Court of Appeal for Ontario

Citation: R. v. Fleming, 2007 ONCA 755

Date: 2007-11-06

Docket: C41855

Before: Simmons and MacFarland JJ.A. and Watt J. (ad hoc)

Between:

Her Majesty the Queen Respondent

And

Frank Joseph Fleming Applicant/Appellant

Counsel: Robert Sheppard for the applicant/appellant Colleen Hepburn for the respondent

Heard and endorsed orally: October 30, 2007

On appeal from the order of Justice Helen A. Rady of the Summary Conviction Appeal Court of the Superior Court of Justice dated April 23, 2004.

APPEAL BOOK ENDORSEMENT

[1] The appellant was convicted of having care and control of a motor vehicle while having a blood alcohol level in excess of the legal limit. His appeal to the summary conviction appeal court was dismissed. He seeks leave to appeal from the dismissal.

[2] In our view, fairly read, the trial judge's reasons reflect a finding that the presumption under s. 258(1)(a) of the Criminal Code applied and had not been rebutted. Although the trial judge accepted the appellant's evidence that he had no intention of driving when he initially got into his car and subsequently passed out, she also noted that, when police arrived on the scene, the appellant was seated in the driver's seat, the keys were in the ignition, and the lights and radio were on. The trial judge also referred to the appellant's testimony that he would have driven if he had woken up after several hours of sleep. Fairly read, the trial judge made a finding that the appellant's intention had changed.

[3] The summary conviction appeal judge concluded that the trial judge found the presumption was engaged and had not been rebutted. We see no error in this conclusion

[4] While leave to appeal is granted, the appeal is dismissed.