CITATION: R. v. SINGH, 2017 ONSC 4819

COURT FILE NO.: SCA 9146

DATE: 2017-08-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. KAREN NIRVANA SINGH

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: A. Warne, Counsel for the Respondent/Crown A. Menchynski, Counsel for the Applicant/Appellant

HEARD: August 8, 2017

ENDORSEMENT

[1] The applicant, Karen Nirvana Singh, was convicted on October 28, 2016 in the Ontario Court of Justice at Kitchener before Justice Allen of one count of refusing to provide a breath sample, contrary to s. 254(2)(b) of the Criminal Code.

[2] On July 12, 2017 the applicant was sentenced to a fine of $1,500, a 12 month driving prohibition, and 18 months’ probation. On or about August 2, 2017, the applicant filed a Notice of Appeal from her conviction. The grounds for the appeal were stated in the Notice of Appeal as follows:

(a) that the trial judge erred in law by relying on utterances the applicant made at the roadside during the time that her right to counsel was suspended;

(b) that the trial judge materially misapprehended the substance of the evidence by finding, contrary to the evidence, that the applicant had no difficulty hearing the trial proceedings, and therefore disbelieving the applicant’s evidence that she did not hear the breath demand; and

(c) that the verdict was unreasonable because there was no evidence that the applicant unequivocally refused to provide a breath sample.

[3] The applicant has applied for an order staying the driving prohibition imposed by Justice Allen on July 12, 2017 pursuant to s. 259 of the Criminal Code pending the determination of the applicant’s appeal against her conviction. The Crown opposes the application.

Test

[4] On the application the burden is on the applicant to show, on a balance of probabilities, that:

(a) the appeal is not frivolous;

(b) that continuation of the driving prohibition pending appeal is not necessary in the public interest; and

(c) that to grant the stay would not detrimentally affect the confidence of the public in the effective enforcement and administration of justice.

(see R. v. Smug 1998 CarswellOnt 4154 (C.A.) at para. 2)

Factors for Consideration

[5] Justice Vallee, in the case of R. v. Wang 2014 CarswellOnt 9516 (S.C.J.), identified, at para. 3, a number of factors which the court may consider on an application of this nature, including:

(a) whether the stay poses a hardship on the applicant;

(b) the applicant’s driving history and record, as they may bear on the issue of public confidence in the administration of justice;

(c) the circumstances of the offence;

(d) the indicia of intoxication; and

(e) any other factors that impinge on the applicant’s conduct.

[6] Justice Vallee observed that the court must consider the cumulative force of all of the factors to determine whether the applicant has discharged his or her burden to show that a stay is justified. Justice Vallee went on to note that the question of whether an appeal is frivolous does not require the applicant to show that the appeal will be successful, however, if the motivation for bringing the appeal is different from achieving success in the appeal or if the appeal has so little chance of success that no one could possibly believe that it would succeed, it will be considered frivolous.

Relevant Factors in the Present Case

[7] Although the applicant, in her affidavit and her viva voce testimony, was able to show that the suspension of her driver’s licence would cause her considerable inconvenience in her work and her non-work related activities, I am not satisfied that it rises to the level of hardship.

[8] The applicant is employed in the Biomedical Division of MedTech Wristbands, a company located in London Ontario, of which her father is the CEO and for which a number of her relatives work. The company has two facilities in London located approximately 2.5 km apart. The applicant is frequently required to move between the facilities to attend meetings for which she would require transportation. Although there is public transportation from her home to close to her place of work, the applicant testified that she often brings equipment and documentation home from work, which would be difficult for her to manage on public transportation.

[9] The applicant also deposed that she requires transportation on a weekly basis to Toronto to attend sitar lessons. She has been playing sitar for approximately two years and she describes it as part of her daily spiritual devotion and prayer. Although she acknowledged that she could travel to Toronto for her lessons by public transportation, she indicated that it would be costly and inconvenient.

[10] The applicant offered no information regarding her income and accordingly no insight into the level of financial hardship that would be associated with travelling by taxi to and from her place of employment when carrying equipment and supplies, to medical and other appointments, or to travel by public transportation to Toronto for sitar lessons.

[11] There is no evidence that the applicant’s continued employment would be in jeopardy by reason of the suspension of her driver’s licence. Indeed, she continued with her employment at MedTech during her suspension following her 2010 conviction for impaired driving referred to below, and subsequently rose to the position of Vice-President in the company. In my view, hardship is not a factor to be considered in this case.

[12] It is noted however that demonstration of hardship is not a precondition to the granting of a stay of a driving prohibition, but rather the existence of hardship may militate in favour of the granting of a stay when viewed in conjunction with all of the relevant circumstances of the case.

[13] It is noted that there was no finding that the applicant was impaired at the time of the incident nor that she was exhibiting any signs of impairment. Indeed, Justice Allen stated during submissions by defence counsel that “nobody’s suggesting she was impaired or intoxicated.” The applicant’s evidence was that she had two small sips of rye, consisting of less than one ounce, approximately six hours before her encounter with police.

[14] The applicant had one previous conviction of impaired driving and failing to remain at the scene of an accident in May 2010. The incident involved damage to an unoccupied parked car. The applicant deposed in her affidavit that, at the time of the 2010 offence, she was struggling with memories of childhood abuse and was in an abusive relationship and had been drinking as a way to cope. After she was charged she began seeing a psychologist and made the decision to cease drinking. More recently she has begun to drink infrequently and in small quantities. She stated that her attitude towards drinking has changed significantly since 2010 and she no longer relies on alcohol as a coping strategy.

[15] Although the applicant’s previous conviction for impaired driving is a factor to be considered in relation to the second prong of the test, its significance, in my view, is reduced by the passage of time without any intervening alcohol-related convictions and by the change in the applicant’s circumstances and her attitude and conduct concerning alcohol consumption since the date of the earlier conviction.

Is the Applicant’s Appeal Frivolous?

[16] In my view the applicant has satisfied the onus on her of showing that her appeal is not frivolous.

[17] As indicated above, one of the grounds of appeal is that the trial judge misapprehended the evidence regarding the applicant’s hearing condition at the time of her detention. She testified that she has a degenerative hearing condition which caused her to fail to hear Officer Shipp’s statement to her that she was legally required to comply with the breath demand. The trial judge rejected her testimony about her difficulty hearing the officer, in part based upon his observations of the applicant in court at the trial stating that “her evidence about her hearing is not borne out by what happened in court today. Only when there were other sounds did she appear to have any difficulty hearing what people said.” The trial judge also found that the applicant made no complaint to police about her ability to hear at the roadside.

[18] The trial judge’s finding that the applicant was able to adequately hear proceedings in court under completely different conditions than at the roadside may arguably constitute a misapprehension of the evidence. Given that one of the elements which the Crown is required to prove beyond a reasonable doubt is that the police made an unequivocal demand for a breath sample, in my view it cannot be said that the appeal has so little chance of success that no one could possibly believe that it would succeed. The arguments of the Crown that the applicant’s evidence about her difficulty in hearing the officer “was an ex post facto fiction woven by the applicant” and that the trial judge’s rejection of her evidence in this respect were based, not only on his trial observations, but also on the applicant’s conduct with the officer, are arguments which may prevail on the hearing of the appeal, but in my view do not demonstrate this ground of appeal to be frivolous as that term is understood in the case law.

[19] Similarly, the ground of appeal that there was an absence of evidence of an unequivocal refusal, is not such that no one could possibly believe it would succeed. Officer Shipp did not taken verbatim notes of the applicant’s responses to breath demands and did not recall verbatim what she said, but rather he recorded information that he used to form his opinion that the applicant was refusing to provide a sample. The applicant’s statement on cross-examination in which she agreed with the proposition that “at the end of the day you did not provide a sample because you felt you didn’t have to,” upon which the Crown relies, is not evidence that she communicated an unequivocal refusal to police, but simply confirmed her agreement that a sample was not provided, which was not in question, and what her subjective reason was for not providing a sample.

Is the Continuation of the Driving Prohibition Necessary in the Public Interest?

[20] As indicated above, although the applicant had a previous conviction for impaired driving in May 2010, its significance is reduced by the passage of time and by the change in the applicant’s circumstances. Since the 2010 conviction she has undergone treatment for mental health difficulties that contributed to her use of alcohol as a coping strategy. She no longer uses alcohol for that purpose and only consumes alcohol occasionally in small quantities. There is no evidence or allegation that the applicant’s ability to drive was impaired or that she was intoxicated at the time of the incident giving rise to the present charge and conviction. There was no personal injury or property damage involved. The applicant is now serving a period of probation that requires her to abstain from consuming alcohol. There is no basis in the evidence to suggest that that she is at risk of breaching this term of her probation. In my view the applicant has discharged the onus of showing that continuation of the driving prohibition pending appeal is not necessary in the public interest.

Would the granting of the stay detrimentally affect the confidence of the public in the effective enforcement and administration of justice?

[21] Similarly, I am also of the view that the applicant has discharged the onus on her of showing that granting the stay would not detrimentally affect the confidence of the public in the effective enforcement and administration of justice. The Crown did not dispute that the applicant met this element of the test in its written response to the application. The circumstances are not such as would attract the interest of the public in relation to the effective enforcement and administration of justice. It must be borne in mind that if the stay is not granted and the applicant’s appeal is successful, she will have been subjected to most, if not all, of the driving prohibition, being the most onerous part of the sentence, while awaiting disposition of her appeal, a possible result which must be considered in connection with the repute of the administration of justice.

Disposition

[22] For the reasons set forth above, the application is granted and it is directed that the Order of Prohibition, imposed by the Hon. Justice Allen on July 12, 2017 pursuant to s. 259 of the Criminal Code, shall be stayed pending the final disposition of the applicant’s appeal or until further order of this court.

D.A. Broad, J.

Date: August 10, 2017