Court of Appeal for Ontario

Citation: R v. Billo, 2008 ONCA 434

Date: 2008-06-03

Docket: C48351

Before: Moldaver, Sharpe and Blair JJ.A.

Between:

Her Majesty the Queen (Respondent)

and

Craig F. Billo (Appellant)

Counsel: David M. Paciocco for the appellant Dan Guttman for the respondent

Heard and endorsed: May 21, 2008

On appeal from conviction by Justice D. Kent Kirkland of the Ontario Court of Justice dated January 23, 2008.

APPEAL BOOK ENDORSEMENT

[1] The respondent correctly concedes that in this case, where the presumption did not apply, the onus was on the Crown to prove the absence of bolus drinking, one of the critical assumptions underlying the expert’s opinion.

[2] We agree with the appellant that on this record, the Crown failed to meet its onus. With respect to the trial judge, in coming to a different conclusion, he appears to have misunderstood the onus and in any event, failed to provide any explanation for adopting the expert’s unsupported conclusion.

[3] In so concluding, we note and agree with appellant counsel’s observation that the result might well have been different had the expert been asked appropriate questions by counsel for the Crown. As those questions were not asked, we are of the view that this is not an appropriate case to order a new trial. Accordingly, the appeal is allowed and a verdict of acquittal is substituted.