DATE: 20010209

DOCKET: C34348

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. MARK BERLINSKI (Applicant/Appellant)

BEFORE: CHARRON, FELDMAN and MacPHERSON JJ.A.

COUNSEL: Alan D. Gold,

for the appellant

David Finley,

for the respondent

HEARD: February 6, 2001

RELEASED ORALLY: February 6, 2001

On appeal from his conviction by Justice Ian M. Gordon on May 11, 2000

E N D O R S E M E N T

[1] The sole issue in this case is whether the arresting police officer had reasonable and probable grounds to arrest the appellant for impaired driving and make a demand for a breath sample. The trial judge held that he did not and found that there had been a breach of s. 9 of the Charter, excluded the evidence, and acquitted the appellant.

[2] The summary conviction appeal judge held that the trial judge erred in so finding, set aside the acquittal, and ordered a new trial.

[3] In our view, the summary conviction appeal judge was correct. There was no issue in this case that the police officer subjectively formed the opinion that the appellant drove his car while impaired. The question was whether this opinion was supported by objective facts. In our view, the evidence did support the officer’s opinion. The officer’s observations of the appellant’s physical condition, including a strong smell of alcohol, red eyes, a flushed face and slow motor skills, coupled with his observations of the appellant’s apparent evasion of the RIDE program and the discarding of open beer bottles by the passenger in the vehicle, were sufficient objective factors supporting the officer’s belief in this case.

[4] Consequently, the appeals judge was correct in setting aside the acquittal and ordering a new trial. Leave to appeal is allowed but the appeal is dismissed.

(signed) “Louise Charron J.A.”

(signed) “K. Feldman J.A.”

(signed) “J. C. MacPherson J.A.”