and outlined the need for the conduct in criminal negligence cases to meet a higher standard. These elements of his reasons make it clear that the trial judge turned his mind to the legal distinction.
45The trial judge’s findings also reflect the higher fault standard required of criminal negligence causing death or bodily harm. The trial judge began his analysis by reiterating the higher standard and he identified a number of factors that showed how that higher standard was met. These included, as noted above, the appellant’s inattention while driving a large vehicle carrying a 12,000kg load, the significant duration of the inattention, the speed at which the appellant was travelling relative to other vehicles, the visibility of the slowed or stopped traffic from over 2 kilometres, the absence of any braking, evasive manoeuvres, or turning off cruise control in the time preceding the crash when the traffic would have been visible.
46The trial judge also noted that this inattention was a greater departure from the conduct of a reasonable person in the circumstances because the appellant was a professional truck driver at the time and therefore subject to additional responsibilities: R. v. Rai, 2018 ONCA 623, 413 C.R.R. (2d) 37, at para. 31; Javanmardi, at para. 38.
47The greater departure from the conduct of a reasonable person was further demonstrated by the evidence relating to the state of mind of the appellant, and in particular his prior collision. While this will be discussed in greater depth below, it is useful to note that the appellant’s prior involvement in an accident resulting from his distracted driving and his utterances at the scene provided evidence of the appellant’s actual state of mind – that he was aware of, but reckless as to, the risk his behaviour created.
48Moreover, the trial judge clearly stated that the higher standard was found after reviewing all of the evidence before him. He found that: “The Crown has proven beyond a reasonable doubt either that Mr. Tabanao disregarded the foreseeable risk that he posed to the traffic ahead, or he failed to direct his mind to the risk and the need to take care” and that “Mr. Tabanao’s driving reflected a marked and substantial departure from what is expected of a reasonable person in the circumstances.” The trial judge noted that the “evidence of [Mr. Tabanao’s] actual state of mind leaves me with no reasonable doubt about his guilt of the crime of criminal negligence.”
49Given the clear overlap between the standards applicable for dangerous driving and criminal negligence, the trial judge’s comprehensive statement of the different standards, his specific statements concerning a marked and substantial departure, and reading his reasons as a whole, it is clear that he understood and applied the correct, higher legal standard required.
50This ground of appeal fails.
(3) The trial judge provided sufficient reasons to support the conclusion that the appellant’s driving met the criminal negligence standard
51The appellant submits that the trial judge did not provide sufficient reasons to explain how the appellant’s driving was “a marked and substantial” departure from the standard of a reasonable driver. The trial judge concluded that the appellant was inattentive to his driving and the danger ahead of him for at least seven seconds prior to the collision. The trial judge subsequently concluded that 6 occasions of throttle loading showed a pattern of inattention commencing 55 seconds prior to impact. However, according to the appellant, the duration of inattention was not a matter of direct evidence.
52The appellant argues that the trial judge’s reasons did not establish how the appellant’s driving displayed a reckless and wanton disregard for the safety of other persons. The appellant emphasizes that criminal negligence requires conduct that is more marked than dangerous driving in both the physical and mental elements of the offence.
53The respondent argues that the trial judge clearly demonstrated his grasp of the relevant legal standard and identified several factors supporting his conclusion that this standard had been met.
54The trial judge had a duty to give sufficient reasons to explain the court’s disposition of the case so as to permit appellate review of the findings made at trial. This exercise is not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trial judge: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24, 52 and 55; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 24, 32.
55In my view, the trial judge discharged this duty. The trial judge expressly recognized at several points in his reasons that criminal negligence has a higher fault standard than dangerous driving. As discussed above, the trial judge set out the factors which led him to find that the higher standard of fault was met, including the appellant’s inattention to driving, the duration of that inattention, the appellant’s deliberate decision to reach down in his vehicle for the throttle, the absence of any braking or attempt to steer away from the vehicles ahead, the speed at which the appellant was travelling, the visibility of the vehicles ahead, and the absence of any contributory weather, road, or mechanical issues.
56As the Supreme Court instructed in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 69, appellate courts must not “finely parse” the trial judge’s reasons in a search for error but rather assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review: see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 16-17, 54-55.
57In my view, the trial judge’s analysis on the criminal negligence standard meets this standard.
(4) The trial judge did not err in his factual findings
58The appellant takes issue with a number of the trial judge’s findings and frame these as separate grounds of appeal. I address them each below. In doing so, I reiterate that deference is owed the trial judge unless that judge makes a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10.
(i) The trial judge did not err in finding a “pattern of inattention” based on the appellant’s use of the throttle
59The trial judge found that evidence of the throttle loading on six occasions showed a “pattern of inattention” on the part of the appellant. The evidence covered a period commencing 55 seconds prior to impact. The appellant contends that this evidence of prior throttle loading did not establish a pattern of inattention. The appellant notes that the depression of the gas pedal could have been made for reasons other than “reaching down” for something, and the expert evidence did not exclude such other possibilities.
60The appellant submits that since the use of the throttle did result in a marginal change in speed at times, whether on cruise control or not, it was reasonable for the trial judge to infer that the use of the throttle may have been an intentional act by the appellant to attempt to adjust his speed. Cst. Hewitt, a Crown expert, conceded that he had no idea what the appellant was doing in the cab. The appellant highlights that there was no comparison of this incidence of throttling under cruise control to typical use of the throttle, nor was there evidence as to how usual or unusual the use of the throttle under cruise control would be.
61The respondent argues that the trial judge’s factual assessment was reasonable and that, based on the expert evidence at trial, there was no legitimate reason why an attentive driver would have repeatedly applied the throttle at close to 100 percent in the 55 seconds preceding the collision. The trial judge relied on evidence in the record that the use of the throttle in that timespan served no legitimate driving-related purpose, had no meaningful effect on the speed of the vehicle, and that the final use of the throttle in the seven seconds before the collision clearly aligned with distracted driving by the appellant. In that final seven-second time span, when he should have been braking, the appellant was pressing the gas pedal, leaving no doubt as to his ignorance of the traffic ahead. The appellant himself stated that he was reaching down in this timeframe and had taken his eyes off the road.
62In light of this record, it was open to the trial judge to infer that the use of the throttle represented a period of inattention, particularly with respect to the critical final seven-second time span. This finding reveals no error.
(ii) The learned trial judge did not err in finding that the appellant’s inattention was not a momentary lapse of attention
63The appellant argues that while there can be no doubt that conduct occurring in a matter of seconds can amount to criminal negligence, conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper, falls lower on the negligence continuum.
64According to the appellant, the inattention constituted a momentary lapse, and the timeframe of the conduct in issue was not determinative of guilt. What mattered was what occurred within the applicable interval, framed by the overall nature of the appellant’s driving, and the standard expected of a reasonable driver in the circumstances. As in analogous cases such as Beatty, R. v. De Ciantis, 2011 BCCA 437, 312 B.C.A.C. 187, and Roy, where conduct leading to serious accidents was characterized as “a momentary lapse,” the appellant in this case also was not under the influence of drugs or alcohol, and excessive speed was not a factor. The appellant submits that the trial judge erred in finding that the appellant’s inattention was not a momentary lapse.
65The respondent counters that, based on the factual findings of the trial judge, the appellant’s blameworthy conduct was neither “momentary” nor mere “inattention.”
66The question of whether the appellant’s conduct amounted to a momentary lapse, or a pattern of inattention was argued fully by the parties at trial and expressly considered by the trial judge.
67The fact that this finding differs from the conclusion of momentary lapses in other cases does not render the trial judge’s findings in error. The court in Beatty noted that the accused “momentarily crossed the centre line” of a road because he “experienced a loss of awareness that caused him to drive straight instead of following the curve in the road”: at para. 52. That is fundamentally distinct from the trial judge’s finding of a pattern of inattention in this case. Similarly, in Roy, at paras. 54-55, the court found a momentary lapse where the accused “pulled out from a stop sign at a difficult intersection and in poor visibility when it was not safe to do so,” while the court found that the accused in De Ciantis oversteered during a lane change while doing a shoulder check. These cases involved momentary incidents of poor driving and did not involve factual findings of a pattern of inattention. I see no basis to interfere with the trial judge’s findings in this regard.
(iii) The trial judge did not err in his evidentiary findings, including the admission and reliance of a report concerning a prior accident
68In 2015, less than two years before the collision in this case, the appellant caused another collision on a highway. In that collision, the appellant’s tractor-trailer rear-ended a car because the appellant had been getting something from his bag. The appellant alluded to this prior accident in the present case when speaking with others at the scene of the collision. A copy of the prior accident report was found, among other documents, on the dashboard of the appellant’s tractor-trailer during a post-collision search.
69The Crown sought leave to tender the copy of the prior accident report. The Crown framed the issue as being probative of the appellant’s state of mind at the time of the incident at issue and submitted that it was not being tendered for propensity reasoning.
70Trial counsel for the appellant submitted that the evidence was presumptively inadmissible as it amounted to prior discreditable conduct. The trial judge ruled the report admissible as evidence of the appellant’s actual state of mind at the time of the collision. In the report, the appellant provided a very brief statement about how the accident occurred. The trial judge found that the appellant had connected the prior incident from 2015 to the 2017 collision based on his utterances at the scene, such as “It’s not the first time it happened to me” and “I’m going to jail.”
71The appellant submits that the trial judge erred in admitting the accident report without employing the requisite legal analysis.
72The Supreme Court of Canada’s decision in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31 provides the general exclusionary rule that evidence of misconduct beyond what is alleged in the indictment, which does no more than blacken an accused’s character, will be inadmissible. The danger of such evidence is that the trier of fact might be influenced by the multiplicity of incidents and consequently put more weight than is logically justified on the evidence or may convict based on the view that the accused is a bad person. For the court to make an exception to the general rule, the prosecution must satisfy the trial judge on a balance of probabilities that, in the context of the particular case, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice: Handy, at paras. 50, 53.
73In the present case, even though the Crown had denied that this was a case of similar fact evidence and contended that Handy was not the proper framework, the trial judge in his ruling found a “remarkable, albeit tragic, similarity” between the two incidents. He also made reference to the case of R. v. Leblanc, [1977] 1 S.C.R. 339, in which similar fact evidence in the context of a criminal negligence causing death case was admitted, as being “supportive” of the Crown’s position. The trial judge admitted the 2015 accident report as evidence of the appellant’s actual state of mind at the time of the May 11, 2017 accident. The appellant submits that the trial judge failed to properly apply the required analysis as set out in Handy, and that the evidence should not have been admitted. The appellant also contends that the prejudicial effect of this evidence outweighed any probative value it might have.
74In his reasons, the trial judge found that the appellant had connected the prior incident to the current collision based on his utterances at the scene. The trial judge found that the appellant knew he was reaching down and that he “knew what happened in 2015 when he did that.”
75In the alternative, according to the appellant, even if the accident report was evidence of the appellant’s actual state of mind, the report suggests a mental state lower on the negligence continuum than the “marked and substantial departure” required for criminal negligence. There were no injuries or fatalities in the prior incident, nor is it clear that the prior incident involved a serious collision. The only references to vehicle damage were to the truck’s front bumper and a mention of the fact that, following the accident, vehicles were towed from the site of the collision, but there was nothing more to indicate any damage to the other vehicle.
76The respondent argues that it was reasonable for the trial judge to infer the appellant was aware of the risks of distracted driving, given the consequences of the prior accident, after which the appellant was required by his employer to take a distracted driving course. Additionally, the appellant mentioned the prior accident immediately after the collision in the present case.
77The respondent highlights that the appellant’s subjective awareness of the risks of his conduct was legally relevant to assessing his guilt for criminal negligence.
78I see no error in the trial judge’s admission or consideration of the prior accident report.
79As the Supreme Court stated in Beatty, at para. 47, “[i]n determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about the accused’s actual state of mind.” State of mind evidence includes evidence about the accused’s subjective awareness of – and willingness to undertake – the risks involved in a course of conduct. Given the appellant’s express reference to the earlier incident in the moments after the accident, it was open to the trial judge to rely on the link between that event and the appellant’s state of mind at the time of the accident. Additionally, the trial judge made clear that even in the absence of the prior accident report, his decision would have been the same.
80I would also reject the appellant’s argument that the trial judge erred with respect to using the evidence of laypersons as opposed to experts in determining the braking time and distance required to avoid the accident.
81The trial judge compared the appellant’s failure to slow down and brake in time with the conduct of the other motorists. The trial judge noted that all of the drivers in the lineup of stop-and-go traffic were able to perceive and react without incident and relied on the evidence of those who testified at the trial about their observations of the rear lights and merging of vehicles ahead. The trial judge found that there was therefore “a point in time and a distance at which the appellant should have observed the traffic ahead, perceived the risk and slowed safely into the stop-and-go traffic, like every other driver.”
82The appellant notes that two expert witnesses were asked when they would have expected a reasonable truck driver to start braking. Sgt. Doolan agreed that he would not expect a truck one kilometre away from the lineup to start braking. He would expect that braking would start “a few hundred metres away.” Sgt. Doolan agreed that the truck could have avoided the collision if the driver initiated hard braking in the last hundred metres. Similarly, when asked when he would expect braking, Cst. Hewitt responded, “I think I mentioned before in exam that you know a couple hundred metres, 200 metres before I would expect to see a reaction of the truck coming.”
83The appellant argues that, had the trial judge properly considered the expert evidence, he would have appreciated that a reasonable truck driver in the circumstances of the appellant would start braking only a few hundred metres before the collision site. This places the relevant distance and timeframe of inattention in a much narrower range than that referred to by the trial judge.
84However, the trial judge has the discretion to accept some, none, or all of the evidence of the various witnesses at trial. The reasons disclose a close and detailed review of all of the evidence in the record relating to braking time and distances. The conclusions reached by the trial judge were open to him.
85For all of these reasons, I would dismiss the conviction appeal.
B. The Sentence Appeal
86The appellant was sentenced to a global sentence of 7 years and a 12-year driving ban, in addition to the mandatory 10-year weapons prohibition order. The sentencing judge declined the Crown’s request for a discretionary DNA order.
87As the sentencing judge set out his conclusion, he stated:
The high degree of Mr. Tabanao's moral blameworthiness, considered with the enormous, far-reaching consequences of his offences, sets this case near the highest end of seriousness.
One case example would be found in R. v. Muzzo, [2016] ONSC 2068. Notwithstanding the many positive aspects of Mr. Tabanao's background and character, and the fact that this is a first jail sentence for him, a lengthy penitentiary term of imprisonment is necessary.
(1) The trial judge did not err in his use of Muzzo
88The appellant first submits that the sentencing judge erred in referring to Muzzo in the course of concluding that the appellant had a high degree of moral blameworthiness, considering the significant and far-reaching consequences of his offences. The appellant argues that Muzzo can be distinguished on many factors (the offender in that case was impaired, speeding, failed to stop at a stop sign just prior to the collision, and had a lengthy criminal history of prior infractions), and should not have been relied on by the sentencing judge in this case.
89I would reject this submission.
90The reference to Muzzo by the sentencing judge was in passing and did not constitute a justification for the sentencing judge’s conclusion with respect to the serious nature of this crime or the appropriate sentence.
(2) The trial judge erred in entering a sentence that was demonstrably unfit in the circumstances
91The appellant also submits that in the circumstances of this case, the overall sentence of seven years’ imprisonment imposed by the trial judge was unfit on the basis that it was harsh and excessive.
92An appellate court may intervene to vary a sentence only where the sentence is demonstrably unfit or where there has been an error in principle, a failure to consider a relevant factor, or an error in the consideration of an aggravating or mitigating factor that impacted the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41-44.
93In my view, when considered in all the circumstances of the case, the global sentence of seven years was demonstrably unfit.
94The Crown had sought a sentence in the range of 6 to 8 years, together with a 15-year ban on driving, the mandatory 10 years weapons prohibition and a DNA order. Trial counsel argued a sentence of 3 to 5 years was appropriate, with a driving ban of 10 years.
95The sentencing judge noted that the appellant’s pre-sentence report was positive, including references to his sincere remorse, his pro-social lifestyle, his low risk to reoffend and the support of his family, friends, and colleagues.
96The sentencing judge relied on what he regarded as analogous case-law to determine the appropriate range for the offence before him. He referenced R. v. Sidhu, 2019 SKPC 19, 45 M.V.R. (7th) 63, the tragic collision in Saskatchewan involving the Humboldt Broncos. The sentencing judge quoted from the trial judge in Sidhu that: “Somehow we must stop this carnage on our highways”: at para. 101.
97The sentencing judge referred to R. v. Quigley, 2017 ONSC 389, another case involving a fatal tractor trailer collision and conviction for criminal negligence causing death, where the trial judge commented that denunciation is a critical aspect of sentencing and that: “Nothing short of a significant prison term will suffice, in order to advance the principle of denunciation”: at p. 8. In that case, the driver was sentenced to 5 years imprisonment and a 15-year driving ban.
98The sentencing judge also relied on R. v. Saini, 2018 ONSC 5260, aff’d 2023 ONCA 445, a sentence of six years was imposed where the offender had no criminal record. In Saini, a tractor-trailer collision in a construction zone killed 4 people and injured 9 others.
99The sentencing judge distinguished the cases raised by the appellant, which involved dangerous driving causing death rather than criminal negligence causing death, resulting in sentences of three years: see R. v. Bagri, 2017 BCCA 117, 8 M.V.R. (7th) 219, at paras. 6, 9, and 30; R. v. Lavoie, 2017 SKQB 265, at paras. 5, 60-63; and R. v. Singh, 2018 ONSC 4598, at paras. 3, 37, aff’d 2019 ONCA 872.
100The appellant argues that cases reviewed by the sentencing judge, whether resulting in longer or shorter sentences, do not demonstrate a range, but rather highlight a series of examples that are driven by the almost infinite variety of circumstances in which this offence can be committed.
101As this court stated in R. v. Linden (2000), 147 C.C.C. (3d) 299 (Ont. C.A.), at paras. 2-3:
After noting that he had been presented with various appellate authorities by counsel for Crown and defence, the trial judge said that the sentence “ranges from that of three years to seven years, with eight years afforded for the worst offender and the worst set of facts”. He then stated that he would be dealing in the three to seven year range. If there was any error by the trial judge, it was in assuming that there was a set range for the offence of criminal negligence causing death. The cases demonstrate that criminal negligence causing death can be committed in so many different ways that it defies the range-setting exercise. The cases do not demonstrate a range, only a series of examples that are driven by the almost infinite variety of circumstances in which this offence can be committed. As counsel for the appellant submitted, cases can be found in the reformatory range and there are even examples of suspended sentences.
The only principle that can be stated with assurance concerning this offence is that, where the offence involves not only reckless driving conduct but the consumption of alcohol, the sentences have tended to increased severity over the past twenty years. Otherwise, the particular offence is very much driven by individual factors, especially the blameworthiness of the conduct. The more that the conduct tends toward demonstrating a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required. [Emphasis added.]
102While it was not an error for the sentencing judge to rely on denunciation and general deterrence as sentencing factors, the sentencing judge’s conclusion that a seven-year sentence was appropriate was demonstrably unfit. The sentencing judge overemphasized denunciation and general deterrence, and that error permits this court to intervene: see R. v. Laine, 2015 ONCA 519, 327 C.C.C. (3d) 67, at para. 87; and R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90.
103In R. v. Paredes, 2014 ONCA 910, 317 C.C.C. (3d) 415, this court allowed a sentence appeal with respect to a period of parole ineligibility for an offender convicted of second-degree murder. Doherty J.A., writing for the court, explained the basis for that decision in the following terms, at para. 48:
With respect, I think the trial judge lost sight of the appellant’s personal circumstances and his real potential for rehabilitation and concentrated exclusively on the need for deterrence and denunciation. While those principles deserved paramount consideration, they were not the only principles to be considered.
104A similar conclusion applies in this case. The loss of life and serious injuries caused by the appellant were preventable and devastating. The sentencing judge accurately referred to the consequences of the appellant’s actions as “tragic in the extreme.” However, other factors relating to the appellant had to be considered in the sentencing analysis as well. The appellant had no prior criminal record and no record of driving infractions after over 13 years of driving experience. There was no evidence of aggressive driving, being under the influence of drugs or alcohol, deceit, or other aggravating conduct that night. The appellant expressed remorse for his actions and the tragic loss of life and provided a letter of apology included in the sentencing materials. His presentence report was highly positive, and the sentencing materials overall described a man of good character. He had, and continues to have, a supportive family for whom he is the primary breadwinner, a good employment history, strong support from his community and employer, and was fully compliant with the terms of his recognizance. He is in a stable, long-term relationship with his wife, with whom he parents three children. The appellant’s risk of recidivism is low. Indeed, apart from the one prior incident in 2015, which resulted in no charges, and the case on appeal, the appellant has lived a virtually blemish-free life for the past 30 years in Canada.
105The appellant’s sentence should be varied to reflect a proper balancing of these factors with the importance of deterrence and denunciation.
106In all the circumstances, in my view, a fit global sentence in this case would be five years.
V. DISPOSITION
107For the reasons above, I would dismiss the conviction appeal, grant leave to appeal the sentence, allow the sentence appeal, and reduce the sentence to five years. The 12-year driving prohibition, and the 10-year weapons prohibition would remain in place. Accordingly, the sentences on Counts 1 to 4 are reduced to five years' imprisonment, to run concurrently. All other aspects of the sentences imposed remain in force.
Released: February 6, 2024 “G.T.T.” “L. Sossin J.A.” “I agree. Gary Trotter J.A.” “I agree. Thorburn J.A.”
