Court File and Parties

Ontario Court of Justice

Date: 2015-02-12

Court File No.: London 14 250

Between:

Her Majesty the Queen

— and —

Leah Constance Laari

Before: Justice Brophy

Heard on: 19 and 20 January 2015

Reasons for Judgment released on: 12 February 2015

Counsel:

• Molly Flanagan, for the Crown
• Glen Donald, for the defendant Leah Constance Laari

BROPHY J.:

INTRODUCTION

[1] In this case Leah Constance Laari is charged with dangerous driving contrary to section 249(1)(a) of the Criminal Code. Ms. Laari is a London Police Service constable. It is alleged that while on duty and when responding to a call for service she drove a London police cruiser into an intersection against a red light in a manner dangerous to the public and caused a motor vehicle accident.

[2] The Crown elected to proceed summarily and the trial took place on 19 and 20 January 2015. There were no Charter Applications.

ISSUE

[3] The issue in this case is whether the Crown has proven beyond a reasonable doubt that the operation of the cruiser was a marked departure from the standard of care required of a driver in the particular presenting circumstances.

FACTS

[4] The facts in this case are as follows.

[5] On 6 October 2013 the accused was on patrol in north London. She heard a radio call from her communications centre for a Code 1 response to a report of an armed robbery with a firearm involved. The call destination was towards the south central London, but nevertheless the accused decided that she should respond. No one criticizes her for that decision. She put her lights and sirens on and headed in a generally southerly direction. In doing so she found herself heading south on Adelaide street approaching its intersection with Oxford street, an east west thoroughfare. Both streets are major inner city roads. The intersection is controlled by stoplights in both directions.

[6] As the accused approached the intersection she slowed down and almost came to a stop. The video evidence shows that she acknowledged the intersection and performed what is commonly referred to as a rolling stop, not coming to a complete halt. She then entered the intersection against the red light.

[7] A Toyota Celica proceeding west to east on the green light went through the intersection and the cruiser struck that motor vehicle on the left-hand driver's side between the door and the front left tire. The Toyota was pushed diagonally in a south east direction and struck two pedestrians who were propelled up onto the front hood of the vehicle and were carried towards a building on the south east corner of the intersection.

Admissions

[8] Counsel provided formal admissions pursuant to section 655 of the Criminal Code. Included in those admissions were the following points:

• Constable Laari is a police officer and a member of the London Police Service. On Sunday, October 6, 2013 she was working as a uniformed patrol officer on the morning shift starting at 7:45 AM. She was assigned to police cruiser number 19, a fully marked police vehicle, and at the relevant time she was the only person in the cruiser.

• At 10:53 AM on that same date there was a dispatch on the police radio that called for officers to attend the California Convenience for a "Code 1" call to an armed robbery with a handgun. The dispatch included the following description: "possibly a black male, black hoodie, 6 foot three, muscular build. Gun in the right hand and its silver".

• Code 1 is the highest priority response call and officers responding to a Code 1 call are to activate both lights and sirens and travel directly to the call. By way of contrast officers responding to a Code 2 call are to drive the speed limit and go directly to the call with lights and sirens off.

• In London police vehicles the lights and sirens are manually turned on and off within the vehicle.

• In response to the above dispatch, the accused activated both her emergency lights and sirens, notified dispatch that she was responding, and proceeded towards the location of the robbery call.

• The speed limits on both Adelaide Street and Oxford Street are 50 km/h in this area.

• Many officers had notified dispatch they were responding to the Code 1 call. The responding officers were doing so from a variety of geographical locations across the city.

• At 10:55 AM a police officer announced over the radio that the robbery call was possibly a false alarm. Approximately 45 seconds after the initial possible false alarm radio transmission, it was announced on the police radio from dispatch that all cars not already at the location of the robbery can "cancel and go to clear".

• Constable Laari had a red light in her direction as she approached the intersection of Oxford and Adelaide.

• From a London Transit Commission video it is apparent that Constable Laari deactivated her emergency lights approximately 0.4 seconds prior to the collision.

• It is also clear that the cruiser did not come to a complete stop before entering the intersection against a red traffic light.

• It is also apparent the Constable Laari deactivated her siren approximately six seconds before she entered the intersection and seven seconds before the collision.

• Mr. Dustin Cornell and Ms. Bronwyn Featherstone were the two pedestrians walking east in the crosswalk. They were struck by the Toyota before coming to a rest against the side of the building at the southeast corner. This is shown in the LTC video. Both pedestrians were taken to the hospital. Mr. Cornell was released with minor injuries and Ms. Featherstone was diagnosed with a fracture to her right hand, two fractured ribs on her right side, a pulled muscle on her left side, a sprained right ankle and bruising to her legs, knees and buttocks.

• Data was retrieved from the cruiser and is illustrated in a crash data retrieval report. It is agreed that the report accurately represents the data recorded within London police cruiser number 19 on Sunday, October 6, 2013, 20 seconds before impact and five seconds after impact with the Toyota Celica.

• Statements were given to the SIU as follows:

  • Blair Arthur was at the scene and said to the SIU that his attention was directed towards the oncoming police cruisers because of their emergency sirens. He witnessed other traffic stopping their vehicles in response to the police vehicles lights and sirens. He saw Constable Laari's vehicle slow down at the red light at Oxford Street and come to a rolling stop prior to entering the intersection. Mr. Arthur thought he heard "pretty loud music" coming from the black car. He did not think the windows were rolled down in that car.

  • Murray Woods was the driver of a blue minivan stopped in a lane to the left of the city bus. He thought that Constable Laari's cruiser came to a "stop or pretty close to a stop" at the intersection. His description was: "I'd more call it a stop than a rolling stop". Mr. Woods saw Constable Laari's emergency lights activated, but could not be 100% sure if her sirens were activated as she approached the intersection. He believes that he heard a "bleep" noise or a "weird siren" noise coming from Constable Laari's vehicle prior to her entering the intersection.

  • Katherine Logan said to the SIU that she was eastbound on Oxford and was attempting to turn south onto Adelaide by making a right-hand turn. As she looked to the left she saw Constable Laari's vehicle travelling with her emergency lights on but with her sirens off. She saw Constable Laari's vehicle slow down but not come to a stop prior to entering the intersection.

  • Scott Scheid, who was in front of Katherine Logan, was making a similar turn right from Oxford onto Adelaide and he also saw the police cruiser with its emergency lights on. He pulled over and stopped his vehicle. He saw Constable Laari's vehicle come to a rolling stop prior to entering the intersection. He did not hear a siren from Constable Laari's cruiser.

  • Dennis McIlvenna is a retired Ontario Provincial Police officer with 30 years of policing experience. He said to the SIU that he was travelling northbound on Adelaide Street approaching Oxford Street on the south side of the intersection positioned in the second lane from the east curb beside the city bus. Mr. McIlvenna stopped his vehicle to the rear of the city bus. He believed the Constable Laari's vehicle came to a full stop at the intersection. He thought she stopped for approximately six seconds, allowing the pedestrians to cross, prior to entering the intersection with her lights and sirens activated.

  • Jim Peters was the driver of the LTC bus that was travelling northbound on Adelaide Street in the curb lane with a direct view of Constable Laari's oncoming police vehicle. He said to the SIU the following: he stopped his vehicle in response to Constable Laari's lights and sirens; he noticed that all of vehicles in and around the intersection were stopping their vehicles in response to the lights and sirens, except for the Toyota Celica. He said Constable Laari's vehicle slowed down but did not come to a stop prior to entering the intersection.

  • Andrew Rogers was driving a black Volkswagen Beatle southbound on Adelaide Street. His vehicle in the LTC video can be observed pulling over in response to the approach of Constable Laari's police vehicle. He said to the SIU that he saw one vehicle stopped ahead of his vehicle at the intersection. Mr. Rogers thought the Constable Laari came to a full stop before proceeding through the intersection. Mr. Rogers thought the Constable Laari did not activate her lights and sirens until she stopped at the intersection and believe that she proceeded through the intersection with both her emergency lights and sirens activated.

[9] It should be noted that these statements were received in evidence as part of the admissions for the purpose of indicating what these witnesses would say in chief if they were called as witnesses. It is obvious that there is some variation in their observations, but the weight of their observations strongly says that Officer Laari slowed down considerably and was approaching the intersection with caution.

Bus Video

[10] Remarkably in this case there was a video of the motor vehicle accident, as mentioned in the admissions. A London Transit Commission city bus was stopped in the north bound lane of Adelaide St. just south of the intersection dropping off and picking up passengers. The bus was facing north. It was equipped with a video camera on the front of the bus and that camera fully captured the collision. The video shows that the pedestrians were violently hit by the impacted vehicle and it is quite frankly miraculous that they did not receive more significant injuries. The video also shows that the subject cruiser slowed as it approached the intersection and appeared to enter the intersection cautiously. It also shows that the cruiser's sirens and lights were on at some point before it entered the intersection. It is noteworthy that a number of other vehicles in and around the intersection recognized the presence of the cruiser and stopped and allowed the cruiser to enter the intersection unimpeded. However it should also be noted that some other vehicles were not as conscious of the presence of the cruiser, as for example there was at least one other vehicle travelling west to east that went through the intersection prior to the vehicle that was struck. Nonetheless most of the vehicles seem to acknowledge the involvement of the cruiser.

[11] As for the pedestrians it is difficult to see from the video as to whether they were taking any particular actions to clear the intersection, although it does show that they seemed to marginally hurry their stride. Ms. Featherstone said that they sped up to get out of the intersection, but obviously to no avail.

[12] It should also be noted that further to the north there was a second cruiser headed south towards the intersection and it also had its emergency lights on and after the accident stopped in the southbound lane leaving its emergency lights flashing so as to signal of that there was police activity at the intersection. This is of some consequence because it confirms the nature of the response that was being engaged in by the police.

[13] After the accident the accused and the second officer quickly attended the scene. The bus video records the accident as having taken place at 10:57 AM. A third cruiser arrives at approximately 10:59 AM and the first ambulance is on scene at 11:01 AM and the fire department is on scene at 11:02 AM.

[14] It is interesting that the bus driver is overheard to say: "Thankfully I stayed back from the intersection when I saw the lights".

Mitch Furlonger – Driver of the Toyota

[15] The Toyota Celica was operated by Mitch Furlonger. His evidence is that he was travelling eastbound and going through the intersection at approximately 55 km per hour. He says the weather was fine and it was not raining, and the roads looked wet but not slick. His windows were down and he and his girlfriend Lindsay Kendelen were listening to music, but it was not especially loud. They were on their way to church. He did not hear a siren at the intersection. He had heard sirens earlier but not at this location.

[16] In cross-examination it was pointed out that Mr. Furlonger was driving for the first time after having been subject to a driving prohibition order for an impaired driving charge, and that the car he was driving had been borrowed from his sister There was some effort to suggest in cross that he was not paying attention and did not hear the police sirens or make observations of the police cruiser and its flashing lights in and around the intersection. However there is nothing in the evidence to suggest that he was operating his motor vehicle improperly or was not obeying the rules of the road.

[17] Mr. Furlonger had some sore muscles after the accident but nothing else of substance in terms of injuries.

Lindsay Kendelen – Passenger in the Toyota

[18] Ms. Kendelen, who was seated in the front passenger seat, gives essentially the same evidence as Mr. Furlonger. Ms. Kendelen indicates that she was treated by a chiropractor for a sore left knee caused by the motor vehicle accident. She has difficulty sleeping as a result of the pain in her knee, but massage therapy is working on it now. She continues to have some difficulty with pain when talking or standing on that leg for any length of time. In addition she has suffered from some anxiety related to stress and depression generally and has experienced migraines. It is uncertain whether these relate to the accident.

Bronwyn Featherstone – Pedestrian

[19] Ms. Bronwyn Featherstone testified. She was the female pedestrian who was struck by the Toyota. She indicates that she heard a siren just as she was entering the intersection. When she noticed a police motor vehicle approaching she thought she should get out of the intersection and started to hurry. At that point she did not hear a siren but saw some flashing lights. She says she was struck and carried on a motor vehicle and then lost consciousness for a second and then woke up and went into shock. She was ultimately taken to the hospital having suffered significant injuries. Miraculously her male companion, Dustin Cornell, who was also swept up by Toyota motor vehicle escaped relatively unscathed.

Sgt. Ross Sutherland – London Police Service

[20] Sgt. Ross Sutherland testified for the prosecution. He is a police officer with the London Police Service and has been a sergeant for approximately four years. He is familiar with the operation of London Police Service cruisers and he says the lights and sirens are manually turned on and off by pushing a button on the dash to the right of the driver. When the devices are activated there is a red light that indicates they are on.

[21] Sgt. Sutherland also testified with reference to the procedures of the London Police Service with reference to the way in which officers are to respond to Code 1 calls and specifically how they are to operate their cruisers. He provided a copy of the appropriate extracts of the written procedures governing same. That document was received on consent and it sets out the policies that were in effect on the date in question.

[22] The Code 1 emergency call for service is used when the incident is reported to be a serious crime in progress or another situation of a life-threatening nature. Officer Sutherland indicated that this was the most urgent form of call.

[23] Part 4, Chapter B Police Operating Procedures, section 1 states, with respect to Code dispatches:

A responding member shall proceed as safely as possible, using emergency lighting equipment and siren. Members may exceed the speed limit keeping in mind the capabilities of their automobile, road design, traffic conditions, weather conditions, pedestrian traffic, and visibility. When approaching a red light or stop sign, the member shall bring the police vehicle to a full stop. After ascertaining that it is safe to do so, the member may proceed with caution through the red light or stop sign.

[24] Section 2 dealing with Response to Emergency Calls sets out the following under subsection C:

Sections 128(13)(b) and 144(20) of the HTA, entitles peace officers, if required to do so to carry out their duties, to:

1 Operate a motor vehicle in excess of the posted speed limit; and

2 Proceed past a red traffic light, after first bringing the police vehicle to a complete STOP and then proceeding only after it is determined safe to do so.

Emergency lighting and siren must be in operation as you proceed through an intersection against a red light.

On these occasions safety must always be stressed. It is imperative the police arrive at the scene of the emergency and not be involved in an accident.

Driving a police vehicle in an emergency mode is desirable and necessary only when responding to "in progress" complaints where the member has reason to believe that there is a direct threat to someone's life, or when circumstances indicate there is a good chance of making a criminal arrest for a serious offence.

Other serious calls should also receive "immediate" response, but this response can be made as quickly as possible while still obeying traffic laws. In providing "immediate" response, members should rely on knowledge of their patrol district, including shortest possible routes, traffic device locations, and congested thoroughfare

[25] In cross-examination officer Sutherland advised the court that on occasion there may be exceptions to the rules for safety reasons and other operational concerns. For example, it might be appropriate to turn off sirens when approaching a crime scene so that the there is no notice to a perpetrator of the imminent arrival of the police. He also noted that the London Police Service has the thousands of policies and they are followed as best they can be.

[26] Sgt. Sutherland also noted that a Code 1 call for a robbery with a gun is one of the most serious calls that a police officer can respond to. Officer Sutherland has participated in those kinds of calls and he notes that the physical response with respect to stress is very high. There is an adrenaline rush that happens and it happens immediately. When the call is terminated the adrenaline rush does not end instantly. He noted as well that when an officer is engaged in one of those high stress situations there is on occasion some difficulty in hearing things around him or her. The office conceded that he has no particular training with respect to this phenomenon, but he described it as "auditory exclusion", which means that you don't hear things around you when you are engaged in a highly stressful situation. He speaks from experience in that this very phenomenon has happened to him on a number of occasions.

[27] Sgt. Sutherland notes that when a Code 1 call is placed and a uniformed officer responds, the expectation is that the officer will arrive quickly with lights and sirens on. Inside the cruiser it can be noisy with the siren on and with the lights themselves making a noise as they rotate, and with the radio transmitting. Listening to the radio is the main task of the officer because that is the information "lifeline" in that an officer receives all of his or her information from the radio with reference to the threat and it is through the radio that the officer finds out what other officers are responding and the way in which the situation is developing. In Sgt. Sutherland's opinion this is when the officer filters out other noise that distracts from the radio.

[28] Nonetheless, in redirect Sgt. Sutherland confirmed that the first priority is to drive safely and he agrees that it is not good practice to go through an intersection without the siren on. Although he quickly added that if there is no traffic and the lights are on and the situation calls for it may be necessary.

Ken A. Iliadis – Expert in Crash Data Interpretation

[29] The Crown also called an expert with respect to motor vehicle accident reconstruction. Mr. Ken A. Iliadis was accepted by the defence as an expert in accident reconstruction. His qualifications were not challenged and he was presented by the Crown, with the consent of the defence, as an expert for the purpose of interpretation of the event (crash) data. He was duly qualified.

[30] I listened carefully to his explanation of the crash data report that was filed as Exhibit number three.

[31] What I take from that evidence is consistent with what the video discloses. And that is that at 3 to 4 seconds before the crash Constable Laari's motor vehicle had markedly slowed and then began to accelerate and then there was the crash. This evidence also notes that Constable Laari's speed declined from 90 km/h as she was approaching Oxford to approximately 16 km/h when her ABS brakes were briefly applied. His evidence is that her slowest speed was approximately 13 km/h, however in cross-examination he conceded that he may have overestimated and it might have been as low as 12 km/h as she was at the intersection. He indicated that the accelerator was pressed for about 2.5 seconds before impact. He acknowledged that there would be a lag in the system between the press on the accelerator and the speed increasing. He commented that in comparing the data with the video it would appear that the data is accurate and is in conformity with the video. Because of the perspective of the video it is difficult to estimate speed from the video alone, but the times on the video match the times on the data and therefore the speeds must also match. He also said that for one second before the accident the accelerator was not being pressed. He also notes that the brakes were applied 0.6 seconds before the collision. Finally in cross-examination he notes that the police motor vehicle could be seen by Mr. Furlonger, the driver of the Toyota Celica, when the cruiser entered the intersection.

[32] The Crown introduced a transcript of the police communications relating to the Code 1 dispatch. There is nothing in the transcript that is of consequence other than it confirms that the time line from the initial dispatch to the time of the motor vehicle collision was a relatively short period. There is nothing in the transcript that adds to the facts in any significant way.

[33] Photographs of the Toyota Celica have been filed with the court on consent. They show what one would expect after having looked at the video that is to say that the left-hand side of the Toyota just in front of the driver's door has been significantly damaged by the crash. The photos also show the position of the vehicle when it came to rest diagonally from first against a building on the southeast corner of Oxford and Adelaide. Further the pictures show that the windows of the Toyota were partially down.

Cst. Leah Laari

[34] Cst. Laari testified. She is 27 years old and has been employed by the London Police Service for approximately four years. She attended Police College in 2010.

[35] On the day in question officer Laari started her shift at 7:45 AM and was dispatched to an area in north London. She was operating a cruiser and was alone in that vehicle. When she heard the dispatch related to the Code 1 occurrence she was in a school parking lot on Belfield Road. She had just finished a call with another constable and was in the process of clearing that event. She advised the communications centre that she was responding to the call and knew that she had to move from the north part of the city to the south, that is from zone 8B to zone 5B, the 5B zone being more central. She knew this was a serious matter with the possibility of a firearm being involved. Officer Laari noted that the first priority was to arrive at the scene safely, but fast enough to assist. She indicates that as she was driving she was thinking about the nature of the call, being an armed robbery with a gun, and was absorbing as much information as she could related to same.

[36] Her plan was to go down Adelaide Street in a southerly direction and then to go on some side streets to the location of the call. She left her location on Belfield Road and made her way over to Adelaide St. and was now going south. She had turned on her lights and sirens because of the nature of the call. The traffic was not congested because it was Sunday morning. She does not remember the exact speed she was travelling at when she was southbound on Adelaide. When she first saw the intersection of Adelaide and Oxford the light was green and then she saw that it turn red. She noted that other motor vehicles were responsive to her lights and siren.

[37] She was not able to receive information on the mobile data terminal because she was in movement, but she did hear on the radio at some point that a sergeant directed officers to kill their sirens and she did just that. The button related to same was on the dash to the right of the steering wheel and parallel to it. Her right hand would change the siren controls and she could adjust the sound if necessary with that same hand.

[38] She approached the intersection with the siren off. She thinks at this point the light was now red. There are two other motor vehicles in her original lane and she had to go left to get around them. She then came to the stop line of the intersection. As she approached she put on her brakes to stop. She knew that part of the procedure was to make a complete stop and to enter the intersection with lights and sirens on. Her memory is that she did come to a complete stop and that with her right hand she pushed a button to turn her siren back on and thought she had done so successfully. She says that she would not have gone into the intersection if she had not done that.

[39] She looked at the traffic to the east and the west to see if there was anything oncoming and she believed all motor vehicles in the area were stopped and she was clear to go through.

[40] As she started to go through the intersection she heard the dispatch indicate that all cars were to cancel their response to the Code 1 call. She continued through the intersection because she was part way through already and if she simply stopped she would be more of an obstruction and could cause a motor vehicle accident by doing so. At that point she did not see any motor vehicle driving east or west, but as she got halfway through the intersection she saw a black object to her right and recognized it as a motor vehicle and knew there would be a collision. After contact her motor vehicle did a spin to the left so that she was now facing a northeast. She immediately got out to see if she could help anyone

[41] Ultimately she was made a subject officer in an SIU investigation and she gave a statement to the SIU because she thought she should.

[42] In cross-examination Cst. Laari says that when she heard the direction to kill the siren, she cannot remember absolutely where she was other than she was on Adelaide Street and it was before the intersection. She turned off her siren right away. She knows this is sometime done because the officer directing the investigation does not want a person of interest to know that the police are approaching. She reacted automatically to do what the sergeant told her to do.

[43] She does not remember seeing any pedestrians.

[44] She acknowledges that in her statement to the SIU she said she thought the siren was on the whole time. She certainly believed the siren to be on when she entered the intersection. This is not how she remembered it. Further she has seen the video and now recognizes that she did not come to a complete stop, although she thought she had. She cannot remember hearing the siren but rather she was focused on the intersection and remembers making a motion to press the appropriate button to activate the siren. She also says that after viewing the video she knows that the roof lights on her cruiser went off just before the collision. She has no recollection of turning those lights off.

[45] She says in answer to a cross-examination question what is often remarked upon by witnesses, that there are so many things to think about that she cannot remember "every meticulous detail". The adrenaline was pumping and she was not able to track the specific times of every event. She says she made an effort to stop and look east and west. When she attempted to touch the button to turn the sirens on she was doing that with her peripheral vision and as she did that she then accelerated through the intersection.

[46] Ms. Laari testified that she has responded to somewhere between 20 and 40 Code 1 events and she notes that auditory exclusion, where the body is overloaded by adrenaline and stress, does in fact make it difficult to hear and recognize everything you are hearing.

[47] She acknowledges that she has been trained to respond to situations in a professional manner.

[48] I found Officer Laari to be a good witness. She answered the questions put to her with intelligence and candour.

LAW

[49] With respect to the law related to dangerous driving the following is noted.

[50] The relevant parts of section 249 of the Criminal Code are as follows:

(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;

[51] In R. v. Peda, [1969] S.C.R. 905, the court held that this subsection (1)(a) contains its own definition of dangerous driving. Section 249(1)(a) makes it an offence to operate a motor vehicle in a manner that is dangerous. To determine if the driving is dangerous, the paragraph indicates that one must consider all of the circumstances such as the nature, condition and the use of the place as well as the amount of traffic that is or might reasonably be expected to be present. In addition, it is essential that there be danger to the public who either were present or who might have been expected to be present. The mental element for the offence requires proof of an intention to operate the vehicle in a way which, objectively viewed, constitutes a departure from the standard of care expected of a prudent driver in the circumstances.

[52] In this case it is abundantly clear that there were many members of the public present, most obviously the pedestrians who were struck, and this aspect of the charge is patently satisfied and nothing more needs to be said on that element of the offence.

[53] However, the analysis related to the actus reus and mens rea of the offence has attracted substantial judicial comment. In R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, the Supreme Court of Canada fully considered the requisite actus reus and mens rea of the offence of dangerous driving. This case and R. v Roy, 2012 SCC 26, 281 C.C.C. (3d) 433, establish the basic principles related to analyzing dangerous driving charges.

[54] The Supreme Court of Canada has said that the actus reus requires proof beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that was dangerous to the public, having regard to all of 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. It is the manner in which the vehicle was operated that is at issue, not the consequence of the driving.

[55] Beatty confirmed the modified objective test for mens rea set out in R. v. Hundal, [1993] 1 S.C.R. 867. This test requires a marked departure from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence but will not be sufficient for penal negligence. The distinction between a mere departure and a marked departure is a question of degree.

[56] The mens rea requires the trier of fact to be satisfied on the basis of all of the evidence, including evidence, if any, about the accused's actual state of mind, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances.

[57] If the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence, if any, about the actual state of mind of the accused to determine whether it raises a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by this conduct. The point is that a lack of care must be serious enough to merit punishment.

[58] In a negligence case, such as this case, if an explanation is offered by the accused, then, in order to convict, the 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.

[59] The objective mens rea is based on the premise that a reasonable person in the accused's position would have been aware of the risks arising from the conduct. The objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger.

[60] The test must be applied in the context of the events surrounding the incident. Although personal attributes such as age, experience and education are not directly relevant, the reasonable person must be put in the same circumstances as the accused in order to assess the reasonableness of the conduct.

[61] Counsel have brought to my attention R. v Blackwell, [1994] O.J. No. 564 decision. It is interesting because it was a city of London police officer who was convicted at trial of dangerous driving causing death with the trial judge upheld on appeal to the Court of Appeal. The officer was on duty and was responding in a cruiser to what in 1992 was called a Code 3 dispatch, meaning that a serious and life-threatening event was unfolding. The issue in the case was whether or not a police officer had an elevated standard of care. The Court of Appeal accepted the principle that a police officer who is engaging in activity that was normally prohibited had "an elevated de facto standard of care". This principle emerges from R. v. Creighton, [1993] S.C.J. No. 91. In Blackwell the Court of Appeal said that the trial judge came to the conclusion that a police officer who engages in the activity described in the evidence is held to an elevated standard of care consistent with the conditions of his inherently more dangerous driving conduct. In paragraph 8 of the Court of Appeal reasons in Blackwell the court says the following:

The trial judge did not fall into error in finding that the appellant departed from that standard in a manner that was dangerous to the public. The reference to a police officer trained, acting reasonably, is a reference to a reasonable person who has undertaken a hazardous undertaking. ...

[62] It is also interesting to note that in Blackwell reasons there is a dearth of facts – but the trial Judge did indicate that the offender was going at least 50 per cent faster than anybody else on the road.

[63] Creighton and Blackwell were 1993 and 1994 decisions and the principles set out in Beatty and Roy are foreshadowed in those reasons. That is to say that the standard is to be assessed in light of all of the circumstances in the presenting situation. In other words what is a reasonable person to do in the circumstances in which they find themselves. If that person is a police officer and that officer is responding to an urgent call and contemplates going through an intersection against a red light then there is a duty on that police officer to take care concomitant to the risks involved.

[64] Creighton states the principle in paragraph 139 as follows:

The matter may be looked at in this way. The legal standard of care is always the same – what a reasonable person would have done in all the circumstances. The de facto or applied standard of care, however may vary with the activity in question and the circumstances in the particular case.

[65] The Crown also provides me with the R. v Boucher, [2004] N.B.J. No. 145 (N.B.C.A.). This case involved a fire truck proceeding to a fire that ran a red light. However, the facts are remarkably different than this case. The fire truck was speeding at 40 km/h, the brakes were not applied and no evasive action was taken. Simply put it is distinguishable on its facts and adds nothing to the analysis.

[66] Both Crown and defence refer me to the R. v. Hamilton, [2014] O.J. No. 1716 (S.C.J.). This case contains an extensive review of the law related to a dangerous driving and recent cases. The facts in the case were simply that an off-duty police officer was driving his son in a pickup truck to a recreational activity and he failed to stop at a stop sign and proceeded into an intersection striking a motor vehicle that had the right-of-way. The collision resulted in the death of the other driver. Although there was controversy in the evidence with reference to the explanation offered by the accused, at the end of the day the trial judge found that the accused was distracted and did not see the oncoming vehicle. There was no other evidence of any speed or aggressive driving and he was not trying to get through the intersection of ahead of the oncoming vehicle. The trial Judge found that this was not a marked departure from the standard of care expected of a reasonable person in those circumstances.

[67] The defence is also referred me to the following: R. v. Reynolds, 2013 ONCA 433, R. v. Garnham, [2012] M.J. No. 292 (M.Q.B.), R. v. Robertson, [2013] B.C.J. No. 1486 (B.C.C.A.) and R. v. Davidson, [2012] M.J. No. 280 (M.Q.B.)

[68] The Reynolds decision involved a parking lot accident that had been prompted by a simple mistake but unfortunately a pedestrian became lodged under the accused's vehicle and was dragged for a distance. On appeal the court ordered a new trial because there had not been sufficient consideration given to whether the degree of care exercised by Mr. Reynolds was a marked departure from the standard of care that a reasonable person would exercised in the same circumstances. The case simply stands for the proposition that it is necessary to review both the actus reus and the mens rea in each and every situation.

[69] In Garnham the accused approached an intersection and rolled through the stop sign and collided with the victim's vehicle. Again the Crown did not prove the mens rea in that the negligent decision of the driver was not a marked departure from the standard of care expected of reason the reasonable person. It needed more than simple negligence. It is interesting to note that the Crown established the actus reus of the offence. By virtue of pulling into the traffic on a busy highway without coming to a stop the accused was driving in a manner that was dangerous to the public. Nonetheless the mens rea was not established.

[70] The Robertson decision involved an accused who was stopped at a stop sign and was facing a four lane through street. When he crossed over the street he collided with a motorcycle killing the motorcyclist. The British Columbia Court of Appeal said that the accused's conduct, while inadequate, did not rise to the level of constituting a criminal offence of dangerous driving. The court held that the negligent conduct in a brief time frame in the course of driving, which was otherwise proper in all respects, was more suggestive of the civil rather than the criminal end of the negligence continuum.

[71] Lastly the Davidson case involved an early morning hours accident wherein the accused who was delivering newspapers in his minivan approached an intersection with a flashing red light and he braked but did not come to a complete stop. He then proceeded through the intersection and was struck by a garbage truck that had entered the intersection on a flashing yellow light. Neither driver appeared to see the other. There were no evasive actions and no one sounded the horn. At the time of the accident the garbage truck was speeding and three of its six brakes were found to be defective. The accused was acquitted at trial because his momentary lapse of attention and entering the intersection in the absence of a complete stop constituted driving that was below the standard of care of a reasonably prudent driver, but it did not constitute a marked departure from the standard of care the reasonable person would exercised in the same circumstances.

[72] These last four cases are illustrations of the principles involved in analysing a dangerous driving case but do not break any new ground.

DISCUSSION

[73] After reviewing the law and considering the facts, the question in this case comes down to whether or not the actions of Officer Laari in the circumstances were a marked departure from the standard of care that a reasonable person in that place and in those circumstances would have exercised, bearing in mind at all times that the burden in the Crown is to prove the case beyond a reasonable doubt.

[74] There are two matters to be determined. The first is whether or not the actus reus of the offence has in fact happened. The second is whether the necessary mens rea exists. In doing so there must be a comprehensive review of all of the circumstances that existed at the time of the driving.

[75] In this case we have a trained police officer operating a cruiser on city streets while responding to a very serious request for assistance. The officer quite properly decides to answer the call, a Code 1 request, the most serious request that can be made, and proceeds to drive to the scene of the incident. She turns her roof lights and siren on as she is required to do and she proceeds at a relatively high rate of speed for a city street, that is to say 90 km/h, down Adelaide Street in a southerly direction where she knows that she will intersect with the east west Oxford Street. Her plan is to go through the intersection at Oxford. She approaches the intersection in a textbook manner. Other vehicles are giving way to allow her to access the intersection. She slows to a speed as little as 12 or 13 km/h.

[76] The policy directives of the London Police Service are that when an officer is intending to go through a streetlight intersection on a red light, which they are entitled to do under the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, they are to treat the intersection as if it was a four-way stop, while recognizing that traffic proceeding through an intersection on a green light may not be respecting or aware of the presence of the police officers. Consequently the policy directs that an officer operating a cruiser in those circumstance is to come to a complete stop and then to proceed through the intersection in a safe manner with lights and siren on.

[77] What we know here is that Officer Laari did not come to a complete stop, although she did slow down in a significant manner and performed what can be described as a rolling stop. We also know the officer turned off her roof lights and did not turn on her siren. It is reasonable to infer that after complying with the direction from a sergeant to turn off her siren moments before arriving at the intersection she then reached to turn on her siren before going into the intersection and accidentally pushed the button that turned off the roof lights instead of turning on the sirens. Finally we know that Officer Laari failed to see the oncoming Toyota motor vehicle. These three errors were the cause of the motor vehicle accident.

[78] Officer Laari's memory is that she made a full stop and that she turned her siren on. Her memory is wrong on both counts. She accepts that - after having viewed the bus video.

[79] A side note is the fact that she did not hear the siren – or more correctly put she did not hear the absence of the siren. Obviously this is part of the failure related to the siren – but it is partly accounted for by the stress of the situation in responding to a serious call, the traffic at the intersection and the complexities of moving through that intersection, the noise inherent in operating the cruiser and the requirement that she concentrate on listening to the radio. In that context I have noted the comment by Sgt. Sutherland that a phenomenon he calls auditory exclusion can happen when an officer is dealing with multiple stimuli in a stressful situation. There is no expert evidence opining as to what that phenomenon might mean, but it is consistent with what an ordinary person would understand, that is to say that when a person is surrounded by many different points of concern and there is no time to contemplate the course of action to take, then it is understandable that some decisions may be made that are incorrect, although made in good faith.

[80] This leads to another aspect of this analysis. The time over which the crucial decisions had to be made was miniscule. It was a matter of seconds from the time the order came to kill the sirens and the cruiser reached the intersection. The time for assessment by Officer Laari as to whether she should enter the intersection was also very brief. In my view this explains in part why she did not notice the siren was not on – it did not have time to register. She thought she had turned it on and her expectation was that it was turned on. In my view this was a reasonable expectation. Moreover the short time line created an urgency that did not allow for careful review. A decision had to be made and it was.

[81] This begs the question – what was the rush? The rush was that she was responding to an urgent call and that her professional duty and obligations required her to go to the scene of the possible crime. Admittedly she heard the Code 1 call being cancelled as she entered the intersection, but by then she testifies she was committed to the passage through the intersection and there was no turning back. I accept that explanation.

[82] It is fair to say that the entry of the officer into the intersection is objectively dangerous. There is the risk that another motor vehicle proceeding through the intersection on a green light will not be aware of the intention of the officer to go through the intersection. That is clear. In my view this creates a situation that is potentially dangerous. However this has to be balanced against the duty to respond placed upon the officer. Officers in the performance of their duty are required to do what Officer Laari proposed doing and the law allows police officers to enter or cross through intersections against the traffic lights where it is safe to do so.

[83] Has the Crown proven the actus reus in this case?

[84] The entry of the cruiser into the intersection without the sirens or lights being activated, after having failed to come to a complete stop, and without seeing the oncoming Toyota, was an action that was a marked departure from the standard of care that would be expected at that time and place by a trained police officer. The physical action of moving through that intersection in those circumstances was inherently dangerous. This is danger which is above and beyond the ordinary danger that exists in simply being in a motor vehicle travelling on a highway at ordinary speeds. It has been recognized that vehicular traffic is a necessary component of modern life; albeit one that attracts a certain amount of risk. Nevertheless, in this particular fact situation the action taken here was an escalation of the risk beyond what was normal. Notwithstanding the urgency related to Officer Laari fulfilling her mission, the failure to take the steps that were informed by the policies of the London Police Service made the entry into the intersection objectively dangerous and a marked departure from the actions of a reasonable person in that place and circumstances.

[85] Proof of the actus reus, however, without more, does not support a reasonable inference that the required fault element is present. The fundamental point of Beatty is that dangerous driving is a serious criminal offence and it is critically important to ensure the fault element of dangerous driving has been established.

[86] Beatty went on to say that a momentary lapse of attention would be insufficient to ground a finding of dangerous driving. Rather it is the pattern of driving that is to be measured to determine whether or not it is a marked departure from the standard of care.

[87] Accordingly the court must now consider whether the Crown has proven the mens rea.

[88] Roy suggests that the question of whether the mens rea has been proven can be answered by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

[89] In this case it is fair to say that in light of all the evidence a reasonable person standing in the shoes of Officer Laari would have foreseen the risk of proceeding into the intersection in the way in which she did. However the question is whether on these facts the failure to foresee the risk and to take steps to avoid it, if possible, was a marked departure from the standard of care of a reasonable person in the presenting circumstances. In my view it was not a marked departure. I say so for the following reasons.

[90] The pattern of driving by the officer was unremarkable save and except the decision to go through the intersection. Her response to the Code 1 call was appropriate. Her descent down Adelaide St was text book. She had activated her lights and siren as required by the LPS protocol. She acknowledged the intersection by properly reducing her speed. She approached the intersection with caution. She tried to reactivate her siren. She knew what she was supposed to do and she tried to do it. For the most part she succeeded. Her mistake with respect to turning off the lights as opposed to turning on the siren was simply a physical error brought about because of the other distractions, including the traffic around her and the requirement that she keep her eyes on the road, coupled with the urgency related to responding to the call. Her failure to come to a complete stop was a mistake in principle, but not as much in substance. Oftentimes people make a rolling stop at intersections. This is incorrect protocol but certainly not unheard of and it would be the rare driver in Ontario who has not made that mistake. To give only one example of how ordinary drivers can make that error is to recognize that if the roads are icy and a driver is approaching an intersection controlled by a stop sign they might be tempted to not apply their brakes in a robust manner for fear of sliding and losing control. Other examples abound. It is interesting to note that a number of the civilian witnesses thought she had come to a complete stop. Upon viewing the video however it is absolutely clear that the officer approached the intersection with care and slowed down sufficiently that under ordinary circumstances not too much would be made of the failure to come to a complete stop.

[91] This is not to excuse the failure to stop in this case but rather it explains why that error was not egregious.

[92] It should be noted that the only advantage in making the full stop would be to give a fraction of a second longer for the driver to assess whether it would be wise to continue. This is a valid policy reason for the directive. And in this case perhaps it would have made a difference. But the reality remains that this was a minor error.

[93] Finally the failure to see the Toyota was simply a momentary lapse in judgment and on its own does not attract a criminal charge. In fact all three of the errors, the failure to stop, the mistake with the siren, and the failure to see the Toyota, all of which happened at the same time and arguably are part of one transaction, do not separately or cumulatively amount to anything more that momentary lapses in judgment.

[94] In Beatty at paragraph 71 the court states that "in order to avoid criminal liability, an accused's driving is not required to meet a standard of perfection. Even good drivers are occasionally subject to momentary lapses of attention." It is also noteworthy that on the evidence available to the court Officer Laari is a good police officer and a good driver. Simply put in this fact situation she made an error in judgment that was closely contained and made under considerable pressure and that was not indicative of her driving generally.

[95] In Roy at paragraph 32 the court affirmed the fault principles at play in a dangerous driving charge. The court said:

[32] Beatty consolidated and clarified this line of jurisprudence. The Court was unanimous with respect to the importance of insisting on a significant fault element in order to distinguish between negligence for the purposes of imposing civil liability and that necessary for the imposition of criminal punishment. As Charron J. put it on behalf of the majority, at paras. 34-35:

If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.

In a civil setting, it does not matter how far the driver fell short of the standard of reasonable care required by law. The extent of the driver's liability depends not on the degree of negligence, but on the amount of damage done. Also, the mental state (or lack thereof) of the tortfeasor is immaterial, except in respect of punitive damages. In a criminal setting, the driver's mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice. The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment. [Emphasis added.]

[96] In my view the degree of fault present in this case is at best one of carelessness and may attract civil liability or regulatory sanctions. But it definitely does not rise to the level of a marked departure from the standard of care expected of a reasonable person in the accused's circumstances. In my view Officer Laari made an error in judgment – and that is all. It was a momentary lapse in judgment and is not morally blameworthy in terms of criminal law.

[97] For these reasons the charge is dismissed.

[98] I wish to thank counsel for their efforts in this case. They have prosecuted and defended with skill and courtesy.

Released: 12 February 2015

Signed: "Justice G. J. Brophy"