Court of Appeal for Ontario

Citation: R. v. Mandarino, 2010 ONCA 163

Date: 2010-03-04

Docket: C48432

Before: Sharpe, Lang and LaForme JJ.A.

Between:

Her Majesty The Queen

Respondent

and

Cesare Mandarino

Appellant

Counsel:

Gregory Lafontaine, for the appellant

Stacey D. Young, for the respondent

Heard & released orally: February 25, 2010

On appeal from the judgment of Justice J.A. Thorburn of the Superior Court of Justice dated February 28, 2008 dismissing a summary conviction appeal.

Endorsement

[1] The facts of this case fall squarely within R. v. Topaltsis, 2006 26570 (ON CA), [2006] O.J. No. 3181 (C.A.). The appellant submits, however, that the trial judge made no finding that the officer had objectively reasonable and probable grounds to believe that the roadside screening device was in working order and, therefore, to demand the blood sample. We disagree.

[2] In our view, the trial judge was alive to the need to establish both subjective and objective grounds. He used the phrase objective and reasonable grounds at various points in his reasons and we are satisfied that a finding that there were objectively reasonable and probable grounds is implicit in his reasons. In our view, the impugned aspect of his reasons should read as a response to the defence argument that failure to calibrate the device in accordance with established policy would be fatal to the Crown’s position.

[3] Finally, the summary conviction appeal judge clearly found a basis for reasonable and probable grounds both objectively and subjectively and in our view, she did not err in doing so.

[4] Accordingly, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“S.E. Lang J.A.”

“H.S. LaForme J.A.”