R. v. Jean-Robert Gedeon, 2015 ONSC 3120
COURT FILE NO.: CR-14-30000106-00AP
DATE: 20150515
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JEAN-ROBERT GEDEON
Appellant
Kim Walker, for the Respondent
Stephen Whitzman, for the Appellant
HEARD: April 16, 2015
B. P. O’Marra, J
REASONS FOR JUDGMENT
[ON appeal from the judgement of JUSTICE D. G. HACKETT of the ontario court of justice dated AUGUST 15, 2014]
[1] The appellant was convicted after a two-day trial of refusing to comply with a demand that he provide a suitable sample of his breath for analysis by an approved screening device (ASD) contrary to s. 254(2) of the Criminal Code of Canada. He was represented at trial by Mr. Bruce Daley, a very experienced and able counsel.
[2] This appeal is based on an issue that was not raised in evidence or submissions at trial. The appellant now claims that the arresting officer misstated the legal consequences of failing the ASD. Based on that he submits that he was not legally bound to comply with the demand. In the alternative he submits he had a reasonable excuse under s. 254(5) of the Criminal Code of Canada for non-compliance with the demand.
[3] The arresting officer and the accused testified at trial. There were no questions or answers related to an alleged misstatement of the consequences of failing the ASD. There is no reference in the submissions of Crown or defence at trial to that issue. Ironically the only reference at trial was in the course of the detailed reasons for judgment at p. 80. In reviewing the evidence of the arresting officer Justice Hackett indicated the following:
In addition, he was extremely thorough with respect to the consequences about failing to provide an adequate sample and verified that the accused understood.
[4] Generally speaking, appeal courts will not entertain arguments not made at trial. An appellate court does, however, have the discretion to permit new arguments. In exercising that discretion, the appellate court must be satisfied that the new issue raised on appeal can be fully, effectively and fairly addressed on appeal even though it was not raised at trial. It will be rare for an appellate court to hear a new argument based on an evidentiary record laid out for the first time in the court of appeal. See R. v. Roach, 2009 ONCA 156 at paras. 6 and 7, Kaiman v. Graham 2009 ONCA 77, [2009] O.J. No. 324 at paras. 18-19 (Ont. C.A.), R. v. Seo 1986 CanLII 109 (ON CA), [1986] O.J. No. 178 (Ont. C.A.)
[5] The trial record is devoid of any evidentiary or legal basis for the ground of appeal now advanced. This is not one of those rare instances where an issue can or should be dealt with for the first time on appeal.
RESULT
[6] The appeal is dismissed.
Mr. Justice B. P. O’Marra
Released: May 15, 2015
CITATION: R. v. Jean-Robert Gedeon, 2015 ONSC 3120
COURT FILE NO.: CR-14-30000106-00AP
DATE: 20150515
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
JEAN-ROBERT GEDEON
Appellant
REASONS FOR JUDGMENT
Mr. Justice B. P. O’Marra
Released: May 15, 2015