Court File and Parties

COURT FILE NO.: SCA(P) 1580/19 DATE: 20200113 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Ms. Y. Brar, for the Crown Respondent

- and -

CHRISTOPHER NAGY Self-Represented Appellant

HEARD: January 10, 2020

Reasons for Judgment

[On appeal from the conviction by Justice B. Duncan dated April 11, 2019]

STRIBOPOULOS J.

I

[1] Following a trial before Duncan J. of the Ontario Court of Justice, the appellant was found guilty of operating a motor vehicle with a blood alcohol level in excess of the legal limit.

[2] On this appeal against his conviction, the appellant advances two closely related grounds of appeal. The appellant claims the trial judge erred: (1) in assessing his evidence; and (2) in failing to find a violation of his right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Charter.

II

[3] The appellant’s arrest took place following his detention at a RIDE check stop after he failed an approved screening device breath test. At the police division, he furnished two breath samples into an approved instrument registering results above the legal limit on both tests.

[4] At trial, there was conflicting evidence from the arresting officer and the appellant regarding events at the roadside.

[5] According to the officer, after stopping the appellant's vehicle, he proceeded with an approved screening device breath test because he concluded that the appellant was driving after consuming alcohol. The officer testified that his grounds for administering the initial breath test came from the combination of an odour of alcohol on the appellant’s breath, the appellant having red-rimmed and watery eyes, and an admission by the appellant that he had consumed alcohol.

[6] During cross-examination, the officer testified to detecting an odour of alcohol on the appellant’s breath when he placed his head beside the open driver’s side window. The officer denied inserting his head into the vehicle to detect the odour of alcohol on the appellant’s breath.

[7] In contrast, the appellant testified that, at the roadside, the officer placed his head well inside the vehicle, initially while speaking to the front passenger. According to the appellant, the officer did this two or three more times before telling him that he “smelt something” and asking him if he had had anything to drink. At that point, although the appellant initially told the officer he had not been drinking, he quickly admitted to having a beer. He testified that he only acknowledged this because he felt coerced to do so by the police officer’s questions and actions. During his trial testimony, the appellant admitted drinking a beer before driving, and four or five earlier in the day.

[8] In his reasons for judgment, the trial judge addressed whether or not the officer inserting his head into the vehicle violated the appellant’s s. 8 Charter right to be secure against unreasonable search or seizure.

[9] After reviewing the conflicting evidence, the trial judge concluded that the “truth is probably somewhere in between.” The trial judge found the “officer did put his head into the vehicle, to the extent that it crossed the plane of the window opening.” However, he rejected that this took place to the extent described by the appellant, reasoning that such an invasive intrusion would be entirely unnecessary for the officer to detect an odour of alcohol.

[10] The trial judge went on to consider whether or not the police officer’s actions – in placing his head inside the vehicle just slightly beyond the plane of the driver’s window – represented an unlawful intrusion upon the appellant’s reasonable privacy expectation and a violation of his s. 8 Charter right. The trial judge held that it did not, reasoning as follows:

Police officers have wide authority to make random sobriety stops of vehicles and checks of the driver, and to conduct such tests and make such observations as are reasonably necessary to make an assessment of the driver’s condition.

It is reasonable, in my view, for an officer to position himself in such a way that he can detect an odour of alcohol, if it is present.

In my view, a minor incursion inside the vehicle by the officer for this purpose is reasonable and it is noteworthy that no precedent or decision has ever held otherwise.

III

[11] The appellant says the trial judge erred by failing to accept his evidence about the extent to which the officer positioned his head inside the vehicle.

[12] A trial judge's findings of fact are afforded deference on appeal. Appellate courts are not to reweigh the evidence and intervene because they would have made different findings: see Housen v. Nikolaisen, 2002 SCC 33, at para. 3; H.L. v. Canada (Attorney General), 2005 SCC 25, at para. 52. Instead, appellate intervention is only justified where the trial judge's findings reflect "palpable and overriding error": Housen, at para. 10; see also R. v. Le, 2019 SCC 34, at para. 23. This same standard of review governs when it comes to credibility findings: see R. v. Gagnon, 2006 SCC 17, at para. 10. Finally, it is important to remember that a trier of fact is entitled to accept all, some or none of a witness' evidence: see R. v. D.D., 2000 SCC 43, at para. 34.

[13] Given the conflicting evidence at trial, I am far from persuaded that the trial judge's finding (that the officer's head breached the plane of the window but not to the extent claimed by the appellant) justifies intervention by this court. The trial judge had the benefit of seeing and hearing both the officer and the appellant as they testified. After considering the substance of their conflicting accounts, he concluded that the truth was probably somewhere in between. In other words, the trial judge accepted and also rejected evidence given by each of the two witnesses. He concisely explained his reasons for doing so. Given all of this, the appellant has failed to demonstrate that any palpable and overriding error infected the trial judge's finding.

[14] Nor am I of the view that the trial judge erred in rejecting the claim that the officer's actions violated the appellant's right to be secure against unreasonable or seizure guaranteed by s. 8 of the Charter.

[15] Police authority to conduct sobriety check-stops of motorists is long-established: see R. v. Dedman; R. v. Hufsky; R. v. Orbanski; R. v. Elias, 2005 SCC 3, at para. 40; Highway Traffic Act, R.S.O. 1990, c. H.8, s. 216(1).

[16] During such detentions, a police officer has the authority to take those steps that are reasonably necessary in the circumstances to check on the sobriety of the driver: see Orbanski, at para. 45. Of course, there are limits on the steps a police officer may undertake. A sobriety screening measure will be unreasonable, "unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee.": R. v. Smith (1996), at p. 73, adopted in Orbanski, at para. 46.

[17] Ultimately, whether a particular screening measure will fall within the scope of a police officer's authority necessarily calls for a case-specific inquiry: see Orbanski, at para. 47. The trial judge, in this case, undertook just such an assessment. He reasoned that the officer did not exceed the bounds of his authority by placing his head just slightly inside the passenger compartment of the vehicle to assess whether or not he could detect an odour of alcohol emanating from the appellant. He reasoned that this is a routine and uncontroversial aspect of sobriety check-stops. Accordingly, he concluded that the officer's actions were lawful, and there was no s. 8 Charter violation in the circumstances.

[18] There is no legal error evident in the trial judge’s analysis or conclusion. A police officer positioning their head just slightly inside a vehicle to determine if they can smell alcohol emanating from a driver falls well within the boundaries recognized in Smith. It takes place at the site of the detention, is carried out with dispatch, and is relatively unintrusive. Finally, as screening measures go, in many cases, it will be the more convenient and much safer option when compared to requiring a driver to step out of the vehicle at the roadside.

IV

[19] For the foregoing reasons the conviction appeal is dismissed.

[20] The stay of driving prohibition granted pending this appeal has accordingly expired pursuant to the terms of the order that granted it.

Signed: Justice J. Stribopoulos Released: January 13, 2020