




CITATION:
R. v.
Goldblatt
, 2011 ONCA 301



DATE: 20110418



DOCKET: C52812



COURT OF APPEAL FOR ONTARIO



Rosenberg, Juriansz and LaForme JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Jay
Goldblatt



Appellant



Alan D. Gold, for the appellant



Emile A. Carrington, for the respondent



Heard:
April 7, 2011



On appeal from the judgment of Justice Jane A. Milanetti of
          the Superior Court of Justice dated September 29, 2010.



ENDORSEMENT



[1]

The appellant appeals the decision of the Summary
    Conviction Appeal Court judge that set aside the decision of the trial judge
    acquitting him on a charge of impaired driving and remitting the matter for a
    new trial.

[2]

The appellant requires leave to appeal to this court.
    He does not assert that the case raises an issue of significance to the public
    administration of justice. He submits that the Summary Conviction Appeal Court
    judge made a clear error on a question of law alone. We do not agree.

[3]

As we read the decision of the Summary Conviction
    Appeal Court judge she found that the trial judge misapprehended the evidence
    and failed to apply the proper legal principles. Citing this courts decision
    in
R. v.
Stellato
(1993), 78 C.C.C. (3d) 380, she pointed out that the trial judge did not
    recognize any degree of impairment ranging from slight to great would be
    sufficient to constitute the offence, and that the appellants fatigue did not
    foreclose the effect of alcohol on the appellants ability to drive. These
    observations were not clearly erroneous but were correct. Her finding that the
    trial judge erred by failing to address the care and control elements of the
    charge may not have been correct, however that finding did not affect the
    result that is under appeal.

[4]

Leave to appeal is refused.

M. Rosenberg J.A.

R.G. Juriansz J.A.

H.S. LaForme J.A.


