CITATION: R. v. Coyle, 2007 ONCA 728

DATE: 20071022

DOCKET: C44549

COURT OF APPEAL FOR ONTARIO

DOHERTY, BLAIR JJ.A. and THEN J. (ad hoc)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

RYAN COYLE

Applicant/Appellant

Counsel: Lance Beechener for the appellant James V. Palangio for the respondent

Heard: October 19, 2007

On appeal from the conviction entered by Justice A. O’Driscoll of the Superior Court of Justice dated November 4, 2005 and the sentence imposed on November 15, 2005.

APPEAL BOOK ENDORSEMENT

[1] We agree with the appellant that the summary conviction appeal court judge effectively retried the case. We also agree with the Crown, however, that the trial judge erred in law in concluding that the officer’s knowledge of the working of the alert device was somehow relevant to whether the Crown had proved that the appellant had intentionally refused to provide for a suitable sample. A finding of fact based on an irrelevant consideration is an error in law.

[2] An acquittal tainted by an error in law will be set aside if the error is material to the result. The error is material and we would, therefore, uphold the decision quashing the acquittal.

[3] We are satisfied, however, that a new trial is the appropriate order. An appellate court can enter a conviction upon quashing an acquittal only where all of the findings of fact necessary to a conviction have been made at trial: see R. v. Cassidy, 1989 25 (SCC), [1989] 2 S.C.R. 345. The necessary findings were not made at trial. Important issues of credibility were not decided by the trial judge.

[4] We would allow the appeal, set aside the order of the summary conviction appeal court judge entering a conviction and direct a new trial on the original charge.