





CITATION: R. v. Lyaruu, 2011
          ONCA 547



DATE: 20110803



DOCKET: C50883



COURT OF APPEAL FOR ONTARIO



Feldman, Blair and Watt JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Hillary Lyaruu



Applicant (Appellant)



Nicholas A. Xynnis, for the appellant



Amy Alyea, for the respondent



Heard and released orally: July 28, 2011



On appeal from conviction entered by Justice Emile Kruzick of
          the Superior Court of Justice, dated October 1, 2008.



ENDORSEMENT



[1]

The appellant appeals his convictions for refusal to take the
    breathalyser test and impaired driving. He raises four grounds of appeal:

(1)       The trial judge erred in failing to hold that the appellants
    s. 10(b)
Charter
right was breached when he was not given a second phone
    call to his lawyer.

(2)      The
    verdict on s. 10(b) was unreasonable.

(3)       The trial judge erred in drawing the inference permitted by s.
    258(3) of the
Criminal Code
.

(4)       The trial judge erred in concluding on the evidence that the
    appellant was impaired.

[2]

We called on the Crown on the first ground only. We do not accept any of
    the grounds raised.

[3]

On grounds (1) and (2), the trial judge gave full reasons for concluding
    on all the evidence that he was not satisfied that the appellant was asking to
    speak to counsel for clarification or for some further or other advice or for
    other reasons. The trial judge was aware of the evidence of Auxiliary
    Constable Orazem and weighed it in the context of all of the other evidence. We
    see no error in his approach or his conclusion. The same reasoning applies on
    ground (3) to the application of permissive inference under s. 258(3) of
    the
Code
.

[4]

On ground (4), there was ample evidence of impairment, including the
    smell of alcohol on the appellants breath, his bloodshot eyes, the unexplained
    accident, and the
Criminal Code
inference. The trial judge was entitled
    to conclude, on this record, that the appellant was impaired.

[5]

The appeals are therefore dismissed.

Signed:           K. Feldman J.A.

R. A. Blair J.A.

David Watt J.A.


