Court of Appeal for Ontario

Date: 2018-09-10 Docket: C63366

Judges: Lauwers, Pardu and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Justin Klickermann Appellant

Counsel

Justin Klickermann, acting in person

Hannah Freeman, for the respondent

Heard and released orally: September 4, 2018

On appeal from: the decision of the Summary Convictions Appeal Court dated January 9, 2017 by Justice Michel Z. Charbonneau of the Superior Court of Justice, dismissing the appeal from the conviction entered on December 9, 2015 by Justice Franco Giamberardino of the Ontario Court of Justice.

Reasons for Decision

[1] Mr. Klickermann seeks leave to appeal a summary conviction appeal court decision denying his appeal from a trial decision. His main complaint is that the trial judge relied upon the testimony of one officer to find reasonable grounds for Mr. Klickermann's impaired driving arrest, despite the failure of another officer to note a number of the grounds of impairment testified to by the first officer.

[2] The summary conviction appeal court denied Mr. Klickermann's appeal. The summary conviction appeal judge found that the trial judge recognized the discrepancies between the two officers and was entitled to accept the evidence based on the different vantage points the two officers had.

[3] Mr. Klickermann argues that the summary appeal court judge erred by failing to find the trial judge's decision to be unreasonable and based on a misapprehension of the evidence. He also attempts to raise new grounds of appeal here not raised before the trial court or the summary conviction appeal court, including bolus drinking, and the denial of his Charter motion.

[4] In addition, he brings a fresh evidence application in support of a new claim made for the first time before this court that he did not receive disclosure of the certificate of a qualified breath technician.

[5] We see no basis for granting leave to appeal.

[6] Mr. Klickermann's main grounds of appeal, relating to the decision by the trial judge to believe the testimony of the arresting officer, do not raise arguable points of law that have significance to the administration of justice. Mr. Klickermann is essentially asking this court, as he asked the summary conviction appeal court, to retry the case, which is not the role of an appellate court. The summary conviction appeal court properly recognized that findings of credibility are for the trial judge to make. We see no basis for interfering.

[7] The attempt by Mr. Klickermann to raise new grounds of appeal before this court is improper. There is no foundation before us for finding that these grounds of appeal could not have been raised below with due diligence.

[8] Leave to admit fresh evidence is denied and leave to appeal is denied.

P. Lauwers J.A.

G. Pardu J.A.

David M. Paciocco J.A.