DATE: 20050513

DOCKET: C42626

COURT OF APPEAL FOR ONTARIO

RE:

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

BEFORE:

ROSENBERG, BLAIR and JURIANSZ JJ.A.

COUNSEL:

Richard Addelman

for the appellant

Nadia Thomas

for the respondent

HEARD & ENDORSED:

May 11, 2005

On appeal from the order of Justice Bernard Joseph Manton of the Superior Court of Justice (Summary Conviction Appeal Court) dated October 22, 2004.

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

[1] In our view, Manton J. erred in law in allowing this appeal. Contrary to the finding of the appeal judge, the trial judge did not treat the officer’s notes as evidence. Nor are her reasons open to the interpretation that she could not accept the officer’s oral testimony unless it was confirmed by the notes. The notes, and in particular the absence of the important fact as to the origin of the odour of alcohol, were relevant to the officer’s credibility.

[2] The finding on credibility was not unreasonable. It was therefore open to the trial judge to have a reasonable doubt as to whether the officer had the requisite reasonable suspicion.

[3] Accordingly, leave to appeal is granted, the appeal is allowed and the order dismissing the charge is restored.