DATE: 20050926

DOCKET: C41371

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. MICHAEL ROBERT DAINES (Appellant)

BEFORE:

DOHERTY, MOLDAVER and ARMSTRONG JJ.A.

COUNSEL:

Margaret Hoy

for the appellant

Randy Schwartz

for the respondent

HEARD & ENDORSED:

September 23, 2005

On appeal from the conviction entered by Justice Marc Girard of the Superior Court of Justice dated December 10, 2001.

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

[1] The trial judge properly identified the applicable law as set out in R. v. Toews (1985), 1985 46 (SCC), 21 C.C.C. (3d) 24.

[2] He further held on the evidence that there was a real risk given the appellant’s extreme impairment that the appellant could have woke up and drove the vehicle. This was essentially a finding of fact. The summary conviction appeal court judge held that the finding was not unreasonable. He applied the correct standard of review and we see no error in law upon which we can intervene.

[3] Leave to appeal granted and the appeal is dismissed.