R. v. Romano, 2016 ONSC 6107
CITATION: R. v. Romano, 2016 ONSC 6107
COURT FILE NO.: CR-15-30000308-0000
DATE: 20160929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
REMO ROMANO
Defendant
Philip Perlmutter and Mabel Lai, for the Crown
William Mackenzie, for the Defendant
HEARD: September 19, 2016
RULING ON INCLUDED OFFENCE
B. P. O’Marra J.
OVERVIEW
[1] Remo Romano was tried before a jury on the following single count:
Remo Romano stands charged that he, on or about the 12th day of February in the year 2014, at the City of Toronto, in the Toronto Region, did operate a motor vehicle in a manner that was dangerous to the public and thereby caused the death of Nastasha Abogado, contrary to the Criminal Code of Canada.
[2] At the pre-charge conference, the Crown submitted that the included offence of dangerous operation simpliciter should be left with the jury. The defence initially agreed but then submitted it should not be left. After hearing submissions, I ruled that there was no air of reality to the included offence. The jury were instructed that the available verdicts were guilty as charged or not guilty. The trial has now been completed. These are my reasons related to the included offence.
THE FACTS
[3] This was a tragic case. Eighteen-year-old Carla Abogado was crossing St. Clair Avenue East on foot when she was struck and killed by a motor vehicle operated by Remo Romano. He was an on duty police officer driving an unmarked vehicle at the time. He was one of several officers involved in a surveillance detail. Based on formal admissions by counsel and the evidence of Remo Romano, the following important facts were not in dispute throughout the trial:
(i) Detective Constable Romano was the driver and sole occupant of the black 2009 Ford F-150 XLT pick-up truck (“the F-150”) that struck and caused the death of Nastasha (“Carla”) Abogado around 8:19 p.m. on February 12, 2014. This collision took place on St. Clair Ave. East, west of Warden, in the City of Toronto, in the Province of Ontario.
(ii) Nothing about the appearance of the F-150 was capable of identifying it as a police vehicle.
(iii) Carla Abogado was eighteen-years-old on February 12, 2014. She lived with her parents, her brother and her sister at a home at 18 Georgina Gate.
(iv) On February 12, 2014, around 8:14 p.m., she boarded the TTC 70 O’Connor bus, driven by Dean Goode, at Warden subway station. She was headed home from her part-time job.
(v) The bus travelled westbound on St. Clair Ave. E. Around 8:18 p.m., Ms. Abogado got off the bus at the Herron Ave. bus shelter, on the north side of St. Clair Ave. E.
(vi) Ms. Abogado did not make any calls or send any text messages on her cell phone between getting onto the bus and the collision. She had no drugs or alcohol in her system. She did not cross the street at an intersection or crosswalk.
(vii) The F-150 driven by Detective Constable Romano first struck Ms. Abogado below her right knee. The collision caused multiple, non-survivable traumatic injuries, including a compound fracture of the right tibia and fibula (two bones of the lower leg, extending from the knee to the ankle), and extensive rib fractures. Ms. Abogado lost consciousness immediately, and passed away within a very brief period.
(viii) The damage to the F-150 was caused solely by the collision with Ms. Abogado. It is conceded that the F-150 had no mechanical issues, and showed no signs of previous damage or improper operation, or of unsafe wear. It is conceded that the collision was not caused by any issue related to the proper functioning of the F-150.
(ix) No issue is taken with the proper functioning of the traffic signals at Pharmacy Ave. and St. Clair Ave. E.; Herron Ave. and St. Clair Ave. E.; and Warden Ave. and St. Clair Ave. E. It is conceded that the speed limit on St. Clair Ave. E. is 50 km/h west of Herron Ave., and 60 km/h east of Herron Ave.
(x) It is conceded that the F-150 was traveling at 115 km/h at the time of the collision, that Detective Constable Romano was not wearing his seatbelt, that Detective Constable Romano depressed the accelerator pedal throughout the five seconds before the collision, and that Detective Constable Romano did not depress the brake pedal at any point in the five seconds before the collision.
ANALYSIS
[4] Counsel agreed that the jury must be instructed that the Crown was required to prove beyond a reasonable doubt that the driving was a marked departure from what a reasonable, prudent police officer would do in the circumstances. The Crown called an expert witness related to accident reconstruction. Remo Romano testified that he was speeding but felt it was safe to do so bearing in mind the duties he was involved in and the particular road and weather conditions. The Crown also called other witnesses whose evidence related to events leading up to the time of the collision. It is unnecessary to further summarize their evidence for the purposes of this ruling.
[5] The Crown submitted at the pre-charge conference that there was a reasonable view of the evidence that could cause the jury to acquit on dangerous driving causing death and yet convict on dangerous driving. He submitted that the jury could find that Remo Romano was driving in a dangerous manner (at high speed and failing to keep a proper lookout) and yet have a reasonable doubt about the precise manner in which Carla Abogado came into the path of the Romano vehicle. On that basis he posits that the jury could have a reasonable doubt as to whether Remo Romano should be held criminally responsible for the consequences. In support he refers to the decision in R. v. Malkowski, 2015 ONCA 887.
[6] In Malkowski at para. 14, the Court referred to the general principles concerning causation as follows:
- the causation standard in motor vehicle offences involving death is the same standard that applies in cases of culpable homicide, namely that the accused’s conduct be at least a contributing cause of the deceased’s death, outside the de minimis range; the accused’s conduct need not be the sole contributing cause of death, provided it contributed beyond de minimis to that death;
- in deciding whether an accused should be held responsible for causing a death, it needs to be determined whether the accused caused the death, both in fact and in law;
- legal causation is the inquiry into “whether the accused should be held criminally responsible for the consequences that occurred.” Legal causation is “based on concepts of moral responsibility”, and informed by legal considerations, such as the wording of the offence-creating provision and the principles of criminal justice, such as that the morally innocent should not be punished;
- the doctrine of novus actus interveniens or intervening act, is part of the analysis of whether legal causation is established, and whether an accused should be legally accountable for the death;
- in R. v. Maybin, the Supreme Court discussed two different approaches to determining whether an intervening act has broken the chain of causation – i.e. 1.) considering whether the intervening act was “reasonably foreseeable”; or 2.) considering whether the accused’s actions were “effectively overtaken by the more immediate causal action of another party acting independently”. Importantly, the Court noted that these two approaches are only “analytical aids” that may be useful depending on the factual context. They are not new standards of legal causation. The test remains whether the accused’s dangerous and unlawful acts are a significant and contributing cause of the victim’s death.
The principles listed incorporate the Supreme Court of Canada decisions in Smithers v. R., 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488 and R. v. Maybin, 2012 SCC 24.
[7] Justice Watt referred to the jury instruction related to causation in the very recent decision of R. v. Manasseri, 2016 ONCA 703 at para. 190:
In a jury trial, the jury does not and is not instructed to engage in a two-part analysis of whether both factual and legal causation have been established beyond a reasonable doubt. In a single instruction, the trial judge seeks to convey the requisite degree of factual and legal causation by use of the compendious descriptive “significant contributing cause”: Nette, at paras. 46 and 71. This standard remains the same even in cases where it is alleged that some intervening act has fractured the chain of causation: Maybin, at para. 28.
[8] A trial judge is not obliged to instruct a jury on all offences that are as a matter of law included offences. The obligation to instruct on included offences will depend on the evidence led, the issues raised and the positions of the parties. In some cases, an “all or nothing” instruction leaving the jury with only two possible verdicts – guilty or not guilty – is appropriate. R. v. Wong, 2006 CanLII 18516 (ON CA), [2006] O.J. No. 2209 (Ont. C.A.), at para. 11.
[9] Based on the formal admissions and the evidence of Remo Romano, I do not see an air of reality to the included offence of dangerous operation simpliciter. To paraphrase Malkowski at para. 18, even if Carla Abogado’s actions in jaywalking could be characterized as an intervening act the dangerous driving, if proven, remained a significant contributing cause of her death. The notion of legal causation based on moral responsibility will have been met if the jury is satisfied that the driving in question met the criminal standard.
[10] RESULT: the included offence of dangerous operation simpliciter was not left with the jury.
B. P. O’Marra J.
Released: September 29, 2016
CITATION: R. v. Romano, 2016 ONSC 6107
COURT FILE NO.: CR-15-30000308-0000
DATE: 20160929
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
REMO ROMANO
Defendant
RULING ON INCLUDED OFFENCE
B. P. O’Marra, J.
Released: September 29, 2016