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CRIMINAL CODE OFFENCES - Offences against person and reputation - Motor vehicles - Dangerous operation of motor vehicle - Causing death

Thursday, November 23, 2017 @ 8:27 AM  

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Appeal by the Crown from Romano’s acquittal on a charge of dangerous driving causing death. Romano was an undercover officer operating an undercover truck at a rate of speed substantially in excess of the speed limit to catch up with other members of his surveillance team when he struck and killed Abogado at around 8:19 p.m. on February 12, 2014. Abogado was an 18-year-old woman who just got off a bus and was jaywalking across the street to get home. Romano admitted that, given the speed at which he was driving, he could not notice pedestrian traffic in time to avoid pedestrians entering the roadway. The judge refused to instruct the jury on dangerous driving simpliciter, but did direct them that if they were not satisfied that Romano’s operation of his vehicle caused Abogado’s death, they were obliged to enter a verdict of acquittal. He made comments about the risks inherent in jaywalking, the darkness of Abogado’s clothing and the poor visibility at the time of the collision. The defence’s closing argument had included submissions inviting the jury to assign causal blame to Abogado for the accident. The Crown also advised the jury in closing that causation was one of the questions that the trial was about.

HELD: Appeal allowed and new trial ordered on the charge of dangerous driving causing death. The judge did not err in refusing to instruct the jury on the included offence of dangerous driving simpliciter. There was no reasonable prospect that, given Romano’s manner of driving, a jury could properly find that Romano’s driving was not a significant contributing factor to Abogado’s death. There was no realistic prospect that Abogado’s decision to enter the roadway was significant enough that Romano’s dangerous driving could lose its significance as a contributing factor in her death. The judge’s instruction to the jury contemplated the factual outcome that was not legally available, namely that dangerous driving occurred without causation. The error was in leaving the issue of causation with the jury as a live issue. The judge’s irrelevant comments and those made by the defence and Crown in closing left the jury armed with information they could use to find no causation. They also gave undue focus to the collision and to questions of responsibility for the collision, where the focus should have been on Romano’s driving and whether that driving constituted a marked departure from the standard of care expected of a police officer in Romano’s circumstances.

R. v. Romano, [2017] O.J. No. 5703, Ontario Court of Appeal, E.A. Cronk, R.G. Juriansz and D. Paciocco JJ.A., November 3, 2017. Digest No. TLD-November202017008