DATE: 20020118
DOCKET: C36444

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) v. MARTIN COSTELLO (Respondent)

BEFORE:

ROSENBERG, GOUDGE and FELDMAN JJ.A.

COUNSEL:

Alexander V. Hrybinsky,

for the appellant

Jeffrey R. Manishen,

for the respondent

HEARD:

January 9, 2002

RELEASED ORALLY:

January 9, 2002

On appeal from the judgment of Justice Cheryl Robertson dated May 3, 2001, sitting as a summary conviction appeal court judge, allowing a summary conviction appeal from the decision of Justice Stephen J. Hunter dated July 20, 1999.

E N D O R S E M E N T

[1] In our view, the summary convictions appeal court judge erred in law in re‑weighing the evidence and determining that, in her view, there were not objective reasonable grounds to make the demand rather than determining whether there was evidence upon which a trier of fact could reasonably find that objective reasonable grounds existed. This was not a case where the trial judge failed to consider relevant evidence. To the contrary, he adverted to that evidence and concluded that there were nevertheless objective reasonable grounds.

[2] It was open to the trial judge to find that the officer had grounds to make the demand. The absence of some factors that are sometimes found in an impaired driver did not undermine the finding of reasonable grounds based on the tip from the civilian, confirmed by the officer’s own observations that the respondent was swaying, had an odour of alcohol, and had bloodshot eyes.

[3] Accordingly, leave to appeal is granted, the appeal is allowed, and the conviction is restored.

SIGNED BY: "M. Rosenberg J.A."

" S. T. Goudge J.A."

" K. Feldman J.A."