DATE: 20030204

DOCKET: C39129

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) - and - DOUGLAS STEWART (Appellant)

BEFORE: ROSENBERG, GOUDGE and SIMMONS JJ.A.

COUNSEL: Seth Weinstein For the appellant

Sarah Gray For the respondent

HEARD: JANUARY 31, 2003

RELEASED ORALLY: JANUARY 31, 2003

An appeal from the decision of Justice Thomas Dunn of the Superior Court of Justice dismissing the appellant’s appeal from his conviction for impaired driving.

E N D O R S E M E N T

[1] The Summary Conviction Appeal Court judge concluded his reasons as follows:

His [the trial judge’s] error, if any, is in his failure to elaborate in his reasons, the conclusions he came to and the foundation for them.

[2] In our view, that was the very error that occurred in this case and the Summary Conviction Appeal judge should have given effect to it. See R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.) at paragraph 46.

[3] The appellant testified and adduced other defence evidence to meet both the breathalyzer reading and the impairment issue. That evidence, if believed, conflicted with the Crown evidence. The trial judge did not refer to that evidence nor explain either why he rejected it, or if he did not reject it, how it could stand with the Crown evidence. Sheppard does not hold trial judges to an exacting standard, but does require that the reasons are sufficient to serve the purpose for which the duty is imposed. In this case the appellant’s appeal rights were frustrated by the failure of the trial judge to give adequate reasons.

[4] Accordingly, the appeal is allowed and the conviction is set aside. The conditional stay on the “over 80” charge is lifted and a new trial directed on both charges.

Signed:_____ “M. Rosenberg J.A.”

_____ “S.T. Goudge J.A.”

_____ “J. Simmons J.A.”