COURT FILE NO.: SCA(P) 1638/19
DATE: 2021-01-04
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Triston McLean
Appellant
P. Renwick, for the Crown
P. Alexander, for the Appellant
HEARD: December 18, 2020
REASONS FOR JUDGMENT
conlan J.
I. Introduction
[1] This is a summary conviction appeal brought by Mr. Triston McLean (“McLean”).
The Proceeding in the Ontario Court of Justice
[2] In the Ontario Court of Justice sitting in Brampton, on April 16, 2019, McLean was tried on one count, namely, that he without reasonable excuse refused to comply with a police officer’s demand that he provide a sample of his breath into an approved screening device, contrary to section 254(5) of the Criminal Code.
[3] The offence date and place were on February 23, 2018 at Brampton, Ontario.
[4] At trial, the Crown called two witnesses. Officer Picken testified; he effected the traffic stop that led to the arrest of McLean. Officer Mulick testified; she attended the scene after the stop and attempted to administer to McLean the roadside breath test.
[5] The Defence called no evidence at trial.
The Trial Judgment
[6] In oral reasons delivered on May 15, 2019, McLean was found guilty of the offence. The trial judge concluded that “the forthwith and reasonable suspicion components of s. 254(2) have been met”, beyond a reasonable doubt, and that McLean had clearly refused to comply with a breath demand that had been properly made (page 15 of the transcript of the Reasons for Judgment).
The Appeal
[7] The conviction, only, is being appealed. One ground is advanced in the Notice of Appeal dated June 14, 2019 – that the trial judge erred in law in finding that the breath demand was made forthwith and was, thus, a lawful demand.
[8] An acquittal is sought, or alternatively a new trial.
[9] The factum filed by the Defence makes clear that there are really two arguments: (i) the demand was not made forthwith, as there was a gap of 8-9 minutes between the time that Picken formed grounds for the roadside breath demand and the time that the demand was made, and (ii) Mulick did not have a reasonable suspicion to make the demand.
The Crown’s Response
[10] In its factum, at paragraph 2, the Crown submits that the “trial judge got it right on both issues”, and hence, the appeal should be dismissed.
The Standard of Review and the Basic Legal Principles
[11] Under section 686(1)(a) of the Criminal Code, there are three discrete bases for this appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and/or (iii) there was a miscarriage of justice.
[12] The burden is on the appellant, McLean.
[13] Factual findings made by the trial judge are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12. After all, an appeal is not a retrial. R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.
[14] Questions of law are generally reviewed on a standard of correctness.
II. Analysis
[15] For the reasons that follow, the appeal is dismissed.
Did the Trial Judge Err in Finding that the Roadside Breath Demand was Made “Forthwith”?
[16] It is submitted on behalf of the appellant that the delay in this case, 8-9 minutes, was not “reasonably necessary”, within the analysis set out by the Court of Appeal for Ontario in R. v. Quansah, 2012 ONCA 123.
[17] I disagree. I find that the trial judge made no error in his analysis of this issue.
[18] In his reasons, the trial judge referred at length to Quansah, including the “reasonably necessary” test – see pages 7 through 10 of the judgment. There is no question that the trial judge understood (properly interpreted) the law.
[19] There is equally no doubt in my mind that the trial judge properly applied the law. At page 13 of the judgment, the trial judge concludes that the delay was “reasonably necessary” because the time was used to run a police query, and to call for and receive the device, and to explain to McLean the consequences of refusing.
[20] It is submitted on behalf of the appellant (see paragraph 39 of the factum) that the trial judge ignored or gave insufficient weight to Picken’s own admissions at trial that he could have, and should have, made the demand earlier.
[21] I disagree. The trial judge did not ignore the evidence about Picken being able to make the demand earlier (see page 11 of the judgment, at line 13). Still, the trial judge concluded that the delay in making the demand was reasonably necessary. Further, the trial judge was tasked with determining whether the demand should have been made earlier, not the officer.
[22] It is submitted on behalf of the appellant that there were no case-specific officer safety concerns in this case.
[23] I disagree. The trial judge found otherwise, and he gave cogent reasons for that finding (see page 11 of the judgment, at lines 18-29). That Picken may have testified that he routinely runs such queries does not detract from the trial judge’s finding that it was reasonable to do so here.
[24] It is submitted on behalf of the appellant that Picken was wrong to believe that the assisting officer who was bringing the device to the scene should be the one who makes the demand. It is common ground that the said belief was another reason why Picken delayed the making of the demand. Mr. Alexander argues that the decision of the trial judge cannot be squared with another decision of the same judge in a case called R. v. Nithiyananthaselvan, 2016 ONCJ 426.
[25] In that case, the trial judge had found that the officer on scene should have made the demand himself, even though he did not have the device with him.
[26] I disagree with the appellant’s position. Every case is decided on its own facts. In the prior decision referred to, the trial judge had found that “[t]here was no reason at all to delay nine minutes in making the ASD demand…”; that finding was not made in our case.
[27] It is submitted on behalf of the appellant that, in addition to the time that elapsed between Picken requesting the device to be brought to the scene and the time that it arrived on scene (about four minutes), there was other delay (about five minutes) that was totally unnecessary.
[28] I disagree. This is nothing but a rehashing of the Quansah arguments alluded to above. It is not for this Court to retry the case – to parse out each minute of time and determine if that was justified.
[29] Finally, it is submitted on behalf of the appellant that the trial judge misapprehended or misstated the evidence when he found that Picken could have made the demand at 3:36 or 3:37 a.m.
[30] I agree. Picken’s evidence at trial was more accurately that he formed the requisite reasonable suspicion at 3:34 or 3:35 a.m., and thus, he could have made the demand then.
[31] In neither the factum nor oral submissions, however, was it argued on behalf of the appellant that the said misapprehension, on its own, led to a miscarriage of justice or even that it materially affected the verdict. Mr. Alexander was responsible and professional in not arguing that.
[32] This Court is not prepared to disturb the result below on the basis of 60 to 180 seconds.
Did the Trial Judge Err in Finding that the Roadside Breath Demand was Made on the Basis of the Requisite Reasonable Suspicion?
[33] Much less time was spent on this issue than on the first one analyzed above.
[34] I agree with Mr. Renwick that the only question here is whether the subjective belief on the part of Mulick was objectively reasonable in the circumstances.
[35] Mr. Alexander is correct that Mulick herself appears to have relied on three things (not four, as suggested by the trial judge), all information supplied to her by Picken – (i) that McLean had left a licensed establishment, and (ii) that he drove away at a high rate of speed, and (iii) that he failed to signal.
[36] It matters not, however, whether those three things combined satisfy the objective component of the test. There was a fourth factor, not relied upon by Mulick but clearly referred to in the evidence – that McLean had an odour of alcohol about him. The trial judge was incorrect in saying that Mulick herself relied on that observation by Picken, but on the objective component of the test there is no doubt that the odour can be considered. R. v. Singh, 2006 CanLII 42607 (S.C.J. – Durno J.), paragraph 18.
[37] In my view, taking the four factors together, the test has been satisfied. There is no reason to disturb the legal conclusion below, a correct one, that the demand was lawful in terms of it having been made on the basis of the requisite reasonable suspicion that McLean had alcohol in his body at the time that the demand was made.
III. Conclusion
[38] For all of the foregoing reasons, the appeal is dismissed.
[39] I have deliberately not dealt with the Crown’s submission that any delay that arose before Mulick arrived on scene is irrelevant to the “forthwith” issue, provided that Mulick made the demand forthwith after forming her reasonable suspicion. I find it unnecessary to resolve that question in order to dispose of the within appeal. It is a question of law. It is hotly contested among counsel in this case. It was not the subject of argument or decision in the court below. It is a path that does not appear to have been well travelled in other cases. It is extraneous to the result in this Court. As such, it is better left for another day.
(“Original signed by”)
Conlan J.
Released: January 4, 2021
COURT FILE NO.: SCA(P) 1638/19
DATE: 2021-01-04
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
HER MAJESTY THE QUEEN
– and –
Triston McLean
Appellant
REASONS FOR JUDGMENT
Conlan J.
Released: January 4, 2021