DATE: 20050418

DOCKET: C41623

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GIUSEPPE RENDA (Appellant)

BEFORE:

ROSENBERG, MOLDAVER and GOUDGE JJ.A.

COUNSEL:

Eric Lewis

for the appellant

David Carruthers

for the respondent

HEARD & ENDORSED:

April 15, 2005

On appeal from the order of Justice John R. of the Superior Court of Justice dated March 11, 2004.

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

[1] The appellant submits that the summary conviction appeal court judge erred in allowing the Crown appeal on the issue referred to in argument as the Pickles (R. v. Pickles (1973), 1973 1357 (ON CA), 11 C.C.C. (2d) 210 (Ont. C.A.) point and erred in failing to consider the other possible defences that would have led to an acquittal. We do not agree for the following reasons.

[2] As the appeal judge held, there is no burden on the Crown to establish reasonable and probable grounds.

[3] There was abundant evidence that the samples were taken pursuant to a demand under s. 254. The arresting officer made the demand and was with the appellant while the technician took the samples. The argument based on R. v. Pickles, therefore, had no merit.

[4] There was abundant evidence that the appellant was served with a copy of the certificate. The officer testified that he served the appellant with the certificate and the appellant acknowledged in writing receiving a true copy of the certificate

[5] Whether the samples were taken as soon as practicable was an issue of fact for the trial judge. We cannot say as a matter of law that on this record the samples were not taken as soon a practicable. See R. v. Cambrin (1982), 1982 353 (BC CA), 1 C.C.C. (3d) 59 (B.C.C.A.).

[6] There is no merit to any of the Charter arguments. The burden was on the appellant to establish a breach of the Charter, such as s. 10(b). On the record, there was no evidence that the appellant’s rights were infringed. In any event, no objection was taken at trial to the admissibility of any evidence at trial. The certificate was admitted into evidence without objection and the appellant provided no notice of any Charter arguments.

[7] Accordingly, the appeal is dismissed.