Court File and Parties
Court File No.: Ottawa 17-A11901 Date: 2019-01-09 Ontario Court of Justice
Between: Her Majesty the Queen — and — Chris Galetta
Before: Justice J. V. Loignon
Counsel:
- Mr. J. Neubauer, counsel for the Crown
- Mr. M. Ertle, counsel for the Defendant
Reasons for Judgment
Introduction
[1] Mr. Chris Galetta is charged that on June 18, 2017, he drove a motor vehicle on Fernbank Road in a dangerous manner and caused death to Michaela Martel and Madison Clement as well as bodily harm to Sommer Foley contrary to sections 249(4) and 249(3) respectively of the Criminal Code of Canada. He is further charged with criminal negligence causing death to the two young women and causing bodily harm to Sommer Foley contrary to sections 220 and 221 respectively of the criminal code.
[2] The evening of June 18, 2017 started off innocuously enough with plans amongst Ms. Martel, Clement and Foley as well as the accused to go to the Jinkinson quarry. Ms. Clement and Foley were picked up by Ms. Martel who had the accused in the car with her. Once at the quarry they did not stay long as a result of a confrontation between the accused and two other young men, including Mr. Michael Larabie. This confrontation led the group of young people to leave with the accused driving. There was a further confrontation at the entrance to the quarry where Larabie and his associate blocked in the Martel vehicle using their own, tried to open the doors to the Martel vehicle, and which culminated with Larabie smashing the driver's side front window with his fist. The Martel vehicle fled this area, turning left on Fernbank road. The crash occurred 2.7km later.
[3] At the start of the trial the following admissions were filed as Exhibit 1:
Mr. Galetta was operating the involved motor vehicle at the time of the collision;
The collision occurred on Sunday, June 18 2017, at approximately 9:21 pm.;
Mr. Galetta was operating a 2007 Chevrolet Cobalt SS, which was owned by Ms. Michaela Martel's mother;
The following persons were passengers in the car:
- a. Michaela Martel (18 years of age) was seated in the front passenger seat;
- b. Madison Clement (17 years of age) was seated in the rear passenger side seat;
- c. Sommer Foley (17 years of age) was seated in the rear driver's side seat.
Ms. Martel and Ms. Clement died instantly from the injuries they suffered in the collision.
Ms. Foley suffered bodily harm as a result of the collision.
Mr. Galetta operated the vehicle in a manner that caused the deaths of Ms. Martel and Ms. Clement, and bodily harm to Ms. Foley.
The motor vehicle Mr. Galetta was operating was subsequently examined and was found to have been mechanically fit prior to the collision.
Mr. Galetta was taken to the hospital after the collision. The results of blood testing showed no presence of alcohol or drugs.
[4] During the four day trial, the Court heard from a collision investigator, Det. Al Boucher, Sommer Foley, Michael Larabie and two women returning from a soccer match who were on the road at the same time as the young people. Much of the evidence is undisputed and generally, Crown and defence are in agreement as to the credibility and reliability of the witnesses. In that regard, both agree that Ms. Foley was both credible and reliable while Mr. Larabie was neither. I will return to this point later on in these reasons.
[5] As to the issue to be decided by the court, the parties are in agreement that the driving that night was a marked departure and that the objective element of dangerous driving is made out. The issue according to counsel for Mr. Galetta is whether the mens rea has been proven.
Summary of the Evidence
[6] Detective Boucher was the accident reconstructionist assigned to this collision. He provided a report which was filed on consent. During his viva voce evidence he described the different areas involved prior to the collision including the Jinkinson quarry and Fernbank road. The quarry has two entrances, one of them being on Fernbank, with a relatively long service road that ultimately opens onto the quarry proper. As noted above, the collision occurred 2.7 km from the quarry, on Fernbank Rd. Fernbank Rd. is two lanes divided by a single yellow line that occasionally becomes dotted. The posted speed limit is 80km/hr. The area is rural and there is no artificial lighting. In the area of and just beyond the collision, there is a slight hill or knoll which obstructs the view of any on-coming traffic till the crest has been reached. Just before the knoll, the dotted line becomes solid. The road itself was described as being in good repair, with gravel shoulders and a tree line bordering the ditches. The road conditions that day were good with it being 25 degrees, clear and dry. At the time of the crash, the sun had already set but there was still some natural lighting.
[7] In terms of the accident reconstruction, Det. Boucher described the car catching on the gravel, going into the ditch, spinning and furrowing into the mud, becoming airborne and its roof striking a hydro pole 2.71m from its base, then moving through the woods, clearing a path over 32m through the dense brush. The car was found on its passenger side severely damaged on every surface, caught within the forest trees. All occupants had to be extricated from what remained of the vehicle. No air bags deployed and no seatbelts were worn. The data from the car's crash data retrieval (CDR) unit, in the 5 seconds prior to the collision, recorded that the accelerator was at 100%, meaning that it was fully depressed to the floor. The highest speed recorded was 183km/hr. Using a constant speed of 180km, it would take the vehicle 54.2 seconds to cover 2.7km. Any decrease in speed would increase the time of travel.
[8] The conclusion following the accident reconstruction and analysis was that had the car been travelling the speed limit, the collision either would not have happened at all or the outcome would have been very different.
[9] Linda Normand and Sue Holland were travelling home together on Fernbank Rd. following a ladies' soccer match in nearby Beckwith. By coincidence, they were behind another car of soccer players. Ms. Normand and Ms. Holland confirmed much of the evidence gathered by Det. Boucher in terms of the roadway, its condition, the knoll, the speed limit and lighting. Ms. Holland was driving their vehicle, keeping a comfortable distance from the car in front. Once they were passed the quarry, she noted that a car was behind her in the distance, about 1 km away. When she checked her mirror again, she noted that it was coming up much more quickly than she would have anticipated. At the time, her speed was slightly over the limit of 80 but she believed that this car was going well over her own given how quickly it was closing the gap. Because of her perception of the speed and an approaching knoll in the road, she removed her foot from the accelerator. The vehicle overtook her, remained in the passing lane, and as it continued to overtake the car in front of her, it fishtailed, overcorrected and then went off into the bushes. As soon as this occurred, Ms. Holland stopped the car and both women exited to look for the vehicle. The car in front of them also stopped. One of the passengers phoned 911 while the others searched. Given how dense the forest was, it was difficult to find the vehicle. Police and other first responders arrived shortly thereafter.
[10] Ms. Norman testified that when Ms. Holland told her of the on-coming vehicle, she turned to look and could also see that it was coming up on them very quickly. Ms. Holland took her foot off the accelerator and both watched to see if the car passed them safely. They were concerned with this attempt to pass because there were two vehicles one behind the other, the road was narrow, it was impossible to see over the approaching hill, there were ditches on either side, little room to manoeuvre, a significant amount of gravel and the car was coming very fast.
[11] Michael Larabie was at the quarry that evening. He knew most of the occupants of the Martel vehicle. Indeed, he was friends with Sommer Foley's ex-boyfriend Keenan and had made attempts to date her. He knew Madison Clement through a close friend, Ryan Hooper, and knew Michaela Martel through Madison. The only person he did not know was Mr. Galetta. Larabie was at the quarry that day with Jesse Lamoureux and Ryan Hooper. They had been there for some time when they saw the group of young women.
[12] In terms of describing his interaction with the group, he testified that he received a call from his friend Keenan telling him "beat up the guy with Sommer". Though he refused to beat him up, he decided he would ask him his name and was told Chris. Following this, according to Larabie, Mr. Galetta became skittish, causing him to get into the car, followed by the girls. The group drove away. Mr. Larabie said that as they left, Mr. Galetta was driving too fast and fishtailing which caused him and his friends to become concerned for the girls. As a result, they jumped into their cars and sped to catch up with the Martel vehicle. They only managed this at the end of the Fernbank quarry access road, just at the gate. The young men proceeded to block the Martel car in and exit their own cars. According to Larabie, out of concern for Mr. Galetta's driving and because his friend Keenan's girlfriend was in the car, he attempted to open the door to remove her from the car. As he tried to open car doors, he yelled angrily to unlock the door which they did not do. Since Mr. Galetta would not open the door, Larabie punched and broke the driver's window with one blow. He tried to unlock the door however, as he did this, Mr. Galetta began to move, tearing Larabie's arm. Though he managed to dislodge it, damage was done. Once the Martel car was at the roadway, it turned left sharply onto Fernbank. According to Larabie, he and Jesse left the quarry 45 minutes later to have his arm tended while Ryan left immediately after the confrontation, turning right.
[13] Mr. Larabie could relate few of the details of what was said other than that he told Mr. Galetta to open the door. He denied threatening Mr. Galetta and insisted that his actions and those of the others that evening were out of concern for the young women's safety because of Mr. Galetta's driving.
[14] Counsel for Mr. Galetta thoroughly cross-examined Mr. Larabie and the net result is that I do not believe a word of what he had to say, save and except for where it is confirmed by Ms. Foley. Overall his evidence was self-serving, callous and an effort to distance himself from any responsibility for the chain of events that he and his fellow goons set in motion that evening.
[15] Sommer Foley described herself as close friends with Madison Clement whom she called Maddie. Maddie in turn was close friends with Michaela Martel who was friends with Chris Galetta. After an afternoon of shopping on June 18th, plans were made to go to the Jinkinson quarry with Michaela and Mr. Galetta. Michaela, who already had Mr. Galetta with her, picked up Sommer and Maddie in her mother's car. Once at the quarry, the group took pictures with their phones, spoke with others who were at the quarry and dipped their feet in the water. Though Ms. Foley initially thought they were there about 5 minutes, when having gone through the various things that occurred, she agreed that they were indeed at the quarry longer.
[16] Other people were also at the quarry given it was a beautiful summer evening, some drinking though no one from their group was. Amongst those they ran into, there was a young man Maddie knew and with whom she spoke at a pick-up truck. Michaela spoke with Ryan Hooper about a debt she owed him. Ms. Foley did not describe the encounter in negative terms, but rather as a matter of fact inquiry and response. Ms. Foley knew Hooper as he had been in a relationship with Maddie. In terms of other individuals present at the quarry that she knew, there were also Jesse Lamoureux and Michael Larabie. Ms. Foley described Larabie as one of her ex-boyfriend Keenan's friends who, notwithstanding her relationship with Keenan, had tried to have her go out with him and threatened to commit suicide if she did not.
[17] Mr. Lamoureux and Larabie had been near their cars, which were not far from the Martel car. According to Ms. Foley, both approached her group looking angry and Lamoureux told them that they had a number of seconds to leave or they would hurt Chris, more specifically saying that "he would kill him". Though Michaela asked why, no one answered. The confrontation was described as tense and scary. The four got into the Martel car, with Mr. Galetta driving.
[18] Once in the car, Ms. Foley related Maddie asking why this was happening and once they were moving, observing Mr. Galetta mouth something out the window towards the young men, though she did not know what. By this time, Lamoureux and Larabie were back at their car. After this, looking through the back window, Sommer and Maddie saw Lamoureux and Larabie in one car and Hooper in another, driving fast towards them. She described that as this happened, Mr. Galetta who already had been going fast, drove even faster. Just before exiting the quarry, at the gates, the Martel car was cut off to the right by the Larabie car and to the left by the Hooper car to prevent it from exiting. The Martel vehicle stopped and the young men exited their cars with Lamoureux yelling that he wanted to fight Mr. Galetta.
[19] Ms. Foley described all the young women telling Mr. Galetta to remain in the vehicle, being scared and him locking the doors. Larabie came around to the driver's side and was told by Lamoureux "just do it; he deserves it", meaning to break the window. Larabie punched the driver's side window, shattering it and sending glass on Sommer and Maddie. At this point Lamoureux told her and Maddie to exit the car. Being too nervous and not knowing why they were being told this, they did not. Ms. Foley testified that Lamoureux and Larabie continued to yell at Chris to come out. Ms. Foley agreed with the suggestion that this confrontation was terrifying. She could not understand what the issue was and thought that perhaps there had been a problem between them in the past. It ended with Michaela yelling at Mr. Galetta to start the car and leave, directing him to the left, with Mr. Galetta manoeuvering between the Hooper car and the gate. Once at the entrance, he immediately turned left onto Fernbank Rd. According to Ms. Foley, Michaela was crying and saying she did not know how she would explain the broken window to her mother. Mr. Galetta was reported crying and saying "sorry". At no time at the quarry or during the confrontation at the gates did Ms. Foley see anyone with a weapon.
[20] Immediately once on Fernbank, Ms. Foley described the car as going fast, causing all of the young women to try and fasten their seatbelts. None were able, the mechanisms having locked. There was yelling from the young women about the seatbelts having locked, but no real sense on Ms. Foley's part of how long this struggle lasted. According to Ms. Foley, she and Maddie told Mr. Galetta to slow down but he would not. He kept yelling "they're going to hurt me". After the struggle with the seatbelts, Maddie and Ms. Foley looked back and saw no one there, save for a red car in the distance, which did not belong to the young men. Maddie said to Mr. Galetta "there is nobody following us". Ms. Foley described Michaela screaming at Chris, telling him that there was no one coming, no one was there and everything would be ok. At this point, Mr. Galetta said "they're going to kill me". In response to this, Maddie told him that there was no one who was going to kill him, to calm down and think of them. Michaela screamed at him while crying to slow down and to stop. At one point, Ms. Foley saw the speedometer at 140km/hr and up.
[21] As the young women were screaming at him to stop, they also shook his shoulder. They further told him that they were fine, and to pull over into someone's driveway to calm down. Mr. Galetta's response was to repeat that they were going to kill him, causing all three young women to tell him that no one was going to hurt him, that there was no one behind them.
[22] Just prior to the crash, Ms. Foley told Mr. Galetta to slow down, to take a deep breath, that he needed to breathe and him responding "I can't". This was the last thing he said prior to losing control of the car.
[23] As they moved down Fernbank, Ms. Foley described two other vehicles ahead of them and Mr. Galetta trying to pass them. Realizing his intention as he moved into the left lane, Maddie yelled at him to slow down before something happened. Ms. Foley described them moving back into the right lane having passed the first car. When they moved into the left lane again, to pass the second car, Maddie held onto Ms. Foley's hand crying and said to her, "I love you; take care of my child." As Mr. Galetta attempted to pass the second car, he moved suddenly causing the wheels to catch in the gravel, and him to lose control of the car, going into the ditch, then flipping and eventually coming to a stop.
[24] Ms. Foley was very seriously injured in the collision suffering a neck broken in three places, two broken ribs and currently she has metal plates in her elbow and arm. Her back suffered a significant cut.
[25] When Ms. Foley described telling Mr. Galetta to slow down and pull over, she initially testified that this occurred a couple of minutes after they exited the quarry. She later agreed that her sense of time was skewed and that in her mind, the time things took was much longer. She was surprised to find out that they were on Fernbank approximately a minute and a half to two minutes. As noted earlier, she was also mistaken in terms of her description of the time spent at the quarry. It is similarly difficult to pinpoint when she and Maddie looked back to see if anyone followed them. In the chronology, she placed this as being after the struggle with the seatbelts which occurred immediately after the car exited the quarry. She also agreed with the suggestion that after some time had passed on Fernbank, she and Maddie looked back, though it is unclear when. When it was suggested that she could not be sure if they were followed at least initially, she quite emphatically disagreed saying that she and Maddie were looking back together and that the young men did not follow them. Ms. Foley agreed that from Mr. Galetta's responses, he did not believe them.
[26] Ms. Foley agreed that Mr. Galetta was very scared during this time, breathing heavily at times and at least initially crying. At one time the witness used the term hyperventilating to describe Mr. Galetta's breathing, though she clarified he was not gasping but rather simply breathing heavily. In terms of his behaviour, Ms. Foley agreed that Mr. Galetta was not taking things in despite three people screaming at him.
[27] Counsel both agree that Ms. Foley was a credible witness. As to reliability, they essentially agree that by and large her memory was accurate as to the events she described. One of the areas where Ms. Foley may be mistaken is whether the Martel car overtook the Holland car and returned to the right lane before attempting to pass the second car. On this point, I accept the evidence from Ms. Holland and Ms. Norman who were overtaken to the left and as observers to the events, were in a better position to say whether the car moved into their lane after it passed them. Whether the car did return to the lane is immaterial to the issues to be decided and given the concession that the driving was objectively dangerous, does not detract from Ms. Foley's account. Indeed, the only area where I do have some concern as to her ability to recall is in relation to time. She was clearly mistaken in terms of the amount of time the group spent in the quarry as well as the amount of time that passed while they were on the road.
[28] No evidence was called by the defence.
Factual Findings
[29] For the purpose of the analysis which follows, I make the following factual findings:
(1) Mr. Galetta, Ms. Foley, Ms. Martel and Ms. Clement went to the Jinkinson quarry and met Messrs. Lamoureux, Larabie and Hooper by chance.
(2) While there, a threat to "fucking kill" was made to Mr. Galetta by Lamoureux followed by a demand that the group immediately leave the quarry, which they did with Mr. Galetta driving the Martel car.
(3) As they left, Mr. Galetta mouthed something to Lamoureux and Larabie which caused them to pursue the Martel vehicle at a high rate of speed. Lamoureux, Larabie and Hooper caught up to the Martel vehicle at the quarry exit, by the gate. There was a further confrontation with the young men demanding that Galetta as well as the young women exit the car. Attempts were made to open the doors but these had been locked by Galetta. Lamoureux directed Larabie to break the window, which he did with one punch, sending glass onto Ms. Foley and Ms. Clement. There were no weapons seen at any time.
(4) Ms. Martel directed Mr. Galetta to move around the Hooper vehicle which he did, squeezing by the gate and exiting left on Fernbank Rd.
(5) Because the vehicle was moving so fast, the young women attempted to use the seatbelts but were unable to.
(6) After an unknown period of time on Fernbank, Ms. Foley and Ms. Clement looked back and saw that no one was following them and that there was only an unrelated red car in the distance. Ms. Clement told Mr. Galetta at that point that no one was following them.
(7) All three young women told Mr. Galetta to slow down; that no one was following them; that no one was going to hurt him. He was told these things repeatedly. He was also told to pull over, to calm down and to breathe. He was told to think of his passengers. He was told to slow down before something happened. Mr. Galetta repeatedly said they are going to kill me or hurt me. Though crying as the group exited the quarry, Mr. Galetta stopped crying once they were on Fernbank. He did however start to hyperventilate and just before he lost control of the car said he could not breathe.
(8) The environment in the car while on Fernbank was not calm as all were yelling, sometimes on top of each other. I also find that the young women were afraid of Mr. Galetta's driving.
(9) With respect to the roadway, I accept that it was in good repair, that visibility was not an issue, that the speed limit was 80km/hr, that there is a knoll, or hill just beyond where Mr. Galetta was passing the Holland and other vehicle which obscures any visibility for on-coming traffic and finally that in this area the roadway is marked with a solid yellow line. I furthermore accept that at the time of the collision, the speed of the Martel vehicle was 183km/hr with the accelerator pedal being fully depressed.
(10) The total distance travelled by the Martel car up to the point of the collision was 2.7km. Though it would take 54 seconds to travel that distance at 180km, this was not the constant speed. As a result, more than 1 minute and less than two were spent travelling on the roadway.
[30] I do wish to add that the trajectory down Fernbank Rd. was described in such a fashion that it is difficult to determine where certain things occurred. Added to this is Ms. Foley's trouble estimating time. One of the contentious issues in terms of the timing is when Ms. Foley and Ms. Clement turned around to see if they were being followed. Though it was put to Ms. Foley that she could not know for sure if for some period of time they were indeed followed on Fernbank, Ms. Foley disagreed, saying that she looked back with Maddie and could see only a red car. She quite decisively stated that they were not followed. Ms. Foley did not relate this action to any particular period. She did however testify that all in the car gave Mr. Galetta this information in some form or another. This was followed by other admonitions such as to pull into a laneway and stop to calm down, to think of them when he said they were following or would hurt him. It indeed became a consistent refrain. For this to have become the refrain, it makes sense that it occurred at an earlier time in the flight rather than just prior to Mr. Galetta losing control of the car. Without being able to say precisely when it occurred, I do find that this information was imparted after being on Fernbank, but certainly prior to just before the collision.
[31] Counsel for Mr. Galetta has conceded that objectively, the driving exhibited that evening was dangerous, a reasonable concession given the evidence heard and accordingly I make this finding. I also find that the driving at issue caused the deaths of Ms. Clement and Ms. Martel and bodily harm to Ms. Foley.
[32] The disagreement between Crown and defence is focused on the mens rea of dangerous driving. Counsel for Mr. Galetta argues that the stigma of criminal liability ought not to attach to Mr. Galetta's actions as he was in a fight or flight situation, fleeing down Fernbank in the belief that the three men from the quarry were pursuing him to harm him. In such circumstances, even if Mr. Galetta was mistaken about his peril, as the mistake was reasonable, his actions cannot be said to be outside the scope of what a reasonable person in peril would do. Defence does not argue necessity, recognizing it would not arise on these facts. Counsel also does not take issue with the voluntariness of Mr. Galetta's actions, acknowledging that the operation of the motor vehicle was indeed deliberate. Rather, he argues that the deliberate actions were not outside the scope of what was reasonable in the circumstances. There being no mens rea for the offence of dangerous driving, then there can be no mens rea for the greater offence of criminal negligence.
[33] The Crown, on the other hand, says that the mens rea argument being put forward is necessity re-cast as the mens rea which cannot apply. In other words, what is being proposed is that because of the situation of peril in which he found himself, Mr. Galetta had no choice but to drive as he did; that it was necessary. The Crown further argues that R. v. Foos, infra and those that followed it, which are being relied upon, are inapplicable here given they are premised on an immediate, almost reflexive action to peril which is absent here. The Crown submits that the reasonable person in the accused's circumstances would have understood that the threat had passed. With respect to any mistake as to the threat, the Crown says that this was not honestly or reasonably held given the information being provided to Mr. Galetta. Accordingly, the Crown argues that the accused ought to be found guilty of dangerous driving. In terms of the criminal negligence counts, the Crown argues that the driving exhibited constituted a marked and substantial departure from the standard of care of a reasonable person in that Mr. Galetta showed a wanton or reckless disregard for the safety of others.
Dangerous Driving - The Law
[34] The offences at issue here are negligence based and concern themselves with risk. However, contrary to civil negligence and reparation for loss, they seek to punish blameworthy behaviour: R. v. Beatty, 2008 SCC 5 para. 6-9; 20. In that regard, negligent driving will not necessarily constitute dangerous driving since as stated by Charron, J. in Beatty, at para. 6: "Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with the conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender's mental state."
[35] In R. v. Roy, 2012 SCC 26, the Supreme Court confirmed Beatty and re-stated the actus reus and mens rea of dangerous driving in the following manner:
34 In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved.
36 The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48).
[36] Proof of a specific mens rea will suffice but is not required. The modified objective test for the mens rea adopted by the Supreme Court in its earlier jurisprudence was explained in this fashion by Charron, J. in Beatty:
37 The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity. However, there will be circumstances where this underlying premise cannot be sustained because a reasonable person in the position of the accused would not have been aware of the risk or, alternatively, would not have been able to avoid creating the danger. Of course, it is not open to the driver to simply say that he or she gave no thought to the manner of driving because the fault lies in the failure to bring to the dangerous activity the expected degree of thought and attention that it required. As Cory J. explained (at page 885 of Hundal):
It would be a denial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking of his manner of driving at the time of the accident.
[37] Justice Charron then continued:
However, because the accused's mental state is relevant in a criminal setting, 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. On these occasions, even when the manner of driving viewed objectively will clearly be dangerous, the accused cannot be convicted.
[38] Guidance in assessing the conduct was also provided at para. 40, which guidance was distilled in R. v. Roy at para 38:
The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused's circumstances, evidence of the accused's personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused's incapacity to appreciate or to avoid the risk (para. 40). Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86).
[39] A person who has driven dangerously will not be convicted if a reasonable person in the accused's position would not have anticipated or appreciated the risk, or was operating under a reasonably held mistake of fact: R. v. Hecimovic, 2014 BCCA 483, [2014] BCJ No. 3066 at para 57. Indeed, "an honestly and reasonably held belief in the existence of certain facts may be a relevant consideration in assessing the reasonableness of his [the accused's] conduct.": R. v. Tutton, [1989] 1 SCR 1392 as cited in Hundal supra at para 40.
[40] As is obvious then, a number of defences are available when assessing the mens rea, including mistake of fact as to the circumstances and whether the conduct measured up to the required standard of care. This issue was discussed in R. v. Lilgert, [2014] BCJ No 3101; R. v. Mullen, [2014] ONCJ 14; R. v. Kravshar, [2005] AJ No 1539 (APC); R. v. Singh, [2017] OJ No 963 (SCJ). I will return to some of these cases in a moment.
[41] The line of cases being relied upon by counsel for Mr. Galetta begins with R. v. Foos, 2010 BCSC 1771. In that case, the accused had been driving normally and was stopped by a police officer, gun drawn, who was investigating a stolen truck. Though told to show his hands and exit his vehicle, the accused could not immediately as his seatbelt was on. He tried to tell the officer this but to no avail. When the officer continued to point his firearm at his head, the accused slammed his foot on the gas, causing the truck to move forward with the officer partially in the truck. Fearing for his life, the officer fired his firearm. The court found that the actus reus was made out given the driving exhibited but also the accused's own words establishing his conscious actions of putting the car in gear and stepping on the accelerator. With respect to the mens rea, the court opined the following in relation to the impact of panic and a perceived imminent threat:
40 Finally, the required inquiry is whether the Crown has proved, beyond a reasonable doubt that a reasonable person in the accused's position would have been aware of the risk created by this conduct, placing a reasonable person in the truck, pulled over for an arrest of a suspect for a stolen car. I assume the reasonable person in this position has just been pulled over for some reason, some reason which would justify approaching it with a firearm drawn, but I am not assuming that the reasonable person is a thief. Nevertheless, the reasonable person is nervously aware of their vulnerability and does all he or she can to comply with demands. The demands continue and compliance does not seem to reduce the agitation and aggression of the police officer holding a gun pointed in the person's direction. The reasonable person thus reasonably perceives an imminent threat from the firearm.
41 In this situation, can one say when the reasonable person reacts to the reasonably perceived imminent threat, that whatever the reaction is, it carries the capacity to assess the risk for danger to others of that reaction?
42 In my view, one can take judicial notice that reasonable persons and situations of peril, where control of the peril appears outside their ability, react in often irrational ways, in everything from paralysis to appropriate actions to completely wrong actions. Instinctive reactions when one is not trained to recognize dangers and control one's fight or flight instinct are varied, unpredictable, and often irrational.
[42] The actions in the vehicle constituting the dangerous driving were estimated to have taken less than 4 seconds, while the interaction between the police and the driver from the time the officer was on scene was estimated at 40 seconds. Essentially, the court found that the second or so to assess the situation was insufficient for a reasonable person to appreciate the risk or do something to avoid creating the danger. The accused was acquitted.
[43] In the cases cited above, namely R. v. Mullen, R. v. Kravshar and R. v. Singh, the accused were driving vehicles while dealing with one or several police officers with guns drawn, not realizing that they were in fact police officers. Operating under this mistake of fact, the accused suddenly manoeuvred their vehicles which caused some type of harm. In most, the reaction time was very limited and immediate to the threat presented, resulting in immediate consequences from the driving. For example, in Kravshar, the accused believed that the officer was a hooligan intent on harming him with a gun. He suddenly drove away, through a red light, not realizing that the officer was hanging on to the vehicle. In Kravshar the court accepted that the accused was operating under a mistake of fact as to the officer's presence and believed he was about to be attacked. The court accepted that doubt had been raised on the basis of the mens rea. The court did not accept that necessity was made out on the facts. A similar result in terms of the mens rea was accepted in Singh where Kravshar was applied.
[44] R. v. Wood, [1999] OJ No 2278, is a similar case in that the mens rea of dangerous driving and criminal negligence were at issue but the circumstances were different, the facts revealing a confrontation amongst motorists including the smashing of a windshield whereby fearing for his safety, the accused attempted to escape those blocking him in, resulting in bodily harm to one of the individuals having exited his own car. The court found that the accused reasonably believed he was being confined, that he reasonably feared physical violence from those present on the roadway, that he had no other realistic alternative of escape and finally that the actions employed were proportional. The net result was that the accused's actions were found to be "justified". (para 39) Again, in this context the driver's actions were immediately proximate to the peril presented.
[45] A similar result occurred in R. v. Gluchowski, [2000] OJ No 5195, where the facts were also similar in that it was a road rage situation culminating in a confrontation at the roadside with the other driver being grievously injured when the accused attempted to escape in his car. Though the court refers to everything happening quickly, between 5-7 minutes, this estimate included the time on the highway which created the road rage. The actual dangerous driving was immediately proximate to the attempt to physically confront the accused.
Analysis
[46] That the driving was objectively dangerous has been conceded and I have made this finding. Moving on then to the mens rea and the surrounding circumstances, as noted above, I accept that there was a confrontation at the quarry where a threat was made to Mr. Galetta causing him and the young women to immediately leave. I further accept that there was another confrontation at the exit to the quarry where the Martel car was blocked in, the driver's window smashed and attempts made to have the accused and the young women exit the vehicle. I accept that at this point, Mr. Galetta had a reasonable basis to fear the actions of those present. I also accept that once initially on Fernbank, Mr. Galetta's driving though fast, was un-remarkable in that there were no other illegal manoeuvres.
[47] Was the degree of care exhibited by the accused a marked departure from the standard of care of a reasonable person in the accused's circumstances? In my view the answer here is yes.
[48] Though there may have been an initial sense of urgency to leave the quarry, as time and distance increased, this urgency diminished. Notwithstanding, the speed at which the car was being driven did not. It continued to accelerate ultimately reaching 183km/hr on a two-lane highway, 100km beyond the speed limit. By this time, the fear in the vehicle was caused by the accused's driving. The other occupants in the car told Mr. Galetta to slow down. He did not and in fact, in the seconds before he lost control of the car, the accelerator remained depressed at 100%, meaning that in addition to not braking, he never lifted his foot off the gas. They told him to stop or to pull over but he did not. In terms of the foreseeability of the risk, one of the occupants actually told him to slow down, to think of them. It is impossible then that Mr. Galetta could not have foreseen the risk having been directly told of it.
[49] What of Mr. Galetta's perceived belief that people were coming to hurt him? The young women repeatedly told him that no one was coming to hurt him; that no one was following them. This information was based on direct observation by two of the young women. In these circumstances, that is to say with time and distance from the quarry combined with the information from Ms. Clement and Ms. Foley, Mr. Galetta's erroneous belief that he was still in imminent peril cannot be an honest and reasonably held one. I do not diminish what happened at the quarry in that it was violent and would cause fear. However, it was over. They were away. There was no reasonably perceived imminent threat. Notwithstanding, Mr. Galetta's foot remained on the accelerator up until the time of the crash.
[50] There is evidence of the accused crying at one time as well as hyperventilating, or breathing heavily. Ms. Foley agreed with the suggestion that he was not taking in what was going on. This is suggestive of his panicked reaction. However, there is evidence that he was also responding to the young women in the car and was certainly not completely oblivious. For example, when directed by Ms. Martel to start the car and move around the others, he did. When the young women told him that no one was coming to hurt him, he did respond to them. This is evidence of someone who is responsive who, though scared, is not an automaton or lacks capacity. On this last point of automatism, I appreciate that the argument presented concerns the mens rea and not the actus reus. That having been said, there is certainly authority for the proposition that a panic response, similar to what has been expressed here and in some of the cases cited above, ought to be viewed through the lens of the Supreme Court of Canada's analysis in R. v. Stone, [1999] 2 S.C.R. 290, as the actions of a non-voluntary actor. In that regard, see the dissenting views of McDonald, J. in R. v. Leinen, 2013 ABCA 283. In any event, for the purpose of this trial, I do not view Mr. Galetta's circumstances such that he was an involuntary actor and, given his responses to the young women along with the distance travelled from what caused his "panic", that he lacked the capacity to appreciate either the danger or the risk. Anything obscuring his perception of the risk had passed. He simply ignored what he was being told along with his passengers' pleas and doggedly carried on as evidenced by the continued depression of the accelerator.
[51] In terms of the line of cases such as Foos, I do not find them to be applicable in these circumstances. For one, they are premised on an honestly and reasonably held mistake which I do not find existed here. For another, while they bear a certain similarity in terms of a situation of peril, minus the firearms, in those cases, the perception of peril, the driving and the consequences were immediate and momentary. Indeed, the actions were described as reflexive to the immediate events and imminent threat. The timelines described support this, for example in one case the time between perception and reaction was 4 seconds while in another it was entirely without delay. In this case, Mr. Galetta left the situation of peril and was 2.7km from there when he lost control of the car. Here there was time for him to appreciate this risk to his passengers and do something to avoid it, namely, take his foot off the gas.
[52] Returning then to the reasonable person in Mr. Galetta's circumstances, such a reasonable person would have foreseen that continued un-restrained speed would be dangerous given there is less time to react to emerging situations including other drivers. A reasonable person would have also appreciated that overtaking two vehicles at once, while approaching a knoll, with no visibility to on-coming traffic would be exceedingly dangerous. A reasonable person would not have undertaken this manoeuvre and certainly not at the speed exhibited here. As a result, a reasonable person would have foreseen the risk and taken steps to avoid it.
[53] Was this failure a marked departure? There was nothing momentary in the conduct exhibited here. It went on for 2.7km. Mr. Galetta was being told to slow down, to stop, to calm down, to think of the others in the car. He not only did not accede to his passengers' wishes, he continued to accelerate and undertook a dangerous manoeuvre. While it may have been pandemonium in the car, it was largely caused by the accused's failure to consider the young women in the car for whom he was responsible and who were under his care as the driver of that car. What Mr. Galetta did and failed to do that evening constituted a marked departure from what would be expected of a reasonable person in the accused's circumstances.
[54] I find Mr. Galetta guilty of the dangerous driving counts.
Criminal Negligence – The Law
[55] Turning now to the criminal negligence counts, these are not very different from those of dangerous driving save and except for a higher degree of responsibility. As noted in R. v. Alli, 2012 ONCJ 49, [2012] OJ No 419:
84 First for a criminal negligence conviction, the conduct must not merely be dangerous to the public. It must be so dangerous that it "shows wanton or reckless disregard for the lives or safety of others." This means that the negligence is significant enough that, viewing it objectively, the act is wanton and reckless on its face. As it has been put, the wantonness or recklessness must be "obvious".: R. v. L.(J.) (2006), 204 C.C.C. (3d) 324 at para 18 (C.A.). "Wanton" means heedlessly, ungoverned, undisciplined, or an "unrestrained disregard for consequences". Recklessness, in this context means "headless of consequences, headlong, irresponsible." In R. v. M.R. the Ontario Court of Appeal treated this actus reus element as a "high standard" being satisfied if the conduct constitutes a "marked and substantial departure" from the conduct of a reasonably prudent person.
85 Second, the modified objective mens rea element in criminal negligence offences is more intense than the "marked departure" modified objective test applied to dangerous driving. With respect to criminal negligence, the mens rea requirement again requires a "marked and substantial departure" which can in appropriate cases, be inferred from the accused's conduct or omission: R. v. M.R. at para 29-30 (Ont. C.A). Describing the mens rea requirement in R. v. J.(F.), 2008 SCC 60, [2008] 3 SCR 215, Justice Fish said in the factual context of that case at para 9:
On the count alleging criminal negligence, the Crown was bound to show that the respondent's omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused recognized and ran an obvious and serious risk to the life of his child, or alternatively, gave no thought to that risk.
The objective mens rea inquiry is not a simple duplication of the actus reus inquiry in spite of the repetition of the marked and substantial departure inquiry and the obvious overlap. The mens rea element permits an inquiry into the capacity of the accused to meet the relevant standard, as well as an examination of particular non-personal characteristics of the event that may affect the outcome. In R. v. M.R. the court explained at para 30:
A court must consider the facts existing at the time in light of the accused's perception of those facts and assess whether the accused's conduct, in view of his or her perception of the facts constituted a marked and substantial departure from what would be reasonable in the circumstances. Considering the issue, the court should consider whether the accused either adverted to the risk involved and disregarded it, or failed to direct his or her mind to the risk and the need to take care at all. [Citations omitted]
[56] In R. v. Willock 2006, CarswellOnt 3733, the Court of Appeal considered driving that occurred in a 2-3 second interval and whether this could amount to a marked departure from the standard of a reasonable person and demonstrate a wanton or reckless disregard for the life or safety of others. The court observed that such a brief timeframe will generally suggest civil negligence in the absence of proof of a more deliberate action, such as suggested in that case, the deliberate jerking of the steering wheel and subsequent loss of control. (para 31-32).
[57] In R. v. Laine, 2015 ONCA 519, the court characterized a speed of 140km in an 80 zone, on a narrow two-lane highway, as grossly excessive. Added to that was a near miss in negotiating a curve and an admonition to slow down prior to the accident. In those circumstances, the driving was described as wanton and without regard to the lives of the passengers in the vehicle or other users of the roadway.
Analysis
[58] Is the driving here so dangerous that it "shows wanton or reckless disregard for the lives or safety of others"? Are the consequences more obvious? In this case the speed was grossly excessive – 100km over the limit on a narrow two-lane highway. Added to that, the accused was in the process of overtaking two vehicles while at the base of a knoll that rendered his passing completely blind. Mr. Galetta had no idea if anyone was coming while he occupied that lane and, at least one of the cars he was overtaking felt it necessary to reduce her own speed in the event he could not complete the manoeuvre. The speeding occurred over 2.7 km though the highest speeds were reached later on. That all of his actions exposed the young women to great risk is obvious. It was so obvious they repeatedly told him to slow down, to think of them, to stop before anything happened. In Ms. Clement's case, the risk was so obvious she anticipated her own death, asking Ms. Foley to care for her child. The collision was a natural and obvious result of the accused's actions. Indeed, the accident reconstruction concluded that but for the speed, the crash would not have occurred or would not have been as catastrophic. From this I conclude that Mr. Galetta's conduct constituted wanton or reckless disregard for the lives and safety of the others in the car.
[59] Turning to the accused and his perception of the facts as they existed at the time, does his behaviour amount to a marked and substantial departure from what would be reasonable in the circumstances? With respect to Mr. Galetta's personal circumstances, I accept as above that the confrontation at the quarry caused him to fear for his safety. I accept that he is young, the same age as the young women who lost their lives. I note that initially, the only issue was Mr. Galetta's speed. That having been said, those in the car told him to slow down repeatedly. After a time had passed, they told him that no one was following them. His response was that they were going to kill him. He continued to speed. Several people told him no one was following him; one of them told him that no one was going to hurt him. He was told these things after being on Fernbank for a time but certainly well before he lost control of the car. He was also told to stop; to pull over; to think of them; to slow down before something happened.
[60] Mr. Galetta could not have been unaware of the risk – he was told of the risk. His responses suggest having adverted to risk and discounted the young women's concerns in favour of his own fear and this despite being 2.7km from the confrontation and not being followed. In terms of the flight from imminent peril, as noted above, I do not accept that, as time passed and distance increased, it was reasonable to believe that this peril still existed. Given what Mr. Galetta was being told by the young women, his belief was neither honest nor reasonably held.
[61] Even in the time before the crash, Mr. Galetta did not consider those who were in his care, but rather attempted to overtake two cars on a blind knoll at 183km/hr, accelerator pedal fully depressed. This is recklessness – a heedlessness to the consequences and the lives of those in the car. Mr. Galetta, both by commission and omission, omission in that he failed to slow down and commission by his attempt to pass the two vehicles at his grossly excessive speed, demonstrated a marked and substantial departure from the norm of a reasonable person in the circumstances.
[62] I find Mr. Galetta guilty of the criminal negligence counts.
Released: January 10, 2019
Signed: Justice Jacqueline V. Loignon