





CITATION:
R. v. Dhanjal, 2011 ONCA 666



DATE: 20111024



DOCKET: C53344



COURT OF APPEAL FOR ONTARIO



Moldaver, Armstrong and Cronk JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Kuldip Dhanjal



Appellant



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
    appellants 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 judges 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.


