Court of Appeal for Ontario

Date: 2017-12-06 Docket: C63293

Judges: Epstein, Paciocco and Nordheimer JJ.A.

Between

Her Majesty the Queen Appellant

and

Marti Mayrhofer-Lima Respondent

Counsel

Davin Michael Garg, for the appellant

Philip B. Norton, for the respondent

Heard: December 1, 2017

On appeal from the order of Justice Kelly P. Wright of the Superior Court of Justice, dated January 4, 2017, allowing an appeal from the conviction entered on June 7, 2016 by Justice William R. Wolski of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant seeks leave to appeal a decision of the Summary Conviction Appeal Court ("SCAC"). The SCAC judge set aside the respondent's conviction for impaired operation of a motor vehicle and ordered a new trial.

[2] After hearing from counsel for the appellant, we denied leave to appeal. We said our reasons would follow and we now provide those reasons.

[3] The respondent crashed his car into a fire hydrant. An ambulance and fire crew arrived at the scene, followed by a police officer. The officer attended at the ambulance to speak with the respondent, who promptly informed the officer that he had "crashed the car". The officer replied that an investigation was underway and advised the respondent that he did not have to say anything to the police. The respondent nevertheless admitted to the officer that he had been drinking at a bar with friends and had blacked out while driving (the "Ambulance Statement").

[4] The respondent was placed under arrest, informed of his right to counsel, and transported to a police station. While en route to the station, the respondent reiterated the Ambulance Statement to the police. Upon arriving at the station, the respondent provided breath samples for an intoxilyzer reading.

[5] The respondent was charged with impaired operation of a motor vehicle and driving "over 80". He brought applications under s. 7, s. 8, s. 9, s. 10(a) and s. 10(b) of the Charter to exclude from evidence the intoxilyzer results and his statements to the police. The Crown conceded that the respondent's s. 8, s. 9 and s. 10(b) rights had been breached, but opposed exclusion of the evidence under s. 24(2). The trial judge rejected the Crown's concession that these Charter rights had been breached and found that no Charter breaches had occurred. The trial judge therefore convicted the respondent of impaired operation of a motor vehicle.

[6] The SCAC judge allowed the respondent's appeal and ordered a new trial. She held that the Ambulance Statement had been obtained in breach of the respondent's s. 10(a) rights. The respondent, in her view, had not been properly informed that he was subject to a criminal investigation as opposed to an ordinary traffic investigation. Second, the SCAC judge found that the trial judge had not provided the respondent a proper opportunity to make submissions on this court's decision in R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641.

[7] In support of the leave application the appellant submits the SCAC judge erred in finding a s. 10(a) breach. In the appellant's view, the respondent's s. 10(a) rights were not engaged because he had not been detained in the ambulance. The appellant also argues the SCAC judge erred in finding that the respondent was deprived of the opportunity to make submissions on Bush at trial.

[8] This court's decision in R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641 sets out the principles that govern whether leave to appeal will be granted under s. 839(1)(a) of the Code. A second appeal in summary conviction proceedings is the exception, not the rule: R. (R.), at para. 24. Appeals under s. 839(1)(a) are restricted to questions of law alone: R. (R.), at para. 24. The principal factors that influence the decision about whether leave to appeal should be granted are the significance of the proposed question of law beyond the circumstances of the case to the administration of justice in the province and the strength of the appeal. R. (R.), at para. 30. Leave to appeal may be granted where the merits of the proposed ground of appeal are arguable, even if not strong, provided the proposed question of law has significance to the administration of justice beyond the facts of the case under appeal. Leave to appeal may also be granted where the decision of the appeal judge reflects a "clear error", even if the error lacks general significance to the administration of justice: R. (R.), at paras. 32 and 37. Appeals under s. 839(1)(a) are appeals from the decision of the appeal judge, not a second appeal from the decision of the trial judge: R. (R.), at para. 24.

[9] In our view, neither branch of the R. v. R. (R.) test has been met.

[10] This appeal does not raise an issue of significance to the general administration of criminal justice. We do not share the appellant's concern that the SCAC judge's decision improperly lowers the standard to trigger a detention. The SCAC judge, in fact, made no effort to explain why the respondent was detained, undoubtedly because the issue was not contested before her by the appellant, and was expressly conceded by the appellant at trial. In the circumstances, we are of the view that the SCAC judge's decision does not introduce any meaningful change to the legal principles governing investigative detention or raise any other issue of general importance.

[11] Nor has a clear error been demonstrated. Detention was not contested before the SCAC judge. If the respondent was detained, it is not clear that the respondent was advised adequately of the reason for his arrest. When the trial record is examined, the claim that the SCAC judge was clearly wrong in finding that the respondent was not given an adequate opportunity at trial to respond to the reasonable and probable grounds issue is not made out, either.

[12] Since the result of the SCAC judge's determination is that there must be a new trial, the issue of whether there was a breach of any of the respondent's Charter rights will fall to be determined afresh on the evidence and submissions that are then made. Nothing in this decision is to be taken as predetermining any of those issues.

[13] The appellant submits that even if the respondent's s. 10(a) rights were breached, the curative proviso should be employed to uphold his conviction. We disagree. The unchallenged evidence at trial was not "so overwhelming" that the appellant's conviction would have been inevitable: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53.

[14] Leave to appeal is therefore denied.

"Gloria Epstein J.A."

"David M. Paciocco J.A."

"I.V.B. Nordheimer J.A."