CITATION: Her Majesty the Queen v. Haley Aiken, 2016 ONSC 673
COURT FILE NO.: 14-2123
DATE: 2016/01/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Haley Aiken
Appellant
Kerry McVey for the Respondent
Elena Davies, for the Appellant
HEARD: January 18, 2016
REASONS FOR JUDGMENT
PELLETIER, J.
[1] Reasons for judgment on a motion seeking a Stay of the Order made pursuant to s. 259 (1) of the Criminal Code of Canada on November 27, 2015 prohibiting the Applicant from operating a motor vehicle anywhere in Canada for 12 months.
[2] The Applicant brings the present motion seeking a stay of a driving prohibition pending the appeal of her conviction for having the care or control of a motor vehicle while her ability to operate a motor vehicle was impaired by alcohol. Related charges of refusing to provide a breath sample, mischief and assault are also appealed.
[3] For the purposes of the present motion, the Respondent Crown has focused on the merits of the appeal as they relate to the impaired care or control offense. If the appeal is without merit, the driving prohibition cannot be stayed pending the appeal, rendering the merits of the refusal charge of no moment in the present motion.
[4] This Court has previously ruled that pending the appeal, the driving prohibition causes hardship upon the Applicant having regard to her personal, employment and legal obligations. The Applicant lives in an area west of Ottawa, non-serviced by public transit. She must rely on family members to attend work at a gas station and attend the City of Ottawa to report to her probation officer and perform community service.
[5] The more perplexing issue is whether the appeal is frivolous or whether it has merit. The Court choses to reserve judgment on that issue until a review of the complete trial record and the trial judge’s reasons for judgment could be conducted.
[6] I have been provided with the trial record and have had an opportunity to review the evidence taken, the submissions of counsel and the trial judge’s ruling.
[7] The Crown’s case was premised on the evidence of security personnel at the scene and police officers who later intervened. The Court concluded that the cumulative effect of the observations of the witnesses and to a large extent, the conduct of the Applicant established that the Applicant’s ability to operate a motor vehicle was impaired by alcohol. Counsel for the Applicant at trial made submissions concerning contradictory evidence of certain witnesses, both internally and externally, and placed considerable emphasis on the investigating officer’s decision to resort to an approved screening device test at the scene, arguing that such a measure contradicted the conclusion that the Applicant was visibly impaired.
[8] The trial judge carefully reviewed the entire trial record, addressed the submissions of counsel and concluded that in spite of certain contradictions and the officer’s decision to resort to a screening device test, the Applicant’s ability to operate a motor vehicle was clearly impaired by alcohol.
[9] For the present Application to succeed, there must be merit to the ground put forth that the verdict was unreasonable. I am unable to draw that conclusion. Triable issues were litigated. The evidence was carefully examined. The conclusions were well within the scope of the trial judge’s findings. I would therefore conclude that on the issue of whether the present appeal has merit, the Application to stay the driving prohibition is denied.
Pelletier, J.
Released: January 28, 2016
CITATION: Her Majesty the Queen v. Haley Aiken, 2016 ONSC 673
COURT FILE NO.: 14-2123
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
Haley Aiken
Appellant
REASONS FOR JUDGMENT
Pelletier, J.
Released: January 28, 2016