Court of Appeal for Ontario

Date: 2017-11-20 Docket: C62957

Panel: Strathy C.J.O., Doherty J.A. and McCombs J. (Ad Hoc)

Between

Her Majesty the Queen Respondent

and

Gary Thompson Appellant

Counsel

Philip B. Norton, for the appellant

Deborah Krick, for the respondent

Heard

November 9, 2017

On Appeal

On appeal from the convictions entered on June 7, 2016 by Justice M. Gregory Ellies of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals his convictions on two counts of attempted murder, following a judge-alone trial.

[2] The charges arose as a result of the appellant having used his motor vehicle as a weapon directed at the two complainants.

[3] The only issue at trial was whether the appellant intended to kill the complainants. See R. v. Ancio, [1984] 1 S.C.R. 225 (S.C.C.).

[4] The appellant argues that the trial judge erred in failing to consider important relevant evidence that in his submission, undermines the conclusion that the appellant intended to kill the complainants.

[5] Both complainants testified that they were struck by the Jeep driven by the appellant and that they had been knocked to the ground and rendered helpless. The appellant submits that the trial judge failed to appreciate that if the appellant had had the intent to kill the complainants, he would be expected to have taken advantage of their vulnerable state and driven at them with the Jeep while they lay helpless on the lawn in front of the townhouse complex.

[6] The problem with the appellant's argument is that the trial judge did not make a finding that the complainants had been struck by the Jeep and were lying helpless on the ground. The trial judge identified a number of problems with the credibility and reliability of the complainants' evidence. It is understandable and reasonable that the trial judge was not prepared to rely on their claims of having been struck and rendered helpless.

[7] Instead, the trial judge founded his conclusions on the evidence of three neighbours, along with the forensic evidence.

[8] The testimony of the independent witnesses, along with the forensic evidence, including the photographs of the scene showing the tire tracks on the lawn and the extensive damage to the Jeep and the parked SUV, led the trial judge to conclude that the appellant pursued the complainants at a high rate of speed as they ran away. He took into account the force of the impact with the SUV and concluded that in all the circumstances, he was satisfied beyond a reasonable doubt that the appellant had the intent to kill the complainants. His conclusion was reasonable and was grounded in the evidence.

[9] The appeal from the convictions is dismissed.

"G.R. Strathy C.J.O."

"Doherty J.A."

"J.D. McCombs J. (ad hoc)"