COURT FILE NO.: SCA 9256
DATE: 2019-03-13
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
TAI NGUYEN
Respondent
Stephen Price, Counsel for the Appellant
Aaron McMaster, Counsel for the Respondent
HEARD: January 14, 2019
THE HONOURABLE MR. JUSTICE P.J. FLYNN
REASONS FOR DECISION
[1] This is a Summary Conviction Appeal against conviction on January 3, 2018 by Allen J., of operating a motor vehicle with blood alcohol over 80 milligrams.
[2] On August 9, 2016, the Appellant was pulled over because of some strange driving. Cst. Careless smelled the order of alcohol emanating from the driver’s breath.
[3] When the Constable asked the Appellant if he had been driving, the Appellant lied about it and denied it.
[4] That started him on the path to an adverse credibility finding.
[5] Cst. Careless’ reasonable suspicion that Mr. Nguyen had consumed alcohol before driving was born out.
[6] After registering a fail (on the third attempt) on the ASD, the Appellant was taken to the police station and provided the requisite samples of his breath. They registered blood alcohol concentrations of 135 and 132 milligrams per 100 millilitres of blood.
[7] And no wonder … the Appellant’s own evidence was that he had drunk about five beers and had two double shots of whiskey before driving.
[8] The trial judge found other aspects of the Appellant’s testimony incredible, including that which underpinned his argument that his right to private consultation under s.10(b) of the Charter was breached and his precise evidence of the timing of his drinking and his driving that night.
[9] While the Appellant says the trial judge erred in his findings of fact and credibility, in my view there is simply no basis to interfere with those findings, which disclose no palpable and overriding error.
[10] Here, it appears the trial judge engaged in a global assessment of credibility, something that is entirely within his domain, where, as here, he found that the difficulties he highlighted in the Appellant’s evidence were the result of deliberate fabrication. So he rejected virtually all of the Appellant’s testimony.
[11] On the whole, the trial judge neither misinterpreted the evidence nor disregarded any material aspect of it.
[12] He was not required to lay out every piece of evidence in his Reasons which are more than sufficient to show his path to conviction.
[13] Once he found the Appellant unworthy of credit, that pathway was clear and passed through the Appellant’s Charter complaints. That is abundantly so in respect of the Appellant’s s.10(b) Charter argument. The trial judge not only did not believe the Appellant that he lacked, or could have perceived that he lacked, privacy for his telephone call to counsel, he concluded that the Appellant fabricated the evidence. This is manifest in the Appellant’s request for a further telephone consultation.
[14] And while one might have hoped for a better delineation of the trial judge’s treatment of Cst. Careless’ inarticulation on the stand viz a vis the Alcohol Screening Device compared to his duly diligent behaviour in the field, there are no magic words requiring recital when it comes to the officer’s reasonable suspicion grounds for making the demand. I agree with the trial judge that the Crown’s evidence passed muster.
[15] And while the trial judge’s reasons do not specifically address the statutory ground to make that ASD demand, in my view this omission does not warrant appellate intervention.
[16] The evidence is overwhelming that Cst. Careless in fact possessed the requisite reasonable suspicion. The presence of the odour of alcohol on the driver’s breath is sufficient to ground a reasonable suspicion, without his reciting any ‘magic words’.
[17] Cst. Careless’ assertion that he suspected the Appellant had consumed alcohol is functionally equivalent to his saying that he suspected that the Appellant had alcohol in his body.
[18] Cst. Careless did not believe the Appellant’s denial of alcohol consumption. In this he was right.
[19] The trial judge’s conclusion on this section 8 issue was driven by his factual findings, which are reasonably supported by the evidence and disclose no palpable and overriding error.
[20] Where the trial judge’s findings or conclusions are intrinsically tied to his findings and determination of credibility issues, they must be given deference unless palpable and overriding error can be shown.
[21] In my view that ends the inquiry and the appeal must be dismissed.
[22] Appeal dismissed.
P.J. Flynn J.
Released: March 13, 2019
COURT FILE NO.: SCA 9256
DATE: 2019-03-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
TAI NGUYEN
Respondent
REASONS FOR decision
P.J. Flynn J.
Released: March 13, 2019