Court of Appeal for Ontario
Date: 2021-11-25 Docket: C66110
Judges: Doherty, Pardu and Thorburn JJ.A.
Between: Her Majesty the Queen, Respondent And: Nicholas Berto, Appellant
Counsel: Michael W. Lacy and Bryan Badali, for the appellant Michael Dunn, for the respondent
Heard: November 8, 2021
On appeal from the conviction entered on May 23, 2018 and the sentence imposed on November 13, 2018 by Justice Annalisa S. Rasaiah of the Superior Court of Justice, sitting with a jury, with reasons on sentence reported at 2018 ONSC 6747.
Thorburn J.A.:
Overview
[1] Nicholas Berto appeals from his conviction for dangerous driving causing bodily harm and failure to remain at the scene of an accident. He also seeks leave to appeal from the 18-month sentence imposed on him on the first count of dangerous driving causing bodily harm, and the 6-month sentence on the second count of failure to remain at the scene of the accident, to be served consecutively. In support of this second ground of appeal he seeks leave to admit fresh evidence consisting of a report by a forensic psychiatrist, Dr. Rootenberg.
[2] There was no dispute at trial that, after driving into a crowd of people assembled in a parking lot, the appellant stopped briefly and then turned his vehicle and exited the parking lot, hitting Mr. VanderGriendt and seriously injuring him.
[3] The appellant took the position at trial that, in addition to the charge of dangerous driving causing bodily harm, the lesser included offence of dangerous driving simpliciter should have been left with the jury. He claimed that while he initially drove toward the crowd in anger, he then stopped his vehicle. He said that after stopping his vehicle, the crowd yelled and kicked at his tires, prompting him to leave because he was afraid of the crowd.
[4] He therefore took the position that his initial drive toward the crowd should be considered a separate incident from his decision to leave the parking lot. The appellant also requested that the defence of self-defence be left with the jury.
[5] The trial judge held that the driving was one transaction and there was no independent cause or reasonably unforeseen event such that the transaction should be viewed as two acts. She therefore declined to leave the lesser included offence of dangerous driving with the jury (although she did allow the appellant’s request to leave the defence of self-defence with the jury).
[6] The appellant claims the trial judge erred in law by not leaving the lesser included offence of dangerous driving for the jury to consider. He therefore seeks a new trial.
[7] The appellant also seeks leave to admit fresh evidence from a forensic psychiatrist and seeks leave to appeal both sentences. He submits that the fresh evidence renders both sentences unfit and asks that both sentences be varied to suspended sentences.
[8] In the alternative, the appellant claims that the trial judge erred by failing to consider evidence of a psychologist as a mitigating factor on the sentence for the failure to remain. He argues that the six-month consecutive sentence for failure to remain at the scene of the accident should be set aside and replaced with a six‑month sentence to be served in the community, or that the six-month sentence be concurrent to the 18-month sentence for dangerous driving causing bodily harm, thereby reducing his global sentence to 18 months.
[9] For the reasons that follow, I would dismiss the conviction appeal, dismiss the fresh evidence application, allow leave to appeal the sentence but dismiss the sentence appeal.
The Evidence Adduced at Trial Regarding the Circumstances of the Offence
[10] On March 11, 2016, the appellant had recently turned 18 years of age. He decided to go out with some friends. He drove his pickup truck and went to two bars. He returned to the first bar at around midnight, having had two beers over the course of the evening.
[11] Approximately 20 members of the aviation community were also at the bar to celebrate the retirement of a friend. The appellant played pool with two of them: Mr. VanderGriendt and Mr. Gillanders. The appellant flirted with Ms. Traynor, another member of the aviation group.
[12] Just before 2 a.m. the appellant went outside with Mr. Gillanders and told him that he might like to take Ms. Traynor on a date sometime. Mr. Gillanders responded that she would never date him because he was a “little punk”. The appellant and Mr. Gillanders began to fight and the appellant pushed Mr. Gillanders up against the window of the bar.
[13] Ms. Traynor testified that when she saw that their conversation was becoming heated, she went outside and stepped between them. There were approximately 15 to 20 people outside the bar. Several witnesses testified that the appellant was really upset and other members of the group pulled the appellant off of Mr. Gillanders. A physical fight erupted between the appellant and members of the group.
[14] The appellant then walked back to his truck. After reaching the truck, the appellant turned back toward the crowd, gesturing angrily with a broken beer bottle. The appellant testified that someone had thrown the bottle from behind him, and that he picked it up in order to intimidate the crowd. Others testified that the appellant took the bottle from the truck and smashed it on the ground before advancing on the crowd.
[15] The appellant got into his truck and turned the engine on. He agreed that the crowd was not near his truck when he got in. This was confirmed by a surveillance camera. As such, he could have left unimpeded.
[16] Instead, he rolled down his window to continue yelling at the crowd to get out of his way. According to the appellant, he was upset and mad. He decided that although there were several exits out of the parking lot, “that’s the exit I wanted to take and that’s the way I was going to go so, I was telling them to get out of the way.” He chose the exit that brought him into the crowd.
[17] The appellant reversed his truck out of the parking spot, turned and accelerated toward the crowd. He agreed that he was not driving slowly and a witness described his driving as “aggressive”.
[18] The appellant then stopped his truck. The police pedestrian motor vehicle collision reconstruction expert watched the video of the events and calculated that the stop lasted between three and five seconds. The appellant and other witnesses to the event agreed the stop was brief.
[19] The appellant testified that the crowd was “not happy with me” and that members of the crowd were yelling vulgarities and his vehicle was being kicked. No one but the appellant testified that his truck was being kicked.
[20] The appellant said that at this point, his natural instinct was to leave, and he made an “aggressive motion just to get out of there”.
[21] He quickly accelerated the truck. Although he looked to his left where most members of the crowd were, he did not look to his right before turning. One witness testified that as the driver hit the gas, he appeared to almost lose control of the truck and “turned really sharply, erratically”.
[22] The appellant testified that he was worried about being punched or pulled out of his truck. As he accelerated out of the lot, he felt a bump, and figured he had hit something or someone. The appellant did not slow down or stop. Instead he accelerated out of the lot at a high rate of speed. The other witnesses agreed that the appellant drove quickly and the police collision reconstruction expert opined that the appellant’s truck did not brake as it left the parking lot.
[23] After leaving the parking lot, the appellant testified that he felt shaken up. He hid his vehicle overnight before turning himself in to police the next day.
[24] Mr. VanderGriendt was 25 years old. He and Mr. Dolman were both standing in front of the truck. Mr. Dolman who was on the left-hand side of the truck, was able to get out of the way, but Mr. VanderGriendt who was on the right-hand side of the truck, was not. He was run over by the truck.
[25] Mr. VanderGriendt was rendered tetraplegic and remains dependent for all activities of daily living.
Analysis and Conclusion
A. The Trial Judge’s Decision Not to Leave the Lesser Included Offence of Dangerous Driving with the Jury
The Positions of the Parties
[26] At the pre-charge conference, the appellant's trial counsel argued that the included offence of dangerous driving simpliciter should be left with the jury as an available verdict because:
There's one transaction here, but there's two - within the one transaction there is two separate driving incidents [ sic ], and the intervening act is the stoppage of the vehicle and the conduct which occurs between the accused and the crowd at that time.... [E]ven under s. 249 [of the Criminal Code], in the circumstances the argument from the defence is, well, that could have been dangerous driving at that point in time, but when the driving occurred that caused the death, that was a result of fear, and you have to put yourself in those circumstances in which he was in.
[I]t's the defence position is that you have to leave with the jury the underlying offence, so that I can say to the jury, “Well, you know, if you accept - if you have a reasonable doubt about what he says was going and what he felt like - what was going on in his mind at the time he made the right turn that resulted in causing the bodily harm, you can find him not guilty of that, but you may find him guilty of, you know, the actual rolling down the window and driving that vehicle in and coming to a stop. That could be dangerous driving there.”
[27] Trial counsel submitted that the jury could find that the act of driving toward the crowd was dangerous driving, but that the subsequent driving act that caused the bodily harm was not dangerous driving, given the circumstances the appellant was in. As such, the initial “lurching” toward the crowd was a separate act from the subsequent turn and acceleration out of the parking lot. Trial counsel also submitted that self-defence should be left with the jury as, given the history of conflict, the appellant believed on reasonable grounds that a threat of force was being made against him after stopping his vehicle.
[28] The Crown’s position was that the included offence of dangerous driving should not be left with the jury, since the driving was “part and parcel of the same transaction” in which the appellant left the parking lot. The Crown submitted that the very brief stop and yelling among the parties did not create two separate instances of driving. The Crown claimed that since the appellant drove aggressively into the crowd, the crowd’s reaction was predictable, and he was protected in a large truck while driving into Mr. VanderGriendt causing him serious harm.
[29] The Crown therefore argued that the lesser included offence of dangerous driving should not be left with the jury.
The Trial Judge’s Decision
[30] The trial judge considered whether there was an independent intervening act that was not reasonably foreseeable or an independent cause of the consequence that severed the chain of causation such that the appellant could be found guilty of dangerous driving in driving toward the crowd, but not guilty of dangerous driving in turning and exiting the parking lot, causing bodily harm.
[31] She concluded that there was not because,
In my view on the evidence, the driving was one transaction of driving, albeit with two facets. It is the sum of the driving pattern rather than each blameworthy facet of driving pattern which should prevail and is the proper approach, in my view. Based on the evidence, this was not, in my view, a case of an independent cause of a consequence, or a cause of a reasonably unforeseen event. As such, I will not be putting the included offence to the jury.
[32] She denied the request to put the lesser included offence of dangerous driving to the jury. In instructing the jury on the charge of dangerous driving causing bodily harm, she told the jury that:
What you have to decide in all the circumstances, including any evidence about Nicholas Berto's state of mind, is not what Nicholas Berto meant to do, but rather, whether Nicholas Berto drove in a manner that was a marked departure from the manner in which a reasonable, prudent driver would do so in the same circumstances. You must be satisfied that a reasonable person in similar circumstances should have been aware of the risk and the danger involved in Nicholas Berto's conduct.
It is the manner in which Nicholas Berto was driving on which you must focus, viewed in all of the circumstances. It is the driving pattern as a whole, the sum of the driving pattern, not the individual facets that you must consider in determining if there was a marked departure from the norm . [Emphasis added.]
[33] She then reviewed the evidence from the entire evening.
[34] The jury found the appellant guilty of dangerous driving causing bodily harm and failure to remain.
Analysis and Conclusion
[35] As noted by the trial judge, the issue was whether the jury could find the appellant guilty of the included offence of dangerous driving while acquitting him on the main charge of dangerous driving causing bodily harm such that both charges should be left with the jury: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 75.
The Elements of Dangerous Driving and Dangerous Driving Causing Bodily Harm
[36] Driving is a regulated activity.
[37] The act of dangerous driving (or actus reus) is driving that, viewed objectively, is “dangerous to the public, having regard to all the circumstances”: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43; see also R. v. McLennan, 2016 ONCA 732, 343 C.C.C. (3d) 39, at para. 6, leave to appeal refused, [2016] S.C.C.A. No. 530; R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at para. 23.
[38] The fault component of dangerous driving (or mens rea) is established where the driving is proven to constitute a marked departure from the standard of care a reasonable person would exercise in the same circumstances: Beatty, at para. 43; see also McLennan, at para. 6; Ibrahim, at para. 23.
[39] In making this determination, the court must consider whether a reasonable person would have foreseen the risks and taken steps to avoid them and, if so, whether the failure to foresee the risks and take steps to avoid them constitutes a marked departure from the standard of care expected of a reasonable person in the circumstances: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 36; see also Ibrahim, at para. 23.
[40] Marked departure is a matter of degree: Beatty, at para. 48; Roy, at para. 28. The Supreme Court held in Beatty, at para. 48, that “[t]he lack of care must be serious enough to merit punishment.”
[41] Conduct occurring in a two to three second interval can amount to a marked departure but, if it occurs only briefly in the course of driving that is otherwise proper in all respects, it is more suggestive of civil rather than criminal negligence: R. v. Willock (2006), 210 C.C.C. (3d) 60 (Ont. C.A.), at para. 31; see also Beatty, at para. 48; Ibrahim, at para. 25.
[42] The accused’s pattern of driving before the accident is relevant to the inquiry into whether the criminal offence of dangerous driving has been established. As this court held in McLennan, at para. 53,
In my view, it is unrealistic and contrary to the clear language of s. 249 of the Criminal Code to compartmentalize a driver’s conduct into discrete time periods of mere seconds. The language of the section requires consideration of “all the circumstances”. Those circumstances would include the appellant’s driving behaviour in the half hour before the accident.
[43] Dangerous driving is an included offence in a charge of dangerous driving causing bodily harm because it is a separate offence that is necessarily committed when dangerous driving causing bodily harm has been committed: R. v. Romano, 2017 ONCA 837, 41 C.R. (7th) 305, at para. 11.
[44] Dangerous driving causing bodily harm is an aggravated version of dangerous driving, distinguishable only by the added legal requirement that the dangerous driving must have caused bodily harm: see Romano, at para. 12.
Whether to Put the Lesser Included Offence of Dangerous Driving to the Jury
[45] When the evidence as a whole cannot reasonably cause the jury to convict on the included offence but acquit on the main charge, an instruction on the included offence is a “breeding ground for confusion and compromise”: R. v. Wong (2009), 209 C.C.C. (3d) 520 (Ont. C.A.), at para. 12; see also Romano, at para. 16; R. v. Grewal, 2019 ONCA 630, at para. 36.
[46] A trial judge is only required to instruct jurors about the availability of an included offence when there is an air of reality such that a reasonable jury, properly instructed, could conclude that the essential elements of the included offence have been established. This can occur where there is an intervening act that a trier could conclude, breaks the chain of causation: Luciano, at para. 75; Romano, at para. 14; Grewal, at para. 36.
What Constitutes an Intervening Act?
[47] An intervening act is an event independent of the accused’s conduct, that severs the chain of factual causation: Romano, at para. 34. This generally occurs in one of two situations: when either (a) the independent intervening act is not reasonably foreseeable, and/or (b) the intervening act is an independent cause that is significant enough to sever the chain of causation between the accused’s act and the consequence: Romano, at para. 35, citing R. v. Malkowski, 2015 ONCA 887, at para. 14.
[48] As the Supreme Court held in R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 49, the question is “whether the intervening act is a response to the acts of the accused. In other words, did the act of the accused merely set the scene, allowing other circumstances to (coincidentally) intervene, or did the act of the accused trigger or provoke the action of the intervening party?”
[49] The question has been considered several times by this court.
[50] In R. v. Trakas, 2008 ONCA 410, 233 C.C.C. (3d) 172, this court found that the trial judge did not err in putting both the offence of dangerous driving causing death and the included offence of dangerous driving to the jury and in putting the question of whether there was an intervening act to the jury as there was a clear and significant event that might have broken the chain of causation: that is, the officer who was hit, had stepped into the middle of the highway.
[51] By contrast, in Romano, this court held that the trial judge did not err in failing to put the lesser included offence of dangerous driving to the jury, because the pedestrian’s jaywalking was not an intervening act. The jaywalking was foreseeable. Further, it was not significant enough that the respondent’s driving could lose its significance as a contributing cause of the pedestrian’s death: Romano, at paras. 36-37. The respondent’s driving was not “merely part of the history of the event, with the jaywalking being the active cause of the collision”: Romano, at para. 37.
[52] In Malkowski, this court also declined to find that the doctrine of intervening acts applied. The appellant was driving well above the speed limit when he struck and killed a jaywalking pedestrian. In upholding his conviction for dangerous driving causing death, this court held, at para. 21, “[t]he fact that the victim would attempt to cross the road but found herself unable to do so safely is not a matter that is unrelated to the appellant’s conduct; rather, it is a direct materialization of the danger he created by driving in the way that he did”.
Application of the Law to the Evidence in this Case
[53] The appellant admitted factual causation, that is, that he was operating the truck and the truck caused the bodily harm. The trial judge therefore went on to consider legal causation or fault.
[54] The appellant submitted, however, that the crowd’s reaction after he stopped his truck, was an intervening act constituting an independent cause of the consequence. This, he claimed, severed the chain of causation. He claimed that at this point, he was fearful for his safety and left.
[55] The trial judge reviewed the evidence of the appellant’s driving both before and after his momentary stop. The appellant did not dispute that,
a. There were several exits to the parking lot and nothing prevented the appellant from taking another exit and thus avoiding the crowd;
b. When he drove into the crowd, it was not slow, although it was not overly fast either;
c. The decision to drive at the crowd was not a split-second decision; and
d. The decision to drive into the crowd was taken in anger.
[56] As in Malkowski, the injury to the complainant was “a direct materialization of the danger [the appellant] created by driving in the way that he did”: at para. 21.
[57] The crowd’s reaction of anger and shock when the appellant drove toward them in his truck, was reasonably foreseeable. The appellant’s decision to stop the truck for a few seconds before leaving, and the crowd’s reaction, were not sufficient to constitute an independent cause of action that could sever the appellant’s responsibility for the consequence of his dangerous driving. The appellant created the dangerous situation and nothing broke the chain of causation.
[58] I therefore agree with the trial judge that there was a real and substantial connection between the decision to drive the truck into a crowd of pedestrians and the harm caused to a pedestrian in the crowd a few seconds later. There was no air of reality to the argument that the jury could have found the appellant’s conduct driving into a crowd of pedestrians was dangerous but his decision to drive away a few seconds later was not.
[59] At the appellant’s request, the trial judge permitted self-defence to be put before the jury given the fighting before the appellant got into his truck and his evidence about the crowd’s reaction to his driving toward them. I note that it would be artificial and confusing to instruct the jury to consider only the appellant’s actions after he stopped his vehicle in front of the crowd for the purpose of the offence, but instruct them to consider the entire sequence of events to assess the elements of self-defence.
[60] For these reasons, I would dismiss this first ground of appeal.
B. Sentence Appeal
[61] The appellant seeks leave to appeal his sentence on both counts.
[62] He seeks to adduce fresh evidence from Dr. Rootenberg, a forensic psychiatrist, and submits that the fresh evidence renders both sentences unfit. Dr. Rootenberg reported that the appellant exhibited “a significant intellectual disability” and “marked depressive symptoms, including suicidal ideation”. Dr. Rootenberg advised that a jail term would detrimentally affect the appellant’s mental health and exacerbate his anxiety and depression.
[63] He also argues that the trial judge erred by failing to consider a report from a psychologist in sentencing him for failure to remain at the scene of the accident.
The Fresh Evidence Application
[64] The report sought to be filed as fresh evidence provides that the appellant has “a significant intellectual disability” and mental health challenges that include “marked depressive symptoms, including suicidal ideation”.
[65] The appellant submits that the fresh evidence could have affected the result as the sentencing judge would have had to consider the appellant’s mental health and the detrimental impact of a jail term as a collateral consequence on sentence.
[66] The appellant submits that his mental health needs will not be met in a provincial correctional institution and that the fresh evidence about his intellectual disability indicates that this is a significant mitigating factor.
[67] The sentencing judge did consider the appellant’s intellectual disability and mental health challenges. However, she did not accept the appellant’s argument that it was more probable that his decision in embarking on the driving path was the result of his cognitive level as opposed to being the result of his anger and upset with the crowd.
[68] She concluded that notwithstanding the appellant’s cognitive and mental health challenges, a sentence of incarceration was warranted due to the appellant’s high level of culpability and the importance of denunciation and deterrence for these types of offences.
[69] Moreover, the new report does not provide evidence that the appellant’s mental health challenges cannot be addressed in the provincial correctional system and it is incumbent on the appellant to do so. Finally, the fresh evidence is not materially different from Dr. Lefave’s psychological assessment which was provided on the sentencing hearing and considered by the sentencing judge.
[70] For these reasons, the fresh evidence could not reasonably, when taken with the other evidence adduced at trial, be expected to have affected the sentence imposed: R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487; Palmer v. The Queen, [1980] 1 S.C.R. 759.
[71] I would not therefore, admit the fresh evidence on appeal.
The Psychological Report
[72] At the sentencing hearing, the appellant’s trial counsel filed a psychological assessment of the appellant by Dr. M. Keith Lefave. Dr. Lefave concluded that the appellant “is currently functioning in the very low range of cognitive ability” and suffers from social anxiety disorder. Dr. Lefave found that for individuals with social anxiety disorder,
Social situations almost always provoke fear or anxiety and they are avoided or endured with intense fear or anxiety. The fear is out of proportion to the actual threat posed by the social situation and may give rise to instinctual and frantic fight and/or flight reactions.
The Appellant’s Position
[73] The sentencing judge “was not persuaded on a balance of probabilities to give Mr. Berto’s cognitive assessment weight in terms of contextualizing what was going on in his head in respect of his moral blameworthiness at the time of the offence”. Instead, she attributed his decision to drive toward the crowd to “his anger and upset with the crowd”. While she referred to the report in imposing her sentence for dangerous driving causing bodily harm, she did not specifically refer to the report in imposing her sentence for the failure to remain charge.
[74] The appellant claims the psychological report provided support for the appellant's position that he left the scene because he was scared and worried. The appellant claims his reaction was a plausible manifestation of his social anxiety disorder.
[75] The appellant concedes that the trial judge was entitled to reject the psychological evidence as mitigating but claims her failure to consider it altogether in relation to the failure to remain count, constitutes an error in law. He submits that this failure to consider a mitigating factor materially affected the sentence.
[76] He claims that, taking into account the fact that he ultimately turned himself in, a six-month sentence served in the community is appropriate. Alternatively, given the unique circumstances, a concurrent sentence is adequate to address the principles of denunciation and deterrence while recognizing the appellant's youth.
The Sentencing Judge’s Decision
[77] The sentencing judge noted that “evidence of diminished intelligence may be important in identifying moral fault and degree of responsibility”. However, she also noted that the appellant knew he had hit someone or something, he did not report the accident, he knew someone was hurt after he spoke to his friend following the incident, and he continued to drive his truck to his parents’ property and hid it overnight because he was scared and wanted to think things through.
[78] At trial, the Crown sought a one-year consecutive sentence on the failure to remain count. After noting that the range for this offence is from three months to two years, the sentencing judge imposed a consecutive sentence of six months on this count.
Analysis and Conclusion
[79] I do not agree that the trial judge erred in failing to specifically advert to the report in imposing a sentence on the failure to remain charge.
[80] Sentencing judges are owed considerable deference in imposing sentences: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 48. This includes the imposition of consecutive sentences: R. v. M.(T.E.), [1997] 1 S.C.R. 948, at para. 46. An appellate court is only entitled to intervene where the sentence is demonstrably unfit, or where a sentencing judge erred in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor and this error had an impact on the sentence: Lacasse, at paras. 41, 48.
[81] The sentencing judge was clearly attuned to the appellant’s cognitive and mental health challenges but did not find that his actions on the night in question were the result of these challenges. Moreover, the sentencing judge recognized that the failure to remain at the scene of an accident is an offence for which the primary sentencing objectives are general deterrence, denunciation and protection of the public: R. v. Ramdass (1982), 2 C.C.C. (3d) 247 (Ont. C.A.), at p. 249; R. v. Gummer (1983), 1 O.A.C. 141 (C.A.), at paras. 15-16; R. v. MacLaren (1999), 122 O.A.C. 176 (C.A.), at para. 12; R. v. Boukchev (2003), 177 O.A.C. 119 (C.A.), at para. 6.
[82] For these reasons, I see no reason to interfere with the sentence imposed and I would dismiss this second ground of appeal.
Conclusion
[83] For the above reasons, I would dismiss the appeal on conviction, dismiss the fresh evidence application, grant leave to appeal the sentence, but dismiss the sentence appeal. In view of the decision of the Supreme Court in R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, the victim surcharge is set aside.
Released: November 25, 2021 “D.D.” “J.A. Thorburn J.A.” “I agree. Doherty J.A.” “I agree. G. Pardu J.A.”