R v Tornabene

Her Majesty The Queen v. Maurizio Tornabene

Ontario Court of Justice, Toronto Region
The Honourable Justice R. Khawly | March 18, 2003

Background

Maurizio Tornabene was charged with running a red light after a motor vehicle collision. When Officer Madeira arrived at the accident scene, he found six to eight people standing around. The officer asked who was driving the van, and Tornabene stepped forward and produced his driver's licence to identify himself. At trial, the Crown initially sought to introduce this as evidence that Tornabene was the driver, but then repeatedly changed positions on whether they were relying on this statement.

The justice of the peace convicted Tornabene, apparently relying on the officer's testimony about Tornabene stepping forward and identifying himself as the driver. Tornabene appealed, arguing that this statement should have been subject to a voir dire to determine its voluntariness before being admitted as evidence.

Issues

1. Whether the statement made by Tornabene identifying himself as the driver required a voir dire
2. Whether there was sufficient evidence to prove Tornabene was driving without relying on his statement
3. Whether the Crown could rely on a statement after repeatedly stating they would not enter it as evidence

The Statement Admissibility Problem

The Crown's case fell apart due to prosecutorial confusion and insufficient evidence. While Tornabene had a statutory obligation under the Highway Traffic Act to identify himself when requested by police, the Crown wanted to go further — to use his act of stepping forward as evidence that he was actually driving the vehicle. Defence counsel Todd Brown argued this required a proper voir dire under R. v. Slopek, which established that even when there's a statutory compulsion to provide identification, the Crown must still prove any statement wasn't otherwise involuntary if they want to use it to establish driving.

The Crown prosecutor, Ms. Theroux, created chaos by first requesting a voir dire, then stating "I'm prepared to close the case without entering the statement given to the officer," then later trying to rely on it again. Justice Khawly noted that if the Crown wasn't relying on the statement, there was no basis for the justice of the peace to use it in reaching a conviction. Crucially, there was no evidence from civilian witnesses that Tornabene was driving — only the contested statement to police.

Key Takeaway

The Crown cannot have it both ways — if they abandon a key piece of evidence during trial, they can't rely on it for a conviction.

Self-represented defendants should understand that statements to police at accident scenes, even when made in response to statutory obligations, may require proper voir dire procedures if the Crown wants to use them as evidence of driving. The appeal was allowed and a new trial ordered.