Court of Appeal for Ontario

Date: 2018-11-28 Docket: C63287

Judges: Sharpe, Paciocco and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Trung Tran Appellant

Counsel

Greg Lafontaine and Ricardo Golec, for the appellant Thomas Lemon, for the respondent

Heard and released orally: November 23, 2018

On appeal from: The conviction entered on July 16, 2015 by Justice Andrew J. Goodman of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] Mr. Tran's principal ground of appeal relates to section 8 of the Charter. That ground of appeal rests solely on a challenge to credibility findings made by the trial judge.

[2] In his Charter decision the trial judge chose to accept the testimony of Officer Reed that Mr. Tran "threw" his house and car keys on the ground when approached by the police. He did so despite the testimony of Officer Peckford that someone, either he or Officer Reed, took the keys from Mr. Tran's pocket. As a result of this, the trial judge found the keys to have been abandoned, defeating the reasonable expectation of privacy that Mr. Tran required in order to sustain his section 8 Charter challenge.

[3] Mr. Tran is now asking us to revisit the trial judge's credibility findings. We see no basis for interfering. In our view, the trial judge gave ample, cogent reasons for accepting the testimony of Officer Reed and discounting the evidence of Officer Peckford.

[4] After the Charter ruling Mr. Tran testified. During his testimony he said he was "directed" to drop the keys. In his reasons for conviction the trial judge made no finding that this occurred, but did leave open the possibility that Mr. Tran may have been directed before he dropped the keys. Mr. Tran points to the inconsistency between this finding by the trial judge, and the Charter ruling where there was mention that Mr. Tran may have thrown the keys after police direction. However, Mr. Tran did not testify on the Charter voir dire and the evidence that led the judge in his reasons for decision to leave open the possibility that Mr. Tran may have dropped the keys after a police direction, occurred after the Charter ruling was made. No request was made to reopen the Charter ruling in light of this trial evidence.

[5] We therefore deny Mr. Tran's appeal from the section 8 ruling.

[6] We see no reason to question the trial judge's s. 24(2) ruling.

[7] In our view, the uneven scrutiny ground of appeal must also be rejected. The trial judge gave sound reasons for crediting the police evidence he accepted, and the defence evidence was demonstrated in the trial judge's reasons to be implausible and inconsistent.

[8] Nor is there any basis for concluding that the trial judge misapprehended the evidence.

[9] The appeal is dismissed.

"Robert J. Sharpe J.A."

"David M. Paciocco J.A."

"Harvison Young J.A."