Court of Appeal for Ontario

Date: 2018-05-22 Docket: C62312

Judges: MacFarland, Watt and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Joseph Stele Appellant

Counsel

John Collins, for the appellant Joseph Hanna, for the respondent

Heard and released orally: May 17, 2018

Appeal Information

On appeal from the conviction entered on December 17, 2014 and the sentence imposed on December 17, 2014 by Justice Michael Dambrot of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] Mr. Stele appeals his convictions of dangerous driving causing bodily harm and failing to stop at the scene of an accident, as well as the finding of guilt made against him of criminal negligence causing bodily harm, a charge that was stayed. These charges were laid after Mr. Stele was observed by an independent witness making U-turns or circles in his vehicle in an apparent attempt to dislodge Mr. Scherer who was hanging on the passenger side door while trying to force Mr. Stele's passenger out of the car to resume a physical confrontation they were having.

[2] Mr. Stele raises several grounds of appeal from his conviction – none of which we accept.

[3] We find no error in the trial judge's decision to act on testimony provided by Mr. Scherer about Mr. Stele's manner of driving. To be sure, Mr. Scherer was a highly unreliable witness. The trial judge recognized this. He was nonetheless entitled to rely on Mr. Scherer's testimony to influence his findings about the manner of driving. While there were points of departure between Mr. Scherer's evidence about the driving and the testimony provided by the independent witness, the testimony of the independent witness did offer material support to Mr. Scherer's testimony including the evasive manoeuvres Mr. Stele was taking.

[4] We do not accept that the motives of Mr. Scherer to lie suggested by defence counsel demonstrate error in the trial judge's comments about Mr. Scherer's absence of motive to lie. The trial judge was entitled to reject the claim that Mr. Scherer would lie about the manner of driving for the reasons defence counsel offered. Nonetheless, given that there was no proof capable of supporting a finding of an absence of motive, the trial judge should not have made the comment he did. This however was a secondary basis for the trial judge's decision to rely on what Mr. Scherer said about the manner of driving. In explaining his decision to do so the trial judge said: "most importantly this part of his evidence is largely confirmed by the evidence of the taxi driver." We find no reversible error in the trial judge's decision to rely in part on Mr. Scherer's testimony.

[5] Nor do we accept that the trial judge improperly speculated.

[6] With respect to the speed of driving, the trial judge was entitled to reject the independent witness' estimate of speed. On the evidence, Mr. Stele was attempting to shake Mr. Scherer from the vehicle and succeeded in doing so. This enterprise suggests a faster speed than the independent witness estimated. And while the trial judge did not accept Mr. Scherer's exaggerated estimate of speed, he was entitled to rely on Mr. Scherer's experience to conclude that the speed was higher than the independent witness estimated.

[7] The trial judge was also entitled to infer that Mr. Stele would have felt his vehicle running over Mr. Scherer's body. This is a common sense inference available to the trial judge on the evidence.

[8] The trial judge clearly considered and rejected the defences of necessity and self-defence. He found the driving to be unreasonable even though Mr. Scherer was threatening harm to the passenger. This finding, which was open to the trial judge, is fatal to the defences relied upon.

[9] Nor were the verdicts arrived at unreasonable. The trial judge was entitled to find that Mr. Stele's act of intentionally steering and driving his motor vehicle in an attempt to dislodge Mr. Scherer was criminally negligent and dangerous to the public.

[10] He also had an evidentiary basis for his conclusion that after knowingly running Mr. Scherer over, or being wilfully blind to that fact, Mr. Stele failed to stop his motor vehicle in order to evade criminal or civil liability.

[11] We would not interfere with the trial judge's discretionary determination of the length of the driving suspension. No errors of principle have been identified and this sentence is not manifestly unfit.

[12] The appeal is therefore dismissed.

"J. MacFarland J.A."

"David Watt J.A."

"David M. Paciocco J.A."