



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stele, 2018 ONCA 478

DATE: 20180522

DOCKET: C62312

MacFarland, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Stele

Appellant

John Collins, for the appellant

Joseph Hanna, for the respondent

Heard and released orally: May 17, 2018

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. Steles 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 judges decision to act on testimony
    provided by Mr. Scherer about Mr. Steles 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. Scherers testimony to influence his
    findings about the manner of driving. While there were points of departure
    between Mr. Scherers evidence about the driving and the testimony provided by
    the independent witness, the testimony of the independent witness did offer
    material support to Mr. Scherers 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 judges comments about Mr. Scherers
    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
    judges 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 judges decision to rely in
    part on Mr. Scherers 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. Scherers exaggerated estimate of
    speed, he was entitled to rely on Mr. Scherers 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. Scherers 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. Steles 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 judges 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.


