Court File and Parties

Citation: R. v. Moreno-Baches, 2007 ONCA 258 Date: 20070411 Docket: C44675 Court of Appeal for Ontario Moldaver, Gillese and LaForme JJ.A.

Between:

Her Majesty the Queen Appellant

And

Rony Moreno-Baches Respondent

Counsel: Tracy Stapleton, for the appellant Brian Snell, for the respondent

Heard and Released Orally: March 29, 2007

On appeal from the order of Justice Anne Molloy of the Superior Court of Justice, sitting as a summary appeal court judge, dated November 22, 2005, overturning the respondent's conviction by Justice W.S. Gonet of the Ontario Court of Justice, dated December 11, 2003, and entering in its place a verdict of acquittal.

Endorsement

[1] The Crown seeks leave to appeal and if leave is granted, appeals from the order of Justice Molloy overturning the respondent’s conviction on a charge of care and control while impaired by alcohol and substituting for it a verdict of acquittal.

[2] In her reasons for judgment, the summary conviction appeal court judge spent a considerable amount of time reviewing the legal test to be applied in determining whether an accused's ability to drive while impaired by alcohol has been proved. We do not propose to delve into her analysis. Suffice it to say that this court’s decision in R. v. Stellato (1993), 1993 3375 (ON CA), 78 C.C.C. (3d) 380; aff’d (1994), 1994 94 (SCC), 90 C.C.C. (3d) 160 (S.C.C.), remains the law in Ontario. That is to say, if there is sufficient evidence before the court to prove that an accused person’s ability to drive is even slightly impaired by alcohol, the judge must find the accused guilty.

[3] In concluding that the verdict in this case was unreasonable (in the sense that it could not be supported by the evidence), we are respectfully of the view that the summary conviction appeal judge overstepped the bounds of her appellate jurisdiction and effectively retried the case. The issue to be decided was not whether, in her view, the evidence at trial led exclusively to the conclusion that the respondent’s ability to drive was impaired by alcohol but whether it was open to the trial judge to come to that conclusion on the whole of the evidence. In that regard, we are all of the view that there was ample evidence supporting the trial judge's finding.

[4] That said, we agree with the summary conviction appeal judge that in finding the respondent guilty, the trial judge erred in failing to even mention, let alone attempt to reconcile, the evidence relied upon by the respondent in support of his position that his ability to drive was not impaired by alcohol. Also, as she noted, the trial judge improperly took into account an inculpatory statement made by the respondent. Those errors, in our view, were sufficiently serious to warrant a new trial.

[5] We reject the respondent’s submission that leave should be denied due to delay on the part of the Crown in perfecting this appeal. The legal issue is of sufficient public importance to warrant leave and we have no evidence of any prejudice to the respondent.

[6] Accordingly, leave to appeal is granted, the appeal is allowed and a new trial is ordered.

Signature: "M.J. Moldaver J.A." "E.E. Gillese J.A." "H.S. LaForme J.A."