CITATION: R. v. Smeda, 2007 ONCA 603
DATE: 20070906
DOCKET: C47233
COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O., MACPHERSON and CRONK JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
WIESLAW SMEDA
Appellant
Mitchell Worsoff and A. Little, for the appellant
Roger A. Pinnock, for the respondent
Heard: September 4, 2007
On appeal from the ruling of Justice M.H. Tulloch of the Superior Court of Justice dated May 24, 2007.
APPEAL BOOK ENDORSEMENT
[1] The trial judge misapprehended the evidence with respect to the level of the appellant’s impairment at the time the police approached the car. The trial judge found that there was little or no evidence of impairment. However, the appellant’s breathalyzer readings were .172 and .173 and the appellant admitted in evidence that he was drunk at the time.
[2] The appellant’s condition at the time he was sitting behind the wheel with the keys in the ignition was an important factor in assessing whether the appellant’s disposition and attitude presented a risk that he would drive the car.
[3] In our view, the trial judge’s error is sufficiently serious to require a new trial. Accordingly, we agree with the disposition of the Summary Conviction Appeal Judge. The appeal is, therefore, dismissed.