Court of Appeal for Ontario

Date: 2017-09-18 Docket: C62423 Judges: Watt, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Ryan Nield Appellant

Counsel

Karl Gowenlock, for the appellant

Davin M. Garg, for the respondent

Heard and released orally: September 1, 2017

Background

On appeal from the decision of Justice J.S. Fregeau of the Superior Court of Justice, sitting as a Summary Conviction Appeal Court on June 25, 2015, allowing the appeal from the acquittal entered on April 4, 2014 by Justice D. Gibson of the Ontario Court of Justice.

Reasons for Decision

[1] Ryan Nield was acquitted of driving while over 80 by Justice D. Gibson of the Ontario Court of Justice in Kenora. The Summary Conviction Appeal Court Judge ("SCACJ") Fregeau J., set aside the acquittal and ordered a new trial. Mr. Nield now seeks leave to appeal and if leave is granted, appeals the decision of the SCACJ.

[2] The facts are simple. At 1:22 a.m., an officer observed Mr. Nield running through a McDonald's parking lot to his car that was parked at a hotel. He drove 300 metres on a highway to another parking lot and parked his car near a motel entrance. The officer approached the car, opened the driver's side door and had a brief exchange with Mr. Nield. The officer formed a reasonable suspicion that Mr. Nield had been drinking and demanded that he provide a breath sample into an approved device. Mr. Nield registered a fail and subsequently provided breath samples that produced results of 130 and 129 milligrams of alcohol in 100 millilitres of blood.

[3] Mr. Nield argued that his rights under s. 9 of the Charter were infringed by the actions of the officer. The trial judge agreed, holding that the officer had neither subjective nor objective grounds to believe that Mr. Nield committed a criminal offence. The trial judge found that, while ss. 48 and 216 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") authorize police officers to detain persons for the purpose of making a demand under s. 254 of the Criminal Code, the Act did not apply because when Mr. Nield was approached by the officer, he was not on a "highway" within the meaning of the Act. The trial judge excluded the evidence gathered by the officer under s. 24(2) of the Charter.

[4] The Crown appealed. The Crown argued that the trial judge erred in his interpretation of the Highway Traffic Act. For the first time on appeal, the Crown also argued that the common law equipped the arresting officer with the power to detain Mr. Nield.

[5] Relying on R. v. Hajivasilis, 2013 ONCA 27, the SCACJ held that the trial judge was correct in his interpretation of the Highway Traffic Act. However, he found that the officer had common law powers to detain Mr. Nield and investigate him for impaired driving. He concluded that there was no breach of s. 9, set aside the acquittal and ordered a new trial.

Leave to Appeal Test

[6] The test for obtaining leave to appeal under s. 839 of the Criminal Code is exacting. As this court held in R. v. R.R. (2008), 2008 ONCA 497, 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.

[7] We are not satisfied that leave to appeal should be granted. The real issue in this case involved the application of settled s. 9 jurisprudence to Mr. Nield's conduct on the night in question. The issue does not have significance to the administration of justice in general.[1]

[8] Leave to appeal is refused.

Signatures

David Watt J.A.

Grant Huscroft J.A.

Gary T. Trotter J.A.

Footnote

[1] This application for leave to appeal was focused on s. 9 of the Charter. We express no views on the correctness of the decisions in the courts below concerning the interpretation of the Highway Traffic Act.