ONTARIO

SUPERIOR COURT OF JUSTICE

(Appeal from Honourable Justice J.A. Fontana)

COURT FILE NO.: 09-50484
DATE: 2012-06-21

BETWEEN:

HER MAJESTY THE QUEEN – and – MISHA POPOFF Defendant/ Appellant

Riad Tallim, for the Crown, respondent
Howard Krongold, for the defendant/appellant

HEARD: June 20, 2012

On appeal from the judgement of Justice J.A. Fonatana of the Ontario Court of Justice dated September 16, 2011

T.D. Ray, J

[1] The defendant appeals his conviction dated September 16, 2011, by the Honourable Justice Fontana at Ottawa, following a two day trial, on a charge of refusing to provide a breath sample contrary to s. 255(1) CCC.

[2] The grounds for the defendant’s appeal are that the trial judge erred in dismissing his Charter application alleging breaches of s. 10(b); and that the trial judge erred in finding that the defendant had refused to provide a breath sample.

[3] The appeal centres on exchanges between the defendant and the arresting officer between approximately 2.45 am and 3.15 am on May 28, 2010, after they had both arrived at the cellblock at the Ottawa Police Station. In response to Cst. Oger’s appropriate cautions (none of which are in dispute and which included information of a 1-800 number for legal aid), the defendant selected a lawyer from the list provided, the call was placed and a message left. After some 14 minutes with no call back, the defendant was told there had been no call back; and the defendant gave Cst. Oger a second lawyer’s name. The call was placed and a message left (by this time it was around 2.51 am). After a further 14 minutes,(at 3.05 am), Cst. Oger told the defendant there had been no call back and asked if he wanted another lawyer. The defendant replied no – that he wanted one of the lawyers that he had named. Cst. Oger then asked the defendant if he would give a sample. According to Cst. Oger’s notes, the defendant responded, “ I don’t want to obstruct just”(sic), and then when asked again “No, Yes, I don’t want to obstruct justice”. The conversation ended at 3.13 am. At 3.15 am, Cst. Oger arrested the defendant for refusing to blow, then asked him again if he would give a sample – and the defendant replied “ no ”. Both Cst Oger and the defendant conducted themselves appropriately throughout.

[4] The standard of review requires that an appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result. [1] The application of a legal standard to the facts of a case is a question of law and is subject to review for correctness. [2] The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion. [3]

[5] The evidence before the trial judge included that of the arresting officer, Ottawa Police Cst. Oger, and the defendant.

[6] The trial judge convicted the defendant of refusing to provide a breath sample, and rejected his s. 10(b) Charter application that the defendant had been effectively denied his counsel of choice by failing to wait sufficient time for the call backs from the two lawyers.

[7] The trial judge, in brief reasons, held that the defendant’s response of “No, yes, I do not want to obstruct justice” was doublespeak and “ That was followed up by the de facto refusal to provide the sample”. His reasons then go on to deal with the Charter application. Regrettably the trial judge makes no reference to the evidence or his findings in support of his finding of a “ de facto refusal ”. It’s possible he had in mind the defendant’s explicit refusal after he was charged since that appears to be the only other evidence of interaction between Cst. Oger and the defendant. However, we only have his reasons; and there is no indication of what weight or analysis he conducted insofar as this post charge evidence is concerned – if indeed he considered it relevant. [4] The trial judge then indicated “ Provision of the sample by the accused cannot be conditional upon some requirement mandated by the accused unless the condition is also mandated by law.” That may be an inference he drew from the defendant’s responses to Cst. Oger. If so, it is not clear, particularly when he characterized the defendant’s response as doublespeak.

[8] On the evidence, and quite aside from the post charge evidence, I cannot see the basis for an inference of an unequivocal refusal by the defendant, which is necessary for a conviction. [5] For these reasons the conviction cannot stand.

[9] The conviction is set aside and a new trial ordered in front of a different judge.

Honourable Justice Timothy Ray

Released: June 21, 2012

COURT FILE NO.: 09-50484
DATE: 2012-06-21

ONTARIO SUPERIOR COURT OF JUSTICE (Appeal from the Honourable Justice J.A. Fontana) HER MAJESTY THE QUEEN – and – MISHA POPOFF Defendant/ Appellant REASONS FOR Decision Honourable Justice Timothy Ray

Released: June 21, 2012

[^1]: Housen v.Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235.

[^2]: R v Shepherd 2009 SCC 35 , 2009 S.C.C 35, para 20 .

[^3]: R v Burns , 1994 , [1994] S.C.J. No. 30 (SCC); R v. Morrissey , (1995), 97 C.C.C. (3d) 193 (Ont. C.A.).

[^4]: R v. R.E.M . 2008 SCC 51 , [2008] 235 C.C.C. (3d) 290 @ para 55 (S.C.C.)

[^5]: R v Nanji, [2005] O.J. No. 1976 @ para 12, affmd [2006] O.J. No. 943 (ONCA)