Court File and Parties

COURT FILE NO.: 4333/18AP DATE: 20190221 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – Patrick Flynn Defendant

Counsel: Jayme Lesperance, for the Crown Michael Gordner, for the defendant, Patrick Flynn

HEARD: January 30, 2019 at Windsor

BEFORE: Rady J.

On Appeal from the Decision of the Honourable Mr. Justice Dean on May 3, 2018

Introduction

[1] The appellant appeals the decision of Justice Dean dated May 3, 2018. The appellant was found guilty of an offence pursuant to s. 253 (1) (b) of the Criminal Code, colloquially referred to as “blowing over”. At the trial, the appellant alleged that his s. 8, 9 and 10(b) Charter rights were violated and he sought to exclude the breath testing results. The trial judge concluded that there were two instances where the appellant’s Charter rights were violated – first, when the demand was not made as soon as the officer formed her suspicion; and second, when he was not permitted by police to speak to a third party who was not a lawyer. The trial judge was not persuaded that there were other breaches on what were characterized as mouth alcohol, calibration, and as soon as practicable issues.

[2] He then conducted the necessary s. 24(2) analysis in accordance with R. v. Grant, 2009 SCC 32, and concluded that the breath samples should be admitted.

The Appeal

[3] Three grounds of appeal are advanced:

1. that the trial judge erred in finding that the intoxilyzer breath samples were taken as soon as practicable;
2. the Crown failed to prove that the first sample was taken within two hours of the alleged offence; and
3. that the trial judge erred in his analysis of s. 24(2) of the Charter and failed to exclude the breath tests.

[4] The appellant originally appealed the trial judge’s conclusions respecting the mouth alcohol and the calibration issues but they were not pursued. The appellant submits that the seriousness of the breach of his rights to counsel taken cumulatively with the other breaches, warranted the exclusion of the breath samples.

[5] The Crown concedes the breaches found by the trial judge. However, it submits that his conclusions respecting the other alleged breaches and his s. 24(2) analysis were untainted by error.

The Standard Review

[6] Counsel were agreed on the relevant standards of review on the appeal. They are expressed in the recent decision in R. v. Mann, 2018 ONSC as follows:

[8] Counsel did not dispute the standard of review on this appeal. The ultimate question of the admissibility of evidence under s. 24(2) of the Charter is a question of law and hence decided on a correctness standard. However, deciding whether each of the preconditions to exclusion or inclusion is met and what weight to be given to them requires an evaluation of the evidence and the exercise of a substantial amount of judgment. The findings of fact and the ultimate decision must be reasonable and founded on the evidence. The standard of review for questions of mixed fact and law, because it involves the application of a legal standard to a set of facts, is palpable and overriding error, unless it is clear that the trial judge made some extricable error in principle with respect to characterization of the standard or its application, in which case the error may amount to an error of law.

[9] Furthermore, “a reviewing court ought not to interfere with a trial judge’s conclusion on s. 24(2) absent an ‘apparent error as to applicable principles or rules of law’ or an ‘unreasonable finding’” (see R. v. Buhay, 2003 SCC 30 … paras. 42 to 45).

[10] See also R. v. Manchulenko, 2013 ONCA 543 at para. 43 where the Ontario Court of Appeal stated that the ultimate question of the admissibility of evidence under s. 24(2) of the Charter is a question of law. Where a trial judge excludes evidence under s. 24(2) on the basis of 1) an error of law; 2) a misapprehension of material evidence; or 3) an unreasonable assessment of the evidence, then the exclusion constitutes an error of law.

[7] It is also the case that an appeal is not a rehearing. Justice Durno expressed the role of a summary conviction appeal judge in R. v. Salerno, [2000] O.J. No. 3511 (S.C.J.):

[7] Before examining those areas, the function and scope of a judge sitting on a summary conviction appeals must be kept in mind. I am not permitted to re-try the case and substitute my view of the evidence for that of the trial judge. I can examine the transcript and determine if there was evidence upon which the trial findings could reasonably have been made. I cannot substitute my own findings of fact when there was a basis for those reached by the trial judge. The trial judge has the advantage of seeing and hearing the witnesses. If there was an evidentiary basis upon which the findings could reasonably have been made I cannot interfere.

Discussion

[8] I have concluded that the appeal must be dismissed. The decision under appeal is thorough, running 123 paragraphs, and thoughtful. The trial judge carefully reviewed the evidence in connection with the several alleged breaches. His findings are amply supported by the evidentiary record.

[9] On the as soon as practicable issue, the trial judge set out the timeline of events as para. 93 of his Reasons and his conclusions respecting each discrete delay:

[10] He referred to the leading authorities: R. v. Vanderbruggen, 2006 ONCA 9039, [2006] O.J. No. 1138 (C.A.) and R. v. Singh, 2014 ONCA 293. He noted that while Officer Millman could not remember where he was when he was dispatched, the evidence was he went straight to the scene and no other call received priority. Officer Gebrael spoke about his usual practice. The trial judge reasonably concluded that there was no unexplained delay. I do not agree that the trial judge reversed the burden of proof at para. 95 of the Reasons. It was simply a summary of the gist of Officer Millman’s evidence.

[11] The second ground of appeal, which was not raised at trial or vigorously pursued on appeal, is without merit. The evidence establishes conclusively that the first test was taken within two hours of the offence and the presumption of identity under s. 258(1)(c) was engaged.

[12] On the s. 24(2) analysis, the appellant places great emphasis on the fact that he was unable to speak to counsel of his choice because he was not permitted to speak to a third party in order to obtain a recommendation with respect to a suitable defence counsel.

[13] It is important to remember that the trial judge found there was a breach of the appellant’s s. 10(b) rights as a result. The trial judge recognized that this breach and the others, were serious, and would support exclusion. However, in analyzing the balancing factors, the trial judge concluded that the breach was minimal.

[14] The trial judge quite properly noted that, notwithstanding the appellant’s inability to speak to a third party, he was able to speak to an experienced defence lawyer and he was satisfied with the advice given.

[15] Further, he concluded that the collection of a breath sample was minimally invasive, consistent with other decisions that have made the same observations.

[16] When balanced against with society’s interest in an adjudication of a case on the merits, he concluded that the breath samples were admissible.

[17] His conclusions respecting s. 24(2) reveal no error of law. His findings of fact are reasonable and founded on the evidence. There is no palpable or overriding error nor any error in principle.

[18] For these reasons, the appeal is dismissed.

“Justice H. A. Rady” Justice H.A. Rady Released: February 21, 2019

COURT FILE NO.: 4333/18AP DATE: 20190221 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – PATRICK FLYNN Defendant REASONS FOR Decision Rady J. Released: February 21, 2019