Court of Appeal for Ontario

Date: 2018-12-10

Docket: C63159

Judges: Hourigan, Pardu and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Eric Dewey Appellant

Counsel

Peter Lindsay, for the appellant

Manasvin Goswami, for the respondent

Heard

December 5, 2018

Background

On appeal from the judgment of Justice Ricchetti of the Superior Court of Justice, dated December 5, 2016 with reasons reported at 2016 ONSC 7536, dismissing an appeal from the conviction entered on April 27, 2015 by Justice K. Lenz of the Ontario Court of Justice.

Reasons for Decision

[1] Application for Leave to Appeal

The applicant seeks leave to appeal from an order entered by Justice Ricchetti of the Superior Court of Justice, which dismissed a summary conviction appeal from the conviction of refusal to provide a breath sample.

[2] Facts

The facts may be briefly stated. The applicant was charged in the early evening with impaired driving. Witnesses had reported that he had been driving erratically, hitting the curb repeatedly, and eventually coming to stop on the roadway. The wheels of his car had been damaged by his driving, the tires were flat and the rims were damaged. He was passed out in the driver's seat and the police had difficulty waking him. He was arrested and taken to the breath room at the police station. While in the breath room he continued to show signs of impairment but was awake, responsive and showed a higher level of awareness than he had earlier.

[3] Trial Judgment

After an 11 day trial, the applicant was acquitted of impaired driving and convicted of refusal to provide a breath sample. The trial judge acquitted him on the impaired driving charge on the basis that the evidence as a whole, including the evidence that the combination of prescribed Ativan medication and 1½ glasses of wine, raised a reasonable doubt in relation to the mens rea element of the impaired driving charge.

[4] Conviction on Refusal Charge

The trial judge convicted on the refusal to provide charge on the basis of his finding, based on the evidence including the videotaped statements of the demands and refusals in the breath room, that a proper demand had been made, was understood, and that it was refused by the applicant "of his own volition with a full understanding of what was being requested…".

[5] Grounds of Appeal Before Summary Conviction Appeal Judge

Before the summary conviction appeal judge (SCAJ), the applicant argued that the conviction was unreasonable on the basis that:

(i) the trial judge's acquittal of the applicant on the impaired driving charge was inconsistent with his conviction of the applicant on the refusal to provide a breath sample charge;

(ii) the trial judge had misapprehended the evidence in relation to the applicant's expert's evidence on the effects of alcohol and drugs on the human body; and

(iii) the trial judge had erred in conducting his own research with respect to one aspect of the expert's evidence.

[6] SCAJ Decision

The SCAJ addressed each of these grounds of appeal and gave thorough, cogent reasons for dismissing the appeal. The applicant seeks to raise essentially the same arguments before this court that he made before the SCAJ.

[7] Test for Leave to Appeal

It is well settled, as the applicant recognizes in his factum, that leave to appeal pursuant to s. 839 of the Criminal Code should be granted sparingly and only when some exceptional circumstance justifies a further appeal: R. v. Rowe, 2013 ONCA 311 at para. 4.

[8] Categories for Leave to Appeal

As Doherty J.A., for the court, explained in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, s. 839, leave should only be granted in two distinct categories of cases:

(i) 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 that goes beyond the particular case;

(ii) 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 particular case, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty.

[9] No Error by SCAJ

We see no error on the part of the SCAJ and thus no merit to the proposed appeal. While the SCAJ acknowledged the error on the part of the trial judge in conducting his own research, he found that such research was not material to his essential finding that the applicant had, beyond a reasonable doubt, refused a request to provide a breath sample. This finding was open to the SCAJ on the record before him and does not constitute a clear error of law.

[10] Failure to Meet Test for Leave

To the extent that there is any arguable merit to any of the questions of law raised by the appellant, the proposed appeal does not meet the test for leave as set out in R.R. because it fails to raise any legal issues of significance to the general administration of justice.

[11] Disposition

The application for leave is therefore dismissed.

C.W. Hourigan J.A.

G. Pardu J.A.

Harvison Young J.A.