R. v. Lutchmedial, 2011 ONCA 585

CITATION: R. v. Lutchmedial, 2011 ONCA 585

DATE: 20110912

DOCKET: C50749

COURT OF APPEAL FOR ONTARIO

Weiler, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alvin Rishi Lutchmedial

Appellant

Marco G. Forte and Marco Sciarra, for the appellant

Peter Scrutton, for the respondent

Heard: September 7, 2011

On appeal from the decision of Justice Thomas R. Lederer of the Superior Court of Justice in the Summary Conviction Appeal Court dated June 16, 2009 dismissing the appeal from conviction entered on March 29, 2007 by Justice Thomas P. Cleary of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant submits that the Summary Conviction Appeal Judge (SCAJ) erred in dismissing his appeal from a finding of guilty of impaired driving. He has been granted leave to appeal and appeals his conviction on the basis that he was arbitrarily detained under s. 9 of the Charter. He submits that, as a result, the observations of the breathalyzer technician as to his impairment should be excluded.

[2] The appellant agrees that the initial stop by police was lawful due to his “bad driving”. He submits, however, that as the police did not observe the usual signs of impairment such as glassy eyes, alcohol on his breath, and slurred speech, there were no grounds to make a demand for a sample of his breath and his continued detention was an arbitrary detention that contravened s. 9 of the Charter.

[3] If, as the evidence suggests, the appellant would have been arrested in any event for dangerous driving, his detention would not have been arbitrary. However, the appellant submits that, in that event, when the police brought him before a breathalyzer technician the detention became arbitrary because Parliament has developed a scheme to deal with alcohol-related offences and the officers did not comply with it. Although the results of the breathalyzer tests were excluded by the trial judge, the appellant submits that the trial judge erred in admitting the observations of impairment made by the breathalyzer technician quite apart from the breathalyzer readings. The appellant submits that, as his continued detention was arbitrary, these observations ought to be excluded under s. 24(2) of the Charter.

[4] We disagree. The appellant’s initial detention was lawful pursuant to s. 216(1) of the Highway Traffic Act. The lack of reasonable grounds to arrest the appellant for impaired driving did not convert his detention into an arbitrary detention. The appellant’s continued detention was justified to further the investigation into his horrendous driving. The observations of the breathalyzer technician were admissible as evidence of impairment because they did not arise as a result of a Charter violation. The observations made by the breathalyzer technician could have been made by any police officer at the station. The appellant was not arbitrarily detained.

[5] The SCAJ properly deferred to the trial judge’s admission of the technician’s observations. A strong line of authority supports the proposition that a police officer’s observations of a lawfully detained suspect are not conscriptive evidence because they were not obtained through the suspect’s participation.

[6] Finally, we note that the argument now advanced by the appellant was never made to the SCAJ. An appeal to this court is not a second chance to reargue an appeal from the trial judge. In any event, we agree with the SCAJ’s disposition of the case.

[7] The appeal is dismissed.

“Karen M. Weiler J.A.”

“E.A. Cronk J.A.”

“David Watt J.A.”