COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Galletta, 2020 ONCA 60

DATE: 20200129

DOCKET: C66913

Benotto, Paciocco and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Galletta

Appellant

Ian M. Carter, for the appellant

Gavin MacDonald, for the respondent

Heard: January 17, 2020

On appeal from the conviction entered on January 10, 2019 by Justice Jacqueline Loignon of the Ontario Court of Justice, with reasons reported at 2019 ONCJ 571.

REASONS FOR DECISION

OVERVIEW AND ISSUES

[1] Christopher Galletta[^1] appeals his convictions by an Ontario Court of Justice judge on two counts of criminal negligence causing death, and one count of criminal negligence causing bodily harm. He also appeals the findings of guilt made against him of three overlapping aggravated dangerous driving offences.

[2] Mr. Galletta did not dispute at his trial that, objectively, his manner of driving was dangerous and that it caused the death of two young female passengers in the car he was driving, as well as serious injury to a third young female. Nor could he. Mr. Galletta lost control of the vehicle while attempting to pass two cars, while approaching the crest of a hill on a narrow country road, at a speed that exceeded the 80 km/h speed limit by approximately 100 km/h. After one of his wheels caught the gravel on the side of the road, the vehicle travelled through a ditch and then launched high enough into the air to strike a hydro pole 2.71 metres from its base before tearing through 32 metres of dense bush, resulting in the unspeakable losses we have described.

[3] Indeed, Mr. Galletta takes no issue on this appeal with the trial judge’s finding that his manner of driving showed wanton and reckless disregard for the lives and safety of others, adequate to support the actus reus for his criminal negligence convictions. Instead, his appeal is based on the treatment by the trial judge of the mens rea components of the offences charged.

[4] He contends that she failed to properly consider the circumstances he was in at the time of the accident when considering his fault or blameworthiness. He was in a state of panic, fleeing from young men who had threatened to kill him before chasing him down, boxing his vehicle in with their cars, and then smashing the driver’s side window to get at him. He had, within two minutes of the accident, escaped by accelerating around the assailant’s vehicles and then fleeing down the highway.

[5] The specific argument made before us by Mr. Galletta can fairly be put this way:

A. The trial judge erred by focusing only on the manner of driving when assessing: (i) whether Mr. Galletta’s manner of driving constituted a significant enough departure from the standard of the norm to ground the criminal liability imposed; and (ii) in determining “whether a reasonable person in his circumstances would have appreciated the risk having been deprived of rational considered thought by actions beyond his control”; and

B. The trial judge erred by using the automatism/incapacity standard to assess whether Mr. Galletta had the requisite mens rea.

[6] We reject both grounds of appeal. The trial judge stated the relevant law impeccably, and she applied it without palpable and overriding error.

A. Did the trial judge err by focusing only on the manner of driving?

[7] Criminal negligence and dangerous driving are penal negligence offences. They each address objectively dangerous conduct but because they do so by imposing criminal consequences, the requisite level of negligence is elevated from simple negligence to penal negligence: in the case of dangerous driving, to a marked departure from the standard of the norm, and in the case of criminal negligence, to a marked and substantial departure from the standard of the norm: R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867, at p. 888; R. v. Javanmardi, 2019 SCC 54, at para. 21. Compliance with those standards in driving cases is assessed by asking whether “a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity”: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 37.

[8] In answering these questions, a “modified objective test” is applied. More specifically, the assessments just described are to be made in the circumstances the accused was in at the time of the alleged offence. However, the modification of the objective test has limits. Since such offences are meant to establish appropriate levels of objective care, the personal attributes of the offender are not to be considered: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 38; Beatty, at paras. 39-40.

[9] As a result, even if Mr. Galletta “was deprived of rational considered thought by actions beyond his control” because he was too panicked and frightened to think clearly, the trial judge was not obliged to assess his negligence on that footing unless a reasonable, ordinary person in his circumstances (having been threatened, chased down in a car, and assaulted as he was) would also be deprived of rational considered thought. If a reasonable, ordinary person in those circumstances would not have been deprived of rational thought, then Mr. Galletta’s deprivation of rational considered thought necessarily arises from his personal attributes, not from the circumstances.

[10] The trial judge understood this, and when her reasons are read in context, this is precisely the exercise she engaged in and the conclusion she arrived at. She recognized that the confrontation was terrifying, and that Mr. Galletta had a reasonable basis for his fear when fleeing the quarry where the confrontation occurred. She also accepted that as he sped throughout the 2.7-kilometre drive to the accident scene, he was very scared and he repeatedly expressed fear for his life. She accepted that he was in such a state that he was initially crying and then hyperventilating, and that Ms. Foley, the surviving victim, did not believe that the continual pleas from all three victims that he calm down, slow down, and stop were registering. After accurately setting out the defence position, the trial judge concluded, as she was entitled to, that during the one to two minutes that passed, time and distance removed the imminent peril. A reasonable, ordinary person in these circumstances, having received the repeated warnings and pleas from the victims, coupled with their repeated assurances that they were not being followed by the assailants, would have foreseen the risk of continuing to drive in the manner he did. Nor would that reasonable person have chosen to run the risk of driving in the manner Mr. Galletta did in the face of a risk of violence that had passed. The trial judge found that Mr. Galletta’s departure from these standards was marked and substantial. We find no error in her application of the modified objective test.

B. Did The trial judge err by using the Automatism/incapacity standard to assess whether Mr. Galletta had the requisite menS rea?

[11] As a matter of law, a finding of automatism or incapacity is a defence even if a reasonable person would have foreseen and avoided the risk in the circumstances: R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, at p. 61.

[12] The trial judge understood this. She did not raise automatism to suggest that Mr. Galletta’s panic had to bring him to a state of automatism or incapacity to negate his criminal liability under the modified objective test, as Mr. Galletta now suggests. Instead, the trial judge was simply being complete in responding to capacity-based evidence and submissions by considering whether he had the benefit of the incapacity defence. By the point in her judgment where she raised and addressed this issue, she had already made the requisite findings to determine that a reasonable person in the circumstances would have foreseen and avoided the relevant risk.

[13] Having undertaken this analysis, the trial judge found that despite his condition and Ms. Foley’s evidence that the warning and pleas of the women were not registering, and even though that case law suggests that panic can produce a state of automatism, Mr. Galletta was not incapacitated. He was responsive to the inquiries made. As defence counsel conceded at trial, his decision to drive as he did was voluntary.

[14] We see no error in the trial judge’s use of the automatism/incapacity standard.

CONCLUSION

[15] The appeal is dismissed.

“M.L. Benotto J.A.”

“David M. Paciocco J.A.”

“Thorburn J.A.”

[^1]: In the judgment below, the title of proceedings refers to the appellant as Chris Galetta. The correct spelling of his name is Christopher Galletta. In the absence of an amendment, the title of proceedings reflects the judgment below.