DATE: 20050302

DOCKET: 42511

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MICHAEL WEESE (Appellant)

BEFORE:

MOLDAVER, MacPHERSON and CRONK JJ.A.

COUNSEL:

Vanessa Christie

for the appellant

Michal Fairburn

for the respondent

HEARD & ENDORSED:

February 25, 2005

On appeal from the decision of Justice J. Davie McCombs of the Superior Court of Justice, sitting as a summary conviction appeal court judge, dated October 14, 2004.

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

[1] The summary conviction appeal court judge held:

The trial judge found as a fact that the arresting officer did not appreciate the significance of the notation on the roadside screening device indicating that it had been re-calibrated on December 8th. On a fair reading of the transcript of the evidence of the officer, the trial judge’s conclusion as to the officer’s state of mind was reasonable and supported by the evidence. The trial judge went on to hold that the officer’s state of mind was both subjectively and objectively reasonable, based upon what he knew and appreciated at the time. I see no basis to interfere with his findings of fact.

[2] In our view, the summary conviction appeal court judge did not err in reaching this conclusion.

[3] The trial judge held, as a fact, that the arresting officer had an honest but mistaken belief that the machine had been properly calibrated. He also found that the arresting officer failed to appreciate the significance of the inaccurate calibration date. These findings are not challenged by the appellant.

[4] The fact that the police officer, acting in good faith, did not appreciate that there was an error in the recorded calibration date is itself a showing that the inaccurate date did not establish, at the relevant time, a high degree of unreliability with respect to the screening device. In our view, it cannot be said that no reasonable police officer, in a position similar to that of the arresting officer in this case, could not have made the same mistake regarding the accuracy of the recorded calibration date.

[5] Finally, on this record, the inaccurate calibration date does not establish that the device had not been recalibrated on a timely basis.

[6] Accordingly, the appeal is dismissed.