Law Times

Page 10 December 11, 2017 • Law Times www.lawtimesnews.com Ruling highlights proper legal test Judges should examine if drivers criminally culpable BY SHANNON KARI For Law Times T he Ontario Court of Appeal is reminding trial judges that in cases involving a fatal colli- sion between a vehicle and a pe- destrian, 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 writ- ten by Justice David Paciocco, set aside the acquittal of York Regional Police Services offi- cer 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 Scarbor- ough area of Toronto. Errors by Superior Court Jus- tice Brian O'Marra in his charge to the jury necessitated a new trial, the three-judge panel con- cluded. "In assessing the dangerous- ness 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 danger- ous driving in s. 249(1) of the Criminal Code makes plain, what is of interest is danger to the public generally," wrote Pa- ciocco, with Justices Eleanore Cronk and Russell Juriansz con- curring. Given the facts in the case, the Court of Appeal is making it clear that police officers are not going to be immune from crimi- nal liability in a fatal collision, simply because it was an on-duty incident, suggests Janani Shan- muganathan, a defence lawyer and associate at Erin Dann Bar- rister 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 colli- sion 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 inves- tigating 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 pur- suit. Abogado, who was jaywalk- ing 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 re- alistic scenario on the evidence that would enable a properly instructed jury to acquit Ro- mano of the offence of danger- ous driving causing death, yet convict him of the lesser offence of dangerous driving, Paciocco explained. "The criminal law does not recognize contributory negli- gence, nor is it equipped with any mechanism to apportion responsibility for the harm oc- casioned 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 require- ments 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 dan- gers of jaywalking and that pe- destrians must be aware that drivers are often not paying at- tention. "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 con- cluded was not reasonably open to them," stated Paciocco. "These comments, which largely parrot causation argu- ments made by the defence, could only have been under- stood by the jury as being rel- evant to responsibility for the collision," he added. Given the rate of speed "there was no role for the jaywalk- ing" in determining whether or not the officer was guilty of the offence of dangerous driving causing death, says Shanmuga- nathan. Diana Lumba, a criminal appellate lawyer at Edward Ro- yle & Partners LLP in Toronto, says the Court of Appeal ruling highlights the proper legal test for this offence. "Did the driving pose a gen- eral 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 driv- ing," she adds. Shanmuganathan says for trial judges, the ruling is "a re- minder to give your decisions on critical issues at the pre-charge conference." Even though the lesser of- fence of dangerous driving was not left with the jury, she says the comments about causation made both in closing argu- ments and in the judge's final instructions could have been avoided. LT FOCUS Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. Unparalleled expertise from our award-winning national team of experts CONNECTMLX.COM EXPERTS@CONNECTMLX.COM TOLL FREE: 855-278-9273 ✔ More than 2,000 medical malpractice, personal injury and class action cases. ✔ More than 300 lawyer clients assisted. ✔ Direct access to hundreds of specialists from all areas of healthcare expertise. ✔ A top provider of cost of care reports for your most catastrophically injured clients. Since 2001, we've become a leader in Expert Witness Services in Canada. ntitled-4 1 2017-10-24 2:41 PM Janani Shanmuganathan says a recent Ontario Court of Appeal ruling is a remind- er for trial judges to give their 'decisions on critical issues at the pre-charge conference.' In-class and online programs recognized by Law Societies Executive Education to Navigate the Canadian Legal Landscape Visit Lexpert.ca to find out more If you are going to drive almost double the speed limit, there is a reasonable foreseeability of risk. Diana Lumba

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