Court of Appeal for Ontario

Date: 20200211 Docket: C64364

Judges: Rouleau, Benotto and Harvison Young JJ.A.

Between: Her Majesty the Queen, Respondent and Michael Lights, Appellant

Counsel: Christopher R. Murphy, for the appellant Ken Lockhart, for the respondent

Heard: February 5, 2020

On appeal from the convictions entered on May 26, 2017 and the sentence imposed on August 31, 2017 by Justice Beth A. Allen of the Superior Court of Justice.

Reasons for Decision

A. Overview

[1] The appellant was convicted of dangerous driving and criminal negligence causing bodily harm after running a red light at high speed and causing a serious accident involving two other cars at about 4:30 a.m. on January 1, 2014. When the accident took place, the appellant’s friend was a passenger in the back seat. He had been shot in the chest. At trial, the issues were the identity of the driver and the defence of necessity. The trial judge found the appellant guilty on the basis that he was the driver of the car. She did not, however, address the defence of necessity at all in her reasons.

[2] The appellant raises three grounds of appeal. First, he argues that the trial judge’s finding that the appellant was the driver was unreasonable and based on her misapprehension of the evidence. Second, he argues that she erred in not giving any reasons to explain why she had not addressed the necessity issue and in failing to acquit on the basis of the necessity defence. Third, he argues that the sentence was unfit.

B. The Verdicts Were Not Unreasonable

[3] First, we do not agree that the verdicts were unreasonable on the basis of a misapprehension of the evidence as to who was driving the car. While there was some conflicting evidence, the trial judge considered the discrepancies and arrived at conclusions that were open to her on the record.

[4] The appellant argued at trial, and here, that the appellant had been taken out of the rear driver’s side window and was thus not the driver. The appellant argues that given the evidence, the trial judge’s finding that there were two “stocky black men” at the scene was an error. The appellant argues that, consequently, the trial judge’s findings that the driver’s door of the vehicle had been pried open to get the driver out, and that the driver was the appellant, were made in error.

[5] One witness, Colibou Tchadouwa, testified to asking a man with corn rows, dark skin and a light top sitting in the driver’s seat whether he was okay. He then briefly went to assist occupants of another vehicle involved in the accident. Upon returning, he went to get the wounded man in the back seat out of the rear door on the driver’s side, but this door was jammed. He pulled it open and it became slightly ajar. He eventually saw two Asian males remove the injured man from the car and noticed, by this point, that the driver was already out of the vehicle.

[6] Another witness, Angelo Hofilena, testified to seeing a stocky black man try to pry open the driver’s side front door, but the damage prevented it from opening very far. He saw an “African American” man with a thin build, corn rows, a light top and a thin black jacket in the driver’s seat. He and the stocky black man pulled him out through the opening in the driver’s side front door.

[7] The trial judge was alive to the “seeming discrepancies” among some of the witnesses but accepted the core of the evidence of these two witnesses who had close and first-hand observations of the car. Noting that Tchadouwa is a “stocky black man”, the trial judge concluded that he was not the stocky black man described by Hofilena and there must, therefore, have been two stocky black men at the scene. This finding reconciled the evidence of these witnesses to some extent. This was a conclusion that was open to her on the record.

[8] Viewed within the context of the rest of the evidence the trial judge was entitled to accept the evidence of these witnesses regarding the identification of the driver and consequently conclude that the appellant was the driver of the vehicle. This was not a palpable and overriding error and the verdicts were not unreasonable.

C. There is no Air of Reality to the Defence of Necessity

[9] Turning now to the defence of necessity, we would not give effect to this ground of appeal. The appellant cites the proposition that a trial judge’s failure to provide reasons respecting a defence is a reviewable error, where there is an air of reality to the defence and the reasons are insufficient to allow the verdict to be properly understood and scrutinized: R. v. Wobbes, 2008 ONCA 567, 235 C.C.C. (3d) 561, at paras. 33-54. On this record, there was no air of reality to the defence of necessity. This is apparent on the record, and the absence of reasons in this case does not foreclose meaningful appellate review.

[10] The defence of necessity exists where (1) the accused was faced with a danger of imminent peril or harm, (2) there was no reasonable legal alternative to the accused’s conduct and (3) there was proportionality between the harm inflicted and the harm avoided by resorting to that conduct: R. v. Latimer, 2001 SCC 1, 150 C.C.C. (3d) 129, at para. 28.

[11] Although the presence of the first element, a situation of clear and imminent peril, was conceded, the only reasonable conclusion open to the trier of fact on this record was that the second and third elements, and therefore the defence, did not have an air of reality. The test to be applied in determining whether there is an air of reality is whether there is evidence upon which a properly instructed trier of fact acting reasonably could acquit if it believed the evidence to be true: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 87.

[12] In assessing whether the defence has an air of reality in respect of these offences, we reject the appellant’s suggestion that we must focus solely on the act of running the red light. The trier of fact would be entitled to consider the appellant’s driving as a continuous transaction: R. v. Singh, 2019 ONCA 872, at para. 11.

[13] Here, there was no reasonable inference available that there was no reasonable legal alternative to the dangerous driving. There is no evidence as to where the appellant’s passenger was shot, how close this location was to a hospital, or how quickly an ambulance could have arrived there and transported him to a hospital. There is no available inference that it was necessary to run the red light at a high rate of speed at night in a car with no operating headlights rather than to drive with more caution within the limits of the law to address the peril. The only evidence in the record tended to suggest otherwise – the ambulance arrived at the scene of the accident 58 seconds after being dispatched. There is therefore no air of reality to the defence on this basis.

[14] Further, there was no reasonable inference available to the trier of fact that the harm inflicted was proportionate to the harm avoided. There was evidence on this record that the dangerous driving caused bodily harm. The appellant argues that the harm he sought to avoid was harm to his wounded passenger, including potentially his death, from delay in receiving medical attention. Whatever delay may have been caused by proceeding safely through the intersection or not driving at all and calling an ambulance must have been relatively minor based on the evidence. Again, we note that the ambulance arrived at the scene from the nearby hospital 58 seconds after being dispatched. When compared to the harm caused by the crash, a trier of fact could not reasonably have concluded that there is proportionality here.

[15] The trial judge should have given reasons to explain why she did not give effect to the defence argued at trial. However, we do not find this to be a reversible error in light of our conclusion that the record clearly reveals that there is no air of reality to the defence.

D. The Sentence Appeal

[16] Finally, we would not interfere with the sentence imposed by the trial judge. She considered the sentence in terms of the offence for which he was convicted, along with the relevant sentencing principles and mitigating and aggravating circumstances.

E. Disposition

[17] For these reasons we dismiss this appeal.

Paul Rouleau J.A.

M.L. Benotto J.A.

A. Harvison Young J.A.