



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Didone, 2015 ONCA 636

DATE: 20150918

DOCKET: C57491

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Riccardo Didone

Appellant

Lawrence Greenspon, for the appellant

Brock Jones, for the respondent

Heard: September 15, 2015

On appeal from the judgment of Justice H. McLean of the
    Superior Court of Justice, dated July 17, 2013, sitting as a Summary Conviction
    Appeal Court, dismissing the appeal from the convictions entered on July 11,
    2012 by Justice J.P. Wright of the Ontario Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

Following a trial before a judge alone, the appellant was convicted of
    impaired driving and refusing to provide a breath sample on demand.  The trial
    judge imposed a one-year driving prohibition and a total fine of $2,000 ($1,200
    on the impaired driving conviction and $800 on the refusal conviction).  The
    summary conviction appeal judge (the SCAJ) dismissed the appellants conviction
    appeal.  The appellant now seeks leave to appeal to this court and, if leave be
    granted, appeals from his convictions.

[2]

At the conclusion of oral argument, we dismissed the appellants leave
    application, for reasons to follow.  These are those reasons.

(1)

The Leave Requirement

[3]

The appellant argues that the SCAJ made two independent errors from
    those of the trial judge, thereby warranting leave to a further appeal.

[4]

First, the appellant renews his argument, advanced before the SCAJ, that
    the trial judge failed to properly apply the principles set out in
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742.  He submits that the SCAJ erred by failing to
    apply the proper standard of review to this issue.

[5]

Second, the appellant submits that the SCAJ erred by failing to
    determine an issue raised on appeal, namely, whether the trial judge failed to
    address whether the breathalyzer machine was in proper working order at the
    times relevant to the breath sample demands given that the machine timed out at
    one point and appropriate corrective measures were not taken.

[6]

In our view, the issues proposed to be raised on appeal do not meet the
    high test for leave to appeal to this court set out in
R. v. R.R
.
, 2008 ONCA 497, (2008) 90 O.R. (3d)
    641.  This appeal does not raise a legal issue of significance to the administration
    of justice beyond the four corners of this case and the merits of the proposed
    appeal are not strong.  We say this for the following reasons.

(2)

Impaired Driving Conviction

[7]

The appellant argues that, having recognized that the trial judge failed
    to reconcile all the differences [in the evidence] brought forward by defence
    counsel, the SCAJ erred in law by applying the wrong standard of review and
    dismissing the appeal on the grounds that there was a factual basis for the
    trial judges conclusions and that they were not manifestly unreasonable.  In
    so holding, the appellant says, the SCAJ failed to appreciate that the trial
    judge erred by failing to conduct his credibility analysis in accordance with
W.(D.)
. 
    In particular, the trial judge failed to resolve the inconsistencies and
    contradictions in the evidence of the Crown witnesses, especially those
    relating to Ms. Fleury, a civilian Crown witness.

[8]

We do not accept this argument.

[9]

Credibility was the central issue at trial.  Since the appellant did not
    testify or call other evidence in his defence, the principles articulated in
W.
    (D.)
were of limited application.  That said, the trial judges reasons
    confirm that, as required by
W.(D.)
, he related the concept of
    reasonable doubt to the contested factual findings raised by the appellant,
    concluding that the testimony of the Crown witnesses, including that of Ms.
    Fleury, was credible.  He addressed many, although not all, of the alleged
    inconsistencies or contradictions in the evidence of the Crown witnesses.  He
    was not obliged to discuss all the evidence or every argument advanced by the
    defence.  So long as a trial judges findings linking the evidence to the
    verdicts can be logically discerned, as here, any deficiencies in his or her credibility
    analysis will rarely warrant appellate intervention.  See
R. v. R.E.M.
,
    2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20;
R. v. Dinardo
, 2008 SCC
    24, [2008] 1 S.C.R. 788, at para. 26;
R. v. Horton
, 2014 ONCA 616, at
    para. 8.

[10]

The
    SCAJ was clearly alert to the appellants contention that the trial judge erred
    by failing to reconcile all the testimonial inconsistencies and contradictions
    posited by the defence.  In holding that there was a factual basis for the
    trial judges conclusions and that those conclusions were not manifestly
    unreasonable, the SCAJ was merely observing, in a short-hand fashion, that the
    trial judges findings were supported by the evidence and attracted deference
    from a reviewing court.  This does not constitute misdirection concerning the
    standard of review on appeal, or a failure to consider any deficiencies in the
    trial judges reasons.  Rather, it reflects the requisite deferential approach
    afforded by appellate courts to a trial judges credibility-based factual
    findings.

[11]

Finally,
    the SCAJs reasons confirm that he adequately considered the appellants
    arguments regarding his impaired conviction.  The SCAJ rejected those
    arguments.  He was entitled to do so.  This does not give rise to a question of
    law warranting a further appeal to this court.

(3)

Refusal Conviction

[12]

We
    also do not accept that the SCAJ erred by failing to address the trial judges
    alleged failure to determine whether the trial evidence established that the
    breathalyzer machine was in good working order at the relevant times.

[13]

In
    our view, on the trial judges uncontested factual findings, the decision of
    this court in
R. v. Weare
, [2005] O.J. No. 2411 is a full answer to
    the appellants argument.  In
Weare
, this court stated, at para.1:

[I]f a finding is made that the accused did not legitimately
    attempt to provide a sample but merely feigned an attempt, in our view, that
    amounts to the equivalent of a refusal, thereby constituting the offence [under
    s. 254(5)(a) of the
Criminal Code
] without the need to show that the
    device is an approved device.

[14]

In
    this case, the trial judge found, as a fact, that the appellant was faking or
    game-playing in his attempts to provide a breath sample and concluded that he
    was satisfied, to the requisite criminal standard, that there was a refusal. 
    The appellant did not challenge the former finding before the SCAJ, nor does he
    do so on this appeal.

[15]

Thus,
    on the authority of
Weare
and on the facts of this case, it was
    unnecessary for the Crown to establish that the breathalyzer machine was in
    good working order as an approved device.  See also
R. v. Leveque
(1985), 22 C.C.C. (3d) 559 (B.C.C.A.);
R. v. Orme
(1998), 33 M.V.R.
    (3d) 224 (Ont. C.J. (Gen. Div.)).

[16]

We
    note, in any event, that there was evidence at trial from the breathalyzer
    technician that the machine was in good working order.  The trial judge
    accepted this evidence.  He was entitled to do so.

[17]

The
    SCAJ addressed the refusal issue, albeit in brief fashion.  He stated:

Clearly, from the evidence, there was a factual basis that the
    accused person had been warned with regard to the effect of a refusal and
    notwithstanding that, had provided an inadequate sample after he had been told
    of the effect of that.

[18]

We
    see no error on this issue by the SCAJ or the trial judge.  Their reasons, read
    in the context of the record, provide ample ground for appellate review of the
    basis for the refusal conviction and for the SCAJs dismissal of the
    appellants appeal from that conviction.  See
R. v. R.E.M.
;
R. v.
    Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869.

(4)

Disposition

[19]

For
    the reasons given, the test for leave to appeal to this court has not been
    met.  Leave to appeal is therefore denied.

E.A. Cronk
    J.A.

Gloria Epstein
    J.A.

David Brown
    J.A.


