CHATHAM COURT FILE NO.: CR-19-4574-MO DATE: 20190424 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Sophie Belleau

BEFORE: Howard J.

COUNSEL: Jonathan Lall, for the Crown (Respondent) Laura L. Joy, for the Applicant (Appellant)

HEARD: April 18, 2019

Endorsement

Overview

[1] This is an application brought by Ms. Sophie Belleau pursuant to s. 261 of the Criminal Code [1] for an order staying the driving prohibition made on March 28, 2019, by the Honourable Mr. Justice G.A. Campbell of the Ontario Court of Justice in Windsor pending the determination of the applicant’s summary conviction appeal to this court.

[2] In short, as I understand it, Ms. Belleau alleged at trial that she was required to drive her motor vehicle on the night in question in order to flee a situation of an alleged sexual assault upon her, involving, it is alleged, the use of a so-called “date rape drug.”

[3] For reasons delivered orally on March 28, 2019, following a five-day trial, Ms. Belleau was convicted of operating a motor vehicle while the concentration of alcohol in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Code.

[4] Following sentencing submissions that same day, the court imposed a fine and prohibited Ms. Belleau from operating a motor vehicle anywhere in Canada for a period of one year.

[5] Pursuant to ss. 813 and 830 of the Code, Ms. Belleau commenced an appeal against her conviction by notice of appeal dated April 10, 2019.

[6] Ms. Belleau now applies to this court for an order staying the licence suspension pending appeal. The respondent Crown opposes the request for the stay of the driving prohibition.

The test for granting a stay under s. 261(1)

[7] In his instructive decision in R. v. Won, Code J. observed that summary conviction appeals in drinking and driving cases routinely involve stay applications under s. 261(1) of the Code. Justice Code spoke of the importance of the stay application in the following terms:

The stay application is an important step that has significant consequences. It is the functional equivalent, in the context of drinking and driving cases, of an application for bail pending appeal. It restores driving privileges, during the appeal period, after they were lost due to the conviction and sentence at trial. [2]

[8] While the court has the discretion to grant a stay pending appeal pursuant to s. 261(1), the exercise of that discretion is not unfettered or unlimited. [3]

[9] There is no disagreement between counsel as to the applicable test under s. 261(1) for granting a stay of the licence suspension pending appeal. The three requirements of the test were set out by the Ontario Court of Appeal in its 1998 decision in R. v. Smug:

The appellant must show that the appeal is not frivolous, that continuation of the driving prohibition pending appeal is not necessary in the public interest, and that to grant the stay would not detrimentally affect the confidence of the public in the effective enforcement and administration of justice. [4]

[10] More recently, Code J. held in R. v. Won that in order to meet these three criteria in the context of a drinking and driving case, the applicant must satisfy the court that (a) the appeal is not frivolous, (b) it will cause hardship to the applicant if the stay is not granted, and (c) the applicant is not a danger to the public. This formulation of the three-prong test has been adopted in subsequent decisions of the Superior Court of Justice. [5]

[11] It is common ground that, as the presumption of innocence no longer applies following the conviction of the applicant, the onus is on the applicant to satisfy the court on a balance of probabilities that a stay of the licence suspension should be granted. [6]

Analysis

Is the appeal frivolous?

[12] Relying upon the decision of the British Columbia Court of Appeal in R. v. McPherson, Mr. Lall for the respondent Crown submitted that the standard of frivolousness has two different aspects: (a) whether the appeal is brought for a motivation different than having success in the appeal, and (b) whether the appeal has little chance of success. [7]

[13] The Crown concedes that the instant appeal is being pursued for a legitimate purpose and in a bona fide attempt to overturn the decision of the trial judge. In other words, the appeal was not commenced for some ulterior or oblique motivation.

[14] However, it is the position of the Crown that the instant appeal has such little chance of success that it is properly considered frivolous. The Crown submits that the trial judge properly considered the evidence advanced by the defence at trial, rejected it, and gave compelling reasons for doing so. Mr. Lall places great emphasis on the trial judge’s specific finding that there was no air of reality to the defence of necessity (i.e., that the applicant was required to drive her vehicle in order to flee from the alleged sexual assault). As Mr. Lall put it, “[t]his point cannot be overstated, because it is the principal reason the appeal is frivolous.”

[15] Clearly, an applicant must do more than simply indicate that there are grounds for appeal set out in a notice of appeal. In R. v. Won, Code J. commended the application materials before him in part because they included a detailed notice of appeal setting out six grounds, and none of the grounds was “the kind of automatic ‘boiler plate’ that is sometimes relied on. Instead, they signalled that counsel had thought about the appeal and had given his client a considered opinion about its potential merits.” [8]

[16] The grounds of appeal in the instant appeal are set out with some particularity. On the whole, certainly they cannot fairly be said to be the kind of “boiler plate” grounds that were commented on with disapproval in the Won decision. The notice of appeal here sets out the following grounds:

1. The evaluation of the evidence by the Learned Trial Judge was flawed and led him to an unreasonable verdict.
2. The Learned Trial Judge erred by misapprehending evidence provided by witnesses, which played an essential part in the reasoning process resulting in conviction. This misapprehension of significant evidence resulted in a miscarriage of justice.
3. The Learned Trial Judge erred when failing to consider the exhibit filed on consent of the Crown, the CFS report on Zopiclone in Ms. Belleau’s system. The report also contained information as to the efforts [effects?] and usage of the said drug; the drug found in her blood is not contested by the Crown and supported by the CFS results. The explanation of the effects of zopiclone are contained in the CFS report. His Honour failed to consider this evidence. In fact, the Honourable Court’s judgment indicated that there was no evidence as to the effects of zopiclone. Ms. Belleau testified as to how that affected her memory and the CFS report speaks to the effects of the drug in its conclusion on page 2 of the exhibit.
4. The other exhibit that the Court failed to consider was the exhibit of the CFS filed on consent of the Crown which confirmed the presence of DNA; in particular sperm was found on the swab of her genitalia.
5. His Honour in his Judgement appears to be questioning whether or not Ms. Belleau was sexually assault[ed] and questioned why she did not make this complaint to the civilian on the side of the road and/or the arresting officer. This reasoning is an error of law, as it is unfair to suggest that sexual assault victims should be reacting and making a complaint in a particular manner at a particular time.
6. It was clear from their texts back and forth between Mr. Ireland and the Appellant, that if they were to be sexually active that he would be using protection. The rape kit was done after her release from the detention and confirms that she had some sexual contact without a condom. His Honour failed to address this evidence.
7. His Honour, in rejecting the defence of necessity, indicated that the complainant could have locked her doors, screamed and used her cell phone; this is creating an expectation of how a complainant should act when a complainant has been sexually assaulted.
8. The 2 CFS reports filed as exhibits do bring an air of reality to the defence of necessity, yet His Honour failed to consider [these] exhibits.
9. His Honour reversed the onus when the Honourable Court rejected her evidence because she had not proven that she had been sexually assault[ed]. Even though he had instructed himself as it relates to the “twin myths” of sexual assault, according to the judgement it does not appear that he did. He rejected the defence of necessity because the defendant did not raise the issues of sexual assault to the civilian on the road and/or Officer Bib, the arresting officer.
10. Furthermore, His Honour questioned the reactions of Ms. Belleau by fleeing in her car and driving for approximately 90 seconds saying the alternative of locking herself in her car and screaming and calling 911 would have been the preferable course of action.
11. Even if this Honourable Court rejected Ms. Belleau’s evidence as it relates to the defence of necessity, the Court should have instructed themselves [ sic ] as to whether or not the evidence made out the mens rea contemplated in section 8(3) of the Criminal Code beyond a reasonable doubt.
12. His Honour misapprehended the evidence of the civilian guard, Paul Farias, on the issue as to whether or not Ms. Belleau had made any type of complaint while he was guarding her.
13. Respectfully, His Honour misapprehended the evidence of the civilian witness Robert Otterman[.] His Honour failed to take into account that Mr. Otterman had testified that Ms. Belleau had said something to the effect that she was scared and that the guy was an asshole. It was clear to Mr. Otterman that from the communication he had from Ms. Belleau that she was upset, and he believed her to be out of the scenario that she had complained of. Robert also agreed in cross-examination that he was never told by the police when interviewed that he was being interviewed as a potential witness on a sexual assault allegation.
14. His Honour failed to consider Ms. Belleau’s evidence that she had indicated to PC Jeremy Kulwartian when being released from custody that she had been given a chocolate martini. The officer confirmed that Ms. Belleau had indicated that, when he was interviewed by the professional standards bureau for a public complaint Ms. Belleau had filed against the OPP.
15. His Honour misapprehended the evidence of Ms. Belleau on key points. His Honour failed to consider her evidence as it relates to her calling the emergency line at CAS, her evidence as it relates to … her injuries documented at the hospital, as well as her evidence as it relates to the CFS reports.

[17] The difficulty faced by Ms. Joy in demonstrating the merits of the appeal is that the transcript of the evidence at trial (or even the trial judge’s reasons for judgment) was not available to this court on the hearing of the application, although it is common ground that the transcripts have been ordered. To be clear, the unavailability of the trial transcripts is not due to any fault on the part of counsel for the applicant. As I have said, it is common ground that the transcripts have been ordered, and I note that the reasons for judgment of the trial judge were delivered a mere three weeks before the hearing of the application before me. In such circumstances, it is understandable, although obviously regrettable, that the transcripts were not available to this court.

[18] Nonetheless, the absence of the trial transcripts is a problem. In the absence of having the transcripts available to this court, Ms. Joy was unable to take this court to those portions of the transcript where, she submits, there was, for example, a misapprehension of material evidence favourable to the defence by the trial judge.

[19] Mr. Lall puts his finger on the precise problem facing this court when he submits: “[h]ow can this higher Court determine, even at this threshold stage, whether there is merit to the grounds of appeal?”

[20] That said, the unenviable situation facing this court is not unlike that which faced the appellate court in R. v. McPherson, the B.C. decision relied upon by the Crown, where counsel for the appellant in that case was also apparently in the position of having to argue the stay application without having the transcripts of the trial proceedings available.

[21] There, Lambert J.A. expressly noted the difficulty caused by the absence of the trial transcript, and that was one of the facets of the case that the court expressly noted in finding that the appeal was not frivolous, in the course of ultimately deciding that the driving prohibition should be lifted pending the outcome of the appeal, as follows:

In this case, particularly having regard to the fact that a detailed and careful study of the transcript may reveal points in support of the ground of appeal that Mr. Scarisbrick [counsel for the appellant] has put forward, I do not think that I can form the opinion that the appeal has so little chance of success that it should be regarded as frivolous. [9]

[22] Further, I would also note that while the onus is on the applicant to establish that the appeal is not frivolous in the sense that the issues on appeal have some arguable merit, the authorities are consistent in holding that the threshold for satisfying this first prong of the test is “necessarily low and does not require this court to parse the merits of the appeal in any significant detail.” [10]

[23] In R. v. Passey, [11] the Alberta Court of Appeal reviewed the authorities on the meaning of the requirement that an appeal not be frivolous and concluded that an applicant “need only show that his or her ground of appeal would not necessarily fail.” In R. v. Hanna, [12] the British Columbia Court of Appeal described a frivolous appeal as having “absolutely no possibility of success.” In its subsequent decision in R. v. McPherson, [13] the B.C. Court of Appeal said an appeal is frivolous where it has “so little chance of success that no one could possibly believe that it could succeed.”

[24] All of these formulations speak to a standard that is not a high one.

[25] I appreciate the submissions made by Mr. Lall in respect of the need of an appellate court to accord significant deference to the factual findings made by a trial judge, as well as to a sentencing determination, and while those submissions may ultimately prevail at the hearing of the appeal on its merits, given the very low standard of review that attaches to an application to stay pending appeal, I am unable to conclude at this stage that the instant appeal “has so little chance of success that no one can possibly believe that it could succeed.” Thus, I find that the applicant has satisfied the first condition of the test for a stay.

Will hardship be caused to the applicant if the stay is not granted?

[26] Under the last two prongs of the traditional formulation of the test articulated in, for example, R. v. Smug, the applicant must establish that the continuation of the driving prohibition pending appeal is not necessary in the public interest and that to grant the stay would not detrimentally affect the confidence of the public in the effective enforcement and administration of justice.

[27] As such, it will be seen that considerations of the public interest animate both the second and third factors of the traditional test.

[28] In order to avoid collapsing the second and third factors into a single criterion when applying the test, and to ensure that the individual circumstances facing the applicant do not get lost in considering whether or not to grant a stay, I prefer the re-statement of the second and third factors articulated by Code J. in R. v. Won, which simply asks at the second stage of the analysis whether it will cause hardship to the applicant if the stay is not granted, and leaves to the third stage consideration of the larger public interest.

[29] Moreover, reconciling the two formulations, I would say that if the continuation of a driving prohibition would cause an applicant to suffer hardship, then it is difficult to see how the public interest would be served by that result. One would have thought that the interests of justice are undermined, not served, where an individual is made to suffer hardship.

[30] In considering whether it would cause hardship to Ms. Belleau if the stay were not granted, it must be remembered that mere inconvenience does not constitute hardship. [14]

[31] That said, the courts have also recognized that “loss of employment resulting from the driving prohibition would constitute a hardship.” [15] As Clarke J. observed in R. v. Holloway, it “is obvious that any driving prohibition will entail some inconvenience. Doubtless every motion for a stay can and will contain some circumstances, strong or threadbare, alleging hardship. To have any cogency before the court such allegations require a solid footing, such as a loss of employment or necessity.” [16]

[32] The unchallenged evidence before me is that Ms. Belleau is currently employed by the Windsor-Essex Children’s Aid Society as a social worker. She has been in the employ of the Society for 17 years. Her position requires her to travel across the City of Windsor and its environs for the purpose of meeting with clients and conducting investigations in child protection matters. The evidence of Ms. Belleau is that having a valid driver’s licence is mandatory for her position.

[33] The evidence of Ms. Belleau is that if her driving prohibition is not stayed, she believes she will suffer serious prejudice and hardship. In particular, she maintains that her ability to attend to her clients’ needs will suffer greatly, “as I deal with some of the most vulnerable residents within the city.” Ms. Belleau fears that her employment at the Society will be seriously compromised by her lack of a driver’s licence.

[34] The evidence of Ms. Belleau also speaks to the impact on her personal life. As a single mother of two children, her twins rely on her to drive them to and from school each day, as they do not reside on a bus route. Further, one of Ms. Belleau’s children plays travel soccer and many of the games are played out-of-town. Ms. Belleau explains that she has become dependent on others to attend to simple daily activities and errands.

[35] This evidence was not contested by the respondent Crown. Indeed, Mr. Lall, very fairly, did not seriously challenge the notion that Ms. Belleau would suffer some hardship if the stay were not granted.

[36] On the material before me, I am satisfied that it will cause hardship to Ms. Belleau if the stay is not granted. The interference with her duties as a social worker with the Society, and the risk of the loss of her 17-year-held position with the Society, constitute a hardship experienced by this applicant as a result of the licence suspension. I conclude that Ms. Belleau has satisfied the second criterion.

Would granting the stay detrimentally affect public confidence in the justice system?

[37] Ms. Belleau must establish on a balance of probabilities that to grant the stay would not detrimentally affect the confidence of the public in the effective enforcement and administration of justice. [17] In short, the court must be satisfied that the applicant does not pose a danger to the public. [18] The exercise is essentially one of risk assessment.

[38] In considering whether granting the stay would detrimentally affect public confidence in the justice system, a “major factor has to be the driving record of the appellant.” [19] That is, “[p]ublic confidence in the administration of justice would be rudely shattered if an appellant with a serious driving record, having been granted a stay …, was subsequently the cause of an automobile accident fatality.” [20]

[39] While not an exhaustive list, other factors that may be relevant to the court’s consideration of whether the applicant represents a danger to the public in any particular case may include:

a. the seriousness of the charge; b. the circumstances of the offence; c. the indicia of intoxication, where applicable, including breathalyzer reading; d. the background of the applicant, including any criminal record, where relevant; e. facts that relate to the risk of re-occurrence, such as, whether the offence occurred while the applicant was on an interim release; and f. any other relevant factors, such as, driving ability, addiction to alcohol or drugs, physical and psychological makeup, disposition or attitude that impinge on the conduct of the applicant, and the potential risk to the public in the event the driving prohibition is stayed. [21]

[40] Not all of these factors may be material in every case, and no doubt some factors will be more important than others depending on the circumstances of each individual case.

[41] A conviction for an “over 80” offence is obviously a serious matter. Drinking and driving is not tolerated by the law or Canadian society.

[42] However, in the instant case, Ms. Belleau was found guilty of operating a motor vehicle while having an “over 80” blood alcohol content, in the course of, she maintains, trying to flee from Mr. Ireland’s residence at which, Ms. Belleau says, she was given a “date rape drug” and was sexually assaulted.

[43] Further, prior to her conviction for the “over 80” offence that is the subject of the instant appeal, Ms. Belleau had no criminal record.

[44] In particular, the evidence indicates that, apart from the “over 80” conviction, Ms. Belleau had no convictions on her driving record. This is clearly not the type of case where the applicant’s driving record reveals repeated convictions for drinking and driving offences.

[45] As well, there is no evidence before me that indicates that Ms. Belleau has any alcohol or substance abuse problem. Indeed, the evidence before me is to the contrary.

[46] Moreover, again Mr. Lall for the Crown did not challenge the proposition that the applicant does not pose a danger to the public.

[47] It is also important to note that this appeal has been pursued with commendable dispatch. As I have referenced, the trial judge delivered his reasons for judgment and sentence on March 28, 2019. Within some two weeks, Ms. Joy had the notice of appeal and the notice of application for the stay prepared and filed with the court, on April 10, 2019. Ms. Joy spoke to the matter in court before me on April 11, 2019, when the hearing date of April 18th was scheduled – a mere three weeks, to the day, after delivery of the trial judge’s decision.

[48] It is common ground that all of the transcripts of the proceedings at trial have been ordered.

[49] I am also advised that with the transcripts expected to be delivered in the coming weeks, counsel expect to be in a position to exchange factums over the summer months, with a view to having the appeal heard sometime this autumn. I expect that is the position that counsel will take at the Assignment Court on May 3, 2019, when the scheduling of the instant appeal is addressed.

[50] The court must consider the cumulative force of all of the factors to determine whether the applicant has discharged her burden to show that a stay is justified. [22]

[51] In my view, having considered all the factors, I conclude that, on balance, the applicant has demonstrated that to grant the stay would not detrimentally affect the confidence of the public in the effective enforcement and administration of justice. In the circumstances of the case at bar, I am satisfied that Ms. Belleau does not pose a danger to the public if the stay of her driver’s licence suspension were granted.

[52] As such, I find that the Ms. Belleau has satisfied the third branch of the test for a stay.

Conclusion

[53] For the reasons set out above, I conclude that, on balance, Ms. Belleau has satisfied her onus of establishing that the test for granting a stay of her licence suspension has been met. In the result, I would grant the application.

[54] A condition of the stay is that Ms. Belleau shall have a zero blood alcohol content at all times when driving, and she will provide a breath sample if demanded by the police at any roadside test.

Original signed by Justice J. Paul R. Howard

J. Paul R. Howard Justice

Released: April 24, 2019

[1] Criminal Code, R.S.C. 1985, c. C-46. [2] R. v. Won, 2012 ONSC 775, [2012] O.J. No. 634, 29 M.V.R. (6th) 121 (S.C.J.), at para. 3. [3] R. v. Holloway, [1987] O.J. No. 1434, 48 M.V.R. 270 (Ont. Dist. Ct.), at p. 272 [cited to M.V.R.]. See also R. v. Carpenter, [1991] N.J. No. 70, 89 Nfld. & P.E.I.R. 19 (Nfld. S.C. (T.D.)), at para. 9. [4] R. v. Smug, 1998 CarswellOnt 4154, 37 M.V.R. (3d) 291 (Ont. C.A., in chambers, per Feldman J.A.), at para. 2, citing, inter alia, R. v. Jay and MacLean (1987), 66 Nfld. & P.E.I.R. 84, 50 M.V.R. 137 (P.E.I.S.C.); R. v. Smith (1993), 58 W.A.C. 202, 50 M.V.R. (2d) 307 (B.C.C.A.); and R. v. Quesnel (1995), 11 M.V.R. (3d) 89 (B.C.C.A.). [5] R. v. Won, at para. 7. See, for example, R. v. Boodram, 2015 ONSC 3821, 86 M.V.R. (6th) 273 (S.C.J.), at para. 14; R. v. Matthews, 2015 ONSC 6255, 90 M.V.R. (6th) 121 (S.C.J.), at para. 5; and R. v. Bannikova, 2016 ONSC 1871, 97 M.V.R. (6th) 68 (S.C.J.), at para. 3. [6] R. v. Smug, at para. 2; R. v. Boodram, at para. 16; R. v. Matthews, at para. 16; and R. v. Bannikova, at para. 4. [7] R. v. McPherson, 1999 BCCA 638, 140 C.C.C. (3d) 316, 47 M.V.R. (3d) 55 (B.C.C.A., in chambers, per Lambert J.A.), at para. 5. The “two different aspects” formulation of the standard of frivolousness articulated in R. v. McPherson has been followed in Ontario: see, for example, R. v. Glinski, 2014 ONSC 1952, 2014 ONCS 1952 (S.C.J.), at para. 7; and R. v. Wang, 2014 ONSC 4226 (S.C.J.), at para. 4. [8] R. v. Won, at para. 8. [9] R. v. McPherson, at para. 5. See also R. v. Demyen (1975), 26 C.C.C. (2d) 324, 1975 CarswellSask 178 (Sask. C.A., in chambers), at pp. 325-326 [cited to C.C.C.], where Culliton C.J.S. held, in dealing with a homicide case, involving an offender’s application to be released from custody following his conviction for murder of an 11-month-old girl, that: “[a]s I have not the transcript, I have no basis upon which to assess the merits of his appeal. It probably can be said that he has established that the same is not frivolous.” [10] R. v. Bannikova, at paras. 5 and 16. [11] R. v. Passey, 1997 ABCA 343, 56 Alta. L.R. (3d) 317, 121 C.C.C. (3d) 444 (Alta. C.A., in chambers, per Berger J.A.), at para. 7. [12] R. v. Hanna, [1991] B.C.J. No. 2551, 3 B.C.A.C. 57 (B.C.C.A., in chambers, per Wood J.A.), at para. 6. [13] R. v. McPherson, at para. 5. [14] R. v. Wang, at para. 3; R. v. Matthews, at para. 27; and R. v. Boodram, at para. 32. See also R. v. De Santis, [1996] O.J. No. 3422 (C.A.), at para. 1. [15] R. v. Wang, at para. 3. [16] R. v. Holloway, at p. 274. [17] R. v. Smug, at para. 2. See also R. v. Kingwatsiak (1976), 31 C.C.C. (2d) 213, 1976 CarswellNWT 11 (N.W.T. C.A.), at pp. 217-218 [cited to C.C.C.]. [18] R. v. Won, at para. 7. [19] R. v. Holloway, at p. 273. [20] Ibid. See also R. v. Wang, at para. 3. [21] R. v. Holloway, at p. 274. [22] R. v. Wang, at para. 3.