Background
On the evening of May 15, 2021, Adnan Refaeh, then 19 years old, became engaged in a prolonged street race in downtown Guelph after a stranger, Mitchell Nodwell, revved his engine at a red light. Refaeh responded by accelerating his father’s BMW to keep pace with Nodwell’s Cadillac. The two vehicles raced at high speed through 22 intersections, weaving in and out of lanes and endangering other motorists and pedestrians. The race ended when Nodwell’s car struck another vehicle head-on, seriously injuring T.K., a 13-year-old passenger in that vehicle.
Refaeh drove away without stopping. His then-girlfriend, a passenger in the BMW, testified that Refaeh briefly stopped, looked at the crash scene, ignored her pleas to render assistance, and then drove off. In the days that followed, Refaeh — with encouragement from family members — took steps to conceal his involvement, including altering and repairing the BMW, deleting social media photographs, and lying to police. He was arrested six days later and, after speaking with counsel and his father, gave a statement to police that he later admitted was filled with lies.
Refaeh was charged under ss. 320.13(2) and 320.16(2) of the Criminal Code with dangerous driving causing bodily harm and failing to remain at the scene of an accident causing bodily harm. He brought a pre-trial s. 11(b) Charter application arguing unreasonable delay of 30 months and 21 days, which was dismissed. A jury convicted him on both counts on December 5, 2023, and he was sentenced to 15 months’ custody — 12 months for dangerous driving and 3 months for failing to remain — plus a 3-year driving prohibition.
The Court’s Holding
The Court of Appeal unanimously dismissed both the conviction appeal and the sentence appeal (leave to appeal sentence was granted but the appeal dismissed on the merits). On the conviction side, the court rejected all six grounds raised regarding the jury charge, as well as challenges to the dismissal of the s. 11(b) application and to the admissibility of Refaeh’s police statement. The application judge’s finding of case complexity justifying the delay was entitled to deference, and the trial judge’s voluntariness finding — that the implicit quid pro quo in Sergeant Gordon’s comment was too weak and ambiguous to overbear Refaeh’s free will — disclosed no palpable and overriding error.
On the jury charge, the court held that there was no air of reality to an abandonment defence because Refaeh never took any affirmative steps to disengage from the race; internal subjective desire alone cannot constitute abandonment. The causation instruction was correct: where two drivers engage in street racing, both are causally responsible in law for injuries suffered by innocent third parties, and no intervening act broke the chain. The court also rejected the argument that self-defence should have been left with the jury, noting that self-defence operates as a subset of necessity, which the trial judge had properly instructed on. Notably, defence counsel had not objected at trial to any of the impugned portions of the charge.
On sentence, the court found no error of law or principle and declined to interfere. It expressly observed that, given the gravity of the aggravating circumstances — including Refaeh’s prior speeding convictions, the dangerous urban race, the serious injury to a child, and his deliberate concealment efforts — the 15-month custodial sentence was “extremely lenient.” The court declined to address the Crown’s collateral argument about which party bears the burden of proof on the “reasonable excuse” defence under s. 320.16, holding it was not appropriate to resolve a legal question with no bearing on the appeal’s outcome and without full submissions from the appellant.
Key Takeaways
- An accused cannot rely on abandonment as a defence to dangerous driving unless he takes objectively reasonable steps to disengage — a subjective change of heart while continuing to drive dangerously is legally insufficient.
- When two drivers jointly participate in a street race, both are causally responsible in law for injuries to innocent third parties harmed as a result, absent a true intervening act.
- A trial judge’s findings on voluntariness and on s. 11(b) complexity attract strong appellate deference; an implicit quid pro quo that is weak and ambiguous will not overbear free will as a matter of law.
- Self-defence need not be left with a jury where a necessity defence has already been charged and self-defence would add nothing beyond what necessity already covers.
- Appellate courts will decline to resolve collateral legal issues — even jurisprudentially significant ones raised by the Crown — where the issue has no effect on the appeal’s outcome and the record is insufficient for full argument.
Why It Matters
This decision reinforces the strict legal framework governing street racing prosecutions in Ontario. By affirming that both participants in a street race share causal responsibility for resulting injuries — regardless of which vehicle actually collides — the court gives prosecutors a clear analytical path in cases where the initiating driver and the racing companion are charged separately. The court’s treatment of abandonment is equally significant: counsel cannot rely on post-hoc claims of subjective reluctance to negate liability unless the accused took concrete, observable steps to exit the dangerous situation.
The court’s refusal to weigh in on the Crown’s burden-of-proof question regarding the “reasonable excuse” defence under s. 320.16 leaves that issue open for future litigation. The trial judge’s ruling — that the Crown bears the onus of disproving reasonable excuse — had already been applied by other courts, and the Court of Appeal’s express non-endorsement signals that the question remains live and contested, ensuring it will be litigated again when the Crown has standing to appeal a directly prejudicial ruling.