Court of Appeal for Ontario
Date: 2018-03-23 Docket: C63513 Judges: Sharpe, Pardu and Fairburn JJ.A.
Between
Her Majesty the Queen Respondent
and
Jamie Porto Appellant
Counsel
David Butt and Maija Martin, for the appellant Frank Au, for the respondent
Heard: March 20, 2018
Appeal Information
On appeal from the conviction entered on December 15, 2016 and the sentence imposed on March 22, 2017 by Justice Bruce G. Thomas of the Superior Court of Justice, sitting without a jury.
Reasons for Decision
Conviction Appeal
[1] The appellant argues that the trial judge erred in convicting him of dangerous driving causing bodily harm. The appellant, a police officer, was responding to an emergency at high speed. He drove through a small town where the posted speed limit was 50 kmph, at a speed of 178 kmph. He passed a construction zone and a school, and crashed into a vehicle travelling in the same direction, but in the process of making a left turn as the appellant tried to pass him on the left. Trial counsel conceded that the high speed driving amounted to driving in a manner dangerous to the public, and thus established the actus reus of the offence. It was also conceded that the appellant's driving was a cause of the bodily harm resulting from the collision. The substantial issue for trial was whether the Crown had proven beyond a reasonable doubt that the appellant's driving amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. (R. v. Roy, 2012 SCC 26 at para. 28, R. v. Beatty, 2008 SCC 5)
[2] The appellant argues firstly that the trial judge did not apply the criminal standard of proof beyond a reasonable doubt in deciding this question. He submits that it was not sufficient for the trial judge to simply express disagreement with the appellant's argument that his driving did not amount to a marked departure from the norm; the trial judge had to go further and assess whether this element of the offence was proven beyond a reasonable doubt.
[3] We do not agree that the trial judge failed to apply the appropriate standard of proof. The trial judge expressly acknowledged the defence arguments at paragraph 75 of his reasons:
The defence argues that although the driving was dangerous, I must, at the very least, have a reasonable doubt as to whether Constable Porto's conduct amounted to a marked departure from the standard of care which a reasonable police officer would have exercised in the same circumstances. I am reminded that this officer was responding to a potential life-threatening call. A call where Constable Porto and other testifying officers suggested a few seconds could make a real difference in the survival of the injured caller.
[4] Ultimately, the trial judge concluded that the appellant's driving amounted to a marked departure from the standard of care of a reasonable police officer, at para. 90:
Constable Porto should have foreseen the danger posed by Mr. Coombes's vehicle. At the speed he was travelling, he should have realized that he had no time to react if he guessed wrong. I find that the reasonable police officer in these circumstances would have reduced his speed dramatically and maintained his eastbound lane until he was sure of the intentions of Ryan Coombes. The failure to reduce his speed and proceed to pass at this intersection in the middle of the village amounted to a marked departure from the standard of care of a reasonable police officer.
[5] The trial judge carefully reviewed all of the surrounding circumstances, including those said to raise a doubt as to the degree of the appellant's departure from the norm:
The serious nature of the emergency call to which the appellant was responding;
Police officers' training and experience in high speed driving. Other officers endorsed the appellant's manner of driving;
The exemption in s. 128(13) of the Highway Traffic Act R.S.O. 1990, c. H.8 allowing police officers to exceed posted speed limits in the performance of their duties;
The condition of the road, wide, straight and dry;
The quiet time of the day, school was in session nearby;
The appellant's awareness of the construction zone;
The appellant's familiarity with the village;
The contribution to the collision caused by the other vehicle's failure to pull over to the right in response to the lights and siren of the appellant's vehicle, and the possible failure of the other driver to signal a left turn.
[6] Having considered all of the circumstances, the trial judge concluded that the appellant's excessive speed in and of itself amounted to a marked departure from the standard of care of a reasonable police officer. It was open to the trial judge to reach this conclusion. We are not persuaded that he applied a standard of proof less rigorous than proof beyond a reasonable doubt.
[7] This brings us to the second argument made by the appellant against conviction, that the trial judge overemphasized speed as a factor. Given that the trial judge concluded that speed alone amounted to a marked departure, it is difficult to see how he could over-emphasize this factor. As the trial judge found, at 178 kmph the appellant had virtually no time to react to emergencies or foreseeable conduct by other drivers.
[8] Accordingly, the appeal from conviction is dismissed.
Sentence Appeal
[9] The appellant also seeks leave to appeal from the sentence imposed, a $2500 fine and a one year driving prohibition. He acknowledges that the sentence imposed by the trial judge was fit, but asks that we consider fresh evidence and on that basis substitute a discharge. The gravamen of the fresh evidence is that the appellant is a conscientious and able police officer respected by his superiors and his peers. That same evidence was before the trial judge and it provides no basis upon which this court could interfere with the sentence he imposed. Leave to appeal the sentence is granted, the motion to admit fresh evidence is dismissed and the appeal from sentence is dismissed.
"Robert J. Sharpe J.A." "G. Pardu J.A." "Fairburn J.A."
