R. v. Kemper, 2008 ONCA 341

APPEAL BOOK ENDORSEMENT

1In this court, the Crown does not seek to uphold the Summary Conviction Appeal Court judge’s conclusion that various factual findings made by the trial judge were unreasonable and we agree that the Summary Conviction Appeal Court judge erred in this respect.

2We see no basis to interfere with the trial judge’s finding that the arresting officer breached the appellant’s s. 10(b) Charter rights by failing to give her the option of leaving a message with the first two lawyers he contacted on her behalf. However, the trial judge did not have the benefit of this court’s decision in R. v. Wilding (2007), 2007 ONCA 853, 88 O.R. 680. In the light of that decision, the trial judge’s conclusion that the s. 10(b) Charter breach was serious and warranted exclusion of the breath results cannot stand.

3Nonetheless, we are not persuaded that we should interfere with the trial judge’s conclusion that the cumulative effect of the Charter breaches in this case warrants exclusion of the breath results. In our view, it is implicit in the trial judge’s reasons that she found that the arresting officer stopped the appellant selectively and did so for an improper purpose. Having made that implicit finding, and having rejected the arresting officer’s veracity, it was open to the trial judge to conclude that the breaches were sufficiently serious to warrant exclusion.

4Accordingly, leave to appeal is granted, the summary conviction appeal court judge’s order is set aside and the acquittal entered by the trial judge is restored.