



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mayrhofer-Lima, 2017 ONCA 949

DATE: 20171206

DOCKET: C63293

Epstein, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Marti Mayrhofer-Lima

Respondent

Davin Michael Garg, for the appellant

Philip B. Norton, for the respondent

Heard: December 1, 2017

On appeal from the order of Justice Kelly P. Wright of the
    Superior Court of Justice, dated January 4, 2017, allowing an appeal from the
    conviction entered on June 7, 2016 by Justice William R. Wolski of the Ontario
    Court of Justice.

REASONS FOR DECISION


[1]

The appellant seeks
    leave to appeal a decision of the Summary Conviction Appeal Court (SCAC).  The
    SCAC judge set aside the respondents conviction for impaired operation of a
    motor vehicle and ordered a new trial.

[2]

After hearing from counsel for the
    appellant, we denied leave to appeal.  We said our reasons would follow and we
    now provide those reasons.

[3]

The respondent crashed
    his car into a fire hydrant. An ambulance and fire crew arrived at the scene,
    followed by a police officer.  The officer attended at the ambulance to speak
    with the respondent, who promptly informed the officer that he had crashed the
    car.  The officer replied that an investigation was underway and advised the
    respondent that he did not have to say anything to the police.  The respondent
    nevertheless admitted to the officer that he had been drinking at a bar with
    friends and had blacked out while driving (the Ambulance Statement).

[4]

The respondent was
    placed under arrest, informed of his right to counsel, and transported to a
    police station.  While en route to the station, the respondent reiterated the
    Ambulance Statement to the police.  Upon arriving at the station, the
    respondent provided breath samples for an intoxilyzer reading.

[5]

The respondent was
    charged with impaired operation of a motor vehicle and driving over 80.  He
    brought applications under s. 7, s. 8, s. 9, s. 10(a) and s. 10(b) of the
Charter

to exclude from evidence the intoxilyzer
    results and his statements to the police.  The Crown conceded that the
    respondents s. 8, s. 9 and s. 10(b) rights had been breached, but opposed
    exclusion of the evidence under s. 24(2).  The trial judge rejected the Crowns
    concession that these
Charter

rights
    had been breached and found that no
Charter

breaches
    had occurred.  The trial judge therefore convicted the respondent of impaired
    operation of a motor vehicle.

[6]

The SCAC judge allowed
    the respondents appeal and ordered a new trial. She held that the Ambulance
    Statement had been obtained in breach of the respondents s. 10(a) rights.  The
    respondent, in her view, had not been properly informed that he was subject to
    a criminal investigation as opposed to an ordinary traffic investigation.  Second,
    the SCAC judge found that the trial judge had not provided the respondent a
    proper opportunity to make submissions on this courts decision in
R. v. Bush
, 2010 ONCA 554, 101 O.R. (3d) 641.

[7]

In support of the leave
    application the appellant submits the SCAC judge erred in finding a s. 10(a)
    breach.  In the appellants view, the respondents s. 10(a) rights were not
    engaged because he had not been detained in the ambulance.  The appellant also
    argues the SCAC judge erred in finding that the respondent was deprived of the
    opportunity to make submissions on
Bush

at
    trial.

[8]

This courts decision in
R. v. R. (R.)
(2008), 90 O.R. (3d) 641 sets out the principles that govern whether
    leave to appeal will be granted under s. 839(1)(a) of the
Code
.  A
    second appeal in summary conviction proceedings is the exception, not the rule:
R. (R.)
, at para. 24.  Appeals under s. 839(1)(a) are
    restricted to questions of law alone:
R.
    (R.)
, at para. 24.  The principal
    factors that influence the decision about whether leave to appeal should be
    granted are the significance of the proposed question of law beyond the
    circumstances of the case to the administration of justice in the province and
    the strength of the appeal.
R. (R.)
, at para. 30.  Leave to appeal may be granted where
    the merits of the proposed ground of appeal are arguable, even if not strong,
    provided the proposed question of law has significance to the administration of
    justice beyond the facts of the case under appeal.  Leave to appeal may also be
    granted where the decision of the appeal judge reflects a clear error, even
    if the error lacks general significance to the administration of justice:
R. (R.)
, at
    paras. 32 and 37.  Appeals under s. 839(1)(a) are appeals from the decision of
    the appeal judge, not a second appeal from the decision of the trial judge:
R. (R.)
,
at para. 24.


[9]

In our view, neither
    branch of the
R. v. (R.)
test has been met.

[10]

This appeal does not
    raise an issue of significance to the general administration of criminal
    justice.  We do not share the appellants concern that the SCAC judges
    decision improperly lowers the standard to trigger a detention.  The SCAC
    judge, in fact, made no effort to explain why the respondent was detained,
    undoubtedly because the issue was not contested before her by the appellant,
    and was expressly conceded by the appellant at trial.  In the circumstances, we
    are of the view that the SCAC judges decision does not introduce any meaningful
    change to the legal principles governing investigative detention or raise any
    other issue of general importance.

[11]

Nor has a clear error
    been demonstrated. Detention was not contested before the SCAC judge. If the
    respondent was detained, it is not clear that the respondent was advised
    adequately of the reason for his arrest. When the trial record is examined, the
    claim that the SCAC judge was clearly wrong in finding that the respondent was
    not given an adequate opportunity at trial to respond to the reasonable and
    probable grounds issue is not made out, either.

[12]

Since the result of the SCAC
    judges determination is that there must be a new trial, the issue of whether
    there was a breach of any of the respondents
Charter
rights will fall
    to be determined afresh on the evidence and submissions that are then made. Nothing
    in this decision is to be taken as predetermining any of those issues.

[13]

The appellant submits
    that even if the respondents s. 10(a) rights were breached, the curative
    proviso should be employed to uphold his conviction. We disagree. The
    unchallenged evidence at trial was not so overwhelming that the appellants
    conviction would have been inevitable:
R. v. Sekhon
, 2014
    SCC 15, [2014] 1 S.C.R. 272, at para. 53.

[14]

Leave to appeal is therefore denied.

Gloria Epstein
    J.A.

David M.
    Paciocco J.A.

I.V.B.
    Nordheimer J.A.


