DATE: 20030224

DOCKET: C38843

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and- RUSSELL MAYNER (Appellant)

BEFORE: CRONK, GILLESE and ARMSTONG JJ.A.

COUNSEL: Lawrence Ben-Eliezer for the appellant

C. Jane Arnup for the respondent

HEARD: February 20, 2003

On appeal from the decision of Justice Bonnie J. Wein of the Superior Court of Justice dated August 29, 2002, sitting as a summary conviction appeal court judge on appeal from the conviction entered by Justice Ian B. Cowan of the Ontario Court of Justice on January 24, 2002.

E N D O R S E M E N T

[1] On January 24, 2002, Mr. Mayner was convicted of driving with excess alcohol in his blood. Breathalyzer readings indicated that he had 121 and 110 milligrams of alcohol in 100 milliliters of blood. The trial judge disbelieved the evidence given by Mr. Mayner and therefore found that his evidence could not provide a foundation for “evidence to the contrary”. As well, the trial judge drew an adverse inference from his failure to call a potentially confirmatory witness.

[2] Mr. Mayner appealed that conviction, arguing that the trial judge erred in drawing an adverse inference against him based upon his failure to call the potentially confirmatory witness.

[1] The summary convictions appeal court judge found no error in law and dismissed the appeal. Mr. Mayner seeks leave to appeal from that decision.

[2] We find no error of law in the reasoning or result of the summary convictions appeal court judge. In particular, we agree with her conclusion that it was the trial judge’s disbelief of the appellant’s evidence which provided the basis for his determination that there was no “evidence to the contrary”. We agree that the inference the trial judge apparently drew from the failure to call the witness was merely ancillary to the rejection of the defence position.

[3] In light of our conclusion, we need not deal with the Crown’s submission that leave to appeal ought not be granted.

[4] Accordingly, leave to appeal is granted and the appeal is dismissed.

“”E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“R.P. Armstrong J.A.”