COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Didone, 2015 ONCA 636

DATE: 20150918

DOCKET: C57491

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Riccardo Didone

Appellant

Lawrence Greenspon, for the appellant

Brock Jones, for the respondent

Heard: September 15, 2015

On appeal from the judgment of Justice H. McLean of the Superior Court of Justice, dated July 17, 2013, sitting as a Summary Conviction Appeal Court, dismissing the appeal from the convictions entered on July 11, 2012 by Justice J.P. Wright of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] Following a trial before a judge alone, the appellant was convicted of impaired driving and refusing to provide a breath sample on demand. The trial judge imposed a one-year driving prohibition and a total fine of $2,000 ($1,200 on the impaired driving conviction and $800 on the refusal conviction). The summary conviction appeal judge (the “SCAJ”) dismissed the appellant’s conviction appeal. The appellant now seeks leave to appeal to this court and, if leave be granted, appeals from his convictions.

[2] At the conclusion of oral argument, we dismissed the appellant’s leave application, for reasons to follow. These are those reasons.

(1) The Leave Requirement

[3] The appellant argues that the SCAJ made two independent errors from those of the trial judge, thereby warranting leave to a further appeal.

[4] First, the appellant renews his argument, advanced before the SCAJ, that the trial judge failed to properly apply the principles set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. He submits that the SCAJ erred by failing to apply the proper standard of review to this issue.

[5] Second, the appellant submits that the SCAJ erred by failing to determine an issue raised on appeal, namely, whether the trial judge failed to address whether the breathalyzer machine was in proper working order at the times relevant to the breath sample demands given that the machine “timed out” at one point and appropriate corrective measures were not taken.

[6] In our view, the issues proposed to be raised on appeal do not meet the high test for leave to appeal to this court set out in R. v. R.R., 2008 ONCA 497, (2008) 90 O.R. (3d) 641. This appeal does not raise a legal issue of significance to the administration of justice beyond the four corners of this case and the merits of the proposed appeal are not strong. We say this for the following reasons.

(2) Impaired Driving Conviction

[7] The appellant argues that, having recognized that the trial judge failed to “reconcile all the differences [in the evidence] brought forward by defence counsel”, the SCAJ erred in law by applying the wrong standard of review and dismissing the appeal on the grounds that “there was a factual basis” for the trial judge’s conclusions and that they were not “manifestly unreasonable”. In so holding, the appellant says, the SCAJ failed to appreciate that the trial judge erred by failing to conduct his credibility analysis in accordance with W.(D.). In particular, the trial judge failed to resolve the inconsistencies and contradictions in the evidence of the Crown witnesses, especially those relating to Ms. Fleury, a civilian Crown witness.

[8] We do not accept this argument.

[9] Credibility was the central issue at trial. Since the appellant did not testify or call other evidence in his defence, the principles articulated in W. (D.) were of limited application. That said, the trial judge’s reasons confirm that, as required by W.(D.), he related the concept of reasonable doubt to the contested factual findings raised by the appellant, concluding that the testimony of the Crown witnesses, including that of Ms. Fleury, was credible. He addressed many, although not all, of the alleged inconsistencies or contradictions in the evidence of the Crown witnesses. He was not obliged to discuss all the evidence or every argument advanced by the defence. So long as a trial judge’s findings linking the evidence to the verdicts can be logically discerned, as here, any deficiencies in his or her credibility analysis will rarely warrant appellate intervention. See R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; R. v. Horton, 2014 ONCA 616, at para. 8.

[10] The SCAJ was clearly alert to the appellant’s contention that the trial judge erred by failing to reconcile all the testimonial inconsistencies and contradictions posited by the defence. In holding that there was a “factual basis” for the trial judge’s conclusions and that those conclusions were not “manifestly unreasonable”, the SCAJ was merely observing, in a short-hand fashion, that the trial judge’s findings were supported by the evidence and attracted deference from a reviewing court. This does not constitute misdirection concerning the standard of review on appeal, or a failure to consider any deficiencies in the trial judge’s reasons. Rather, it reflects the requisite deferential approach afforded by appellate courts to a trial judge’s credibility-based factual findings.

[11] Finally, the SCAJ’s reasons confirm that he adequately considered the appellant’s arguments regarding his impaired conviction. The SCAJ rejected those arguments. He was entitled to do so. This does not give rise to a question of law warranting a further appeal to this court.

(3) Refusal Conviction

[12] We also do not accept that the SCAJ erred by failing to address the trial judge’s alleged failure to determine whether the trial evidence established that the breathalyzer machine was in good working order at the relevant times.

[13] In our view, on the trial judge’s uncontested factual findings, the decision of this court in R. v. Weare, [2005] O.J. No. 2411 is a full answer to the appellant’s argument. In Weare, this court stated, at para.1:

[I]f a finding is made that the accused did not legitimately attempt to provide a sample but merely feigned an attempt, in our view, that amounts to the equivalent of a refusal, thereby constituting the offence [under s. 254(5)(a) of the Criminal Code] without the need to show that the device is an approved device.

[14] In this case, the trial judge found, as a fact, that the appellant was “faking or game-playing” in his attempts to provide a breath sample and concluded that he was satisfied, to the requisite criminal standard, that “there was a refusal”. The appellant did not challenge the former finding before the SCAJ, nor does he do so on this appeal.

[15] Thus, on the authority of Weare and on the facts of this case, it was unnecessary for the Crown to establish that the breathalyzer machine was in good working order as an approved device. See also R. v. Leveque (1985), 1985 CanLII 653 (BC CA), 22 C.C.C. (3d) 559 (B.C.C.A.); R. v. Orme (1998), 33 M.V.R. (3d) 224 (Ont. C.J. (Gen. Div.)).

[16] We note, in any event, that there was evidence at trial from the breathalyzer technician that the machine was in good working order. The trial judge accepted this evidence. He was entitled to do so.

[17] The SCAJ addressed the refusal issue, albeit in brief fashion. He stated:

Clearly, from the evidence, there was a factual basis that the accused person had been warned with regard to the effect of a refusal and notwithstanding that, had provided an inadequate sample after he had been told of the effect of that.

[18] We see no error on this issue by the SCAJ or the trial judge. Their reasons, read in the context of the record, provide ample ground for appellate review of the basis for the refusal conviction and for the SCAJ’s dismissal of the appellant’s appeal from that conviction. See R. v. R.E.M.; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.

(4) Disposition

[19] For the reasons given, the test for leave to appeal to this court has not been met. Leave to appeal is therefore denied.

“E.A. Cronk J.A.”

“Gloria Epstein J.A.”

“David Brown J.A.”