Court of Appeal for Ontario

CITATION: R. v. Leung, 2010 ONCA 368

DATE: 20100518

DOCKET: C51449

Feldman, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Kenrick Leung

Respondent

Alexandra Campbell, for the applicant/appellant

No one appearing for the respondent

Heard: May 3, 2010

On appeal from a decision of the Justice G. Lemon of the Superior Court of Justice, sitting as a summary conviction appeal court, dated November 9, 2009.

ENDORSEMENT

[1] The Crown seeks leave to appeal from a decision of Lemon J. of the Superior Court of Justice sitting as a summary conviction appeal court. The respondent was notified of the hearing of this appeal but did not appear in person or by counsel. We would not grant leave to appeal in the circumstances of this case.

[2] The respondent was convicted of operating a motor vehicle with a blood alcohol concentration in excess of 80 milligrams of alcohol in 100 millilitres of blood. The trial judge relied upon the presumption of identity in s. 258(1)(c) of the Criminal Code, having concluded that the first breath test had been administered within two hours of the respondent’s operation of his motor vehicle. The trial judge then continued:

In any event, if the court is in error in its reasoning or conclusion in this regard, even if outside the limit, the court accepts the evidence of the toxicologist and the expert report, that the four factors or assumptions amount to proof beyond a reasonable doubt of the essential elements of the offence.

[3] The summary conviction appeal court judge concluded that it was open to the trial judge to rely on the presumption of identity in the circumstances of this case and rejected the ground of appeal relating to the trial judge’s reliance on the presumption.

[4] The summary conviction appeal court judge then considered whether the trial judge had erred in his acceptance of the report and evidence of a qualified toxicologist concerning the respondent’s blood alcohol level at the time he was operating his motor vehicle. The summary conviction appeal court judge found error in the failure of the trial judge to require the prosecutor to prove beyond a reasonable doubt four assumptions relied upon by the toxicologist in reaching his conclusion. It was on this ground that the summary conviction appeal court judge quashed the respondent’s conviction and ordered a new trial.

[5] The ground upon which leave to appeal is sought is the determination of the summary conviction appeal court judge to consider any issues relating to the report and evidence of the toxicologist, once having decided that the trial judge’s reliance on the presumption of identity as the basis for the conviction was free of error. Absent an error in connection with the presumption of identity, the applicant contends the respondent’s appeal to the summary conviction appeal court should have been dismissed.

[6] In R. v. R. (R.) (2008), 2008 ONCA 497, 234 C.C.C. (3d) 463, this Court made it clear that leave to appeal from decisions of the summary conviction appeal court should be granted sparingly. Although no single test can be formulated to identify all cases in which leave to appeal should be granted, two factors serve as guides to the exercise of our discretion to grant leave:

i. the significance of the proposed question of law, beyond the specific case, to the general administration of justice; and

ii. the merits of the proposed ground of appeal.

[7] The narrow issue raised by the applicant does not have significance to the administration of justice beyond the circumstances of this case. On the contrary, the issue only emerges here because of the manner in which the trial judge determined the blood alcohol concentration of the respondent in the circumstances of this case: first, by invoking the presumption of identity and then, only if in error, by relying upon the report and evidence of a qualified toxicologist. The decision of the summary conviction appeal court judge to proceed to consider the alternative ground, once having determined that the primary finding of the trial judge was free of error, does not involve an issue of importance to the general administration of justice. It is not suggested that the manner in which the summary conviction appeal court judge approached his task is a recurrent problem in summary conviction appeal proceedings.

[8] The narrow ground of appeal raised has merit: there is good reason to believe that once having decided that the trial judge was correct in relying on the presumption of identity, the summary conviction appeal court should have affirmed the respondent’s conviction, without going on to consider the admissibility of the toxicologist’s report and evidence. That said, however, it is not every error of law that results in an order for a new trial that warrants granting leave to appeal. We note that the applicant confined her submissions to this narrow ground, leaving for another day the correctness of the summary conviction appeal court judge’s decision about the admissibility of the toxicologist’s report and evidence and the requirement of proof beyond a reasonable doubt of the assumptions on which both were based.

[9] Leave to appeal is refused. Needless to say, it will be open to the parties to re-litigate the applicability of the presumption of identity and the admissibility of the toxicologist’s report and evidence at the new trial ordered by the summary conviction appeal court.

“K. Feldman J.A.”

“Paul S. Rouleau J.A.”

“David Watt J.A.”