5 SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
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v.
15 ANDREW NOSEWORTHY
R U L I N G
20
BEFORE THE HONOURABLE JUSTICE P. ROGER
On July 15, 2026, for an OTTAWA, Ontario proceeding
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APPEARANCES:
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G. Mayeda Counsel for the Crown
B. Crawford Counsel for A. Noseworthy
WEDNESDAY, JULY 15, 2026
R U L I N G
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The appellant appeals his conviction of refusing to provide a breath sample contrary to Section 320.15 of the Criminal Code. He argues that the trial judge made two errors in finding that the Crown had
10 met its burden of proving, beyond a reasonable doubt, that the demand for a breath sample was made
immediately following the officer's reasonable suspicion.
He argues:
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- The trial judge erred in law by finding that sobriety questioning after the officer formed reasonable suspicion was delay explained by unusual
circumstances; and
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- The trial judge materially misapprehended the officer's evidence in finding the officer explained the entire delay between forming reasonable
25 suspicion to making the approved screening device demand.
Briefly, events occurred during the evening of July 1, 2024, on the Ottawa River.
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At around 10:00 p.m., a boat was observed with a bright docking light, but not the green and red
navigational lights. It was also observed to be close to the Deschênes Rapids.
The officers drew along the side of the boat. The
officer who testified at trial asked that the
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boat's docking light be turned off. As the appellant was unsuccessfully manipulating the controls of the boat, the officer asked if he knew what he was doing. The appellant answered, "Yes"
10 but did not make eye contact, which the officer found strange.
The officer noted the smell of alcohol on the
appellant's breath and asked the appellant how much alcohol he had consumed. The appellant did not
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answer. The officer asked again, and the appellant answered, "Nothing". The officer again smelled alcohol on the appellant's breath. The officer was concerned that the boats were close to the rapids
and directed them to drive to a safer location.
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Once the boats arrived at the safer location, the police drew up alongside the boat and the officer read the approved screening device demand. The
25 appellant began chugging water, did not stop when asked to do so, and did not provide a breath sample. The officer noted that the demand for the breath sample was made at 10:17 p.m.
30 The appellant's grounds of appeal are essentially the expression of his disagreement with the trial judge's factual findings. However, the trial
judge's factual findings are supported by the evidence and are reasonable. The trial judge made no legal error and did not misapprehend the evidence. This appeal is dismissed.
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On the first ground of appeal, the trial judge indicates at page 21 of her reasons that she is satisfied that the officer formed his suspicion when he smelled alcohol and asked the appellant how
10 much he had consumed. From her reasons, it is apparent that this "crystalized" not after the
officer first smelled alcohol, but after the second time the officer smelled alcohol. This finding is reasonably supported by the evidence.
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At pages 49-51 of the transcript of the officer's evidence, he indicates that his reasonable suspicion arose just prior to realizing that their position on the water was becoming unsafe because
of the approaching rapids. This timeline
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incorporates the officer asking a second time whether the appellant had consumed alcohol, the appellant answering, "Nothing", and the officer noticing for the second time an odour of alcohol
25 coming directly from the appellant's breath.
Consequently, the trial judge did not err by finding that this additional questioning was a delay that was unexplained by the unusual
30 circumstances. Rather, she made reasonable factual
findings from the evidence of the officer that reasonable suspicion arose after the officer asked
the appellant how much he had consumed.
It was reasonable for the trial judge to conclude that this incorporates the second time that the
officer asked the appellant how much alcohol he had
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consumed because of the officer's evidence that he had reasonable suspicion when he realized their unsafe location, which was right after this question was asked a second time and answered by
10 the appellant. It was reasonable for the trial judge to conclude that this is when the reasonable
suspicion crystalized and, consequently, not an error to find that the subsequent delay was justified by the unusual circumstances of the
approaching rapids and the need for the boats to be
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moved to a safe location. There was no additional gap that did not fall within the scope of the unusual circumstances.
The appellant's second ground of appeal was
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correctly addressed by the trial judge in her reasons. At page 18 of her reasons, she clearly identifies the appellant's argument and, in the following pages, convincingly deals with the
25 alleged gap. She accepted the officer's evidence, found him credible and reliable, and she is owed deference on those findings.
I agree with the trial judge's reasoning that
30 working backward, as was suggested to her by the appellant at trial and again argued on appeal by the appellant, would be speculative. The officer
did not remember precise times, nor precisely how much time each step took, but he remembered how the events unfolded. It was reasonable for the trial judge to accept the officer's evidence and
reasonable to arrive at her conclusion that there
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is no unexplained delay or gap.
A judge can misapprehend evidence if the judge fails to consider evidence relevant to a material
10 issue, is mistaken about the substance of the evidence, or fails to give proper effect to the
evidence. The trial judge did none of those things.
The standard of review is stringent. The
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misapprehension must go to the substance and must be material. Here, the trial judge considered the relevant evidence, was not mistaken about it, and did not fail to give it proper effect. Her
conclusion that there was no gap rendering the ASD
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demand unlawful was consistent with the evidence. As a result, she did not misapprehend the evidence.
It is for the trier of fact to determine whether
25 any proposed alternative way of looking at the case is reasonable enough to raise a doubt. The trial judge's assessment that working backward, as was suggested to her at trial and now on appeal, would
be "artificial" and "guestimate" was not
30 unreasonable. Rather, it was reasonable for her to conclude that the evidence as a whole excluded all reasonable alternative to guilt.