R. v. Battaglini, 2013 ONCJ 587

COURT FILE NO.: Central East - Newmarket 12-05252 DATE: 2013-10-29 Citation: R. v. Battaglini , 2013 ONCJ 587 O N T A R I O C O U R T O F J U S T I C E BETWEEN: HER MAJESTY THE QUEEN — AND — BRUNO S. MORRONE BATTAGLINI Before Justice P.N. Bourque JUDGMENT Released on October 29, 2013 S. Kumaresan........................................................................................................... for the Crown B. Starkman............................................................ for the accused Bruno S.

Morrone Battaglini BOURQUE J.: Overview [ 1 ] As a result of a drive for some 12 kilometres along Highway 407 in York Region, and a subsequent traffic stop, the defendant is facing a charge of dangerous driving. Derek Dominico [ 2 ] . . . was driving his truck with a trailer attached eastbound along Highway 407 between 4:00 and 5:00 p.m. in the afternoon. It was clear and sunny. He was in the second lane (from the left).

As he looked into his driver's mirror, he saw a white Dodge Avenger automobile move into the first lane (from the left), onto the left shoulder of the 407, and the vehicle's two left wheels go up onto the lower portion of the concrete median (the concrete was flared at the bottom). He saw some traffic slow down as the white Dodge came off the median and he proceeded in the shoulder to pass the witness at a fast rate of speed. [ 3 ] The witness stated he was going 110 kilometres an hour on cruise control but took it off as the vehicle passed. He saw the vehicle continue and then move into the first lane.

An unmarked brown police cruiser which was parked on the ramp at Pine Valley Road came onto the 407 and put on his traffic lights. The white car continued ahead and another police vehicle joined with the first vehicle just past Keele Street.

The vehicles proceeded in this fashion for some 12 to 15 minutes. [ 4 ] The witness lost sight of the white car for several seconds and then lost sight for up to a minute when he then saw the white vehicle stopped on the left side of the off- ramp of the 407 at Dufferin Street and saw the two police cars, one in front and one behind the white car. [ 5 ] When the vehicle went by, he noticed the driver was a blond haired man with sunglasses and he saw the same man walking beside the white car being held by a police officer. He gave a brief statement to the police officer.

While the officer (his evidence is reviewed below) indicated that the witness said that the defendant “almost struck the median”, this witness denied saying that to the officer and stated that he told the officer that “he did hit the median”. Bill Gerov

[ 6 ] . . . is an officer with the Ontario Provincial Police with 5 years experience. He was on general patrol on the Highway 407 on June 13, 2012. He received two radio dispatches, one at 3:32 p.m., which spoke of a possible impaired driver on Highway 407 at Hurontario Street proceeding eastbound, travelling at 150 kilometres per hour in a 100 kilometres per hour zone and was weaving in his lane and driving in the left shoulder and almost sideswiped the left barrier.

A couple of minutes after this complaint, another complaint comes in describing the same motor vehicle on Highway 407 at Goreway Drive, had sideswiped the left barrier, with speed of approximately 150 kilometres an hour (with regard to these dispatches as they are hearsay, I do not use them in my assessment of the case). [ 7 ] The officer was on the right shoulder at Pine Valley Drive. The weather was sunny, clear, and the road was dry with medium traffic. The road was 5 lanes of eastbound traffic with a cement barrier at the left side.

At 3:27 p.m., the officer saw the suspect car passing Pine Valley Drive and the officer sped up and noticed a white car with a Quebec licence plate. The officer got behind the vehicle some 4 to 5 car lengths with no obstructions. The officer paced the white vehicle at 140 kilometres an hour and then as the vehicle approached the intersection of Highway 400, it accelerated to 145 kilometres an hour. The white car was weaving in the lane and a large portion of the vehicle went over the full yellow line onto the left shoulder. At numerous times the vehicle almost swiped the concrete barrier.

As the vehicle approached Keele Street, the white car braked and almost hit a car in front and slowed to 110 kilometres an hour. The white car went into lane 3 to the right and then went back to lane 1 and increased speed. [ 8 ] The officer activated his lights and siren at this time. The speed of the white car was 110 kilometres an hour and it did not slow down. At the approach to Dufferin Street, the car activated a right turn signal and slowly merged into lane 3, and then without signalling, came back into lane 1.

The white vehicle then abruptly swerved to the right, crossing all three lanes of traffic, crossed the bull nose of the ramp over the gravel, leaving a cloud of dust. The car then went into lane 1 and partially onto the shoulder of the ramp. [ 9 ] The officer pulled his vehicle up beside the white car on the ramp and motioned for the driver to pull over after making eye contact. The white car was still going between 30 and 40 kilometres an hour. The officer accelerated in front of the white car and pulled in front.

The defendant stopped his car beside the driver's door of the police car. [ 10 ] The officer approached the white vehicle at 3:29 PM and went up to the defendant and told him of the driving complaints and the officer's observed driving behaviour. The vehicle was in drive and the officer told him to put it into park. The officer asked if he had had anything to drink and the driver said “no”. [ 11 ] The officer then launched into an investigation of the driver to ascertain any issues of impairment by alcohol or drugs.

The defendant was originally arraigned in this proceeding on a charge of impaired driving by drug or alcohol. After some evidence by the officer on that issue, the Crown chose not to proceed further and I dismissed that charge. I will not consider any of that further evidence dealing with the investigation, in deciding whether the Crown has proven the charge of dangerous driving. Andreas Kotsopoulos [ 12 ] . . . is an officer with the Ontario Provincial Police and was positioned on the side of the eastbound Highway 407 just east of Keele Street.

He received a radio dispatch of a white dodge SUV or Toyota Avanza which was being followed by another OPP cruiser. [ 13 ] He did not notice the defendant’s car go by neither did he notice the police cruiser. He heard radio traffic and drove east along Highway 407 to the Dufferin Street exit and stopped his vehicle near where the defendant and other officer had stopped their vehicles. He never saw the defendant’s vehicle moving. He stated that he got out and proceeded to direct traffic around the stopped vehicles. The witness Mr.

Dominico drove slowly past him and told him that the defendant’s vehicle “almost hit the median”. The officer believed that is what he said to him and said that while he was not taking a statement per se, he wrote the notation down in his book soon after it was spoken. Dangerous Driving The Law [ 14 ] The

section of the Criminal Code which is operative in this matter is section 249 (1) (

a) which reads as follows: 249.

(1) Every one commits an offence who operates (

a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; [ 15 ] As the courts have pointed out on many occasions, there are essentially four different levels of culpability in dealing with the way in which our law treats the negligent operation of a motor vehicle. [ 16 ] At the lowest end of the scale is the civil finding of negligence in a civil case.

In that situation, there is no specific criminal culpability (although such culpability can exist it is not necessary to prove in the civil context). Within that civil context, there have been two different levels developed over the years to take into account different fact situations.

They are “negligence simpliciter” and “gross negligence”. [ 17 ] Indeed, in the civil standard, where negligence in a proceeding can be apportioned amongst various parties by percentage, the driving fault can be an extremely minor one in order to attract liability. [ 18 ] At the low end of the criminal scale is “careless driving” which is set out in

section 130 of the Highway Traffic Act and states:

130. Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care andattention or without reasonable consideration for other persons using the highway and on conviction… [19] In the leading case of R. v. Hundal[1], Cory J., in speaking for the majority, stated: Thus, it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accusedsubjectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care.

It is not overlydifficult to determine when a driver has fallen markedly below the acceptable standard of care. There can be no doubt that the concept ofnegligence is well understood and readily recognized by most Canadians.

Negligent driving can be thought of as a continuum thatprogresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincialHighway Traffic Act to dangerous driving under the Criminal Code. [20] Cory J. goes to the state: It follows that a trier of fact may convict if satisfied beyond a reasonable doubt that viewed objectively, the accused was, in the words ofthe section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, conditionand use of such place and the amount of traffic that at the time is or might reasonably be expected on such a place”.

In making theassessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that areasonable person would observe in the accused situation. [21] It is therefore clear that the standard of driving is a “marked departure from the standard of care that a reasonable personwould observe in the accused’s situation”. [22] In addition, with regard to the issue of mens rea, the court adopted what it refers to as a “modified objective test”. As thecourt found: “to insist on a subjective mental element in connection with driving offences would be to deny reality.

It cannot beforgotten that the operation of a motor vehicle is, as I have said so very often, automatic and with little conscious thought. It is simplyinappropriate to apply a subjective test in determining whether an accused is guilty of dangerous driving.” [23] In adding a “modified” nature to the objective test, the court stated that, “it will remain open to the accused to raise areasonable doubt that a reasonable person would have been aware of the risks in the accused’s conduct. The test must be applied withsome measure of flexibility.

That is to say the objective test should not be applied in a vacuum but rather in the context of the eventssurrounding the incident.” [24] It is in the light of those directions that courts have attempted to apply these tests to the many and varied different factsituations that come before them. [25] In R. v. Sabela[2], Borins J.A., in speaking for the majority stated: The appropriate mens rea is based on a modified objective test.

If it is proven, viewed objectively, that the accused was driving in amanner that was dangerous to the public, having regard to all of the circumstances, and that the driving amounted to a marked departurefrom the standard of care that a reasonable person in the accused’s situation would observe, a conviction will result.[3] [26] In R. v. Beatty[4], the Supreme Court stated: …Even the most able and prudent driver will from time to time suffer from momentary lapses of attention. These lapses may well resultin conduct that, when viewed objectively, falls below the standard expected of a reasonably prudent driver.

Such automatic and reflexiveconduct may even pose a danger to other users of the highway. Indeed, the facts in this case provide a graphic example. The fact thatthe danger may be the product of little conscious thought becomes of concern because, as McLachlin J. (as she then was) aptly put it inR. v. Creighton, (SCC), (S.C.C.), [1993] 3 S.C.R. 3, at p. 59: “The law does not lightly brand a personas a criminal.” In addition to the largely automatic and reflexive nature of driving, we must also consider the fact that driving, althoughinherently risky, is a legal activity that has social value.

If every departure from the civil norm is to be criminalized, regardless of thedegree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such anapproach risks violating the principle of fundamental justice, that the morally innocent not be deprived of liberty. [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 theconsequence of the driving. There must be a meaningful inquiry into the manner of driving. [27] Speed is an essential element of the Crown’s case.

In that context, earlier cases which seem to suggest that speed in and ofitself cannot be the basis to found a charge of dangerous driving, are incorrect. In R. v. Richards[5], the court of appeal stated atparagraph 11: This court recognized in Pezzo that, under certain circumstances, evidence of excessive speed, in itself, can constitute the offence ofdangerous driving (per Arnup J.A. at p. 531 and Gale, C.J.O. at p. 532). As properly recognized by counsel for the respondent, thatprinciple has been confirmed by this court in various subsequent decisions, including in R. v.

M. (M.K.) (1998), (ONCA), 35 M.V.R. (3d) 319 in which this court said at p. 319: The trial judge concluded that in the circumstances the appellant’s excessive speed amounted to dangerous driving. The evidence at trialamply supported his conclusion. Depending on the context in which it occurred, excessive speed can amount to a marked departure from the standard of care of a prudentdriver. Analysis

Circumstances of Driving [ 28 ] The defendant has questioned whether I can be certain about the various aspects of the defendant's driving in light of various inconsistencies between the Crown witnesses. I will review those inconsistencies. [ 29 ] He cites the fact that officer Kotsopoulos did not see the defendant's vehicle go past. Officer Kotsopoulos stated that he was looking for different vehicles, and I note he did not see the unmarked police vehicle go past either. The vehicles obviously went past.

The vehicles (the defendant and the officer) were 3 to 4 lanes over from his position and there was medium traffic. At that point officer Gerov is speaking of weaving by the defendant and going onto the shoulder and back again. The time they may have been in his field of vision is very small. I don't believe that anything turns on this issue and I certainly don't think that he is in any position to contradict any of the evidence of officer Gerov. [ 30 ] With regard to the evidence of Mr. Dominico , there is some discrepancy between his evidence and Officer Gerov with regard to the total time of the journey.

They are obviously both wrong, as 15 minutes, as per Mr. Dominico, is too great and two minutes, as per Officer Gerov, is too short. Does this impact in any significant way upon either of their observations? I don't think so. Both times are after-the-fact estimates and they were both driving and making observations at the time (I note that Mr. Dominico’s estimated time of the event is also quite different from the officer’s). [ 31 ] There is also the issue of whether Mr. Dominico was correct in his evidence about whether the defendant’s car actually hit the median or only came close.

As he described it in his evidence, the median starts at a slope and then becomes straight. He stated that the two left wheels of the defendant’s car went onto the sloped part and then the vehicle moved quickly back into the lane. There is no evidence of damage to the defendant’s car. The description is consistent with the striking that he describes and I do not think it is inconsistent with what he said to the officer. Rolling up on the slanted portion on two wheels is not quite the same as striking the concrete median with the body of the car.

In any event, it does not detract from the fact that for a period of time, the defendant was travelling on the left shoulder of a 400 series highway. The space for this travel was very narrow. [ 32 ] The descriptions of Mr. Dominico and officer Gerov do not coincide in all particulars, including how long the defendant was on the shoulder and the issue of the weaving. Both of these issues can and are explained by the different positions of the vehicles. Mr. Dominico was falling behind as he took off his cruise control and I note that he lost sight of the defendant’s vehicle for the last minute or so of travel.

The police officer stated that from the time that he caught up to the defendant, he remained some 4 to 5 car lengths behind. He was in a much better position to make observations and to also note whether the vehicle was weaving, and what lane the vehicle was in. Where there is a contradiction between the officer and Mr. Dominico , I accept the officer’s evidence simply from his much better position relative to the defendant’s vehicle. [ 33 ] Likewise is the evidence of the location of the defendant’s vehicle in which lane. The officer was following. I accept his evidence.

The issue of the lights on the police vehicle is also one that the officer is in the best position to speak of as he was driving the car. Even if I am incorrect, that would put the defendant driving for some 11 kilometres with a police vehicle with sirens sounding without taking any steps to stop his vehicle. I do not make that finding. [ 34 ] I therefore accept the evidence of officer Gerov and the witness Mr.

Dominico, insofar as it is not in those few points of conflict. [ 35 ] The following factors are important in assessing whether the Crown has proven the charge of dangerous driving beyond a reasonable doubt: (

a) the defendant was driving for several periods of time on the left shoulder or partially on the left shoulder of the 407 highway; (

b) the defendant was driving up to 145 kilometres per hour and for a significant portion of the time between 130 and 140 kilometres per hour; (

c) the defendant struck, at least with the wheels of his car, the concrete median of the highway; (

d) the defendant weaved in his lane and onto and off of the shoulder of the road; (

e) the defendant came up behind one vehicle and put on his brakes hard to avoid a collision; (

f) the defendant was traveling on the 407 from Keele Street to Dufferin Street while being followed by a police vehicle which was using its emergency lights and sirens. There is no evidence that the defendant took any steps to stop for the police vehicle for approximately 3 kilometres; (

g) the vehicle drove quickly across 3 lanes of traffic to exit at Dufferin Street and crossed onto the gravel portion of the bull nose and then drove partially on the road and the shoulder; (

h) the defendant stopped when the police cruiser pulled in front of him; (

i) for the duration of this driving, there was medium traffic upon a multi-lane 400 series highway with a speed limit of 100 kilometres per hour. [ 36 ] All in all, I must decide whether those factors noted above convince me beyond a reasonable doubt that the accused was driving in a manner that was dangerous to the public, having regard to all of the circumstances, and that the driving amounted to a marked departure from the standard of care that a reasonable person in the accused’s situation would observe. [ 37 ] In coming to a conclusion, I believe that I can look at totality of the driving actions noted above.

In other words, does the speeding, the weaving, the striking of the centre median, the driving on the shoulder of a 400 highway, the changing of several lanes, the

ignoring of the police officer for over a kilometre, the movement back and forth across lanes, without signalling, and the failure to come to a stop before being cut off by a police cruiser, all in medium traffic to make up my mind as to whether such driving constitutes dangerous driving. This was not just one momentary failure in judgment, or automatic and reflexive conduct, but a pattern of driving for a significant distance. [ 38 ] Based upon the evidence which I have accepted, I believe that the totality of this driving behaviour constitutes the definition of dangerous driving.

I am not left in any reasonable doubt by the failure of all witnesses to describe all aspects of the scene in the same fashion. Conclusion [ 39 ] I find the defendant guilty of the offence of dangerous driving. Signed: “Justice P.N. Bourque” Released: October 29, 2013