DATE: 20060428

DOCKET: C43437

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MARY ELLEN HARVEY (Appellant)

BEFORE:

FELDMAN, SIMMONS and BLAIR JJ.A.

COUNSEL:

Jason H. Voss

for the appellant

Sandra Kingston

for the respondent

HEARD & ENDORSED:

April 27, 2006

On appeal from the judgment of Justice Gordon P. Killeen of the Superior Court of Justice dated April 1, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] Ms. Harvey seeks leave to appeal and if leave is granted, appeals from the decision of Killeen J. dismissing her appeal from conviction by Pockele J. for having care or control of a motor vehicle while her ability was impaired. In our view, the appeal must be dismissed.

[2] There was a factual basis to support the son’s opinion that his mother was intoxicated, and there was ample evidence, based on the son’s testimony and that of the police officer, to support the trial judge’s finding that the appellant’s ability to drive a motor vehicle was impaired at the relevant time.

[3] This evidence included the facts that:

(a) the appellant had been drinking over a period of days;

(b) the appellant was not aware of what day it was (Christmas Eve day) when the son found her “passed out” on the bed shortly before she left in the car to go to the LCBO;

(c) the son had to “wrestle” the car keys from his mother when she returned home;

(d) the appellant asked the son not “to call the cops” at that time;

(e) the police officer observed “signs of impairment “when he spoke to the appellant 30-45 minutes after her return (and she had had nothing to drink in the interim), including his evidence that the appellant had an odour of alcohol on her breath and that she was disoriented and confused as to the names of her children.

[4] Notwithstanding the time that had elapsed between the police officer’s observations and the time of driving, it was open to the trial judge to infer from all of this evidence, as he did, that the appellant was in care and control of her vehicle while her ability to drive was impaired.

[5] Accordingly, leave to appeal is granted but the appeal is dismissed.