COURT OF APPEAL FOR ONTARIO

DATE: 20041103

DOCKET: C40757

RE:

HER MAJESTY THE QUEEN (Respondent) – and – KATHRYN M. RITCHIE (Appellant)

BEFORE:

DOHERTY, WEILER and SIMMONS JJ.A.

COUNSEL:

Edward C. Conway

for the appellant

Deborah Krick

for the respondent

HEARD & RELEASED ORALLY:

November 1, 2004

On appeal from the order of Justice Catherine Aitken of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated September 16, 2003 dismissing an appeal from a conviction entered by Justice John D. Nadelle of the Ontario Court of Justice dated January 21, 2003.

E N D O R S E M E N T

[1] The trial judge clearly directed his mind to the actus reus of the offence of mischief, namely, whether the appellant was driving without due care. When the trial judge turned his mind to the mens rea of the offence, we are of the opinion that the trial judge’s finding of mischief is inextricably linked to his conclusion the appellant was impaired. The Summary Conviction Appeal Judge (“SCAJ”) allowed the appellant’s conviction for impaired driving. Having acquitted the appellant on the impaired charge, the SCAJ could sustain the mischief charge only if the trial judge would necessarily have convicted the appellant absent the evidence of impairment. The trial judge did not make specific findings in relation to the mischief charge. We are not satisfied that the trial judge would necessarily have convicted the appellant in these circumstances. In fact, we think the evidence from which the requisite knowledge could be inferred was very weak.

[2] In all the circumstances, we think it is appropriate to allow the appeal, quash the conviction and acquit the appellant.

“Doherty J.A.”

“K.M. Weiler J.A.”

“Janet Simmons J.A.”