DATE: 20061003

DOCKET: C43649

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JAMES ATHERFOLD (Applicant/Appellant)

BEFORE:

MACPHERSON, LANG and MACFARLAND JJ.A.

COUNSEL:

Scott C. Hutchison and Patricia Latimer

for the appellant

Shawn Porter

for the respondent

HEARD & ENDORSED:

October 2, 2005

On appeal from the conviction entered on March 24, 2005 and the sentence imposed on June 23, 2005 by Justice Jack D. Nadelle of the Ontario Court of Justice.

A P P E A L B O O K E N D O R S E M E N T

[1] This is a remarkably tragic and sad case – for all members of both families.

[2] On the principal issue in the appeal, we do not think that the trial judge misapprehended the evidence of Sally Bradley. The essence of her testimony was that her son Shawn stayed on the porch until the appellant’s car started to back up in the driveway. The trial judge was entitled to make the finding about this evidence that he did.

[3] Once the trial judge’s findings about Shawn’s position is affirmed, his conclusion that the appellant’s decision to back up at a speed with Mr. Bradley in harm’s way (between the open car door and the appellant) amounted to a “wanton and reckless disregard for the life and safety of others” is a supportable conclusion. It also supports his conclusion that the defence of necessity was not available to the appellant.

[4] On the question of sentence, we cannot say that a 12‑month custodial sentence was unfit in the circumstances of this case. The combination of the appellant’s alcohol consumption and his very dangerous driving, especially with Mr. Bradley in such close proximity, supports the sentence imposed by the trial judge.

[5] The conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.