Court of Appeal for Ontario

Date: November 3, 2017

Docket: C62805

Judges: Cronk, Juriansz and Paciocco JJ.A.

Between

Her Majesty the Queen Appellant

and

Remo Romano Respondent

Counsel:

• Roger Shallow, for the appellant
• Frank Addario and James Foy, for the respondent

Heard: September 28, 2017

On appeal from: The acquittal entered by Justice Brian P. O'Marra of the Superior Court of Justice, sitting with a jury, on September 21, 2016.

Paciocco J.A.:

Introduction

[1] Remo Romano was acquitted by a jury of the charge of dangerous operation causing death ("dangerous driving causing death"), contrary to s. 249(4) of the Criminal Code, R.S.C. 1985, c. C-46. This charge arose out of a tragic event that occurred on February 12, 2014. Eighteen year old Carla Abogado[1] was on her way home from a part-time job when she was struck and killed by a Ford F-150 truck being operated at high speed by Mr. Romano. It was around 8:19 p.m. At the time she was struck, Ms. Abogado was jaywalking, taking the most direct route from the bus stop where she had been dropped off to her home across the street.

[2] Mr. Romano was on duty as a police officer at the time. The truck was an undercover vehicle. He was operating it at a speed substantially over the speed limit in an effort to catch up with other members of a surveillance team he was assigned to assist. Evidence was that at the time of the collision he was travelling 109 km per hour or more in a 60 km zone.

[3] The Crown appeals Mr. Romano's acquittal. The Crown contends that the trial judge erred in not leaving the included offence of dangerous operation simpliciter ("dangerous driving"), contrary to s. 249(2), with the jury. In essence, the Crown contends that a properly instructed jury could have found that Mr. Romano drove dangerously, yet did not cause Ms. Abogado's death. The trial judge disagreed. He concluded that such a finding was not realistically available to the jury on the evidence; if a jury was to find dangerous driving, it would have to find, in law, that the dangerous driving caused death. The trial judge therefore chose not to instruct the jury on the included offence.

[4] The Crown also argues the jury charge was defective. It says that the trial judge erred in his instruction on the actus reus and mens rea elements of dangerous driving, and in the jury directions relating to whether Mr. Romano had a "lawful justification" for his driving.

[5] I would not give effect to the first ground of appeal. The trial judge did not err by refusing to leave the included offence of dangerous driving with the jury.

[6] I would, however, grant the appeal on the related basis that, having removed the included offence from the jury, the trial judge erred in law by instructing the jury in a way that treated causation of death as a live issue. In effect, the trial judge helped arm the jury with the tools needed to make the very finding of fact he had concluded was not reasonably open to them.

[7] In my view, the trial judge also failed to give the jury an adequate understanding of how to determine whether Mr. Romano's manner of driving was dangerous, and whether it constituted a marked departure from the norm – the actus reus and mens rea elements of the offence. Specifically, the focus of the inquiry in each case should have been Mr. Romano's manner of driving, not who bore responsibility for Ms. Abogado's death, or the foreseeability of the specific accident that occurred. Yet the instructions related substantially to Ms. Abogado's conduct and to the role the accident should play in determining whether the driving was dangerous. Although other aspects of the charge were pristine, the theme of Ms. Abogado's role in her own death was sufficiently pronounced that I am satisfied that the jury would not have known how to apply the evidence to the dangerous driving and marked departure issues.

[8] I am not persuaded, however, that the trial judge erred on the "lawful justification" issue. He did not direct the jury that s. 128(13) of the Highway Traffic Act, R.S.O. 1990, c. H.8, provides a defence to dangerous driving, and his instruction adequately equipped the jury to consider the significance of Mr. Romano's policing role during the event.

[9] I would therefore allow the appeal, set aside the acquittal, and order a new trial on the offence charged, namely dangerous driving causing death.

Issues

[10] This Crown appeal from a verdict of acquittal on the charge of dangerous driving causing death raises three central issues. First, did the trial judge err in law in failing to leave the included offence of dangerous driving with the jury? Second, did the trial judge misdirect the jury on the elements of the dangerous driving component of the offence of dangerous driving causing death? And third, did the trial judge misdirect the jury on whether Mr. Romano had a "lawful justification" for driving as he did?

Analysis

A. The Included Offence Issue

[11] An "included offence" is a separate offence that is necessarily committed where the charged offence has been committed. As described in R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371, at para. 25, the included offence is "embraced" by the charged offence.

[12] "Dangerous driving" is an included offence in a charge of "dangerous driving causing death" because it is impossible to commit the offence of dangerous driving causing death without satisfying the legal requirements or elements of the offence of dangerous driving. Dangerous driving causing death is an aggravated version of the offence of dangerous driving, distinguishable only by the added legal requirement that the dangerous driving must cause the death of another.

[13] It is generally necessary for a trial judge to charge the jury about included offences: see Smith v. The Queen, [1979] 1 S.C.R. 215. This is because a person charged with an offence that includes another offence is effectively put on notice that they are alleged to have committed both offences, and are technically charged with both offences.

[14] The law is sensible, though. As was recognized in R. v. Luciano, 2011 ONCA 89, 273 O.A.C. 273, at para. 75:

The obligation of a trial judge to instruct jurors about the availability of a verdict of an included offence is … conditioned upon an air of reality in the evidence adduced at trial to permit a reasonable jury, properly instructed, to conclude that the essential elements of the included offence have been established.

[15] The propriety of refusing to leave the jury with a verdict option that a reasonable jury, properly instructed, could not arrive at makes obvious sense. A jury should not be left with the option of making an unreasonable decision.

[16] It follows that included offences that cannot lead to legally appropriate verdicts should not be left with juries. As stated in R. v. Wong (2006), 211 O.A.C. 201 (C.A.), at para. 12:

Where on the law applicable to the main charge and the included offence there is no reasonable view of the evidence, when considered as a whole, that could cause the jury to acquit on the main charge and convict on the included offence, an instruction on the included offence is a breeding ground for confusion and compromise.

[17] The Crown's first ground of appeal is that the trial judge erred by not leaving the included offence of dangerous driving with the jury. The Crown contends there was an air of reality to the possibility the jury could be sure that Mr. Romano drove dangerously, yet have a reasonable doubt about whether his dangerous driving caused Ms. Abogado's death.

[18] As I have indicated, the trial judge disagreed. He held that on the basis of the agreed facts, there was no reasonable scenario in which dangerous driving by Mr. Romano could be proved, but where the legal requirements of causation of death would not be met.

[19] This is because all the law of causation requires is that Mr. Romano's dangerous driving be a significant contributing cause of the death of Ms. Abogado: see R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 190, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 513; and R. v. O'Leary, 2017 ONCA 71, 36 C.R. (7th) 80, at para. 31. The trial judge concluded that, given his manner of driving at the time of the collision, there was no reasonable prospect that a jury could properly find that Mr. Romano's driving was not a significant contributing cause of Ms. Abogado's death.

[20] The trial judge's view was that it would do nothing other than puzzle the jury to leave them with the option of finding that only the offence of dangerous driving had been committed. He illustrated his concern during the pre-charge conference by describing the jury's anticipated reaction as, "[w]ell, if this driving didn't cause the death, what did"?

[21] Although it was the trial judge who raised the question of not leaving dangerous driving with the jury, trial counsel for Mr. Romano quickly agreed. During the pre-charge conference, Mr. Romano's counsel paraphrased the trial judge's position with obvious endorsement: "you couldn't envision finding dangerous driving causing death anything but, because if they find it they are going to find 'caused death', you know." He later affirmed, "I do not believe that leaving dangerous driving simpliciter there is any real air of reality to that conviction on the facts of this case."

[22] I agree with the trial judge and with Mr. Romano's trial counsel. While Ms. Abogado was herself acting in a dangerous manner by jaywalking, there was no realistic scenario on the evidence that would enable a properly instructed jury to acquit Mr. Romano of the offence of dangerous driving causing death, yet convict him of the included offence of dangerous driving.

[23] The central facts of this case were not in dispute. What was in dispute was the characterization of those facts.

[24] The Crown theory was that while driving through the city block where the accident occurred, Mr. Romano unnecessarily operated his undercover police vehicle at such an unreasonable speed that it was impossible for him to adjust his driving in response to unexpected but foreseeable events, such as jaywalking pedestrians, and that his failure to utilize his lights and siren prevented those at risk from taking steps to avoid being harmed.

[25] If this theory, or even part of it, was accepted by the jury in this case, where Ms. Abogado was struck by Mr. Romano's car while it was being driven in this fashion, there was simply no proper basis on which the jury could find that Mr. Romano's driving did not meet the legal requirements of causation.

[26] The law of causation is broadly encompassing. The causation test has two inter-related components, often described as "factual causation," and "legal" or "imputable" causation. Factual causation focuses exclusively on the connection between the act of the accused and the prohibited consequence, in a mechanical or physical sense. Legal causation focuses on the moral or imputable fault of the accused: see R. v. K.L., 2009 ONCA 141, 248 O.A.C. 260, at para. 14; and R. v. Malkowski, 2015 ONCA 887, 92 M.V.R. (6th) 1, at para. 14.

[27] The factual causation test is "inclusive in scope": R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 15. As the Supreme Court of Canada held in Smithers v. The Queen, [1978] 1 S.C.R. 506, at p. 519, it is met if the act of the accused is a contributing cause of the prohibited consequence, beyond a de minimis range. The Latin term means no more than that the contribution cannot be minimal.

[28] Without changing that standard, a majority of the Supreme Court of Canada suggested in R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 71, that the term "significant contributing cause" is a simpler, more familiar way, of communicating the same concept. Factual causation therefore exists where the contribution by the accused to the prohibited consequence is significant, in the sense described: R. v. Kippax, 2011 ONCA 766, 286 O.A.C. 144, at para. 24, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 92.

[29] The legal causation inquiry recognizes that there are cases where the factual causation test is facially met, but where the accused should not be held criminally responsible because circumstances affect the level of moral fault or blameworthiness of the accused, making it inappropriate to treat his contribution to the consequence as "significant." As the Supreme Court of Canada explained in Maybin, at para. 16, "[l]egal causation … is [therefore] a narrowing concept which funnels a wider range of factual causes into those which are sufficiently connected to a harm to warrant legal responsibility." It enables some cases where the factual causation test is technically satisfied to be removed from the net of criminal liability because moral blame should not be imputed to the accused. In effect, circumstances can impel recognition that the act of the accused should not be imputed as a significant contributing cause: Malkowski, at para. 14.

[30] The threshold for breaking the chain of factual causation is not generous. This is because, "[t]he criminal law does not recognize contributory negligence nor is it equipped with any mechanism to apportion responsibility for the harm occasioned by criminal conduct, expect as part of sentencing": K.L., at para. 18. Moreover, if an accused is already engaged in an unlawful act, the intensity of the causal connection required to furnish moral blame for the consequence can be modest.

[31] In this case, I agree with the trial judge's application of these tests in his decision to keep dangerous driving from the jury.

[32] Standing alone, the factual causation test would obviously be met, were the jury to accept the Crown's characterization of Mr. Romano's manner of driving as dangerous. The ineluctable conclusion that would follow would be that Mr. Romano struck Ms. Abogado while driving dangerously.

[33] The trial judge also properly considered and rejected the only material analytical aid to legal causation that might be of assistance in this case: the doctrine of intervening acts.

[34] The doctrine of intervening acts applies where an event independent of the accused's conduct occurs that severs the chain of factual causation between the accused and the consequence. It operates by undercutting the moral blameworthiness that could otherwise be ascribed to the accused. In effect, the intervening act deprives the factual causation contribution of the accused of its significance.

[35] In Malkowski, this court recognized that although the standard of legal causation remains "whether the accused's dangerous and unlawful acts are a significant and contributing cause of the victim's death", a finding against legal causation will generally occur in one of two situations. Either the independent intervening event is not reasonably foreseeable, and/or the intervening act is an independent cause of the consequence that is significant enough in relative weight to sever or break the chain of causation between the act of the accused and the consequence: Malkowski, at para. 14. On either standard, the trial judge was correct to find here that there was no air of reality to the prospect that Ms. Abogado's jaywalking could qualify as an intervening act.

[36] First, the dangerous driving theory was that jaywalking is a foreseeable risk that Mr. Romano failed to allow for in his manner of driving. On this theory the dangerousness of the driving arises from disregard of a foreseeable risk that materialized when Ms. Abogado jaywalked from the bus stop. If the jury accepted the Crown's theory it could not have concluded that Ms. Abogado's jaywalking was unforeseeable.

[37] Second, there was no realistic prospect that Ms. Abogado's decision to enter the roadway was significant enough that Mr. Romano's driving, if dangerous in the sense described, could lose its significance as a contributing cause of Ms. Abogado's death. Mr. Romano admitted during his testimony that, given the speed at which he was travelling, he really could not notice pedestrian traffic in time to do anything to avoid pedestrians entering the roadway. On Mr. Romano's own testimony, his driving could not properly be said to be nothing more than the setting in which Ms. Abogado's jaywalking brought about the collision. Nor could his driving be seen as merely part of the history of the event, with the jaywalking being the active cause of the collision: see Maybin, at paras. 46-51. Put somewhat differently, if Mr. Romano's driving was judged by the jury to be dangerous, it was inevitable that the speed that made his driving dangerous, and Ms. Abogado's presence on the roadway, each contributed significantly to the accident. As this court stated on the broadly comparable, albeit more aggravated facts in Malkowski, at para. 21:

[W]e would not characterize the victim's conduct as being an independent act, unrelated to the appellant's conduct. The appellant was driving at a speed of 152 km/h shortly after 8 o'clock at night in a place where both motorists and pedestrians were entitled to expect vehicles to have slowed down. The fact that the victim would attempt to cross the road but found herself unable to do so in safety 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 he did.

[38] It follows, therefore, that any jury properly instructed, accepting the dangerous driving theory of the Crown in this case, would have had to find that Mr. Romano's dangerous driving caused death.

[39] I would decline to give effect to this ground of appeal.

B. The Jury Charge

(1) Leaving Causation as a Live Issue

[40] Even though the trial judge ruled that there was no reasonable factual scenario that would support a finding of dangerous driving without a finding that the dangerous driving caused death, the trial judge instructed the jury that this finding was open to them. He did so by directing the jury in his charge that they should not consider the causation issue unless they were satisfied beyond a reasonable doubt that dangerous driving had been proven, and then by directing them that if they were not satisfied beyond a reasonable doubt that Mr. Romano's operation of the motor vehicle caused Ms. Abogado's death, they "must find him not guilty of dangerous [driving] of a motor vehicle causing death".

[41] Simply put, the trial judge's jury directions specifically contemplated the very factual outcome that he had previously ruled was not legally available – a finding that dangerous driving occurred without causation. Since the jury was only given the offence of dangerous driving causing death, the charge also contemplated a complete acquittal if the jury found facts that would support the offence of dangerous driving simpliciter.

[42] Technically, the trial judge could not avoid directing the jury about causation. A jury verdict belongs to the jury. It is for them to decide whether the Crown has met its burden on each element of the offence. Accordingly, a trial judge must advise the jury of each of the elements of the offence, and of the Crown's burden to prove each of those elements beyond a reasonable doubt. This is so even where a trial judge has removed an included offence from the jury that would be satisfied if the Crown proves only some of the elements of the charged offence.

[43] The concern in this case is that the trial judge left causation with the jury as a live issue on the facts. After ruling that there was no air of reality to a factual finding that dangerous driving occurred without causation, he invited the jury to arrive at that very factual finding as one possible outcome. With respect, this was an error.

[44] The validation of a dangerous driving but no causation finding began with the trial judge's decision to delay ruling on whether dangerous driving simpliciter would be left with the jury until after counsel addressed the jury. As a result, counsel were permitted to address the jury ungoverned by a ruling. Both jury addresses delivered by counsel before that ruling featured causation as a live issue.

[45] The closing address of the defence was riddled with submissions inviting the jury to assign causal blame for the accident to Ms. Abogado:

The Crown will tell you that Constable Romano admitted under oath that it was his position that Ms. Abogado was solely responsible for her death. Let me be clear: The defence position is that Ms. Abogado made a fateful decision to cross St. Clair Avenue at the time and location she did. Ms. Abogado is solely responsible for the decision she made….. [T]hat's the risk you take when you jaywalk. The point is jaywalking is inherently dangerous.

While it may be true that everyone jaywalks, this case is not about a casual jaywalker crossing a quieeth [ sic ] residential street in daylight. This case is about stepping into traffic on a four-day [ sic ] road at night. This case is about trying to beat the traffic.

In the next three pages of transcript, defence counsel continued to address Ms. Abogado's fault, and the inevitability of the collision given her conduct.

[46] The closing address of Crown counsel at trial (not counsel on this appeal) continued this theme. Crown counsel advised the jury that causation was one of the two questions that the trial was about. He urged the jury to find that Ms. Abogado did not just appear in front of Mr. Romano. Instead, he argued Mr. Romano had time to see her and react, but her death was still unavoidable because Mr. Romano was speeding and not paying enough attention to react in time. Crown counsel chided Mr. Romano's "position" that he was the victim, not Ms. Abogado, and that he did nothing wrong, she did. Crown counsel also described Ms. Abogado as "the true victim" and argued that her decision to jaywalk was "commonplace" based on the reasonable expectation that oncoming traffic would be moving close enough to the speed limit to enable her to cross the road safely.

[47] Clearly, by the end of the closing arguments the jury was alerted to causation as a live, central issue. It was in this context that the trial judge gave his jury charge, which failed to neutralize the emphasis that causation had taken on as an issue in the case.

[48] In his charge, after instructing the jury to consider causation, the trial judge introduced the legal causation test and told them to consider all the evidence concerning Ms. Abogado's death in determining whether the Crown had proved that Mr. Romano's conduct contributed more than insignificantly to Ms. Abogado's death.

[49] Among the evidence recited earlier in his charge was that Ms. Abogado was jaywalking, that is, "she was crossing St. Clair Avenue East in the middle of the road, not at an intersection or at a crosswalk," and that she was "wearing generally dark clothing, meaning that she would be more difficult for a driver to see, especially given that it was night time and it was dark out." The trial judge also recited Officer Smith's evidence that Ms. Abogado ran into the path of Mr. Romano's vehicle, and Mr. Sarmiento's evidence that "she stopped suddenly [on the road] and appeared to be startled", as well as Mr. Romano's evidence that he did not see any person before Ms. Abogado "just appeared in front of his vehicle," and then Ms. Taylor's testimony that, while trailing Mr. Romano's vehicle, she "did not see anyone in the road."

[50] To be sure, the trial judge also recounted evidence that might work against Ms. Abogado's responsibility for the collision, including expert evidence that she was not running when hit. He also reminded the jury that whether Ms. Abogado ran across or stopped may not matter if they accepted the expert testimony that, given the speed at which Mr. Romano was travelling, he would not have been able to avoid hitting her. The instant point, however, is that the trial judge invited the jury to evaluate the causation issue after having elsewhere in his charge recounted evidence that would naturally feed such consideration.

[51] Most significantly, the trial judge made irrelevant and adverse comments about Ms. Abogado's conduct. After telling the jury to take into account that Ms. Abogado was jaywalking he added, "[j]aywalking is an inherently risky activity." Then, he said "[p]edestrians must be aware, when they jaywalk, that drivers are not always paying attention, not always concentrating on what is going on ahead of them." He then described the darkness of Ms. Abogado's clothing, and the poor visibility at the time of the collision.

[52] Although these immaterial comments were made while the trial judge was directing the jury on how to determine whether the vehicle was being operated dangerously, and not when he was describing causation, the inherent risks of jaywalking and the obligation of jaywalkers to be aware of the risks of jaywalking have nothing to do with whether a vehicle is being operated dangerously. These comments, which largely parrot causation arguments made by the defence, could only have been understood by the jury as being relevant to responsibility for the collision.

[53] In my view, the trial judge's charge, taken as a whole and in light of the closing arguments, presented causation as a live issue. It instructed the jury to resolve the issue, it furnished the legal test, and it armed the jury with information that they could use to find no causation.

[54] The fact that the trial judge commented, "[i]f you are satisfied beyond a reasonable doubt that the driving was dangerous as I have defined it, you should not have difficulty in finding that it caused her death", does not change this. The trial judge told the jury the case was for them to decide, and they were not bound by any opinions he expressed.

[55] Nor does the fact that he told the jury that drivers know people jaywalk and should be alert to that possibility, alter the fact that he charged the jury in a way that invited the jury to arrive at the very factual decision he had found to be without an air of reality.

[56] In my opinion, the trial judge need not, and should not have done so. After deciding to remove the included dangerous driving offence from the jury, he should have discharged his obligation of advising them of the elements of the offence that would have to be found for a conviction, but then made it clear to them that causation was not, in law, a live issue in the case that can properly attract reasonable doubt.

[57] The trial judge told the jury in his charge that they need not consider identification any further because this essential element had been admitted. He should have done much the same with the causation issue. While Mr. Romano did not formally admit causation, at trial, his counsel acknowledged there was no realistic basis in law for finding no causation if a finding of dangerous driving was made. That admission was made as a submission in aid of a tactical defence preference not to have the offence of dangerous driving left with the jury. In these circumstances, Mr. Romano could not have complained had the trial judge directed the jury that it was agreed, as a matter of law, that if it was proved beyond a reasonable doubt that Mr. Romano drove dangerously, it must follow that his dangerous driving caused Ms. Abogado's death.

[58] The trial judge's failure to provide such a direction after removing the included offence of dangerous driving from the jury created a problematic trial in three respects.

[59] First, failing to make clear to the jury that causation was not a live issue left resonant defence counsel's attempt to secure an acquittal based on the absence of causation, even though the defence had relied on the submission that causation was not a real issue so that it could obtain what it considered to be the tactical advantage of removing the dangerous driving charge from consideration.

[60] Second, failing to make clear to the jury that causation was not a live issue created a realistic prospect that the trial judge's instruction to acquit Mr. Romano entirely if only dangerous driving was proved beyond a reasonable doubt, would be acted upon by the jury. Of course, if that was the factual finding the jury was to make, a proper legal verdict would be a finding of guilt on the very charge the trial judge chose not to leave with the jury, namely, dangerous driving.

[61] Third, failing to make clear to the jury that causation was not a live issue left the trial judge in a position where he was inviting the jury to arrive at a verdict he had already determined to be unreasonable on the evidence.

[62] Ironically, the trial judge removed dangerous driving from the jury in large measure because, given how obvious causation was, it would puzzle the jury if he was to instruct them that they could find that causation was not proved beyond a reasonable doubt and then convict Mr. Romano only of the lesser offence. Instead, the trial judge ended up instructing the jury as if they could realistically find that that causation was not proved beyond a reasonable doubt, and then acquit Mr. Romano entirely – an equally confusing but also legally erroneous outcome.

[63] In my view, the trial judge erred in law in giving a charge on the causation issue that did not furnish the jury with adequate guidance on how to address the issue of causation. Had this been the only error, the proper response on appeal would be to order a new trial solely on the included offence of dangerous driving. Regrettably, however, as I will next explain, this was not the only error in the jury charge.

(2) The Charge and the Actus Reus and Mens Rea

[64] The Crown argues that the trial judge misdirected the jury by permitting considerations of causation to obscure a proper evaluation of the actus reus and mens rea of the dangerous driving component of the charged offence, and by permitting the focus to be on the collision, rather than Mr. Romano's manner of driving.

[65] I agree with the Crown. The portion of the jury charge addressing whether Mr. Romano engaged in "dangerous driving," or more technically, "operated the motor vehicle in a manner that was dangerous to the public," gave undue focus to the collision, and to questions of responsibility for the collision. It should have focused on Mr. Romano's driving and whether that driving constituted a marked departure from the standard of care expected of a police officer in Mr. Romano's circumstances.

[66] To make this point, the nature of the "dangerous driving" element of the offence of dangerous driving causing bodily harm requires elaboration.

[67] As explained in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 28, summarizing R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, the "dangerous driving" element of the offence of "dangerous driving causing death" itself has two distinct elements, the actus reus and mens rea components:

The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place ( s. 249(1) (a) of the Criminal Code ). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances ( Beatty , at para. 43 ). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from the norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [Emphasis in original.]

[68] The Supreme Court of Canada has been clear that in examining the actus reus element of dangerous driving, the focus should be on the manner of driving, not the consequences of driving, or the cause of those consequences. This is because it is an offence to drive dangerously even if no-one is injured; the act or conduct that the offence of dangerous driving addresses is driving in a manner that puts the public at risk that his may happen: Roy, at para. 34. As Charron J. stated in Beatty, at para. 46:

As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The consequence, as here where death was caused, may make the offence a more serious one under s. 294(4), but it has no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. [Emphasis in original.]

[69] The same holds true, in my view, in assessing the mens rea of dangerous driving offences. This, again, is because the focus is on whether the manner of driving constitutes a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. There must be a meaningful inquiry into the manner of driving, not into the degree of departure from the norm that the consequence demonstrates.

[70] In Beatty, Charron J. did, at para. 46, recognize a limited role that consequences can play in assessing dangerousness and, by inference, in assessing whether a departure is marked:

The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public.

[71] Simply put, when asking whether the manner of driving has been dangerous, or represents a "marked departure", a consequence that has occurred can verify the nature of the risks that existed, but that consequence should not be used in determining whether the manner of driving was dangerous or in marked departure from the norm. Judging whether driving was dangerous by exploring whether the accused is at fault for an accident that occurred obscures the proper focus on the manner of driving, and duplicates causation considerations that arise when, as in this case, an aggravated form of dangerous driving is charged.

[72] Moreover, in assessing the dangerousness of the driving the relevant risk to be considered is not the risk that the specific accident event would materialize. As the statutory definition of dangerous driving in s. 249(1) of the Criminal Code makes plain, what is of interest is danger to the public generally.

[73] Even when it comes time to consider causation in the context of intervening acts, the relevant foreseeability inquiry is not concerned with whether the specific consequence that occurred was reasonably foreseeable; the inquiry is whether the general kind of event that constitutes the putative intervening event is foreseeable. This is why this court asked in Malkowski, at para. 16, whether it was "reasonably foreseeable that a person would go on to the road in some manner at the time and place of the appellant's dangerous driving", rather than whether it was reasonably foreseeable that someone would attempt to run across the road as the victim did in that case.

[74] In my view, the trial judge made these errors in charging the jury on how to assess whether Mr. Romano's driving was dangerous. The charge gave undue focus to the collision, and to questions of responsibility for the collision, when it should have focused on Mr. Romano's driving, and whether that driving constituted a marked departure from the standard of care expected of a police officer in Mr. Romano's circumstances. I will elaborate.

[75] The trial judge began the relevant portion of his charge properly by giving the standard direction to the jury to decide whether the manner of driving was dangerous to the public, and to focus on the risks created and not the consequences. Further, he told the jury: "[e]ven if Ms. Abogado was partly responsible for what happened, the fact that she was jaywalking is only relevant to foreseeability of risk."

[76] Leaving aside that the trial judge did not go on to explain how Ms. Abogado's jaywalking was relevant to the foreseeabilty of the risk, the trial judge then took a wrong turn. After drawing attention to Ms. Abogado's partial "responsib[ility] for what happened" and her jaywalking, he directed the jury to ask, "in light of all the circumstances, would a reasonable, prudent police officer have foreseen the risk and taken steps to avoid it" (emphasis added). In doing so, he focused the jury on the risk posed given Ms. Abogado's jaywalking, and not the general risks to the public that may have been posed by Mr. Romano's manner of driving.

[77] What followed in the trial judge's instructions is more problematic, as the focus on the collision and Ms. Abogado's role in it became more intense. Although I have quoted part of these instructions earlier in these reasons, they bear repetition in full:

In considering whether the driving in question was dangerous as I have defined it, you will take into account that Ms. Abogado was jaywalking, that is, she was crossing St. Clair Avenue East in the middle of the road, not at an intersection or at a crosswalk. Jaywalking is an inherently risky activity.

Pedestrians must be aware, when they jaywalk, that drivers are not always paying attention, not always concentrating on what is going on ahead of them. Also, Ms. Abogado was wearing generally dark clothing, meaning that she would be more difficult for a driver to see, especially given that it was night time and it was dark out.

[78] The focus in this passage is wrong in law. The passage instructs the jury to evaluate the dangerousness of the driving and the degree of departure from the norm by examining the circumstances of the collision rather than the manner of Mr. Romano's driving. The passage also gives emphasis to the conduct of Ms. Abogado. The issue for the jury at this juncture was not the specific question of whether the collision with Ms. Abogado was foreseeable and avoidable. It was the more general question whether the manner of driving presented foreseeable and avoidable risks to the public, including risks that would arise if persons entered or were on the roadway.

[79] In fairness, the trial judge did then properly re-orient the jury:

That said, everyone who drives knows that people jaywalk. It happens often. Indeed, Mr. Goode, the bus driver, told you that people cross St. Clair Avenue, in the way that Ms. Abogado did, pretty frequently. Drivers should, therefore, be alert to the possibility of pedestrian's [ sic ] jaywalking, just as they should be alert to the possibility that another driver may do something that will cause a situation that needs to be avoided and be prepared to adjust their driving accordingly.

[80] In the following three paragraphs, however, the improper focus on the foreseeability and avoidability of the collision with Ms. Abogado was reintroduced. The jury was directed to evidence about whether, given the speed at which Mr. Romano was travelling, Ms. Abogado could have been seen in time to avoid the collision, and whether Ms. Abogado ran in front of or stopped in front of Mr. Romano's police vehicle.

[81] The balance of the relevant portion of the charge was appropriate. The trial judge addressed Mr. Romano's familiarity with the area where he was driving, and identified admissions by Mr. Romano that, given the speed at which he was travelling, he could not do anything about pedestrians on the road, like Ms. Abogado, and that he did not take into account that a person might be jaywalking from the bus shelter, a bus shelter he did not know was there.

[82] The trial judge's final paragraph addressing the dangerousness of the driving was exemplary:

In the end result, you will have to decide whether you consider the manner in which Mr. Romano was driving, including the speed that he was travelling at; the fact it was on a city street with residences around; the fact that it was dark but there was street lighting; and the potential for pedestrians to be jaywalking, constituted a marked departure from the manner in which a reasonable, prudent police officer would drive in the same circumstances.

[83] The issue, then, is whether the proper bookending paragraphs of the charge focusing on the general manner of driving and the general risks posed by that driving, are sufficiently clear to overcome the misdirected and misleading focus on the consequence or collision, and on the blameworthiness of Ms. Abogado that is shot throughout this part of the charge.

[84] In making this determination, I am required to consider the legal standards that are imposed on jury charges. Specifically, the relevant inquiry here is about the obligation of the trial judge to assist the jury in understanding the factual issues arising out of the legal framework that the jury must resolve, and the material evidence relevant to those issues: R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 11. As this court explained in Newton, at para. 13, while judges have discretion in how to charge and can stray from the ideal without error, the sufficiency of the charge in these respects should be resolved by asking, functionally: "has the jury been 'left with a sufficient understanding of the facts as they relate to the relevant issues'"; or "are we satisfied 'that the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues.'" If the answer is "no" to either question, the trial has not been a fair one.

[85] Looking at the matter functionally, I do not believe that general instructions to examine the manner of driving, and an exemplary concluding paragraph, could dissuade a jury from engaging in the improper exercise the trial judge repeatedly directed the jury to undertake. I am reinforced in this conclusion by the fact that some of the passages in the charge include irrelevant and adverse comments on the inherently risky activity of jaywalking, and on the responsibility jaywalkers bear. In the end, the jury was not left with a sufficient understanding of the facts as they relate to the relevant issues. Nor would the jurors have adequately understood the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues.

[86] To summarize, notwithstanding the absence of an objection to the charge by the trial Crown, the errors in the charge described above are sufficiently serious that the jury was not in a position to evaluate properly the dangerousness of the operation of the motor vehicle, leading to a miscarriage of justice.

(3) The Charge and "Lawful Justification"

[87] There is no "lawful justification" defence to the offence of dangerous driving. Instead, the law uses the mens rea component of the offence of dangerous driving to permit emergency personnel to operate motor vehicles in a manner that might otherwise be criminal. As I have explained, to establish the mens rea of dangerous driving the Crown must prove that the manner of driving "was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances" (emphasis in original): Roy, at para. 28. In applying this "modified objective test" in which the "accused's circumstances" are relevant, the status of the accused as an on-duty police officer acting in the course of his duties must be considered. Unless the manner of driving by the accused is a marked departure from the standard of care that a reasonable on-duty police officer would observe in the circumstances, dangerous driving cannot be found.

[88] The Crown raises issues with the way the trial judge charged the jury on this issue. Specifically, the Crown contends that the charge relating to Mr. Romano's role as a police officer was misleading in that it left the impression that s. 128(13) of the Highway Traffic Act was a defence to dangerous driving. The Crown also urges that the overall instruction on this issue was confusing, failing to provide guidance on how to evaluate Mr. Romano's role at the time of driving as an on-duty police officer. I would not give effect to either of these grounds of appeal.

[89] Section 128(13) of the Highway Traffic Act provides that speed limits do not apply to police department vehicles used in the lawful performance of a police officer's duties. If an officer is in the lawful performance of their police duties, this provision exempts police officers from speed limits, but not from criminal offences such as dangerous driving.

[90] Still, it was proper for the trial judge to acquaint the jury with s. 128(13) of the Highway Traffic Act. Since the jury was required by law to evaluate whether Mr. Romano's manner of driving "was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances", the jury had to be instructed that, like other police officers, Mr. Romano was lawfully entitled to exceed posted speed limits: Roy, at para. 38.

[91] Had the trial judge actually communicated that s. 128(13) of the Highway Traffic Act is a defence to a dangerous driving causing death charge, he would have erred. However, he did not do so. Immediately after introducing the provision he directed the jury:

That exemption does not mean, however, that police officers have a licence to do whatever they please in terms of driving above the speed limit. They are still subject to the criminal law and can face charges for their actions, as Mr. Romano does here. In addition, police officers must always act in a reasonable and prudent manner with a view to protecting the public. They must have regard for their actions, and the consequences of those actions, for public safety.

[92] Nor did the trial judge fail to alert the jury to the higher standard of care that applies to police officers operating vehicles in the privileged manner permitted under s. 128(13). He did so with clarity earlier in the charge.

[93] The related Crown complaint, that the charge was confusing and failed to provide guidance on how to evaluate Mr. Romano's role at the time as an on-duty police officer, has more foundation. Specifically, parts of the jury charge may be read as suggesting that there is a self-standing defence of "lawful justification". These include the trial judge's reference to "lawful justification" or excuse in the charge, and his direction that the jury consider "whether Mr. Romano had a lawful justification, excuse or explanation for [his] driving".

[94] It would have been better had the trial judge avoided such language and simply explained directly how Mr. Romano's role as an on-duty police officer must be considered in applying the marked departure test. Read in context, however, I am satisfied that the isolated passages in question would not have left this jury confused. The trial judge did not purport to offer a legal test for identifying "lawful justification" or excuse, as if it was a self-standing defence. Instead, he situated this discussion within his canvas of the dangerous driving element of the offence. He also posed the correct questions for consideration, including whether it was important for Mr. Romano to regain his position with the surveillance team, whether it was reasonable not to activate his emergency lights, and whether in driving above the speed limit he acted in a reasonable and prudent manner with a view to protecting the public. Immediately after raising these questions, the trial judge told the jury to decide whether Mr. Romano drove in a marked departure from the manner in which a reasonable, prudent police officer would have done in the same circumstances. These were proper and necessary considerations.

[95] Accordingly, I would not give effect to this ground of appeal.

Conclusion

[96] For the reasons given, I would reject the Crown's first and last grounds of appeal. The trial judge was correct not to leave the included offence of dangerous driving with the jury, and his instructions relating to Mr. Romano's role as an on-duty police officer do not reflect reversible error.

[97] I would, however, give effect to other grounds of appeal.

[98] Having removed the dangerous driving charge from the jury, the trial judge erred by leaving, as a live issue, the possibility that the jury could make factual findings that would support a finding of guilt on a dangerous driving charge, and yet acquit Mr. Romano entirely.

[99] Moreover, the jury charge relating to the actus reus and mens rea elements of dangerous driving was confusing, and failed to give proper guidance that would enable the jurors adequately to understand the issues involved and the evidence they should consider in resolving these issues.

[100] I would therefore allow the appeal, set aside the verdict of acquittal, and order a new trial on the charge of dangerous driving causing death.

Released: November 3, 2017

"David M. Paciocco J.A."

"I agree. E.A. Cronk J.A."

"I agree. R.G. Juriansz J.A."

Footnote

[1] Ms. Abogado's legal name, the name included in the indictment, is Natasha Abogado. She went by the name of Carla, hence its use in these reasons.