Court File and Parties

CITATION: R. v. Hyman, 2011 ONCA 454

DATE: 20110615

DOCKET: C49005

COURT OF APPEAL FOR ONTARIO

Doherty, Juriansz and Epstein JJ.A.

BETWEEN

O’Brien Hyman

Appellant

and

Her Majesty the Queen

Respondent

Counsel:

Munyonzwe Hamalengwa, for the appellant

Amy Alyea, for the respondent

Heard and released orally: June 9, 2011

On appeal from the decision of the summary conviction appeal court, dated June 18, 2008 by Justice C. Boswell of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant seeks leave to appeal from the decision of Boswell J. sitting as a summary conviction appeal court judge on appeal from a conviction for refusal to comply with a police officer’s demand for a sample of his breath contrary to s. 254(2) of the Criminal Code. While the notice of appeal lists many grounds of appeal, including that the verdict was unreasonable and that the trial judge failed to give proper consideration to the theory of the defence, the appellant’s actual argument in this court focused on his position that (1) he was denied a fair trial in that he was self-represented and the trial judge did not provide him with sufficient assistance; and, (2) the trial judge and the summary conviction appeal judge erred in failing to consider evidence that demonstrated improper motive on the part of police in demanding that he provide a breath sample.

[2] Applying the principles in R. v. R.(R.) (2008), 2008 ONCA 497, 234 C.C.C. (3d) 463 (Ont. C.A.), we are of the view that this is not a case in which leave to appeal should be granted. In connection with the first issue, the summary conviction appeal judge considered the steps the trial judge had taken to assist the appellant including reviewing trial procedure, describing the different types of available questioning and explaining the process whereby evidence is called and submissions are made and reasonably concluded that the appellant received a fair trial. With respect to the improper motive argument, we see no reason to review the summary conviction appeal judge’s conclusion that there was simply no evidence of an improper motive behind the request of the police officer to provide a breath sample.

[3] While the appellant set out in his factum the argument that both levels of court failed to grant him with a constitutional exemption from the mandatory minimum sentence, he did not press the point in oral argument. In any event, we are of the view that the summary conviction appeal judge properly held that there existed no discretion to effect an exemption such that the mandatory minimum disposition could be avoided.

[4] In the end, none of these issues raise an arguable ground of appeal on a point of law. Further, the significance of the proposed grounds to the administration of justice do not extend beyond the particular circumstances of this case.

[5] The application for leave to appeal is dismissed.

“Doherty J.A.”

“Russell Juriansz J.A.”

“Gloria Epstein J.A.”