





CITATION:
R. v. Hyman, 2011
          ONCA 454



DATE: 20110615



DOCKET: C49005



COURT OF APPEAL FOR ONTARIO



Doherty, Juriansz and Epstein JJ.A.



BETWEEN



OBrien Hyman



Appellant



and



Her Majesty the Queen



Respondent



Munyonzwe Hamalengwa, for the appellant



Amy Alyea, for the respondent



Heard and released orally: June 9, 2011



On appeal from the decision of the summary
          conviction appeal court, dated June 18, 2008 by Justice C. Boswell of the
          Superior Court of Justice.



ENDORSEMENT



[1]

The appellant seeks leave to appeal from the
    decision of Boswell J. sitting as a summary conviction appeal court judge on
    appeal from a conviction for refusal to comply with a police officers demand
    for a sample of his breath contrary to s. 254(2) of the
Criminal Code
.  While the notice
    of appeal lists many grounds of appeal, including that the verdict was
    unreasonable and that the trial judge failed to give proper consideration to
    the theory of the defence, the appellants actual argument in this court
    focused on his position that (1) he was denied a fair trial in that he was self-represented
    and the trial judge did not provide him with sufficient assistance; and, (2)
    the trial judge and the summary conviction appeal judge erred in failing to
    consider evidence that demonstrated improper motive on the part of police in
    demanding that he provide a breath sample.

[2]

Applying the principles in
R. v. R
.(
R.)
(2008), 234 C.C.C. (3d) 463
    (Ont. C.A.), we are of the view that this is not a case in which leave to
    appeal should be granted.  In connection
    with the first issue, the summary conviction appeal judge considered the steps
    the trial judge had taken to assist the appellant including reviewing trial
    procedure, describing the different types of available questioning and
    explaining the process whereby evidence is called and submissions are made and
    reasonably concluded that the appellant received a fair trial.  With respect to the improper motive argument,
    we see no reason to review the summary conviction appeal judges conclusion
    that there was simply no evidence of an improper motive behind the request of
    the police officer to provide a breath sample.

[3]

While the appellant set out in his factum the
    argument that both levels of court failed to grant him with a constitutional
    exemption from the mandatory minimum sentence, he did not press the point in
    oral argument.  In any event, we are of
    the view that the summary conviction appeal judge properly held that there
existed
no discretion to effect an exemption such that the
    mandatory minimum disposition could be avoided.

[4]

In the end, none of these issues raise an
    arguable ground of appeal on a point of law.  Further, the significance of the proposed grounds to the administration
    of justice
do
not extend beyond the particular
    circumstances of this case.

[5]

The application for leave to appeal is
    dismissed.

Doherty
    J.A.

Russell
    Juriansz J.A.

Gloria
    Epstein J.A.


