CITATION: R. v. Campbell, 2010 ONCA 344
DATE: 20100511
DOCKET: C48313
COURT OF APPEAL FOR ONTARIO
Feldman, Simmons and Epstein JJ.A.
BETWEEN:
Her Majesty The Queen
Appellant
and
Dean St. Aubyn Campbell
Respondent
James V. Palangio, for the appellant
Paul Calarco, for the respondent
Heard: April 14, 2010
On appeal from the order of Justice Harriet Sachs of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated January 9, 2008, upholding the respondent’s acquittal by Justice George Stephen Gage of the Ontario Court of Justice, dated June 19, 2006.
ENDORSEMENT
[1] The Crown seeks leave to appeal from the decision of the summary conviction appeal judge, dismissing an appeal from the Ontario Court of Justice that acquitted the respondent of the offence of refuse to provide a breath sample without reasonable excuse, contrary to s. 254(5) of the Criminal Code.
[2] The trial judge’s central finding was that he accepted the respondent’s evidence concerning why he ran from the police. That finding was upheld on appeal to the summary conviction appeal court.
[3] On appeal to this court, the Crown acknowledges that the trial judge’s factual finding can support an acquittal. However, the Crown asks that we correct what it says is a legal error in the reasoning that gave rise to the acquittal.
[4] In our view, there are three reasons why this is not a case where leave to appeal should be granted. The first is that the Crown is not appealing the result but the reasons. The second is that we reject the Crown’s suggestion that failure to resolve the legal issue will create problems in other cases. The primary issue driving the result in this case is factual. In these circumstances, the legal question raised by the Crown is better determined if and when it arises in a case where it will make a difference. Finally, there has been extensive delay on the part of the appellant in perfecting this appeal. The respondent was acquitted in 2006 and his acquittal was confirmed in 2008.
[5] For these reasons, this is not one of the rare cases where a second level of appeal is warranted. Leave to appeal is denied.
Signed: “Janet Simmons J.A.”
“K. Feldman J.A.”
“Gloria Epstein J.A.”