Court of Appeal for Ontario

Date: 2018-02-02 Docket: C62995

Judges: Juriansz, Watt and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Fernando Correia Appellant

Counsel

Stuart O'Connell, for the appellant Craig Harper, for the respondent

Heard and released orally: January 30, 2018

On appeal from: the conviction entered on September 14, 2016 and the sentence imposed on December 2, 2016 by Justice Beth A. Allen of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] After a jury trial the appellant was acquitted of charges of aggravated assault and mischief to property but convicted of dangerous operation of a motor vehicle. The charges arose out of an argument and physical interaction between the appellant, who was driving his car, and a passenger who got out of the car at some point.

[2] The appellant and the passenger offered markedly different versions of what had transpired. It is clear that the car being driven by the appellant struck and injured the passenger after he was out of the car and then collided with and damaged a retaining wall.

[3] In his factum, the appellant argues that the jury's not guilty verdicts on aggravated assault and mischief to property are inconsistent with its finding of guilt for dangerous operation. We do not agree. The jury was properly instructed that the offences of aggravated assault and mischief to property require proof of a subjective intent and on the other hand, the offence of dangerous operation does not require proof of subjective intention to engage in the prohibited conduct.

[4] We are satisfied that the trial judge's charge to the jury in regard to dangerous operation was satisfactory. After instructing the jury in accordance with the model jury charge, and reviewing in detail the appellant's explanation for why he felt he had to escape the situation by driving in the manner he did, she told the jury they should consider all the circumstances, including any evidence about the appellant's state of mind, in deciding whether the appellant drove in a manner that was a marked departure from the manner in which a reasonable prudent driver would drive in the same circumstances. On our reading of the charge as a whole, she adequately related the appellant's evidence to the fault element in dangerous operation.

[5] We are not persuaded that the trial judge erred in refusing to put the excuse of necessity to the jury. She was not asked to do so at trial. Nor are we persuaded that there was any air of reality to support a claim advanced here that she should have done so.

[6] The appeal against conviction is dismissed.

[7] The appellant also appeals his sentence of 12 months' imprisonment. As we read the sentencing judge's reasons, she did not make findings incompatible with the jury's verdicts of not guilty on the charges of aggravated assault and mischief to property. Specifically, she did not find as a fact that the appellant intentionally injured the passenger or intentionally damaged the retaining wall. The trial judge took into account the proper sentencing considerations, including the aggravating and the numerous mitigating factors. We have not been persuaded she made any error in principle that warrants this court's intervention.

[8] Leave to appeal sentence is granted, but the appeal as to sentence is dismissed.

"R.G. Juriansz J.A." "David Watt J.A." "B.W. Miller J.A."