CITATION: R. v. Kehoe, 2016 ONSC 5870
COURT FILE NO.: CR-16-061-AP
DATE: 2016 Sept 19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DENNIS KEHOE
Appellant
R. Andrew Scott, for the Crown
Self-represented
HEARD: September 14, 2016 at Kingston
Byers, J.
APPEAL DECISION
[1] Mr. Kehoe was convicted in the Ontario Court of Justice, of impaired driving (s. 253(1)(a) of the Criminal Code of Canada) and failing to provide a breath sample (s. 254(5) of the Criminal Code of Canada). He now appeals.
[2] He was represented by counsel at trial, but acted for himself on appeal.
[3] He blames the trial judge, using words like unorganized, unprepared, judicial misconduct, negligence, mishandled, unfair, judicial review, miscarriage of justice, unfair trial.
[4] I see my role as the duty to examine the actual decision made by the trial judge and to make sure that decision was supported by the evidence. That is my only role. I cannot just retry the case and substitute my view for his.
[5] So I see the evidence of Mr. Hartson, the manager of Denny’s restaurant, how he saw Mr. Kehoe, smelling of alcohol, wobble, stumble and how, based on his long experience in the hospitality industry, opined that on a drunk scale, he was a 9 out of 10. He called the police.
[6] And I see the evidence of Constable Groenewegen, how she stopped Mr. Kehoe and saw him almost fall out of his truck, how she smelled a strong odour of alcohol coming from his mouth, how she saw glossy glazed eyes, how he produced his health card as a driver’s licence, how he denied drinking alcohol and became verbally abusive, using slurred speech. She arrested him for impaired driving. At the station, he stumbled, swayed and leaned against the wall. An officer had to catch him from falling.
[7] And Constable Lavigne, the breathalyzer technician, who observed a strong odour of alcohol, slurred speech, glossy eyes, flushed face.
[8] If accepted by the trial judge, all this evidence would support a conviction for impaired driving.
[9] Mr. Kehoe testified and said he was not drinking that day at all and he called witnesses to support that. He said that any smell of alcohol must have come off his clothes from cleaning chemicals he had used.
[10] On the refusal charge, Mr. Kehoe asked me to watch the video taken in the breathalyzer room. So I did, the same video seen by the trial judge.
[11] The video shows Mr. Kehoe apparently attempting to blow into the machine a number of times without success. All as was described by Constable Lavigne in her evidence.
[12] Mr. Kehoe testified he tried his best, but just could not do it. Constable Lavigne opined that he was faking. For what it is worth, it looked to me that Mr. Kehoe was intoxicated. But no matter, the trial judge specifically, with explanation, rejected Mr. Kehoe’s evidence and found that he was drinking alcohol that day, he did drive while impaired and he did intentionally fail to provide a breath sample when it was lawfully demanded.
[13] This all means that, in my view, the conclusions reached by his trial judge were supported by the evidence and therefore, in law, reasonable. Therefore, appeal against conviction is dismissed.
[14] To the extent that the accused appeals against sentence which is not entirely clear, but discussed anyway on this appeal, as I understand it, Mr. Kehoe complains that the fine was raised somewhat because the trial judge considered Mr. Kehoe’s abuse directed at the police be an aggravating factor. It is not clear by how much, if any, the fine was increased on this account, but he was aggressively abusive and the amount of the fines were less than requested by the Crown, within the range, and entitled to deference.
[15] Therefore, appeal against sentence is also dismissed.
Honourable Mr. Justice Richard Byers
Released: September 19, 2016
CITATION: R. v. Kehoe, 2016 ONSC 5870
COURT FILE NO.: CR-16-061-AP
DATE: 2016 Sept 19
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DENNIS KEHOE
Appellant
appeal decision
Byers J.
Released: September 19, 2016