



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ballantine, 2019 ONCA 498

DATE: 20190617

DOCKET: C65001

Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Ballantine

Appellant

Julianna A. Greenspan and Brad Greenshields, for the
    appellant

Sean Horgan, for the respondent

Heard: June 7, 2019

On appeal from the convictions entered by Justice Jonathan
    Bliss of the Ontario Court of Justice on October 2, 2017, and from the sentence
    imposed on February 20, 2018.

REASONS FOR DECISION

[1]

The appellant, Daniel Ballantine, appeals his
    conviction of two counts of impaired operation of a vessel causing bodily harm,
    contrary to s. 255(2) of the
Criminal Code
. He also seeks leave to appeal the sentence imposed.

[2]

The convictions arose out of a boating accident
    on September 6, 2014. After drinking beer and wine throughout the day and into
    the evening, the appellant took control of a boat travelling 25-30 mph, in
    unfamiliar waters, at a time when it was getting dark. He failed to follow
    directions and, about a minute after taking control of the boat, he turned the
    boat on a sharp angle up over the rocky shore of an island directly into a
    tree. Two of the boats passengers, Katelyn Hopkins and Kim Makey-Dobson, were
    ejected from the boat and sustained injuries as a result.

[3]

The incident occurred at about 9:00 p.m.
    Constable Eriksson was the first officer on the scene, arriving at 9:51 p.m. By
    10:00 p.m., he had formed the grounds to arrest the appellant for impaired
    operation of a vessel. He arrested the appellant and read him a breath demand.

[4]

The appellant was transported to the Orillia OPP
    detachment, where he provided two samples of his breath to a qualified breath
    technician, at 11:35 and 11:57 p.m. His blood alcohol concentration (BAC) at
    those times was 82 and 75 mg/100 ml, respectively. Dr. Darryl Mayers, a
    forensic toxicologist called as an expert witness by the Crown, used the lower
    of the two results to perform a retrograde extrapolation of the appellants BAC
    at the time of the incident. Based on a number of assumptions, he projected
    that the appellants BAC at 8:30 p.m. to 8:45 p.m. was between 80 and 140 mg of
    alcohol in 100 ml of blood. His opinion was that a person would be impaired at
    this blood alcohol level; indeed, in his opinion, individuals who have blood
    alcohol levels of 50 mg/100 ml and greater have an aspect of their ability to
    operate a motor vehicle impaired. However, he was clear that absent individual
    testing of the appellants reaction to alcohol, he could not specifically say
    that the appellant was impaired.

[5]

The appellant was sentenced to 18 months imprisonment,
    12 months probation, and a two-year driving prohibition. Restitution, non-contact
    and victim surcharge orders were also imposed.

The Conviction Appeal

[6]

The appellant raises three grounds of appeal against
    his convictions:

1. The convictions were
    unreasonable because they were not supported by evidence of impairment;

2. Constable Eriksson did not
    have reasonable and probable grounds to arrest the appellant for impaired
    operation; and

3. Constable Eriksson did not
    have reasonable and probable grounds to make a s. 254(3) breathalyzer demand.

[7]

The appellant abandoned his argument that the evidence
    did not support a finding that Katelyn Hopkinss injuries amounted to bodily
    harm as defined by s. 2 of the
Criminal Code
and/or were caused by the boating accident.

1.

Reasonableness of the convictions

[8]

The appellant argues that his conduct could be
    reasonably explained by his unfamiliarity with the vessel and the channels
    around the island, darkness, and simple driver error. He submits that,
    stripping away what he characterizes as his inconclusive conduct, all that was
    left was the BAC extrapolation, which, alone, was not probative of impairment:
    Dr. Mayers conceded that he could not definitively opine on the appellants
    impairment at the relevant time without individual testing. Accordingly, the
    appellants convictions were unreasonable.

[9]

We reject this argument.

[10]

The trial judge explained why he was satisfied
    beyond a reasonable doubt that the appellants ability to operate the vessel
    was impaired by his consumption of alcohol:

Considering all of the circumstances, was [the
    appellants] conduct, viewed objectively, consistent only with impairment and
    inconsistent with some other explanation. (
R. v. Andrea
[2004] N.S.J. No. 399 (C.A.)). I find that it was. He had been
    drinking throughout the day. Whatever boat was being operated, he kept asking
    to drive. When he had asked during the boat cruise, he was told no. That was
    at a time when he had consumed less alcohol, the sun was out and visibility was
    not an issue. When they returned after dropping the Hills off, it was getting
    dark. He was unfamiliar with the waters. He testified that he had a boaters
    licence and a boat at the time. He admitted in his testimony that he knew he
    should not be driving by himself and yet he was. He was directed to turn
    slightly to the right. It was not simply the unfamiliarity and the light
    conditions but the amount of alcohol he had consumed which I find led him to
    inexplicably turn the steering wheel sharply to the right instead of slightly. [The
    appellants] consumption of alcohol affected his ability to perceive and
    respond to direction from Mr. Hopkins as well to respond to the red and green
    warning markers at Buckskin Island to indicate what route to take or more
    importantly what route to avoid. Dr. Mayers retrograde extrapolation suggests
    the possibility that [the appellant] was impaired by alcohol at the time. [The
    appellants] conduct, and the evidence I have heard, proves beyond a reasonable
    doubt that his ability to operate the vessel was impaired by his consumption of
    alcohol.

[11]

The trial judges conclusion did not rest on Dr.
    Mayers opinion. Earlier in his reasons, the trial judge noted that absent
    individual testing, Dr. Mayers could only say that it is possible that the
    appellant was impaired. In concluding that the appellants ability to operate
    the vessel was impaired by his consumption of alcohol, all the trial judge
    noted was that Dr. Mayers retrograde extrapolation suggests the possibility
    that the appellant]was impaired by alcohol at that time.

[12]

The trial judges conclusion was based on the
    totality of the evidence, including the evidence of the appellants alcohol
    consumption. Viewed in isolation, a particular element of the appellants
    conduct may not have been consistent only with impairment and might have been
    consistent with the some other explanation. But the trial judges conclusion
    was properly based on all of the circumstances. He considered all of the appellants
    conduct. The appellants convictions were reasonable.

2.

Reasonable and probable grounds for arrest

[13]

The appellant argues that Constable Erikssons
    subjective belief that there were reasonable and probable grounds for arrest
    was rendered objectively unreasonable because he failed to conduct any
    investigation into the circumstances leading to the accident before he arrested
    the appellant. In the appellants view, the trial judge simply reasoned
    backwards from the fact of the accident, resulting in injured parties, to
    impairment.

[14]

We reject this argument.

[15]

Before arresting the appellant, Constable Eriksson
    observed the scene of the accident and spoke with Kim Makey-Dobson, who
    identified the appellant as the operator of the boat, and the appellant, who
    admitted he had consumed alcohol. The trial judge explained:

Cst. Eriksson had before him an individual
    identified as the operator of a boat that had somehow managed to crash into an
    island with sufficient force to cause two passengers to be ejected, who
    admitted to having consumed alcohol, and had an odour of alcohol coming from
    his breath. While [the appellants] red or glossy eyes and his unsteadiness in
    the context of a recent accident and the natural terrrain might not in and of
    themselves be sufficient to indicate impairment, the assessment of the
    objective reasonableness of the officers grounds is not an exercise in parsing
    off indicia, but one of considering all of the circumstances that the officer
    was presented with. Cst. Erikssons grounds to make the arrest were both
    subjectively reasonable, and in the context of the totality of the
    circumstances, objectively reasonable.

[16]

There is no basis to interfere with the trial
    judges conclusion.

3.

Reasonable and probable grounds for the
    breathalyzer demand

[17]

The appellant raises a
Charter
argument that he did not make
    before the trial judge. He argues that the trial judge erred in concluding that
    Constable Eriksson had reasonable and probable grounds to make a s. 254(3)
    breathalyzer demand because the Crown failed to elicit any evidence from Constable
    Eriksson that he formed the subjective belief that the offence was committed
    within the previous three hours, or that he even turned his mind to this
    statutory element.

[18]

Generally, this court will not permit an issue
    to be raised for the first time on appeal. The burden is on the appellant to
    satisfy the court that it should exercise its discretion to permit the argument
    to be advanced:
R
. v. Reid
, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 37-44.

[19]

The appellant has not discharged that onus in
    this case. Society has an interest in the finality of litigation in criminal
    matters. It expects that criminal cases will be disposed of fairly and fully at
    first instance. Defence counsel has a responsibility to advance all appropriate
    arguments throughout the trial:
Reid
, at para. 40.

[20]

As the appellant argues, to rebut the
    presumption of unreasonableness of the warrantless search and seizure of a s.
    254(3) breath demand, the Crown must establish that the peace officer believed
    that the offence was committed within the three hours preceding the making of
    the demand. Because the appellant did not assert that Constable Eriksson did
    not have reasonable and probable grounds to make a s. 254(3) breathalyzer
    demand before or at trial, the Crown did not have the opportunity to respond to
    and adduce evidence on this issue at trial. It would be prejudiced by the
    determination of this issue on the existing evidentiary record.

The Sentence Appeal

[21]

The appellant argues that the trial judge erred
    in principle by failing to specifically advert to and consider the fundamental
    principle of proportionality in the sentencing process, enshrined in s. 718.1
    of the
Criminal Code
.
    As a result, the appellant submits, the trial judge placed undue emphasis on
    denunciation and deterrence and insufficient weight on the circumstances of the
    offender who was of good character, was 46 years old at the time of sentencing,
    and had never before been charged with an offence. He argues that an
    appropriate sentence was three to six months imprisonment.

[22]

He also submits that, in accordance with
R. v. Boudreault
, 2018 SCC 58, 369
    C.C.C. (3d) 358, the victim surcharge order should be quashed.

[23]

Leave to appeal sentence is granted, and the
    victim surcharge order is quashed. However, there is no basis for this court to
    otherwise interfere with the sentence imposed. As the appellant concedes, the
    sentence imposed is within the normal range for impaired driving causing bodily
    harm. The trial judge considered the circumstances of the appellant and the
    various mitigating factors the appellant adverts to. He was alive to the
    tension between the appellants otherwise exemplary life and the need for
    substantial sentences to be imposed for impaired operation of a vessel offences.

Disposition

[24]

Accordingly, the appeal against conviction is
    dismissed. Leave to appeal sentence is granted and the victim surcharge order
    is quashed. The sentence imposed is otherwise unaltered.

Alexandra
    Hoy A.C.J.O.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.


