



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nield, 2017 ONCA 722

DATE: 20170918

DOCKET: C62423

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Nield

Appellant

Karl Gowenlock, for the appellant

Davin M. Garg, for the respondent

Heard and released orally: September 1, 2017

On appeal from the decision of Justice J.S. Fregeau of
    the Superior Court of Justice, sitting as a Summary Conviction Appeal Court on
    June 25, 2015, allowing the appeal from the acquittal entered on April 4, 2014 by
    Justice D. Gibson of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Ryan Nield was acquitted of driving while over 80 by Justice D. Gibson
    of the Ontario Court of Justice in Kenora.  The Summary Conviction Appeal Court
    Judge (SCACJ) Fregeau J., set aside the acquittal and ordered a new trial. 
    Mr. Nield now seeks leave to appeal and if leave is granted, appeals the
    decision of the SCACJ.

[2]

The facts are simple.  At 1:22 a.m., an officer observed Mr. Nield
    running through a McDonalds parking lot to his car that was parked at a
    hotel.  He drove 300 metres on a highway to another parking lot and parked his
    car near a motel entrance.  The officer approached the car, opened the drivers
    side door and had a brief exchange with Mr. Nield.  The officer formed a
    reasonable suspicion that Mr. Nield had been drinking and demanded that he
    provide a breath sample into an approved device.  Mr. Nield registered a fail
    and subsequently provided breath samples that produced results of 130 and 129
    milligrams of alcohol in 100 millilitres of blood.

[3]

Mr. Nield argued that his rights under s. 9 of the
Charter
were
    infringed by the actions of the officer.  The trial judge agreed, holding that
    the officer had neither subjective nor objective grounds to believe that Mr.
    Nield committed a criminal offence.  The trial judge found that, while ss. 48
    and 216 of the
Highway Traffic Act
, R.S.O. 1990, c. H.8 (HTA) authorize
    police officers to detain persons for the purpose of making a demand under s. 254
    of the
Criminal Code
, the
Act
did not apply because when Mr.
    Nield was approached by the officer, he was not on a highway within the
    meaning of the Act.  The trial judge excluded the evidence gathered by the
    officer under s. 24(2) of the
Charter
.

[4]

The Crown appealed.  The Crown argued that the trial judge erred in his
    interpretation of the
Highway Traffic Act
.  For the first time on
    appeal, the Crown also argued that the common law equipped the arresting
    officer with the power to detain Mr. Nield.

[5]

Relying on
R. v. Hajivasilis
, 2013 ONCA 27, the SCACJ held that
    the trial judge was correct in his interpretation of the
Highway Traffic
    Act
.  However, he found that the officer had common law powers to detain
    Mr. Nield and investigate him for impaired driving.  He concluded that there
    was no breach of s. 9, set aside the acquittal and ordered a new trial.

[6]

The test for obtaining leave to appeal under s. 839 of the
Criminal
    Code
is exacting.  As this court held in
R. v.

R.R.
(2008),
    90 O.R. (3d) 641 (C.A.), at para. 32:

Leave to appeal may be granted 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 beyond the four corners
    of the case.  Leave to appeal may also be granted 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 specific case.

[7]

We are not satisfied that leave to appeal should be granted.  The real
    issue in this case involved the application of settled s. 9 jurisprudence to Mr.
    Nields conduct on the night in question.  The issue does not have significance
    to the administration of justice in general.
[1]


[8]

Leave to appeal is refused.

David Watt J.A.

Grant Huscroft J.A.

Gary T. Trotter J.A.





[1]

This
    application for leave to appeal was focused on s. 9 of the
Charter
. We express no views on the correctness of the decisions in the courts
    below concerning the interpretation of the
Highway Traffic Act
.


