Court of Appeal for Ontario

Citation: R. v. Dhanjal, 2011 ONCA 666

Date: 2011-10-24

Docket: C53344

Between:

Her Majesty the Queen

Respondent

and

Kuldip Dhanjal

Appellant

Before: Moldaver, Armstrong and Cronk JJ.A.

Counsel:

Jill Copeland, duty counsel, for the appellant

John Patton, for the respondent

Heard and released orally: September 20, 2011

On appeal from the decision of the summary conviction appeal court dated May 31, 2011 by Justice Gisele M. Miller of the Superior Court of Justice, dismissing the appeal from the conviction and sentence entered on July 5, 2010 by Justice Richard H.K. Schwarzl of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant seeks leave to appeal the order of Justice Miller of the Superior Court of Justice in which she dismissed the summary conviction appeal from conviction and sentence in respect of charges for impaired driving and failing to remain at the scene of an accident. He was fined $1,250 on the impaired driving charge and $1,750 on the fail to remain charge.

[2] The appellant, who is not represented by counsel, submits in his factum that in effect, the summary conviction appeal judge erred in failing to conclude that the verdicts in respect of both charges were unreasonable. He also submits that the trial judge failed to properly apply the criminal burden of proof and that he misapprehended the evidence in respect of the impaired driving charge. Finally, he submits that the penalties by way of fines are excessive.

[3] In addition, duty counsel, Ms. Copeland, made oral submissions in respect of the application for leave to appeal the convictions. She submitted that the trial judge erred in law in relying on speculation as to the amount of alcohol the appellant had to drink prior to his car accident.

[4] We are not satisfied that this is a proper case for leave to appeal the convictions or the sentences. The appellant is asking this court to re-try this case which we are not permitted to do.

[5] The trial judge gave detailed and thoughtful reasons for his decisions in this case although he did make one mistake in respect of the time period that the appellant was at the bar. Contrary to the submission of duty counsel, there was evidence from which the trial judge could conclude that the appellant’s alcohol consumption and its effects were greater than claimed by the appellant. In particular, we note that the appellant stopped to make a left hand turn for a prolonged period and then executed his turn in front of an oncoming car without activating his left turn signal. His car collided with that car. After the accident, the appellant stopped for only a few seconds, claiming that he did not see the other car or its driver although he had collided with it and it was parked nearby.

[6] Finally, it was a cold November evening and he parked his car after the accident with the windows open, an indication that he likely intended to air it out from the smell of alcohol in the car. We add that the evidence of the appellant and his statements to the police gave further support to the conclusion that the appellant consumed more alcohol before the accident than he admitted.

[7] The summary conviction appeal judge gave careful and thoughtful reasons and saw no basis upon which to interfere with the trial judge’s findings. We agree with the summary conviction appeal judge. We are not persuaded that either the trial judge or the summary conviction appeal judge made any error of law that would provide a basis for granting leave to appeal. The fines imposed for these sentences were reasonable and there is similarly no basis to grant leave to appeal sentence.

[8] In the result, the application for leave to appeal conviction and sentence is dismissed.

“M.J. Moldaver J.A.”

“E.A. Cronk J.A.”

“R.P. Armstrong J.A.”