COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lam, 2016 ONCA 850

DATE: 20161110

DOCKET: C60411

Watt, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bill Lam

Applicant/Appellant

Peter Lindsay, for the applicant/appellant

Philip Perlmutter, for the respondent

Heard: October 17, 2016

On appeal from the decision dated April 7, 2015 of Justice Robert F. Goldstein of the Superior Court of Justice, sitting as a summary conviction appeal court, allowing the appeal from the acquittal entered on March 14, 2014 by Justice Brent Knazan of the Ontario Court of Justice.

By the Court:

[1] The applicant seeks leave to appeal from a decision of a judge of the summary conviction appeal court who set aside the applicant’s acquittal of operating a motor vehicle with a prohibited concentration of alcohol in his blood and ordered a new, and third, trial.

[2] At the conclusion of argument on whether leave to appeal should be granted, we advised counsel that leave to appeal would be refused. We promised brief reasons for our decision. Those reasons follow.

The Background

[3] It was an essential element of the case for the Crown at trial that it proved that, while operating a motor vehicle, the applicant had a concentration of alcohol in his blood that exceeded 80 milligrams of alcohol in 100 millilitres of blood. To establish this essential element of the offence, the Crown sought to invoke the presumption of identity in s. 258(1)(c) of the Criminal Code.

The Trial Decision

[4] The trial judge declined to admit the certificate of analysis as evidence of the blood alcohol concentration of the applicant when he was operating his motor vehicle. The trial judge considered that the failure to send the approved instrument – an Intoxilyzer – for annual inspection for 13 months amounted to evidence tending to show that the instrument was “operated improperly”, thus defeating the presumption in s. 258(1)(c) and rendering evidence of the results of the analysis inadmissible. The case for the Crown failed. The trial judge entered an acquittal.

The Summary Conviction Appeal

[5] The Crown appealed the acquittal to the summary conviction appeal court.

[6] A judge of the summary conviction appeal court ordered a new trial. In his view, the trial judge had erred in elevating the recommendations of the Alcohol Test Committee that approved instruments be inspected annually to a condition precedent for proper operation of the instrument. This error led the trial judge to conclude that the presumption of identity in s. 258(1)(c) was not engaged and thus could not be invoked to establish the applicant’s blood alcohol concentration when he was operating his motor vehicle.

[7] The judge of the summary conviction appeal court also found that the trial judge had misapprehended the evidence of a toxicologist called as an expert witness by the Crown and had further erred in relying on the evidence of a defence toxicologist that the failure of an annual inspection meant that the approved instrument was “operated improperly”, thus defeating the application of s. 258(1)(c). Whether the instrument was “operated improperly” was a question of law for the trial judge to decide, not an issue upon which the expert witness was entitled to offer an opinion.

The Motion for Leave to Appeal

[8] In his Notice of Application for Leave to Appeal and Notice of Appeal, the applicant alleged six legal errors by the summary conviction appeal court. In his factum, counsel for the appellant did not set out any discrete questions of law upon which he sought leave to appeal. In oral argument, however, the applicant characterized the question of law on which he sought leave as whether the phrase “operated improperly” in s. 258(1)(c) includes improper “maintenance” of the approved instrument.

The Test for Leave to Appeal

[9] Section 839(1) of the Criminal Code limits appeals to this court from decisions of summary conviction appeal courts to grounds involving questions of law alone and requires that leave to appeal be granted by this court. This second level of appeal in summary conviction proceedings is an appeal from the decision of the summary conviction appeal court, not a second appeal from the decision of the trial court. The appeal is limited to questions of law alone and does not extend to questions of fact alone or of mixed fact and law, as do appeals to the summary conviction appeal court from decisions made at trial. Second appeals in summary conviction proceedings are the exception, not the rule: R. v. R.(R), 2008 ONCA 497, 90 O.R. (3d) 641, at para. 25.

[10] Two key variables influence the leave decision:

• The significance of the legal issue(s) raised to the general administration of criminal justice

• The merits of the proposed ground(s) of appeal.

Issues that have significance to the administration of criminal justice beyond the particular case may warrant leave to appeal, provided the grounds are at least arguable, even if not especially strong. And leave to appeal may also be granted even if the issues lack general importance, provided the merits appear very strong, especially if the conviction is serious and an applicant is facing a significant deprivation of his or her liberty: R.(R.), at para. 37.

The Standard Applied

[11] Several factors persuaded us that this is not a case in which leave to appeal should be granted.

[12] First, leave to appeal in summary conviction proceedings is the exception, not the rule. It is all the more so when an applicant, charged with an offence that is alleged to have occurred over eight years ago, has already had two trials and two summary conviction appeals. At some point, finality must prevail.

[13] Second, to the extent that the question of law on which leave to appeal is sought is commingled with complaints of misapprehension of evidence, the ground involves the application of well-settled principles of law in no need of restatement or refinement. Almost by definition, complaints about misapprehension of evidence by the summary conviction appeal court are case-specific and do not transcend the idiosyncrasies of the case at hand.

[14] Third, invocation of the frequency with which alcohol-driving prosecutions populate the lists in the Ontario Court of Justice to fund a claim of wider application proves too much. If frequency of prosecution were the touchstone for granting leave to appeal, leave would become the rule, not the exception in alcohol-driving offences.

[15] Fourth, the substantive issue the applicant seeks to advance is controlled by R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187 (not R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161 as the respondent suggests). We see no misapplication of those principles by the summary conviction appeal court.

Conclusion

[16] For these reasons, leave to appeal was refused.

Released: November 11, 2016 (DW)

“David Watt J.A.”

“P. Lauwers J.A.”

“M.L. Benotto J.A.”