COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rice, 2007 ONCA 105

DATE: 20070219

DOCKET: C44953

RE: HER MAJESTY THE QUEEN (Respondent) – and – DANA RICE (Appellant)

BEFORE: BLAIR, LANG and MACFARLAND JJ.A.

COUNSEL: James Foord for the appellant Michelle Campbell for the respondent

HEARD & RELEASED ORALLY: February 9, 2007

On appeal from the decision of Justice Albert J. Roy of the Superior Court of Justice dated January 25, 2006, dismissing a summary conviction appeal from the decision of Justice Ryan of the Ontario Court of Justice dated April 15, 2005.

E N D O R S E M E N T

[1] Mr. Rice seeks to set aside his conviction for having failed to provide a breath sample pursuant to s. 254(5) of the Criminal Code. He was convicted by Justice Ryan of the Ontario Court of Justice on April 15, 2005. His summary conviction appeal was dismissed by Roy J. on January 25, 2006.

[2] On March 25, 2004, Mr. Rice was stopped by police officers because he was driving a vehicle with a burnt out headlight. Although the officers detected an odour of alcohol on his breath and Mr. Rice had bloodshot eyes, he told the police officers that he had not consumed any alcohol that day, although he subsequently acknowledged that he had consumed “a couple of drinks” at 6:30 p.m. He was stopped at approximately 10:46 p.m.

[3] Over a nine-minute period between 11:10 p.m. and 11:19 p.m., the appellant provided thirteen unsuitable breath samples. He was instructed by the police officers twice on how the screening device worked and how he should give his sample by providing one strong and steady breath for a duration of approximately eight to ten seconds. On each occasion, however, the appellant provided short, quick, puffing breaths, which were unsuitable for the device. Mr. Rice indicated to the police officers that he was “really tired” and that he wanted to go home to bed. After the twelfth attempt, the police officer warned the appellant that there could be criminal consequences for continued failure to provide a suitable sample. At 11:21 p.m., after the thirteenth failed attempt, the appellant was arrested for failing to comply with a demand.

[4] The trial judge summarized the evidence and concluded there was no doubt in his mind that the appellant intentionally refused to provide the breath sample properly into the device.

[5] On the appeal, the appellant raises two grounds, namely, whether the summary conviction appeal court judge erred:

(a) by finding that the trial judge provided adequate and meaningful reasons and,

(b) by finding that the trial judge properly considered the appellant’s evidence in accordance with the requirements of the Supreme Court of Canada in R. v. W.(D.).

[6] In his capable oral argument, Mr. Foord did not pursue the separate W.(D.) ground. Rather, he wrapped it up in the Sheppard argument concerning the inadequacy of the reasons.

[7] We would not give effect to these grounds of appeal.

[8] There is ample evidence in the record to support the trial judge’s factual finding that the appellant intentionally refused to adhere to the request of the police officers to blow properly into the machine and, accordingly, that he failed or refused to provide a breath sample as required. There was and is no basis for interfering with that finding.

[9] While the trial judge made no specific reference to the appellant’s explanation that he was really tired and wanted to go home to bed, or to the police officer’s comment in cross-examination that “it looked as if [the appellant] was trying to comply with what [he] was asking him to do,” it is apparent from the reasons read as a whole that the trial judge weighed all of the evidence and was satisfied beyond a reasonable doubt.

[10] We do not think the summary conviction appeal court judge erred in the circumstances of this case in observing that this was not a classic W.(D.) type of situation. Nor do we accept that the trial judge’s reasons failed to meet the Sheppard test. They are brief but they demonstrate that he reviewed and considered all of the evidence as it related to the pertinent issues and applied the proper principles, as the summary conviction appeal judge noted. The trial judge made the essential connection between the police officers’ explanation of the need for a long hard blow and the appellant’s continued pattern of providing short, quick breaths over a period of thirteen opportunities and found on the facts that “there was clearly an attempt … to thwart the proper test being performed.”

[11] In our opinion, the appellant is able to understand on reading these reasons – including the reasons for sentence that follow immediately after the conviction – why he was convicted, and the summary conviction appeal court and this court are able to give them meaningful appellate review.

[12] Accordingly, leave to appeal is granted but the appeal is dismissed.

“R.A. Blair J.A.”

“S.E. Lang J.A.”

“J.L. MacFarland J.A. ”