Court of Appeal for Ontario

Citation: R. v. Flisar, 2007 ONCA 96

Date: 20070213

Docket: C41101

Re: HER MAJESTY THE QUEEN (Respondent) – and – LEOPOLD FLISAR (Applicant/Appellant)

Before: GOUDGE, BLAIR AND MACFARLAND JJ.A.

Counsel: Peter Lindsay for the appellant Michelle Campbell for the respondent

Heard & Endorsed: February 8, 2007

On appeal from the decision of Justice Guy P. DiTomaso of the Superior Court of Justice sitting as a Summary Conviction Appeal Court judge dated November 19, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view the Summary Conviction Appeal Court erred in concluding that the trial judge acted reasonable in denying the adjournment. The trial judge appears to have rejected the appellant’s assertion that his business was picking up without a basis for doing so. He also assumed that a further adjournment would be necessary because of the respondent, again with no basis to do so. Finally he failed to consider the importance of counsel in this case where the appellant was to give evidence and where there were Charter issues to be argued.

[2] Secondly, the Summary Conviction Appeal Court erred in concluding that the trial judge approached his ultimate task properly. All the indicators are that the trial judge considered his task as choosing between the evidence of the appellant and that of the police officer.

[3] Both errors are sufficient to require a new trial. The appeal is allowed and a new trial ordered.