



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Correia, 2018 ONCA 104

DATE: 20180202

DOCKET: C62995

Juriansz, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fernando Correia

Appellant

Stuart OConnell, 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
    jurys 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 judges 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 appellants 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 appellants
    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 appellants 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 judges reasons, she did not
    make findings incompatible with the jurys 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 courts 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.


