DATE: 20061120

DOCKET: C44916

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GAIL LOUISE MARTIN (Appellant)

BEFORE:

WEILER, FELDMAN and MACFARLAND JJ.A.

COUNSEL:

John R. Mann

for the appellant

Joseph Perfetto

for the respondent

HEARD & RELEASED ORALLY:

November 14, 2006

On appeal from the decision of the summary conviction appeal court dated January 24, 2006 by Justice Robert M. Thompson of the Superior Court of Justice, allowing the appeal from the acquittal entered on June 28, 2005 by Justice Donald C. Downie of the Ontario Court of Justice.

E N D O R S E M E N T

[1] The appellant, Ms. Martin, applies for leave to appeal, and if leave is granted, appeals the decision of the summary conviction appeal court judge, allowing the Crown’s appeal against her acquittal for the offence of impaired driving, contrary to s. 253(a) of the Criminal Code. At trial the appellant was also acquitted of the charge of driving over 80, contrary to s. 253(b), but the Crown did not appeal the acquittal on this charge to the summary conviction appeal court judge.

[2] The appellant asks that her conviction for impaired driving by the summary conviction appeal court judge be vacated and that an order go re-instating the trial judge’s acquittal.

Issues

[3] The issues on this appeal are: Did the summary conviction appeal court judge substitute his own opinion related to impaired operation of a motor vehicle for that of the trial judge? Did the summary conviction appeal court judge fail or refuse to consider the lack of evidence of impairment by alcohol? If the trial judge did err, was that error an error of law? Were the reasons of the summary conviction appeal court judge adequate?

Analysis and Disposition

[4] In deciding to acquit the appellant, the trial judge relied on the testimony of an experienced police officer to the effect that the officer had only a suspicion that the appellant had alcohol in her system. The officer did not believe that he had grounds to arrest her for impaired driving due to alcohol. The appellant submits that the trial judge was obliged to accept the officer’s evidence.

[5] In our opinion, just because the arresting officer was of the opinion that he did not have grounds to arrest the appellant for impaired driving the trial judge was not obliged to acquit. The trial judge had other evidence to consider besides that of the police officer indicating that the appellant was impaired, specifically the evidence of the civilian witness.

[6] The indictment specified that the appellant was impaired by alcohol. Early in his reasons the trial judge acknowledged that there was “certainly evidence of impaired driving of some sort.” The trial judge erred in law in holding that without the results of the breath test he could not convict the appellant for impairment due to alcohol consumption: R. v. Stellato (1993), 1993 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d (1994), 1994 94 (SCC), 90 C.C.C. (3d) 160 (S.C.C.).

[7] The police officer testified that he noted a stale odour of alcohol on the appellant’s breath. When asked about alcohol consumption by the police officer, the appellant said she had been taking a herbal remedy. The appellant said there may have been alcohol in the herbal remedy she was taking.

[8] Assuming alcohol consumption was a necessary particular, it was open to the trial judge to find beyond a reasonable doubt that the appellant’s impairment was due to alcohol. The trial judge had to decide based on all the evidence whether the appellant’s ability to drive a motor vehicle was impaired due to alcohol. It appears that the trial judge failed to take into account all of the evidence. The summary conviction appeal court judge was correct to intervene and order a new trial.

[9] Insofar as the appellant attacks the reasons of the summary conviction appeal court judge as being inadequate, the reasons give a clear indication as to why the appeal was allowed and it cannot be said that the brief reasons foreclosed meaningful appellate review.

[10] The appeal from conviction is therefore dismissed.

“Karen M. Weiler J.A.”

“K. Feldman J.A.”

“J. MacFarland J.A.”