DATE: 20030604

DOCKET: C36017

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) - and - SAMUEL DAVID JAMES KEWAQUADO (Respondent)

BEFORE: DOHERTY, ROSENBERG and ARMSTRONG JJ.A.

COUNSEL: Ian W. Bulmer For the appellant

Harry G. Black, Q.C. For the respondent

HEARD: MAY 30, 2003

RELEASED ORALLY: MAY 30, 2003

On appeal from the acquittal by Justice Clair B. Marchand of the Superior Court of Justice dated February 20, 2001.

E N D O R S E M E N T

[1] We would not give effect to this Crown appeal. The trial judge properly directed himself with respect to the elements of dangerous driving and applied that legal test. He referred to all of the relevant evidence and expressly stated that he was considering the totality of the evidence. The reasons do not support the Crown’s submission that the trial judge isolated or eliminated the speed from the other conduct.

[2] As to the charge of impaired ability causing bodily harm, we are satisfied that the trial judge applied the proper legal test. He recognized that if the appellant’s judgment was impaired by alcohol, this would be sufficient to make out the offence even if the manner of driving did not demonstrate impaired ability to drive. In the impugned passage of the trial judge’s reasons, the judge was listing some of the constituent elements of driving, not purporting to set out the elements of the offence. We see no basis for holding that the trial judge did not recognize that even a slight impairment of ability was capable of constituting an offence. The trial judge carefully reviewed the evidence and made findings of fact that could be supported by that evidence.

[3] Accordingly we see no error of law and the appeal must be dismissed.

Signed: “Doherty J.A.”

“M. Rosenberg J.A.”

“Armstrong J.A.”