



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 appellants 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 appellants 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.


