Court File and Parties

CITATION: R. v. Price, 2010 ONCA 541

DATE: 20100730

DOCKET: M38898

COURT OF APPEAL FOR ONTARIO

Watt J.A. (In Chambers)

BETWEEN:

Her Majesty the Queen

Respondent

and

Donald Price

Applicant

Timothy E. Breen, for the applicant

Lisa Joyal, for the respondent

Heard: June 28, 2010

On application for an extension of time for service and filing of an application for leave to appeal from a decision of Justice S. B. Durno of the Superior Court of Justice, sitting as a summary conviction appeal court, on April 14, 2010.

Reasons for Decision

Watt J.A.:

[1] Donald Price (the applicant) asked a judge of the summary conviction court to stay proceedings because police officers had arbitrarily detained him. The judge refused to do so.

[2] The applicant next sought the same remedy from a judge of the Superior Court of Justice sitting as a summary conviction appeal court. That judge also rejected the applicant’s claim.

[3] Unsuccessful twice, the applicant seeks an extension of time within which to serve and file an application for leave to appeal to this court where he proposes to try on the argument for a third time. His defeats now number three.

THE BACKGROUND

[4] A brief recapture of the evidentiary support for the claim of constitutional infringement and the basis upon which the remedy sought was denied furnish the essential components for the discussion and decision that follow.

The Apprehension

[5] A police officer assigned to a festive RIDE program noticed the applicant turn into a nearby gas station. The officer left the location of the program, went over to the gas station lot, and approached the applicant as he got out of his vehicle. The officer smelled alcohol on the applicant’s breath. The applicant confirmed that he had consumed alcohol at a hockey game at the Air Canada Centre earlier that evening.

[6] The officer made a demand of the applicant to provide a breath sample for analysis in an Approved Screening Device. The device produced a “fail” reading. The officer arrested the applicant on a charge of having the care or control of a motor vehicle after having consumed alcohol in such a quantity that the concentration of alcohol in the applicant’s blood exceeded the level proscribed in s. 253(1)(b) of the Criminal Code.

[7] Within 90 minutes of his apprehension, the applicant provided two further breath samples in response to a lawful demand accompanied by Charter advice and caution. Both Intoxilyzer readings were 130 milligrams of alcohol in 100 millilitres of blood.

The Detention

[8] The arresting officer was satisfied that the applicant could have been released to the custody of a responsible adult after completion of the breathalyzer tests and service of the certificate and notice of intention to introduce it into evidence at trial. But the officer-in-charge of the police station was of another mind. He determined that the applicant would not be released, even into the custody of a responsible adult, until his (the applicant’s) blood alcohol concentration was less than the level proscribed by s. 253(1)(b) of the Criminal Code. Based on an hourly elimination rate of 10 milligrams of alcohol per 100 millilitres of blood, the officer-in-charge fixed the time of the applicant’s release as 6:30 a.m., about five hours after all the necessary documents had been completed and given to the applicant.

[9] The applicant was released on a Promise to Appear at 7:35 a.m. He took a taxi home.

The Decision at Trial

[10] The trial judge recognized the authority of the police to detain breath test subjects until they were sober. The officer-in-charge was obliged, however, to consider alternatives to detention by taking into account all the circumstances, including the availability of alternative transportation for the applicant and his blood alcohol concentration.

[11] The trial judge found no evidence about the frequency with which Peel Regional Police Service detains breath test subjects after completion of the tests, much less of wrongful post-test detention. Although invited to do so, the trial judge found no support for a conclusion of any systemic practice of post-test unwarranted detention, or of a need for a drastic corrective response, such as a stay of proceedings. Where the officer-in-charge erred, in the view of the trial judge, was in failing to consider alternatives to detention and in permitting the breath test readings to foreclose consideration of any other circumstances.

[12] Rather than making an affirmative and discrete finding of a breach of s. 9 of the Charter, the trial judge assumed such a breach, characterized it as “rather minor”, rejected the claim for a stay of proceedings, and imposed a sentence of “time served” (the period of post-test detention) instead of the minimum statutory fine.

The Decision of the Summary Conviction Appeal Court

[13] The summary conviction appeal court judge accepted the findings of fact made by the trial judge, including his determination that the officer in-charge had been wrong in permitting the applicant’s blood alcohol concentration to be the exclusive determinant that warranted post-test detention.

[14] According to the summary conviction appeal court judge, the underlying findings of fact and the remedy determined to be appropriate and just in the circumstances by the trial judge were conclusions open to the trial judge on the evidence adduced at trial. In the result, the appeal was dismissed.

THE APPLICATION

[15] The applicant seeks an extension of time within which to serve and file a notice of application for leave to appeal to this court from the decision of the summary conviction appeal court judge. In the draft notice of appeal [sic] filed in support of this application, the applicant alleges two errors in the conclusion of the summary conviction appeal court. The allegations are that the summary conviction appeal court judge erred in failing to stay the proceedings or, alternatively, in failing to exclude the results of the breath tests from evidence under s. 24(2) of the Charter.

[16] In an affidavit filed in support of this application, a legal assistant in the office of counsel for the applicant deposes:

3. The applicant seeks to appeal the conviction on the ground that the Summary Conviction Appeal Judge erred in affirming the decision of the trial judge, wherein the applicant was granted relief from the mandatory minimum fine as a remedy for a violation of his rights under section 9 of the Charter of Rights. The Charter violation stemmed from the practice of Peel Regional Police to detain individuals charged with drive over 80 overnight, rather than release them to family members.

4. It will be argued on behalf of the applicant that given the systemic nature of the violation of the applicant’s rights, that a remedy of a stay or the exclusion of the breath readings under s. 24(2) of the Charter was warranted.

[17] In correspondence forwarded after the conclusion of argument, counsel for the applicant proposed an additional ground of appeal not raised in either the trial or summary conviction appeal court. He proposed to challenge the constitutional integrity of a provincial regulation that is to come in force shortly. The challenge is based on s. 11(i) of the Charter.

ANALYSIS

[18] The parties do not differ on the general principles governing applications for extension of time. They do part company, however, on the extent to which the principles applicable to applications for leave to appeal under s. 839(1) of the Criminal Code may inform the determination about the merits of the proposed appeal. Equally controversial are the merits of the proposed grounds of appeal advanced on behalf of the applicant.

The Principles Governing Extensions of Time

[19] No absolute rule applies to the exercise of the statutory discretion under s. 678(2) of the Criminal Code to extend the time within which a party may serve and file a notice of application for leave to appeal. In the final analysis, the principal consideration is whether the applicant has demonstrated that justice requires that time be extended. As a general rule, three factors inform the decision:

i. whether the applicant has demonstrated a bona fide intention to appeal within the prescribed appeal period;

ii. whether the applicant has accounted for or explained the delay in initiating the appeal; and

iii. whether the proposed appeal has merit.

R. v. Menear (2002), 2002 CanLII 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 20.

[20] In some circumstances, other factors may exert an influence on the decision about an extension of time:

• whether the consequences of the conviction are out of all proportion to the penalty imposed;

• whether the Crown will be prejudiced;

• whether the applicant has taken the benefit of the judgment

Menear at para. 21.

The Principles Governing Leave to Appeal in Summary Conviction Appeals

[21] Under s. 839(1) of the Criminal Code, leave to appeal from decisions made by judges of the summary conviction appeal court is granted sparingly. There is no one-size-fits-all standard by which to determine on which side of the leave to appeal line an application will fall. But two variables dominate. The first is the significance of the questions of law raised to the general administration of justice. And the second is the merits of the proposed grounds of appeal: R. v. R. (R.) (2008), 2008 ONCA 497, 234 C.C.C. (3d) 463 (Ont. C.A.), at para. 37.

[22] Under R. (R.), leave to appeal may be granted where the merits of the proposed questions of law are arguable, even though the grounds may not be strong, provided the proposed questions of law transcend the borders of the specific case and reveal some significance for the administration of justice more broadly. Leave to appeal may also be granted where a “clear” error is apparent, despite a lack of significance to the administration of justice generally: R. (R.) at paras. 32 and 37.

[23] In applications for leave to appeal under s. 839(1), counsel make written submissions on the leave issue in their facta and, if necessary, in oral argument. The determination of the leave issue is made by a panel of three judges on the date on which the appeal is scheduled to be heard: R. (R.) at para. 38.

The Positions of the Parties

[24] The parties’ oral argument focussed on the merits of the proposed ground of appeal that claims error in the remedy awarded by the trial judge, and affirmed on summary conviction appeal as appropriate and just in the circumstances of this case: a remission of sentence, rather than a stay of proceedings or exclusion of evidence.

[25] For the applicant, Mr. Breen contends that the proposed ground of appeal has substantial merit. A significant problem exists in the Regional Municipality of Peel. Overly-refreshed drivers are routinely detained, despite reasonable alternative transportation arrangements, until an arbitrary reduced blood alcohol concentration is achieved by the application of an excessively conservative elimination rate to readings revealed on a breathalyzer test. The systemic nature of the problem argues in favour of a more substantial remedy than awarded here, as well enhances the likelihood of leave to appeal being granted, although the likelihood of leave to appeal being granted under s. 839(1) should not be a factor in determining whether to extend time.

[26] For the respondent, Ms. Joyal points out that the applicant proposes to argue, for the third time, an issue twice litigated and lost. The courts below identified the issue, applied the relevant and controlling principles, declined the remedy sought, and gave a remedy that was appropriate and just in all the circumstances. The choice of remedy is notoriously fact-specific and entitled to deference. In the result, the applicant has failed to satisfy the merit requirement crucial to the decision about an extension of time.

[27] Further, Ms. Joyal contends, the factual premise on which the applicant constructs his claim that the proposed ground seeps beyond the specifics of this prosecution into the broader territory occupied by the administration of criminal justice is lacking. Neither judge below found the systemic abuse that the applicant asserted. Thus, nothing takes this case beyond its borders. The lack of general application, as well of clear error, dooms the application for leave to appeal under s. 839(1). In its turn, the unlikelihood of leave being granted means that an extension of time should be refused for want of merit.

The Principles Applied

[28] The controversy here has to do with what might be termed the “merits” factor that informs the decision about an extension of time. In this case, the “merits” factor takes into account not only the intrinsic merits of the proposed grounds of appeal, but also requires consideration of the additional conditions imposed in cases governed by s. 839(1) of the Criminal Code.

[29] The applicant seeks to pursue, for the third time, his claim for a remedy for constitutional infringement. The remedy, sought at trial and pursued in the summary conviction appeal court, was a stay of proceedings. The applicant invoked s. 24(1) of the Charter, which required him to demonstrate, on a balance of probabilities, that an enumerated right or freedom due to him had been infringed or denied and that a stay of proceedings was the appropriate and just remedy in all the circumstances.

[30] The infringement that the applicant alleged was an arbitrary detention that occurred following completion of breath tests and service of the certificate of analysis and notice of intention to introduce it into evidence at trial. The basis for the claim of arbitrariness was that the officer-in-charge decided to detain the applicant in a holding cell, rather than to release him to a responsible party who could ensure his safe return home. The period of detention was calculated by applying an arbitrary and conservative elimination rate to the tested blood alcohol concentration so that, upon release, the concentration would be less than the level proscribed in s. 253(1)(b) of the Criminal Code.

[31] Critical to the applicant’s success at trial was proof of an arbitrary detention. As I read the reasons of the trial judge, he made no such finding, rather assumed an arbitrary detention because the officer-in-charge had reached a conclusion open to him (detention until sober), but had done so without consideration of all the circumstances.

[32] At trial, the applicant sought to make out his case for a stay of proceedings, a remedy available only in the clearest of cases, on the ground that this infringement was not unique, but was rather an incident of a systemic abuse of constitutional rights by the local police service. The trial judge made a specific finding, affirmed on summary conviction appeal, that the evidence disclosed no such systemic abuse. The absence of the factual underpinning critical to the claim for a remedy available only in the clearest of cases was terminal to the claim.

[33] The trial judge characterized the assumed Charter infringement as “rather minor”. The summary conviction appeal court judge agreed. The remedy considered “just and appropriate” was relief from the minimum fine required by the Criminal Code. The applicant does not suggest that the remedy awarded was beyond the reach of s. 24(1) of the Charter.

[34] When all the cards are counted, at least as it seems to me, the factual findings at first instance, confirmed on summary conviction appeal and unassailable here, do not demonstrate an arguable ground of appeal as originally framed. The claim for alternative relief, exclusion of breath test results as evidence, fares no better: it does not appear to have been raised before the summary conviction appeal court. The newly proposed constitutional challenge lacks traction.

[35] But the applicant’s troubles do not end with the absence of intrinsic merit in the proposed ground of appeal. There is more. And what is more is the requirement of s. 839(1) of the Criminal Code that leave to appeal be obtained in order to have this court review a decision of a judge of a summary conviction appeal court.

[36] Under s. 839(1) of the Criminal Code, this court grants leave to appeal sparingly: R. (R.) at para. 37. Two critical variables inform the decision on leave to appeal:

• the significance of the legal issues raised to the general administration of criminal justice

• the merits of the proposed grounds of appeal

R. (R.) at para. 37.

[37] This case does not require an exploration of the precise contours of the relationship between the factors governing extensions of time and those at work in determining whether leave to appeal should be granted under s. 839(1) of the Criminal Code. Suffice it to say, however, that where the proposed grounds seem unlikely to warrant granting leave to appeal under s. 839(1), an applicant is equally unlikely to be able to persuade a judge that the proposed appeal has sufficient merit to warrant an extension of time. That is this case.

[38] The concurrent findings at trial and on summary conviction appeal, unimpeachable here, foreclose any claim that the legal issues raised transcend the facts of this case and conjure issues of significance to the general administration of justice.

CONCLUSION

[39] The application for an extension of time within which to file and serve a notice of application for leave to appeal is dismissed.

“David Watt J.A.”

RELEASED: July 30, 2010