



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2018 ONCA 964

DATE: 20181128

DOCKET: C63287

Sharpe, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Trung Tran

Appellant

Greg Lafontaine and Ricardo Golec, for the appellant

Thomas Lemon, for the respondent

Heard and released orally: November 23, 2018

On appeal from the conviction entered on July 16, 2015 by
    Justice Andrew J. Goodman of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

Mr. Trans principal ground of appeal relates to section 8 of the
Charter
.
    That ground of appeal rests solely on a challenge to credibility findings made
    by the trial judge.

[2]

In his
Charter

decision the trial judge chose to accept the
    testimony of Officer Reed that Mr. Tran threw his house and car keys on the
    ground when approached by the police. He did so despite the testimony of Officer
    Peckford that someone, either he or Officer Reed, took the keys from Mr. Trans
    pocket. As a result of this, the trial judge found the keys to have been
    abandoned, defeating the reasonable expectation of privacy that Mr. Tran
    required in order to sustain his section 8
Charter

challenge.

[3]

Mr. Tran is now asking us to revisit the trial judges credibility
    findings. We see no basis for interfering. In our view, the trial judge gave
    ample, cogent reasons for accepting the testimony of Officer Reed and
    discounting the evidence of Officer Peckford.

[4]

After the
Charter
ruling Mr. Tran testified. During his
    testimony he said he was directed to drop the keys. In his reasons for
    conviction the trial judge made no finding that this occurred, but did leave open
    the possibility that Mr. Tran may have been directed before he dropped the keys.
    Mr. Tran points to the inconsistency between this finding by the trial judge,
    and the
Charter

ruling where there was mention that Mr. Tran
    may have thrown the keys after police direction. However, Mr. Tran did not
    testify on the Charter
voir dire
and the evidence that led the judge in
    his reasons for decision to leave open the possibility that Mr. Tran may have
    dropped the keys after a police direction, occurred after the
Charter
ruling was made. No request was made to reopen the
Charter
ruling in
    light of this trial evidence.

[5]

We therefore deny Mr. Trans appeal from the section 8 ruling.

[6]

We see no reason to question the trial judges s. 24(2) ruling.

[7]

In our view, the uneven scrutiny ground of appeal must also be rejected.
    The trial judge gave sound reasons for crediting the police evidence he
    accepted, and the defence evidence was demonstrated in the trial judges
    reasons to be implausible and inconsistent.

[8]

Nor is there any basis for concluding that the trial judge
    misapprehended the evidence.

[9]

The appeal is dismissed.

Robert J. Sharpe J.A.

David M. Paciocco J.A.

Harvison Young J.A.


