CITATION: R. v. O'Brien, 2007 ONCA 138

DATE: 20070302

DOCKET: C44364

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – JOHN O’BRIEN (Appellant)

BEFORE: O’CONNOR A.C.J.O., JURIANSZ and ROULEAU JJ.A.

COUNSEL:

Lawrence Greenspon and Cheryl Letourneau for the appellant

Joseph Perfetto for the respondent

HEARD & RELEASED ORALLY: February, 27, 2007

On appeal from the conviction imposed by Justice Douglas Rutherford of the Superior Court of Justice dated June 23, 2005.

E N D O R S E M E N T

[1] The appellant challenges his convictions for dangerous driving and driving with a blood alcohol concentration in excess of 80.

[2] In our view, there was ample evidence to support the conviction for dangerous driving. We need to comment only on two aspects of that evidence.

[3] The trial judge found as fact that the appellant provided a breath sample to the Quebec police voluntarily shortly prior to the accident and was warned by them that he should not drive as he had registered a failing result. This was relevant and probative evidence on the dangerous driving count.

[4] The trial judge was not bound to accept the expert testimony of the defence regarding the speed of the motorcycle. The evidence to support the judge’s finding that the appellant’s speed was in excess of 140 kph was overwhelming.

[5] The appellant was properly convicted of the offence of dangerous driving.

[6] The trial judge’s finding that the initial breath sample was provided to the Quebec police voluntarily was supported by the evidence. The result, which was communicated to the Ontario police after the accident, provided them with reasonable and probable grounds to subsequently seize a part of the appellant’s blood pursuant to a search warrant from the hospital where he was taken for treatment. The appellant does not challenge the validity of the search warrant.

[7] The trial judge found as a fact that the evidence did not establish that the hospital staff took any blood from the appellant for a purpose other than his medical treatment. This finding is supported by a fair reading of the nurse’s testimony as a whole.

[8] We need not decide whether the police placing a seal on a blood vial at the hospital prior to obtaining a search warrant constituted a seizure because in the circumstances of this case the action was not unreasonable.

[9] The appellant was properly convicted of driving “over 80”.

[10] Finally, we do not agree that the judge intervened in the proceedings to the extent of undermining the appearance of fairness of the trial.

[11] For these reasons, the appeal is dismissed.

“D. O’Connor A.C.J.O.”

“R. Juriansz J.A”

“Paul Rouleau J.A. ”