DATE: 20060313

DOCKET: C43591

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – HANIF NANJI (Appellant)

BEFORE: ROSENBERG, BORINS AND LANG JJ.A.

COUNSEL:

David M. Paciocco

for the appellant

Amanda Rubaszek

for the respondent

HEARD & ENDORSED: March 10, 2006

On appeal from the judgment of Justice Peter Cumming of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated May 16, 2005, dismissing the appeal against conviction by Justice P. Taylor of the Ontario Court of Justice dated April 26, 2004 and sentence imposed dated June 11, 2004.

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

[1] This case has been argued throughout on the basis that there was no unequivocal refusal as opposed to a reasonable excuse for refusing. Whether there was an unequivocal refusal was a finding of fact. The trial judge and the summary conviction appeal judge inferred that there was such a refusal, despite what might have been some initial confusion. Since this inference was available on the facts, the appellant has failed to demonstrate an error in law and the appeal is dismissed.