NEWMARKET

COURT FILE NO.: CR-12-01281

DATE: 20140905

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: REGINA v. SIGISMONDO CALABRO

BEFORE: THE HON. MR. JUSTICE J.R. McISAAC

COUNSEL:
B. Juriansz, Counsel, for the Crown/Appellant

C. Galluzzo, Counsel, for the Respondent

HEARD: June 27, 2014

ON APPEAL FROM THE DECISION OF THE HONOURABLE

JUSTICE HOURIGAN DATED SEPTEMBER 30, 2013

ENDORSEMENT

[1] The respondent was acquitted at trial on an allegation of impaired operation of a motor vehicle. The Crown had conceded in final submissions before the Honourable Justice Hourigan that this was a weak prosecution case. Mr. Juriansz argues that the trial judge made improper use of the respondent’s roadside statement that purported to explain the erratic driving observed by the arresting officer.

[2] Assuming without deciding that the trial judge did in fact make improper use of this utterance, I agree with Mr. Galluzzo that the Crown has failed to satisfy me to the extent of the heavy onus cast that the outcome may well have been affected by this factor: see R. v. Graveline, 2006 SCC 16 at paras. 14-6. The few indicators of impairment were equivocal and the only instance of alleged marked unsteadiness was curiously not captured by the video system operating on P.C. Salvator’s cruiser. Nothing else in the two videos filed as exhibits at trial suggest impairment.

[3] For all of the reasons, the appeal is dismissed and the acquittal is affirmed.

McISAAC J.

Date: September 5, 2014