



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Puvtoski, 2016 ONCA 828

DATE: 20161104

DOCKET: C61964

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Milco Puvtoski

Appellant

Zachary Kerbel and Saman Wickramasinghe, for the
    appellant

Gillian Roberts, for the respondent

Heard: November 3, 2016

On appeal from the decision of the Summary Conviction
    Appeal Court dated March 11, 2016 by Justice F.E. McWatt of the Superior Court
    of Justice, dismissing the appeal from the conviction entered on February 24,
    2015 by Justice L. Feldman of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal, and if leave is granted, appeals
    his conviction for drive over 80.

[2]

The main issue on appeal relates to police observations (alcohol smell)
    of the appellant after a motor vehicle accident and the appellants statements
    to the police at the accident scene. The appellant contends that his statements
    were statutorily compelled in violation of s. 7 of the
Charter
.
    Section 199 of the
Highway Traffic Act
, R.S.O. 1990, c. H. 8, imposes
    a duty on police to gather information about an accident for a report. The
    appellants statements to the police at the accident scene helped establish
    grounds for the police to make an approved screening device (ASD) demand.

[3]

The trial judge admitted evidence of the police officers observations
    about the smell of alcohol on the appellants breath. He said, at para. 87:

As well, I am of the view that the officers detection of the
    odour of alcohol on the way to the cruiser, prior to the eliciting of material
    information, reflects general observations an officer might make of the driver
    while carrying out other authorized duties and which are admissible [Cases and
    citations omitted].

[4]

The summary conviction appeal judge dismissed the appeal. She said, at
    para. 6:

First, the trial judge did not err when he found that the
    police officers detection of the smell of alcohol from the appellant did not
    breach his s. 7
Charter
rights against self-incrimination. The
    evidence of the odour did not result from any compulsion or direct
    participation designed to provide evidence and it did not stem from the
    appellant being directly compelled to participate in making the H.T.A. report
    [Cases and citations omitted].

[5]

The appellant seeks leave to appeal the summary conviction appeal
    judges decision.

[6]

The test for granting leave to appeal is whether a proposed appeal on a
    question of law (1) is of significance to the administration of justice beyond
    the case, and (2) whether there is a clear error of law: see
R. v. R.(R.)
,
    2008 ONCA 497.

[7]

In our view, neither component of the test is met on this appeal. Both
    courts below were aware of and applied the leading case,
R. v. White
,
    [1999] 2 S.C.R. 417. The appellants proposed appeal related to his statements
    at the accident scene. However, the appeal does not need to turn on this
    ground. As both courts below found, the smell of alcohol alone justified the
    ASD demand and the subsequent administration of the breathalyzer test. As well,
    the police officer on site had established the identity of the driver of the
    automobile without reliance on the appellants statements. On this issue, the
    two court decisions were clearly correct. They were also focussed on a narrow
    factual issue and are, therefore, not significant for the administration of
    justice beyond the case.

[8]

The application for leave to appeal is dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

David Watt J.A.


