Court File and Parties

CITATION: R v. Carson, 2009 ONCA 157

DATE: 20090219

DOCKET: C48818

COURT OF APPEAL FOR ONTARIO

BEFORE: Weiler, Moldaver and Rouleau JJ.A.

BETWEEN:

Her Majesty the Queen Appellant

And

Cole Joseph Carson Respondent

COUNSEL: David Friesen for the appellant Michael D. McArthur for the respondent

HEARD AND ENDORSED: February 13, 2009

On appeal from the order of Justice John C. Kennedy of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated April 23, 2008, allowing the appeal from conviction by Justice Michael P. O’Dea of the Ontario Court of Justice, dated March 29, 2007.

APPEAL BOOK ENDORSEMENT

[1] Leave to appeal is granted. With respect, the Summary Conviction Appeal Judge erred in concluding that the investigating officer could not conclude, for purposes of making a roadside demand under s. 254(2) of the Code, that a driver has alcohol in his body by the smell of alcohol on his breath. This court in R. v. Lindsay (1999), 134 C.C.C. 463 held otherwise. We affirm the correctness of that decision. In any event, here, the officer had more than the smell of alcohol; he also had the respondent’s denial that he had consumed any alcohol. Together, those two factors gave the officer the grounds he needed to make the s. 254(2) demand.

[2] As for the W.D. point, we are not persuaded that the trial judge misapprehended the evidence to the contrary led by the respondent, in any material respect; nor are we persuaded that the trial judge misapplied the principles in W.D. To the extent that the Summary Conviction Appeal Judge found error on the basis that the trial judge did not ask himself the question whether the respondent’s evidence “might reasonably be true”, the Summary Conviction Appeal Judge erred. That is not the test to be applied; rather, the test is the one stated by the trial judge, namely, that the evidence to the contrary raised by the respondent did not leave him in a state of reasonable doubt. That was the proper way to address the second prong of W.D. and the trial judge was correct in the approach he took.

[3] Accordingly, leave to appeal is granted, the appeal is allowed and the conviction for driving “over .80” is restored.