



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Levesque, 2014 ONCA 890


DATE: 20141210

DOCKET: C57627

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn J. Levesque

Appellant

Michael A. Johnston, for the appellant

Jason A. Gorda, for the respondent

Heard:  December 5, 2014

On appeal from the conviction entered on October 5, 2012 by
    Justice Ronald M. Laliberté

of
    the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of failing or refusing to comply with a
    demand to give a breath sample without reasonable excuse, contrary to s. 254(5)
    of the
Criminal Code
. His summary conviction appeal to the Superior
    Court was dismissed and he now seeks leave to appeal.

[2]

In our view, the appellant has not met the leave test in
R. v. R. R
.,
    2008 ONCA 497. The appellants grounds of appeal are weak and they have no
    significance to the administration of justice.

[3]

With respect to the
Charter
argument, regardless of the trigger
    for a trial judges duty to raise and consider
Charter
violations, in
    the present case there was no basis to conclude that the appellant was
    arbitrarily detained in the momentary delay before the officer noticed alcohol
    on the appellants breath; mere contact with a police officer does not
    constitute arbitrary detention:
R. v. Grafe
, [1987] O.J. No. 796
    (C.A.),
R. v. Subaru
, [2009] 2 S.C.R. 460.

[4]

On the
mens rea
ground, the trial judge used the more exacting
    standard of proof beyond a reasonable doubt in finding that the appellant had a
    specific intention to refuse to provide a breath sample. The trial judge
    continued on to the reasonable excuse defence, although it was not strictly
    necessary to do so.  There was no error in this analysis.

[5]

Nor do we see any error in the appeal judges reasons for why the trial
    judge had not misapprehended the evidence.  An appeal will only be allowed on
    this ground where the reasons are so deficient as to foreclose meaningful
    appellant review. Neither the trial judge nor the appeal judge was required to
    mention every piece of evidence considered.

[6]

Leave to appeal is denied.

C. William Hourigan J.A.


