Court of Appeal for Ontario

Date: 2017-12-18 Docket: C58473 / C58083

Judges: Sharpe, Roberts and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Andre Evariste Appellant

Counsel

For the Appellant: Breana Vandebeek

For the Respondent: Michael Perlin and Jennifer Epstein

Heard and Released Orally: December 18, 2017

Appeal Information

On appeal from the conviction entered on October 2, 2013 and the sentence imposed on November 27, 2013 by Justice Nancy Backhouse of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Overview

[1] The appellant was convicted following a 12-day jury trial of failing to stop after an accident, dangerous driving causing bodily harm, impaired operation of a motor vehicle causing bodily harm, and attempt to obstruct justice. He raises four grounds of appeal.

(1) Third Party Suspect Instruction

[2] The appellant's main defense at trial was that Derek Rego "Kidd" was the driver of the van at the time of the accident. He submits that the trial judge failed to give an adequate third party suspect instruction.

[3] We disagree. The trial judge instructed the jury at two points in the charge, that Kidd's criminal record and propensity to commit similar offences could be considered in relation to the third party suspect defense. The trial judge also carefully reviewed the defense position on this issue and gave a correct W.(D.) instruction sufficient to cover the defense evidence relating to the third party suspect defense. Finally, there was no objection to this aspect of the charge at trial.

(2) Treatment of the Appellant's Sister's Evidence

[4] The trial judge instructed the jury that the appellant's statement to his sister that Kidd was the driver, was not admissible as proof that Kidd was the driver, but could be used in relation to the sister's evidence that she saw Kidd drive the vehicle on a prior occasion.

[5] We do not agree that this instruction was confusing or inadequate. There was no objection to this instruction when it was given mid-trial or in the final charge.

(3) Comments Made Concerning Blackburn's Evidence

[6] We do not agree that this aspect of the instruction was confusing or inadequate when the charge is read as a whole. Once again, there was no objection to this aspect of the charge.

(4) Impaired Driving Causing Bodily Harm Conviction

[7] We do not agree that the impaired driving causing bodily harm conviction was unreasonable. The evidence of the security guards who saw the appellant shortly after the accident included that there was a strong smell of alcohol on the appellant's breath, that the appellant had bloodshot eyes, that he was wobbling on his feet, and that he had a droopy face. When this evidence is considered with the very erratic driving at the time of the accident, it provided an adequate basis for the jury to find that the appellant was guilty of impaired driving causing bodily harm.

Disposition

[8] Accordingly, the conviction appeal is dismissed. As for the sentence appeals, both the appellant and the Crown have abandoned their sentence appeals and accordingly, those appeals are also dismissed.

Robert J. Sharpe J.A.

L.B. Roberts J.A.

Fairburn J.A.