ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and -
Idowu Ajanaku
Respondent
Joanne Bruno, for the Appellant Crown
Jerry Herszkopf, for the Respondent
HEARD: August 16, 2021
M.D. FORESTELL J.
reasons for decision
Overview
1This is a Crown appeal from the decision of Justice D. Moore acquitting the Respondent on a charge of refusing to provide a breath sample into an alcohol screening device.
2The trial judge concluded that he had a reasonable doubt that the officer had made a valid demand.
Background
3In his evidence at trial, PC Toms, the officer who made the demand, cited a number of reasons for his suspicion that the Respondent had alcohol in his body: the Respondent had been urinating outside his vehicle on a public road in midtown Toronto at 2:00 a.m. on a Saturday; the Respondent had glassy eyes; the Respondent smelled of alcohol; and the Respondent had an open, mostly-empty bottle of liquor out in the open in the rear of his vehicle.
4PC Toms described the smell of alcohol as slight and sweet. A second officer who attended the scene, PC Antal, testified that he could smell an odour of alcohol emanating from the Respondent while the Respondent was three to five meters away from him and out of the car. PC Antal testified that this was unusual.
5The trial judge, relying on the evidence of the Respondent, accepted that the Respondent had not consumed alcohol. As a result, although he did not make a finding that PC Toms was lying, he had concerns about the credibility and reliability of the evidence of the officer.
6The trial judge found that the evidence of the second officer, PC Antal, did not resolve his concerns about the evidence of PC Toms because PC Toms described a slight odour of alcohol and PC Antal described a strong odour of alcohol.
7The trial judge concluded that urinating at the side of the road and the presence of an open bottle of alcohol in the rear seat of the car did not give rise to a reasonable suspicion that the Respondent had alcohol in his system.
Grounds of Appeal
8The Appellant argues that the trial judge erred in law and points to three errors:
(1) The trial judge conflated two issues: the question of whether it was objectively reasonable for the officer to suspect that Mr. Ajanaku might have alcohol in his system, which was relevant to the validity of the screening demand, and the question of proof beyond a reasonable doubt that the Respondent actually had alcohol in his system, which was irrelevant. In conflating these questions and having accepted that PC Toms honestly believed he had smelled alcohol, the trial judge committed the same reversible error as in R. v. McCann, 2014 ONSC 5618. The accuracy of the officer's suspicion does not affect its reasonableness.
(2) The trial judge misapplied the test for reasonable suspicion by assessing factors in isolation rather than together. The trial judge's individualized scrutiny of the odour of alcohol — to which the judge appears to have applied the beyond a reasonable doubt standard — was exacerbated by a significant misapprehension of PC Antal's evidence, which was entirely consistent with PC Toms', as to the presence and description of the odour of alcohol.
(3) The trial judge provided insufficient reasons for accepting the Respondent's evidence and having "concerns about the credibility and reliability" of PC Toms' evidence. The paucity of reasons as to the trial judge's findings unfortunately stymie meaningful appellate review.
Analysis
9I do not agree that the trial judge conflated the question of whether it was objectively reasonable to suspect that the Respondent had alcohol in his system and the question of proof beyond a reasonable doubt that the Respondent had alcohol in his system.
10The trial judge’s reasons clearly indicate that he had a reasonable doubt as to whether the officer had the requisite subjective grounds to believe that the Respondent had alcohol in his body. This reasonable doubt was based on his acceptance of the evidence of the Respondent and his resulting concerns about the credibility and reliability of the evidence of the officer.
11The trial judge’s findings of credibility are entitled to deference. He did not make the error identified in McCann. In McCann, the trial judge accepted the evidence of the officer that the officer smelled alcohol. In this case, the trial judge did not accept the evidence of the officer.
12The trial judge relied on his finding that the Respondent had not consumed alcohol to assess the credibility and reliability of the evidence of the officer that he smelled alcohol. He concluded that he had concerns about the credibility and reliability of the officer. He was entitled to do so. The trial judge did not make a finding that the officer was lying, but this is not the same as a positive finding that the officer had an honest belief that he smelled alcohol.
13I also reject the argument that the trial judge misapplied the test for reasonable suspicion by assessing the factors in isolation. The trial judge had concerns about the credibility and reliability of the evidence of the officer making the demand. He did not misapprehend the evidence of PC Antal and was entitled to conclude that the evidence of PC Antal of a strong smell was not consistent with the evidence of PC Toms of a faint smell.
14Having rejected the evidence of the officer as he was entitled to do, he went on to consider the factors that were independent of the observations of the officer: the evidence that the Respondent was urinating by the side of the road and the presence of an open bottle of liquor. He concluded that these independent factors were insufficient. I see no error in this conclusion.
15The trial judge’s reasons, while brief, are sufficient to allow appellate review. The trial judge referred to the Respondent’s evidence of his movements over the hours preceding the police stop. The trial judge’s findings on credibility are sufficiently explained in his reasons and are entitled to deference.
Disposition
16The appeal is dismissed.
Forestell J.
Released: August 19, 2020
COURT FILE NO.: CR-21-000000-0800AP
DATE: 20210819
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and -
Idowu Ajanaku
Respondent
reasons for decision
Forestell J.
Released: August 19, 2021