Court File and Parties

Citation: R. v. Neumajer, 2008 ONCA 104 Date: 2008-02-13 Docket: C47067

Court of Appeal for Ontario Cronk, Gillese and Armstrong JJ.A.

Between:

Her Majesty the Queen Respondent

and

Katherine Neumajer Applicant

Counsel: James C. Fleming, for the appellant Philip Perlmutter, for the respondent

Heard: February 8, 2008

On appeal from the dismissal by Justice Margaret P. Eberhard of the Superior Court of Justice on March 12, 2007 of the appellant’s appeal against the conviction entered by Justice R. McCreary of the Ontario Court of Justice on September 19, 2006.

Appeal Book Endorsement

[1] In our view, the appeal must be dismissed. The appellant argues that one of the pre-conditions to a valid demand under s. 254(2) of the Criminal Code was not met because the appellant was neither driving nor in the care and control of her vehicle at a time sufficiently proximate to the time of the demand. We disagree.

[2] The Crown’s case against the appellant was not premised on care and control. Rather, the Crown relied on the appellant’s admission that she was driving the car prior to the accident, a fact that was confirmed by an independent witness.

[3] The issue is whether the appellant drove her car within a close enough time frame to the demand to come within “past signification”. The trial judge found that she was and this finding was affirmed by the summary conviction appeal judge.

[4] On the facts of this case, there is no basis on which to interfere with this finding. We note that there is no suggestion here that the appellant’s constitutional right to counsel was denied.

[5] Accordingly, for the reasons given, the appeal is dismissed.