COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rienguette, 2016 ONCA 450

DATE: 20160608

DOCKET: C61121

Strathy C.J.O. and Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Rienguette

Appellant

P. Berk Keaney and Michael J. Venturi, for the appellant

David Friesen, for the respondent

Heard: June 1, 2016

On appeal from the judgment of Justice Robbie D. Gordon of the Superior Court of Justice, dated September 9, 2015, sitting as a Summary Conviction Appeal Court, dismissing the appeal from the conviction entered on December 13, 2013 by Justice W. F. Fitzgerald of the Ontario Court of Justice, sitting without a jury, with reasons reported at 2015 ONSC 5579.

ENDORSEMENT

[1] The appellant was convicted of driving “over 80”. The trial judge imposed a sentence of thirty days’ imprisonment to be served intermittently and a two-year driving prohibition. The summary conviction appeal judge dismissed the appellant’s conviction appeal.

[2] The appellant seeks leave to appeal from the decision of the summary conviction appeal judge pursuant to s. 839(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. The law is well-settled that leave to appeal to this court should be granted sparingly and that a second appeal in summary conviction proceedings should be the exception and not the rule: R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at para. 25.

[3] After hearing oral submissions, we dismissed the appellant’s leave application with reasons to follow. These are those reasons.

[4] On an application for leave to appeal, this court will consider the merits of the proposed appeal and its significance to the administration of justice. If the merits of the proposed question of law are arguable, even if not strong, leave may be granted if the question of law has significance to the administration of justice beyond the four corners of the case. Granting leave may also be appropriate in cases involving clear errors of law, even if the issues to be argued are not of general importance. This is especially the case if the convictions are serious and the applicant is facing a significant deprivation of his or her liberty: R.R., at para. 37.

[5] In his putative appeal to this court, the appellant seeks to renew two of the same arguments advanced before the summary conviction appeal judge. For the reasons set forth below, we are of the view that the issues to be argued are not of significance to the administration of justice beyond the four corners of this case and the merits of the proposed appeal are not strong. Therefore, the proposed grounds of appeal do not meet the stringent test for leave to appeal to this court set out in R.R.

Analysis

(1) ASD Demand

[6] The appellant argues that the trial judge erred in finding that the arresting officer’s demand that the appellant provide a sample of breath into an alcohol screening device (“ASD”) was made “forthwith”, as required by s. 254(2)(b) of the Criminal Code. He submits that the 13-minute delay in obtaining an ASD coupled with his roadside detention triggered his right to be provided with a s. 10(b) caution.

[7] In R. v. Mohamed, 2015 ONCA 335, at para. 7, this court confirmed that the principles of law relating to whether an ASD sample has been taken “forthwith” are well established and do not warrant any restatement. The application of these principles to the facts of this case has no significance to the administration of justice beyond the four corners of this case.

[8] We also see no error in the summary conviction appeal judge’s conclusion that the trial judge considered and applied the relevant factors in determining that there was no realistic opportunity for the appellant to consult with counsel during the 13-minute delay. The evidence supported the arresting officer’s assumption that a nearby officer would deliver the ASD shortly.

(2) N.I.S.T. Thermometer

[9] The appellant submits that the summary conviction appeal judge erred in not finding that the failure of the breath technician to use a N.I.S.T. thermometer raised a reasonable doubt about the accuracy of the breath test results. This is another case specific issue; it does not involve a question of general importance to the administration of justice.

[10] In any event, the trial judge was entitled to find that the failure to verify the simulator’s internal thermostat using an N.I.S.T. thermometer, a secondary means, did not raise a reasonable doubt about the reliability of the breath tests. As noted by the summary conviction appeal judge, there was no evidence that the internal thermometer was faulty or the digital read was inaccurate. Rather, the two calibration checks produced results that were within the acceptable range and the evidence of both the expert and the breath technician confirmed the accuracy of the results. It was the breath technician’s evidence that since he had begun doing monthly checks using an N.I.S.T. thermometer the simulator’s digital display was accurate every time. The summary conviction appeal judge did not err in affirming the trial judge’s finding in this regard.

Disposition

[11] For the reasons given, the application for leave to appeal is dismissed.

[12] The appellant shall surrender himself into custody at the Sudbury District Jail on Sunday, June 19, 2016 before 8 p.m. to be released on Friday, June 24, 2016 at 7 a.m., and, if necessary for the completion of his sentence, he shall surrender into custody at the Sudbury District Jail on July 17, 2016 before 8 p.m. to be released from custody at 7 a.m. on the day of the completion of his sentence.

“G.R. Strathy C.J.O.”

“S.E. Pepall J.A.”

“C.W. Hourigan J.A.”