Court of Appeal for Ontario

Date: 2017-01-25 Docket: C60054

Justices: Doherty, Blair and Lauwers JJ.A.

Between

Her Majesty the Queen Respondent

and

Nafraaz Jazid Ally Applicant (Appellant)

Counsel

Martin Kerbel, Q.C., for the appellant

Shawn Porter, for the respondent

Heard and Released

Heard and orally released: January 17, 2017

On appeal from: the conviction entered on October 22, 2014 by a jury presided over by Justice Daley of the Superior Court of Justice.

Endorsement

[1] The appellant was convicted of dangerous driving causing bodily harm by a jury. He appeals his conviction only.

[2] The appellant was headed eastbound on a four-lane road in Brampton. As he approached a green light, a vehicle driven by Ms. Vaz, that was headed westbound, commenced a left turn across the lane in which the appellant was travelling eastbound. A collision occurred and, unfortunately, Ms. Vaz was badly injured.

[3] The Crown claimed that the appellant was driving at a very high rate of speed as he entered the intersection where the accident occurred. Several witnesses testified that the appellant was driving 40 or 50, or even more, kilometres above the speed limit. Two witnesses testified that the appellant appeared to be racing with another vehicle. The Crown argued that in the circumstances, the appellant's speed, particularly combined with the racing, established the offence of dangerous driving. There was no issue about causation in this case.

[4] The appellant admitted that he was driving somewhat over the speed limit, but he testified that he was not driving nearly as fast as the witnesses for the Crown suggested he was. It was the defence position that the accident in fact resulted because Ms. Vaz made an illegal left turn at the light, crossing into the lane in which the appellant's vehicle was travelling.

[5] Counsel for the appellant has advanced four grounds of appeal. First, he submits that the trial judge erred in instructing the jury on the fault component of dangerous driving. Counsel relies on R. v. Roy (2012), 2012 SCC 26, 281 C.C.C. (3d) 433 (SCC).

[6] We cannot accept this argument. In our view, the trial judge's instruction is on all fours with the description of the fault component in R. v. Roy. The trial judge's instructions are found at pp. 26-31 of the transcript.

[7] In his argument, counsel submitted that the trial judge should have told the jury that the fault component required foresight of the risk that Ms. Vaz would make the improper left turn at the light. We do not read Roy that way. The focus of the fault requirement is on foresight of the risk created by the manner of the accused's driving. In this case, the jury had to consider foresight of the risk created by driving at such a fast speed in a residential area at night.

[8] The second ground of appeal relates to the expert's evidence. Counsel submits that the jury should have been told to ignore the expert's evidence about who was "at fault" for the accident.

[9] We would not give effect to this ground of appeal. While it is true that the expert was asked about "fault", his answer in fact spoke about the cause of the accident. No objection was taken to the expert's evidence. He was entitled to give evidence about the cause of the accident as long as it was based in the physical evidence that had been placed before the jury and was properly within the ambit of his expertise.

[10] The trial judge gave a proper instruction on the fault requirement of dangerous driving. He did not suggest to the jury that some other notion of fault would suffice to establish criminal liability. In fact, he made it clear to the jury that carelessness, something the jury might equate with fault, was not sufficient to establish criminal liability.

[11] We see no risk that the jury may have been misled by the expert's evidence or the trial judge's instructions on that evidence.

[12] The third ground of appeal relates to the trial judge's instruction on the use the jury could make of the appellant's convictions for various offences under the Highway Traffic Act. The appellant had a relatively minor Highway Traffic Act record. The trial judge, without objection, instructed the jury that it might take those convictions into account if it saw fit in assessing the appellant's credibility.

[13] In our view, convictions for the Highway Traffic Act offences in issue here could not possibly assist one way or the other in assessing the appellant's credibility and it would have been better had no such instruction be given. We are satisfied, however, that there was no risk that the jury would have used the Highway Traffic Act convictions to make an adverse credibility finding against the appellant. The instruction, while unnecessary, could not have prejudiced the appellant.

[14] The fourth argument is an argument that the verdict was unreasonable. Counsel submits that no jury, properly instructed, could have convicted the appellant. He argues that speed alone in these circumstances could not support the conviction.

[15] We observe that the trial judge made it clear to the jury that speed alone could not be equated with dangerous driving. In our view, there was a basis upon which this jury could find that the appellant by travelling at such a high rate of speed in a residential area at night met the requirements for dangerous driving. It was also open to the jury to find that the appellant was racing at the time of the accident. The Crown put that position to the jury and there was some evidence to support it. Mr. Kerbel, with his usual candour, acknowledges that if the jury was satisfied, not only that the appellant was going very fast but that he was racing another vehicle, the verdict could not be said to be unreasonable.

[16] The appeal must be dismissed.

"Doherty J.A."

"R.A. Blair J.A."

"P. Lauwers J.A."