Court File and Parties

COURT FILE NO.: 15-0420 DATE: 2018 10 09

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Peter Leger, for the Crown Respondent

- and -

DANIEL RAYMOND LAVIGNE Howard Cohen, for the Appellant Appellant

HEARD: August 30, 2018

SUMMARY CONVICTION APPEAL JUDGMENT

(on Appeal from the verdict of Justice N.S. Douglas of the Ontario Court of Justice dated October 28, 2015)

Trimble J.

The Appeal:

[1] The Appellant, Mr. Lavigne, appeals from both conviction and sentence.

[2] On 28 October, 2015, The Honourable N. S. Douglas of the Ontario Court of Justice convicted Mr. Lavigne of failing to provide a breath sample, and on 3 December, 2015, sentenced him to 60 days incarceration, imposed a driving prohibition for 3 years, and gave Mr. Lavigne 6 months to pay the victim surcharge.

The Result:

[3] For the reasons that follow, the appeal is dismissed.

The Facts:

[4] Constable Grant was stopped outside a bar in Guelph in the small hours of 31 January, 2014. He noticed a car with an expired licence sticker in the parking lot. He waited for the driver to move the car. Mr. Lavigne left the bar, entered the car, and drove away. Constable Grant stopped Mr. Lavigne at 1:21 a.m. for driving with an expired licence sticker. There was no issue with his driving.

[5] When Mr. Lavigne lowered his window to speak to Constable Grant, Constable Grant noticed the odour of alcohol and noted other signs that suggested that Mr. Lavigne was intoxicated. Mr. Lavigne said that he only had 2 or 3 beers, the last one about an hour before leaving the bar. There were no weapons and no sign of a threat.

[6] After he received Mr. Lavigne’s licence and registration, Constable Grant left Mr. Lavigne in his own car and returned to his cruiser and ran a check on Mr. Lavigne. Finding no priors and no record suggesting a safety concern, Constable Grant returned to Mr. Lavigne’s car and asked him to accompany Constable Grant to the cruiser. At the cruiser, at 1:29 a.m., Constable Grant demanded a breath sample. Mr. Lavigne refused.

The Trial:

[7] The Trial lasted one day, hearing from Constable Grant, Constable Hern, and Andree Levac, Mr. Lavigne’s domestic partner and the owner of the car he drove on 31 January, 2014. Fifty-four of the sixty-four pages of transcript was devoted to the evidence of Constable Grant.

[8] Douglas, J. found that the demand for a breath sample was justified and valid, and the delay was short. He found Mr. Lavigne guilty of failing to provide a breath sample under s. 254(2)(b) of the Criminal Code. Mr. Lavigne argued there, as he does here, that the 8-minute delay between forming the reasonable suspicion that Mr. Lavigne was intoxicated and demanding the breath sample, did not meet s. 254(2)(b)'s requirement that such demand be made "forthwith". Douglas, J. held that the delay was likely less than 8 minutes, but applied 8 minutes as it was the most favourable time for Mr. Lavigne. In the circumstances, the delay was appropriate. It was after 1:21 a.m. Mr. Lavigne had emerged from a bar. He was driving a car owned and plated to someone else. Constable Grant had the right to know with whom he was dealing, including whether the driver might be violent or a fugitive. Constable Grant used a short delay to search Mr. Lavigne.

Appeal from Conviction:

The Issue:

[9] Was the demand for a breath sample made “forthwith” after Constable Grant formed the reasonable suspicion that Mr. Grant was driving with alcohol in his system.

The Standard of Review:

[10] On a summary conviction appeal, the standard is one of deference. An appeal should only be allowed where the decision is not supported by the evidence, is based on a misapprehension of the evidence, is clearly wrong in law, clearly unreasonable, or there was a miscarriage of justice (see R. v. Rivera, 2011 ONCA 225, [2011] O.J. No. 1233 (Ont. C.A.), at para. 32, and R. v. Boily, 2015 ONSC 4427 at paras. 27 to 28).

[11] With respect to the evidence, findings made by the trial judge will attract deference. In order to interfere with a finding of fact requires the Appellant to overcome a stringent standard. The trial judge must have failed to consider relevant evidence to a material issue, erred in the substance of the evidence, or failed to give proper effect to the evidence (see R. v. C.R., 2015 ONCJ 89, [2015] O.J. No. 911 (Ont. C.A.), at para. 29-32, R. v. Morrissey, [1995] O.J. No. 639 (Ont. C.A.), at para. 83, and R. v. J.H., [2005] O.J. No., 39 (Ont. C.A.), at para. 46).

[12] Findings of credibility also attract a high degree of deference (see C.R., supra, at para. 31, J.H., supra, at para. 46, and R. v. Cresswell, 2009 ONCA 95, at para. 14).

Analysis:

[13] I find that the learned trial judge committed no reviewable error.

[14] He found as facts that it was after 1:20 in the morning, the officer was alone, he was following someone driving a car with an expired licence sticker, he knew nothing about the driver who had just left a bar. He did not know with whom he was dealing. These findings attract deference as they were supported by the evidence.

[15] Douglas, J. concluded that after collecting Mr. Lavigne’s licence and registration, Constable Grant acted reasonably in searching for information on the police system so that he would know whether Mr. Lavigne was dangerous, on bail, was a violent offender, or a fugitive, before he asked Mr. Lavigne to step out of his car and provide the breath sample. In making these conclusions, Douglas, J. made implicit credibility findings. This is not one of the rare circumstances in which an appellate court should interfere with findings of credibility.

[16] Douglas J. reviewed the law with respect to s. 254(2)(b) of the Criminal Code, and especially with respect to the definition of “forthwith” as contained in that section; namely R. v. Quansah, 2012 ONCA 123 and R. v. Fildan (2009), 69 C.R. (6th) 65 (Ont. S.C.), which provided that a short delay before demanding a breath sample is warranted in order to question or investigate the driver. The Court of Appeal in Quansah, supra, at para. 26 to 28, says that the term “forthwith” has elasticity or flexibility in its interpretation. This is a factually driven question. A short delay may be reasonable for the officer to administer a roadside sobriety and physical coordination test first, or to address legitimate public safety or other concerns.

[17] Factually, this case is similar to R. v. Muirhead, 2008 ABQB 169, R. v. Rutherford, 2014 SKQB 230, and R. v. Li, 2016 ONCJ 284.

[18] I cannot say that Douglas, J. committed any reviewable error of law or fact.

Appeal from Sentence:

[19] On 17 September, 2018, I received a letter from Mr. Lavigne’s counsel, copied to Crown counsel, the text of which was as follows:

I have taken the liberty to write the correspondence within, so as to alert the Court to the fact that there exists an appeal against sentence, in the above-referenced matter, in conjunction with the appeal against conviction.

The issues pertaining to the sentence appeal were not addressed prior to your exit from the courtroom, at the conclusion of the hearing on August 30, 2018. However, it was my every intention, if so called upon, to advise the Court that the sentence, as imposed against Mr. Lavigne, was not fit and just in the circumstances, and that, at the very least, the sentence should have been appropriately imposed on an intermittent basis, in light of his rich and ongoing work history.

If so required, it would be my pleasure to re-attend at Court, for the purpose of addressing the within matter, in the event that the appeal against conviction is unsuccessful.

[20] By email dated 21 September 2018, sent through my assistant, I invited Crown counsel’s response which, by return email that same day, stated:

With respect to Mr. Cohen’s letter dated September 17, 2018, the Respondent\Crown notes that the Appellant did not address the sentence appeal in his Factum and as a result the Respondent did not address the sentence appeal in the Respondent’s Factum. Further there was no mention of the sentence appeal during the course of oral submissions.

The Respondent\Crown will defer to Your Honour as to the appropriate course of action at this point. If Your Honour wishes to hear arguments with respect to the sentence peel, the Respondent\Crown suggests that the Appellant file an amended Factum and a further date to be set to re-attend court for oral submissions on the sentence appeal.

[21] I decline to hear submissions with respect to the appeal from sentence, now. For the following reasons, it was clear that the only issue the appellant wished to advance on the appeal was with respect to the conviction:

a) while an appeal from sentence was contained in the appellant’s notice of appeal, it was advanced only as an alternative argument; b) the summary conviction appeal was fully argued; c) the appellant never addressed in his factum the question of an appeal from sentence; d) the appellant never addressed in oral argument the question of an appeal from sentence; e) the appellant was never restricted in making submissions at the oral hearing. He did not have to wait to be “called upon” to make submissions with respect to sentence.

[22] Further, in this appeal, the Appellant advanced allegations concerning the conduct of certain Guelph Court staff. Therefore, the appeal was adjourned so that it could be heard by an out of town judge and argued by an out of town Crown Counsel. All things considered, it would be unfair to all parties, and an improper use of scarce judicial, Crown, and Appellant resources to convene another hearing to address the appeal from sentence which was not addressed in any serious way in the notice of appeal, and at all during written and oral argument.

[23] Finally, the appellant appears to have forgotten to argue his appeal from sentence in his written and oral submissions. The onus is upon him to justify reopening the hearing. The appellant’s perfunctory argument about the sentence contained in his 17th, September 2018 letter does not do this.

[24] The Appeal is dismissed.

Trimble J.

Released: October 9, 2018