Court File and Parties

COURT FILE NO.: CR-16-03507-00AP DATE: 20190409 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – CHARLES CHUN Appellant

Counsel: Greg J. Elder and Brian McCallion, for the Crown Gregory Lafontaine, for the Appellant

HEARD: February 1, 2019

REASONS FOR DECISION

MULLINS J.:

Introduction

[1] On April 27, 2016, Mr. Chun was charged with operating a motor vehicle while having a blood alcohol level over 80 mg contrary to s. 253(1)(b) of the Criminal Code of Canada. He was convicted of the offence following trial before The Honourable Justice N. Dwyer on September 6, 2017. Mr. Chun appeals his conviction.

[2] Application was made at trial by Mr. Chun to have his blood alcohol readings excluded on grounds his rights under ss. 8, 9, 10(a) and 10(b) of the Charter were violated by police.

Applicable Standard of Review

[3] The scope of appellate review as to findings of fact made by a trial judge is narrow. Findings of fact are not to be reversed unless it is established that the trial judge made a “palpable and overriding error”. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. The standard of review on a question of law is correctness.

[4] The Supreme Court of Canada has consistently endorsed appellate deference in reviewing the decisions of trial judges whether to exclude evidence under s. 24(2) of the Charter: see Kent Roach, Constitutional Remedies in Canada, 2nd ed., loose-leaf (Toronto: Canada Law Book, 2014) at ¶ 10.640.

[5] In R. v. Collins, [1987] 1 S.C.R. 265, at p. 519, Lamer J. stated that appellate judges should defer to the trial judge’s decision “even though they might have decided the matter differently …”.

[6] The test on an appeal, therefore, is not whether the summary conviction appeal judge would have reached the same decision, but rather, whether the trial judge’s decision was reasonable: see R. v. Grosse, (1996), 29 O.R. (3d) 785.

[7] A decision on whether to exclude under s. 24(2) of the Canadian Charter of Rights and Freedoms requires a judge to exercise some discretion. Where a judge has considered the proper factors and has not made an unreasonable finding, “considerable deference” is owed to the judge’s assessment: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 86, R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248 at para. 5, and R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215 at para. 4.

Factual Background

[8] A York Regional Police officer observed Mr. Chun’s vehicle to be travelling at a high rate of speed before it was stopped at an intersection. After the light at the intersection turned from red to green, Mr. Chun did not respond until the light turned amber. The officer initiated a traffic stop for reasons of highway safety. After one minute, the officer approached the passenger side of Mr. Chun’s vehicle. The conversation between Mr. Chun and the officer was:

Question: Where are you coming from? Answer: Jack Astors. Question: Have you had anything to drink? Answer: Yes, but I think I am OK.

[9] After this conversation the officer asked Mr. Chun to give him “a sec”.

[10] The officer formed a suspicion that Mr. Chun had alcohol in his body. The trial judge found there to be no question as to whether the officer’s suspicion was reasonable, having regard to the driving observed, the odour of alcohol coming from the vehicle, and Mr. Chun’s admission as to having had something to drink.

[11] Mr. Chun was stopped at 1:10:50 a.m. The conversation between Mr. Chun and the officer who stopped him took place between 1:11:35 and 1:12:14 a.m. A second officer arrived with an ASD at 1:14:08. At 1:15:29 Mr. Chun was asked to step out of his vehicle and told that he had been stopped due to his driving. At 1:16:57 a demand was given that he provide a breath sample. The ASD test was administered at 1:17:51.

Issues Raised by Appellant

[12] The Appellant argues the following:

1. That the conviction was unreasonable and against the weight of all of the evidence; and
2. That the trial judge erred in declining to exclude the evidence pursuant to s. 24(2) of the Charter, in that the trial judge erred in his analysis under s. 24(2).

[13] Of the Charter grounds argued at trial, the grounds of appeal advanced at this hearing related only to one: the failure of the officer who stopped Mr. Chun to have advised him of the reason for his detention, in breach of s. 10(a) of the Charter. The issue here is whether the trial judge erred in his analysis under s. 24(2) and ought to have excluded the evidence of Mr. Chun’s blood alcohol readings, given the finding that there was a s. 10 breach. An acquittal is sought. In the alternative, the appellant seeks a new trial.

[14] More specifically, this appeal is advanced in light of what may be found at paras. 23, 28, 29 and 30 of the Reasons given by the trial judge. Paragraph 28 contains the findings that are the linchpin. The trial judge reasoned:

In the circumstances the admission of drinking by Mr. Chun was not necessary to ground the reasonable suspicion. However, where the timing of the conversation is taken into account it is difficult to envision that there was a detection of the odour distinct from the brief conversation by the car. The odour would have been detected at the same time as the conversation. I do not find that the admission was improperly obtained in the circumstances. There was no time to explain jeopardy at that point. I have already determined that by the end of their brief conversation the obligation had clearly arisen.

[15] The appellant argues that logic dictates that the police officer must first have detected the odour of alcohol, then have asked Mr. Chun whether he had anything to drink, because, unless he had first detected the odour why would he have asked? The trial judge made an error in fact, submits the appellant, by treating the event of the detection of the odour of alcohol and the question as to drinking as have occurred concurrently rather than consecutively.

[16] It was concluded by the trial judge that the breach of Mr. Chun’s s. 10(a) right was not trivial. He found no bad faith, however, in the circumstances, notably where the officer had to wait for another to arrive with an ASD. The impact on Mr. Chun’s interests were minimal, he reasoned.

[17] To the extent the trial judge carried his error of fact forward through his “Grant” analysis, submits the appellant, the trial judge’s error tainted his application of the law. Accordingly, this Court may be called upon to intervene.

Did the trial judge err in his analysis of s. 24(2) in consideration of the s. 10(a) breach?

[18] The reasons of the trial judge, as found in paras. 14 and 18 reflect his analysis of s. 10(a). He found on the facts that there was a s. 10(a) breach arising from the moment of the police officer’s engagement of Mr. Chun in the conversation at 1:11 through to 11:15 a.m., when the ASD demand was given. He concluded that, with or without the conversation having taken place, the driving conduct and odour of alcohol were sufficient to have made the ASD demand.

[19] It was open to the trial judge, in applying a Grant analysis, to weigh the seriousness of the breach, measure of the conduct of the police, and consider the impact of the breach on Mr. Chun’s Charter protected interests to be minimal. The trial judge appropriately weighed whether the interests of society in having the merits adjudicated favoured admission of the breathalyzer evidence.

[20] I conclude that the trial judge’s characterization of the event of the detection of alcohol and the questions to Mr. Chun as simultaneous rather than sequential, in the particular circumstances of this case was reasonably available on the evidence and more importantly, did not serve to derail his Grant analysis, having found as he did that there had been a s. 10(a) Charter breach. The trial judge weighed the proper factors and is entitled to deference on his decision not to exclude evidence.

[21] The appeal is, accordingly, dismissed.

Justice A.M. Mullins Released: April 9, 2019