



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lights, 2020 ONCA 102

DATE: 20200211

DOCKET: C64364

Rouleau, Benotto and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Lights

Appellant

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 appellants 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 judges 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 drivers side window and was thus not the driver. The appellant
    argues that given the evidence, the trial judges finding that there were two stocky
    black men at the scene was an error. The appellant argues that, consequently,
    the trial judges findings that the drivers 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 drivers 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 drivers 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 drivers 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 drivers seat. He and the stocky
    black man pulled him out through the opening in the drivers 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 judges
    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 accuseds 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 appellants suggestion that we must focus solely on the
    act of running the red light. The trier of fact would be entitled to consider
    the appellants 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 appellants 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.


