CITATION: R. v. Khan, 2008 ONCA 557
DATE: 20080714
DOCKET: C46485
COURT OF APPEAL FOR ONTARIO
LASKIN, SIMMONS and EPSTEIN JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
MUBASHER KHAN
Appellant
R. Craig Bottomley for the appellant
Peter Scrutton for the respondent
Heard: July 10, 2008
On appeal from the conviction entered on July 31, 2006 by Justice Antonio Di Zio of the Ontario Court of Justice.
APPEAL BOOK ENDORSEMENT
[1] We agree with Mr. Bottomley that the trial judge erred by failing to consider whether the appellant reasonably believed the Baxter car was parked (see para. 38 of Beatty) and by failing to consider whether the appellant’s driving amounted to a momentary lapse in otherwise normal driving. For these reasons, the conviction for dangerous driving cannot stand and there must be a new trial.
[2] We add that if the appellant did reasonably believe the Baxter car was parked or did suffer a momentary lapse, in our view, he ought to be acquitted.
[3] The appeal is allowed, the conviction is set aside and a new trial is ordered.