DATE: 20040203

DOCKET: C40436

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) – and – DAVID ROBSON (Respondent)

BEFORE:

ABELLA, GOUDGE and GILLESE JJ.A.

COUNSEL:

Leanne Salel

for the appellant

David North

for the respondent

HEARD:

January 30, 2004

On appeal from the summary conviction appeal judgment of Justice Claire Marchand of the Superior Court of Justice dated July 7, 2003, setting aside the conviction entered by Justice Leonard T. Montgomery of the Ontario Court of Justice on July 2, 2003.

E N D O R S E M E N T

Released Orally: January 30, 2004

[1] We agree with the appellant’s submission that this is a straightforward “over 80” case in which the trial judge was entitled to reject the evidence to the contrary. The Summary Conviction Appeal Court justice erred in law by improperly characterizing the trial judge’s factual finding respecting the reliability of the respondent’s evidence and in holding that the trial judge failed to apply the appropriate test in assessing the respondent’s evidence to the contrary.

[2] In respect to the first error, in our view the Summary Conviction Appeal judge misstated the trial judge’s finding concerning the reliability of the respondent’s evidence and then improperly substituted his opinion for that of the trial judge. At p. 7 of his reasons for judgment, the Summary Conviction Appeal judge stated that the trial judge “found no fault as to the evidence of the appellant, except to say that he was not necessarily “historian”.”

[3] The reasons for judgment of the trial judge, however, clearly state that, having regard to the totality of the evidence, the respondent’s testimony was not believable or reliable and did not raise a reasonable doubt. He stated that the respondent’s evidence did “not have the degree of precision necessary to safely constitute a foundation for the expert’s opinion”. The trial judge’s finding as to the unreliability of the respondent’s evidence was solidly grounded in the evidence. As such, the trial judge was entitled to reject the respondent’s evidence and there was no basis for interference with his findings of fact in that regard.

[4] In respect to the second error, we are of the view that the Summary Conviction Appeal judge erred in finding that the trial judge applied an incorrect burden of proof when assessing the evidence to the contrary. The trial judge began by instructing himself as to the proper test to be applied. While the trial judge refers to cases that are not obviously relevant, that discussion relates to the trial judge’s attempt to deal with speculation. The trial judge did not place the onus on the respondent to conduct his own scientific experiments on the breathalyzer instrument or his own body as a pre‑requisite to a Carter defence.

[5] Leave to appeal is granted, the appeal is allowed. The acquittal by the Summary Conviction Appeal court is set aside and the conviction is restored.

“R. S. Abella J.A.”

“S. T. Goudge J.A.”

“E. E. Gillese J.A.”