DATE: 20040915
DOCKET: C39260
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QHEEN (Respondent) – and – LOUIS AGUIAR (Appellant)
BEFORE: WEILER, FELDMAN and ARMSTRONG JJ.A.
COUNSEL: Alan D. Gold
for the appellant
Susan G. Ficek
for the respondent
HEARD: September 7, 2004
RELEASED ORALLY: September 7, 2004
On appeal from the conviction entered by Justice Eugene B. Fedak of the Superior Court of Justice, sitting without a jury, dated October 18, 2002.
E N D O R S E M E N T
[1] The appellant was charged with criminal negligence causing death contrary to s. 220(b) of the Criminal Code. He was acquitted of this charge but convicted of the lesser included offence of dangerous operation of a motor vehicle causing death contrary to s. 249(4) of the Code. The appellant appeals his conviction only.
[2] In our opinion, the trial judge did not consider the evidence in a manner consistent with the formula in R v. W(D). (See R. v. Y(M), [2004] O.J. #201) In addition, he misapprehended the appellant’s evidence in at least two material respects, namely, whether the appellant admitted to accelerating quickly and whether the appellant indicated a strong dislike for Firebirds, thereby giving the appellant a motive to engage in racing his Mustang with the Firebird. Further, the trial judge speculated in his reasons as to why the police did not observe tire marks on the road, despite the evidence of some of the witnesses that they heard tires squealing. While the appellant knew why the trial judge disbelieved his evidence that he was operating his vehicle in a normal manner and was not racing, the reasons the trial judge gave reveal a serious misapprehension of the appellant’s evidence, which the trial judge did not weigh properly. It is necessary for us to order a new trial.
[1] The appeal is allowed and a new trial is ordered.
“Karen M. Weiler J.A.”
“K. Feldman J.A.”
“Robert P. Armstrong J.A.”