Court of Appeal for Ontario

CITATION: R. v. Lyaruu, 2011 ONCA 547

DATE: 20110803

DOCKET: C50883

Feldman, Blair and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Hillary Lyaruu

Applicant (Appellant)

Nicholas A. Xynnis, for the appellant

Amy Alyea, for the respondent

Heard and released orally: July 28, 2011

On appeal from conviction entered by Justice Emile Kruzick of the Superior Court of Justice, dated October 1, 2008.

ENDORSEMENT

[1] The appellant appeals his convictions for refusal to take the breathalyser test and impaired driving. He raises four grounds of appeal:

(1) The trial judge erred in failing to hold that the appellant’s s. 10(b) Charter right was breached when he was not given a second phone call to his lawyer.

(2) The verdict on s. 10(b) was unreasonable.

(3) The trial judge erred in drawing the inference permitted by s. 258(3) of the Criminal Code.

(4) The trial judge erred in concluding on the evidence that the appellant was impaired.

[2] We called on the Crown on the first ground only. We do not accept any of the grounds raised.

[3] On grounds (1) and (2), the trial judge gave full reasons for concluding on all the evidence that he was not satisfied that the appellant “was asking to speak to counsel for clarification or for some further or other advice or for other reasons”. The trial judge was aware of the evidence of Auxiliary Constable Orazem and weighed it in the context of all of the other evidence. We see no error in his approach or his conclusion. The same reasoning applies on ground (3) to the application of permissive inference under s. 258(3) of the Code.

[4] On ground (4), there was ample evidence of impairment, including the smell of alcohol on the appellant’s breath, his bloodshot eyes, the unexplained accident, and the Criminal Code inference. The trial judge was entitled to conclude, on this record, that the appellant was impaired.

[5] The appeals are therefore dismissed.

Signed: “K. Feldman J.A.”

“R. A. Blair J.A.”

“David Watt J.A.”