Court of Appeal for Ontario

Date: 2019-06-17 Docket: C65001 Judges: Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Daniel Ballantine Appellant

Counsel

For the Appellant: Julianna A. Greenspan and Brad Greenshields

For the Respondent: Sean Horgan

Heard: June 7, 2019

On Appeal

On appeal from the convictions entered by Justice Jonathan Bliss of the Ontario Court of Justice on October 2, 2017, and from the sentence imposed on February 20, 2018.

Reasons for Decision

[1] The appellant, Daniel Ballantine, appeals his conviction of two counts of impaired operation of a vessel causing bodily harm, contrary to s. 255(2) of the Criminal Code. He also seeks leave to appeal the sentence imposed.

[2] The convictions arose out of a boating accident on September 6, 2014. After drinking beer and wine throughout the day and into the evening, the appellant took control of a boat travelling 25-30 mph, in unfamiliar waters, at a time when it was getting dark. He failed to follow directions and, about a minute after taking control of the boat, he turned the boat on a sharp angle up over the rocky shore of an island directly into a tree. Two of the boat's passengers, Katelyn Hopkins and Kim Makey-Dobson, were ejected from the boat and sustained injuries as a result.

[3] The incident occurred at about 9:00 p.m. Constable Eriksson was the first officer on the scene, arriving at 9:51 p.m. By 10:00 p.m., he had formed the grounds to arrest the appellant for impaired operation of a vessel. He arrested the appellant and read him a breath demand.

[4] The appellant was transported to the Orillia OPP detachment, where he provided two samples of his breath to a qualified breath technician, at 11:35 and 11:57 p.m. His blood alcohol concentration ("BAC") at those times was 82 and 75 mg/100 ml, respectively. Dr. Darryl Mayers, a forensic toxicologist called as an expert witness by the Crown, used the lower of the two results to perform a retrograde extrapolation of the appellant's BAC at the time of the incident. Based on a number of assumptions, he projected that the appellant's BAC at 8:30 p.m. to 8:45 p.m. was between 80 and 140 mg of alcohol in 100 ml of blood. His opinion was that a person would be impaired at this blood alcohol level; indeed, in his opinion, individuals who have blood alcohol levels of 50 mg/100 ml and greater have an aspect of their ability to operate a motor vehicle impaired. However, he was clear that absent individual testing of the appellant's reaction to alcohol, he could not specifically say that the appellant was impaired.

[5] The appellant was sentenced to 18 months' imprisonment, 12 months' probation, and a two-year driving prohibition. Restitution, non-contact and victim surcharge orders were also imposed.

The Conviction Appeal

[6] The appellant raises three grounds of appeal against his convictions:

1. The convictions were unreasonable because they were not supported by evidence of impairment;

2. Constable Eriksson did not have reasonable and probable grounds to arrest the appellant for impaired operation; and

3. Constable Eriksson did not have reasonable and probable grounds to make a s. 254(3) breathalyzer demand.

[7] The appellant abandoned his argument that the evidence did not support a finding that Katelyn Hopkins's injuries amounted to "bodily harm" as defined by s. 2 of the Criminal Code and/or were caused by the boating accident.

1. Reasonableness of the Convictions

[8] The appellant argues that his conduct could be reasonably explained by his unfamiliarity with the vessel and the channels around the island, darkness, and simple driver error. He submits that, stripping away what he characterizes as his inconclusive conduct, all that was left was the BAC extrapolation, which, alone, was not probative of impairment: Dr. Mayers conceded that he could not definitively opine on the appellant's impairment at the relevant time without individual testing. Accordingly, the appellant's convictions were unreasonable.

[9] We reject this argument.

[10] The trial judge explained why he was satisfied beyond a reasonable doubt that the appellant's ability to operate the vessel was impaired by his consumption of alcohol:

Considering all of the circumstances, was [the appellant's] conduct, viewed objectively, consistent only with impairment and inconsistent with some other explanation. (R. v. Andrea, 2004 NSCA 130, [2004] N.S.J. No. 399 (C.A.)). I find that it was. He had been drinking throughout the day. Whatever boat was being operated, he kept asking to drive. When he had asked during the boat cruise, he was told "no". That was at a time when he had consumed less alcohol, the sun was out and visibility was not an issue. When they returned after dropping the Hills off, it was getting dark. He was unfamiliar with the waters. He testified that he had a boaters' licence and a boat at the time. He admitted in his testimony that he knew he should not be driving by himself and yet he was. He was directed to turn slightly to the right. It was not simply the unfamiliarity and the light conditions but the amount of alcohol he had consumed which I find led him to inexplicably turn the steering wheel sharply to the right instead of slightly. [The appellant's] consumption of alcohol affected his ability to perceive and respond to direction from Mr. Hopkins as well to respond to the red and green warning markers at Buckskin Island to indicate what route to take or more importantly what route to avoid. Dr. Mayers' retrograde extrapolation suggests the possibility that [the appellant] was impaired by alcohol at the time. [The appellant's] conduct, and the evidence I have heard, proves beyond a reasonable doubt that his ability to operate the vessel was impaired by his consumption of alcohol.

[11] The trial judge's conclusion did not rest on Dr. Mayers' opinion. Earlier in his reasons, the trial judge noted that absent individual testing, Dr. Mayers could only say that it is possible that the appellant was impaired. In concluding that the appellant's ability to operate the vessel was impaired by his consumption of alcohol, all the trial judge noted was that Dr. Mayers' retrograde extrapolation suggests the possibility that the appellant was impaired by alcohol at that time.

[12] The trial judge's conclusion was based on the totality of the evidence, including the evidence of the appellant's alcohol consumption. Viewed in isolation, a particular element of the appellant's conduct may not have been consistent only with impairment and might have been consistent with some other explanation. But the trial judge's conclusion was properly based on all of the circumstances. He considered all of the appellant's conduct. The appellant's convictions were reasonable.

2. Reasonable and Probable Grounds for Arrest

[13] The appellant argues that Constable Eriksson's subjective belief that there were reasonable and probable grounds for arrest was rendered objectively unreasonable because he failed to conduct any investigation into the circumstances leading to the accident before he arrested the appellant. In the appellant's view, the trial judge simply reasoned backwards from the fact of the accident, resulting in injured parties, to impairment.

[14] We reject this argument.

[15] Before arresting the appellant, Constable Eriksson observed the scene of the accident and spoke with Kim Makey-Dobson, who identified the appellant as the operator of the boat, and the appellant, who admitted he had consumed alcohol. The trial judge explained:

Cst. Eriksson had before him an individual identified as the operator of a boat that had somehow managed to crash into an island with sufficient force to cause two passengers to be ejected, who admitted to having consumed alcohol, and had an odour of alcohol coming from his breath. While [the appellant's] red or glossy eyes and his unsteadiness in the context of a recent accident and the natural terrain might not in and of themselves be sufficient to indicate impairment, the assessment of the objective reasonableness of the officer's grounds is not an exercise in parsing off indicia, but one of considering all of the circumstances that the officer was presented with. Cst. Eriksson's grounds to make the arrest were both subjectively reasonable, and in the context of the totality of the circumstances, objectively reasonable.

[16] There is no basis to interfere with the trial judge's conclusion.

3. Reasonable and Probable Grounds for the Breathalyzer Demand

[17] The appellant raises a Charter argument that he did not make before the trial judge. He argues that the trial judge erred in concluding that Constable Eriksson had reasonable and probable grounds to make a s. 254(3) breathalyzer demand because the Crown failed to elicit any evidence from Constable Eriksson that he formed the subjective belief that the offence was committed within the previous three hours, or that he even turned his mind to this statutory element.

[18] Generally, this court will not permit an issue to be raised for the first time on appeal. The burden is on the appellant to satisfy the court that it should exercise its discretion to permit the argument to be advanced: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 37-44.

[19] The appellant has not discharged that onus in this case. Society has an interest in the finality of litigation in criminal matters. It expects that criminal cases will be disposed of fairly and fully at first instance. Defence counsel has a responsibility to advance all appropriate arguments throughout the trial: Reid, at para. 40.

[20] As the appellant argues, to rebut the presumption of unreasonableness of the warrantless search and seizure of a s. 254(3) breath demand, the Crown must establish that the peace officer believed that the offence was committed within the three hours preceding the making of the demand. Because the appellant did not assert that Constable Eriksson did not have reasonable and probable grounds to make a s. 254(3) breathalyzer demand before or at trial, the Crown did not have the opportunity to respond to and adduce evidence on this issue at trial. It would be prejudiced by the determination of this issue on the existing evidentiary record.

The Sentence Appeal

[21] The appellant argues that the trial judge erred in principle by failing to specifically advert to and consider the fundamental principle of proportionality in the sentencing process, enshrined in s. 718.1 of the Criminal Code. As a result, the appellant submits, the trial judge placed undue emphasis on denunciation and deterrence and insufficient weight on the circumstances of the offender who was of good character, was 46 years old at the time of sentencing, and had never before been charged with an offence. He argues that an appropriate sentence was three to six months' imprisonment.

[22] He also submits that, in accordance with R. v. Boudreault, 2018 SCC 58, 369 C.C.C. (3d) 358, the victim surcharge order should be quashed.

[23] Leave to appeal sentence is granted, and the victim surcharge order is quashed. However, there is no basis for this court to otherwise interfere with the sentence imposed. As the appellant concedes, the sentence imposed is within the normal range for impaired driving causing bodily harm. The trial judge considered the circumstances of the appellant and the various mitigating factors the appellant adverts to. He was alive to the tension between the appellant's otherwise exemplary life and the need for substantial sentences to be imposed for impaired operation of a vessel offences.

Disposition

[24] Accordingly, the appeal against conviction is dismissed. Leave to appeal sentence is granted and the victim surcharge order is quashed. The sentence imposed is otherwise unaltered.

"Alexandra Hoy A.C.J.O."

"C.W. Hourigan J.A."

"David M. Paciocco J.A."