DATE: 20051213

DOCKET: C41619

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. JOHN KLEEFISCH (Appellant)

BEFORE:

DOHERTY, SHARPE and LANG JJ.A.

COUNSEL:

Richard Posner

for the appellant

Randy Schwartz

for respondent

HEARD & ENDORSED:

December 9, 2005

On appeal from the ruling of Justice Low of the Superior Court of Justice dated April 10, 2003.

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

[1] It is acknowledged by the appellant that the trial judge erred in law in directing an acquittal based on the Crown’s failure to adduce evidence of arrest.

[2] The Summary Conviction Appeal Court held that the error warranted a new trial. Counsel for the appellant argues that the evidence at trial could not justify a conviction and that despite the error at trial, the Summary Conviction Appeal Court should have dismissed the appeal.

[3] We are satisfied that the officer’s evidence could support a conviction on the charge (care and control). The Summary Conviction Appeal Court properly ordered a new trial.

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