Court of Appeal for Ontario

Date: 2021-04-08 Docket: C65842

Judges: Strathy C.J.O., Watt and Zarnett JJ.A.

Between:

Her Majesty the Queen Respondent

and

Remo Romano Appellant

Counsel: Brian Greenspan and James Foy, for the appellant, Remo Romano Holly Loubert, for the respondent, the Crown

Heard: November 13, 2020

On appeal from the conviction entered by Justice Todd Ducharme of the Superior Court of Justice, sitting with a jury, on January 24, 2018 and from the sentence imposed by Justice Brian P. O’Marra of the Superior Court of Justice on September 13, 2018 with reasons reported at 2018 ONSC 5172.

Zarnett J.A.:

I. Introduction

[1] On the evening of February 12, 2014, the appellant, a police officer, was driving an unmarked vehicle on a Toronto street as part of a police surveillance team. Having fallen behind the team, and in an effort to catch up, he accelerated to about 115 kilometres per hour (“km/h”) in a zone with a posted speed limit of 60 km/h. His vehicle struck and killed Ms. Carla Abogado.

[2] Ms. Abogado had nothing to do with the police surveillance. At the time of the fatal collision, she had been on her way home from work and was crossing the street (but not at an intersection) [1] after exiting a Toronto Transit Authority (“TTC”) bus.

[3] The appellant was charged with dangerous operation of a motor vehicle causing death, contrary to what was then s. 249(4) of the Criminal Code of Canada, R.S.C., 1985, c. C-46. [2] He has been tried three times for this offence.

[4] At his first trial, the jury was unable to agree on a verdict.

[5] At his second trial, the appellant was acquitted, but the Crown successfully appealed to this Court. The acquittal was set aside, and a new trial directed: R. v. Romano, 2017 ONCA 837, 142 W.C.B. (2d) 539 (“Romano 2017”).

[6] At his third trial, the appellant was convicted and received a custodial sentence of eight months.

[7] The appellant appeals both his conviction and sentence.

[8] The conviction appeal relates to the trial judge’s charge to the jury. The appellant submits that the trial judge improperly focussed the jury on the consequences of his driving and whether the specific accident was foreseeable and avoidable, rather than on the proper questions — whether the manner of his driving was dangerous to the public and was a marked departure from the required standard in the circumstances. The appellant also submits that the trial judge failed to provide proper guidance to the jury on how to determine what would constitute a “marked departure” from the required standard.

[9] On the sentence appeal, the appellant submits that the circumstances did not require an eight month, or any, term of imprisonment. He argues that this court should reduce his sentence or substitute a conditional sentence.

[10] For the reasons that follow, I would dismiss both the conviction appeal and the sentence appeal.

II. Background

[11] In order to put the issues to be decided into context, I begin with an outline of the elements of the offence of dangerous driving causing death. I then turn to a description of the circumstances of the offence and the theories advanced at trial. Against that backdrop, I address the grounds of appeal and why, in my view, they should be rejected.

(1) Dangerous Operation of a Motor Vehicle Causing Death

[12] At the relevant time, ss. 249(1) and (4) of the Code provided:

249 (1) Every one commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

[13] It was conceded at trial that the appellant’s operation of the vehicle caused Ms. Abogado’s death. The only issue was whether the appellant’s driving met the elements of the offence of dangerous operation of a motor vehicle. The Supreme Court of Canada described these elements in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 and R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60.

[14] The actus reus is established when the accused’s conduct, viewed objectively, meets the standard in s. 249(1)(a) of the Code of “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”: Beatty, at paras. 43, 45; Roy at para. 28.

[15] The offence also requires that the accused’s objectively dangerous driving be accompanied by the required mens rea. That will be present where 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. “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”: Roy at para. 28 (emphasis in original). The risks created by the manner of driving, and their foreseeability, are an important part of the analysis. “(T)he trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused”: Beatty, at para. 43.

(2) The Circumstances of the Offence

[16] The appellant was 46 years old at the time of trial. He was an experienced police officer who joined the York Regional Police in 2003. He had received surveillance training and had participated in a significant number of surveillance operations.

[17] On the evening of the collision, the appellant was part of a team of officers who were engaged in undercover mobile surveillance of a van suspected of involvement in unarmed, non-violent break-ins at several retail outlets. The team’s purpose was to gather information. The circumstances were not considered urgent nor to involve risks to public or police safety. No arrests were immediately contemplated.

[18] During the surveillance, the appellant and one other officer fell behind the other team members. The appellant testified that it was important for team members to stay close as they depended on radio contact with each other.

[19] The appellant’s vehicle was travelling eastbound in the passing lane on St. Clair Avenue East, in the vicinity of Victoria Park Avenue. St. Clair is a four-lane road with two lanes for each direction. The evening was clear, the area moderately well lit, and the road dry with some wet spots.

[20] To catch up with the other team members, the appellant decided to accelerate. He was travelling at 80 to 90 km/h when he reached the intersection of St. Clair and Victoria Park, and then progressively faster as he continued in an easterly direction on St. Clair, through a section (west of Herron Avenue) that had a posted speed limit of 50 km/h and then, on a green light, through the intersection of St. Clair and Herron to an area with a posted speed limit of 60 km/h. The appellant was familiar with the area; he knew it had residential houses on the south side of St. Clair and a healthcare facility on the north side. He did not activate his emergency lights or siren, given that he was involved in undercover surveillance.

[21] The Crown’s accident reconstruction expert testified that at the time the collision occurred on St. Clair just east of the intersection with Herron, the appellant had reached a speed of about 115 km/h and was still accelerating.

[22] Ms. Abogado got off a TTC bus at the bus shelter just east of Herron on the north side of St. Clair. This was about 40 metres from her house. She proceeded to jaywalk across St. Clair toward its south side. She was wearing dark, non-reflective clothing.

[23] The appellant’s vehicle struck Ms. Abogado just as she crossed the centre line of St. Clair into the eastbound passing lane. Her body was thrown nearly 80 metres. She died almost instantly.

[24] The appellant testified that as he approached the intersection of St. Clair and Herron, he saw nothing in front of him and so he proceeded. The appellant did not see Ms. Abogado until just before the collision. He did not apply the brakes and only started to swerve less than one-half second before the collision took place. He admitted that, at the speed he was travelling, even if he had seen a pedestrian in the roadway, he could not have done anything to avoid a collision.

[25] The appellant agreed that it was foreseeable that someone would be jaywalking on St. Clair that evening, as jaywalkers are generally foreseeable. He stated that he was focussed on the “roadway ahead of me” and did not account for hazards such as “pedestrians and jaywalkers”, or traffic pulling out or making sudden lane changes.

[26] The Crown’s accident reconstruction expert testified that at the speed the appellant was driving and given when an “unalerted” driver would have seen a pedestrian in the circumstances, the collision was unavoidable as there was insufficient distance to stop the vehicle. He testified that the collision would have been avoidable if the appellant had been travelling at 80 km/h or less.

(3) The Competing Positions at Trial

[27] The parties did not contest, at trial or in this court, that the Highway Traffic Act exempts police officers from the requirement to comply with posted speed limits in the performance of their duties, but does not exempt them from criminal offences such as dangerous driving; that police officers must always act reasonably and prudently; and that police are subject to a higher standard of care when exercising their privilege to drive faster than the speed limit.

[28] The Crown’s theory was that the appellant’s driving was objectively dangerous to the public, that the appellant should have foreseen the risks created by his driving and taken steps to avoid them, and that his failure to do so was a marked departure from what a reasonably prudent police officer in his circumstances would have done. The Crown relied on the “common sense reality” that a jaywalking pedestrian at St. Clair and Herron was foreseeable, given that it was, to the knowledge of the appellant, a residential area with a health centre and townhouses; that the posted speed limit which other motorists and pedestrians would expect vehicles to be travelling at was 60 km/h (the appellant believed it was 50 km/h); that the speed that the appellant was travelling gave him insufficient time to do anything about a hazard in the roadway even if observed from a distance of 85 metres; that the appellant was involved in low risk and non-urgent surveillance; and, that there were options available to the appellant instead of accelerating to that speed in that area to catch up to the rest of the team.

[29] The theory of the defence was that the appellant’s driving did not meet the elements of the offence. Police officers are permitted by law to exceed the speed limit in the lawful performance of their duties and are not required to activate emergency lights or sirens. The appellant, who was part of an undercover police surveillance team, drove at the speed he did without activating emergency equipment because he had fallen behind the rest of the team, the traffic signal at St. Clair and Herron was green, and the road appeared clear of vehicles and pedestrian traffic. The appellant’s position was that Ms. Abogado made a “fateful decision” to cross the street, and her death was the direct result of this unexpected event. The defence relied on the inability of the Crown’s expert to answer the question: “What is a safe speed to avoid an unexpected event”?

III. The Conviction Appeal

[30] The appellant submits that the trial judge erred in two respects when instructing the jury.

[31] First, he argues that the trial judge erred by inviting the jury to consider the consequences of the appellant’s driving — whether this particular collision was avoidable, and specifically, whether the appellant should have foreseen Ms. Abogado and avoided her — rather than addressing whether the manner of driving was objectively dangerous to the public and a marked departure from the standard of care.

[32] Second, the appellant submits that the trial judge failed to give the jury the necessary guidance on what was required to determine whether the appellant’s driving was a marked departure from the standard of care.

(1) Did the trial judge improperly focus the jury on the wrong questions?

[33] As the Supreme Court explained in Beatty, the issue in a dangerous driving case is the manner of driving, not the consequences. The consequences may elevate the offence to one covered by s. 249(4), and may otherwise be relevant to assist in assessing the risk involved. However, “(t)he court must not leap to its conclusion about the manner of driving based on the consequence”. The consequences do “not answer the question whether or not the vehicle was operated in a manner dangerous to the public”: Beatty, at para. 46; see also R. v. Anderson, [1990] 1 S.C.R. 265 at p. 273.

[34] These principles were applied in this court’s decision in Romano 2017, reversing the appellant’s acquittal at his second trial. Paciocco J.A., writing for the court, explained that for both the actus reus and mens rea of dangerous driving, the focus should be on the manner of driving, not the consequences or the cause of those consequences: at paras. 68-69. A consequence can verify the nature of the risks that existed but should not be used in determining whether the manner of driving was dangerous or in marked departure from the norm. “In assessing the dangerousness of the driving the relevant risk is not the risk that the specific accident event would materialize…what is of interest is danger to the public generally”: at para. 72.

[35] The charge at the second trial failed to observe these requirements. Although it at times referred to the general manner of driving and the general risks created, it “gave undue focus to the collision, and to questions of responsibility for the collision, when it should have focused on [the appellant’s] driving, and whether that driving constituted a marked departure from the standard of care expected of a police officer in [the appellant’s] circumstances”: at para. 74. The charge had “focused the jury on the risk posed by Ms. Abogado’s jaywalking, and not the general risks to the public that may have been posed by [the appellant’s] manner of driving”: at para. 76. It put an improper focus “on the foreseeability and avoidability of the collision with Ms. Abogado”: at para. 80, and contained a “misdirected and misleading focus on the consequence or collision, and on the blameworthiness of Ms. Abogado...”: at para. 83. [3]

[36] The charge at the second trial thus invited 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 [the appellant’s] driving…[giving] emphasis to the conduct of Ms. Abogado. The issue for the jury…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: at para. 78.

[37] The appellant argues that the charge given by the trial judge involved a similar error to that identified by Paciocco J.A. — that it focussed the jury on whether the specific collision with Ms. Abogado was foreseeable and avoidable, and not on the question of whether the appellant’s driving presented foreseeable and avoidable risks to the public, including risks that would arise if persons entered or were on the roadway.

[38] I would not give effect to this argument.

[39] First, the error in the charge at the second trial consisted of placing a focus on the circumstances of the collision with an emphasis on the conduct and blameworthiness of Ms. Abogado. That is not the error complained of here.

[40] Second, the trial judge’s proposed charge was discussed at a pre-charge conference and specific submissions were made with a view to avoiding the problems identified in Romano 2017. Trial counsel did not take the position that the proposed charge, as adjusted at the pre-charge conference, would place undue emphasis on the cause of the specific collision. Nor was the charge objected to after it was delivered.

[41] Third, the charge, read as a whole, unlike the charge under consideration in Romano 2017, did not focus the jury on the wrong questions.

[42] The appellant points to various parts of the charge where the trial judge summarized and commented on the evidence of the Crown accident reconstruction expert, and told the jury that based on that evidence, they might conclude that the appellant would not have been able to avoid hitting Ms. Abogado no matter how she “got from the curb to the spot where she was hit”. He also points to the fact that the trial judge invited the jury to consider various details about the specific collision including the fact that Ms. Abogado was jaywalking; that she was wearing dark clothing that would have made it difficult to see her at night; the evidence of various witnesses as to when and what they saw of the collision; and the evidence of the Crown reconstruction expert as to whether there was enough time, at the speed the appellant was travelling, to avoid hitting Ms. Abogado.

[43] These passages must, however, be considered in light of the charge in its entirety. The trial judge cautioned the jury to focus on the appellant’s manner of driving, and “not on the tragic consequences that occurred, that is, the death of Ms. Abogado”. He instructed them that it would be wrong to conclude, because a death occurred, “that the manner of driving must therefore have been dangerous”. He instructed them to consider “all of the risks created by the manner in which [the appellant] was driving”, one of which was the risk of striking a jaywalker. He told them that “[t]he collision with Ms. Abogado is only one of the risks that may have been created by [the appellant’s] manner of driving”, that the fact that she was jaywalking “is only relevant to the foreseeability of the risk”, and that the question that they must ask themselves was “in light of all the circumstances, would a reasonable, prudent police officer have foreseen the risks created by the manner of driving and taken steps to avoid them?”

[44] Moreover, the trial judge specifically cautioned the jury that the question was not whether the collision with Ms. Abogado was foreseeable and avoidable:

Now, while I discuss the circumstances of the collision with Ms. Abogado I do not mean to suggest that the dangerousness of the driving is to be determined by examining the circumstances of the collision, rather than the manner of [the appellant’s] driving. The issue for you is not whether the collision with Ms. Abogado was foreseeable and avoidable. Rather the question is whether the manner of [the appellant’s] driving presented foreseeable and avoidable risks to the public, including risks that would arise if a jaywalker entered or was on the roadway.

[45] As these clear and unequivocal statements and cautions demonstrate, the charge did not improperly focus the jury on the question — “Was the specific collision foreseeable and avoidable?” — or invite it to overemphasize the significance of the consequences of the driving. The jury was instructed that the consequences did not answer the question of whether the driving was dangerous. The jury was effectively told not to “leap to its conclusion about the manner of driving based on the consequence”: Beatty, at para. 46.

[46] Fourth, the law does not proscribe all reference to the consequences of the driving in considering a dangerous driving charge. It permits consideration of the consequences to “assist in assessing”, or to “verify”, the risk involved: Beatty, at para. 46; Romano 2017, at para. 71. It recognizes that in some circumstances, “the actions of the accused and the consequences flowing from them may be so interwoven that the consequences may be relevant in characterizing the conduct of the accused”: Anderson, at p. 273.

[47] Both sides used the circumstances of the collision to assist in assessing or verifying the risks. The defence position relied on the circumstances of the collision; that the appellant was driving safely and that Ms. Abogado’s sudden appearance in the path of the appellant’s vehicle, as a result of jaywalking, was an unexpected event of her creation, rather than something indicative of a type of risk the appellant should have foreseen and avoided. The Crown’s position was that the appellant’s manner of driving created the foreseeable risk of being unable to avoid striking a hazard on the roadway; Ms. Abogado’s presence on the road and the collision turned out to be a tragic verification of this. The trial judge’s charge, including the portions dealing with the specific collision and the cautions about the proper questions to consider, allowed the jury to appropriately consider those positions, without falling into the error identified in Romano 2017.

[48] The adequacy of the trial judge’s charge is assessed by considering whether it left the jury with a sufficient understanding of the facts as they related to the relevant issues so 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”: Romano 2017, at para. 84. In my view, it did. I would therefore reject this ground.

(2) Did the trial judge err in his instruction about what constitutes a marked departure from the required standard of care?

[49] The parties agree that the mens rea issue in this case was whether the degree of care exercised by the appellant was a marked departure from the standard of care that a reasonably prudent police officer would observe in the appellant’s circumstances: Beatty, at para. 43.

[50] On that question, the trial judge instructed the jury as follows:

And secondly, if so, was [the appellant’s] failure to foresee the risks and take steps to avoid them, if possible, a marked departure from the standard of care expected of a reasonable, prudent police officer in [the appellant’s] circumstances?

Now, the dangerous operation of a motor vehicle involves more than just carelessness in [the appellant’s] driving. Carelessness, by itself, does not constitute dangerous driving. The offence of dangerous driving requires a higher degree of negligence than careless driving. Crown Counsel must satisfy you, beyond a reasonable doubt that [the appellant’s] manner of driving was a marked departure from what a reasonable, prudent police officer would do in the same circumstances. Your good common sense will tell you the difference between simple carelessness and a marked departure.

That said, Crown counsel does not have to prove that [the appellant] meant to cause death to, or endanger the life of, Ms. Abogado, or anyone else who was, or who might have been, there at the time. What you have to decide, in these circumstances, is not what [the appellant] meant to do, but whether [the appellant] drove in a manner that was a marked departure from the manner in which a reasonably prudent police officer would operate in the same circumstances. It is the manner of [the appellant’s] driving that you must focus on.

[51] The appellant submits that this instruction was inadequate because it did not properly explain how high the “marked departure” standard is. The jury should have been told that the standard is beyond negligence, beyond momentary inattention, and beyond errors of judgment. Moreover, the trial judge should have explained the concept by relating it to real-world examples.

[52] The appellant further argues that the instrument the trial judge invited the jury to use — its common sense — would not assist in evaluating what a trained police officer would do in the circumstances. The suggestion invited use of personal and idiosyncratic standards about speeding, but unlike the public, the appellant had some latitude to speed while on surveillance. Finally, the appellant says the jury should have been explicitly instructed to consider how and in what way the appellant’s driving was a marked departure from the standard of care.

[53] I do not accept these arguments.

[54] In my view, the charge appropriately equipped the jury to appreciate the central mens rea issue, namely, that the departure from the expected standard had to be beyond that required for civil liability and “serious enough to merit punishment”: Roy, at para. 28. The charge accomplished this, as the jury was told that the departure had to be “marked”, that more than carelessness was required, and that a higher degree of negligence was required than for careless driving. The jury would have thus appreciated that more than mere negligence, a momentary lapse of attention, or understandable misjudgment was required: R. v. Chung, 2019 BCCA 206, 155 W.C.B. (2d) 337 (“Chung (BCCA)”), at para. 30, aff’d 2020 SCC 8, 386 C.C.C. (3d) 523 (“Chung (SCC)”).

[55] It is unclear what real-world examples would have assisted the jury to better appreciate this standard. Nor was any further explanation about the difference between momentary inattention and a marked departure necessary.

[56] As the Supreme Court held in Chung (SCC) at para. 22:

Although this Court in Roy and Beatty determined that momentary lapses in attention and judgment would usually not raise criminal liability, this was because momentary lapses often result from the "automatic and reflexive nature of driving" (Beatty, at para. 34) or "[s]imple carelessness, to which even the most prudent drivers may occasionally succumb" (Roy, at para. 37). These are examples of conduct that, when assessed in totality against the reasonable person standard, only represent a mere departure from the norm. Momentary conduct is not assessed differently from other dangerous conduct. Conduct that occurs over a brief period of time that creates foreseeable and immediate risks of serious consequences can still be a marked departure from the norm (Beatty, at para. 48). A reasonable person would have foreseen that rapidly accelerating towards a major intersection at a high speed creates a very real risk of a collision occurring within seconds. This is what actually occurred in Mr. Chung's case. Risky conduct at excessive speeds foreseeably can result in immediate consequences. Therefore, the fact that foreseeable consequences occur within a short period of time after someone engages in highly dangerous behaviour cannot preclude a finding of mens rea for dangerous driving.

[57] The jury was instructed to consider whether the appellant’s failure to foresee the risks arising from his manner of driving, and to take steps to avoid them, if possible, was a marked departure from the standard of care expected of a reasonable prudent police officer in the circumstances. The jury was told the departure had to be more than carelessness and was thus able to consider whether the appellant’s “excessive speeding” established mens rea because, “having regard to all the circumstances, it supports an inference that the driving was the result of a marked departure from the standard of care a reasonable person in the same circumstances would have exhibited”: Chung (SCC), at para. 19.

[58] I agree with the Crown’s submission that this is not a case like R. v. Stephan, 2017 ABCA 380, 357 C.C.C. (3d) 10, rev’d 2018 SCC 21, [2018] 1 S.C.R. 633, (dealing with the offence of failing to provide the necessaries of life). In Stephan, the charge was inadequate because it did not tell the jury that it needed to consider whether the accused’s conduct fell sufficiently below the standard expected of a reasonable parent, nor did it caution the jury that notwithstanding the significant medical evidence it had heard, the standard was not to be equated to what a doctor would do in the circumstances: at paras. 246-54. Unlike in Stephan, the jury here was equipped to understand the standards of reasonable driving, and how far the appellant’s conduct departed from them.

[59] Nor is this a case like R. v. Laverdure, 2018 ONCA 614, 365 C.C.C. (3d), also relied on by the appellant. The issue in that case was the failure of a trial judge, in a judge alone trial, to fully analyze the evidence related to mens rea. The trial judge erred by focussing solely on the actus reus and concluding that the act of dangerous driving necessarily constituted a marked departure. As such, he did not identify “how and in what way” the driver went beyond mere carelessness. In this case, the instructions to the jury clearly required them to analyze both the actus reus and the mens rea elements of the offence.

[60] Finally, the issue of how the jury should be charged on this topic was the subject of dialogue at the pre-charge conference. The trial judge was asked by trial counsel to include the sentence: “The offence of dangerous driving requires a higher degree of negligence than careless driving”. The trial judge did so. The charge was not otherwise objected to before or after its delivery.

[61] While the trial judge has the responsibility of adequately charging the jury, counsel are expected to assist in fulfilling that responsibility. Here, the trial judge accommodated trial counsel’s suggestions about the charge. Trial counsel did not otherwise object to it. While not determinative, this supports the conclusion that the charge on “marked departure” was adequate: R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3 at para. 60.

[62] I would therefore reject this ground of appeal.

IV. The Sentence Appeal

[63] The appellant asks that we set aside or shorten the term of incarceration, or alternatively, impose a conditional sentence.

[64] The appellant argues that the sentencing judge erred by failing to apply the principle of restraint. Under that principle, a sentencing judge is required to consider all sanctions apart from incarceration and impose imprisonment only when there is no other reasonable punishment: Code, s. 718.2(d) and (e). It follows that where imprisonment is required, the term should be as short as is reasonable given the circumstances. The appellant argues that a proper application of the restraint principle leads to no, or a shorter, custodial term.

[65] At the time of sentencing, a conditional sentence – a sentence of incarceration served in the community subject to conditions – was not available for the offence of dangerous driving causing death, since the offence is punishable by a maximum term of imprisonment of 14 years: Code, s. 742.1(c). In R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, 39346 (January 14, 2021), a majority of this court found s. 742.1(c) to be unconstitutional. The appellant alternatively submits that this court should substitute a conditional sentence, as this was not an egregious case of police misconduct and involved no exploitation of power.

[66] I would not give effect to these arguments.

[67] In my view, the sentencing judge did not overlook the principle of restraint. It was expressly referred to in submissions made to him, and he stated that he had considered the principles set out in s. 718 of the Code.

[68] The sentencing judge noted the appellant’s commendable personal, familial, and professional history, the lack of a need for specific deterrence, and the appellant’s remorse for the accident. But he also found that Ms. Abogado’s tragic death was an important factor in determining an appropriate sentence, and noted that it had had a devastating impact on her family. Although he did not agree with the Crown that general deterrence should be an “overriding” or “dominant” consideration, he did find a need, albeit “diminished”, for the sentence to reflect that principle. Although the defence request was for a non-custodial sentence, the sentencing judge found a term of eight months incarceration to be “required”. His reasons can only be taken to mean that he found this sanction to be necessary after considering all principles of sentencing.

[69] Appellate variation of a sentence is only justified if the sentence is demonstrably unfit, or if the sentencing judge made an error of law or principle that had an impact on the sentence imposed: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 40-41, 43-44. The sentencing judge in this case considered the relevant principles and exercised his discretion to arrive at a sentence that was not demonstrably unfit.

[70] In light of Sharma, it is open to this court to consider the appropriateness of a conditional sentence for this offence. However, the fact that a conditional sentence is now available does not mean that one will necessarily be imposed: R. v. Gray, 2021 ONCA 86 at paras. 44-45. The issue is whether, post-Sharma, the sentencing judge’s decision remains sound, given the “newfound availability of a conditional sentence”, after considering the sentencing judge’s reasons, the applicable principles, and any fresh evidence: Gray, at para. 52.

[71] The sentencing judge referred, in his reasons, to the non-availability of a conditional sentence. But he did not say that he would have imposed one if it were open to him to do so. He did not accept the defence submission that a non-custodial sentence was appropriate. His view, from his reasons read as a whole, was that an actual custodial sentence was “required” because of the nature and circumstances of this particular offence and the harm done. His sentencing decision thus remains sound. His findings do not support the view that a conditional sentence would be “consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”: Code, s. 742.1(a).

[72] As I have described, the sentencing judge did not err in failing to consider the principle of restraint. He did not impose a sentence that was demonstrably unfit. It would not be appropriate, on the findings that he did make and the relevant principles, to set aside or reduce the custodial sentence, or substitute a conditional sentence.

V. Conclusion

[73] I would dismiss the conviction appeal. Although I would grant leave to appeal sentence, I would also dismiss the sentence appeal.

Footnotes:

[1] She was “jaywalking”.

[2] In these reasons I refer interchangeably to dangerous operation of a motor vehicle and dangerous driving.

[3] For example, the judge at the second trial told the jury:

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.

Released: April 8, 2021 “G.R.S.” “B. Zarnett J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. David Watt J.A.”