DATE: 20051109

DOCKET: C43677

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) v. KULBIR SINGH (Respondent)

BEFORE: DOHERTY, WEILER and MOLDAVER JJ.A.

COUNSEL: Grace Choi for the appellant D. North for the respondent

HEARD & ENDORSED: November 8, 2005

On appeal from the order of Justice T. O’Connor of the Superior Court of Justice dated May 16, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The trial judge found that in all the circumstances there was no realistic opportunity to consult counsel before the roadside screening device arrived. He made that finding without coming to any definitive conclusion as to whether the respondent had a cell phone in his possession. While it would have been preferable for the trial judge to make a finding on that issue, especially given his express rejection of the appellant’s evidence that the phone rang while the officer was speaking to the respondent, the trial judge made the finding based on other circumstances, which in his view made the availability of a cell phone irrelevant. These circumstances included:

• the demand was made late at night (just before midnight);

• the officer’s reasonable belief that the Alert machine was on its way and would arrive within five to ten minutes; and

• the arrival of the machine in ten minutes and the offering of the test without further delay after the machine was operable.

[2] The Summary Conviction Appeal Court erred in making findings of fact that were inconsistent with the findings of the trial judge. These were:

• that the respondent had a cell phone when stopped; and

• that the arresting officer was faced with “an unknown” delay as to the arrival of the machine when she made the demand.

[3] In fact, the trial judge did not find that the respondent had a cell phone. As indicated above, he made no finding one way or the other. We note that the trial judge’s adverse finding with respect to the respondent’s credibility and the respondent’s conduct after his arrest (he insisted that he be taken back to the police station so he could call his lawyer), strongly suggests the conclusion that he did not have a cell phone.

[4] The trial judge also did not find that the delay was unknown. The officer reasonably anticipated a five to ten minute delay. The delay was ten minutes.

[5] The Summary Conviction Appeal Court was not entitled to substitute his findings of fact for those of the trial judge unless the trial judge’s findings were unreasonable and the Summary Conviction Appeal Court’s findings were supported by the evidence. The trial judge’s factual findings are supported by the evidence.

[6] The trial judge’s ultimate conclusion as to the absence of any realistic opportunity to speak to counsel was justified on his findings of fact. The Summary Conviction Appeal Court judge should not have reversed those findings. Leave to appeal is granted. The appeal is allowed and the conviction is restored.