DATE: 20040126

DOCKET: C40253

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GERALD CADIEUX (Appellant)

BEFORE:

DOHERTY, LASKIN and ROSENBERG JJ.A.

COUNSEL:

Bruce F. Simpson

for the appellant

Joan Barrett

for the respondent

HEARD & ENDORSED:

January 23, 2004

On appeal from the decision of Justice Douglas Rutherford of the Superior Court of Justice dismissing an appeal from conviction by Justice Peter Wright of the Ontario Court of Justice on March 19, 2003

A P P E A L B O O K E N D O R S E M E N T

[1] We agree with the trial judge and Rutherford J. They applied the decision of the Supreme Court of Canada in R. v. Toews (1985), 21 C.C.C. (3d) 24 and Rutherford J. also applied this court’s decision in R. v. Pelletier (2000), 6 M.V.R. (4th) 152 in finding that on the facts the appellant was in care and control. There was evidence of some course of conduct associated with the vehicle. On that issue, the judge was entitled to take into account all of the relevant surrounding circumstances, including the appellant’s stated intention to resume driving. His assertion that he intended only to drive when he felt he was sober went only to weight. As to the other elements, risk and dangerousness, there was abundant evidence including that the appellant was heavily intoxicated, the keys were in the ignition, the car was running and the appellant had made no arrangements to have someone else drive.

[2] Accordingly, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”