R. v. Porto, 2016 ONSC 7353
CITATION: R. v. Porto, 2016 ONSC 7353
COURT FILE NO.: CR-15-3502
DATE: 20161215
Oral Decision: December 15, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Jamie Porto
Accused
Peter Scrutton, for the Crown
Daniel W. Scott, for the Accused
HEARD: November 15, 16, 17 and 18, 2016
REASONS FOR JUDGMENT
thomas j.:
[1] On Friday, October 24, 2014, at 2:11 p.m., the Ontario Provincial Police (O.P.P.) Communications Centre in London received a 911 call from a female involved in a motor vehicle accident in the Town of Lakeshore in Essex County.
[2] At 2:13 p.m., the dispatcher broadcast to O.P.P. units in Essex County that she had a 10-50 P.I. call from a hysterical female who said she needed an ambulance and then the call disconnected. The dispatcher broadcasted the location of the accident. At 2:14 p.m., a second call by dispatch to units responding indicated that the female had reported her face was burning from the airbag. She was still hysterical and the call was disconnected a second time.
[3] A number of O.P.P. units indicated they were responding to the call. Constable Jamie Porto was one of those. Constable Porto was driving a Ford Interceptor O.P.P. cruiser. He was proceeding east on Essex County Road 42. En route to this accident, Constable Porto was involved in a two-vehicle collision on County Road 42 at County Road 31, in the village of St. Joachim, in the Town of Lakeshore.
[4] At issue in this trial is whether Constable Porto’s driving at the time of the accident amounted to dangerous driving as defined by s. 249(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, and whether that driving caused bodily harm to Ryan Coombes who was alone in the second vehicle.
The Evidence
[5] The trial evidence was significantly shortened as a result of counsels’ diligent preparation of an agreed statement of facts. The agreed statement established the evidence mentioned in this section.
[6] A police vehicle like the one operated by Constable Porto has subdued markings and is equipped with emergency lights and sirens. Constable Porto responded to the dispatch by driving his vehicle east on County Road 42, operating the emergency lights and siren.
[7] County Road 42 is a two-lane roadway that runs east-west. The majority of the road is rural highway, with posted speed limits of 80 km/h, except for portions that run through small towns and villages, such as St. Joachim, where the posted speed limit is 50 km/h.
[8] County Road 31 is a two-lane rural road that runs north-south. It intersects County Road 42 to the north in a “T”-intersection. Traffic entering County Road 42 from County Road 31 is controlled by a stop sign.
[9] A “Maximum Speed Begins” sign transitioning traffic from 80 km/h to 50 km/h is located approximately 0.5 km west of the intersection with County Road 31. A posted “50 km/h” speed sign for eastbound traffic on County Road 42 is posted just west of the village, 0.4 km from the intersection at County Road 31.
[10] Ryan Coombes was driving a Volkswagen Passat east on County Road 42, approaching the intersection at County Road 31, when his vehicle was struck by Constable Porto. At the time of the collision, Constable Porto was driving east, left of the centre line, in the westbound lane. At the same time, Ryan Coombes was travelling east and making a left turn northbound onto County Road 31. The O.P.P. vehicle collided with the Passat in the westbound lane of the intersection, with the driver’s side left portion of the police vehicle striking the rear driver’s side left quarter panel of the Coombes vehicle behind the rear wheel.
[11] The police vehicle’s airbag deployed during the collision, causing the vehicle’s Electronic Data Recorder (EDR) to permanently record data prior to impact. The full EDR download is attached to these reasons as Schedule A.
[12] This data establishes that the Ford was travelling 178 km/h from four to five seconds prior to impact, and began to slow by engine braking (releasing the accelerator) from one to four seconds prior to impact. The brakes were deployed at one second before impact and the ABS (anti-lock brakes) engaged at this time. The vehicle had slowed to 133/km at impact. Pre-impact steering wheel angle information was also recorded on the EDR. It establishes that the steering wheel’s angle was relatively constant in the five seconds prior to impact, until 0.4 seconds before impact, indicating an avoidance maneuver after the start of braking and just before impact.
[13] In addition, the evidence established that on the west outskirts of the village, Jamie Porto would have passed an elementary school on the north side of County Road 42, then a decommissioned Catholic church, a rest home and a restaurant along with several residential dwellings, all before reaching the point of impact.
[14] On the south side, there were several residential dwellings with the post office occupying the corner of County Road 42 and southbound County Road 31.
[15] All buildings had at least one driveway leading to County Road 42. All buildings but the school were close to the roadway. There were sidewalks on each side of this road.
[16] In the area of the 50 km/h sign (about the location of the elementary school), Jamie Porto would have passed a school zone sign, a community safety zone sign and two signs indicating construction in the area ahead.
[17] On the day of the collision, the sky was clear and bright, the road was dry and flat and the visibility was very good for several kilometres in each direction. In addition, it is acknowledged that the O.P.P. have no policy in place that restricts the actions of their officers when answering this type of call. Presumably, this is to allow the officers to use their training and good judgment to provide a flexible response.
The Eyewitness Accounts
[18] Darlene Trepanier has lived in St. Joachim for 28 years. She owns and operates the St. Joachim Auto Clinic, a full service gas station at the intersection of County Road 42 and northbound County Road 31. Her business is on the northeast corner of the intersection where the collision occurred. Her husband owns a business right across County Road 42. At the time, they also lived next door to the gas station. She estimated that, on average, her business serves 100 to 150 people each day with the majority of the traffic during the early morning and late afternoon commutes to school and work. This collision happened during the slow part of the day.
[19] On this date, Ms. Trepanier reacted to a bell from the front of her business indicating a potential gas customer. Her gas pumps are very close to County Road 42. Upon attending the front of her station, she saw that a vehicle had pulled through the pumps and parked at the eastern edge of her property. She began to walk toward the vehicle. At that point, her attention was drawn to a noise to her west which she describes as a muffled siren.
[20] In addition, she saw a grey car signalling to make a left turn off County Road 42 to go north on County Road 31. The car might have been stopped or still moving slowly forward. It was signalling a left turn. She saw the police vehicle coming “extremely fast with flashing lights and sirens.” The police vehicle was already in the westbound lane as if to pass the grey car.
[21] Ms. Trepanier anticipated a violent collision when the car turned left in front of the police vehicle and ran the 10 to 15 feet into her station and shut off the power to her gas pumps. She then moved deeper into her building where her mechanic was working and waited for the crash.
[22] Hearing the impact, she called 911 and emerged to see that the heavily damaged grey car had sheared off one of her gas pumps and was sitting perpendicular to County Road 42, wedged between her sign and the concrete island for the pumps. The police vehicle with its front end obliterated had sliced the deck off of a home across County Road 42 and was grounded on the front lawn of the home at the front door to the residence.
[23] Lisa Holmes was a customer of Ms. Trepanier on the date of the collision. Her car was getting new tires and so she decided to go for a walk in the nice weather while she waited. She had her one- and two-year-old daughters with her and she was positioning the youngest in her stroller. All of them were near the front west corner of the station’s lot, near the gas pumps.
[24] Ms. Holmes said she heard the screeching of tires and the revving of an engine indicating it was going fast. She saw the grey car either stopped or moving slowly into its turn. She cannot say if there was a turn signal. At impact, she saw the flashing lights and heard the siren of the police vehicle.
[25] The crash covered her and her children in a wave of shattered glass. She saw the impact had caused the grey car to spin and when it came to rest near the fallen gas pump, she estimates it was as little as five feet from her and her children.
[26] Frank Apollonio was employed by Aecon Construction and was installing new natural gas lines through St. Joachim. Aecon crews were trenching along County Road 42, both west and east of the collision location. They had been there three weeks. It was their work that occasioned the construction signs to be positioned west of the village.
[27] On this Friday afternoon, Mr. Apollonio was digging a trench six to seven feet from the paved surface of County Road 42, near the village post office. He had just shut off his backhoe and was watching his men dig with shovels in the trench. The traffic he described as light.
[28] He heard the police siren and looked to see the police vehicle with its emergency lights activated already in the westbound lane near the school. He described the vehicle’s speed as excessive. He estimated it was travelling 120 km/h in the 50 km/h zone.
[29] When pressed in cross-examination, he suggested that the officer’s speed endangered the workers in his construction zone.
[30] Mr. Apollonio saw the grey car attempting a left turn and described the police vehicle as swerving back into the east bound lane at the last second in an attempt to miss the turning car, its brake lights illuminating just before the crash.
[31] He suggested the officer was “going so fast it is hard to believe the kid [in the grey car] would have seen him.”
[32] Stephen Ellerbeck was a passenger in the car that had pulled through Darlene Trepanier’s gas pumps. He stepped out of his vehicle and said he could hear the police siren and see the flashing lights on the west outskirts of town, perhaps half a kilometre from his location.
[33] He could see the construction workers. He could see the grey car. He believed it was stopped in the intersection. He assumed it was there waiting for the police vehicle to go by. It is Mr. Ellerbeck’s evidence that the grey car started to make a slow left turn into the path of the police vehicle and it was then that he saw its left turn signal.
[34] He estimates the police speed to be 100 km/h and said that the officer did his best to avoid the collision.
[35] Before impact, Mr. Ellerbeck re-entered his vehicle for protection as he saw the inevitability of the collision.
Police Evidence
[36] Peter Marrocco is an O.P.P. constable with 10 years of experience at the time of this incident. He was on duty on this Friday afternoon when he heard a general broadcast that units were needed to respond to a 10-50 P.I. at a location east of St. Joachim and just south of Highway 401.
[37] Constable Marrocco said the nature of the call indicated a motor vehicle accident with a personal injury and that it was a priority one call. It was his evidence officers were to respond to the scene as fast as they could, as a few seconds could make the difference between life and death. He did agree that the response should be as fast as they could respond safely. That response would include the officers driving as fast as possible while scanning the road for any potential hazards. He acknowledged that he had seen civilian drivers react differently when confronted with an emergency vehicle approaching them with lights and sirens activated.
[38] He knew from the radio communication that a Leamington unit and a Lakeshore unit were responding. He headed in that direction himself. It was his evidence that the radio call had indicated the victim in the accident had made the 911 call and indicated her face was on fire. He stressed he viewed this as a response to a serious life threatening accident.
[39] Daniel Pillon had been an O.P.P. constable for eight years as of the date of this collision. He was operating the Leamington O.P.P. unit that responded to the call from dispatch. He was just outside the Town of Leamington when he received the accident call and he recalled hearing that the victim’s face was on fire and has no recollection of hearing that her face was “burning from the airbag.” It is Constable Pillon’s evidence that he responded by driving through various speed zones ranging from 50 to 80 km/h at 190 to 200 km/h. He testified that he could not be exact about his speed, gauging it rather from wind and engine noise, as he could not take his eyes off the road to look at his speedometer.
[40] Constable Pillon said this was his usual reaction to a serious call. He would proceed with lights and siren while scanning the road ahead for potential hazards. He said he cannot lose focus from the roadway as, at that speed, anything could happen in a split second. He acknowledged that in some areas, hazards were more foreseeable than in others. He also acknowledged that people react differently to his emergency response and he agreed that he could not count only on his lights and siren as drivers are at times distracted or simply cannot hear him with their windows up or radio on.
[41] Constable Pillon said he was trying to get to this accident scene as fast as he could safely and that he had been trained that public safety was paramount. He, in fact, was the first officer on the scene and determined that the 911 caller was not seriously injured and observed her face was red from the impact of the air bag in her vehicle.
The Expert
[42] I qualified Kenneth Iliadis as an expert in accident reconstruction. His importance to this trial was diminished by the accepted accuracy of the EDR download.
[43] He did pinpoint the point of impact on the roadway as a few feet from the centre line of County Road 42 in the westbound lane of the highway. He determined that the police vehicle impacted the grey Volkswagen Passat behind the left rear wheel, tearing off the corner of the car and striking so hard that the name on the cruiser’s push bar was imprinted into the sheet metal of the Volkswagen.
[44] In addition, Mr. Iliadis provided time/distance calculations for the police vehicle. In summary, at four seconds before the crash, the police vehicle was travelling 178 km/h and was 190 metres from the point of impact, or about in front of the elementary school. At three seconds before impact, it was travelling 172 km/h and at the church, 140 metres from impact. At one second before impact, it was 44 metres from the grey Volkswagen in the area of the home just west of the intersection and still travelling at 172 km/h.
[45] It was Mr. Iliadis’ evidence that a passenger car travelling on flat, dry pavement with the brake pedal fully depressed would, on average, need 156 metres to stop when travelling at 178 km/h.
Coombes's Evidence
[46] Ryan Coombes was the driver of the grey Volkswagen Passat. He was 19 in October 2014 and had been licensed to drive for about one year and held a G2 licence. He was living in St. Joachim on County Road 31 just north of County Road 42 and he was returning home from dropping off a movie rental in Belle River, a town just west of St. Joachim.
[47] Mr. Coombes said he slowed to 50 km/h as he entered St. Joachim and put on his left turn signal well in advance of the intersection, perhaps in the area of the church. He was checking to see if he could make his turn safely and looking ahead as well as in rear view mirror and noted he saw nothing behind him. He said his windows were up and he was listening to the radio but it was not loud. He had been through this stretch of road hundreds of times before.
[48] He started to make his turn and recalls nothing more of the accident until someone was saying “are you alright.” He never saw the police vehicle, never heard the siren and never saw the flashing lights.
[49] Mr. Coombes was taken to the hospital where he was diagnosed with two cracked ribs and a concussion. He attended physiotherapy for a number of months. The fact that his injuries amounted to “bodily harm” is not contested.
Porto’s Evidence
[50] The accused, Jamie Porto, gave evidence. At the time of this collision, he had been an O.P.P. constable for seven years and had been stationed in Lakeshore for four years. He drove through St. Joachim every shift, in total likely hundreds of times. He was familiar with all the residences, businesses and community buildings.
[51] When Constable Porto received the call from dispatch, he was in the Lakeshore detachment office in Belle River. He proceeded out of the town and onto County Road 42 heading east with lights and siren on. He knew this accident was a code one priority and the location was an area that had seen a number of serious collisions in the past. He drove very quickly out of town and accelerated on County Road 42. He passed two trucks and two cars pulled over on the westbound lane. This opened up the road ahead of him. He was then moving very quickly. He testified he could see perhaps two kilometres ahead as the road was flat and visibility clear. He said it was at this time he heard the second dispatch call and heard that the victim’s face was on fire. He recalled nothing of the mention of her airbag burning her face.
[52] Constable Porto testified that he was scanning left and right for hazards but he was unconcerned as he saw nothing. The road seemed open to him. He thought he could get through St. Joachim in ten seconds and he was not about to waste 30 seconds in response to this call.
[53] He was aware of all the signs upon entering St. Joachim. He was aware of the construction as they had been working in the village for three weeks.
[54] Constable Porto testified that County Road 42 is wide through St. Joachim with space for parking on each side which, at the time, was free of cars. He knew it was early afternoon and the elementary school would still be in session.
[55] When Constable Porto reached the school area, he says he saw Ryan Coombes vehicle about 200 metres ahead. He testified that it looked parked and he assumed it was waiting for him to pass. He moved into the westbound lane to pass Mr. Coombes. If Mr. Coombes’s turn signal was on, he did not see it.
[56] It is clear from the expert evidence that at the point of seeing Mr. Coombes, Constable Porto was only four seconds from impact and travelling at 178 km/h. He testified that he was surprised he was going that fast but could not look at his speedometer and focus on the road ahead. He acknowledged that he did not see the construction workers, Ms. Holmes and her children, or the Ellerbeck vehicle in the gas station. He acknowledged that on a Friday afternoon, it was foreseeable that people would be out and about in St. Joachim but he saw no hazards obstructing his path through the village.
[57] When Constable Porto saw Ryan Coombes moving into his left turn, he applied the brake hard and turned back to the right in an attempt to ensure the impact would not be to Coombes’s driver’s door.
[58] It is Constable Porto’s position that the actions of Mr. Coombes caused the accident and that his speed had nothing to do with it.
Analysis
[59] There are statutory references that are of significance in this decision.
[60] Dangerous driving is defined in s. 249(1) of the Criminal Code as follows:
Everyone commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place…
[61] Police vehicles are exempted from regulated speed limits by s. 128(13) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which says the following:
The speed limits prescribed under this section or any regulation or by-law passed under this section do not apply to,
(b) a police department vehicle being used in the lawful performance of a police officer’s duties; or ….
[62] Section 159(1)(a) of the Highway Traffic Act directs the responsibility of the driver of a vehicle confronted by a police vehicle exhibiting sirens and flashing lights:
The driver of a vehicle, upon the approach of a police department vehicle with its bell or siren sounding or with its lamp producing intermittent flashes of red light or red and blue light, or upon the approach of an ambulance, fire department vehicle or public utility emergency vehicle with its bell or siren sounding or its lamp producing intermittent flashes of red light, shall immediately bring such vehicle to a standstill,
(a) as near as is practicable to the right-hand curb or edge of the roadway and parallel therewith and clear of any intersection; ….
[63] Finally, s. 214.1(1) of the Highway Traffic Act makes provisions for a community safety zone:
The council of a municipality may by by-law designate a part of a highway under its jurisdiction as a community safety zone if, in the council’s opinion, public safety is of special concern on that part of the highway.
[64] The fault requirements for s. 249(1) are discussed in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 and R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60.
[65] Those cases stress the importance of isolating the actus reus from the mens rea components of the offence and of being vigilant to the potential of one analysis leaking into the other. Further, for a finding of dangerous driving, there needs to be a recognition of a significant fault element which would take the event from being an act of civil negligence to an act deserving of criminal punishment (Beatty, at paras. 34-35; Roy, at para. 32). That fault element is found in the statutory language demanding a marked departure from that of a reasonable driver in the accused’s circumstances.
[66] In Roy, at paras. 34, 36, 38 and 40 Cromwell J. discussed the analysis necessary to identify both the actus reus and mens rea of the offence:
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. As Charron J. put it, at para. 46 of Beatty, “The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving” (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.
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). It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.
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).
Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. [Emphasis in original.]
[67] In this prosecution, I must recognize a further factor in the mens rea analysis. Jamie Porto was a police constable driving in the course of his duty responding to a serious emergency. This scenario was discussed in the decision of the Court of Appeal in R. v. Blackwell (1994), 1994 CanLII 1069 (ON CA), 29 C.R. (4th) 376 (Ont. C.A.). There, the court considered an appeal from the conviction of a police officer for the offence of dangerous driving causing death. The accused officer struck another vehicle killing the driver while responding to a life-threatening event. The appeal centred on the appropriateness of the trial judge holding the
officer to a high standard of care. At paras. 5 and 6, the court said the following:
Accepting as we do, the principle cited, it nevertheless appears to us that once the appellant responded to a Code 3 call which permitted him to drive in a manner normally prohibited to any driver, including a police officer, then he was engaging in an activity that imposed upon him “an elevated de facto standard of care”: see Creighton, supra, at page 392.
It is our view that, read as a whole, the reasons of the trial judge merely reflect his conclusion that a police officer who engages in the activity described in the evidence is held to an elevated standard of care consistent with the conditions of his inherently more dangerous driving conduct.
[68] As to the evidence of the actus reus in this matter, the EDR readout confirms the speed of Constable Porto’s vehicle for the five seconds immediately preceding the collision with Mr. Coombes’s Volkswagen. He passed the school in the 50 km/h zone at 178 km/h. His speed had decreased to 172 km/h in the next four seconds when he was 44 metres from impact. The speed at impact was 133 km/h. There is no dispute as to the accuracy of these readings.
[69] The defence in argument conceded that the actus reus of dangerous driving had been satisfied. The submission being that the speed of 178 km/h in a 50 km/h zone was objectively dangerous to the public in all the circumstances.
[70] In some circumstances, excessive speed may be enough to constitute dangerous driving (R. v. Richards (2003), 2003 CanLII 48437 (ON CA), 174 C.C.C. (3d) 154 (Ont. C.A.); R. v. M. (M.K.) (1998), 1998 CanLII 1324 (ON CA), 35 M.V.R. (3d) 319 (Ont. C.A.)).
[71] While agreeing that the speeding was dangerous, the Crown urges me to remember that I am required to make a meaningful inquiry into the manner of driving, one that does not focus on the twisted mass of metal that became the ultimate result of the collision.
[72] I am required to expand my examination beyond speed to consider its context. Constable Porto entered a small village at 2:00 p.m. on a sunny fall Friday afternoon. He crossed into the 50 km/h zone, travelling 178 km/h. He passed a sign alerting him to the 50 km/h zone, a school sign, a 50 km/h sign, two construction signs, and a sign alerting him to a community safety zone. He passed an elementary school, a church, a post office, a rest home, a restaurant and private residences. There were sidewalks and driveways leading to the buildings, which were close to the road. He encountered two intersections, one for County Road 31 south and one for County Road 31 north, the latter being the location of the collision. At that location, there was a full service gas station with gas pumps close to the road. This area was not new to Constable Porto – he had been assigned here for four years. He had been through St. Joachim hundreds of times before.
[73] Constable Porto recognized that Ryan Coombes’s vehicle obstructed his path eastward through St. Joachim. He said he saw Coombes’s vehicle from about 200 metres away (or about the elementary school). At that point, he moved into the westbound lane to pass Coombes’s vehicle. This is consistent with the evidence of the Aecon worker, Mr. Apollonio.
[74] The speed of Constable Porto’s police vehicle in this residential area amounted to driving that endangered the public and, as such, it was dangerous.
[75] The defence argues that although the driving was dangerous, I must, at the very least, have a reasonable doubt as to whether Constable Porto’s conduct amounted to a marked departure from the standard of care which a reasonable police officer would have exercised in the same circumstances. I am reminded that this officer was responding to a potential life-threatening call. A call where Constable Porto and other testifying officers suggested a few seconds could make a real difference in the survival of the injured caller.
[76] I am reminded as well that Constables Marrocco and Pillon endorsed the actions of this accused officer. Constable Pillon testified he was travelling 190-200 km/h responding to the same call. While all officers, including Porto, agreed they had to travel as fast as they could safely, all clearly reached the same conclusion that this collision was the result of Ryan Coombes making an unadvised and illegal left turn into Porto’s path when he should have pulled over to the right and stopped. There was nothing wrong with Jamie Porto’s speed.
[77] I disagree.
[78] Constable Porto testified that he was scanning the roadway ahead for hazards, looking forward, to the right and to the left. He could not afford to look at his speedometer to confirm his speed as that would mean a loss of focus. He was, in fact, surprised to learn how fast he was actually travelling but clearly the number was not of concern to him. He felt it was his duty to make it through St. Joachim in the ten seconds he estimated it would take. He was not about to waste 20 or 30 seconds by slowing down.
[79] He knew of all the signs he flashed past on his way into the village. He was aware of all the businesses, institutions and residences he would encounter along the way. He had been through St. Joachim hundreds of times before. He described a sleepy little village. He felt little reason to adjust his driving in all the circumstances. But his scanning did not recognize the construction workers, including Mr. Apollonio, the Ellerbeck vehicle, Ms. Trepanier or Ms. Holmes and her two small children. He did not recognize Ryan Coombes left turn signal. This is not surprising given his rate of speed. Nor is it surprising that he could not react to what the witnesses described as Mr. Coombes’ slow left turn.
[80] Counsel have suggested that Jamie Porto’s credibility is not in issue here and I agree. I accept his evidence but for his conclusion. He was articulate and straightforward. His evidence, however, does little to assist him. I accept as a fact the speed and the data downloaded from the police vehicle’s EDR. I find as a fact that while travelling at 178 km/h, Constable Porto recognized the Coombes vehicle either slowed or stopped at the intersection ahead. He saw the vehicle approximately 200 metres away while Porto was passing the elementary school. He immediately moved into the westbound lane to pass, assuming Coombes was stationary and aware of his approach.
[81] I find that Ryan Coombes’s left turn signal light was flashing, consistent with the testimony of Trepanier and Coombes which testimony I prefer over that of Ellerback.
[82] I find, as well, that when confronted with a turning vehicle ahead of him, he reacted as best he could in the circumstances and braked hard, .5 seconds from impact. He attempted to steer back into his own lane to avoid Coombes. He failed to do so resulting in Coombes being driven through the Trepanier gas pump and in Porto crossing front lawns and into a home across County Road 42.
[83] Both Coombes and Porto were injured but, miraculously, not seriously. Lisa Holmes and her children only had to shake the glass out of their clothing and the stroller.
[84] The road at this intersection was flat, the lines of sight clear. Ryan Coombes was required by law to pull off to the right when aware of Constable Porto’s vehicle approaching. He was required by law to ensure he could make his left hand turn in safety. I accept that he never saw the police vehicle. I also find it was there to be seen. I recognize, as well, that he had his radio on and his windows up. I reflect on the evidence of Frank Apollonio. He said the officer was “going so fast it’s hard to believe the kid would have seen him.” The failures of Ryan Coombes do not excuse Jamie Porto’s conduct.
[85] In considering the facts presented here, I find certain similarities in the recent decision of R. v. Truchon, 2016 QCCA 1396, of the Quebec Court of Appeal. Mr. Truchon appealed his conviction for dangerous driving causing death and bodily harm. He encountered a vehicle ahead of him on the roadway signalling a right turn. Truchon accelerated to 97 km/h in a 50 km/h zone and attempted to pass. The vehicle ahead did not turn right but attempted a U-turn to its left. The collision killed the driver of the second vehicle and injured the passenger. Truchon was convicted. The Quebec Court of Appeal denied his appeal finding that his excessive speed led to the accident. They agreed with the trial judge that Truchon knew he was speeding, but chose not to look at his speedometer. He was driving in the middle of the roadway towards an intersection in a residential area. Diligent drivers would have been more attentive. They agreed he breached the standard of care imposed on a reasonable person in his circumstances.
[86] The cases examining the mens rea element of dangerous driving explore the concept of foreseeability. Would the reasonable police officer held to his elevated standard of care while driving dangerously have foreseen the risks that confronted him and taken steps to avoid the risk (Blackwell, at para. 8; R. v. Kwak, 2016 ONCJ 613)? Yes.
[87] All the police evidence, including that of the accused, confirmed the view that civilian drivers react differently when faced with a speeding emergency vehicle. Most pull over to the right as required but some freeze in place. Police officers must, therefore, anticipate the unexpected.
[88] Constable Porto should have foreseen the dangers that his travel at a speed three and a half times the legal limit posed to this village. There were potential dangers before he ever encountered Ryan Coombes vehicle. As to the collision itself, it was foreseen by the civilian eyewitnesses, if not by Jamie Porto.
[89] Darlene Trepanier recognized the inevitable and had enough time to run inside her shop and shut off the power to her gas pumps before moving deeper into the building for protection. Stephen Ellerbeck got back into his vehicle to protect himself.
[90] Constable Porto should have foreseen the danger posed by Mr. Coombes’s vehicle. At the speed he was travelling, he should have realized that he had no time to react if he guessed wrong. I find that the reasonable police officer in these circumstances would have reduced his speed dramatically and maintained his eastbound lane until he was sure of the intentions of Ryan Coombes. The failure to reduce his speed and proceed to pass at this intersection in the middle of the village amounted to a marked departure from the standard of care of a reasonable police officer.
[91] The injuries to Ryan Coombes, as I have determined, amounted to bodily harm. The evidence is overwhelming that the driving of Constable Porto was a significant contributing cause of Ryan Coombes’s injuries (R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488; R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at paras. 13-17).
[92] I have reached this conclusion recognizing the skill and dedication of police officers in this province. They are fixed with significant responsibilities and broad powers. All of us rely upon them to fulfil their oaths and to come to our assistance, if necessary. But when these responsibilities take them, even momentarily, into conflict with the criminal law, the law must prevail and be applied to them just as it must be to all members of society.
[93] While not perhaps necessary in all these circumstances, I would say this. Leaving aside the violent collision with Ryan Coombes’s vehicle and the resulting injuries, I would have found Constable Porto guilty of dangerous driving at the moment he rocketed past Frank Apollonio and passed in front of the elementary school at 178 km/h in a 50 km/h zone.
[94] For these reasons, I find Jamie Porto guilty of dangerous driving causing bodily harm to Ryan Coombes.
Original signed by Bruce Thomas
Bruce Thomas
Justice
Released: Oral Decision – December 15, 2016
SCHEDULE “A”
Pre-Crash Data -5 to 0 sec [2 samples/sec] (First Record, table 1 of 2)
| Times (sec) | Speed, Vehicle Indicated (MPH [km/h]) | Accelerator Pedal, % Full | Service Brake, On/Off | Engine RPM | ABS Activity (Engaged, Non-Engaged) | Brake Powertrain Torque Request |
|---|---|---|---|---|---|---|
| -5.0 | 111 [178] | 46.5 | Off | 3,488 | non-engaged | No |
| -4.5 | 111 [178] | 52.4 | Off | 3,430 | non-engaged | No |
| -4.0 | 111 [178] | 0.0 | Off | 3,410 | non-engaged | No |
| -3.5 | 109 [176] | 0.0 | Off | 3,376 | non-engaged | No |
| -3.0 | 109 [176] | 0.0 | Off | 3,370 | non-engaged | No |
| -2.5 | 108 [174] | 0.0 | Off | 3,342 | non-engaged | No |
| -2.0 | 107 [173] | 14.8 | Off | 3,334 | non-engaged | No |
| -1.5 | 107 [172] | 13.7 | Off | 3,306 | non-engaged | No |
| -1.0 | 107 [172] | 0.0 | Off | 3,294 | non-engaged | No |
| -0.5 | 97 [156] | 0.0 | On | 2,982 | engaged | No |
| 0.0 | 83 [133] | 0.0 | On | 2,666 | engaged | No |
CITATION: R. v. Porto, 2016 ONSC 7353
COURT FILE NO.: CR-15-3502
DATE: 20161215
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Jamie Porto
REASONS FOR JUDGMENT
Thomas J.
Released: Oral Decision: December 15, 2016