





CITATION:
R. v. Labadie, 2011
          ONCA 227



DATE: 20110324



DOCKET: C51318



COURT OF APPEAL FOR ONTARIO



Blair, MacFarland and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Applicant/Appellant



and



Matthew Labadie



Respondent



David Friesen, for the applicant/appellant



Frank Miller, for the respondent



Heard:  September 3, 2010



On appeal from the decision of the Justice Edward W. Ducharme
          of the Superior Court of Justice, sitting as a summary conviction appeal
          court, on October 26, 2009.



Watt J.A.:



[1]

This is a tale of two mistakes. And of our attempt to
    determine whether we can correct them.

[2]

The first mistake happened at trial.  It began when the trial judge misapprehended
    the testimony of a witness, about evidence that established a condition
    precedent to the admissibility of other evidence crucial to the prosecutions
    case.  That misapprehension resulted in a
    dismissal of the charge contained in the information.

[3]

The second mistake occurred in the disposition the
    summary conviction appeal judge made of the Attorney Generals appeal from
    acquittal to the Superior Court of Justice.  Instead of entering a conviction or ordering a new trial, the summary
    conviction appeal judge remitted the case to the trial judge to reconsider his
    verdict based on a correct understanding of the misapprehended evidence.

[4]

The Attorney General seeks leave to appeal to this
    court and invites us to make the order he submits the summary conviction appeal
    judge should have made: to enter a conviction and either impose sentence or
    remit the case to the trial judge to do so.

[5]

For reasons that I will develop, I would grant leave to
    appeal, allow the appeal, set aside the order of the summary conviction appeal
    judge remitting the matter to the trial judge and enter a conviction.  I would remit the case to the trial judge to
    impose a fit sentence.

THE BACKGROUND FACTS

[6]

The
    circumstances surrounding the offence charged exert little influence on the
    issues joined by the parties on appeal.  A
    brief recapture of some features of the procedural history of the case will be
    adequate for our purposes.

The
    Charge

[7]

In
    the early morning of April 15, 2007, a police officer stopped the vehicle
    Matthew Labadie (the respondent) was driving.  Because of the manner in which the respondent was driving, and his condition
    when the officer approached him, the officer made a proper Approved Screening Device
    demand.  The respondent blew into the
    device: it registered a fail reading.

[8]

The
    officer transported the respondent to the local detachment.  After
Charter
advice and an unsuccessful attempt to speak with counsel of choice, the
    respondent spoke to duty counsel before providing two breath samples in
    response to a proper demand.  Both
    readings exceeded 80 mgs of alcohol in 100 mls of blood.

[9]

The
    respondent was charged with operating a motor vehicle with a blood-alcohol
    concentration in excess of 80 mgs of alcohol in 100 mls of blood.  The prosecutor chose to proceed by summary
    conviction.

The Trial Proceedings

[10]

The
    prosecutor adduced evidence from the arresting officer and the qualified
    technician who administered the Intoxilyzer test to the respondent. The
    respondent sought exclusion of some of the evidence on the ground of
    constitutional infringement, but the trial judge dismissed the application.

Proof of Blood-Alcohol Concentration

[11]

To
    prove the respondents blood-alcohol concentration at the time of his
    apprehension and driving, the prosecutor relied upon the presumption of
    identity in s.

258(1)(c)
    of the
Criminal Code
.

[12]

The
    respondent challenged the applicability of the presumption.  Trial counsel for the respondent submitted
    that the evidence of the qualified technician, Prov. Cst. Keller, failed to
    satisfy the condition precedent of s. 258(1)(c)(iii), because it did not
    demonstrate that the sample was provided
directly
into an approved instrument.  Thus,
    counsel said, it was not a proper sample of the respondents breath.

[13]

Trial
    counsel for the respondent was mistaken about the evidence of the qualified
    technician.  Prov. Cst. Keller testified:

and
    then he provided a proper sample,
directly
into the mouth piece which goes in,
directly
into the external breath tube of the instrument.

[14]

She
    was not cross-examined on this aspect of her testimony.

The Dismissal of the Charges

[15]

The
    trial judge held that the prosecutor had failed to establish beyond a
    reasonable doubt that the breath samples provided by the respondent had been
    received directly into an approved instrument, as required by s.
    258(1)(c)(iii) of the
Criminal Code
.
    This evidentiary shortfall deprived the prosecutor of the presumption of identity
    in s.  258(1)(c).  In the
    absence of evidence of the blood-alcohol concentration of the respondent when he
    was apprehended and operating his motor vehicle, the trial judge dismissed the
    charge on the basis of this very small technicality.

The Notice of Summary Conviction Appeal

[16]

The
    Attorney General appealed the respondents acquittal to the Superior Court of
    Justice. The right of appeal invoked was s. 813(b)(i) of the
Criminal Code
, which permits the
    Attorney General to appeal from an order that dismisses an information. The
    single ground of appeal advanced was phrased in these terms:

1.
That
    the learned trial Judge, miscomprehended [
sic
]
    the evidence of Cst. Sherri Keller in respect to the legal requirement of the
    type of breath sample that was provided.

[17]

The
    remedy sought on the summary conviction appeal was an order allowing the
    appeal, setting aside the dismissal of the information, and entering a
    conviction of the offence charged.

The Positions of the Parties on the Summary
    Conviction Appeal

[18]

The
    factum of the Attorney General as the appellant in the summary conviction
    appeal court recited the issues and the order requested.  However, it did not include submissions about
    the scope of the appeal courts jurisdiction or the courts authority to enter
    a conviction on an appeal from acquittal on grounds involving questions of
    fact.

[19]

The
    respondent did not dispute the right of the Attorney General to appeal under s.

813(b)(i) on grounds involving
    questions of fact.  But, according to the
    respondent, to succeed on factual grounds, the Attorney General had to
    establish that the verdict rendered at trial was unreasonable.  The only remedy available where an acquittal
    is unreasonable is a new trial.  The
    summary conviction appeal court may only enter a conviction where the error
    made at first instance is an error that involves a question of law alone.

The Decision of the Summary Conviction Appeal Judge

[20]

The
    summary conviction appeal judge found that the trial judge had misapprehended
    the evidence of the qualified technician.  Contrary to the trial judges finding, there was evidence that the
    respondent provided a proper breath sample
directly
into the approved instrument. The summary conviction appeal judge concluded:

The
    trial judges finding to the contrary, his finding that Constable Keller had
    not used the word directly, is plainly wrong, and constituted a palpable
    error in his assessment of the facts. To the extent that the trial judges
    verdict rests upon this erroneous finding, it is unreasonable, and cannot be
    permitted to stand.

[21]

The
    summary conviction appeal judge later turned to the issue of remedy.  He expressed his conclusion on this issue in
    these terms:

In
    the result, therefore, the Crowns appeal is allowed.  The decision of the trial judge acquitting
    Mr. Labadie is set aside. The case is remitted to the trial judge to reconsider
    his verdict in light of my finding that he inaccurately referred to the
    testimony of Constable Keller.

THE GROUND OF APPEAL

[22]

The
    Attorney General applies for leave to appeal from the decision of the summary
    conviction appeal judge.  The ground of
    appeal on which leave to appeal is sought alleges that the summary conviction
    appeal judge erred in law by remitting the case back to the trial judge to
    reconsider his verdict.

ANALYSIS

[23]

This
    application for leave to appeal and appeal are governed by s. 839(1)(a) of the
Criminal Code
.  As a necessary first step, we must determine
    whether this is a case in which leave to appeal can and should be granted.

The Threshold Issue: Leave to Appeal

The Governing
    Principles

[24]

Appeals
    to this court in summary conviction proceedings are not as of right or
    unrestricted in the nature of grounds that may be advanced.  Section 839(1) controls.  Where the first summary conviction appeal was
    taken under s. 813 and decided under s. 822, s. 839(1)(a) governs.  Leave to appeal must be granted.  The ground of appeal must involve a question
    of law alone.

[25]

Despite
    the standardless sweep that the language of s. 839 displays, the resident
    discretion is not unbounded.  In the end,
    the discretion must be exercised in the interests of justice.  Yet, no single word formula can embrace every
    case in which the interests of justice warrant leave to appeal.

[26]

Two
    factors occupy a prominent position in decisions about leave to appeal.  The first is the significance, beyond the
    specific case, of the proposed question of law to the administration of justice
    in the province.  And the second, is the
    strength of the proposed appeal:
R. v. R.
    (R.)
(2008), 90 O.R. (3d) 641 (C.A.), at para. 30.  Leave to appeal is granted sparingly:
R. (R.)
at para. 37.

[27]

Where
    the issues raised in the proposed appeal have a significance that extends
    beyond the peculiar circumstances of the case in which they arise, we may grant
    leave to appeal even if the merits of the appeal are not strong.  On the other hand, where the merits of the
    appeal appear very strong, we may grant leave to appeal despite the lack of any
    general significance or transcendant importance:
R. (R.)
at para. 37.

The Principles Applied

[28]

This
    is a case in which leave to appeal should be granted.  Both factors favour it.

[29]

The
    issue raised relates to the appellate jurisdiction of the summary conviction
    appeal court in appeals taken by the Attorney General under s. 813 from
    dismissals of informations at trial in summary conviction proceedings. This
    issue transcends the peculiar facts of this case and is of significance to the
    general administration of criminal justice. The ground involves a consideration
    of the scope of appellate jurisdiction, more specifically, the effect of the
    referential incorporation by s. 822(1) of ss. 683-689 of Part XX1 of the
Criminal Code
as the dispositive
    authority of summary conviction appeal courts on appeals under s. 813.

[30]

And
    second, as the respondent acknowledges, the proposed ground of appeal has
    merit.

The
    Availability of the Remedy Granted

[31]

The
    summary conviction appeal judge allowed the appeal of the Attorney General, set
    aside the order dismissing the charge contained in the information and remitted
    the case to the trial judge to reconsider his verdict in light of his
    misapprehension of the evidence.

[32]

To
    determine whether the remedy the Attorney General seeks here, entry of a
    conviction, should be granted, it is necessary first to determine whether the
    order made by the summary conviction appeal judge was a remedy he had the
    authority to grant.

The Positions of the Parties on Appeal

[33]

The
    parties share common ground that the order made by the summary conviction appeal
    judge, remitting the case to the trial judge, was made without
    jurisdiction.  They submit that on
    appeals taken under s. 830, s. 834(1)(b) expressly authorizes the appeal court
    to remit the case to the trial court.   But on appeals under s. 813, of which this was one, neither s. 822(1),
    nor the provisions of Part XXI that it incorporates by reference, make this
    remedy available.

The Governing Principles

[34]

In
    appeals taken under s. 813(b)(i) from an order dismissing an information in
    summary conviction proceedings, the dispositive authority of the appeal court
    resides in s. 822(1) of the
Criminal Code
.  Rather than expressly conferring dispositive
    authority on the appeal court, as s. 834 does for appeals taken under s. 830,
    s. 822(1) incorporates some, but not all, of the provisions of Part XXI that
    govern disposition of indictable appeals to the court of appeal. None of the
    incorporated provisions of Part XXI, in express terms or by necessary
    implication, permit the summary conviction appeal court, on an appeal under s.
    813, to remit the case to the trial court along with the opinion of the appeal
    court.

[35]

The
    authorities confirm the absence of any jurisdiction in appeal courts to remit a
    case to the trial court, together with the opinion of the appeal court, in
    appeals taken under s. 813 and decided under s. 822(1):
R. v. Wilson
(1993), 86 C.C.C. (3d) 145 (B.C. C.A.), at pp.
    162-163;
R. v. Wilcox
(2001), 192 N.S.R.
    (2d) 159 (C.A.), at para. 128; and
R. v.
    Kelly
(2002), 243 N.S.R. (2d) 201 (C.A.), at para. 10.

The Principles Applied

[36]

The
    parties have it right.  In appeals under
    s. 813(b) of the
Criminal Code
, the
    summary conviction appeal court has no authority under s. 822(1), for that
    matter or otherwise, to remit the case to the trial court for further consideration
    together with the opinion of the appeal court.  Section 822(1) contains no express provision
    that authorizes this remedy.  Likewise,
    the incorporated sections of Part XXI include no such authority.

[37]

The
    order remitting the case to the trial judge was made without jurisdiction and
    must be quashed. The more difficult question is what remedy should have been
    granted. That inquiry leads to another that requires examination of the nature
    of the error that must be established in appeals by the Attorney General from a
    dismissal of information in summary conviction proceedings.

The Nature of the Error
    and the Available Remedies

[38]

To
    situate the discussion that follows in its proper context, it is helpful to
    recall the ground upon which the appeal of the Attorney General was based and
    the nature of the errors found by the summary conviction appeal judge.

The Reasons of the Summary Conviction Appeal Judge

[39]

The
    notice of appeal filed by the Attorney General alleged a single ground of
    appeal: that the trial judge miscomprehended [
sic
] the evidence of Cst. Sherri Keller in respect of the legal
    requirement of the type of breath sample that was provided.  The agent of the Attorney General did not
    characterize the error as one of fact, law, or mixed fact and law.

[40]

The
    summary conviction appeal judge identified the error of the trial judge as
    finding that Prov. Cst. Keller had
not
said that she had received the respondents breath sample
directly
into an approved instrument.  In fact, the officer had given the evidence,
    which is a necessary condition precedent to the admissibility of the
    certificate and reliance on the presumption of identity.

[41]

The
    summary conviction appeal judge characterized the trial judges finding as
    plainly wrong and a palpable error in his assessment of the facts.  In the result, the summary conviction appeal
    judge concluded, that the verdict was unreasonable and could not stand.

The Positions of the Parties on Appeal

[42]

For
    the appellant, Mr. Friesen submits that the summary conviction appeal judge
    erred in the remedy he ordered, but not otherwise.  The trial judges misapprehension of evidence
    led him to a finding that the conditions precedent to the operation of the
    presumption of identity had not been satisfied.  In the result, the trial judge had no evidence of the blood-alcohol
    concentration of the respondent at the time he was operating the motor
    vehicle.  But for this error, Mr. Friesen
    continues, the trial judge would have convicted the respondent.

[43]

Mr.
    Friesen says that the summary conviction appeal judge had two remedies that he
    could have granted once having found the error made by the trial judge: order a
    new trial, or enter a conviction.  In the
    circumstances, Mr. Friesen urges, the only appropriate remedy was to enter a
    conviction. But for the error, the prohibited blood-alcohol concentration would
    have been proven by the operation of the presumption of identity.  With the error corrected, a conviction should
    be entered here and the case remitted to the trial judge for sentencing.

[44]

For
    the respondent, Mr. Miller is contrary-minded.  He acknowledges that the Attorney General has a right of appeal under s.
    813(b)(i) on grounds that involve questions of fact or of mixed fact and law.  However, to succeed on grounds involving
    questions of fact, Mr. Miller submits, the Attorney General must demonstrate
    that the verdict was unreasonable or was unsupported by the evidence.  But, absent a shift in the onus of proof, an
    acquittal cannot be unreasonable or unsupported by the evidence because of the
    enduring effect of the presumption of innocence.

[45]

Mr.
    Miller further submits that even if a summary conviction appeal court can quash
    an acquittal as a result of a factual error, whether an error in making a
    finding of fact or in failing to make a finding of fact, it cannot enter a
    conviction.  A conviction can only be
    entered where
all
the required
    findings have been made and, by definition, they are absent in such cases.

[46]

As
    a final alternative, Mr. Miller says that even if an appeal court has the authority
    to enter a conviction on an appeal based on an issue of fact, the authority is
    discretionary and should only be exercised in the clearest of cases of which
    this is not one.  He submits that the
    appeal should be dismissed.

The Governing Principles

[47]

Determination
    of this appeal engages consideration of several related issues.  The first has to do with the scope of the
    right of the Attorney General under s. 813(b)(i) of the
Criminal Code
to appeal a dismissal of an information on grounds
    involving or limited to questions of fact. The second, relates to the remedies
    available to the summary conviction appeal court, and this court, on appeals by
    the Attorney General under s. 813(b)(i).  The third is concerned with the availability in the circumstances of the
    precise remedy sought  entry of a conviction.

Appeals
    by the Attorney General under s. 813(b)(i)

[48]

Section
    813(b)(i) gives the Attorney General a right of appeal to the appeal court
    from an order dismissing an information in summary conviction proceedings.

[49]

Unlike
    other provisions conferring appellate rights, in both indictable and summary
    conviction proceedings, s. 813(b)(i) neither
specifies
the grounds upon which the appeal may be taken, nor
limits
those grounds.  Compare, for example, ss. 675(1)(a),
    676(1)(a) and 830(1) of the
Criminal Code
.  In other words, s. 813(b)(i) does not, by its
    terms, restrict the grounds upon which appeals may be taken under its auspices,
    or distinguish among them, as for example by requiring that leave to appeal be
    granted for some grounds, but not others.

[50]

The
    unqualified language that appears in s. 813(b)(i) compels the conclusion that
    an appeal by the Attorney General from dismissal of an information in summary
    conviction proceedings may be based on grounds of fact, mixed fact and law or
    law alone.  The authorities confirm that
    the Attorney General has a right of appeal under s. 813(b)(i) on grounds
    involving questions of fact alone:
R. v.
    Century 21 Ramos Realty Inc. and Ramos
(1987), 58 O.R. (2d) 737 (C.A.), at
    p. 768-769;
R. v. Multitech Warehouse (Manitoba)
    Direct Inc.
(1995), 102 Man. R. (2d) 141 (C.A.), at p. 149;
R. v. Gilles and Ash
(1990), 81 Nfld.
    & P.E.I.  R.1 (Nfld. C.A.), at para.
    51; and
R. v. Medicine Hat Greenhouses
    Ltd.

and German
(1981), 26 A.R. 617
    (C.A.), at para. 30.

[51]

No
    controversy exists about the right of the Attorney General to appeal under
    s. 813(b)(i) on grounds that involve a question of law alone, or on
    grounds that involve questions of mixed law and fact.  No closed list exists of what constitutes a
    question of law alone, but it is reasonable to conclude that questions of law
    alone take in, but are not confined to, issues involving the admissibility of
    evidence.

Appellate
    Authority under s. 822(1)

[52]

Rights
    of appeal are inextricably linked to appellate remedies.  See, for example, ss. 686(1)(a) and 686(1)(b)(iii)
    of the
Criminal Code
.  Sometimes, however, gaps exist and no
    specific remedies are provided.  For
    example, s. 686 contains no remedies for successful appeals by the Attorney
    General under either s. 676(1)(b) or s. 676(1)(c) of the
Criminal Code
.

[53]

Section
    822(1) defines the authority of the summary conviction appeal court on appeals
    under s. 813.  The mechanism used for
    this purpose in s. 822(1) is an incorporation by reference of the powers of the
    court of appeal on indictable appeals.  The incorporated provisions include s. 686, except s. 686(5).

[54]

The
    only remedial provision in s. 686 directly applicable to appeals from acquittal
    is s. 686(4).  Where the appeal from
    acquittal is successful, s. 686(4) authorizes the court of appeal to make
    either of two consequential orders: a new trial or, in some instances, entry of
    a conviction.

[55]

Inclusion
    of the qualifier, but for the error in law, in s. 686(4)(b)(ii) serves as a
    reminder that appeals by the Attorney General from acquittals in indictable
    proceedings are limited by s. 676(1)(a) to any ground of appeal that involves
    a question of law alone.

[56]

The
    referential incorporation of s. 686(4) by s. 822(1) yields less than a perfect
    match.  To be more specific, the
    qualifier, but for the error in law, in s. 686(4) seems markedly unsuited to
    the disposition of appeals that are not restricted to questions of law alone.

[57]

The
    referential incorporation of s. 686(4) by s. 822(1) is subject to the ubiquitous
    and inscrutable qualifier with such modifications as the circumstances
    require that tags along at the end of the subsection.  The current qualifier replaces the former
    favourite, 
mutatis mutandis
.

[58]

In
R. v. Antonelli
(1977), 38 C.C.C. (2d)
    206, the British Columbia Court of Appeal considered the meaning to be
    attributed to the [then] qualifier 
mutatis
    mutandis
 in the predecessor to s. 822(1).  There, as here, the summary conviction appeal had been argued on a
    ground of fact.  The summary conviction
    appeal judge entered a conviction.  On
    further appeal to the British Columbia Court of Appeal, the appellant argued
    that the referential incorporation of s. 613(4), which is now s. 686(4),
    limited the Attorney Generals right of appeal in summary conviction
    proceedings under what is now s. 813(b)(i) to questions of law alone.  The British Columbia Court of Appeal
    disagreed.  Farris C.J.B.C. concluded at
    pp. 211-212:

The
    incorporating section, s. 755(1) [now s. 822(1)], qualifies its absolute
    incorporation with the words
mutatis
    mutandis
.  They mean, of course,
    with the necessary changes in points of detail (see Jowitts Dictionary of
    English Law, 2
nd
, ed. (1977)).  It seems to me that a necessary change which must be made in s-s. (4)
    when it is applied to summary conviction appeals is the striking out of the
    words but for the error in law.  Those
    words are a necessary part of the section as it applies to appeals in
    proceedings by way of indictment because of the application of s. 605(1)(a)
    restricting the Crown to appeals on questions of law alone.  However, as has already been pointed out, s.
    605(1)(a) does not apply to appeals in summary conviction matters and the words
    but for the error in law are thus irrelevant in that context.

[59]

In
Ramos
, Martin J.A. was inclined to
    agree with the reasoning of the British Columbia Court of Appeal in
R. v. Antonelli
, but found it
    unnecessary to express a final opinion on the issue since the trial court in
Ramos
had also made errors of law:
Ramos
at p. 771.

[60]

Some
    courts of appeal, which have acknowledged the Attorney Generals right of
    appeal under s. 813(b)(i) on grounds involving questions of fact, have held
    that to succeed on appeal the Attorney General must demonstrate that the
    acquittal was unreasonable:
R. v. Gross
(2001), 160 Man. R. (2d) 111
    (C.A.) at para. 16;
Multitech
at p.
    149;
R. v. Hewlin
(1999), 174 N.S.R.
    (2d) 93 (C.A.), at paras. 14-16.  It may
    be open to doubt, however, whether an acquittal based on a reasonable doubt can
    be unreasonable:
Hewlin
at para. 15;
R. v. Schuldt
, [1985] 2 S.C.R. 592, at
    p. 610;
R. v. Biniaris
, [2000] 1
    S.C.R. 381, at paras. 32-33.

Entry
    of Convictions on Appeals from Acquittal

[61]

Section
    686(4)(b)(ii) authorizes a court of appeal in indictable appeals, thus a
    summary conviction  appeal court, to
    enter a verdict of guilty on an appeal from acquittal.  The court is entitled to enter a finding of
    guilty of the offence of which the court concludes the respondent should have
    been found guilty, but for the error of law committed by the trial judge.  The sub-paragraph requires that there be a
    nexus between the error of law and the verdict of acquittal.  There must be a reasonable degree of
    certainty that the verdict would have been different without the error, and
    that the verdict would have been a finding of guilt:
R. v.
    Audet
, [1996] 2 S.C.R. 171, at para. 32.  Apart from the error, all the findings of fact necessary to support a
    finding of guilt must have been made, explicitly or by necessary implication,
    or not be in dispute:
R. v. Cassidy
,
    [1989] 2 S.C.R. 345, at pp. 354-355;
Audet
at para. 31.

The Principles Applied

[62]

The
    application of the governing principles to the error made by the trial judge
    satisfies me that this is a case in which the appeal should be allowed, the
    order remitting the case to the trial judge set aside, the order setting aside
    the dismissal of the charge contained in the information affirmed and a
    conviction entered.  My reasons for this
    disposition follow.

[63]

The
    summary conviction appeal judge characterized the trial judges error as a
    palpable error of fact that led to an unreasonable verdict.  I agree with the summary conviction appeal
    judge that the trial judge misapprehended the evidence of Prov. Cst. Keller.  I agree that the error was palpable.  But I would not characterize the impact or
    effect of the error in the same way as did the summary conviction appeal judge.

[64]

In
    my view, a more apt characterization of the nature of the trial judges error
    is that he erred in law in failing to apply the presumption of identity to the
    uncontroverted evidence of Prov. Cst. Keller.  His misapprehension of her evidence led the trial judge to conclude that
    the condition precedent to the operation of the presumption contained in
    s. 258(1)(c)(iii) had not been satisfied.  The evidence of Prov. Cst. Keller satisfied this requirement.  She was not cross-examined on this
    issue.  The presumption of identity was
    engaged and, the blood-alcohol concentration was established as exceeding 80
    mgs of alcohol in 100 mls of blood.

[65]

The
    trial judge found all the other essential elements of the offence charged had
    been established beyond a reasonable doubt.  But for his error in misapprehending the evidence of Prov. Cst. Keller,
    which led directly to his failure to apply the presumption of identity on which
    the prosecutor relied to prove the prohibited blood-alcohol concentration, the
    trial judges verdict would not have been the same.  Instead of a dismissal of the charge
    contained in the information, the trial judge would have entered a finding of
    guilt.

CONCLUSION

[66]

Section
    839(2) incorporates the provisions of ss. 673-689 of the
Criminal Code
in summary conviction appeals to this court under s.
    839(1)(a), with such modification as the circumstances require.  The underlying error at trial was an error of
    law, a failure to apply an applicable statutory presumption.  But for that error, the verdict would have
    been different.  As indicated above, I
    would enter that verdict here.

[67]

For
    these reasons, I would grant leave to appeal and allow the appeal to the extent
    of setting aside the order of the summary conviction appeal judge remitting the
    case to the trial judge, and, in its place, enter a verdict of guilty and remit
    the case to the trial judge for imposition of a fit sentence.

RELEASED:  March 24,
    2011 DW

David
    Watt J.A.

I
    agree Robert A. Blair J.A.

I
    agree J. MacFarland J.A.


