COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khan, 2015 ONCA 689

DATE: 20151014

DOCKET: C59171

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Khan

Appellant

Mark Halfyard, for the appellant

Katherine Zanutto, for the respondent

Heard and released orally: October 6, 2015

On appeal from the decision of the Summary Convictions Appeal Court dated July 11, 2014 by Justice Alan C.R. Whitten of the Superior Court of Justice, dismissing the appeal from the conviction entered on November 27, 2013 by Justice Bernd E. Zabel of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant seeks leave to appeal the summary conviction appeal judge’s decision dismissing his appeal from conviction on a charge of driving with a blood alcohol level over 0.80 mg, contrary to s. 253(1)(b) of the Criminal Code. There were two issues at trial:

• Whether the breath samples were taken as soon as practicable;

• Whether the police officer had grounds to arrest the appellant for impaired driving, failing which the breath samples taken at the police station might have been excluded pursuant to the Charter.

[2] The appellant challenged his conviction on the ground that the trial judge’s reasons were inadequate and that effective appellate review was accordingly impossible. The summary conviction appeal judge agreed that the reasons were sparse but concluded that in the specific factual context of the trial, it was not difficult to understand how the trial judge reached his verdict.

[3] There was only one witness called at trial – the arresting officer. There were no issues of credibility and no suggestion of any misapprehension of evidence. There was no contradictory evidence.

[4] The appellant does not suggest that the summary conviction appeal judge applied the wrong test but that he should have come to a different conclusion. He submits that the appeal judge erred by not considering whether the trial judge failed to consider the attenuation of the police officer’s evidence achieved in cross-examination. It is evident that the trial judge weighed the cross-examination in his evaluation of the evidence as he acquitted the accused of impaired driving.

[5] An appeal lies to this court with leave on questions of law alone. The error giving rise to the appeal must be that of the summary conviction appeal judge. Leave to appeal to this court should be granted sparingly and should be limited to cases where the appellant can demonstrate exceptional circumstances justifying a further appeal. As observed in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at para. 32:

Leave to appeal may be granted where the merits of the proposed question of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice beyond the four corners of the case. Leave to appeal may also be granted where there appears to be a “clear” error even if it cannot be said that the error has significance to the administration of justice beyond the specific case.

[6] This appeal involves well settled legal principles which are not in dispute on this appeal. There is no clear error evident from the summary conviction appeal judge’s reasons. This appeal raises no broad questions of law of significance to the administration of justice beyond this particular case. Under these circumstances, leave to appeal is denied.

“Alexandra Hoy A.C.J.O.”

“K.M. Weiler J.A.”

“G. Pardu J.A.”