DATE: 20010618 DOCKET: C33834

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) and CHRISTOPHER DOMINSKI (Respondent)

BEFORE: FINLAYSON, CARTHY AND SIMMONS JJ.A.

COUNSEL: John McInnes For the appellant

Richard Addelman For the respondent

HEARD: May 17, 2001

On appeal from the orders of Justice Kenneth C. Binks dated December 8, 1999 and February 10, 2000.

E N D O R S E M E N T

[1] The appellant appeals acquittals entered by a summary conviction appeal court on one count of driving while impaired by drugs or alcohol under s. 253(a) of the Criminal Code and one count of driving with a blood alcohol level in excess of the legal limit under s. 253(b) of the Criminal Code.

[2] Police stopped the respondent’s motor vehicle after observing him disobey a traffic signal and driving erratically. The officer who stopped the respondent smelled marihuana when she approached his vehicle. She asked if he was high on drugs. He said that he was. The officer arrested the respondent for driving while impaired by drugs, handcuffed him, and placed him in the back of her vehicle. She also advised him of his s. 10(b) rights under the Canadian Charter of Rights and Freedoms. When asked whether he understood and if he wanted to call a lawyer, the respondent replied “yeah, whatever”.

[3] The officer noticed an odour of alcohol when she returned to her vehicle after speaking to another officer. She asked the respondent if he had been drinking. He confirmed that he had.

[4] An approved screening device was delivered to the scene within four minutes of the officer detecting the odour of alcohol. The officer demanded the respondent provide a sample of his breath pursuant to s. 254(2) of the Criminal Code. The respondent failed the test. He was re-arrested and taken to the police station. He failed a breathalyser test administered after he had exercised his rights to counsel.

[5] The trial judge accepted the police officer’s evidence that she considered the respondent’s answer to her inquiry about whether he wanted to call a lawyer following his arrest on the charge under s. 253(a) of the Criminal Code for driving while impaired by drugs as ambiguous and non-committal. The trial judge found that “yeah whatever”, in the unique circumstances of the respondent’s actions, did not amount to an invocation of his s. 10(b) Charter rights. He convicted the accused of driving with a blood alcohol level in excess of the legal limit contrary to s. 253(b) of the Criminal Code. He said he was satisfied the evidence would support a finding of guilt on the impaired driving charge under s. 253(a) of the Criminal Code but that the principle in Kienapple [^1] allowed a finding of guilt only on the charge under s. 253(b) of the Criminal Code. The charge under s. 253(a) of the Criminal Code as set out on the information was marked “stayed”.

[6] The summary conviction appeal judge reversed the trial judge’s finding on whether the respondent had invoked his s. 10(b) Charter rights and held that the respondent was not afforded the right to counsel at the earliest opportunity. There was no basis for the summary conviction appeal judge to change the trial judge’s finding of fact. His reasons are of no assistance on this pivotal point.

[7] Although the respondent was detained in relation to the s. 253(a) impaired driving charge at the time the approved screening device demand was made, we are satisfied the statutory prerequisites set out in s. 254(2) of the Criminal Code for making a demand existed.

[8] Generally, police are under no obligation to advise a motorist of his s. 10(b) Charter rights prior to implementing an approved screening device demand: R. v. Misasi (1993), 1993 8577 (ON CA), 79 C.C.C. (3d) 339 at 345 (Ont. C.A.); see also R. v. Thomsen (1988) 1988 73 (SCC), 40 C.C.C. (3d) 411 (S.C.C.). The respondent did not argue that his pre-existing detention in any way diminished the usual constitutional justification for the suspension of the right to counsel at the time an approved screening device demand is made. We note that strict compliance with section 254(2) of the Criminal Code is a prerequisite to a prosecution for failing to comply with a demand and that the required demand is that the sample be provided ‘forthwith’: R. v. Grant (1991), 1991 38 (SCC), 7 C.R. (4th) 388 (S.C.C.). We accordingly see no reason to depart from the principle enunciated in Thomsen and Misasi in this case.

[9] For all of the foregoing reasons, in our view the trial judge was correct in finding that there was no breach of the respondent’s s. 10(b) Charter rights. There was accordingly no basis for the summary conviction appeal court to overturn the conviction on the charge under s. 253(b) of the Criminal Code.

[10] In the unusual circumstances of this case we would, if necessary, extend the time for appealing the decision of the summary conviction appeal court on the charge under section 253(b) of the Criminal Code to 30 days after the day the decision was rendered on the charge under s. 253(a) of the Criminal Code.

[11] Leave to appeal the acquittal entered by the summary conviction appeal court on the charge under s. 253(b) of the Criminal Code is granted, the appeal is allowed, and the conviction entered at trial is restored.

[12] In light of our decision on the s. 253(b) charge, it may not be strictly necessary to deal with the decision of the summary conviction appeal court on the charge under s. 253(a) of the Criminal Code. Nevertheless, we are satisfied, based on R. v. Terlecki (1984), 1985 16 (SCC), 22 C.C.C. (3d) 224 (S.C.C.) aff.’g (1983), 1983 ABCA 87, 4 C.C.C. (3d) 522 at 529-30 (Alta C.A.), that it was unnecessary for the Crown to file a notice of cross-appeal of that count to the summary conviction appeal court.

[13] The summary conviction appeal court determined that the trial judge failed to enter a finding of guilt on the charge under s. 253(a) of the Criminal Code even though it appeared the trial judge had intended to do so. Absent a finding that the intended verdict was unreasonable, rather than enter an acquittal, the summary conviction appeal court ought to have left undisturbed the stay of that charge entered by the trial judge. In the unique circumstances of this case, leave to appeal the acquittal on the charge under s. 253(a) of the Criminal Code is granted, the acquittal entered by the summary conviction appeal court is set aside, and the charge is conditionally stayed in accordance with the principle in R. v. Kienapple.

“G. D. Finlayson J.A.”

“J.J. Carthy J.A.”

“J. Simmons J.A.”

[^1]: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729