CITATION: R. v. McBrine, 2007 ONCA 25

DATE: 20070118

DOCKET: C43332

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and- WAYNE McBRINE (Appellant)

BEFORE:

LABROSSE, CRONK and ARMSTRONG JJ.A.

COUNSEL:

Jeffrey V. Milligan

for the appellant

Joan Barrett

for the respondent

HEARD & RELEASED ORALLY:

January 16, 2007

On appeal from the decision of the summary conviction appeal court dated March 24, 2005 by Justice Guy P. DiTomaso of the Superior Court of Justice, dismissing the appeal from the conviction entered on June 14, 2004 by Justice Nancy A. Dawson of the Ontario Court of Justice.

E N D O R S E M E N T

[1] The issue on this appeal is whether the summary conviction appeal judge erred in law in upholding the trial judge’s finding that the appellant was in both care and control of his vehicle from the time he drove into a stone gate post of a private driveway up to the time the police arrived on the scene.

[2] The appellant’s driving, which led to the accident, and his conduct after the accident indicated that he was visibly impaired.

[3] In detailed reasons, the trial judge reviewed the governing principles and reached her conclusion on the basis of the appellant’s close proximity to his vehicle with the keys of the vehicle in his possession, his declared intention to continue driving once able to do so and his repeated attempts to obtain assistance in extricating his vehicle so that he could carry out his intention. In addition to the risk that the appellant would attempt to drive his vehicle once it was extricated, the trial judge held that there was a risk of danger to the appellant and others if further attempts were made to extricate the vehicle. Moreover, she held that there was no abandonment of the care and control of the vehicle.

[4] The summary conviction appeal judge rejected the appellant’s claim that the risks identified by the trial judge were too remote or speculative to satisfy the test for care and control.

[5] The trial judge’s findings are supported by the evidence and both lower courts properly considered and applied the correct legal principles. We find no error of law.

[6] The appeal is dismissed.

“J.M. Labrosse J.A.”

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”