Court File and Parties

COURT FILE NO.: CR-20-10764 DATE: 20231120 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – GIANMARCO DI LUCIANO Defendant

Counsel: Philip Hsiung for the Crown Michael Lacy and Sara Little for Mr. Di Luciano

HEARD: November 20, 2023

RULING ON directed verdict APPLICATION

C. BOSWELL J.

The Application

[1] Mr. Di Luciano is on trial. He faces two counts of dangerous operation of a motor vehicle causing bodily harm, one count of dangerous operation causing death, two counts of impaired operation of a motor vehicle causing bodily harm and one count of impaired operation causing death.

[2] The Crown’s case is in. Mr. Di Luciano applies for a directed verdict on each of the four cause bodily harm counts.

The Collision

[3] Just before 11:00 p.m. on Christmas Day 2019, a black Toyota Sequoia SUV, travelling eastbound on Major MacKenzie Drive, entered the intersection where Major MacKenzie crosses Fossil Hill Road in Vaughan. The Toyota collided in the intersection with a Hyundai Sante Fe SUV waiting to turn left from Fossil Hill Road into the westbound lanes of Major MacKenzie Drive. Both vehicles sustained significant damage.

[4] The Crown alleges that Mr. Di Luciano was driving the Toyota and that does not appear to be a disputed issue. The Crown also alleges that Mr. Di Luciano was both impaired and driving in a manner dangerous to the public. Those allegations are very much in dispute.

[5] There were three occupants of the Sante Fe: Yardali and Clarice Abdulla and their adult son, Ian Abdulla. Clarice Abdulla died in the hospital a month after the collision. There is no dispute that she suffered bodily harm as a result of that collision.

[6] The Crown alleges that both Yardali and Ian Abdulla also suffered bodily harm as a result of the collision. Both testified about soft tissue injuries they suffered. Ian Abdulla also testified about the psychological sequalae he has experienced post-collision. I will outline their evidence more fully below. Defence counsel do not accept that their evidence is capable of establishing any of the cause bodily harm offences.

The Legal Framework

[7] Directed verdict applications engage a well-settled analytical framework conventionally known as the “Shephard” test. It gets its name from United States of America v. Shephard, [1977] 2 S.C.R. 1067, where Ritchie J held that, where a request is made to withdraw a charge from the jury, the trial judge must determine:

…whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The “justice”, in accordance with this principle, is…required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction. (See p. 1080).

[8] The Shephard test requires that the Crown adduce some evidence of culpability for every essential element of the crime. See R. v. Kirkpatrick, 2022 SCC 33, at para. 16. It also requires that the trial judge accept the evidence adduced by the Crown as proven. The question is whether that evidence, assuming it is believed, would justify a conviction. See Kirkpatrick, at para. 17.

The Parties’ Positions

[9] Defence counsel submit that the Crown has failed to adduce evidence capable of establishing each of the essential elements of dangerous operation causing bodily harm and impaired operation causing bodily harm. More particularly:

(a) They assert that causing bodily harm offences require the Crown to establish an objective foreseeability of injury that is neither trifling nor transitory. See R. v. Nurse (1993), 83 C.C.C. (3d) 546 (Ont. C.A.) at p. 555; and see R. v. Theriault, 2020 ONSC 5725, at para. 23. They further assert that psychological harm, of the nature asserted by Ian Abdulla, cannot, as a matter of law, be objectively foreseeable in driving offences; and,

(b) They assert that the self-reports of Yardali and Ian Abdulla about their soft tissue injuries are insufficient to support a finding that the collision caused either of them bodily harm.

[10] In the result, defence counsel seek a directed verdict of acquittal on all of the cause bodily harm counts relating to Yardali and Ian Abdulla. They ask that the court leave only counts one (dangerous operation causing death) and four (impaired operation causing death) for the jury to consider.

[11] Crown counsel agrees that Ian Abdulla’s psychological injuries are not capable of constituting bodily harm in driving-related offences.

[12] The Crown submits, however, that there is no requirement that it tender expert evidence to support the injuries suffered by Yardali and Ian Abdulla. The Crown contends that their self-reports, if accepted by the jury, are sufficient to make out the cause bodily harm offences. In the result, all six counts should be left with the jury to consider.

Discussion

[13] To establish the offence of dangerous operation of a motor vehicle causing bodily harm, Crown counsel must prove each of the following essential elements to the reasonable doubt standard:

(i) That Mr. Di Luciano operated a motor vehicle;

(ii) That Mr. Di Luciano’s operation of the motor vehicle was dangerous to the public; and,

(iii) That Mr. Di Luciano’s operation of the motor vehicle caused bodily harm to Ian Abdulla (count 2) and Yardali Abdulla (count 3).

[14] To establish Mr. Di Luciano’s guilt for the offence of impaired operation causing bodily harm, the Crown must prove each of the following essential elements beyond a reasonable doubt:

(i) That Mr. Di Luciano operated a motor vehicle;

(ii) That Mr. Di Luciano intended to operate a motor vehicle after consuming alcohol;

(iii) That Mr. Di Luciano’s ability to operate a motor vehicle was impaired by alcohol; and,

(iv) That Mr. Di Luciano’s impaired ability to operate a motor vehicle caused bodily harm.

[15] “Bodily harm” is defined in s. 2 of the Criminal Code as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.”

[16] Defence counsel argue that dangerous operation causing bodily harm and impaired operation causing bodily harm each require the Crown to establish that the risk of bodily harm was objectively foreseeable. In support of their position, defence counsel cited the Nurse and Theriault decisions, both of which involved assault-based offences. Counsel advised that they were unable to locate any cases involving driving offences where courts have imposed the objective foreseeability requirement, but they argue that there is no reason in principle not to impose that requirement in any cause bodily harm offences, including driving-related offences.

[17] Crown counsel expressed considerably less confidence that objective foreseeability of bodily harm is an element that the Crown must prove in either dangerous operation causing bodily harm offences or impaired operation causing bodily harm offences. He referred the court to the decision of the Court of Appeal in R. v. K.L., 2009 ONCA 141, where Watt J.A. said, in the context of an alleged offence of dangerous driving causing death, that foreseeability of death or injury was not an issue – that the fatality was unanticipated or an unlikely result of the appellant’s driving was not a defence. See para. 20.

[18] Crown counsel suggested that the law appears, however, to be somewhat unsettled, citing another Court of Appeal case, R. v. Shilon, [2006] O.J. No. 4896. There, in the context of an alleged offence of criminal negligence causing death, Gillese J.A. held, at para. 33:

Reasonable forseeability of harm, it seems to me, is relevant in the analysis of legal causation in negligence based offences…

[19] In my view, K.L. is a correct statement of the law. Shilon is reconcilable with it.

[20] In R. v. Creighton, [1993] 3 S.C.R. 3, the Supreme Court established the fault element with respect to unlawful act manslaughter. In the course of his reasons, former Chief Justice Lamer addressed whether it is constitutionally necessary, in every case, for the Crown to prove a mental element extending to the consequences of unlawful conduct. He found that it is not, saying, at paras. 27-28:

27 In [DeSousa [, [1992] 2 S.C.R. 944]](https://www.canlii.org/en/ca/scc/doc/1992/1992canlii80/1992canlii80.html), while Sopinka J. found the offence of unlawfully causing bodily harm to require proof of objective foresight of the risk of bodily harm, he observed that there is no constitutional requirement that, in every case, it is necessary to prove a mental element extending to the consequences of unlawful conduct. With these comments I agree, for the reasons I shall now elaborate. I am of the view that while there is a general constitutional requirement that a mental element must relate to the consequences of an underlying act where an offence is structured in that fashion, the existence of that mental element may be established in one of two ways. First, for offences where a consequence forms the essence of an offence, such that it can be said that the pith and substance of the offence includes a particular consequence, as is the case with death in the offence of unlawful act manslaughter and with bodily harm in the offence of unlawfully causing bodily harm, a fault element must be demonstrated beyond a reasonable doubt in relation to that consequence. Secondly, for offences where a consequence forms part of the actus reus of an offence, but where the essence of the offence is conduct which is inherently risky to life or limb, such offences are therefore presumed to involve objective foresight of the risk. In other words, proof of the accused having engaged in prohibited conduct which is such that any reasonable person would inevitably have foreseen the risk involved will serve as a substitute for objective foresight, relieving the prosecution from having to introduce additional evidence to prove the existence of such foresight…

28 Examples of the class of offences where a substituted element for proof of foreseeability will satisfy s. 7 of the Charter are few, but would include offences such as impaired driving causing bodily harm (s. 255(2)), impaired driving causing death (s. 255(3)), dangerous operation causing bodily harm (s. 249(3)) and dangerous operation causing death (s. 249(4)). What these offences have in common is that the moral blameworthiness of the offence stems from the conduct of driving a car in a fashion which creates a high risk of injury. Whether such an injury leads to bodily harm or death will increase the seriousness of the punishment that will flow from a conviction, but the result does not alter the essence of the moral blameworthiness being punished.

[21] I conclude, from Creighton and K.L., that it is not necessary for the Crown to establish objective foreseeability of bodily harm in relation to either the offences of dangerous operation causing bodily harm or impaired operation causing bodily harm. Shilon is reconcilable, in my view, on the basis that it does not purport to impose such a requirement on the Crown. Instead, to the extent it raises the issue of objective foreseeability of harm, it does so only in the context of the determination of causation.

[22] Having said all of that, I do not consider the presence or absence of a requirement to establish the objective foreseeability of bodily harm to be a significant factor in determining the outcome of the motion for a directed verdict. It was offered by defence counsel as an analytical route to the elimination of psychological injury as an element of “bodily harm”. Defence counsel contend that, as a matter of law, psychological injury cannot form the basis for criminal liability in negligence-based offences. In their submission, while the risk of physical injury may be reasonably foreseeable, the risk of psychological injury is not. I understand their argument to essentially be that interpreting the term, “bodily harm” to include psychological injury or distress in negligence-based offences, would set the bar too low for criminal culpability.

[23] I tend to be of the view that the term, “bodily harm”, is defined broadly enough in the Criminal Code to include psychological injury. In other words, I tend to disagree with the defence position that psychological injury can never amount to “bodily harm” for the purpose of grounding criminal culpability in driving offences.

[24] Having said that, Crown counsel agrees with the defence position. In the result, for the purposes of this ruling, I will not consider any evidence relating to injuries of a psychological nature when assessing whether the Crown has tendered any evidence that, if believed, could establish the cause bodily harm element of the impugned counts.

[25] The question then is whether, apart from Ian Abdulla’s account of the psychological sequalae of the collision for him, there is sufficient evidence to leave the cause bodily harm offences with the jury.

[26] I conclude that there is.

[27] It is not necessary for the Crown to adduce expert evidence about a complainant’s injuries to establish that an alleged harm occurred which is neither trifling nor transitory. Moreover, the diagnosis or extent of many injuries – particularly soft tissue injuries – is entirely or almost entirely dependent on a party’s self-reporting. In those cases, whether a jury concludes that bodily harm occurred will be dependent on their assessment of the credibility and reliability of the complainant.

[28] Yardali Abdulla testified that the impact of the collision caused his right leg to become stuck under the gas pedal. He suffered a laceration to his right leg. He also hurt his shoulder and his neck as well as his head, which hit the side of the door on impact. According to Yardali Abdulla, he still experiences pain in his foot and his chest, some four years post-collision. These pains did not exist before the collision and he takes Tylenol to alleviate his symptoms.

[29] Yardali Abdulla’s testimony is not capable of establishing that he suffered any serious injuries as a result of the collision. But the Crown does not need to establish the presence of serious injury. The definition of “bodily harm” sets a relatively low threshold.

[30] I would not describe the Crown’s case for cause bodily harm offences in relation to Yardali Abdulla as particularly strong. Indeed, I would characterize it as somewhat weak. But fact-finding in this case is the domain of the jury. And in my view, there is at least some evidence that, if believed, is capable of supporting the conclusion by a properly instructed jury acting reasonably, that the collision caused Yardali Abdulla bodily harm.

[31] Ian Abdulla testified that the impact of the collision caused him to hit the door very hard with his head, his right wrist and his knee. He said the seatbelt also cut in tightly against his body.

[32] Since the collision, he said, he has had a lot of pain throughout his body. He has neck pain, back pain and knee pain. He has developed sleep apnea and hemmorhoids and suffers from erectile dysfunction. He has shooting pains down his legs.

[33] Assessing what, if any, injuries Ian Abdulla suffered as a result of the collision on Christmas Day 2019 is not going to be particularly easy for the jury. The reason is that he was in a serious motor vehicle collision in 2017 which resulted in some serious injuries. He testified that all of the symptoms from that collision, however, have been exacerbated by the 2019 collision. They include headaches, dizziness and balance issues.

[34] Notwithstanding the difficulty of the task, I find that, should the jury conclude that Ian Abdulla’s account of his injuries is credible and reliable, there is sufficient evidentiary support for the conclusion that the collision caused him to suffer bodily harm.

[35] In view of the foregoing conclusions, the motion for a directed verdict is dismissed.

C. Boswell J. Released: November 20, 2023