



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lam, 2016 ONCA 850

DATE: 20161110

DOCKET: C60411

Watt, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bill Lam

Applicant/Appellant

Peter Lindsay, for the applicant/appellant

Philip Perlmutter, for the respondent

Heard: October 17, 2016

On appeal from the decision dated April 7, 2015 of Justice
    Robert F. Goldstein of the Superior Court of Justice, sitting as a summary
    conviction appeal court, allowing the appeal from the acquittal entered on March
    14, 2014 by Justice Brent Knazan of the Ontario Court of Justice.

By the Court:

[1]

The applicant seeks leave to appeal from a decision of a judge of the
    summary conviction appeal court who set aside the applicants acquittal of
    operating a motor vehicle with a prohibited concentration of alcohol in his
    blood and ordered a new, and third, trial.

[2]

At the conclusion of argument on whether leave to appeal should be
    granted, we advised counsel that leave to appeal would be refused. We promised
    brief reasons for our decision. Those reasons follow.

The Background

[3]

It was an essential element of the case for the Crown at trial that it
    proved that, while operating a motor vehicle, the applicant had a concentration
    of alcohol in his blood that exceeded 80 milligrams of alcohol in 100 millilitres
    of blood. To establish this essential element of the offence, the Crown sought
    to invoke the presumption of identity in s. 258(1)(c) of the
Criminal Code
.

The Trial Decision

[4]

The trial judge declined to admit the certificate of analysis as
    evidence of the blood alcohol concentration of the applicant when he was
    operating his motor vehicle. The trial judge considered that the failure to
    send the approved instrument  an Intoxilyzer  for annual inspection for 13
    months amounted to evidence tending to show that the instrument was operated
    improperly, thus defeating the presumption in s. 258(1)(c) and rendering
    evidence of the results of the analysis inadmissible. The case for the Crown
    failed. The trial judge entered an acquittal.

The Summary Conviction Appeal

[5]

The Crown appealed the acquittal to the summary conviction appeal court.

[6]

A judge of the summary conviction appeal court ordered a new trial. In
    his view, the trial judge had erred in elevating the recommendations of the
    Alcohol Test Committee that approved instruments be
inspected
annually
    to a condition precedent for proper operation of the instrument. This error led
    the trial judge to conclude that the presumption of identity in s. 258(1)(c)
    was not engaged and thus could not be invoked to establish the applicants
    blood alcohol concentration when he was operating his motor vehicle.

[7]

The judge of the summary conviction appeal court also found that the
    trial judge had misapprehended the evidence of a toxicologist called as an
    expert witness by the Crown and had further erred in relying on the evidence of
    a defence toxicologist that the failure of an annual inspection meant that the
    approved instrument was operated improperly, thus defeating the application
    of s. 258(1)(c). Whether the instrument was operated improperly was a
    question of law for the trial judge to decide, not an issue upon which the
    expert witness was entitled to offer an opinion.

The Motion for Leave to Appeal

[8]

In his Notice of Application for Leave to Appeal and Notice of Appeal,
    the applicant alleged six legal errors by the summary conviction appeal court.
    In his factum, counsel for the appellant did not set out any discrete questions
    of law upon which he sought leave to appeal. In oral argument, however, the
    applicant characterized the question of law on which he sought leave as whether
    the phrase operated improperly in s. 258(1)(c) includes improper maintenance
    of the approved instrument.

The Test for Leave to Appeal

[9]

Section 839(1) of the
Criminal Code
limits appeals to this
    court from decisions of summary conviction appeal courts to grounds involving
    questions of law alone and requires that leave to appeal be granted by this
    court. This second level of appeal in summary conviction proceedings is an
    appeal from the decision of the summary conviction appeal court, not a second
    appeal from the decision of the trial court. The appeal is limited to questions
    of law alone and does not extend to questions of fact alone or of mixed fact
    and law, as do appeals to the summary conviction appeal court from decisions
    made at trial. Second appeals in summary conviction proceedings are the
    exception, not the rule:
R. v. R.(R)
, 2008 ONCA 497, 90 O.R. (3d) 641,
    at para. 25.

[10]

Two key variables influence the leave decision:

·

The significance of the legal issue(s) raised to the general
    administration of criminal justice

·

The merits of the proposed ground(s) of appeal.

Issues that have significance to the administration of
    criminal justice beyond the particular case may warrant leave to appeal,
    provided the grounds are at least arguable, even if not especially strong. And
    leave to appeal may also be granted even if the issues lack general importance,
    provided the merits appear very strong, especially if the conviction is serious
    and an applicant is facing a significant deprivation of his or her liberty:
R.(R.)
,
    at para. 37.

The Standard Applied

[11]

Several factors persuaded us that this is not a case in which leave to
    appeal should be granted.

[12]

First, leave to appeal in summary conviction proceedings is the
    exception, not the rule. It is all the more so when an applicant, charged with
    an offence that is alleged to have occurred over eight years ago, has already
    had two trials and two summary conviction appeals. At some point, finality must
    prevail.

[13]

Second, to the extent that the question of law on which leave to appeal
    is sought is commingled with complaints of misapprehension of evidence, the
    ground involves the application of well-settled principles of law in no need of
    restatement or refinement. Almost by definition, complaints about
    misapprehension of evidence by the summary conviction appeal court are
    case-specific and do not transcend the idiosyncrasies of the case at hand.

[14]

Third, invocation of the frequency with which alcohol-driving
    prosecutions populate the lists in the Ontario Court of Justice to fund a claim
    of wider application proves too much. If frequency of prosecution were the
    touchstone for granting leave to appeal, leave would become the rule, not the
    exception in alcohol-driving offences.

[15]

Fourth, the substantive issue the applicant seeks to advance is
    controlled by
R. v. St
‑
Onge
    Lamoureux
, 2012 SCC 57, [2012] 3 S.C.R. 187 (not
R. v. Jackson
,
    2015 ONCA 832, 128 O.R. (3d) 161 as the respondent suggests). We see no
    misapplication of those principles by the summary conviction appeal court.

Conclusion

[16]

For these reasons, leave to appeal was refused.

Released: November 10, 2016 (DW)

David Watt J.A.

P. Lauwers J.A.

M.L. Benotto J.A.


