Court of Appeal for Ontario

Citation: R. v. Amell, 2016 ONCA 336

Date: 2016-05-04

Docket: C60071

Judges: Feldman, Simmons and Pepall JJ.A.

Between:

Her Majesty the Queen Respondent

and

Brandon Amell Appellant

Counsel:

Brandon Amell, in person Apple Newton-Smith, duty counsel Michael Medeiros, for the respondent

Heard and released orally: April 4, 2016

On appeal from the conviction entered on February 12, 2015 and the sentence imposed on February 17, 2015 by Justice Celynne Dorval of the Ontario Court of Justice.

Endorsement

[1] The appellant was convicted of driving a car while disqualified contrary to s. 259(4) of the Criminal Code, R.S.C. 1985, c. C-46, and of assault. He received an eight month sentence for the former and 60 days for the latter, to be served concurrently. He appeals against his driving conviction and assault conviction, and seeks leave to appeal his sentence.

[2] At trial, the appellant admitted that he was disqualified from driving. The Crown submits that this admission extended to encompass all elements of the s. 259(4) offence, including the public nature of the driveway. We reject this submission.

[3] The trial judge accepted the complainant’s evidence that the appellant was operating a motor vehicle. The trial judge made no finding on the location of the vehicle. The evidence disclosed that the operation of the vehicle took place in the driveway of the home approximately 20 feet from the entrance of the garage. Apart from that evidence, there was no additional evidence on whether the driveway constituted a street, road, highway or other public place within s. 259.1 of the Code. Nor was there any evidence led on whether there was an express, inherent or implied invitation to access the driveway within the description of R. v. English (1970), 1969 CanLII 473 (ON CA), 1 O.R. 788 (C.A.). In these circumstances, the appeal from the conviction for driving while disqualified must be allowed and an acquittal entered as, on the basis of the record, the verdict was an unreasonable one.

[4] The appeal against the assault conviction is dismissed. There was ample evidence in the record to support the trial judge’s findings and conclusion in that regard.

[5] Accordingly, the appeal against the driving conviction is allowed and the appeal against the assault conviction is dismissed.

[6] The only issue raised with respect to sentence concerns the probation condition relating to the appellant’s child. This issue is better addressed by application before the trial judge in accordance with the provisions of the Code.

"K. Feldman J.A."

"Janet Simmons J.A."

"S.E. Pepall J.A."