DATE: 20051004

DOCKET: C41757

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JAMES JOSEPH DIETRICH (Applicant)

BEFORE:

ROSENBERG, FELDMAN and JURIANSZ JJ.A.

COUNSEL:

James Joseph Dietrich

In person

Ian Scott

for the respondent

HEARD:

September 28, 2005

On appeal from conviction by Justice C. Marchand of the Superior Court of Justice dated December 17, 2003 and sentence imposed dated March 26, 2004.

E N D O R S E M E N T

[1] The appellant raised a number of grounds of appeal against his conviction. However, for the following reasons the appeal is dismissed.

[2] It is apparent from the record that the only issue of bolus drinking concerned drinking after the accident. The trial judge dealt with that issue fully and correctly. As the possibility of bolus drinking before the collision was not a live issue, there was no need for the trial judge to address it.

[3] There was no violation of s. 650 of the Criminal Code because the appellant was not present to receive the written reasons for judgment: see s. 650(2)(b).

[4] The apparent discrepancy in the time of the collision in the reasons for judgment would not have affected the expert’s opinion that the blood alcohol level exceeded .08

[5] The trial judge dealt with the evidence of Mrs. Lobo and found her to be a credible witness. The appellant did not testify nor adduce any evidence to cast doubt on her testimony.

[6] The appeal from conviction is dismissed.

[7] As to sentence, the appellant has an extremely serious record for driving offences. On this occasion the appellant caused a very serious collision.

[8] Leave to appeal sentence is refused.

Signed: “M. Rosenberg J.A.”

“K. Feldman J.A.”

“R.G. Juriansz J.A.”