DATE: 20040213

DOCKET: C38748

COURT OF APPEAL FOR ONTARIO

RE: SHAWN DOUGLAS CALDER (Appellant) v. HER MAJESTY THE QUEEN (Respondent)

BEFORE: O’CONNOR A.C.J.O., DOHERTY and GILLESE JJ.A.

COUNSEL: Donald H. Crawford, Q.C. for the appellant Philip Perlmutter for the respondent

HEARD: February 10, 2004

ORALLY

RELEASED: February 10, 2004

On appeal from the order of Justice Killeen G.P. dated July 30, 2002.

E N D O R S E M E N T

[1] We would grant leave to appeal the order directing a new trial but would dismiss the appeal.

[2] The trial judge appears to have concluded that the police officer had no legal justification for approaching the appellant’s vehicle absent some basis for thinking that the appellant was in violation of the Highway Traffic Act or some other legislation. The appellant’s vehicle was parked in the public parking area of a plaza. The officer had followed the vehicle into the public parking area. The trial judge appears to have further concluded that absent legal justification for approaching the appellant while he was sitting in his vehicle, the officer arbitrarily detained the appellant when he spoke to him in contravention of s. 9 of the Charter. The trial judge went on to hold that while speaking to the appellant, the officer “conscripted the odour of alcohol as he approached the vehicle.” He excluded the breathalyzer results and acquitted the appellant.

[3] Like the Summary Conviction Appeal Court Judge, we disagree with this analysis. The officer needed no legal authority to approach the appellant while he was sitting in his vehicle in the public parking area and he needed no legal authority to speak to the appellant. There is no evidence upon which it could be said that the appellant was detained by the officer within the meaning of detention as explained in R. v. Therens (1985), 18 C.C.C. (3d) 481 (SCC).

[4] For these reasons, leave to appeal is granted but the appeal is dismissed.

“Dennis O’Connor A.C.J.O.”

“Doherty J.A.”

“E.E. Gillese J.A.”