Court of Appeal for Ontario

Date: 2019-10-04 Docket: M49683

Judges: Rouleau, Trotter and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Keith Bowman Appellant

Counsel

Keith Bowman, in person Brian Snell, duty counsel Andrew Hotke, for the respondent

Heard: October 1, 2019

Appeal Book Endorsement

[1] The moving party seeks leave to appeal. He was convicted of refusing to comply with a breath demand. His appeal to the Superior Court was dismissed. In this court, duty counsel on his behalf argues that the trial judge did not consider whether the moving party's disorientation following the accident and possible concussion raised a reasonable doubt. Although this was not raised before the Superior Court, duty counsel submits that it is in the interest of justice that leave to appeal be granted so that this issue can be addressed in this court.

[2] We disagree.

[3] The trial judge was clearly alive to the moving party's disorientation as it was the basis for her acquittal of the moving party on the impaired driving charge. In our view, there is no basis for concluding that the trial judge overlooked this evidence when later in her reasons she found that the moving party had refused to provide the breath sample. The moving party then argues that one of the police officers lied about his interactions with him at the scene and that this provides a basis for granting leave.

[4] Again, we disagree.

[5] As explained by the Superior Court judge, the alleged lie had no impact on the conviction of refusing to provide a breath sample.

[6] Leave to appeal is denied. With the consent of the Crown, the sentence appeal is allowed in part to strike down the victim surcharge of $400.