impaired driving – identification of accused as driver – did the trial judge become focussed on which side he preferred in relation to this case, rather than whether or not the Crown had proven the guilt of the accused beyond a reasonable doubt – “while I give Mr. Prithipaul, as Counsel for the Appellant, full credit for a very intellectually stimulating and well presented argument, I do not find the actual mistake that is suggested, and, consequently, the appeal is dismissed”.

This is Case Number 020862926S1, a summary conviction appeal by Dale John Rice from his conviction by the learned Provincial Court Judge, sitting as a trial judge, on an Information containing two counts: firstly, a Count of impaired driving under Section 253(a) of the Criminal Code, and, secondly, a Count of driving with excess blood alcohol under Section 253(b) of the Criminal Code.  It is worth noting that the trial judge, in fact, found the accused Appellant guilty on both counts.

The issue in relation to this particular matter, as raised on appeal, and the issue that was extant at trial had to do with the identification of the motorist.  In this instance, as pointed out by both counsel, there was a significant difference in the effective evidence as between the Crown and the defence in relation to the question of who was the motorist.

That, of course, is a classic issue of fact, which is ordinarily reserved for a trial judge to decide.  What Counsel for the Appellant urges, however, in relation to this appeal is that the findings of fact made by the trial judge, apart from some individual errors, which he very capably outlined in his material, foundered on what Counsel for the Appellant says to be a misdirection in law as to the case of W.(D.).