COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Levesque, 2014 ONCA 890

DATE: 20141210

DOCKET: C57627

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn J. Levesque

Appellant

Michael A. Johnston, for the appellant

Jason A. Gorda, for the respondent

Heard: December 5, 2014

On appeal from the conviction entered on October 5, 2012 by Justice Ronald M. Laliberté of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant was convicted of failing or refusing to comply with a demand to give a breath sample without reasonable excuse, contrary to s. 254(5) of the Criminal Code. His summary conviction appeal to the Superior Court was dismissed and he now seeks leave to appeal.

[2] In our view, the appellant has not met the leave test in R. v. R. R., 2008 ONCA 497. The appellant’s grounds of appeal are weak and they have no significance to the administration of justice.

[3] With respect to the Charter argument, regardless of the trigger for a trial judge’s duty to raise and consider Charter violations, in the present case there was no basis to conclude that the appellant was arbitrarily detained in the momentary delay before the officer noticed alcohol on the appellant’s breath; mere contact with a police officer does not constitute arbitrary detention: R. v. Grafe, 1987 CanLII 170 (ON CA), [1987] O.J. No. 796 (C.A.), R. v. Subaru, 2009 SCC 33, [2009] 2 S.C.R. 460.

[4] On the mens rea ground, the trial judge used the more exacting standard of proof beyond a reasonable doubt in finding that the appellant had a specific intention to refuse to provide a breath sample. The trial judge continued on to the reasonable excuse defence, although it was not strictly necessary to do so. There was no error in this analysis.

[5] Nor do we see any error in the appeal judge’s reasons for why the trial judge had not misapprehended the evidence. An appeal will only be allowed on this ground where the reasons are so deficient as to foreclose meaningful appellant review. Neither the trial judge nor the appeal judge was required to mention every piece of evidence considered.

[6] Leave to appeal is denied.

“C. William Hourigan J.A.”