COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marchildon, 2013 ONCA 648

DATE: 20131029

DOCKET: C48929

Goudge, Cronk and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Marchildon

Appellant

Anthony Moustacalis, for the appellant

Roger Shallow, for the respondent

Heard: October 28, 2013

On appeal from the conviction entered on December 3, 2007 and the sentence imposed on May 15, 2008 by Justice John C. Murray of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] The appellant raises two issues in this court. First, he says the omission in the ITO of the phrase "he is not a drinker" and the failure to say in the ITO that no one spoken to by the officer at that point smelled alcohol on his breath make the ITO misleading. We do not agree. We see nothing meaningful in the omitted phrase given the full statement taken from the appellant's sister. Nor do we see any meaningful difference between an ITO that is silent on whether anyone smelled alcohol and one that said there was no evidence of anyone smelling alcohol on the appellant's breath.

[2] Second, he argues that the officer saying at the preliminary inquiry that he had a suspicion rendered the ITO misleading when it said that the officer had reasonable and probable grounds. Again we disagree. The explanation the officer offered at trial was more than sufficient to completely negate any suggestion that he was attempting to mislead in the ITO. The information in the ITO was precisely the same as that relied on by the officer at trial.

[3] The appeal must be dismissed.