COURT OF APPEAL FOR ONTARIO
Huscroft, Roberts and Pomerance JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Adnan Refaeh
Appellant
Nathan Gorham K.C. and Breana Vandebeek, for the appellant
Samuel Greene and Akshay Aurora, for the respondent
Heard: May 8, 2026
On appeal from the conviction entered by Justice Cynthia Petersen of the Superior Court of Justice, sitting with a jury, on December 5, 2023, and from the sentence imposed on March 19, 2024, with reasons reported at 2024 ONSC 1604.
REASONS FOR DECISION
1This appeal involves dangerous street racing and its tragic consequences. The appellant appeals his convictions and seeks leave to appeal his 15-month custodial sentence for dangerous driving causing bodily harm and failing to remain at the scene of an accident where bodily harm was caused. These reasons explain why we dismiss both the conviction and sentence appeals.
A. Factual Overview
2At approximately 8:00 p.m. on May 15, 2021, the then 19-year-old appellant engaged in a particularly dangerous street race, instigated by another individual, Mitchell Nodwell (then unknown to the appellant). According to the appellant, while both cars were stopped at an intersection, Nodwell looked over at the appellant and revved his car engine. By his own admission, in response, the appellant revved the engine of the car he was driving, his father’s BMW, and started speeding to keep up with Nodwell’s Cadillac to show the BMW was “just as nice.” The two cars then engaged in a prolonged, high-speed race in downtown Guelph, crossing in and out of lanes over 22 intersections, exposing other drivers, passengers and many pedestrians to grave danger. The race ended with Nodwell’s car colliding head-on with another vehicle, seriously injuring the 13-year-old passenger, T.K., and damaging other vehicles.
3The appellant’s then girlfriend (a passenger in the BMW) testified that, after driving away from the crash, the appellant stopped his car briefly at the side of the road and got out to look at the crash scene. He ignored her pleading to offer help to the crash victims, telling her to “[g]et back in the fucking car”, before driving away.
4With the encouragement of his family members (one of whom was a police officer at the time), the appellant made efforts to cover up his involvement in the crash, including changing identifiable aspects of the BMW, having the BMW repaired, deleting from his social media a photo of the BMW and driving a different car after committing the offences. He also lied to the police about his involvement.
5After a search warrant was obtained for his house, the appellant was arrested on May 21, 2021 and charged with, among others, operating a motor vehicle in a manner that was dangerous to the public and that caused bodily harm (contrary to s. 320.13(2) of the Criminal Code, R.S.C. 1985, c. C-46) and with failing to remain at the scene of an accident where bodily harm was caused (contrary to s. 320.16(2) of the Criminal Code). After speaking with counsel and his father, the appellant gave a statement to police, during which, as he admitted at trial, he told numerous lies to conceal his involvement in the accident. The trial judge subsequently found his police statement was voluntary and admissible.2
6While on judicial interim release pending trial, the appellant was charged with two instances of breaching his undertaking not to drive. Those charges were withdrawn because the appellant agreed that the facts underlying the breaches could be relied upon for the purposes of sentencing.
7Prior to the commencement of trial, the appellant brought a s. 11(b) Charter application based on delay of 30 months and 21 days. The application judge dismissed the application, accepting that the 21-day delay exceeding the 30-month threshold was justified and reasonable because of the complexity of the case.3
8On December 5, 2023, the appellant was convicted by a jury of the offences of dangerous driving and failing to remain at the scene. The trial judge imposed a global custodial sentence of 15 months – 12 months for the dangerous driving conviction and 3 months for the failing to remain at the scene conviction – followed by a 3-year driving prohibition.4
B. Issues and Analysis
9The appellant raises several grounds of appeal. We accept none of them. We begin with the grounds of appeal relating to the conviction and then turn to the grounds relating to sentence.
a. Conviction appeal
i. The application judge made no error in dismissing the appellant’s s. 11(b) Charter application.
10The appellant submits that the application judge erred in concluding that his case was particularly complex, thereby justifying the delay. Specifically, he says that the application judge’s reasons were conclusory and insufficient.
11We disagree.
12The application judge referenced and applied the governing principles in her assessment of the agreed upon delay of 30 months and 21 days, based on an anticipated four-week trial. In particular, she was alert to the Crown’s burden to prove the exceptional circumstance of complexity justifying the delay. She set out in detail why she concluded that this case was particularly complex and that the Crown took appropriate steps to mitigate any delay caused by the complexity. Her decision on these issues “fall[s] well within [her] expertise”, reveals no reversible error and is therefore entitled to appellate deference: R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, at para. 88; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 79; R. v. Vrbanic, 2026 SCC 19, at para. 84.
13We see no error that would justify appellate intervention.
ii. The appellant’s police statement was voluntary and admissible.
14At trial, the Crown brought a voluntariness application regarding the statement that the appellant gave to Sergeant Gordon on May 21, 2021, following his arrest. The appellant argues, as he did before the trial judge, that Seargent Gordon impermissibly suggested a quid pro quo: it would be better for the appellant to make a police statement closer to the event. On appeal, the appellant submits that the trial judge erroneously considered the quid pro quo in a piecemeal fashion by treating the suggestion that it would be better for the appellant to make a police statement closer to the event as separate from the appellant’s perception of the strength of the case against him, and then finding that the appellant chose to speak based only on the latter consideration.
15We do not accept these submissions.
16The trial judge properly applied the governing principles and considered the evidence as a whole. In particular, referencing R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, she did not follow a piecemeal approach but considered whether the implied inducement, “either standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the free will of the accused was overborne”. She concluded that “the implicit quid pro quo was so ambiguous as to constitute only a weak inducement or impotent threat.” She was satisfied beyond a reasonable doubt that the quid pro quo was not a factor in the appellant’s ultimate decision to give the statement.
17A finding of voluntariness is entitled to deference unless it can be shown that it represents a palpable and overriding error: R. v. Tessier, 2022 SCC 35, [2022] 2 S.C.R. 660, at para. 43. We see no such error here.
iii. The jury charge was adequate and correct.
18The appellant raises the following issues with the jury charge: 1) the defence of abandonment should have been included; 2) the mens rea instruction for dangerous driving was incorrect; 3) the causation instruction was incorrect; 4) the after-the-fact conduct instruction was incorrect; 5) the defence of self-defence should have been included; and 6) the instruction on the utterances attributed to the appellant following the crash was incorrect.
19It is well-established that this court is to take a functional approach in reviewing the jury charge for error to ensure that the jury was properly instructed: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at paras. 14, 62. Moreover, as noted below, the defence counsel’s failure to object to any of the portions of the jury charge impugned on appeal undermines the arguments about the alleged inaccuracies in the jury charge:Jacquard, at para. 38. We are not persuaded that the jury charge contains any reversible error.
20The first four issues related to the jury charge depend on the appellant’s overarching submission that the trial judge erred by failing to properly highlight to the jury the appellant’s evidence of his fear and desire to disengage with Nodwell. He says that this evidence supported a defence of abandonment, informed the mens rea, was relevant to the question of causation and explained his after-the-fact conduct of leaving the scene.
21First, we agree with the trial judge’s assessment that there was no air of reality to the defence of abandonment. The appellant’s internal subjective state alone cannot suffice to cancel out participation: R. v. Copeland, 2025 ONCA 278, 176 O.R. (3d) 285, at paras. 64-66; R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at paras. 60-62; R. v. Laverdiere, 2020 ABCA 121, at paras. 12-18. Even accepting that the appellant had a subjective change of heart and wished to disengage from the race and go home, he did not take any reasonable steps consistent with abandonment but continued to drive in a dangerous manner until the crash.
22Second, the trial judge did not err by failing to review, again, in the context of the mens rea instruction for dangerous driving, the appellant’s evidence that he did not want to engage with Nodwell and was just “trying to get away”. As courts have recognized, although it may be useful to do so, “there is no need to state evidence twice where once will do”: Jacquard, at para. 14. The appellant’s evidence of his subjective state of mind was repeated numerous times throughout the charge and in the defence closing. The jury would not have failed to understand that this evidence of the appellant’s subjective intent applied to their consideration of the mens rea element of the dangerous driving offence. No defence objection was raised to this portion of the charge.
23Third, the trial judge’s instructions on causation were correct and taken from R. v. Kippax, 2011 ONCA 766, 286 O.A.C. 144, at para. 28, leave to appeal refused, [2012] S.C.C.A. No. 92. The appellant’s dangerous driving supported an inference that he intended the outcome or foresaw the risk and persisted in the face of the risk. His alleged subjective change of heart is of no moment. Absent an intervening act, which is not present here, when two motorists engage in street racing, both are considered in law to have caused injury to an innocent third party who is harmed because of their racing: R. v. Williams, 2020 ONCA 30, 55 M.V.R. (7th) 179, at paras. 15-20. Again, notably, defence counsel took no issue with this instruction.
24Fourth, the appellant concedes that the trial judge did not misstate the governing principles concerning after-the-fact conduct. In particular, the trial judge’s instruction correctly cautioned the jury against the common dangers in misusing the appellant’s after-the-fact conduct to infer guilt from this evidence unless they first considered and then rejected all plausible innocent alternative explanations for it, including the exculpatory ones offered by the appellant himself. It was therefore unnecessary to articulate the possible inferences to be drawn from this evidence. Notably, defence counsel did not object to the charge nor ask for specific inferences to be spelt out. Finally, we agree with the Crown’s submission that a more detailed instruction on available inferences might well have worked against the appellant’s interests by highlighting ways in which it could be used to find the appellant’s evidence incredible.
25Fifth, with respect to self-defence, the trial judge did not err by failing to leave self-defence with the jury. The trial judge properly instructed the jury on the appellant’s necessity defence, namely, that he was attempting to get away from Nodwell. Self-defence would not have given rise to any arguments that the appellant was not already raising. As noted by the Supreme Court in R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 106, “self-defence operates as a subset of the necessity defence.” It was therefore redundant here, and its absence caused no harm.
26Finally, the trial judge did not err in her instructions to the jury on the evidence of the utterances that witnesses attributed to the appellant. The appellant focusses on the evidence of Frank Pagnan, who overheard part of a conversation about the crash that took place between the appellant and his father at their residence. Mr. Pagnan adopted some but not all of his statements as true. The trial judge correctly instructed the jury that they could accept Mr. Pagnan’s evidence of the appellant’s utterances as evidence of what the appellant said to the extent that Mr. Pagnan adopted as true his prior statements of what he heard the appellant say.
b. Sentence appeal
27The appellant submits that the trial judge erred by failing to impose a conditional sentence. In the event that we allow the sentence appeal and consider the sentence afresh, he seeks to adduce fresh evidence regarding his circumstances since sentencing. He does not challenge the driving prohibition imposed by the trial judge.
28We are not persuaded that the appellant has met the high onus of showing that the trial judge made an error of law or an error in principle that had an impact on the sentence or that the sentence was demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.
29The trial judge thoroughly reviewed the mitigating and aggravating factors in this case. She highlighted the appellant’s youthfulness at the time of the offence, the absence of a criminal record, his remorse and his pro-social life. She also considered the many aggravating factors in this case: the appellant’s lengthy driving record, which included six convictions for speeding; his involvement in a street race; the very dangerous circumstances in which the street race took place; the tragic consequences to T.K. caused by the appellant’s dangerous driving; his efforts to disguise his involvement in the offences; the appellant’s two breaches of his undertaking not to drive; and his attempts to conceal his involvement.
30After extensively reviewing the relevant case law, the trial judge determined that a 15-month custodial sentence was fit. She rejected, correctly in our view, that a conditional sentence was appropriate: the appellant’s driving made him dangerous to the public; he was at risk to re-offend; and a conditional sentence would not achieve the purposes of general deterrence and denunciation that were predominant in this case.
31We see no basis to intervene with the trial judge’s decision on sentence. Given the seriously aggravating circumstances of this case, the sentence was extremely lenient. Additionally, we reject the appellant’s submission that the trial judge erred in considering as an aggravating factor the expenditure of police resources to locate the appellant; she was entitled to consider the appellant’s efforts to conceal his involvement in the offences: R. v. Teske (2005), 2005 CanLII 31847 (ON CA), 202 O.A.C. 239 (C.A.), at para. 100.
C. Additional Issues RAISED BY the Crown
32The Crown submits that the trial judge made a legal error requiring correction in her Decision on Burden of Proof, dated February 5, 2024 (the “Decision”).5 In the Decision, the trial judge determined that the Crown bears the onus of proof when an accused person asserts a “reasonable excuse”, as a statutory defence under s. 320.16 of the Criminal Code, for failing to stop, provide information and render assistance after being involved in a motor vehicle accident. Given that the jury convicted the appellant under s. 320.16, they implicitly concluded that the Crown met this onus.
33The Crown urges this court to determine this legal onus issue because the Crown cannot appeal this decision, and the appellant would suffer no prejudice. The Crown argues that it is jurisprudentially significant in that the Decision, if not corrected, will continue to be relied upon by other courts, notwithstanding pre-existing authority to the contrary; it could possibly be applied to other offences with statutory reasonable excuse defences.
34We decline to do so. It is not the practice of this court to determine a legal issue that has no significance to or effect on the outcome of an appeal. In any event, we are not in a position to determine this issue on this record and without submissions from the appellant. This issue is not evasive of review because, if the Decision is being applied by other courts, the Crown will have the opportunity to litigate it in future cases where it arises. That said, we should not be taken as endorsing as correct the Decision on this issue.
D. Disposition
35The conviction appeal is dismissed. We grant leave to appeal sentence but dismiss the sentence appeal. As the motion for fresh evidence was premised on the success of the sentence appeal, it is also dismissed.
“Grant Huscroft J.A.”
“L.B. Roberts J.A.”
“R. Pomerance J.A.”
Footnotes
- This appeal is subject to an order prohibiting publication of any information that could identify the victim in this case, T.K.
- See R. v. Refaeh, 2023 ONSC 6871.
- See R. v. Refaeh, 2023 ONSC 3569.
- The appellant was also given credit for the two days he spent in custody before trial.
- See R. v. Refaeh, 2024 ONSC 755, 435 C.C.C. (3d) 39.