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Judges should examine if drivers criminally culpable

Focus on: Ruling highlights proper legal test
|Written By Shannon Kari
Judges should examine if drivers criminally culpable
Janani Shanmuganathan says a recent Ontario Court of Appeal ruling is a reminder for trial judges to give their ‘decisions on critical issues at the pre-charge conference.’

The Ontario Court of Appeal is reminding trial judges that in cases involving a fatal collision between a vehicle and a pedestrian, the focus should be on whether the driver’s actions were criminally culpable and not the specific circumstances of the collision.

The court, in a decision written by Justice David Paciocco, set aside the acquittal of York Regional Police Services officer Reno Romano and ordered a new trial in the death of an 18-year-old woman killed in a high-speed collision as she crossed a street in the Scarborough area of Toronto.

Errors by Superior Court Justice Brian O’Marra in his charge to the jury necessitated a new trial, the three-judge panel concluded.

“In assessing the dangerousness of the driving the relevant risk to be considered is not the risk that the specific accident event would materialize. As the statutory definition of dangerous driving in s. 249(1) of the Criminal Code makes plain, what is of interest is danger to the public generally,” wrote Paciocco, with Justices Eleanore Cronk and Russell Juriansz concurring.

Given the facts in the case, the Court of Appeal is making it clear that police officers are not going to be immune from criminal liability in a fatal collision, simply because it was an on-duty incident, suggests Janani Shanmuganathan, a defence lawyer and associate at Erin Dann Barrister in Toronto.

“He was driving so fast, there was no question he was going to hit her,” says Shanmuganathan.

Romano was acquitted last year by a Superior Court jury of dangerous driving causing death in the February 2014 fatal collision with Carla Abogado, who was crossing the street at about eight o’clock at night on her way home from her part-time job.

The jury heard that Romano was driving at least 109 km/h in a 60 km zone in an unmarked pickup truck. The officer was part of a surveillance unit investigating commercial break-ins.

The speeding was a result of Romano trying to catch up to his York Regional police colleagues who were in Toronto following a van, but not involved in a pursuit.

Abogado, who was jaywalking across a four lane street, was thrown about 80 metres in the collision and died instantly.

The trial judge did not leave the lesser offence of dangerous driving with the jury, which the Court of Appeal found to be the correct decision.

While Abogado was herself acting in a dangerous manner by jaywalking, there was no realistic scenario on the evidence that would enable a properly instructed jury to acquit Romano of the offence of dangerous driving causing death, yet convict him of the lesser offence of dangerous driving, Paciocco explained.

“The criminal law does not recognize contributory negligence, nor is it equipped with any mechanism to apportion responsibility for the harm occasioned by criminal conduct, except as part of sentencing.

“There was simply no proper basis on which the jury could find that Mr. Romano’s driving did not meet the legal requirements of causation,” Paciocco wrote.

In his charge to the jury, O’Marra made “irrelevant and adverse” comments about the actions of the victim, the Court of Appeal noted.

The judge outlined the dangers of jaywalking and that pedestrians must be aware that drivers are often not paying attention.

“The trial judge erred in law by instructing the jury in a way that treated causation of death as a live issue. In effect, the trial judge helped arm the jury with the tools needed to make the very finding of fact he had concluded was not reasonably open to them,” stated Paciocco.

 “These comments, which largely parrot causation arguments made by the defence, could only have been understood by the jury as being relevant to responsibility for the collision,” he added.

Given the rate of speed “there was no role for the jaywalking” in determining whether or not the officer was guilty of the offence of dangerous driving causing death, says Shanmuganathan.

Diana Lumba, a criminal appellate lawyer at Edward Royle & Partners LLP in Toronto, says the Court of Appeal ruling highlights the proper legal test for this offence.

“Did the driving pose a general danger to the public? That should be the focus. If you are going to drive almost double the speed limit, there is a reasonable foreseeability of risk. Someone could be in the roadway,” notes Lumba.

“In this case, the speed was egregious. That is why he was charged with dangerous driving,” she adds.

Shanmuganathan says for trial judges, the ruling is “a reminder to give your decisions on critical issues at the pre-charge conference.”

Even though the lesser offence of dangerous driving was not left with the jury, she says the comments about causation made both in closing arguments and in the judge’s final instructions could have been avoided.


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