COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Layugan, 2015 ONCA 606

DATE: 20150909

DOCKET: C60614

BEFORE: Feldman, MacPherson, and Miller J.J.A

BETWEEN

Her Majesty the Queen

Respondent

and

Marlon Layugan

Appellant

COUNSEL:

Paul Calarco, for the appellant

Joanne Stuart, for the respondent

HEARD: September 8, 2015

On appeal from the judgment of Justice Brian P. O’Marra of the Superior Court of Justice, dated June 19, 2015, dismissing the application for certiorari and setting aside the committal order of Justice N. Kozloff of the Ontario Court of Justice, dated November 1, 2013.

ENDORSEMENT

[1] The appellant, Marlon Layugan, finished his shift at Fiera Foods around midnight on December 14, 2011. He went to the parking lot and drove his car down a factory laneway. His car struck a 69 year old fellow employee wearing dark clothes. This accident was not the appellant’s fault.

[2] The appellant stopped his vehicle. He did not get out of the vehicle. Several seconds later, the appellant drove down the laneway.

[3] A tractor trailer that had paused as the appellant’s vehicle approached continued down the laneway. The tractor trailer struck the unconscious victim and dragged him almost 100 meters. When the driver noticed that his vehicle was not moving properly, he stopped and discovered the victim’s lifeless body stuck between the wheel and mud flap.

[4] About one minute after leaving the scene, the appellant returned and accused the driver of the tractor trailer of killing the victim. Other employees arrived but were unable to revive the victim. The appellant left again, not waiting for the police to arrive and not telling anyone that he was the first driver to strike the victim.

[5] After a preliminary inquiry, the appellant was ordered to stand trial on charges of failing to stop at the scene of an accident knowing that bodily harm had been caused to a person, unlawful act manslaughter, and criminal negligence causing death.

[6] The appellant applied for certiorari to quash the order to stand trial on the manslaughter and criminal negligence charges. On June 19, 2015, O’Marra J. dismissed the application. The appellant appealed this decision. The appeal was expedited for hearing yesterday because the trial is scheduled to begin September 15, 2015.

[7] The appellant contends that in upholding the committal the application judge committed three errors.

[8] First, the appellant submits that the application judge erred by defining legal causation too broadly in the context of this case.

[9] We do not accept this submission. The application judge properly applied the “reasonably foreseeable” approach set out in R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30. He said:

On the evidence presented on the preliminary hearing, it would be open to a jury to find that the conduct of the applicant was not so independent of the act of the truck driver that it was no more than part of the unfolding of events.

The conduct of the applicant in failing to stop and assist the victim in these circumstances was inherently dangerous. It carried with it the reasonably foreseeable consequence of immediate and substantial harm to the victim. The death of the victim occurred in the ambit of the risk created by the applicant. He ought to have reasonably foreseen such harm.

[10] We agree with this analysis. The tractor trailer driver’s act was a natural event and, therefore, closely tied to the theory of foreseeability: see Maybin, at para. 50.

[11] Second, the appellant asserts that the application judge erred in applying a temporal connection test, rather than a control or direction test, to the issue of legal causation.

[12] We disagree. This is not a ‘control’ or ‘direction’ case. The tractor trailer driver committed no intentional act. The appellant’s control or direction in relation to the tractor trailer driver is irrelevant.

[13] Third, the appellant contends that the application judge erred in his interpretation of what could constitute wanton or reckless disregard in the context of the criminal negligence charge.

[14] We do not accept this submission. In our view, in the circumstances of this case as described above, the application judge did not err in concluding that the appellant’s act (leaving the scene knowing that the victim was lying on the ground and that a moving tractor trailer was nearby) carried the reasonably foreseeable risk of immediate and substantial harm to the victim. Hence the committal for trial on the charge of criminal negligence causing death was appropriate.

[15] The appeal is dismissed.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“B.W. Miller J.A.”