DATE: 2003109

DOCKET: C40136

COURT OF APPEAL FOR ONTARIO

WEILER, GILLESE and ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Irwin Koziebrocki for the appellant

Respondent

• and -

CHARLES PLUMB

Nadia Thomas for the respondent

Appellant

Heard: September 26, 2003

On appeal from the summary conviction imposed by Justice Barry G. A. MacDougall of the Superior Court of Justice dated May 22, 2003 reported at [2003] O. J. No. 2021.

BY THE COURT:

[1] We see no reason to interfere with the decision of the summary conviction appeal judge in this matter. The appeal judge correctly identified the key issue as that of mens rea. He also correctly identified and applied the appropriate test as set out by the Supreme Court of Canada in R. v. King, 1962 SCC 16, [1962] S.C.R. 746. He concluded that there was evidence upon which the trial judge could make his findings of fact and that, on the totality of evidence, the trial judge’s determinations could not be said to be unreasonable.

[2] There was sufficient evidence for the appeal judge to conclude that the appellant could reasonably have been expected to foresee the consequences of his actions and/or that he was reckless in having assumed the risk that he might have become impaired. In the circumstances of this case, there is no need to decide whether recklessness is a necessary component of the analysis. In the circumstances of this case, there is no need to decide whether recklessness is a necessary component of the analysis.

[3] In coming to his conclusions, the appeal judge noted the following findings of fact:

• within months preceding the incident, the appellant experienced two significant changes in his medication: both the dosage and rate of daily consumption were significantly increased;

• shortly before the incident, the appellant had experienced losses of memory that he thought could be caused by the increased medication;

• the appellant failed to make any inquiry of his doctor of the connection between his memory gaps and the increased use of the medication;

• the appellant admitted that he knew the drug could make him drowsy; and

• on the date of the incident, the appellant had consumed either the maximum dosage or an amount close to the maximum dosage before getting into his car to go shopping.

[4] We see no basis upon which to interfere with the decision of the summary conviction appeal court and would, therefore, dismiss the appeal.

“K.M. Weiler J.A.”

“E.E. Gillese J.A.”

“R.P. Armstrong J.A.”

Released: October 9, 2003