



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Evariste, 2017 ONCA 1023

DATE: 20171228

DOCKET: C58473 / C58083

Sharpe, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre Evariste

Appellant

Breana Vandebeek, for the appellant

Michael Perlin and Jennifer Epstein, for the respondent

Heard and released orally: December 18, 2017

On appeal from the conviction entered on October 2, 2013
    and the sentence imposed on November 27, 2013 by Justice Nancy Backhouse of the
    Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted following a 12-day jury trial of failing to
    stop after an accident, dangerous driving causing bodily harm, impaired
    operation of a motor vehicle causing bodily harm, and attempt to obstruct
    justice. He raises four grounds of appeal.

(1)

Third party suspect instruction

[2]

The appellants main defense at trial was that Derek Rego Kidd was the
    driver of the van at the time of the accident. He submits that the trial judge
    failed to give an adequate third party suspect instruction.

[3]

We disagree. The trial judge instructed the jury at two points in the
    charge, that Kidds criminal record and propensity to commit similar offences
    could be considered in relation to the third party suspect defense. The trial
    judge also carefully reviewed the defense position on this issue and gave a
    correct
W.(D.)
instruction sufficient to cover the defense evidence
    relating to the third party suspect defense. Finally, there was no objection to
    this aspect of the charge at trial.

(2)

Treatment of the appellants sisters evidence

[4]

The trial judge instructed the jury that the appellants statement to
    his sister that Kidd was the driver, was not admissible as proof that Kidd was
    the driver, but could be used in relation to the sisters evidence that she saw
    Kidd drive the vehicle on a prior occasion.

[5]

We do not agree that this instruction was confusing or inadequate. There
    was no objection to this instruction when it was given midtrial or in the final
    charge.

(3)

Comments made concerning Blackburns evidence

[6]

We do not agree that this aspect of the instruction was confusing or
    inadequate when the charge is read as a whole. Once again, there was no
    objection to this aspect of the charge.

(4)

Impaired driving causing bodily harm conviction

[7]

We do not agree that the impaired driving causing bodily harm conviction
    was unreasonable. The evidence of the security guards who saw the appellant
    shortly after the accident included that there was a strong smell of alcohol on
    the appellants breath, that the appellant had blood shot eyes, that he was
    wobbling on his feet, and that he had a droopy face. When this evidence is
    considered with the very erratic driving at the time of the accident, it
    provided an adequate basis for the jury to find that the appellant was guilty
    of impaired driving causing bodily harm.

[8]

Accordingly, the conviction appeal is dismissed. As for the sentence
    appeals, both the appellant and the Crown have abandoned their sentence appeals
    and accordingly, those appeals are also dismissed.

Robert J. Sharpe
    J.A.

L.B. Roberts
    J.A.

Fairburn J.A.


