ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-800
DATE: 2012/06/ 05

B E T W E E N:

HER MAJESTY THE QUEEN

Sam Humphrey, for the Respondent Her Majesty the Queen

Respondent

• and -

WAYNE KUTSCHKE

Martin Montes, for the Applicant

Appellant

HEARD: June 1, 2012

DECISION

McNamara J.

[ 1 ] On this application the applicant seeks an order extending the time for service and filing of a Notice of Appeal of his conviction before the Honourable Justice R. Selkirk of the Ontario Court of Justice on January 20, 2012 of operating a motor vehicle with a blood alcohol level in excess of 80 mg contrary to Section 253(1) (b) of the Criminal Code of Canada . There is also a companion application seeking the stay of the order of driving prohibition.

[ 2 ] There are several key dates. As indicated the applicant was convicted on January 20, 2012. On March 20, 2012 a paralegal at the applicant’s counsel’s office wrote the Crown’s office requesting a copy of any CPIC record and advising it was required for an appeal. The Notice of Appeal was served and filed on May 15, 2012.

[ 3 ] It is common ground that Section 40.05(1)(a) of the Criminal Proceeding Rules for the Superior Court of Justice provides as follows:

40.05 (1) An appellant shall serve and file the notice of appeal,

( a ) where the appeal is from a conviction or sentence or both, within 30 days after the day on which the sentence was imposed; or,

[ 4 ] Both counsel agree that the issue of whether an extension of time should be granted is governed by the decision of the Ontario Court of Appeal in R. v. Menear 2002 (ON CA) , [2002] O.J. No. 244.

[ 5 ] In that case the court indicated at paragraph 20 as follows:

“There is no absolute rule to be applied in the exercise of the discretion whether or not to grant an extension of time. The court will, however, usually consider the following three factors:

(i) whether the applicant has shown a bona fide intention to appeal within the appeal period;

(ii) whether the applicant has accounted for or explained the delay; and

(iii) whether there is merit to the proposed appeal.”

[ 6 ] Dealing with the first factor I am not persuaded that there is sufficient, if any, evidence that demonstrates the applicant had a bona fide intention to appeal before the appeal period expired. The affidavit of the applicant does not deal with the issue. There is an affidavit from a student at law in defence counsel’s firm which indicates their office was first retained on March 5 th , 2012, and that he has been advised by the applicant that the applicant had been struggling financially and was not in a position to provide a retainer until March 5, 2012. I am not persuaded that that is evidence showing a bona fide intention by the applicant to appeal within the appeal period.

[ 7 ] Turning to the second factor, again I am not satisfied the applicant has accounted for or explained the long delay. The law student’s affidavit indicates defence counsel wanted to review trial transcripts so he could provide a meaningful opinion on the merits of the appeal before proceeding with it. Even if that somehow prevents the filing of a simple notice of appeal, transcripts were received in their offices on March 30, 2012. The Notice of Appeal was served and filed on May 15, 2012. The student’s affidavit indicates two associates left the firm in and around this time frame and that the firm was short handed. That doesn’t, in my view, adequately explain the failure to file a three page Notice of Appeal for a month and a half. That is particularly so as applicant’s counsel at trial and on this application didn’t leave the firm.

[ 8 ] I now turn to the third factor, whether there is merit to the proposed appeal. This is the main consideration and requires that the applicant demonstrate that justice requires that an extension of time be granted. In my view the applicant has not met that onus.

[ 9 ] The primary argument by the defence at trial was that the applicant’s Section 8 Charter Rights were breached, and that the intoxilyzer breath samples should be excluded under Section 24(2) of the Charter. Specifically, the Section 8 application dealt with the issue of mouth alcohol and the use of an approved screening device (ASD), and whether the police officer had reason to believe that there was alcohol in the applicant’s mouth at the time of the ASD test due to recent consumption. It is understood amongst law enforcement officers that if a driver has consumed alcohol within 15 minutes prior to the administration of an ASD test, the results may be unreliable due to the presence of residual mouth alcohol.

[ 10 ] The defence called two witnesses, the accused and a passenger, his son-in-law. Both gave evidence that the officer questioned the applicant on when he had his last beer and the applicant responded by saying he had it 10 to 15 minutes prior to being stopped. The officer indicated in his evidence that he was alive to this issue, and that is why he asked about the most recent consumption. The applicant told him he had his last drink 30 minutes prior to being stopped, and he wrote that in his notebook. In another part of his notes the officer did write that the applicant advised him at the roadside that he had his last alcoholic beverage 15 minutes prior and his case file synopsis also refers to 15 minutes. The officer gave evidence with relation to this discrepancy. He stated he was simply mistaken in these two later notations, and that the 30 minute entry was correct because it was the one made at the roadside when the specific question was asked.

[ 11 ] The applicant argues the trial judge did not consider this discrepancy in making his credibility findings. I disagree. At page 24 of his decision Selkirk J indicates as follows:

“The officer made notes at the scene, he caught the verbatim utterance from Mr. Kutschke and that was that his last consumption of alcohol was one half hour ago. I appreciate that there is a reference to 15 minutes later in his notes and in his synopsis. In my view, that was adequately explained by the officer.

“Two points on that as well, if in either scenario, if one half hour was accurate which I believe is, or if 15 minutes was accurate, in either event the officer was reasonably acting on the result as both are outside the limited mouth alcohol parameters. However, as indicated, I accept the officer’s evidence that he recorded Mr. Kutschke’s evidence verbatim at the scene and that it was one half hour.”

[ 12 ] His reasons are clear, there is evidence to support them and they make complete sense.

[ 13 ] The applicant also argued that Selkirk J erred in rejecting the defence evidence because he misapprehended that evidence. In his detailed reasons the following appears:

“The real issue is whether that subjective belief is objectively reasonable and as pointed out by the defence this involves a credibility assessment. The evidence of the accused and Mr. Hebert if accepted would establish that the officer knew of the risk of mouth alcohol and proceeded anyway. If on the other hand, if that evidence is rejected, then objective grounds do exist on the officer’s evidence.

I will indicate at this point in time that I reject the accused’ and Mr. Hebert’s evidence. They are not credible. Both the accused and Mr. Hebert had been drinking, neither made any notes, neither wore watches and altered their evidence with respect to times, it was approximate. Perhaps more specifically, the drive from the accused’s mother’s house was described as being two or three kilometers, that is consistent with the map filed. I accept that.

“At various times the defence evidence was that this drive took a period of five minutes or it took ten minutes or it took ten to fifteen minutes. In my view, there is no possible way that if the accused, as he testified, left immediately upon consuming his last sip of beer, that it could take ten to fifteen minutes to drive at two or three kilometers. It would be five minutes or less and if it was five minutes or less, there is no way that Mr. Kutschke would tell the officer that it was ten to fifteen minutes from his last consumption.”

[ 14 ] It is clear from reading the reasons as a whole and the trial transcript that the learned trial judge rejected the defence evidence for cogent reasons and there is evidence to support those reasons.

[ 15 ] It is well settled law that the credibility findings made by a trial judge are entitled to great deference on appellate review. The matter was well stated by the court of Appeal in R. v. G.W. 1996 (ON CA) , [1996] O.J. No. 3075 where at paragraphs 18 and 19 the following appears:

18 Where the reasonableness of the verdict is in issue, the appeal judge must re-examine, and to some extent re-weigh and consider the effect of the evidence. The reviewing court should show "great deference" to the trial judge's findings of credibility. It is, however, open to the appeal judge to conclude that a verdict based on credibility findings is unreasonable if the appeal judge takes into account the fact that the trial judge had the advantage of seeing and hearing the witnesses give evidence. However, where the verdict essentially turns on credibility findings, the appeal judge's power to interfere should be exercised sparingly. See R. v. W.(R.), 1992 , [1992] 2 S.C.R. 122 ; R. v. Burke, supra. The appeal judge must not try the case de novo or simply substitute her views for those of the trial judge.

19 In the context of a summary conviction appeal, this court, in R. v. Grosse, put it this way:

• Under ss. 686(1)(a)(i) and 822(1) of the Code the jurisdiction of the summary conviction appeal court judge to review the finding as to sufficiency of the evidence was limited. He was not entitled to retry the case but to determine whether the verdict was unreasonable: see R. v. Colbeck (1978), 42 C.C.C. (2d) 117 at 118 (Ont. C.A.) . This required the appeal court judge to determine whether the trial judge could reasonably have reached the conclusion that the accused was guilty beyond a reasonable doubt: see R. v. W. (R.) (1992), 74 C.C.C. (3d) 134 at 141 (S.C.C.) .

[ 16 ] There is nothing on the record before me that indicates the credibility findings of Selkirk J were unreasonable, and thus the appeal has no merit.

[ 17 ] The applicant has not satisfied any of the standard pre-requisites for granting an extension of time and the application is dismissed. So too, is the application for a stay.

Mr. Justice James McNamara

DATE RELEASED: June 5, 2012

COURT FILE NO.: 11-800

DATE: 2012/06/04

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – WAYNE KUTSCHKE Appellant DECISION Mr. Justice James McNamara

DATE RELEASED: June 5, 2012