Court File and Parties

CITATION: R. v. Goldblatt, 2011 ONCA 301

DATE: 20110418

DOCKET: C52812

COURT OF APPEAL FOR ONTARIO

BEFORE: Rosenberg, Juriansz and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jay Goldblatt

Appellant

COUNSEL:

Alan D. Gold, for the appellant

Emile A. Carrington, for the respondent

HEARD: April 7, 2011

On appeal from the judgment of Justice Jane A. Milanetti of the Superior Court of Justice dated September 29, 2010.

ENDORSEMENT

[1] The appellant appeals the decision of the Summary Conviction Appeal Court judge that set aside the decision of the trial judge acquitting him on a charge of impaired driving and remitting the matter for a new trial.

[2] The appellant requires leave to appeal to this court. He does not assert that the case raises an issue of significance to the public administration of justice. He submits that the Summary Conviction Appeal Court judge made a clear error on a question of law alone. We do not agree.

[3] As we read the decision of the Summary Conviction Appeal Court judge she found that the trial judge misapprehended the evidence and failed to apply the proper legal principles. Citing this court’s decision in R. v. Stellato (1993), 78 C.C.C. (3d) 380, she pointed out that the trial judge did not recognize any degree of impairment ranging from slight to great would be sufficient to constitute the offence, and that the appellant’s fatigue did not foreclose the effect of alcohol on the appellant’s ability to drive. These observations were not clearly erroneous but were correct. Her finding that the trial judge erred by failing to address the care and control elements of the charge may not have been correct, however that finding did not affect the result that is under appeal.

[4] Leave to appeal is refused.

“M. Rosenberg J.A.”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”