



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dewey, 2018 ONCA 1004

DATE: 20181207

DOCKET: C63159

Hourigan, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Dewey

Appellant

Peter Lindsay, for the appellant

Manasvin Goswami, for the respondent

Heard: December 5, 2018

On appeal from the judgment of Justice Ricchetti of the
    Superior Court of Justice, dated December 5, 2016 with reasons reported at 2016
    ONSC 7536, dismissing an appeal from the conviction entered on April 27, 2015
    by Justice K. Lenz of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The applicant seeks leave to appeal from an order entered by Justice
    Ricchetti of the Superior Court of Justice, which dismissed a summary
    conviction appeal from the conviction of refusal to provide a breath sample.

[2]

The facts may be briefly stated. The applicant was charged in the early
    evening with impaired driving. Witnesses had reported that he had been driving
    erratically, hitting the curb repeatedly, and eventually coming to stop on the
    roadway.  The wheels of his car had been damaged by his driving, the tires were
    flat and the rims were damaged.   He was passed out in the drivers seat and
    the police had difficulty waking him.  He was arrested and taken to the breath
    room at the police station.  While in the breath room he continued to show
    signs of impairment but was awake, responsive and showed a higher level of
    awareness than he had earlier.

[3]

After an 11 day trial, the applicant was acquitted of impaired driving
    and convicted of refusal to provide a breath sample.  The trial judge acquitted
    him on the impaired driving charge on the basis that the evidence as a whole,
    including the evidence that the combination of prescribed Ativan medication and
    1 1\2 glasses of wine, raised a reasonable doubt in relation to the
mens
    rea
element of the impaired driving charge.

[4]

The trial judge convicted on the refusal to provide charge on the basis
    of his finding, based on the evidence including the videotaped statements of
    the demands and refusals in the breath room, that a proper demand had been
    made, was understood, and that it was refused by the applicant of his own
    volition with a full understanding of what was being requested.

[5]

Before the summary conviction appeal judge (SCAJ), the applicant argued
    that the conviction was unreasonable on the basis that:

(i)      the
    trial judges acquittal of the applicant on the impaired driving charge was
    inconsistent with his conviction of the applicant on the refusal to provide a
    breath sample charge;

(ii)      the
    trial judge had misapprehended the evidence in relation to the applicants
    experts evidence on the effects of alcohol and drugs on the human body; and

(iii)     the
    trial judge had erred in conducting his own research with respect to one aspect
    of the experts evidence.

[6]

The SCAJ addressed each of these grounds of appeal and gave thorough,
    cogent reasons for dismissing the appeal.  The applicant seeks to raise
    essentially the same arguments before this court that he made before the SCAJ.

[7]

It is well settled, as the applicant recognizes in his factum, that
    leave to appeal pursuant so s. 839 of the
Criminal Code
should be
    granted sparingly and only when some exceptional circumstance justifies a
    further appeal:
R. v. Rowe
, 2013 ONCA 311 at para. 4.

[8]

As Doherty J.A., for the court, explained in
R. v. R.R.
, 2008
    ONCA 497, 90 O.R. (3d) 641s. 839, leave should only be granted in two distinct
    categories of cases:

(i)

Where the merits of the proposed question of law are arguable, even if
    not strong, and the proposed question of law has significance to the
    administration of justice that goes beyond the particular case;

(ii)

Where there appears to be a clear error even if it cannot be said that
    the error has significance to the administration of justice beyond the
    particular case, especially if the convictions in issue are serious and the
    applicant is facing a significant deprivation of his or her liberty.

[9]

We see no error on the part of the SCAJ and thus no merit to the
    proposed appeal.  While the SCAJ acknowledged the error on the part of the
    trial judge in conducting his own research, he found that such research was not
    material to his essential finding that the applicant had, beyond a reasonable
    doubt, refused a request to provide a breath sample.  This finding was open to
    the SCAJ on the record before him and does not constitute a clear error of law.

[10]

To
    the extent that there is any arguable merit to any of the questions of law
    raised by the appellant, the proposed appeal does not meet the test for leave
    as set out in
R.R
. because it fails to raise any legal issues of
    significance to the general administration of justice.

[11]

The
    application for leave is therefore dismissed.

C.W.
    Hourigan J.A.
G. Pardu J.A.
Harvison Young J.A


