CITATION: R. v. Bannikova, 2016 ONSC 1871
COURT FILE NO.: CR-15-00900
DATE: 20160316
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ALENA BANNIKOVA
Appellant
P. Tait, for the Crown
M. Simrod, for the Applicant
HEARD: March 14, 2016
RULING ON APPLICATION
Gilmore J.:
Overview
[1] This is an application pursuant to s. 262(1) of the Criminal Code, seeking to stay the s. 259 driver’s license prohibition ordered by the trial Judge, pending a summary conviction appeal to this court.
[2] Ms. Bannikova was convicted on February 10, 2016 of Impaired Operation and Fail to Remain after a two day trial. She received an 18 month driving prohibition and fines totalling $1,900. Her counsel advises that transcripts for the appeal have been ordered. Crown and defence agree that the time to obtain the transcripts and prepare, and respond to facta would reasonably be a period of six months.
The Test for a Stay
[3] The Criminal Code does not set out a specific test for a license suspension stay pending appeal. Combined with the broad discretion afforded by s. 261 is a test that has developed analogous to the test for bail pending appeal or sentences pending appeal. The test in drinking and driving cases is set out below;
a. The appeal is not frivolous;
b. The stay will cause hardship to the appellant, and;
c. The appellant will not be a danger to the public if the stay is granted.
[4] It is, of course, Ms. Bannikova’s onus to satisfy the court on a balance of probabilities that she has met the requirements under the test.
Analysis
Does the Appeal have some Arguable Merit?
[5] The threshold for this part of the test is necessarily low and does not require this court to parse the merits of the appeal in any significant detail. This case involved somewhat unusual facts, in that the entire case for the Crown relied upon circumstantial evidence. Ms. Bannikova maintains that she was not driving the vehicle that was found by police on January 21, 2015. The trial judge found that, in consideration the constellation of circumstantial evidence, he was persuaded that Ms. Bannikova was the driver of the vehicle.
[6] The defence submits that trial judge misapplied the rule in Hodge’s Case regarding circumstantial evidence, and failed to properly consider other inferences that could have been drawn from the evidence that would have led to a reasonable doubt.
[7] The Crown argues that this is a fact-based case in which there are no real legal issues and, as such, no grounds for appeal.
Will the Stay Cause Hardship to the Appellant?
[8] The appellant sets out, in her affidavit material, that when she was charged with this offence and subject to the initial 90 day suspension she was living with her parents and had the benefit of their support and transportation assistance.
[9] Her parents then moved to Newmarket. Ms. Bannikova now resides on her own and works as a server at two different restaurants. In the mornings she works at breakfast- style restaurant in Richmond Hill, and in the afternoon/evening she works at a restaurant called “Fuse” on Queen Street East in Toronto. She requires her car for employment purposes. Public transportation is not a viable option as she finishes her second restaurant job late in the evening when public transportation is problematic. She is doing her best to be a contributing member of society. She may lose her employment if she is unable to efficiently travel between her two job locations.
[10] The Crown points out that the appellant does not have dependents, nor is she the household breadwinner. Her hardship arguments should not be given significant weight.
Is the Appellant a Danger to the Public?
[11] The appellant has neither a previous criminal record nor a driving record. She is prepared to operate her vehicle with a zero blood alcohol level at all times and provide a roadside test on demand.
[12] There was never any identification of the appellant as the driver of the vehicle by other witnesses.
[13] There will be a delay of approximately six months before the appeal can be heard, given the necessity of obtaining a transcript of the trial and the preparation and exchange of facta. However, court dates as early as July 2016 are available for the hearing of the appeal.
Analysis and Ruling
[14] The court is presented with a first time offender of our drinking and driving laws. She seeks a concession from the court to allow her to drive pending the hearing of her appeal, which is likely a six month period.
[15] While such stay requests were routinely granted in the past, courts have become more vigilant in exercising their discretion in this regard, requiring better material from counsel and assurances the defence has met their onus with respect to the test which has developed for such requests. In cases such as R. v. Boodram[^1] and R. v. Won[^2], the court has taken time to analyse each of the steps in the test rather than granting the stay in a pro forma manner.
[16] Moving to the first part of the test; as in many cases involving circumstantial evidence, there were gaps in the evidence for which the trial judge was required to draw inferences in coming to his conclusion. Those inferences might have been drawn differently. While it is not my place to express a view on the merits of the appeal, I find that it is not frivolous or devoid of merit. The threshold is a low one given that this court is only required to provide a general opinion on merit without any significant analysis.
[17] With respect to hardship, this part of the test is the most difficult to meet for this appellant. Is it a hardship for a single self-supporting person to have to take public transit to work even at non-peak hours? Possibly not. However, the appellant need only prove hardship on a balance of probabilities. The threshold is such that there is some likelihood that having to drive between Richmond Hill and downtown Toronto twice a day, when one finishes work late at night, is a form of hardship. Needless to say, if this were the only test to be met by the appellant she would likely not succeed, but like most legal tests the components are interrelated and a weakness in one part may be made up by the strength of other parts.
[18] In drinking and driving cases, the most important consideration is whether the appellant would be a danger to the public if a stay were granted. I note that in the Boodram[^3] case the stay application was dismissed. It is important to note that in that case the appellant was a second time offender. In the case at bar, the appellant has no prior criminal or driving record.
[19] As well, one of the grounds of appeal was a concern that the trial judge failed to properly assess all the circumstantial evidence, including the factors mitigating against the appellant being the driver. That is, the appeal in large part centres on the appellant not drinking and driving at all. Other factors to consider include the fact that no one was injured.
[20] Finally, the appellant’s blood alcohol level at 170 milligrams of blood alcohol is certainly disconcerting. However, her agreement to be bound by a condition not to drive with any alcohol in her blood pending appeal provides some significant assurance with respect to public safety.
[21] Given all of the above, the application is granted. A condition of the stay is that the appellant shall have zero blood alcohol in her blood at all times when driving, and will provide a roadside test on demand.
Justice C. Gilmore
Released: March 16, 2016
CITATION: R. v. Bannikova, 2016 ONSC 1871
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
Alena Bannikova
Appellant
ruling on application
Justice C. Gilmore
Released: March 16, 2016
[^1]: 2015 ONSC 3821. [^2]: 2012 ONSC 775. [^3]: Supra.