R. v. Layugan, 2015 ONSC 4003

R. v. Layugan, 2015 ONSC 4003

CITATION: R. v. Layugan, 2015 ONSC 4003

COURT FILE NO.: CR-14-40000197-00MO

DATE: 20150619

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

MARLON LAYUGAN Applicant

COUNSEL:

Megan Petrie, for the Crown

Paul Calarco, for the Applicant

HEARD: May 4, 2015

RULING ON CERTIORARI APPLICATION

[On an application to quash orders to stand trial made by Justice N. Kozloff of the Ontario Court of Justice, dated November 1, 2013]

B. P. O’Marra J.

OVERVIEW

1The circumstances that give rise to these charges are tragic.

2The applicant was operating his motor vehicle when he struck a 69-year-old security guard (hereafter “the victim”) outside Fiera Foods, where both were employed. The applicant drove away without stopping or offering assistance despite seeing the injured and helpless victim on the pavement of a laneway that was regularly travelled by other employees and transport trucks. Less than a minute after the collision, the victim, who was still lying motionless on the laneway, was struck again and dragged almost 100 metres to his death by a reversing tractor trailer that was parking on the property.

3The applicant was charged with dangerous driving, failure to stop at the scene of an accident knowing that bodily harm had been caused to another person, and criminal negligence causing death, contrary to ss. 249(4), 252 (1.3) and 220 of the Criminal Code, R.S.C., 1985, c. C-46, respectively.

4The applicant elected trial by judge and jury. A preliminary hearing took place over nine days. The Crown conceded that there was no evidence of dangerous driving but sought committal for the other two offences as well as for the offence of manslaughter, contrary to s. 236(b) of the Criminal Code.

5The presiding justice committed the applicant to stand trial for manslaughter, criminal negligence causing death, and fail to stop knowing that bodily harm had been caused to a person.

6The applicant applies for certiorari on the ground that the preliminary hearing judge committed an error of law amounting to a jurisdictional error by misinterpreting and misapplying the legal test for causation. The defence conceded that there was sufficient evidence to put the applicant on trial for the offence of fail to stop knowing that bodily harm had been caused. The position of the defence at both the preliminary hearing and on this application is that there is no evidence upon which a properly instructed jury, acting reasonably, could convict the applicant of criminal negligence causing death or manslaughter.

7The respondent submits that the preliminary inquiry judge did not make a jurisdictional error and the application should be dismissed.

SUMMARY OF THE EVIDENCE

Events of December 14, 2011

8Shortly after midnight on December 14, 2011, the applicant, who had just completed a shift at Fiera Foods in Toronto, walked with two other employees to their parked vehicles. The applicant was the first to leave. He began to drive southbound down the laneway along the west side of the Fiera Foods building.

9As the applicant drove down the laneway, Igor Tishchenko, who was employed as a driver by another company, was in the process of moving a tractor trailer from the south end of the building to the west side of the laneway on which the applicant was driving. Mr. Tishchenko was reversing the tractor trailer when he observed the lights of the applicant’s vehicle as it travelled southbound down the west laneway. Mr. Tishchenko stopped the tractor trailer to allow the applicant’s vehicle to proceed.

10The victim was employed at Fiera Foods plant as a security guard. He was walking westbound along the south side of the building in the direction of the laneway on which the applicant was driving. At the moment the applicant’s vehicle passed the southwest edge of the building, the victim stepped into his path and was struck.

11Following the impact with the victim, the applicant immediately brought his vehicle to a stop. The victim was lying injured on the pavement. After a few seconds, without exiting his vehicle, the applicant left and drove southbound down the laneway.

12Approximately 15 to 17 seconds later, Mr. Tishchenko resumed the process of reversing the tractor trailer in the direction of the westbound laneway. As he was reversing down the lane, he noticed that the vehicle was not moving properly. Upon exiting his vehicle, he discovered the victim’s body and attempted unsuccessfully to revive him.

13Roughly 60 seconds after leaving the scene, the applicant returned and said words to the effect that Mr. Tishchenko had killed the victim. Shortly thereafter, the applicant left the property without waiting for the police to arrive or informing anyone of the fact that he had initially struck the victim with his vehicle.

The Applicant’s Statement

14The applicant was interviewed by police following the incident. That statement was filed as evidence. He confirmed that he had hit the victim with his vehicle. He stated that after the impact, he observed that the victim was unconscious but alive and moving. He stated that he knew the victim and had spoken to him previously. He had returned to the scene after leaving because he had forgotten his identification card and was concerned for the victim.

Evidence of Igor Tishchenko

15Mr. Tishchenko testified that upon finding the body of the victim beneath his wheel he immediately contacted his supervisor and called for emergency assistance. He attempted unsuccessfully to revive the victim. An individual who appeared to be the applicant arrived on scene and said words to the effect that Mr. Tishchenko had killed the victim.

Evidence of Toronto Police Service Accident Reconstructionist – Eugenia Ambrozaitis-Brown

16This witness provided expert testimony at the preliminary hearing. She testified that the victim would have appeared as a dark silhouette and the driver would likely not have seen him prior to the impact. She further stated that the victim was thrown up on the hood of the applicant’s vehicle and was projected onto the pavement. There appeared to be nothing improper about the speed or manner in which the applicant had been driving his vehicle prior to the impact. She said that the impact appeared to have been a low velocity collision. She described the lighting in the area of the accident as dark and dim.

17The witness stated that the victim, who was wearing dark clothing, was lying on the roadway at the time of the impact with the truck. The victim would not have been visible to Mr. Tishchenko as he reversed. As he was lying on the pavement following the impact with the applicant’s vehicle, the victim was struck by the mud flaps located behind the right-rear passenger side dual wheels of the tractor trailer. He was moved in a northerly direction along the west edge of the west laneway.

Evidence of Forensic Pathologist – Dr. Michael Pickup

18Dr. Pickup conducted the post-mortem examination of the victim. He agreed that the impact between the applicant’s vehicle and the victim was a low velocity collision. He testified that the victim sustained three major injuries:

(1) blunt impact trauma to the head;

(2) grazing and mutilating injuries to the torso, arms and legs, consistent with being dragged and/or pushed along a rough surface; and

(3) compression injuries to the chest and abdomen.

19Dr. Pickup stated that the victim might have sustained the head injuries when he struck the ground after the impact with the applicant’s vehicle. He indicated, however, that the victim’s death resulted from crushing injuries to his torso sustained as he was pushed along the ground by the mud flaps of the tractor trailer. In his opinion, there was no indication that the bruises and lacerations that were potentially attributable to the initial impact would have caused the death. The striking of his head on the pavement following the initial impact may have resulted in a transient loss of consciousness.

Evidence from Other Civilian Witnesses

20Various employees of Fiera Foods, who had initially left the building with the applicant, testified at the preliminary hearing. They stated that they work with the applicant and they were all aware from their own personal observations prior to the incident that tractor trailers were routinely parked along the west side of the laneway on a nightly basis.

Ruling at the Preliminary Hearing

21The presiding justice found that there was evidence of the following:

(1) The victim had stepped into the path of the applicant’s vehicle when he was struck. There was nothing improper in the way the applicant operated his vehicle before the impact. However, he did know that he had struck and knocked down the victim.

(2) The applicant drove away from the victim as he was lying on the pavement and unable to move.

(3) At the time he was struck by the tractor trailer, the victim was in the same position as he was in following the impact with the applicant’s vehicle.

(4) The impact with the tractor trailer resulted in the victim’s death.

(5) It was known by employees of Fiera Foods, including the applicant, that tractor trailers were regularly parked along the laneway where the collision occurred.

(6) A jury could find that the act of leaving the victim injured and helpless was a contributing cause of his death outside the de minimis range.

(7) A jury could find that the unlawful act of failing to render assistance was objectively dangerous and the victim would likely be injured as a result.

(8) It was reasonable to infer that the applicant knew that his two colleagues would likely follow him using the same exit route where the victim was lying injured and helpless as a result of the impact.

(9) Since Mr. Tishchenko saw the headlights of the applicant’s vehicle, it was reasonable to infer that the applicant also saw the illuminated taillights of Mr. Tishchenko’s vehicle as it reversed to allow the applicant to proceed.

22The presiding justice determined that based on a combination of these reasonable inferences a jury could find that it was objectively foreseeable that the victim would be run over where he lay. The risk of bodily harm to the victim by the vehicle of a departing employee or one of the tractor trailers was reasonably foreseeable. Leaving the victim in the roadway in those circumstances was an unlawful act that was objectively dangerous and likely to injure another person. This could reasonably be seen as a significant contributing cause of the victim’s death. On that basis, the justice committed the applicant for trial on the charge of manslaughter.

23The justice also went on to consider the charge of criminal negligence causing death. Based on the same potential findings of fact and reasonable inferences, the presiding justice ruled that a jury could find:

(1) That leaving the victim helpless in the laneway was an act of omission that constituted a breach of a legal duty to remain and offer assistance;

(2) This conduct showed a wanton and reckless disregard for the life and safety of the victim; and

(3) That conduct amounted to a marked and substantial departure from the standard of a reasonable person in the circumstances.

24Based on the above considerations, including the issue of causation, the applicant was committed for trial on the charges of manslaughter and criminal negligence causing death in addition to the fail to remain charge.

Position of the Applicant

25The applicant concedes that the presiding justice correctly stated the test for causation in regard to both manslaughter and criminal negligence in considering whether the acts of the applicant were a contributing cause of death beyond de minimis. He also concedes that the mens rea for manslaughter is at least objective foreseeability of risk of bodily harm which is not transient or trifling and that the act performed must be objectively dangerous.

26The applicant submits the preliminary inquiry judge erred in applying the test for causation based on direct acts of the applicant to indirect or remote acts and failed to apply the doctrine of novus actus interveniens. He submits that, where there is an intervening act, the test to be applied is whether the original, conscious acts of the applicant are so connected with the cause of death that they cannot be considered spent or interrupted by other events which overtake their significance. It is not enough that the acts of the applicant “set the stage” before the intervening act. It is not enough that the applicant’s acts preceded the intervening event.

27The applicant further submits that in addition to factual causation, the court must consider legal causation. This involves consideration of two issues:

(1) Whether the dangerous, unlawful acts of the applicant were a significant contributing cause of the victim’s death? and

(2) Would holding the applicant responsible for the death amount to punishing a morally innocent person?

28The applicant submits that the original contact with the victim was an unavoidable accident. Thus, there was no dangerous, unlawful act committed. The applicant had no control or participation in the subsequent movement of the tractor trailer. Thus, he submits he was not to blame for the victim’s death.

Position of the Respondent

29The respondent submits the following:

(1) The actions of the applicant in failing to stop and offer assistance were objectively dangerous. A reasonable person would inevitably realize that the victim would be subject to the risk of further bodily harm.

(2) There is no requirement in law that the actions of the applicant control or be a party to the actions that ultimately caused the death.

(3) Reasonable foreseeability focuses on the objective foreseeability of the general nature of the intervening act.

(4) The truck driver could not have predicted that the applicant, for whom he waited before reversing in the laneway, had just left a helpless, unconscious man in his path. The actions were closely linked and directly related to the applicant’s actions. The law does not require that the cause of death be the inevitable result of the applicant’s actions.

THE ORDER TO STAND TRIAL

30Section 548 (1) of the Criminal Code provides that when all the evidence has been taken before the justice, he shall:

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence with respect to the same transaction, order the accused to stand trial; or

(b) discharge the accused if, in his opinion on the whole of the evidence, no sufficient case had been made out to put the accused on trial for the offence charged or any other indictable offence with respect to the same transaction.

31The purpose of the preliminary hearing is to ensure that there is sufficient evidence to commit the accused to trial. See R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 14; R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 20.

32If there is sufficient evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit the accused to trial. See United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080.

STANDARD OF REVIEW

33The decision of the preliminary inquiry judge to discharge or commit the accused to trial is not appealable. The decision may be challenged by way of certiorari. The reviewing court should only intervene when a preliminary inquiry judge committed a jurisdictional error. See Sazant, at para. 14.

34The preliminary inquiry judge’s determination of the sufficiency of evidence for committal is entitled to the greatest of deference. Only if there is no evidence on an element of the offence can a reviewing court vacate the committal. See Russell, at para. 48.

35It is a jurisdictional error for a preliminary inquiry judge to commit an accused to trial where there is no evidence on an essential element of the charge. See Skogman v. Regina, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 104; Sazant at paras. 16 and 17.

36An error as to the sufficiency of the evidence is not reviewable on certiorari except where it results in a committal for trial in the absence of any evidence capable of supporting a conviction. Nor is the failure of the justice to explicitly advert to relevant and admissible evidence, whether wrongly excluded or properly admitted, reviewable. See R. v. Deschamplain 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 49.

MANSLAUGHTER AND CRIMINAL NEGLIGENCE CAUSING DEATH

37Culpable homicide in the Criminal Code refers to both manslaughter and criminal negligence causing death.

Section 222(1) of the Criminal Code provides as follows:

(1) a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(5) a person commits culpable homicide when he causes the death of a homicide,

(a) by means of an unlawful act.

Section 219 (1) of the Criminal Code defines criminal negligence as follows:

Everyone is criminally negligent who,

(a) in doing anything, or

(b) in omitting in doing anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

ANALYSIS

38In regard to the manslaughter count, the applicant alleges that the presiding justice failed to apply the proper test for legal causation. In regard to the criminal negligence causing death count he also alleges there was a failure to apply the proper standard of causation. He further submits that there was insufficient evidence related to “wanton and reckless disregard” on that count.

39In determining whether a person can be held responsible for causing death, it must be determined whether the person caused death both in fact and in law. Factual causation demands an inquiry into how the victim came to his or her death, in a medical, mechanical or physical sense, and the contribution of the accused to the victim’s death. Legal (imputable) causation is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. See R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 44-45; R. v. Shilon (2006), 2006 CanLII 41280 (ON CA), 240 CCC (3d) 401, at para. 21 (Ont. C.A.).

40The Supreme Court of Canada addressed the issues of foreseeability and intervening acts related to causation in R. v. Maybin, 2012 SCC 14, [2012] 2 S.C.R. 30, at paras. 28,29,30 and 38:

28 Neither an unforeseeable intervening act nor an independent intervening act is necessarily a sufficient condition to break the chain of legal causation. Similarly, the fact that the intervening act was reasonably foreseeable, or was not an independent act, is not necessarily a sufficient condition to establish legal causation. Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation test articulated in Smithers and confirmed in Nette remains the same: Were the dangerous, unlawful acts of the accused a significant contributing cause of the victim’s death?

29 Depending on the circumstances, assessments of foreseeability or independence may be more or less helpful in determining whether an accused’s unlawful acts were still a significant contributing cause at the time of death. Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent.

30 An intervening act that is reasonably foreseeable will usually not break or rupture the chain of causation so as to relieve the offender of legal responsibility for the unintended result. This approach posits that an accused who undertakes a dangerous act, and in so doing contributes to a death, should bear the risk that other foreseeable acts may intervene and contribute to that death. Because the issue is whether the actions and consequences were reasonably foreseeable prospectively, at the time of the accused’s objectively dangerous and unlawful act, it accords with our notions of moral accountability. This approach addresses the question: Is it fair to attribute the resulting death to the initial actor?

38 For these reasons, I conclude that it is the general nature of the intervening acts and the accompanying risk of harm that needs to be reasonably foreseeable. Legal causation does not require that the accused must objectively foresee the precise future consequences of their conduct. Nor does it assist in addressing moral culpability to require merely that the risk of some non-trivial bodily harm is reasonably foreseeable. Rather, the intervening acts and the ensuing non-trivial harm must be reasonably foreseeable in the sense that the acts and the harm that actually transpired flowed reasonably from the conduct of the appellants. If so, then the accused’s actions may remain a significant contributing cause of death.

41Factual causation is not limited to the direct and immediate cause, nor is it limited to the most significant cause. See R. v. Maybin, at para. 20; R. v. Nette; Smithers v. The Queen, [1978] S.C.R. 506.

42On a “but-for” analysis a jury could reasonably find there was evidence of factual causation. The tight nexus of time and events between the applicant failing to remain and the truck backing up over the helpless victim relates to this issue.

43Is there some evidence on which causation can be legally imputed to the applicant?

44Reasonable foreseeability of harm is relevant in the analysis of legal causation in negligence based offences. The fact that the other driver actually caused the death does not preclude an inquiry as to whether the applicant ought to be held criminally responsible for the death.

45Where conduct is inherently dangerous and carries with it the reasonably foreseeable risk of immediate and substantial harm, the test for legal causation will have been met. See Shilon, at paras. 33 and 38.

46On the evidence presented at the preliminary hearing, it would be open to a jury to find that the conduct of the applicant was not so independent of the act of the truck driver that it was no more than part of the unfolding of events.

47The conduct of the applicant in failing to stop and assist the victim in these circumstances was inherently dangerous. It carried with it the reasonably foreseeable consequence of immediate and substantial harm to the victim. The death of the victim occurred in the ambit of the risk created by the applicant. He ought to have reasonably foreseen such harm.

48The unlawful act of failing to remain in these circumstances along with an evidential and legal basis for causation supports the committal for trial on manslaughter.

49The applicant had a statutory legal duty to remain at the scene of the initial collision. There was significant evidence he failed to do so. For the reasons outlined above, there was an evidential and legal basis for causing the death. Evidence that the applicant knew the perilous situation in which he left the victim would be for a jury to assess in determining the issue of “wanton and reckless disregard.”

RESULT

50The application is dismissed. I am grateful to both counsel for their thorough and helpful submissions.

B. P. O’Marra, J.