COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wylie, 2013 ONCA 673

DATE: 20131105

DOCKET: C56969

Laskin, Rosenberg and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Richard Wylie

Respondent

James V. Palangio, for the appellant

No one appearing for the respondent

Heard: October 30, 2013

On appeal from the decision of the Summary Convictions Appeal Court dated April 4, 2013 by Justice Gary W. Tranmer of the Superior Court of Justice, allowing the appeal from the conviction entered on May 15, 2012 by Justice Jonathan Brunet of the Ontario Court of Justice.

BY THE COURT:

[1] On May 15, 2012, the respondent was convicted of operating a motor vehicle in the early hours of June 8, 2011, while having a blood alcohol concentration exceeding 80 mg of alcohol in 100 mL of blood. On April 4, 2013, the Summary Convictions Appeal Court (“SCAC”) allowed his appeal and ordered a new trial. The Crown seeks leave to appeal and if leave is granted, appeals from that order.

Should Leave be Granted?

[2] In R. v. R.R., 2008 ONCA 497, 238 O.A.C. 242, this court stated that leave to appeal in these circumstances depends on two factors: the merits of the proposed grounds of appeal, and the significance of the legal issues to the general administration of justice. In our view, both factors indicate that leave to appeal ought to be granted in this case.

[3] A preliminary review of the Crown’s arguments on the proposed grounds of appeal satisfies us that these arguments have considerable merit.

[4] Moreover, when, as in this case, the respondent was convicted at trial and the SCAC ordered a new trial on grounds that appear to be problematic, the administration of justice is served by granting leave and addressing the merits. By doing so, the court potentially avoids an unnecessary and costly retrial years after the relevant events.

[5] Taking into account our preliminary assessment of the merits and the potential advantage to the administration of justice of a consideration of the merits of the appeal, we are satisfied that this is an appropriate case in which to grant leave to appeal.

the merits of the appeal

[6] The contentious issue in this case involves the evidence concerning who read the breath demand to the respondent. Both of the officers at the scene testified that a breath demand was made at 1:12 a.m. on June 8, 2011. However, each testified that the other had actually made the demand.

[7] The trial judge found as a fact that a valid demand had been made. This finding was open to him on the evidence. And this was, as a matter of law, sufficient to bring the Crown within the opening words of s. 258(1)(c) of the Code.

[8] The trial judge commented that it would have been preferable if the evidence were clearer but found there was ample evidence that a demand had been made. This evidence included the fact that the respondent provided two breath samples, yielding readings of 139 mg and 137 mg of alcohol in 100 mL of blood. As a result, the trial judge convicted the respondent of the “over 80” charge.

[9] The SCAC judge reasoned that details concerning the demand such as who gave it, what was said, and when and where the demand was made are necessary elements of the question of whether the Crown is able to prove the required demand was made. Since the trial judge failed to determine who made the demand, the SCAC judge concluded that the reasons were inadequate for appellate review. He therefore allowed the appeal and ordered a new trial.

[10] In our view, the SCAC judge erred by considering an irrelevant issue, namely, which officer made the demand. In so doing, he added an additional element of proof to the Crown’s burden. All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the “who, what, where and when” of the demand.

[11] The trial judge found as a fact that a valid demand had been made. This finding was open to him on the evidence. And this was, as a matter of law, sufficient to bring the Crown within the opening words of s. 258(1)(c) of the Code.

[12] Moreover, the respondent complied with the demand. In accordance with R. v. Rilling, 1975 CanLII 159 (SCC), [1976] 2 S.C.R. 183; R. v. Eden (1972), 1972 CanLII 946 (SK CA), 84 Sask. R. 281 (C.A.); R. v. Charette, 2009 ONCA 310, 94 O.R. (3d) 721; and R. v. Forsythe, 2009 MBCA 123, 250 C.C.C. (3d) 90, absent a Charter challenge, compliance with the demand provides a complete answer in the Crown’s favour.

[13] Leave to appeal is granted, the appeal is allowed, the order directing a new trial is set aside, and the conviction entered at trial is restored.

Released: November 5, 2013 (“JL”)

“John Laskin J.A.”

“Marc Rosenberg J.A.”

“Gloria Epstein J.A.”