Court of Appeal for Ontario
MacPherson, Cronk and Watt JJ.A.
Between
Her Majesty the Queen Respondent
and
Milco Puvtoski Appellant
Counsel: Zachary Kerbel and Saman Wickramasinghe, for the appellant Gillian Roberts, for the respondent
Heard: November 3, 2016
On appeal from the decision of the Summary Conviction Appeal Court dated March 11, 2016 by Justice F.E. McWatt of the Superior Court of Justice, dismissing the appeal from the conviction entered on February 24, 2015 by Justice L. Feldman of the Ontario Court of Justice.
Endorsement
1The appellant seeks leave to appeal, and if leave is granted, appeals his conviction for drive over 80.
2The main issue on appeal relates to police observations (alcohol smell) of the appellant after a motor vehicle accident and the appellant’s statements to the police at the accident scene. The appellant contends that his statements were statutorily compelled in violation of s. 7 of the Charter. Section 199 of the Highway Traffic Act, R.S.O. 1990, c. H. 8, imposes a duty on police to gather information about an accident for a report. The appellant’s statements to the police at the accident scene helped establish grounds for the police to make an approved screening device (ASD) demand.
3The trial judge admitted evidence of the police officer’s observations about the smell of alcohol on the appellant’s breath. He said, at para. 87:
As well, I am of the view that the officer’s detection of the odour of alcohol on the way to the cruiser, prior to the eliciting of material information, reflects general observations an officer might make of the driver while carrying out other authorized duties and which are admissible [Cases and citations omitted].
4The summary conviction appeal judge dismissed the appeal. She said, at para. 6:
First, the trial judge did not err when he found that the police officer’s detection of the smell of alcohol from the appellant did not breach his s. 7 Charter rights against self-incrimination. The evidence of the odour did not result from any compulsion or direct participation designed to provide evidence and it did not stem from the appellant being directly compelled to participate in making the H.T.A. report [Cases and citations omitted].
5The appellant seeks leave to appeal the summary conviction appeal judge’s decision.
6The test for granting leave to appeal is whether a proposed appeal on a question of law (1) is of significance to the administration of justice beyond the case, and (2) whether there is a clear error of law: see R. v. R.(R.), 2008 ONCA 497.
7In our view, neither component of the test is met on this appeal. Both courts below were aware of and applied the leading case, R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417. The appellant’s proposed appeal related to his statements at the accident scene. However, the appeal does not need to turn on this ground. As both courts below found, the smell of alcohol alone justified the ASD demand and the subsequent administration of the breathalyzer test. As well, the police officer on site had established the identity of the driver of the automobile without reliance on the appellant’s statements. On this issue, the two court decisions were clearly correct. They were also focussed on a narrow factual issue and are, therefore, not significant for the administration of justice beyond the case.
8The application for leave to appeal is dismissed.
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”
“David Watt J.A.”
