ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-A8314

DATE: 2012

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – GIUSEPPE OPPEDISANO Defendent

Keith Phillips, for the Crown

James D. Foord, for the Defendent

HEARD: November 26 & 27, 2012

decision

lALONDE j.

[ 1 ] Giuseppe Oppedisano stands charged that on or about the 12 th day of August in the year 2010 at the City of Ottawa in the East region did operate a motor vehicle on Scott Street at Parkdale Avenue in a manner dangerous to the public and thereby cause the death of Mario Laguë, contrary to Section 249 , subsection (4) of the Criminal Code of Canada .

[ 2 ] On August 12, 2010 at approximately 6:50 AM at the intersection of Scott Street and Parkdale Avenue in the city of Ottawa, Guiseppe Oppedisano, driving a Mitsubishi SUV, entered into a collision with a motorcycle driven by Mario Laguë resulting in Mr. Laguë’s death.

[ 3 ] The parties have made the following admissions pursuant to section 655 of the Criminal Code of Canada , namely:

1. The accused, Guiseppe Oppedisano, was at all material times the sole occupant and operator of the grey 2010 Mitsubushi Outlander SUV, Quebec plate number 532 SBL. That vehicle was mechanically fit in all respects.

2. The deceased is Mario Laguë, as described on the indictment. He was operating the motorcycle in question, a 2007 Honda Shadow, Ontario plate number 3938K. The motorcycle was mechanically fit in all respects.

3. Death was caused by trauma to Mr. Laguë head and body which was directly caused by the collision in question. He was pronounced dead at the scene by a coroner, Dr. Genier.

4. There was no alcohol (or other intoxicants) involved with respect to either party.

5. Mr. Oppedisano is licensed to drive and has been for several decades.

6. The collision in question occurred at approximately 0650 on August 12, 2010, at the intersection of Scott Street and Parkdale Avenue (which is in the City of Ottawa) (the intersection)

7. There is no issue with respect to the accuracy, authenticity or continuity of any of the photos, videos or diagrams.

8. Identification is not an issue in this trial.

[ 4 ] The central issue in this case is whether, considering all the circumstances, including the nature, condition and use of Scott Street at about 6:50 AM on clear, cloudy morning with a dry and straight road and the amount of traffic that was or might be expected to be there, Guiseppe Oppedisano drove in a manner that was dangerous.

THE LAW

[ 5 ] Cory J. of the Supreme Court of Canada refined the definition of dangerous driving in R. v. Hundal 1993 120 (SCC) , [1993] 1 S.C.R 867 and instructed that a driver’s conduct had to amount to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.

[ 6 ] More recently Madam Justice Charron in R. v. Beatty 2008 SCC 5 () , [2008] S.C.J. No. 5 clarified the consideration that a trier of fact should take into account in the analysis of “marked departure”. She pointed out that in paragraph 6, 7 and 8 what the distinction between civil negligence and penal negligence and what is the objective modified test established by her Court’s jurisprudence. She said the following:

6. In my respectful view, the approach advocated by the Crown does not accord with fundamental principles of criminal justice. Unquestionably, conduct which constitutes a departure from the norm expected of a reasonably prudent person forms the basis of both civil and penal negligence. However, it is important not to conflate the civil standard of negligence with the test for penal negligence. Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender’s mental state. The onus lies on the Crown to prove both the actus reus and the mens rea . Moreover, where liability for penal negligence includes potential imprisonment, as is the case under s. 249 of the Criminal Code , the distinction between civil and penal negligence acquires a constitutional dimension.

7. The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm for determining civil negligence. It does so in two important respects. First, there must be “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 suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.

8. Second, unlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. 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 fault lies in the absence of the requisite mental state of care. Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact. This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished.

[ 7 ] I will now summarize briefly the evidence heard from the three Crown witnesses, set out the parties positions on the evidence and then give my analysis and decision.

[ 8 ] Luc Ferland testified that he was present at the scene of the accident that morning. Just like Mr. Oppedisano, he was travelling in a westerly direction on Scott Street, in the curb lane of the two-lane westbound Scott Street. Mr. Oppedisano was in a left hand turning lane (a third lane) that had to be used by vehicles proceeding North on Parkdale Avenue once the vehicles made it through the intersection. He recalled that he had been travelling 60 kilometres per hour and that both him and Mr. Oppedisano had the green light as did the motorcycle travelling in the opposite direction on Scott Street.

[ 9 ] Mr. Ferland remembered that the weather was nice, the pavement was dry and visibility was good that morning. During cross-examination he recalled that he had seen the motorcycle hit Mr. Oppedisano’s car but that he had not seen the motorcycle before the collision. He testified that he immediately parked his car on the other side of the intersection in question. He said that he had first attended to Mr. Laguë, who was lying motionless on the pavement and quickly formed the opinion that Mr. Laguë’s injuries were very serious. Upon opening the door of Mr. Oppedisano’s car, Mr. Oppedisano had said “he was going so fast”.

[ 10 ] Jacob Sincennes, is an accountant who was a rear passenger in a pick-up truck, stopped on Parkdale Avenue waiting to turn East on Scott Street. His attention was drawn to Mr. Oppedisano’s car when he heard the screeching of tires. From the corner of his eye, he saw a motorcycle pass the stop line at the intersection. The motorcycle went down on impact and so did the driver. During cross-examination, he stated that he was not 100% sure of the speed of the motorcycle. His first impression was that the motorcyclist was travelling too fast. While Mr. Sincennes estimated the motorcyclist speed to be between 60 to 80 kilometers per hour at the time of the accident, he agreed that he had formed that estimate after seeing the motorcycle’s tire marks on the road. He gave the impression in his evidence that he was unsure at what speed the motorcycle was travelling.

[ 11 ] Detective Cameron Graham testified as a qualified expert in the area of accident reconstruction. Because of his experience in that field he could interpret the significance of the markings on the road and also the actions of Mr. Oppedisano as he approached the intersection as shown on a video retrieved from the Quickie Store located next to the intersection.

[ 12 ] Detective Graham explained that Scott Street, is flat and straight upon arriving close to the intersection. A left lane opens up to allow motorist who wish to turn left to go Southbound on Parkdale Avenue to do so. That lane is 66.5 meters long. The speed limit is 50 kilometers an hour. There are traffic lights at the intersection.

[ 13 ] Pointing at the photographs taken by the Quickie video camera, Constable Graham pointed out that Mr. Oppedisano did not use the left hand turn lane but stayed in lane two from which he made his left hand turn. That lane, he said was a through lane to continue Westbound on Scott Street. Further, he stated that the rules of the road provide that Mr. Oppedisano’s vehicle had to remain in its assigned lane and move to the left, enter the left turn lane and only when the way is clear and safe then Mr. Oppedisano could execute a left turn.

[ 14 ] From his analysis of the photographs, Constable Graham testified that Mr. Oppedisano did not put on the left turn signal of his vehicle prior to turning left onto Parkdale Avenue. He testified that the motorcycle was travelling eastbound on Scott Street, close to the centre line of the curb lane. He also said that he had measured 11.5 metres of tire marks. However for various reasons, Constable Graham could not establish the motorcyclist’s speed prior to impact and where on the road the motorcycle had been when braking had commenced.

[ 15 ] During cross-examination Detective Graham stated that alcohol was not an issue in this accident and neither was the speed of the Oppedisano vehicle. He also said that from the start of the left turn lane, Mr. Oppedisano would have taken 2 seconds to arrive at the intersection. He confirmed that no engineer was requested to give a study of the accident that would have given the motorcycle’s rate of speed. No testing was done to find out how quickly that type of motorcycle could stop. The motorcycle was in the fourth gear at the time of collision but Detective Graham could not give what the range of speed would be for that type of motorcycle travelling in the fourth of five gears.

CROWN’S POSITION

[ 16 ] Crown Counsel urged me to take in the totality of the evidence of Mr. Oppedisano’s driving to arrive at the conclusion that his driving constituted a marked departure of a prudent driver. Mr. Oppedisano was driving on a street with modest traffic at the commuting hour on a road that is dry, flat and straight. Crown counsel argued that Mr. Oppedisano made his decisions to do his left hand turn 66.5 metres prior to the intersection that would take some 4 seconds to complete.

[ 17 ] Mr. Oppedisano did not follow the rules of the road as stipulated in section 154 of the Highway Traffic Act (HTA). That section causes a motorist to stay within his lane and Mr. Oppedisano did not. He chose to ignore the rule. His attitude was lackadaisical. There was no reason that prevented Mr. Oppedisano from following the rule. Then section 141(5) of the HTA states that you cannot turn left into the path of an oncoming vehicle which Mr. Oppedisano did. Prior to making an unsafe turn, Mr. Oppedisano had not approached the intersection in the lane designated for a left hand turn and moreover, he had failed to signal his left hand turn as required by 142 HTA.

[ 18 ] As a result of breaching the rules of the road, Mr. Oppedisano sprung a left turn on Mr. Laguë. Crown counsel also pointed out that the video shows that Mr. Oppedisano started his turn prior to crossing the stop line. He simply did not afford an opportunity to Mr. Laguë’s approaching motorbike to avoid a collision. That takes Mr. Oppedisano’s manner of driving from a HTA charge to a criminal charge. The actus reus was Mr. Oppedisano’s manner of driving, creating a danger to the public on the road. Crown Counsel maintained that Mr. Oppedisano was either ignorant of the markings on the road or that he wilfully decided not to follow them.

[ 19 ] On the mens rea issue and dealing with an objective assessment, Mr. Oppedisano’s conduct exhibited a marked departure from the conduct of a reasonable person placed in his circumstances. A reasonable motorist would have realized the importance of approaching the intersection from inside the left lane, to signal his left turn and not commence his left turn prior to passing the stop line at the intersection. Mr. Oppedisano failed to live up to the standard expected that is the objective test.

POSITION OF THE ACCUSED

[ 20 ] Contrary to what the jurisprudence tells us, Defence counsel pointed out that dangerous driving accusations are laid because of the consequences resulting from the bad manner of driving. He argued that his way of looking at the consequences was the wrong approach. He cited the decisions of R. v. Beatty that I already referred to and the more recent decision of Cromwell J. in R. v. Roy 2012 SCC 26 () , 2012 S.C.J. No. 26. Cromwell J. said the following in paragraphs 1 and 2 of the decision:

1. Dangerous driving causing death is a serious criminal offence punishable by up to 14 years in prison. Like all criminal offences, it consists of two components: prohibited conduct — operating a motor vehicle in a dangerous manner resulting in death — and a required degree of fault — a marked departure from the standard of care that a reasonable person would observe in all the circumstances. The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence.

2. Defining and applying this fault element is important, but also challenging, given the inherently dangerous nature of driving. Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible. Yet, as the Court put in R. v. Beatty , 2008 SCC 5 , [2008] 1 S.C.R. 49, at para. 34 , “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.” Giving careful attention to the fault element of the offence is essential if we are to avoid making criminals out of the merely careless.

[ 21 ] Defence counsel argued that in this case there is an absence of evidence. The Court was not given a traffic engineer’s report to accurately give the Court a clear picture of what happened. The Court does not know the approximate position of the motorcycle approaching the Parkdale Avenue crossing and no evidence was tendered to compute the motorcyclist’s rate of speed given the physical markings on the road made by the motorcycle trying to stop.

[ 22 ] Defence counsel explained that there is a continuum of driving considerations; it starts with civil negligence, then an improper left hand turn and next by careless driving, both under the HTA, and finally dangerous driving. Dangerous driving should not apply to his client’s manner of driving. He conceded that his client’s left hand turn was objectively in all the circumstances dangerous. The actus reus is established in this case as in the Supreme Court of Canada decisions of R. v. Beatty and R. v. Roy .

[ 23 ] While the dangerousness of Mr. Oppedisano is an important factor in this case, it is not determinative. Defence Counsel pointed out that the consequences of the manner of driving are not what are looked at to determine dangerous driving. Both Justices Charron and Cromwell in R. v. Roy and R. v. Beatty posed two questions:

(1) Could a reasonable person have foreseen and avoided the risk? In this case defence counsel stated that we lack the evidence of where the motorcycle was on the approach to Parkdale Avenue. What was the speed of the motorcycle and when had the motorcyclist begun to brake. The absence of this evidence is important as it prevents us from establishing what a reasonable person would have done in Mr. Oppedisano’s situation.

(2) The second question is, assuming that there was a failure by Mr. Oppedisano to take steps to avoid the risk that a reasonable person would have, is that a “marked departure” of the manner of driving that a prudent driver would have exhibited in the same circumstances.

[ 24 ] To answer that question, Defence counsel read part of paragraph 48 of Charron J. in R. v. Beatty where she said the following:

Nonetheless, as Doherty J.A. aptly remarked in Willock, conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum (para. 31). Although Willock concerned the offence of criminal negligence, an offence which is higher on the continuum of negligent driving, this observation is equally apt with respect to the offence of dangerous operation of a motor vehicle. ( R. v. Willock , (2006) 2006 20679 (ON CA) , 210 C.C.C. (3d) 60 (C.A.).

[ 25 ] Defence counsel concluded that while his client was negligent it is more of a civil negligence than criminal negligence. Defence counsel cited a few decisions based on facts that were similar or worst than this case. He argued that a momentary lapse of judgment that consisted of a bad turn that took a mere two seconds to effect cannot prove his client guilty of dangerous driving. He further argued that I cannot draw on inference beyond a reasonable doubt that Mr. Oppedisano was going too fast and had decided that he was going to make the turn in the intersection anyway. Counsel pointed out that we are missing the usual features of aggressive driving, anger while driving and racing.

[ 26 ] Defence counsel is requesting an acquittal of his client of the dangerous driving charge.

[ 27 ] I now turn to my decision. I think it is instructive to do a quick survey of the jurisprudence to find out how the principles of law, enunciated earlier, apply.

[ 28 ] In R. v. Beatty , the facts involved a driver who made an unsafe turn in a curve on the highway and ploughed straight into oncoming traffic. The consequence was that the three occupants in the oncoming car were killed. The limited evidence that was deduced about the accused’s state of mind suggested that the dangerous conduct was due to a momentary lapse of attention. The Supreme Court said that it was insufficient to support a finding of a marked departure from the standard of care of a reasonably prudent driver. It was negligent driving but that does not necessarily constitute the offence of dangerous driving. The driver was acquitted. I note that only one second had lapsed after the truck had veered onto oncoming traffic. In our case, the evidence was estimated at two seconds.

[ 29 ] In R. v. Roy , a motor home was being driven on a highway where visibility was poor due to foggy conditions. The motorist pulled onto the highway from a side road. The Court called it a simple misjudgement of speed and distance in difficult conditions when the care and attention standard for drivers is heightened. The motor home driver was acquitted of dangerous driving causing death as the facts did not support a reasonable inference that the driver at fault had displayed a marked departure from the standard of care expected of a reasonable person in the same circumstances.

[ 30 ] L. Ricchetti J. in R. v. Harmiz , [2012] O.J. No. 4626 found a truck driver guilty of dangerous driving in a road rage incident. The truck driver had forced the complainant’s vehicle off the road by cutting off her vehicle. He demonstrated a lack of care that a reasonable person would have had in the same circumstances and it was a marked departure from a normal standard of care in driving.

[ 31 ] In R. v. A.D . [2010] O.J. 401264 (Ont. Ct. Justice) a young person was charged with dangerous driving. He had crossed five lanes of traffic at 130 kilometres per hour while traffic was going 115 kilometres per hour. The incident lasted only a few seconds and there was no evidence of negligent driving before the ill advised lane change that caused the accident. The Court was not satisfied that his negligence was at a level that a penal sanction should be imposed.

[ 32 ] As I give my decision in this matter, I note that this is a very sad and tragic case. Mr. Laguë’s brilliant career was snuffed out and his widow is left alone to fight life’s adversities being deprived of the financial and emotional support of a loving spouse.

[ 33 ] Considering all the evidence, and in this case the absence of evidence, I am not persuaded beyond a reasonable doubt that a reasonable driver in the same circumstances as the accused would have appreciated the risk posed by Mr. Oppedisano’s manner of driving. The negligence is not at the level where a penal sanction should be imposed.

[ 34 ] The forbidden acts of Mr. Oppedisano were conceded…”a most improvident left hand turn”. Mr. Oppedisano’s driving, until he approached the intersection to make his left hand turn, was appropriate according to witness Luc Ferland, who was also travelling in a westbound direction on Scott Street that morning and who stopped, following the accident he had witnessed to help in any way he could. Nothing in the conditions of the weather and the road heightened Mr. Oppedisano’s degree of care and attention that morning.

[ 35 ] As stated by Defence counsel, I am not aided in assessing the risk that a prudent and reasonable person in Mr. Oppedisano’s situation would have because there was no evidence:

1. Establish the significance of the motorcycle’s tire marks;

2. To tell me whether the accident victim was close to the intersection, or farther away;

3. Further, to tell me when the motorcyclist started to apply his brakes;

4. And finally, to tell me what was the likely speed of that motorcycle travelling in the fourth gear and how quickly that type of motorcycle can stop.

[ 36 ] I am also not satisfied that the video played in Court showed, without a doubt, that Mr Oppedisano’s left turn signal was activated when he made his left hand turn. The absence of an assessment of speed by both Mr. Oppedisano and Mr. Laguë prevents me from concluding that this accident was caused by wilful blindness or recklessness as opposed to an error of judgment.

[ 37 ] The degree of Mr. Oppedisano’s moral blameworthiness would have been a relevant consideration in sentencing but not, as stated by Charron J. in R. v. Beatty , in the determination of guilt, Mr. Oppedisano’s conduct does not meet the higher threshold that would allow me on that conduct alone to find a blameworthy state of mind.

[ 38 ] For the above reasons the charge is dismissed.

______________________________

Lalonde J.

Released: November 29, 2012

COURT FILE NO.: 11-A8314

DATE : 2012

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN APPLICATN – and – GIUSEPPE OPPEDISANO DEFENDENT Decision Lalonde J.

Released: November 29, 2012