COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ramono, 2015 ONCA 685

DATE: 20151014

DOCKET: C60044

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joe Ramono

Appellant

Counsel:

W. Glen Orr, Q.C., for the appellant

John McInnes, for the respondent

Heard: October 7, 2015

On appeal from the order of Justice J. McIsaac, of the Superior Court of Justice, dated February 13, 2015.

ENDORSEMENT

[1] The appellant appeals from an order of certiorari, quashing his earlier discharge on a count of criminal negligence causing death.

[2] The relevant background is, briefly, as follows.

[3] The purchaser of a 17-year-old pickup truck was required to obtain a Safety Standards Certificate ("SSC") in order to complete the transfer of ownership. There was evidence that the appellant, a car mechanic, issued the SSC without conducting the legally-required inspection of the truck. A month later, the truck was involved in an accident. The driver of the truck lost control while attempting to pass other vehicles on the highway at high speed. According to one witness, the truck began to fishtail in a “magnificent … grand and exaggerated” manner. It collided with an oncoming vehicle driven by a young woman. The young woman died as a result of the injuries she sustained.

[4] There was evidence at the preliminary inquiry that – for a variety of reasons – the truck would not have passed a safety inspection. There was also evidence that there was a serious defect in the truck’s steering mechanism: there was excessive “free play” in the steering wheel.

[5] An O.P.P. accident reconstructionist who was also a mechanic inspected the truck after the collision. His opinion was that the steering defect pre-dated the collision. He testified that the defect would cause a driver to over-correct and over-steer in a panic situation, leading to a loss of control and further over-steering, especially at highway speeds. He said that, in that situation, one would expect to see a vehicle swerve out of control through the back-end “like a dog wagging his tail”, which the Crown notes is consistent with the other witness’ description of wild fishtailing. He testified that, in normal situations, a driver should have been able to control the truck, despite the defect in the steering mechanism.

[6] There was also evidence from the previous owner of the truck that the steering had “a little bit of play” and “wandered” at the time of the transfer and that the purchaser[^1] – although testifying that the steering shaft did not need to be replaced – had bought a new steering shaft, intending to install it. The purchaser also testified that, within 20 to 30 minutes of the accident, the driver told him “we’ve got to blame it on the steering”, to which the purchaser replied “okay”.

[7] The appellant was charged with criminal negligence causing death and unlawfully making a false document. The preliminary inquiry judge committed the appellant to stand trial on the false document count but discharged him on the criminal negligence count. The preliminary inquiry judge correctly noted that causation is an essential element of the offence of criminal negligence. However, he held that no reasonable jury, properly instructed, could find beyond a reasonable doubt that what the appellant did caused the young woman’s death. In normal situations, he wrote, a driver should have been able to keep control of the truck. In his view, the driver’s criminally negligent driving broke the chain of causation and caused the young woman’s death.

[8] The Crown brought an application for certiorari, seeking an order quashing the appellant’s discharge on the count of criminal negligence. The Superior Court application judge accepted the Crown’s argument that, by discharging the appellant on the basis of a “break in the chain of causation”, the preliminary inquiry judge fell into jurisdictional error by arrogating to himself a question of fact that was within the mandate of the trier of fact (in this case, the jury).

[9] The application judge noted, at para. 7, that the appellant did not “vigorously attempt to defend this discharge on the basis articulated by the preliminary inquiry judge, that is, a break in the chain of causation.” Instead, the appellant’s primary argument in favour of upholding the discharge was that there was no evidence to suggest that the alleged steering defect existed at the time the bogus SSC was issued. The application judge rejected this argument and found that a properly instructed jury could find that the defective steering mechanism constituted a significant contribution to the young woman’s death. In support of this, he pointed to the evidence of the O.P.P. accident reconstructionist and the previous owner of the truck. He quashed the appellant’s discharge on the count of criminal negligence causing death.

[10] On appeal, the appellant concedes that the preliminary inquiry judge erred by discharging the appellant on the basis that there was a break in the chain of causation. The appellant renews the argument rejected by the application judge, namely that there was not sufficient evidence for a properly instructed jury, acting reasonably, to find that the alleged steering defect existed at the time the SSC was issued and, therefore, that a criminally negligent act or omission of the appellant’s was a significant contributing cause of the young woman’s death. The evidence includes circumstantial evidence and, he says, the application judge failed to engage in a meaningful way in the limited weighing of the evidence required by R. v. Acuri, 2001 SCC 54, 157 C.C.C. (3d) 21.

[11] The appellant argues that the OPP reconstructionist’s opinion is no more than pure speculation. He again points to the fact that the truck’s odometer reading increased by 1957 kilometers during the month between the time the SSC was issued and the time of the accident. He says the steering defect could have arisen during that time.

[12] We reject the appellant’s submissions. We agree with the application judge that there is evidence on which a reasonable jury, properly instructed, could find that the appellant was a significant contributing cause of the young woman’s death. The O.P.P. accident reconstructionist’s opinion was based on his observations, judgment and experience of many years. It is not “pure speculation”. In addition to the opinion of the accident reconstructionist, the supporting evidence includes the testimony of another witness that the truck fishtailed before the collision, the testimony of the previous owner of the truck that the steering wheel “wandered” and had “a little bit of play”, testimony indicating that the purchaser of the truck was planning on installing a new steering shaft, and the fact that the driver and the purchaser thought to blame the accident on the steering shortly after the accident.

[13] The appeal is accordingly dismissed.

“Alexandra Hoy A.C.J.O.”

“K.M. Weiler J.A.”

“G. Pardu J.A.”

[^1]: We refer here to what the preliminary inquiry judge described as the “real owner” of the truck. Title to the truck was registered in the driver’s name because the real owner’s license was suspended due to an impaired driving conviction under the Criminal Code.