ONTARIO COURT OF JUSTICE
DATE: 2025-06-04
COURT FILE No.: 23-48121917
Toronto Region
BETWEEN:
His Majesty the King
— AND —
Wayne Afemui
Before Justice Cidalia C. G. Faria
Heard on February 20 and March 26, 2025
Reasons for Judgment released on June 4, 2025
Meher Singh — counsel for the Crown
Elysia Nocida — counsel for the defendant Wayne Afemui
Faria J.:
I. Introduction
[1] Wayne Afemui is charged with assault with a weapon and dangerous operation of a motor vehicle causing bodily harm, contrary to ss. 267(a) and 320.13(2) of the Criminal Code.
[2] The Crown called two witnesses: the complainant, Sheldon Arnold; and a security guard, Tanya Khagram. The Crown also filed the video surveillance that captured the event.
[3] Mr. Afemui testified in his own defence and filed several photos of the scene.
II. Issue
[4] The issues are:
(1) The credibility and reliability of the witnesses.
(2) Whether the Crown has proven the manner of driving was dangerous and a marked departure from the required standard of care beyond a reasonable doubt.
(3) Whether Mr. Afemui intentionally struck Mr. Arnold with his car beyond a reasonable doubt.
III. Positions of the Parties
[5] Ms. Singh for the Crown submits the court should accept the evidence of Mr. Arnold, reject Mr. Afemui’s evidence and find him guilty of both charges. She emphasizes Mr. Afemui’s evidence is inconsistent with the independent video surveillance of his conduct, and she has met her burden.
[6] Ms. Nocida, counsel for Mr. Afemui submits Mr. Arnold’s evidence should be rejected as he was evasive on more than one occasion, he demonstrated animus toward Mr. Afemui, and downplayed his own actions. She submits Mr. Afemui’s evidence should be accepted. In the alternative, she argues Mr. Afemui’s evidence raises a reasonable doubt, and provides an alternate reasonable inference as to why Mr. Afemui drove the way he did. In either case, both charges should be dismissed.
IV. Legal Principles
[7] As in every criminal case, Mr. Afemui is presumed innocent. The burden is on the Crown to prove each element of the charges beyond a reasonable doubt. The burden never shifts. Reasonable doubt is based on reason and common sense from the evidence or lack of evidence. It is higher than a balance of probabilities, yet less than proof to an absolute certainty. R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 14.
[8] When considering the credibility and reliability of a witness, I may accept some, none, or all, of a witness’ evidence. Credibility relates to whether a witness is speaking the truth. Reliability relates to the actual accuracy of the testimony. The credibility and reliability of a witness must be “tested in the light of all the other evidence presented.” R. v. Stewart, [1994] O.J. No. 811 (C.A.) at para. 27.
[9] As Mr. Afemui testified in his defence, the applicable analytical framework is that of W.(D.). R. v. W. (D.), [1991] 1 SCR 742:
i. If I accept the evidence of Mr. Afemui, I must acquit him.
ii. Even if I do not accept the evidence of Mr. Afemui, if his evidence raises a reasonable doubt, I must acquit him.
iii. Even if I do not accept the evidence of Mr. Afemui, nor does it raise a reasonable doubt, on the totality of the evidence I do accept, I must be satisfied beyond a reasonable doubt the Crown has proven every element of both offences.
[10] The actus reus and mens rea essential elements of the charge dangerous operation causing bodily harm is every person who operates a motor vehicle in a manner dangerous to the public having regard to all the circumstances, including the nature, condition, and use of the place at which a motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place R. v. Beatty, 2008 SCC 5, and where the degree of care exercised by the accused being a marked departure from the standard of care a reasonably prudent driver, in the same circumstances of the accused. R. v. Roy, 2012 SCC 26 at para. 30.
[11] The mens rea test is a modified objective test.
[12] Bodily harm means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature per s. 2 of the Criminal Code.
[13] The elements of an assault with weapon are when, in committing an assault, the application of intentional force to another person, directly or indirectly, without the consent of the other person, carries, uses or threatens to use a weapon or an imitation thereof.
V. Evidence
The video
[14] Wayne Afemui is seen on video, on September 28, 2023, after a verbal altercation with Sheldon Arnold in front of 121 Ling Rd., getting into his vehicle, driving forward and to the left, then reversing at a fast rate of speed back through the circular driveway. As he drives by Sheldon Arnold standing by his own vehicle, he swerves into him, and hits Mr. Arnold with his vehicle.
[15] Just before he gets hit, Mr. Arnold is standing in the driveway, by his parked vehicle, 20-30 feet behind Mr. Afemui’s vehicle. He is standing with both arms raised, hands up and open.
[16] When Mr. Afemui’s vehicle swerves into him, he gets jammed into his own vehicle, lifted into the air, and then hits the pavement.
Sheldon Arnold
[17] Mr. Arnold, age 41, testified that he was driving home from work that afternoon, eastbound on Highway 401 when he saw a vehicle swerving in and out of traffic at a high speed, “break checking people” including himself. The driver braked in front of Mr. Arnold, causing him to slam on his brakes. He almost collided with the guardrail.
[18] Mr. Arnold decided to follow the car to get its licence plate. He exited the highway at the Kingston Rd. and followed the car to a condo. Once the driver parked, Mr. Arnold pulled up behind him and parked about 20 to 30 feet behind. The driver popped his head out of his driver’s window and asked him “can I help you?” Mr. Arnold testified that he told the driver he wanted to take his licence plate down because he had been driving dangerously.
[19] The driver then exited his vehicle as did Mr. Arnold. The two men continued the conversation calmly, but the driver kept repeating himself, as did Mr. Arnold. Mr. Arnold testified the driver became aggressive and walked toward him.
[20] Mr. Arnold believed the driver “meant him harm”. So as to scare him, he told the driver he had something in his car for him, and headed to the trunk of his car where he kept a baseball bat. The driver responded “I’m gonna hit you with my car”. There was never any reference to a gun.
[21] When Mr. Arnold saw the driver head back to his vehicle, he closed his trunk and stood by his car. He thought the driver was leaving. Then Mr. Arnold testified he saw the car reverse, accelerate and angle toward him before he was hit.
[22] Mr. Arnold testified numerous parts of his body were hit and then he landed on the pavement. He got up, and saw the car stop, then exit the driveway the same way it came in.
[23] Mr. Arnold testified his wife attended the scene and took him to hospital. He described having pain in various parts of his body, sustaining a concussion and attending physiotherapy because of the collision.
[24] In cross-examination, Mr. Arnold:
- Agreed he did not know where Mr. Afemui was driving and did not know how long he would follow him.
- Agreed he followed Mr. Afemui for about 5 to 10 minutes.
- Did not give any thought as to whether the driver would know he was being followed.
- Did not own a cell phone at the time. He had a tablet with photo capability, but intended on writing down the licence plate.
- Did not take down the licence plate before or as he was engaged in conversation with the driver.
- Did want to scare Mr. Afemui when he went to his trunk.
- Did not believe Mr. Afemui would actually hit him with his car after having said he would as it was broad daylight, and security was there.
Tanya Khagram
[25] Ms. Khagram was the security guard on duty at the 121 Ling Rd. that day. She was monitoring the CCTV in the front lobby. She observed a car pull up and park. She thought it was a food delivery truck. She saw two men yelling at each other. When she approached them, they were both swearing and loud.
[26] She is not sure who said, “you want to fight” or “you want to do it” which made it “worse”. She thought both men said this but could not recall who said it first. She never heard any reference to a gun. She saw one man go to his car for a baseball bat but never removed it from the car. She saw the other man get into his car, reverse, hit the first man and exit the circular driveway the same way he came in.
Wayne Afemui
[27] Mr. Afemui testified he did not intentionally hit Mr. Arnold with his vehicle, and never threatened him to do so. He testified that he reversed at a fast rate of speed because he was trying to leave the situation, he accidentally over-corrected when he saw Mr. Arnold behind him, and swerved into him.
[28] Mr. Afemui, age 33, a self-employed maintenance technician, confirmed much of the narrative provided by Mr. Arnold with a few exceptions.
- He was driving his Toyota Corolla on Highway 401, though he thought he drove “normally”.
- He noticed he was being followed sometime during the 10 to 15 minutes from the time he exited the highway to when he parked at 121 Ling Rd. to do some work that day.
[29] Mr. Afemui further testified:
- The vehicle that had followed him pulled up and parked behind him at 121 Ling Rd.
- He stuck his head out of his window and asked Mr. Arnold what the issue was.
- Both men got out of their vehicles.
- The conversation was not loud to start.
- He repeatedly asked the driver what the “issue” was and became irritated.
- Mr. Arnold told him he had something in his trunk for him.
- He told Mr. Arnold the same thing, that he had something in his trunk for him too.
- He disagreed Mr. Arnold ever gave him an answer to his question, though he conceded he understood there was an “insinuation” he had tailgated Mr. Arnold on the highway.
[30] Mr. Afemui testified that he was scared, and the way Mr. Arnold dismissed him made him think Mr. Arnold had a gun. He went to his car to get away. He drove forward, and as “it looked a lot farther ahead than behind me”, so he reversed to get out of the driveway quickly because he thought Mr. Arnold was a threat.
[31] He testified he looked but did not see Mr. Arnold standing directly behind his car when he reversed. When he saw Mr. Arnold at the “last second”, he “overcorrected” and “swerved in the wrong direction” which is when his vehicle “made contact” with Mr. Arnold. He did not see, feel, or hear his car hit Mr. Arnold.
[32] Mr. Afemui testified he believed Mr. Arnold was on the other side of his car when he first reversed. He conceded he reversed fast and that this “would confuse” Mr. Arnold.
[33] After hitting Mr. Arnold, Mr. Afemui saw him fall to the ground and get up. He realized he could not exit, so made “a 3-point turn or a 2 point turn to get out of the situation”. He drove to a plaza parking lot and called police. He told police Mr. Arnold had a gun.
[34] In cross-examination, Mr. Afemui:
- Agreed he continued toward Mr. Arnold even after Mr. Arnold started walking away.
- Disagreed he ever told Mr. Arnold he would hit him with his car.
- Agreed he told the police Mr. Arnold had a gun although he never saw a gun and there was never any mention of a gun.
VI. Analysis
[35] Ms. Khagram did not add much to this narrative however she did testify both men were yelling and swearing. She was direct, specific, and cautious with her evidence. She was both credible and reliable on this point. I accept her testimony that both men were engaging in a loud verbal dispute with profanity uttered by both men by the end of their verbal altercation.
Sheldon Arnold
[36] Mr. Arnold testified as if it was his civic duty to follow a driver who had been driving badly, even dangerously, on the highway, for almost 15 minutes out of his way, no less, to write down his licence plate, and, presumably report the driver to authorities.
[37] Throughout the narrative Mr. Arnold presented himself as a calm, rational, and law-abiding citizen who just wanted to report bad driving. Though he described Mr. Afemui as polite and calm to start, he testified Mr. Afemui became increasingly aggressive and loud. He described Mr. Afemui as enraged, a psycho, and a man who meant him harm, while he himself, was regulated and reacted in a measured way.
[38] Although I find Mr. Arnold did get loud and swear as described by Ms. Khagram, nonetheless, I accept the substance of his evidence. He testified against his interest when he admitted he wanted to scare Mr. Afemui by saying he had something in his car for him, and again, albeit reluctantly, that though he never removed the baseball bat, he admitted he intended to protect himself with the bat.
[39] I find, that as Mr. Arnold described, and the video shows, Mr. Afemui was the physically aggressive one of the two, who moved toward Mr. Arnold.
[40] I also find that Mr. Afemui did threaten to hit Mr. Arnold with his car. Although there is no audio, the video does show Mr. Afemui pointing to his car as Mr. Arnold retreats.
[41] There was certainly a ring of truth to Mr. Arnold’s evidence that he did not believe Mr. Afemui would actually hit him with his car that corresponds with the video’s depiction of Mr. Afemui unexpectedly doing just that in broad daylight with security standing by.
[42] I find Mr. Arnold credible and reliable, though self-serving in, on the progression and content of the verbal altercation, though not its tenor or tone, and I accept the undisputed bodily harm he sustained as a result of Mr. Afemui’s car hitting him.
Wayne Afemui
[43] In the circumstances Mr. Afemui was understandably irate with being followed and confronted about his driving by a stranger, however, he testified he was scared.
[44] I find neither his language by his own admission, nor his demeanour as seen on the video, nor the way he operated his car, support his assertion he was afraid.
[45] Mr. Afemui was the physical aggressor from the moment he stepped out of his car and headed toward Mr. Arnold, and continued to move forward even as Mr. Arnold retreats to his own car.
[46] When Mr. Afemui gets into his car, there is a clear, wide, unobstructed exit of the circular driveway in front of him to get away from Mr. Arnold. Instead, he reverses and drives toward Mr. Arnold. He testifies this was a closer and faster exit to get away from Mr. Arnold.
[47] That is simply not the case.
[48] Even if the actual distance to the exit behind him was shorter than the exit in front of him: to reverse, is to get closer to, and have to drive by Mr. Arnold and his vehicle; to reverse is to get directly into Mr. Arnold’s line of vision; to reverse in a circular driveway is to choose a more difficult driving manoeuvre than to drive straight forward; to reverse is to have to navigate driving between Mr. Arnold’s parked car and the grassy curb when the path forward is clear and wider. The point is made by his very own admission that after driving by Mr. Arnold and hitting him, he had to do a 3 or a 2 point turn to exit the driveway.
[49] Reversing was the opposite of “trying to get out” and “away” from the “danger” Mr. Afemui said Mr. Arnold posed.
[50] Mr. Afemui was not credible, and he certainly was not reliable. He testified that even though he saw no gun, there was no reference to a gun, he thought Mr. Arnold had a gun. He told the 911 operator Mr. Arnold had a gun. It does not go unnoticed that Mr. Arnold is a black man. [There was no inquiry on the evidence made by either the Crown, or the Defence, as to the role of race, conscious and unconscious bias, if any, in Mr. Afemui’s erroneous accusation to the 911 operator that Mr. Arnold had a gun.]
[51] Mr. Afemui also testified that he looked behind him but did not see Mr. Arnold as he reversed towards him. The video is clear Mr. Arnold was directly behind Mr. Afemui when he reversed, if Mr. Afemui looked, he would have seen him. He is therefore not being honest that he looked, or that he did not see Mr. Arnold.
Dangerous Operation
[52] Justice Watt in R. v. Stennett, 2021 ONCA 258 helpfully stated:
- “It is the manner in which the motor vehicle was operated that is at issue, not the consequences of driving.” (para. 87)
- “The focus of the inquiry into whether an accused’s driving, viewed objectively was dangerous to the public in all the circumstances is on the risks created by the manner of the accused’s driving, not its consequences such as an accident...” (para. 88)
- The “actus reus of the dangerous operation offence requires that the trier of fact be satisfied beyond a reasonable doubt that viewed objectively, the accused was driving in a manner that was dangerous to the public in all the circumstances: Beatty at para. 43”. (at para. 89)
- “The focus of the analysis on the fault element or mens rea is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances: Beatty, at para. 48; Roy, at para. 36” (para. 90)
[53] The video shows a clear unobstructed way forward to exit the circular driveway, and Mr. Arnold, not of small stature, clearly standing by Mr. Afemui’s car when he reversed and swerved into him.
[54] A reasonable driver in the circumstances would drive forward and out. A reasonable driver would, if choosing to reverse, in the tight confines of the obstructed circular driveway, do so with caution not speed, and look behind him, when he knows both a parked car and at least two people are behind his vehicle.
[55] Instead, Mr. Afemui reverses quickly and does not take care to observe who is behind him and where. Driving in this manner exacerbated the risk he was taking, given the nature of the location, a circular driveway, and the circumstances, that at least two people are somewhere behind him.
[56] His driving is made more dangerous when he did see Mr. Arnold, Mr. Afemui did not minimize the risk by slowing down or stopping, but rather, accelerated and swerved his vehicle directly into Mr. Arnold.
[57] All these decisions: reversing; speeding; not looking at his side mirrors, rearview mirrors and through his back window as he reverses; not slowing down or stopping when he says he sees Mr. Arnold; and then swerving into the very person in his way; is a marked departure from the standard of care expected of a reasonable person in equivalent circumstances under those conditions.
[58] Although I find Mr. Afemui was not scared and trying to get away, even if I did, the driving would still be a marked departure of a reasonable person in circumstances as the driving was toward the threat, not to get away from the perceived threat. Furthermore, the video illustrates it is not a reasonable inference that Mr. Afemui would reverse rather than drive forward if he was afraid of Mr. Arnold.
Assault with a weapon
[59] I do not accept Mr. Afemui’s evidence that he swerved into Mr. Arnold accidentally when he saw him. His testimony is not credible given the totality of the evidence and the facts as I have found them.
[60] The video shows Mr. Afemui angle his car and swerve directly into Mr. Arnold at the exact moment he drives by Mr. Arnold.
[61] Mr. Afemui’s threat, his driving, and the video all substantiate his intention and his action: that he intentionally hit Mr. Arnold with his car.
VII. Conclusion
[62] I do not accept Mr. Afemui’s evidence, nor does it raise a reasonable doubt.
[63] Further, on the totality of the evidence I accept, particularly the evidence of the video surveillance, there is no alternative reasonable conclusion than that Mr. Afemui intended to execute the actions he did, with the results he achieved.
[64] The Crown has proven all the elements of both charges.
[65] I find Wayne Afemui guilty of dangerous operation of a motor vehicle causing bodily harm and assault with a weapon.
Released: June 4, 2025
Signed: Justice Cidalia C. G. Faria