DATE: 20041020

DOCKET: C41346

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – DARRYL COLLINS (Appellant)

BEFORE: WEILER, GOUDGE and BLAIR JJ.A.

COUNSEL: Robert C. Sheppard for the appellant

Grace Choi for the respondent

HEARD: October 7, 2004

RELEASED ORALLY: October 7, 2004

On appeal from the order of Justice Peter B. Hockin of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated January 13, 2004, dismissing an appeal from the conviction entered by Justice A. Ross Webster of the Ontario Court of Justice dated February 24, 2003.

E N D O R S E M E N T

[1] On February 24, 2003 the appellant was convicted of operating a motor vehicle while impaired. On January 13, 2004 the appellant’s appeal to the Summary Conviction Appeal Court was dismissed. The Appellant seeks leave to appeal and, if it is granted, the appellant appeals against conviction.

[1] The issues raised and our disposition is as follows:

Did the trial judge err in applying the wrong test for operating a motor vehicle while impaired?

Was the verdict unreasonable?

[2] The appellant submits that the trial judge applied the wrong test because he did not directly address the question of whether he was satisfied beyond a reasonable doubt the appellant’s ability to drive was impaired by alcohol. Instead the appellant submits that the trial judge only found that the appellant showed some signs of having consumed alcohol and some sign of impairment. The appellant further submits that Hockin J. committed the same error.

[3] We do not agree. The trial judge referred to the appellant driving his car towards the police officer’s vehicle at a high rate of speed, and stopping abruptly - approximately one half of a car length short of striking the police car with its flashing lights. The trial judge noted that the officer spoke to the appellant and observed his speech was slurred. The appellant admitted consuming two beers. The trial judge was satisfied that on this evidence the offence had been made out. The SCAJ in reviewing the reasons of the trial judge focussed on whether the appellant’s ability to drive was impaired and concluded that the evidence supported the conviction. The verdict was not unreasonable. The SCAJ did not err. The appeal is dismissed.

“Karen M. Weiler J.A.”

“S.T. Goudge J.A.”

“R.A. Blair J.A.”