WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Orwin, 2017 ONCA 841

DATE: 20171102

DOCKET: C62759

Watt, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jacob Stephen Orwin

Appellant

Robert F. Goddard, for the appellant

Jill Witkin, for the respondent

Heard: September 7, 2017

On appeal from the conviction entered on October 28, 2015
    and from the sentence imposed on February 17, 2016 by Justice Brian W. Abrams of
    the Superior Court of Justice, sitting without a jury.

By the
    Court:

[1]

The appellant appeals his conviction of a single count of sexual assault
    and the sentence imposed upon him for that conviction.

[2]

At the conclusion of oral argument, we announced that the appeals from
    conviction and sentence would be dismissed for reasons to be provided at a
    later date. Our reasons follow.

The Background Facts

[3]

The principals were involved in a short-term casual sexual relationship.
    At the time of the events with which we are concerned, the appellant was 23,
    the complainant 18.

[4]

Feeling stressed about her impending move out-of-province to attend
    school, the complainant went over to the appellants home one evening. The
    couple shared some wine and went to bed. Neither was fully clothed. No sexual
    activity occurred.

[5]

The following morning, the complainant was still stressed. The appellant
    offered to give her a massage to alleviate her stress. The complainant agreed
    that he could do so. As the complainant lay on her stomach, the appellant began
    to massage her back. From this point, the accounts of the principals diverge.

[6]

According to the complainant, she made it clear to the appellant, by
    what she said and what she did, that she did not consent to him touching her buttocks,
    either over or beneath her underwear. Nor did she consent later when he
    penetrated her anus, first with his finger and then with his penis. When the
    appellant stopped anal penetration, the complainant rolled over, said what the
    fuck and walked into the bathroom. There, she noticed bite marks, scratches
    and hand marks on her body. She decided to leave.

[7]

When the complainant returned to the bedroom from the bathroom, the
    appellant asked dont you want to finish me off. She declined. She was upset,
    but told the appellant, in response to his question, that she was fine.

[8]

The day after the incident the complainant sent a text message to the
    appellant. She told him that she had not consented to the anal intercourse. He
    responded: I feel as though I raped you. Later that same day, the complainant
    reported the assault to the police.

[9]

Two months later, the appellant sent the complainant a Facebook message
    asking her if she had gone to the police.

[10]

The
    appellant, relying on his own testimony, advanced consent as his principal
    defence. But he also argued that he should be found not guilty because he
    honestly but mistakenly believed that the complainant consented to anal
    intercourse.

[11]

The
    appellant grounded his claim of honest but mistaken belief in consent on what
    he interpreted were positive signs from the complainant. She moaned with
    pleasure. She did not say no. Her body language was consistent with her physical
    reaction during consensual intercourse on previous occasions. The appellant
    claimed that they had had consensual anal intercourse on several prior
    occasions.

[12]

The
    appellant recalled that the complainant seemed somewhat off after the anal
    intercourse occurred, although she said she was fine. After she made her
    allegation via text message, the appellant began to wonder whether her moans
    reflected pain, not pleasure.

[13]

The
    appellant explained that the facially inculpatory Facebook and text messages he
    sent the complainant after the events were meant to reflect his empathy for
    her. They were not admissions of guilt.

The Appeal from Conviction

[14]

On
    the appeal from conviction, the appellant contends that the trial judge made
    three errors:

i.

he failed to give effect to the defence of honest but mistaken belief in
    consent by failing to consider, at all or adequately, evidence from the
    complainant that tended to support this defence;

ii.

he applied a stricter standard of scrutiny to the testimony of the
    appellant than to the evidence of the complainant; and

iii.

he misapprehended the appellants evidence about his characterization of
    the complainants moans during anal intercourse.

Ground #1: Mistaken Belief in Consent

[15]

On
    the issue of consent, the appellant acknowledges that the versions of events
    provided by him and by the complainant are irreconcilable. The trial judge, as
    he was entitled to do, rejected the appellants account and accepted that of
    the complainant. But where the judge foundered, the appellant says, was in his
    failure to consider whether a reasonable doubt could arise from a viable set of
    facts cobbled together to constitute a defence of mistaken belief in consent.

[16]

The
    appellant points to several items of evidence that he says the trial judge
    failed to take into account in connection with the defence of honest but
    mistaken belief in consent:

i.

the complainants description of the appellants demeanour after anal
    intercourse had occurred;

ii.

the complainants expressed self-doubt about the appellants knowledge
    of consent during the anal intercourse;

iii.

the complainants unhurried departure from the appellants home after
    anal intercourse had occurred;

iv.

the double cancelled date;

v.

the lack of anal soreness on the part of the complainant; and

vi.

prior consensual anal intercourse between the parties.

[17]

The
    cumulative effect of these several items of evidence, the appellant says,
    provided an evidentiary foundation for the defence of honest but mistaken
    belief in consent. The trial judges failure to consider the cumulative effect
    of this evidence in his determination that the defence of honest but mistaken
    belief in consent lacked an air of reality was an error of law undone only by
    ordering a new trial.

[18]

We
    do not give effect to this ground of appeal.

[19]

We
    begin our consideration of this ground of appeal with the well-established
    principle that, in giving reasons for judgment in a criminal case, a trial
    judge is not required to refer to each and every morsel of evidence admitted at
    trial:
R. v. R.E.M
., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20. It
    necessarily follows that, without more, the simple failure of the trial judge
    to refer to a specific item or feature of the evidence does not constitute
    legal error or render the reasons insufficient to permit meaningful appellate
    review.

[20]

In
    our assessment of this claim of error we must also keep in mind several
    features of what criminal law practitioners and judges describe as the
    defence of honest but mistaken belief in consent.

[21]

The
    defence of mistake is simply a denial of
mens rea.
It does not
    impose any burden of proof upon an accused. Applied to the issue of consent in
    cases such as this, honest but mistaken belief is an argument that the Crown
    has failed to prove beyond a reasonable doubt that the accused knew that the
    complainant was not consenting to the sexual activity in question:
R. v.
    Ewanchuk
, [1999] 1 S.C.R. 330, at para. 44;
R. v. L.S.
, 2017 ONCA
    685, at paras. 37 and 39.

[22]

For
    an accuseds conduct to be morally innocent, the evidence must show that he
    believed that the complainant communicated consent to engage in the sexual
    activity alleged to constitute the
actus reus
of the offence: here,
    anal intercourse. Speculation by an accused about what was going on in a
    complainants mind affords no defence:
Ewanchuk
, at para. 46. Further,
    an accuseds belief that silence, passivity, or ambiguous conduct constitutes
    consent is a mistake of law, and thus provides no defence:
Ewanchuk
,
    at para. 51.

[23]

A
    final point concerns the limitation on mistaken belief in consent imposed by s.
    273.2 of the
Criminal Code
. A mistaken believe in consent cannot arise
    from an accuseds own recklessness, wilful blindness, or a failure to take
    reasonable steps, in the circumstances known to the accused at the time of the
    sexual activity, to ascertain that the complainant was consenting.

[24]

Turning
    to the evidence advanced by the appellant to found his claim of honest but
    mistaken belief in consent, we are satisfied that neither individually nor
    cumulatively can they ground his denial of
mens rea.

[25]

Taking
    first the complainants evidence about the appellants demeanour after anal
    intercourse had occurred. To the extent that this evidence is offered to
    describe the appellants state of mind at the time of anal intercourse  that
    is to say, his belief that she was consenting  it is inadmissible speculation.
    Further, it is at odds with the appellants later text and Facebook messages acknowledging
    his recognition that he had done something wrong. What is more, a fair
    construction of the appellants text messages reveals recklessness on his part,
    a state of mind that negates the availability of honest but mistaken belief in
    consent as a defence.

[26]

In
    her testimony, the complainant was very clear that she communicated her lack of
    consent to anal intercourse unequivocally by her words and conduct the morning
    the offence occurred. The relevant time for consent, likewise honest but
    mistaken belief in consent, is at the time of the sexual activity said to be consensual.
    The complainants self-doubt about the timing of the prior communication of
    non-consent was of no real relevance to the availability of the defence now
    advanced.

[27]

The
    appellant makes two further claims. First, that evidence that the complainant
    waited for the appellant to complete his shower before leaving belied her claim
    of a hurried departure. Second, that the appellants suggestion that his text message
    cancelling a date the complainant claimed she had previously cancelled called
    into question the reliability of the complainants recollection of events.

[28]

These
    claims can be considered together. At best, these pieces of evidence were
    relevant to the complainants credibility as a witness. Neither relates to the
    reliability of her evidence denying consent. Neither alone nor together can
    they provide an evidentiary foundation for an antecedent belief in consent. Nor
    can the reliability of the complainants evidence be measured or diminished by
    what the appellant later did.

[29]

No
    expert evidence was adduced about the likelihood of anal soreness after forced
    anal intercourse. In the absence of such evidence, no adverse inference can be
    drawn about the complainants credibility or the reliability of her evidence of
    what occurred. Further, it is difficult to see how this after-the-fact
    discovery of a physical condition could have had any influence on the appellants
    contemporaneous state of mind.

[30]

The
    appellant and complainant differed about how many times they had previously had
    anal intercourse. The complainant insisted, as she wrote in a text message to
    the appellant, that she had previously told him that she wasnt okay with
    anything anal. We are unable to see how any inconsistency on this issue could
    assist the appellant in establishing an air of reality for the defence of
    honest but mistaken belief in consent. The complainants consent to anal intercourse
    in the past cannot be used to support the appellants claim of mistaken belief
    in consent:
R. v. Barton
, 2017 ABCA 216, 38 C.R. (7th) 316, at paras.
    169 and 254.

[31]

In
    rejecting this ground of appeal we are also mindful that the appellant clearly
    based his defence on consent and testified that the complainant was a willing
    partner. The complainants version was one of unmistakable resistance. The
    issue was one of credibility, of consent or no consent:
R. v. Park
,
    [1995] 2 S.C.R. 836, at para. 26.

Ground #2: Uneven Scrutiny

[32]

The
    appellant also complains that the trial judge applied a more demanding level of
    scrutiny in his assessment of the appellants evidence and credibility than he
    did when considering the evidence and credibility of the complainant.

[33]

This
    argument, or some variation of it, has become a staple in appeals from
    conviction in judge alone trials where the evidence sets the word of the
    complainant, on the one hand, against the denial of the accused, on the other,
    with the result contingent upon the trial judges credibility assessments. This
    is a difficult argument to advance successfully. An appellant must do more than
    show that a different trier of fact could have decided credibility differently.
    Or that the trial judge left something out that she could have said in
    assessing the respective credibility of the principals. Or that the trial judge
    failed to set out, in express terms, legal principles relevant to that
    credibility assessment. To succeed the appellant must point to something in the
    trial judges reasons, or perhaps elsewhere in the trial record, that makes it
    clear that the trial judge applied different standards in assessing the
    evidence of the appellant and the complainant:
R. v. Howe
(2005), 192
    C.C.C. (3d) 480 (Ont. C.A.), at para. 59.

[34]

In
    this case, the appellant says that the uneven scrutiny argument is made out
    because the trial judge rejected as incredible the appellants account of
    honest but mistaken belief in consent on the basis of:

i.

the appellants failure to correct the complainants text message that
    she had previously told him that she wasnt okay with anything anal;

ii.

the short-term nature of their relationship, which had an expiry date;
    and

iii.

the inculpatory contents of the appellants text messages sent shortly
    after the events that formed the subject-matter of the charge.

But, in deciding that the complainants account of non-consensual
    anal intercourse was credible, failed to take into account:

i.

her failure to correct the appellants text message cancelling their proposed
    date to point out that she had already cancelled it;

ii.

her characterization of the short-term nature of their relationship; and

iii.

the portions of the appellants text messages that were consistent with
    his claim of honest but mistaken belief in consent.

[35]

We
    decline to give effect to this ground of appeal.

[36]

In
    our view, a fair reading of the trial judges reasons, taken as a whole, fails
    to reveal the flaw claimed by the appellant.

[37]

The
    first complaint of uneven scrutiny focuses on the text messages sent by the
    appellant and complainant shortly after the events that formed the subject-matter
    of the charge. To be more specific, the appellant complains that the trial
    judge considered his (the appellants) failure to correct the complainants message
    that she wasnt okay with anything anal as telling against his credibility,
    but failed to consider the complainants omission to correct the appellants
    message cancelling the Saturday night date as impeaching her credibility.

[38]

Apart
    altogether from the absence of any obligation of a trial judge to articulate a
    consideration of every item of evidence adduced in a criminal trial and record
    findings of fact about it, we see a world of difference between the two omissions.
    On the one hand, the appellant failed to respond to a text message that
    essentially accused him of a crime. His failure to respond in the circumstances
    could be considered an admission by silence. On the other hand, the complainants
    failure had to do with something that was to occur, if at all, well after the
    alleged offence and was of no real relevance to the issues in dispute. The
    complainant was cross-examined about the omission. This provided the trial
    judge with the opportunity to assess her responses and their impact on her credibility
    and the reliability of her evidence. That he did not consider the omission as
    worthy of mention does not amount to uneven scrutiny.

[39]

The
    second submission about uneven scrutiny faults the trial judge for considering
    the short-term nature of the relationship between the principals in his
    assessment of the credibility of the appellant, but not that of the
    complainant.

[40]

Once
    again, we see a difference in the significance of the evidence to the issues in
    the case. It was common ground that the relationship was a casual sexual
    relationship, characterized by the parties as fuck buddies. It had an expiry
    date  the complainants imminent departure from the province to pursue her
    education elsewhere.

[41]

The
    complainants characterization of the relationship is of no relevance to her
    credibility when she said that she did not consent to anal intercourse. Such a
    characterization cannot support an inference from past conduct that she is more
    likely to have consented, especially to conduct which she had previously opposed,
    or that she was less worthy of belief.

[42]

On
    the other hand, the appellants evidence that the relationship had an expiry
    date could support an inference, when considered along with the balance of his
    evidence about his sexual preferences for anal intercourse and his analysis of
    what his sexual partner means by no, which tended to rebut his claim of
    honest but mistaken belief in consent by showing that he was reckless or
    wilfully blind about the complainants consent.

[43]

The
    final allegation of uneven scrutiny is that the trial judge considered only the
    inculpatory portions of the appellants text messages and not those portions
    that are said to be exculpatory. Nothing in the reasons of the trial judge
    suggests that he failed to consider the messages as a whole. In our view, when
    considered as a whole, there is little exculpatory about these messages. For
    the most part, anything that appears exculpatory on its face demonstrates
    either that the appellant was reckless as to whether the complainant was
    consenting to anal intercourse, or that he failed to take reasonable steps, in
    the circumstances as he knew them, to determine that the complainant was
    consenting.

Ground #3: Misapprehension of Evidence

[44]

The
    final ground of appeal against conviction is that the trial judge misunderstood
    or misapprehended the appellants evidence about the complainants moans during
    anal intercourse. It is common ground that the trial judge was wrong to
    conclude that the appellant
admitted
that the complainant was moaning
    in pain during anal intercourse.

[45]

It
    is elementary that not every misapprehension of evidence will result in a
    miscarriage of justice and thus require a new trial. The test on appellate
    review of claims of misapprehension of evidence is stringent. The misapprehension
    must relate to material parts of the evidence. The error must play an essential
    part in the reasoning process of the trial judge resulting in the conviction:
R.
    v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221;
R. v.
    Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. Said in another way,
    an error in the assessment of evidence will amount to a miscarriage of justice
    only if striking it from the judgment would leave the trial judges reasoning
    on which the conviction is based on unsteady ground:
R. v. Sinclair
,
    2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.

[46]

We
    do not dispute that the trial judge relied upon this misapprehension of
    evidence to reject the appellants defence of honest but mistaken belief in
    consent. That said, the trial judge advanced several reasons for rejecting this
    defence:

i.

the appellants view of his sexual relationship with the complainant as
    having an expiry date and soon-ending;

ii.

the appellants self-proclaimed proclivity for anal sex;

iii.

the complainants express rejection of the appellants sexual advances
    by words and conduct the morning of the alleged offence;

iv.

the aggressive nature of the appellants conduct;

v.

the appellants contemporaneous text messages, which confirmed the
    complainants version of events and more accurately described the events than the
    revisionist account the appellant advanced at trial; and

vi.

the appellants Facebook message to the complainant two months later
    questioning whether she had gone to the police, sent to curry sympathy with the
    complainant by suggesting that he had already suffered enough.

[47]

In
    the result, we are not satisfied that the trial judges misapprehension of the
    evidence caused a miscarriage of justice requiring the order of a new trial.

[48]

For
    these reasons we dismissed the appeal from conviction.

The Appeal from Sentence

[49]

At
    trial, Crown counsel (not. Ms. Witkin) sought a penitentiary sentence of 3 and
    ½ years. Trial counsel for the appellant (not Mr. Goddard) sought a reformatory
    sentence of 9 months followed by a period of probation.  The trial judge
    imposed a sentence of imprisonment of two years less one day, followed by one
    year of probation.

[50]

The
    appellant alleges four errors in the trial judges sentencing decision. He
    submits that the trial judge erred:

i.

in considering that the offence involved abuse of the appellants spouse
    or common-law partner as an aggravating factor on sentence under s.
    718.2(a)(ii) of the
Criminal Code
;

ii.

in considering that the offence involved abuse of the appellants
    position of trust in relation to the complainant as an aggravating factor on
    sentence under s. 718.2(a)(iii) of the
Criminal Code
;

iii.

in failing to apply the parity principle of s. 718.2(b) of the
Criminal
    Code
; and

iv.

in failing to accord sufficient weight to the appellants mental health
    struggles, including his bipolarity.

[51]

We
    approach our consideration of the fitness of the sentence imposed in this case
    mindful of the highly deferential standard of review applicable in sentencing
    cases. Except where the sentencing judge has made an error of law or of
    principle that has an impact on the sentence imposed, we may not vary the
    sentence unless it is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015]
    3 S.C.R. 1089, at para. 11.

[52]

For
    an error of law or of principle to be material, the error must have affected
    the sentence determination in something more than just an incidental way. And
    the error must be an error in law; an error in principle; a failure to consider
    or accord sufficient weight to a relevant factor; or erroneous consideration of
    an aggravating or mitigating factor:
Lacasse
,

at para. 44.

[53]

A
    sentence is demonstrably unfit if it unreasonably departs from the fundamental
    principle of proportionality in light of the individual circumstances of the offence
    and offender, and the acceptable range of sentence for similar offences
    committed in similar circumstances by similar offenders:
Lacasse
, at
    paras. 52-55.

[54]

In
    his reasons for sentence, the trial judge identified several aggravating
    factors:

i.

abuse of a spouse or common-law partner;

ii.

abuse of a position of trust in relation to the complainant;

iii.

the significant impact of the offence on the complainant; and

iv.

the gratuitous violence inflicted on the complainant.

[55]

The
    trial judge also considered several mitigating factors:

i.

the appellant was a youthful first offender;

ii.

the impact of the conviction on the appellants employment and
    employability;

iii.

the appellants rehabilitative prospects; and

iv.

the appellants mental health issues.

[56]

The
    trial judge accurately identified the appropriate range of sentence for the
    appellant and his offence. He imposed a sentence at the low end of that range.
    In these circumstances, we cannot say that the trial judge paid no or
    insufficient heed to the appellants status as a youthful first offender, his
    rehabilitative prospects or the principle of parity.

[57]

The
    trial judge considered the appellants abuse of his spouse or common-law
    partner as an aggravating factor, even though he appears to have acknowledged
    that the complainant was neither. This was an error, whether of law or of
    principle is of no great moment. The trial judge rightly considered the
    appellants abuse of trust as an aggravating factor in accordance with the
    decision in
R. v. C.R.
,

2010 ONCA 176, 260 O.A.C 52, at para.
    85. In the circumstances of this case, we are unable to see how his erroneous
    consideration of abuse of a spouse or common-law partner had any impact on the
    sentence imposed in light of his appropriate consideration of the effect of the
    abuse of trust as an applicable aggravating factor.

[58]

Nor
    are we persuaded that the trial judge gave insufficient weight to the
    appellants compromised mental condition as a mitigating factor. The record
    does not support any nexus between the appellants bipolarity and his
    commission of the offence: see,
R. v. Barham
, 2014 ONCA 797, at para.
    8.

[59]

In
    the result, we granted leave to appeal sentence but dismissed the appeal, from
    sentence.

conclusion

[60]

The
    appeals from conviction and sentence are dismissed.

Released: Nov 2, 2017

David Watt J.A.
Gloria Epstein J.A.
David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pham, 2017 ONCA 847

DATE: 20171103

DOCKET: C62615

Simmons, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hai Thi Pham

Appellant

Kim Schofield and Daniel Stein, for the appellant

Nick Devlin and John North, for the respondent

Heard: November 1, 2017

On appeal from the conviction entered on March 23, 2015 by
    Justice E.E. Frank of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant asserts that the trial judge made a palpable and
    overriding error in failing to make more detailed inquiries into the
    appellants mental status when the appellant was testifying.  We reject this
    submission.  Following some inquiries, the appellant confirmed she was able to
    continue and that she had no difficulty with her memory.  Defence counsel did
    not pursue the issue at trial (this was part of a
voir dire
).  We are
    not persuaded the record suggests the trial judge should have made further
    inquiries.  In any event, no fresh evidence has been produced to support the
    appellants claim that at the time she testified there was a problem with her
    mental status such that it would interfere with her ability to testify.

[2]

Conviction appeal dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pum, 2017 ONCA 901

DATE: 20171122

DOCKET: C62666

Rouleau, Pepall and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sam Pum

Appellant

Douglas Gosbee, for the appellant

Victoria Rivers, for the respondent

Heard and released orally: November 17, 2017

On appeal from the convictions entered on March 16, 2016
    by Justice Malcolm G. McLeod of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellants convictions under ss. 7(1) and 5(2) of
the
    Controlled Drug and Substances Act
arose from a marihuana grow-op that was
    discovered in his rental apartment unit. He appeals his convictions on the
    basis that the trial judge is said to have misapprehended the evidence and
    returned an unreasonable verdict.

[2]

The trial judge convicted the appellant on the basis of the following
    findings establishing his control of the unit and knowledge of the grow-op:

·

the
    appellant had been the tenant of unit 1905 for over four years;

·

there
    was no evidence that anyone else occupied or subleased the unit;

·

there
    was only one key fob assigned to the unit, and there was no evidence that
    anyone else was using it;

·

the
    appellant was not on the July list for eviction, indicating that rent had been
    paid at least up until May 2014;

·

expert
    evidence provided that this was a three-stage operation, and the latest stage
    marihuana plants were approximately three months old;

·

the
    presence of dried marihuana suggested that an earlier crop might have been
    grown in the unit;

·

the
    grow-op was sophisticated and extensive, occupying 2 bedrooms and the entire
    unit smelled of marihuana;

·

the
    living room had been converted into a bedroom, appeared lived in, and the
    appellants personal identifying documents and work related documents were
    found there;

·

the
    most recent of the documents, a pay stub, was dated April 10, 2014;

·

although
    the apartment managers evidence could not support a finding that the appellant
    was observed at the apartment during the period of time in which the grow-up
    must have been in operation, the apartment manager had observed the appellant
    regularly between 2010 and early 2014, the appellant continued to be a
    leaseholder thereafter, and there is no evidence to suggest his use was
    interrupted or terminated.

[3]

All of these findings were open to the trial judge on the evidence
    before him and there is no basis on which we would interfere. Significantly,
    the appellant chose not to testify or call any evidence that would provide any
    innocent explanation of how or when the unit ceased to be under his control.
    Based on these findings, on our view, the trial judge correctly determined that
    there was no other rational conclusion other than the appellants guilt.

[4]

The appeal is dismissed.

Paul Rouleau J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (2.1),
    (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall
    continue.  These sections of
the Criminal Code
provide:

486.4(1)        Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)      any
    of the following offences;

(i)       an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)      REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in paragraph (a).

(2)      In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)      at
    the first reasonable opportunity, inform any witness under the age of eighteen
    years and the victim of the right to make an application for the order; and

(b)      on
    application made by the victim, the prosecutor or any such witness, make the
    order.

(2.1)
    Subject to subsection (2.2), in proceedings in respect of an offence other than
    an offence referred to in subsection (1), if the victim is under the age of 18
    years, the presiding judge or justice may make an order directing that any
    information that could identify the victim shall not be published in any
    document or broadcast or transmitted in any way.

(2.2) In
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice shall

(a) as
    soon as feasible, inform the victim of their right to make an application for
    the order; and

(b) on
    application of the victim or the prosecutor, make the order.

(3)      In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)      An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)        Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary
    conviction.

(2)      For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice
    system participant whose identity is protected by the order. 2005, c. 32, s.
    15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.C., 2017 ONCA 852

DATE: 20171107

DOCKET: C62392 & C62526

Simmons, van Rensburg and Nordheimer JJ.A

BETWEEN

Her Majesty the Queen

Respondent/Appellant

and

R.C.

Appellant/Respondent

John H. Hale for the appellant, R.C.

Michael Fawcett for the respondent, Her Majesty the
    Queen

Heard:  November 2, 2017

On appeal from the conviction entered on April 11, 2016
    and the sentence imposed on July 13, 2016 by Justice R. T. Knott of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for sexual interference. The Crown
    seeks leave to appeal sentence. The conviction appeal is allowed for the
    reasons that follow. It is unnecessary to address the sentence appeal.

[2]

The complainant was the 14 year old best friend of the appellant's
    daughter, M.D., who the appellant saw on alternate weekends. Following an
    evening during which the teenage girls had been drinking and partying at the
    appellant's apartment, M.D. awoke to find the complainant missing from the room
    where the girls had been sleeping. On searching the apartment, M.D. found the
    complainant asleep on the appellant's bed. The appellant was spooning the
    complainant; both were fully clothed. The appellant and the complainant both
    denied that any sexual contact had taken place.

[3]

About a month after the incident, M.D. contacted the police and gave a
    statement. This caused the police to interview the complainant, who then
    asserted that she and the appellant had intercourse on that occasion and on two
    prior occasions when she had visited M.D. at the appellant's apartment.

[4]

Taking account of the appellant's learning disability, his efforts at
    counselling and 20 months of house arrest bail, the trial judge sentenced the
    appellant to one year imprisonment (the mandatory minimum) and two years'
    probation.

[5]

The appellant appeals from his conviction. The Crown seeks leave to
    appeal the sentence imposed.

[6]

Much evidence was introduced at the trial regarding the appellants bad
    parenting.  Early in his reasons convicting the appellant,  the trial judge
    said:

There was so much troubling about this case I had to separate
    the bad parenting from the alleged criminal acts.

[7]

Notwithstanding that express intention, the trial judge then spent the
    next two full pages of his reasons, which only span about seven and one-half
    pages in total, detailing the evidence about the appellants bad parenting,
    which included purchasing significant quantities of alcohol for the girls;
    allowing them to party in the building with older men and bringing his eleven
    year old son to the trial
[1]
.

[8]

Particularly in light of the trial judges focus on the bad parenting
    evidence  and the sparseness of the balance of his reasons  reading his
    reasons as a whole, we cannot be satisfied that his evaluation of the appellants
    credibility , and of the likelihood that the appellant committed the acts
    charged, was not infected by this bad parenting evidence.  Put another way, we
    cannot be satisfied that the bad parenting evidence was not used to
    characterize the appellant as the type of person who engaged in improper conduct
    with his children (and the complainant) to the point that he would have engaged
    in the conduct that formed the basis of the charge.  That concern is heightened
    by the fact that the trial judge appears to have relied on the evidence of the
    appellant bringing various supporters to the trial as, in some fashion, bolstering
    the evidence of the complainant and M.D.

[9]

In so finding, we wish to make it clear that we do not accept the
    assertion by counsel for the respondent that this issue with the trial judges
    reasons amounts to an assertion of bias.  It does not.  It is more fairly
    characterized as an error of law like any number of other evidentiary errors
    that can occur in the course of a trial.

[10]

The appeal is allowed, the conviction is set aside and a new trial is
    ordered.

[11]

Given our conclusion on the conviction appeal, we do not need to address
    the sentence appeal.

Janet Simmons J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.

[1]

Although not raised by the appellant on appeal, we questioned
    the admissibility of the latter evidence. The Crown cannot legitimize
    cross-examination on matters wholly irrelevant to the issues at trial on the
    pretext that it goes to credibility. Otherwise there would be virtually no area
    that could not be explored at trial. Trial judges can and should intervene to
    stop such questioning even where no objection is raised.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Romano, 2017 ONCA 837

DATE: 20171103

DOCKET: C62805

Cronk, Juriansz and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Remo Romano

Respondent

Roger Shallow, for the appellant

Frank Addario and James Foy, for the respondent

Heard: September 28, 2017

On appeal from the acquittal entered by Justice Brian P. OMarra
    of the Superior Court of Justice, sitting with a jury, on September 21, 2016.

Paciocco J.A.:

INTRODUCTION

[1]

Remo Romano was acquitted by a jury of the charge of dangerous operation
    causing death (dangerous driving causing death), contrary to s. 249(4) of the
Criminal Code
, R.S.C. 1985, c.
    C-46
. This charge arose out of a tragic event that occurred on
    February 12, 2014. Eighteen year old Carla Abogado
[1]
was on her way home from a part-time job when she was struck and killed by a
    Ford F-150 truck being operated at high speed by Mr. Romano. It was around 8:19
    p.m. At the time she was struck, Ms. Abogado was jaywalking, taking the most
    direct route from the bus stop where she had been dropped off to her home
    across the street.

[2]

Mr. Romano was on duty as a police officer at the time. The truck was an
    undercover vehicle. He was operating it at a speed substantially over the speed
    limit in an effort to catch up with other members of a surveillance team he was
    assigned to assist. Evidence was that at the time of the collision he was
    travelling 109 km per hour or more in a 60 km zone.

[3]

The Crown appeals Mr. Romanos acquittal. The Crown contends that the
    trial judge erred in not leaving the included offence of dangerous operation
simpliciter

(dangerous driving), contrary to s. 249(2), with the jury. In essence,
    the Crown contends that a properly instructed jury could have found that Mr.
    Romano drove dangerously, yet did not cause Ms. Abogados death. The trial
    judge disagreed. He concluded that such a finding was not realistically
    available to the jury on the evidence; if a jury was to find dangerous driving,
    it would have to find, in law, that the dangerous driving caused death. The
    trial judge therefore chose not to instruct the jury on the included offence.

[4]

The Crown also argues the jury charge was defective. It says that the
    trial judge erred in his instruction on the
actus reus

and
mens
    rea

elements of dangerous driving, and in the jury directions
    relating to whether Mr. Romano had a lawful justification for his driving.

[5]

I would not give effect to the first ground of appeal. The trial judge
    did not err by refusing to leave the included offence of dangerous driving with
    the jury.

[6]

I would, however, grant the appeal on the related basis that, having
    removed the included offence from the jury, 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.

[7]

In my view, the trial judge also failed to give the jury an adequate
    understanding of how to determine whether Mr. Romanos manner of driving was
    dangerous, and whether it constituted a marked departure from the norm  the
actus
    reus

and
mens rea
elements of the offence. Specifically, the
    focus of the inquiry in each case should have been Mr. Romanos manner of
    driving, not who bore responsibility for Ms. Abogados death, or the
    foreseeability of the specific accident that occurred. Yet the instructions
    related substantially to Ms. Abogados conduct and to the role the accident
    should play in determining whether the driving was dangerous. Although other
    aspects of the charge were pristine, the theme of Ms. Abogados role in her own
    death was sufficiently pronounced that I am satisfied that the jury would not
    have known how to apply the evidence to the dangerous driving and marked
    departure issues.

[8]

I am not persuaded, however, that the trial judge erred on the lawful
    justification issue. He did not direct the jury that s. 128(13) of the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8, provides a defence to dangerous driving,
    and his instruction adequately equipped the jury to consider the significance
    of Mr. Romanos policing role during the event.

[9]

I would therefore allow the appeal, set aside the acquittal, and order a
    new trial on the offence charged, namely dangerous driving causing death.

ISSUES

[10]

This
    Crown appeal from a verdict of acquittal on the charge of dangerous driving
    causing death raises three central issues. First, did the trial judge err in
    law in failing to leave the included offence of dangerous driving

with
    the jury? Second, did the trial judge misdirect the jury on the elements of the
    dangerous driving component of the offence of dangerous driving causing death?
    And third, did the trial judge misdirect the jury on whether Mr. Romano had a
    lawful justification for driving as he did?

ANALYSIS

A.

The Included Offence Issue

[11]

An
    included offence is a separate offence that is necessarily committed where
    the charged offence has been committed. As described in
R. v. G.R.
, 2005 SCC 45,

[2005] 2 S.C.R. 371,
    at para. 25, the included offence is embraced by the charged offence.

[12]

Dangerous
    driving

is an included offence in a charge of dangerous driving
    causing death because it is impossible to commit the offence of dangerous
    driving causing death without satisfying the legal requirements or elements of
    the offence of dangerous driving. Dangerous driving causing death is an
    aggravated version of the offence of dangerous driving, distinguishable only by
    the added legal requirement that the dangerous driving must cause the death of
    another.

[13]

It
    is generally necessary for a trial judge to charge the jury about included
    offences: see
Smith v. The Queen
, [1979] 1 S.C.R. 215. This is because
    a person charged with an offence that includes another offence is effectively
    put on notice that they are alleged to have committed both offences, and are
    technically charged with both offences.

[14]

The
    law is sensible, though. As was recognized in
R. v. Luciano
, 2011 ONCA
    89, 273 O.A.C. 273, at para. 75:

The obligation of a trial judge to instruct jurors about the
    availability of a verdict of an included offence is  conditioned upon an air
    of reality in the evidence adduced at trial to permit a reasonable jury,
    properly instructed, to conclude that the essential elements of the included
    offence have been established.

[15]

The
    propriety of refusing to leave the jury with a verdict option that a reasonable
    jury, properly instructed, could not arrive at makes obvious sense. A jury
    should not be left with the option of making an unreasonable decision.

[16]

It
    follows that included offences that cannot lead to legally appropriate verdicts
    should not be left with juries. As stated in
R. v. Wong
(2006), 211
    O.A.C. 201 (C.A.), at para. 12:

Where on the law applicable to the main charge and the included
    offence there is no reasonable view of the evidence, when considered as a
    whole, that could cause the jury to acquit on the main charge and convict on
    the included offence, an instruction on the included offence is a breeding
    ground for confusion and compromise.

[17]

The
    Crowns first ground of appeal is that the trial judge erred by not leaving the
    included offence of dangerous driving

with the jury. The Crown contends
    there was an air of reality to the possibility the jury could be sure that Mr.
    Romano drove dangerously, yet have a reasonable doubt about whether his
    dangerous driving caused Ms. Abogados death.

[18]

As
    I have indicated, the trial judge disagreed. He held that on the basis of the
    agreed facts, there was no reasonable scenario in which dangerous driving by Mr.
    Romano could be proved, but where the legal requirements of causation of death would
    not be met.

[19]

This
    is because all the law of causation requires is that Mr. Romanos dangerous
    driving be a significant contributing cause of the death of Ms. Abogado: see
R.
    v. Manasseri
, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 190, leave to
    appeal to S.C.C. refused, [2016] S.C.C.A. No. 513; and
R. v. OLeary
,
    2017 ONCA 71, 36 C.R. (7th) 80, at para. 31. The trial judge concluded that,
    given his manner of driving at the time of the collision, there was no
    reasonable prospect that a jury could properly find that Mr. Romanos driving
    was not a significant contributing cause of Ms. Abogados death.

[20]

The
    trial judges view was that it would do nothing other than puzzle the jury to leave
    them with the option of finding that only the offence of dangerous driving had
    been committed. He illustrated his concern during the pre-charge conference by
    describing the jurys anticipated reaction as, [w]ell, if this driving didnt
    cause the death, what did?

[21]

Although
    it was the trial judge who raised the question of not leaving dangerous driving
    with the jury, trial counsel for Mr. Romano quickly agreed. During the
    pre-charge conference, Mr. Romanos counsel paraphrased the trial judges
    position with obvious endorsement: you couldnt envision finding dangerous
    driving causing death anything but, because if they find it they are going to
    find caused death, you know.  He later affirmed, I do not believe that
    leaving dangerous driving
simpliciter
there is any real air of reality
    to that conviction on the facts of this case.

[22]

I
    agree with the trial judge and with Mr. Romanos trial counsel. While Ms.
    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 Mr. Romano of the offence of dangerous driving causing death, yet
    convict him of the included offence of dangerous driving.

[23]

The
    central facts of this case were not in dispute. What was in dispute was the
    characterization of those facts.

[24]

The
    Crown theory was that while driving through the city block where the accident
    occurred, Mr. Romano unnecessarily operated his undercover police vehicle at
    such an unreasonable speed that it was impossible for him to adjust his driving
    in response to unexpected but foreseeable events, such as jaywalking
    pedestrians, and that his failure to utilize his lights and siren prevented
    those at risk from taking steps to avoid being harmed.

[25]

If
    this theory, or even part of it, was accepted by the jury in this case, where Ms.
    Abogado was struck by Mr. Romanos car while it was being driven in this
    fashion, there was simply no proper basis on which the jury could find that Mr.
    Romanos driving did not meet the legal requirements of causation.

[26]

The
    law of causation is broadly encompassing. The causation test has two inter-related
    components, often described as factual causation, and legal or imputable
    causation. Factual causation focuses exclusively on the connection between the
    act of the accused and the prohibited consequence, in a mechanical or physical
    sense. Legal causation focuses on the moral or imputable fault of the accused:
    see
R. v. K.L.
, 2009 ONCA 141, 248 O.A.C. 260, at para. 14; and
R.
    v. Malkowski
, 2015 ONCA 887, 92 M.V.R. (6th) 1, at para. 14.

[27]

The
    factual causation test is inclusive in scope:
R. v. Maybin
, 2012 SCC
    24, [2012] 2 S.C.R. 30, at para. 15. As the Supreme Court of Canada held in
Smithers
    v. The Queen
, [1978] 1 S.C.R. 506, at p. 519, it is met if the act of the
    accused is a contributing cause of the prohibited consequence, beyond a
de minimis
    range
. The Latin term means no more than that the contribution cannot be
    minimal.

[28]

Without
    changing that standard, a majority of the Supreme Court of Canada suggested in
R.
    v. Nette
, 2001 SCC 78,

[2001] 3 S.C.R. 488, at para. 71, that the
    term significant contributing cause is a simpler, more familiar way, of
    communicating the same concept. Factual causation therefore exists where the
    contribution by the accused to the prohibited consequence is significant, in
    the sense described:
R. v. Kippax
, 2011 ONCA 766, 286 O.A.C. 144, at
    para. 24, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 92.

[29]

The
    legal causation inquiry recognizes that there are cases where the factual
    causation test is facially met, but where the accused should not be held
    criminally responsible because circumstances affect the level of moral fault or
    blameworthiness of the accused, making it inappropriate to treat his
    contribution to the consequence as significant. As the Supreme Court of
    Canada explained in
Maybin
, at para. 16, [l]egal causation  is [therefore]
    a narrowing concept which funnels a wider range of factual causes into those which
    are sufficiently connected to a harm to warrant legal responsibility. It
    enables some cases where the factual causation test is technically satisfied to
    be removed from the net of criminal liability because moral blame should not be
    imputed to the accused. In effect, circumstances can impel recognition that the
    act of the accused should not be imputed as a significant contributing cause:
Malkowski
,
    at para. 14.

[30]

The
    threshold for breaking the chain of factual causation is not generous. This is
    because, [t]he criminal law does not recognize contributory negligence nor is
    it equipped with any mechanism to apportion responsibility for the harm
    occasioned by criminal conduct, expect as part of sentencing:
K.L.
,

at para. 18. Moreover, if an accused is already engaged in an unlawful act,
    the intensity of the causal connection required to furnish moral blame for the
    consequence can be modest.

[31]

In
    this case, I agree with the trial judges application of these tests in his
    decision to keep dangerous driving from the jury.

[32]

Standing
    alone, the factual causation test would obviously be met, were the jury to
    accept the Crowns characterization of Mr. Romanos manner of driving as
    dangerous. The ineluctable conclusion that would follow would be that Mr.
    Romano struck Ms. Abogado while driving dangerously.

[33]

The
    trial judge also properly considered and rejected the only material analytical
    aid to legal causation that might be of assistance in this case: the doctrine
    of intervening acts.

[34]

The
    doctrine of intervening acts applies where an event independent of the
    accuseds conduct occurs that severs the chain of factual causation between the
    accused and the consequence. It operates by undercutting the moral
    blameworthiness that could otherwise be ascribed to the accused. In effect, the
    intervening act deprives the factual causation contribution of the accused of
    its significance.

[35]

In
Malkowski
, this court recognized that although the standard of legal
    causation remains whether the accuseds dangerous and unlawful acts are a
    significant and contributing cause of the victims death, a finding against
    legal causation will generally occur in one of two situations. Either the
    independent intervening event is not reasonably foreseeable, and/or the
    intervening act is an independent cause of the consequence that is significant
    enough in relative weight to sever or break the chain of causation between the
    act of the accused and the consequence:
Malkowski
, at para. 14. On
    either standard, the trial judge was correct to find here that there was no air
    of reality to the prospect that Ms. Abogados jaywalking could qualify as an
    intervening act.

[36]

First,
    the dangerous driving theory was that jaywalking
is
a foreseeable risk
    that Mr. Romano failed to allow for in his manner of driving. On this theory
    the dangerousness of the driving arises from disregard of a foreseeable risk
    that materialized when Ms. Abogado jaywalked from the bus stop. If the jury
    accepted the Crowns theory it could not have concluded that Ms. Abogados
    jaywalking was unforeseeable.

[37]

Second,
    there was no realistic prospect that Ms. Abogados decision to enter the
    roadway was significant enough that Mr. Romanos driving, if dangerous in the
    sense described, could lose its significance as a contributing cause of Ms. Abogados
    death. Mr. Romano admitted during his testimony that, given the speed at which he
    was travelling, he really could not notice pedestrian traffic in time to do
    anything to avoid pedestrians entering the roadway. On Mr. Romanos own
    testimony, his driving could not properly be said to be nothing more than the
    setting in which Ms. Abogados jaywalking brought about the collision. Nor
    could his driving be seen as merely part of the history of the event, with the
    jaywalking being the active cause of the collision: see
Maybin
, at
    paras. 46-51. Put somewhat differently, if Mr. Romanos driving was judged by
    the jury to be dangerous, it was inevitable that the speed that made his
    driving dangerous, and Ms. Abogados presence on the roadway, each contributed
    significantly to the accident. As this court stated on the broadly comparable,
    albeit more aggravated facts in
Malkowksi
, at para. 21:

[W]e would not characterize the victims conduct as being an
    independent act, unrelated to the appellants conduct. The appellant was
    driving at a speed of 152 km/h shortly after 8 oclock at night in a place
    where both motorists and pedestrians were entitled to expect vehicles to have
    slowed down. The fact that the victim would attempt to cross the road but found
    herself unable to do so in safety is not a matter that is unrelated to the
    appellants conduct; rather, it is a direct materialization of the danger he
    created by driving in the way he did.

[38]

It
    follows, therefore, that any jury properly instructed, accepting the dangerous
    driving theory of the Crown in this case, would have had to find that Mr.
    Romanos dangerous driving caused death.

[39]

I
    would decline to give effect to this ground of appeal.

B.

The Jury Charge

(1)

Leaving Causation as a Live Issue

[40]

Even
    though the trial judge ruled that there was no reasonable factual scenario that
    would support a finding of dangerous driving without a finding that the
    dangerous driving caused death, the trial judge instructed the jury that this
    finding was open to them. He did so by directing the jury in his charge that
    they should not consider the causation issue unless they were satisfied beyond
    a reasonable doubt that dangerous driving had been proven, and then by
    directing them that if they were not satisfied beyond a reasonable doubt that
    Mr. Romanos operation of the motor vehicle caused Ms. Abogados death, they
    must find him not guilty of dangerous [driving] of a motor vehicle causing
    death.

[41]

Simply
    put, the trial judges jury directions specifically contemplated the very factual
    outcome that he had previously ruled was not legally available  a finding that
    dangerous driving occurred without causation. Since the jury was only given the
    offence of dangerous driving causing death, the charge also contemplated a
    complete acquittal if the jury found facts that would support the offence of
    dangerous driving
simpliciter
.

[42]

Technically,
    the trial judge could not avoid directing the jury about causation. A jury
    verdict belongs to the jury. It is for them to decide whether the Crown has met
    its burden on each element of the offence. Accordingly, a trial judge must
    advise the jury of each of the elements of the offence, and of the Crowns
    burden to prove each of those elements beyond a reasonable doubt. This is so
    even where a trial judge has removed an included offence from the jury that
    would be satisfied if the Crown proves only some of the elements of the charged
    offence.

[43]

The
    concern in this case is that the trial judge left causation with the jury as a
    live issue on the facts. After ruling that there was no air of reality to a
    factual finding that dangerous driving occurred without causation, he invited the
    jury to arrive at that very factual finding as one possible outcome. With
    respect, this was an error.

[44]

The
    validation of a dangerous driving but no causation finding began with the trial
    judges decision to delay ruling on whether dangerous driving
simpliciter
would be left with the jury until after counsel addressed the jury. As a
    result, counsel were permitted to address the jury ungoverned by a ruling. Both
    jury addresses delivered by counsel before that ruling featured causation as a
    live issue.

[45]

The
    closing address of the defence was riddled with submissions inviting the jury
    to assign causal blame for the accident to Ms. Abogado:

The Crown will tell you that Constable Romano admitted under
    oath that it was his position that Ms. Abogado was solely responsible for her
    death. Let me be clear: The defence position is that Ms. Abogado made a fateful
    decision to cross St. Clair Avenue at the time and location she did. Ms. Abogado
    is solely responsible for the decision she made.. [T]hats the risk you take
    when you jaywalk. The point is jaywalking is inherently dangerous.

While it may be true that everyone jaywalks, this case is not
    about a casual jaywalker crossing a quiteeth [
sic
] residential street in
    daylight. This case is about stepping into traffic on a four-day [
sic
]
    road at night. This case is about trying to beat the traffic.

In the next three pages of transcript, defence counsel
    continued to address Ms. Abogados fault, and the inevitability of the
    collision given her conduct.

[46]

The
    closing address of Crown counsel at trial (not counsel on this appeal) continued
    this theme. Crown counsel advised the jury that causation was one of the two
    questions that the trial was about. He urged the jury to find that Ms. Abogado
    did not just appear in front of Mr. Romano. Instead, he argued Mr. Romano had
    time to see her and react, but her death was still unavoidable because Mr.
    Romano was speeding and not paying enough attention to react in time. Crown counsel
    chided Mr. Romanos position that he was the victim, not Ms. Abogado, and
    that he did nothing wrong, she did. Crown counsel also described Ms. Abogado as
    the true victim and argued that her decision to jaywalk was commonplace
    based on the reasonable expectation that oncoming traffic would be moving close
    enough to the speed limit to enable her to cross the road safely.

[47]

Clearly,
    by the end of the closing arguments the jury was alerted to causation as a live,
    central issue. It was in this context that the trial judge gave his jury charge,
    which failed to neutralize the emphasis that causation had taken on as an issue
    in the case.

[48]

In
    his charge, after instructing the jury to consider causation, the trial judge introduced
    the legal causation test and told them to consider all the evidence concerning Ms.
    Abogados death in determining whether the Crown had proved that Mr. Romanos
    conduct contributed more than insignificantly to Ms. Abogados death.

[49]

Among
    the evidence recited earlier in his charge was that Ms. Abogado was jaywalking,
    that is, she was crossing St. Clair Avenue East in the middle of the road, not
    at an intersection or at a crosswalk, and that she was wearing generally dark
    clothing, meaning that she would be more difficult for a driver to see, especially
    given that it was night time and it was dark out. The trial judge also recited
    Officer Smiths evidence that Ms. Abogado ran into the path of Mr. Romanos
    vehicle, and Mr. Sarmientos evidence that she stopped suddenly [on the road]
    and appeared to be startled, as well as Mr. Romanos evidence that he did not
    see any person before Ms. Abogado just appeared in front of his vehicle, and then
    Ms. Taylors testimony that, while trailing Mr. Romanos vehicle, she did not
    see anyone in the road.

[50]

To
    be sure, the trial judge also recounted evidence that might work against Ms.
    Abogados responsibility for the collision, including expert evidence that she
    was not running when hit. He also reminded the jury that whether Ms. Abogado ran
    across or stopped may not matter if they accepted the expert testimony that,
    given the speed at which Mr. Romano was travelling, he would not have been able
    to avoid hitting her. The instant point, however, is that the trial judge invited
    the jury to evaluate the causation issue after having elsewhere in his charge
    recounted evidence that would naturally feed such consideration.

[51]

Most
    significantly, the trial judge made irrelevant and adverse comments about Ms.
    Abogados conduct. After telling the jury to take into account that Ms. Abogado
    was jaywalking he added, [j]aywalking is an inherently risky activity. Then,
    he said [p]edestrians must be aware, when they jaywalk, that drivers are not
    always paying attention, not always concentrating on what is going on ahead of
    them. He then described the darkness of Ms. Abogados clothing, and the poor
    visibility at the time of the collision.

[52]

Although
    these immaterial comments were made while the trial judge was directing the
    jury on how to determine whether the vehicle was being operated dangerously,
    and not when he was describing causation, the inherent risks of jaywalking and
    the obligation of jaywalkers to be aware of the risks of jaywalking have
    nothing to do with whether a vehicle is being operated dangerously. 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.

[53]

In
    my view, the trial judges charge, taken as a whole and in light of the closing
    arguments, presented causation as a live issue. It instructed the jury to
    resolve the issue, it furnished the legal test, and it armed the jury with
    information that they could use to find no causation.

[54]

The
    fact that the trial judge commented, [i]f you are satisfied beyond a
    reasonable doubt that the driving was dangerous as I have defined it, you
    should not have difficulty in finding that it caused her death, does not
    change this. The trial judge told the jury the case was for them to decide, and
    they were not bound by any opinions he expressed.

[55]

Nor
    does the fact that he told the jury that drivers know people jaywalk and should
    be alert to that possibility, alter the fact that he charged the jury in a way
    that invited the jury to arrive at the very factual decision he had found to be
    without an air of reality.

[56]

In
    my opinion, the trial judge need not, and should not have done so. After deciding
    to remove the included dangerous driving offence from the jury, he should have
    discharged his obligation of advising them of the elements of the offence that
    would have to be found for a conviction, but then made it clear to them that
    causation was not, in law, a live issue in the case that can properly attract
    reasonable doubt.

[57]

The
    trial judge told the jury in his charge that they need not consider
    identification any further because this essential element had been admitted. He
    should have done much the same with the causation issue. While Mr. Romano did
    not formally admit causation, at trial, his counsel acknowledged there was no
    realistic basis in law for finding no causation if a finding of dangerous driving
    was made. That admission was made as a submission in aid of a tactical defence preference
    not to have the offence of dangerous driving left with the jury. In these
    circumstances, Mr. Romano could not have complained had the trial judge
    directed the jury that it was agreed, as a matter of law, that if it was proved
    beyond a reasonable doubt that Mr. Romano drove dangerously, it must follow
    that his dangerous driving caused Ms. Abogados death.

[58]

The
    trial judges failure to provide such a direction after removing the included
    offence of dangerous driving from the jury created a problematic trial in three
    respects.

[59]

First,
    failing to make clear to the jury that causation was not a live issue left resonant
    defence counsels attempt to secure an acquittal based on the absence of
    causation, even though the defence had relied on the submission that causation was
    not a real issue so that it could obtain what it considered to be the tactical
    advantage of removing the dangerous driving charge from consideration.

[60]

Second,
    failing to make clear to the jury that causation was not a live issue created a
    realistic prospect that the trial judges instruction to acquit Mr. Romano entirely
    if only dangerous driving was proved beyond a reasonable doubt, would be acted
    upon by the jury. Of course, if that was the factual finding the jury was to
    make, a proper legal verdict would be a finding of guilt on the very charge the
    trial judge chose not to leave with the jury, namely, dangerous driving.

[61]

Third,
    failing to make clear to the jury that causation was not a live issue left the
    trial judge in a position where he was inviting the jury to arrive at a verdict
    he had already determined to be unreasonable on the evidence.

[62]

Ironically,
    the trial judge removed dangerous driving from the jury in large measure
    because, given how obvious causation was, it would puzzle the jury if he was to
    instruct them that they could find that causation was not proved beyond a
    reasonable doubt and then convict Mr. Romano only of the lesser offence. Instead,
    the trial judge ended up instructing the jury as if they could realistically
    find that that causation was not proved beyond a reasonable doubt, and then
    acquit Mr. Romano entirely  an equally confusing but also legally erroneous
    outcome.

[63]

In
    my view, the trial judge erred in law in giving a charge on the causation issue
    that did not furnish the jury with adequate guidance on how to address the
    issue of causation. Had this been the only error, the proper response on appeal
    would be to order a new trial solely on the included offence of dangerous
    driving. Regrettably, however, as I will next explain, this was not the only
    error in the jury charge.

(2)

The Charge and the
Actus Reus
and
Mens Rea

[64]

The
    Crown argues that the trial judge misdirected the jury by permitting
    considerations of causation to obscure a proper evaluation of the
actus
    reus
and

mens rea
of the dangerous driving component of
    the charged offence, and by permitting the focus to be on the collision, rather
    than Mr. Romanos manner of driving.

[65]

I
    agree with the Crown. The portion of the jury charge addressing whether Mr.
    Romano engaged in dangerous driving, or more technically, operated the motor
    vehicle in a manner that was dangerous to the public, gave undue focus to the
    collision, and to questions of responsibility for the collision. It should have
    focused on Mr. Romanos driving and whether that driving constituted a marked
    departure from the standard of care expected of a police officer in Mr.
    Romanos circumstances.

[66]

To
    make this point, the nature of the dangerous driving element of the offence
    of dangerous driving causing bodily harm requires elaboration.

[67]

As
    explained in
R. v. Roy
, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 28, summarizing
R. v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49, the dangerous driving
    element of the offence of dangerous driving causing death itself has two
    distinct elements, the
actus reus
and
mens rea
components:

The
actus reus
of the offence is driving in a manner
    dangerous to the public, having regard to all the circumstances, including the nature,
    condition and use of the place at which the motor vehicle was being operated
    and the amount of traffic that at the time was or might reasonably have been
    expected to be at that place (s. 249(1)(a) of the
Criminal Code
). The
mens
    rea
is that the degree of care exercised by the accused was a
marked

departure from the standard of care that a reasonable person would observe
    in the accuseds circumstances (
Beatty
, at para. 43). The care
    exhibited by the accused is assessed against the standard of care expected of a
    reasonably prudent driver in the circumstances. The offence will only be made
    out if the care exhibited by the accused constitutes a
marked
departure
    from the norm. While the distinction between a mere departure from the standard
    of care, which would justify civil liability, and a
marked

departure
    justifying criminal punishment is a matter of degree, the lack of care must be
    serious enough to merit punishment (para. 48). [Emphasis in original.]

[68]

The
    Supreme Court of Canada has been clear that in examining the
actus reus
element of dangerous driving, the focus should be on the manner of driving, not
    the consequences of driving, or the cause of those consequences. This is
    because it is an offence to drive dangerously even if no-one is injured; the
    act or conduct that the offence of dangerous driving addresses is driving in a
    manner that puts the public at risk that his may happen:
Roy
, at para.
    34. As Charron J. stated in
Beatty
, at para. 46:

As the words of the provision make plain, it is the
manner

in which the motor vehicle was operated that is at issue, not the
    consequence of the driving. The consequence, as here where death was caused,
    may make the offence a more serious one under s. 294(4), but it has no bearing
    on the question whether the offence of dangerous operation of a motor vehicle
    has been made out or not. [Emphasis in original.]

[69]

The
    same holds true, in my view, in assessing the
mens rea
of dangerous
    driving offences. This, again, is because the focus is on whether the manner of
    driving constitutes a marked departure from the standard of care that a
    reasonable person would observe in the accuseds circumstances. There must be a
    meaningful inquiry into the manner of driving, not into the degree of departure
    from the norm that the consequence demonstrates.

[70]

In
Beatty
, Charron J. did, at para. 46, recognize a limited role that
    consequences can play in assessing dangerousness and, by inference, in
    assessing whether a departure is marked:

The consequence, of course, may assist in assessing the risk
    involved, but it does not answer the question whether or not the vehicle was
    operated in a manner dangerous to the public.

[71]

Simply
    put, when asking whether the manner of driving has been dangerous, or
    represents a marked departure, a consequence that has occurred can verify the
    nature of the risks that existed, but that consequence should not be used in
    determining whether the manner of driving was dangerous or in marked departure
    from the norm. Judging whether driving was dangerous by exploring whether the
    accused is at fault for an accident that occurred obscures the proper focus on
    the manner of driving, and duplicates causation considerations that arise when,
    as in this case, an aggravated form of dangerous driving is charged.

[72]

Moreover,
    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.

[73]

Even
    when it comes time to consider causation in the context of intervening acts, the
    relevant foreseeability inquiry is not concerned with whether the specific
    consequence that occurred was reasonably foreseeable; the inquiry is whether
    the general kind of event that constitutes the putative intervening event is
    foreseeable. This is why this court asked in
Malkowski
, at para. 16,
    whether it was reasonably foreseeable that a person would go on to the road in
    some manner at the time and place of the appellants dangerous driving, rather
    than whether it was reasonably foreseeable that someone would attempt to run
    across the road as the victim did in that case.

[74]

In
    my view, the trial judge made these errors in charging the jury on how to
    assess whether Mr. Romanos driving was dangerous. The charge gave undue focus
    to the collision, and to questions of responsibility for the collision, when it
    should have focused on Mr. Romanos driving, and whether that driving constituted
    a marked departure from the standard of care expected of a police officer in Mr.
    Romanos circumstances. I will elaborate.

[75]

The
    trial judge began the relevant portion of his charge properly by giving the
    standard direction to the jury to decide whether the manner of driving was
    dangerous to the public, and to focus on the risks created and not the
    consequences. Further, he told the jury: [e]ven if Ms. Abogado was partly
    responsible for what happened, the fact that she was jaywalking is only
    relevant to foreseeability of risk.

[76]

Leaving
    aside that the trial judge did not go on to explain how Ms. Abogados jaywalking
    was relevant to the foreseeabilty of the risk, the trial judge then took a
    wrong turn. After drawing attention to Ms. Abogados partial responsib[ility]
    for what happened and her jaywalking, he directed the jury to ask, in light
    of all the circumstances, would a reasonable, prudent police officer have
    foreseen
the risk
and taken steps to avoid it (emphasis added). In
    doing so, he focused the jury on the risk posed given Ms. Abogados jaywalking,
    and not the general risks to the public that may have been posed by Mr.
    Romanos manner of driving.

[77]

What
    followed in the trial judges instructions is more problematic, as the focus on
    the collision and Ms. Abogados role in it became more intense. Although I have
    quoted part of these instructions earlier in these reasons, they bear
    repetition in full:

In considering whether the driving in question was dangerous as
    I have defined it, you will take into account that Ms. Abogado was jaywalking,
    that is, she was crossing St. Clair Avenue East in the middle of the road, not
    at an intersection or at a crosswalk. Jaywalking is an inherently risky
    activity.

Pedestrians must be aware, when they jaywalk, that drivers are
    not always paying attention, not always concentrating on what is going on ahead
    of them. Also, Ms. Abogado was wearing generally dark clothing, meaning that
    she would be more difficult for a driver to see, especially given that it was
    night time and it was dark out.

[78]

The
    focus in this passage is wrong in law. The passage instructs the jury to
    evaluate the dangerousness of the driving and the degree of departure from the
    norm by examining the circumstances of the collision rather than the manner of
    Mr. Romanos driving. The passage also gives emphasis to the conduct of Ms. Abogado.
    The issue for the jury at this juncture was not the specific question of
    whether the collision with Ms. Abogado was foreseeable and avoidable. It was
    the more general question whether the manner of driving presented foreseeable
    and avoidable risks to the public, including risks that would arise if persons
    entered or were on the roadway.

[79]

In
    fairness, the trial judge did then properly re-orient the jury:

That said, everyone who drives knows that people jaywalk. It
    happens often. Indeed, Mr. Goode, the bus driver, told you that people cross
    St. Clair Avenue, in the way that Ms. Abogado did, pretty frequently. Drivers
    should, therefore, be alert to the possibility of pedestrians [
sic
]
    jaywalking, just as they should be alert to the possibility that another driver
    may do something that will cause a situation that needs to be avoided and be
    prepared to adjust their driving accordingly.

[80]

In
    the following three paragraphs, however, the improper focus on the
    foreseeability and avoidability of the collision with Ms. Abogado was
    reintroduced. The jury was directed to evidence about whether, given the speed at
    which Mr. Romano was travelling, Ms. Abogado could have been seen in time to
    avoid the collision, and whether Ms. Abogado ran in front of or stopped in
    front of Mr. Romanos police vehicle.

[81]

The
    balance of the relevant portion of the charge was appropriate. The trial judge
    addressed Mr. Romanos familiarity with the area where he was driving, and
    identified admissions by Mr. Romano that, given the speed at which he was
    travelling, he could not do anything about pedestrians on the road, like Ms. Abogado,
    and that he did not take into account that a person might be jaywalking from
    the bus shelter, a bus shelter he did not know was there.

[82]

The
    trial judges final paragraph addressing the dangerousness of the driving was exemplary:

In the end result, you will have to decide whether you consider
    the manner in which Mr. Romano was driving, including the speed that he was
    travelling at; the fact it was on a city street with residences around; the
    fact that it was dark but there was street lighting; and the potential for
    pedestrians to be jaywalking, constituted a marked departure from the manner in
    which a reasonable, prudent police officer would drive in the same
    circumstances.

[83]

The
    issue, then, is whether the proper bookending paragraphs of the charge focusing
    on the general manner of driving and the general risks posed by that driving, are
    sufficiently clear to overcome the misdirected and misleading focus on the
    consequence or collision, and on the blameworthiness of Ms. Abogado that is shot
    throughout this part of the charge.

[84]

In
    making this determination, I am required to consider the legal standards that
    are imposed on jury charges. Specifically, the relevant inquiry here is about
    the obligation of the trial judge to assist the jury in understanding the
    factual issues arising out of the legal framework that the jury must resolve,
    and the material evidence relevant to those issues:
R. v. Newton
, 2017
    ONCA 496, 349 C.C.C. (3d) 508, at para. 11. As this court explained in
Newton
,
    at para. 13, while judges have discretion in how to charge and can stray from
    the ideal without error, the sufficiency of the charge in these respects should
    be resolved by asking, functionally: has the jury been left with a sufficient
    understanding of the facts as they relate to the relevant issues; or are we
    satisfied that the jurors would adequately understand the issues involved, the
    law relating to the charge the accused is facing, and the evidence they should
    consider in resolving the issues. If the answer is no to either question,
    the trial has not been a fair one.

[85]

Looking
    at the matter functionally, I do not believe that general instructions to examine
    the manner of driving, and an exemplary concluding paragraph, could dissuade a
    jury from engaging in the improper exercise the trial judge repeatedly directed
    the jury to undertake. I am reinforced in this conclusion by the fact that some
    of the passages in the charge include irrelevant and adverse comments on the
    inherently risky activity of jaywalking, and on the responsibility jaywalkers
    bear. In the end, the jury was not left with a sufficient understanding of the
    facts as they relate to the relevant issues. Nor would the jurors have
    adequately understood the issues involved, the law relating to the charge the
    accused is facing, and the evidence they should consider in resolving the
    issues.

[86]

To
    summarize, notwithstanding the absence of an objection to the charge by the trial
    Crown, the errors in the charge described above are sufficiently serious that
    the jury was not in a position to evaluate properly the dangerousness of the
    operation of the motor vehicle, leading to a miscarriage of justice.

(3)

The Charge and Lawful Justification

[87]

There
    is no lawful justification defence to the offence of dangerous driving.
    Instead, the law uses the
mens rea

component of the offence of
    dangerous driving to permit emergency personnel to operate motor vehicles in a
    manner that might otherwise be criminal. As I have explained, to establish the
mens
    rea

of dangerous driving the Crown must prove that the manner of
    driving was a
marked
departure from the standard of care that a
    reasonable person would observe in the accuseds circumstances (emphasis in
    original):
Roy
, at para. 28. In applying this modified objective
    test in which the accuseds circumstances are relevant, the status of the
    accused as an on-duty police officer acting in the course of his duties must be
    considered. Unless the manner of driving by the accused is a marked departure
    from the standard of care that a reasonable on-duty police officer would observe
    in the circumstances, dangerous driving cannot be found.

[88]

The
    Crown raises issues with the way the trial judge charged the jury on this
    issue. Specifically, the Crown contends that the charge relating to Mr.
    Romanos role as a police officer was misleading in that it left the impression
    that s. 128(13) of the
Highway Traffic Act
was a defence to dangerous
    driving. The Crown also urges that the overall instruction on this issue was
    confusing, failing to provide guidance on how to evaluate Mr. Romanos role at
    the time of driving as an on-duty police officer. I would not give effect to
    either of these grounds of appeal.

[89]

Section
    128(13) of the
Highway Traffic Act
provides that speed limits do not
    apply to police department vehicles used in the lawful performance of a police
    officers duties. If an officer is in the lawful performance of their police
    duties, this provision exempts police officers from speed limits, but not from
    criminal offences such as dangerous driving.

[90]

Still,
    it was proper for the trial judge to acquaint the jury with s. 128(13) of the
Highway
    Traffic Act
. Since the jury was required by law to evaluate whether Mr.
    Romanos manner of driving was a
marked
departure from the standard
    of care that a reasonable person would observe in the accuseds circumstances,
    the jury had to be instructed that, like other police officers, Mr. Romano was
    lawfully entitled to exceed posted speed limits:
Roy
, at para. 38.

[91]

Had
    the trial judge actually communicated that s. 128(13) of the
Highway Traffic
    Act
is a defence to a dangerous driving causing death charge, he would have
    erred. However, he did not do so. Immediately after introducing the provision
    he directed the jury:

That exemption does not mean, however, that police officers
    have a licence to do whatever they please in terms of driving above the speed
    limit. They are still subject to the criminal law and can face charges for
    their actions, as Mr. Romano does here. In addition, police officers must
    always act in a reasonable and prudent manner with a view to protecting the
    public. They must have regard for their actions, and the consequences of those
    actions, for public safety.

[92]

Nor
    did the trial judge fail to alert the jury to the higher standard of care that
    applies to police officers operating vehicles in the privileged manner permitted
    under s. 128(13). He did so with clarity earlier in the charge.

[93]

The
    related Crown complaint, that the charge was confusing and failed to provide
    guidance on how to evaluate Mr. Romanos role at the time as an on-duty police
    officer, has more foundation. Specifically, parts of the jury charge may be
    read as suggesting that there is a self-standing defence of lawful
    justification. These include the trial judges reference to lawful
    justification or excuse in the charge, and his direction that the jury
    consider whether Mr. Romano had a lawful justification, excuse or explanation for
    [his] driving.

[94]

It
    would have been better had the trial judge avoided such language and simply
    explained directly how Mr. Romanos role as an on-duty police officer must be
    considered in applying the marked departure test. Read in context, however, I am
    satisfied that the isolated passages in question would not have left this jury
    confused. The trial judge did not purport to offer a legal test for identifying
    lawful justification or excuse, as if it was a self-standing defence.
    Instead, he situated this discussion within his canvas of the dangerous driving
    element of the offence. He also posed the correct questions for consideration,
    including whether it was important for Mr. Romano to regain his position with
    the surveillance team, whether it was reasonable not to activate his emergency
    lights, and whether in driving above the speed limit he acted in a reasonable
    and prudent manner with a view to protecting the public. Immediately after
    raising these questions, the trial judge told the jury to decide whether Mr.
    Romano drove in a marked departure from the manner in which a reasonable,
    prudent police officer would have done in the same circumstances. These were
    proper and necessary considerations.

[95]

Accordingly,
    I would not give effect to this ground of appeal.

CONCLUSION

[96]

For
    the reasons given, I would reject the Crowns first and last grounds of appeal.
    The trial judge was correct not to leave the included offence of dangerous
    driving with the jury, and his instructions relating to Mr. Romanos role as an
    on-duty police officer do not reflect reversible error.

[97]

I
    would, however, give effect to other grounds of appeal.

[98]

Having
    removed the dangerous driving charge from the jury, the trial judge erred by
    leaving, as a live issue, the possibility that the jury could make factual
    findings that would support a finding of guilt on a dangerous driving charge, and
    yet acquit Mr. Romano entirely.

[99]

Moreover,
    the jury charge relating to the
actus reus

and
mens rea

elements of dangerous driving was confusing, and failed to give proper
    guidance that would enable the jurors adequately to understand the issues
    involved and the evidence they should consider in resolving these issues.

[100]

I would
    therefore allow the appeal, set aside the verdict of acquittal, and order a new
    trial on the charge of dangerous driving causing death.

Released: November 3, 2017 (D.M.P.)

David M. Paciocco J.A.

I agree. E.A. Cronk J.A.

I agree. R.G. Juriansz J.A.

[1]
Ms. Abogados legal name
, the name included in the indictment,
    is Natasha Abogado. She went by the name of Carla, hence its use in these
    reasons.