



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Ally, 2017 ONCA 67

DATE: 20170125

DOCKET: C60054

Doherty, Blair and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nafraaz Jazid Ally

Applicant (Appellant)

Martin Kerbel, Q.C., for the appellant

Shawn Porter, for the respondent

Heard and orally released:  January 17, 2017

On appeal from the conviction entered on October 22, 2014
    by a jury presided over by Justice Daley of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of dangerous driving causing bodily harm by
    a jury.  He appeals his conviction only.

[2]

The appellant was headed eastbound on a four-lane road in Brampton.  As
    he approached a green light, a vehicle driven by Ms. Vaz, that was headed
    westbound, commenced a left turn across the lane in which the appellant was
    travelling eastbound.  A collision occurred and, unfortunately, Ms. Vaz was
    badly injured.

[3]

The Crown claimed that the appellant
    was driving at a very high rate of speed as he entered the intersection where
    the accident occurred.  Several witnesses testified that the appellant was
    driving 40 or 50, or even more, kilometres above the speed limit.  Two
    witnesses testified that the appellant appeared to be racing with another
    vehicle.  The Crown argued that in the circumstances, the appellants speed,
    particularly combined with the racing, established the offence of dangerous
    driving.  There was no issue about causation in this case.

[4]

The appellant admitted that he was
    driving somewhat over the speed limit, but he testified that he was not driving
    nearly as fast at the witnesses for the Crown suggested he was.  It was the
    defence position that the accident in fact resulted because Ms. Vaz made an
    illegal left turn at the light, crossing into the lane in which the appellants
    vehicle was travelling.

[5]

Counsel for the appellant has advanced
    four grounds of appeal.  First, he submits that the trial judge erred in
    instructing the jury on the fault component of dangerous driving.  Counsel
    relies on
R. v. Roy
(2012), 281
    C.C.C. (3d) 433 (SCC).

[6]

We cannot accept this argument.  In our
    view, the trial judges instruction is on all fours with the description of the
    fault component in
R. v. Roy
.  The
    trial judges instructions are found at pp. 26-31 of the transcript.

[7]

In his argument, counsel submitted that
    the trial judge should have told the jury that the fault component required
    foresight of the risk that Ms. Vaz would make the improper left turn at the
    light.  We do not read
Roy
that way. 
    The focus of the fault requirement is on foresight of the risk created by the
    manner of the accuseds driving.  In this case, the jury had to consider
    foresight of the risk created by driving at such a fast speed in a residential
    area at night.

[8]

The second ground of appeal relates to
    the experts evidence.  Counsel submits that the jury should have been told to
    ignore the experts evidence about who was at fault for the accident.

[9]

We would not give effect to this ground
    of appeal.  While it is true that the expert was asked about fault, his
    answer in fact spoke about the cause of the accident.  No objection was taken
    to the experts evidence.  He was entitled to give evidence about the cause of
    the accident as long as it was based in the physical evidence that had been
    placed before the jury and was properly within the ambit of his expertise.

[10]

The trial judge gave a proper
    instruction on the fault requirement of dangerous driving.  He did not suggest
    to the jury that some other notion of fault would suffice to establish criminal
    liability.  In fact, he made it clear to the jury that carelessness, something
    the jury might equate with fault, was not sufficient to establish criminal
    liability.

[11]

We see no risk that the jury may have
    been misled by the experts evidence or the trial judges instructions on that
    evidence.

[12]

The third ground of appeal relates to
    the trial judges instruction on the use the jury could make of the appellants
    convictions for various offences under the
Highway Traffic Act
.  The appellant had a relatively minor
Highway
    Traffic Act
record.  The trial judge, without
    objection, instructed the jury that it might take those convictions into
    account if it saw fit in assessing the appellants credibility.

[13]

In our view, convictions for the
Highway
    Traffic Act
offences in issue here could not
    possibly assist one way or the other in assessing the appellants credibility
    and it would have been better had no such instruction be given.  We are satisfied,
    however, that there was no risk that the jury would have used the
Highway
    Traffic Act
convictions to make an adverse
    credibility finding against the appellant.  The instruction, while unnecessary,
    could not have prejudiced the appellant.

[14]

The fourth argument is an argument that
    the verdict was unreasonable.  Counsel submits that no jury, properly
    instructed, could have convicted the appellant.  He argues that speed alone in
    these circumstances could not support the conviction.

[15]

We observe that the trial judge made it
    clear to the jury that speed alone could not be equated with dangerous
    driving.  In our view, there was a basis upon which this jury could find that
    the appellant by travelling at such a high rate of speed in a residential area
    at night met the requirements for dangerous driving.  It was also open to the
    jury to find that the appellant was racing at the time of the accident.  The
    Crown put that position to the jury and there was some evidence to support it. 
    Mr. Kerbel, with his usual candour, acknowledges that if the jury was
    satisfied, not only that the appellant was going very fast but that he was
    racing another vehicle, the verdict could not be said to be unreasonable.

[16]

The appeal must be dismissed.

Doherty J.A.

R.A. Blair J.A.

P. Lauwers J.A.


