ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1152
DATE: 2014-04-04
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Joseph Rienguette
Appellant
Philip Zylberberg, for the respondent
P. Berk Keaney, for the appellant
HEARD: April 2, 2014
Ruling on Application for Bail Pending Appeal
Del Frate J.:
[1] The appellant seeks an order for bail and the staying of the driving prohibition pending the appeal of a conviction of having care and control of a motor vehicle with more than 80 mg of alcohol in his blood contrary to s. 253(1)(b) of the Criminal Code of Canada (“Criminal Code”) imposed by Justice Fitzgerald on December 13, 2013.
[2] The appellant alleges that Justice Fitzgerald made four errors of law being the following:
a. He found that there was no breach of s. 10(b) of the Canadian Charter of Rights and Freedoms in finding that there was not a reasonable opportunity to consult counsel at the roadside;
b. He erred in finding that the breath tests were taken as soon as practicable;
c. He erred in finding that the failure of the breath technician to follow manufacturer’s direction and training did not or could not affect the reliability of the breath tests;
d. He erred in failing to consider the evidence led with regard to the recent Supreme Court of Canada decision of R. v. St-Onge Lamoureux, [2012] S.C.C. 57.
[3] In determining whether to grant release pending determination of the appeal, s. 679(3) of the Criminal Code enunciates that the applicant must establish the following:
i. That the appeal is not frivolous;
ii. That the applicant will surrender himself into custody in accordance with the terms of any release order; and
iii. That the applicant’s detention is not necessary in the public interest. (See R. v. Di Guiseppe, [2008] ONCA 223 at para. 10.)
[4] In this case the issue is whether the appeal is frivolous.
[5] In my view, some of the grounds may be “weak”, however, they are arguable. The appellant does not have to demonstrate success but only “arguable issues”. (See Di Guiseppe, supra at para. 17.) The onus has been met and in particular, with the ground of how to interpret St-Onge Lamoureux in this particular case.
[6] Accordingly, the applicant should be released pending the determination of the appeal on the same terms and conditions as outlined in his prior recognizance.
[7] In view of the dated history of this matter, timelines are set for an expeditious hearing of the appeal. The defence factum is to be filed within 30 days of receipt of the transcripts. The Crown’s reply is to be filed within 30 days thereafter and the matter is to be spoken to at the next assignment court following the filing of the facta.
[8] Lastly, the appellant is to attend personally at the hearing.
[9] In view of my Ruling, the driving prohibition is stayed pending the hearing of the appeal.
[10] Order to issue as per Reasons.
The Honourable Mr. Justice R.G.S. Del Frate
Released: April 4, 2014
COURT FILE NO.: 1152
DATE: 2014-04-04
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Joseph Rienguette
Appellant
Ruling on Application for Bail Pending Appeal
Del Frate J.
Released: April 4, 2014