Court File and Parties

CITATION: R. v. Graham, 2009 ONCA 282

DATE: 20090402

DOCKET: C48860

COURT OF APPEAL FOR ONTARIO

Moldaver, Blair and MacFarland JJ.A.

BETWEEN:

Her Majesty the Queen Appellant

and

Scott Jeffrey Graham Respondent

Counsel: Matthew Asma for the appellant Kim Schofield for the respondent

Heard: April 2, 2009

On appeal from the judgment of Justice Martha Zivolak of the Ontario Court of Justice dated May 5, 2008.

APPEAL BOOK ENDORSEMENT

[1] The trial judge found that the respondent was driving his vehicle while impaired, but was not satisfied beyond a reasonable doubt that the impaired driving caused the bodily injury sustained by the complainant as a result of the accident. The Crown argues the trial judge erred in founding her reasonable doubt on speculation. We disagree. Given her rejection of the complainant’s evidence, the trial judge was unable to determine how the accident occurred and on the whole of the evidence had a reasonable doubt. It was open to her on the record to come that that conclusion.

[2] Nor do we accept that the trial judge’s interpretation of the respondent’s statements to the police as the ramblings of an intoxicated person was pure speculation. The statements could have been taken as inculpatory, but they also contained exculpatory elements (e.g. “I didn’t know I hit her”). Again, having seen and heard the accused testify, and having considered all of the evidence, the trial judge was entitled to act on her view of the statements in concluding there was a reasonable doubt as to whether the respondent knew he had been in an accident.

[3] The appeal is therefore dismissed.