Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Chey Channa
Before: Justice Rose
Heard on: March 8, April 23, May 28, 2019
Reasons for Judgment released on: June 4, 2019
Counsel:
- Mr. O'Neil, counsel for the Crown
- Mr. Jourard, Counsel for the defendant Chey Channa
Judgment
[1] Charge and Overview
1Mr. Channa is charged with a single Count of Over 80 operation from April 22, 2018. The charge arises from a police investigation into a motor vehicle collision. Mr. Channa raises several Charter Arguments. There is a video image of the roadside events from a police car which was helpful, but not as helpful as it might have been had there been an accompanying audio track for the activity outside the police car.
Evidence
Civilian Witnesses
2Stefanie Manzoli was driving north of Jane Street and a car in front of her had stopped, so she stopped too. At that point a car hit her front behind, damaging her car. She got out of her car, as did the couple in the car in front of her and the man in the car behind her. The man who hit her from behind admitting to having had 3 beers to drink. He offered her money to repair the damage and said that he worked at a Toyota dealership and could get the car there to be fixed.
3Ms. Manzoli called her husband, who arrived about 5 minutes later, which would be about 10 – 15 minutes after the accident. When he arrived she asked him to call the police and the police arrived about 5 – 10 minutes later.
4Ms. Manzoli identified Mr. Channa as the driver of the car that hit her from behind from his driver's licence which she gave to her insurance company, and from being in the hallway of the Courthouse waiting for the case to be called.
5Ms. Manzoli first testified that the accident happened around 2:20 pm, but corrected herself to say 2:25 pm. Her car was so badly damaged that it was written off.
Police Response and Roadside Investigation
6Cst. Rogowski was dispatched to the collision at 2:35 pm arrived on scene at 2:43 pm. He identified a 3 car collision. A Toyota 4 Runner had hit a Corolla from behind and the Corolla had hit an Acura. Rogowski spoke to Ms. Manzoli and she pointed out Mr. Channa as the driver of the 4 Runner. At that point Mr. Channa was off to the side of the roadway by a railing. Ms. Manzoli told Mr. Rogowski that the driver of the 4 Runner had admitted to alcohol consumption and apologized for the accident. Rogowski walked over to Mr. Channa and asked him for his car ownership, drivers licence, and insurance papers. Notably Mr. Channa was cradling a dog in his lap. Rogowski asked him if he had anything to drink. He said that he had been drinking heavily the night before. After speaking with Mr. Channa PC Rogowski walked to Mr. Channa's vehicle and looked inside. He spoke to the other drivers, and then in the next minute to two minutes with another officer on scene PC Paquet. He spoke to Mr. Channa, and at 2:50 returned to his police car. Within a minute he had returned to Mr. Channa. In cross-examination Cst. Rogowski was asked if it wasn't obvious that Mr. Channa was detained from the point that he found out from the others on scene that Mr. Channa had been in an accident and had admitted to consuming alcohol. His answer was that he was still forming his grounds.
7At that point Rogowski detected a faint smell of an alcoholic beverage on Mr. Channa's breath. As a result he formed a reasonable suspicion that Mr. Channa had alcohol in his body and issued an ASD demand. That was at 2:51 pm. Mr. Channa told him that he agreed to provide a sample.
8Cst. Rogowski demonstrated the ASD at 2:51, and after 4 tries Mr. Channa provided a suitable sample at 2:55. During the ASD process Mr. Channa was holding on to his dog. The ASD result was a fail, and Cst. Rogowski then arrested him. PC Paquet took the dog from Mr. Channa. Rogowski handcuffed him to the rear and radioed dispatch at 2:57 that he had someone under arrest. He brought Mr. Channa to the front of the car to search him on camera. Mr. Channa was placed in the police car at 2:59 pm, now in handcuffs. The first thing Mr. Channa asked was if he could give PC Rogowski the key to his truck. He then asked if someone could pick up his dog. Mr. Channa and PC Rogowski had the following conversation:
Mr. Channa: somebody have to pick up my dog, okay?
PC Rogowski: we're talking about getting your –
Mr. Channa: Somebody have to pick up my dog. Somebody have to pick up my dog.
PC Rogowski: You have family close by? Yeah?
Mr. Channa: Yeah.
PC Rogowski: This officer will get the information from you and we'll have someone get the dog.
Mr. Channa: Yeah, please.
PC Rogowski: Don't worry, we're not going to hurt your dog. I like your dog.
Mr. Channa: Oh, man. Family, you know? Family.
PC Rogowski: Family, oh, I know I know. Dogs are family.
9Cst. Rogowski still had equipment on the front hood of his police car and he collected it at 3 pm so that it wouldn't blow away. At that point Mr. Channa spoke with PC Paquet about Mr. Channa's niece picking up the dog. He asked "Why can't we drop the dog right now?", and PC Paquet replied "No, because you're under arrest, you're going to the station. The dog is not under arrest".
10When PC Rogowski re-entered the police car he read Mr. Channa his rights to counsel. He identified Mr. Jourard as the lawyer he would like to speak to. At 3:06 PC Rogowski read an Approved Instrument demand. Mr. Channa said, "You're talking about the sample when I get to the station?...Yeah, sure, of course".
11At 3:09, and while still at the roadside Mr. Channa said "Please take care of my puppy…No, please please, please…Please I beg you. ..Please, for my puppy. Please". PC Rogowski then used Mr. Channa's phone to call his niece so that she could come and pick up the dog, after Mr. Channa unlocked his cell phone to make the call.
12At 3:13 PC Rogowski left the scene for the police station with Mr. Channa in the back seat. He had to turn around and go back to the scene because he had forgot to leave the key to Mr. Channa's car with the car itself. After that detour, they arrived at the police station at 3:26 pm.
Station Investigation and Breath Testing
13After booking PC Rogowski called Mr. Jourard at 3:47, and at 3:49 Mr. Channa was put on the phone with him. That call lasted until 4 pm.
14Cst. Metcalf was the Qualified Breath Technician in this case. He arrived at 4 District of York Regional Police at 3:46 pm and logged on to the system. He did a calibration check on the Approved Instrument at 3:59 pm and received a satisfactory reading. He then did 6 calibration checks and a self test. He concluded that the Approved Instrument was in proper working order.
15During that sequence PC Metcalf met with PC Rogowski who gave him his grounds for the breath test. He wrote down the result of the conversation which was a 3 motor vehicle collision. Mr. Channa had admitted to consuming alcohol and had failed an ASD test. At 4:05 pm he received Mr. Channa and read him an Approved Instrument demand, and read him a caution. He identified test print outs which were filed in evidence. Mr. Channa provided two samples of his breath into the Approved Instrument. One was at 4:12 pm and the second was at 4:35 pm. The readings were 260 mg of alcohol in 100ml of blood and 272 mg% respectively. He reviewed the Certificate of Qualified Technician and adopted its contents. The defence had originally admitted the Certificate but later withdrew that admission and the Crown withdrew the Certificate of Qualified Technician as an exhibit.
16Cst. Metcalf also testified about the standard solution and the certificate of analysis for the solution which was on the wall of the Breath Testing room that day. He said that the standard solution was within its lifespan, and the calibration check did not deviate from the standard, so was well within the permissible 10% deviation.
Defence Evidence
17The defence called a witness Cora Nguyen. She was also involved in the car accident. Her car was ahead of Ms. Manzoli's and was hit by it. After the collision she got out of her car and noted Ms. Manzoli to be shocked. Ms. Manzoli's car was badly damaged. The man who hit Ms. Manzoli's car got out of his car, walked outside and told her that he had had a couple of beers and could she give him a break. He did not say when he had been drinking.
Expert Evidence
18The Crown filed an expert report of Elizabeth Hird of the Center of Forensic Sciences. To summarize, her opinion was that Mr. Channa's BAC between 2 pm and 2:25 was between 260 and 270 mg of alcohol in 100 ml of blood.
19Ms. Nguyen gave a statement to the police, and told them that the accident happened at 2:15 pm. That, she said, was an estimate.
20The promise to appear was filed with the consent of the Crown. It shows that Mr. Channa was released at 5:33 or 5:55 pm.
Issues
21Mr. Channa argues that the police violated his Charter rights in several ways:
i) There was a delay in reading him his Rights to Counsel, which violated his s. 10(b) rights;
ii) There was a delay in facilitating his Rights to Counsel, which also violated his s. 10(b) rights. This includes an allegation that Cst. Rogowski should have turned off his microphone to facilitate access of Rights to Counsel;
iii) The ASD demand was not made forthwith, which violated his rights under s. 8 of the Charter;
iv) As a result of the unlawful demand under iii) supra, his detention following the ASD failure was a violation of his rights under s. 9 of the Charter;
v) PC Rogowski violated his s. 10(b) rights because he did not hold off questioning before providing access to counsel; here the questioning was incidental to the Breath Demand;
vi) PC Rogowski violated his s. 10(a) rights because he did not inform him of the reason for the detention when he first started questioning him;
vii) Filing the Expert Toxicologist report violated his Constitutional Rights.
22In addition to the Charter based arguments, Mr. Channa makes two arguments about the merits of the Charge:
viii) There is a doubt about the time of offence; and
ix) There is insufficient evidence of target value of standard solution.
Findings
First Argument: Delay in Reading Rights to Counsel (s. 10(b))
23Taking these arguments in turn. First argument - was there a delay in reading Mr. Channa his Rights to Counsel, thereby violating his s. 10(b) rights? I find that Mr. Channa failed the ASD test and was arrested at 2:55 pm. At the time of his arrest he had a dog with him. He had been holding his dog while he was providing the ASD sample. It is the first time I have ever seen a breath testing subject cradle a canine at the same time as blowing into a breath testing instrument. Several things occurred between that point and the time when PC Rogowski gave a standard 10(b) caution to Mr. Channa: his dog had to be turned over to PC Pacquet; he was handcuffed, and searched, and his property was disgorged onto the hood of PC Rogowski's car and then placed in a property bag. The ASD was packed up and taken from the hood of the police car. Rights to Counsel is read to him some 8 minutes after the moment of arrest.
24Interspersed with these events is a fair amount of conversation about Mr. Channa's dog. It is clear that Mr. Channa was concerned about the animal to the extent that he initiated a conversation with the officers about it and what was going to happen. The conversation about the dog takes about 3 minutes of the 8 minute period before he is read his rights to counsel.
25Rights to Counsel arises upon arrest without delay, see R. v. Suberu 2009 SCC 33, [2009] S.C.J. No. 33 at paras 37 – 42. The Court in Suberu was clear that there is an immediacy component, but one which is still subject to officer or public safety concerns. In this case the first part of the delay was in searching Mr. Channa and seizing his property as well as packing up the ASD. The later part of the delay is because of Mr. Channa asserting his need to make sure that his dog is properly taken care of. I would not find a s. 10(b) violation in the circumstances. Searching Mr. Channa, seizing his belongings, and packing up the ASD are all steps required in order to clear the scene and get on to the next step in the process without having to be concerned about potential evidence or equipment still unattended. To be sure, failure to deal with these things is not something which poses an obvious or immediate threat to those on scene. But with that said, PC Rogowski was at the side of the road with civilians, and damaged cars being examined and ultimately towed away. In that sense it was a fluid scene. One car was badly damaged. But PC Rogowski's concern to secure the ASD and Mr. Channa's property before proceeding to reading Rights to Counsel was logically connected to the investigation and concerns for property damage that no constitutional violation arose out of that delay.
26Once Mr. Channa was in the police car it was he himself who delayed the informational component with his concern about his dog. As he said, his dog is his family. I do not criticize him placing such priority on the dog but it was him who delayed the Rights to Counsel at that point, not the police. Put another way, the police were entitled to hear Mr. Channa express his concern about this dog before moving to Rights to Counsel without at the same time triggering a constitutional violation. S. 10(b) did not require PC Rogowski to take an uncaring posture about the dog. As a result, this limb of the s. 10(b) argument is dismissed.
Second Argument: Delay in Facilitating Rights to Counsel (s. 10(b))
27Second argument. Was there a delay in facilitating his Rights to Counsel, because Cst. Rogowski should have turned off his microphone to facilitate access to counsel?
28In this case Cst. Rogowski testified that he could not have facilitated rights to counsel in the back seat of his police car because there was no privacy – even if Mr. Channa asked to speak to Mr. Jourard right after being given his 10(b) caution. Defence counsel lead into evidence a York Regional Police policy directive which stipulated that the in-car camera system must be operated unless the arrestee chooses to speak to counsel. Mr. Channa argues that Cst. Rogowski should have turned off the in car camera microphone, got Mr. Channa's cell phone and made the phone call to Mr. Jourard.
29In R. v. Taylor 2014 SCC 50 the Court followed the immediacy requirement in Suberu, discussed above. They also added a qualification:
The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368 (Alta. C.A.), at para. 12). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.
30In this case I am satisfied that the delay in putting Mr. Channa in touch with Mr. Jourard was reasonable in the circumstances. Mr. Channa was in the back of a police car at the side of the road. It may have been technically possible for Cst. Rogowski to turn off the in car camera, put him in touch with Mr. Jourard, and then turn the camera back on once the call was completed, but the police decision to take him to the station to facilitate contact with counsel was perfectly reasonable. Again, the situation at the side of the road was dynamic. Civilians were lingering about. Police officers were investigating. A family member of Mr. Channa's was to pick up the dog at the scene. This was not a place to give Mr. Channa real privacy to speak with counsel and at the same time ensure safe custody over him. There may well be situations when the back of the police car is the place to call a lawyer for legal advice but this was not one of them. This Charter argument is dismissed.
Third Argument: ASD Demand Not Made Forthwith (s. 8)
31Third argument – the ASD Demand was not made forthwith. Cst. Rogowski first spoke with Mr. Channa sometime after 2:43. He made the ASD Demand at 2:51. The delay was therefore 8 minutes.
32Whether a demand was made forthwith is a legal question. The test is articulated in R. v. Quansah 2012 ONCA 123. In that decision, LaForme J. said:
45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).
48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.
33Applying that to the facts before me, I find that PC Rogowski was developing his grounds after first speaking with Mr. Channa. He obtained standard documentation that a driver is required to carry in the car. As he said in cross-examination, after he saw the accident and smelled the odour of alcohol on Mr. Channa's breath he formed a reasonable suspicion that he had alcohol in his system. When he asked him how much he had to drink today he was forming his grounds. Under the circumstances I find that the delay until 2:51 fits within the forthwith requirement. It is at the outer limit of forthwith but still gives rise to no constitutional violation.
34The demand was made promptly. There was insufficient time in that period to provide Mr. Channa access to counsel, and the circumstances were unusual. The fact that the scene had 3 cars and their occupants added to the fluidity of the scene. The question boils down to one of time. In this case there were other demands on PC Rogowski when he arrived at 2:43. Civilians were standing around. Three cars had collided. This required some minutes for PC Rogowski to process all of that, along with his information about Mr. Channa's smell of alcohol. As he said in evidence, after asking Mr. Channa about alcohol consumption he was forming his grounds. The s. 254(2) demand was not made at the instant PC Rogowski formed a reasonable suspicion, but that does not elevate this to a constitutional violation. As my brother Bourque J. found in R. v. So 2019 ONCJ 44 a delay of several minutes can still be prompt, and therefore forthwith. In the circumstances there is no Charter violation.
Fourth Argument: Unlawful Detention Following ASD Failure (s. 9)
35Fourth argument. Given my finding on the third argument that the s. 254(2) demand was forthwith it follows that there is no violation under s. 9 of the Charter flowing from an unlawful s. 254(2) demand.
Fifth Argument: Failure to Hold Off Questioning (s. 10(b))
36Fifth Argument – failure to hold off questioning. After being read his standard s. 10(b) caution, at 3:05 pm, Mr. Channa said that he wished to speak to a lawyer, namely Mr. Jourard. At 3:07 pm Rogowski read the standard Approved Instrument Breath Demand, and asked "Do you understand?". Mr. Channa then said, "Deny. I don't know. The thing is you just gotta talk to my lawyer, man. Just talk to my lawyer, please." The defence argues that this constituted a breach of s. 10(b). I disagree.
37It is axiomatic that once an arrestee has asserted his or her wish to speak to counsel the police must hold off attempting to elicit evidence until the arrestee has had a reasonable opportunity to speak to counsel, see R. v. Manninen 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, R. v. Bartle [1984] 3 S.C.R. 173, R. v. Taylor 2014 SCC 50. In R. v. Bagheri, 2014 MBCA 105, the Court applied Manninen to a refusal to provide a breath demand. Bagheri stands for the proposition that asking the arrestee whether they will comply is not a necessary component to a valid Breath Demand. If the utterance is a refusal, as it was in Bagheri, the utterance is inculpatory and therefore protected by the holding off doctrine.
38In this case Cst. Rogowski did not elicit any evidence from Mr. Channa when he asked him if he would comply. Mr. Channa complied with the Breath Demand. Two suitable samples were obtained. I find that Mr. Channa's utterance "I will comply" was not evidence. It is of no evidentiary moment at this trial. There was nothing in the situation at the roadside which would have caused Cst. Rogowski to think that Mr. Channa was about to refuse to accompany him to the station and then refuse to provide a breath sample. The fifth Charter argument is dismissed.
Sixth Argument: Failure to Inform of Reason for Detention (s. 10(a))
39Sixth Argument – s. 10(a) Mr. Channa argues that PC Rogowski violated his s. 10(a) rights because he did not inform him of the reason for the detention when he first started questioning him.
40Cst. Rogowski testified that, in his mind, Mr. Channa was detained from the beginning of their encounter. I would accept this as sufficient to establish a detention on the part of Mr. Channa, although there is no evidence that Mr. Channa was aware of this, nor is there any evidence on the in-car camera that he was physically restrained at the roadside until the moment when he accompanies Cst. Rogowski to the police car for the ASD test. With that fact in place I make the following findings.
41There is no evidence that Cst. Rogowski told Mr. Channa that he was detained, nor is there any evidence that he specifically told him that he was investigating a drinking and driving incident. There is evidence that he asked him for his drivers licence and asked him if he had been drinking. That happened only feet from a 3 car motor vehicle collision where Mr. Channa had admitted to being one of the drivers. That is the context in which Mr. Channa found himself in the company of a police officer.
42In R. v. Kumarasamy 2011 ONSC 1385, Justice Dambrot found that the circumstances of the police detainee encounter can suffice to establish the reason for the detention. I would apply that to the facts before me. Mr. Channa knew that he was involved in a motor vehicle collision. He knew that the police arrived shortly after the incident to investigate it. He was stopped on the side of the road because he drove his car into another one and he got out of the vehicle himself. When Cst Rogowski started asking for driver and vehicle documentation, and asked about alcohol consumption it would have been perfectly clear what Cst. Rogowski was doing. Put another way the only thing happening at the side of the road that afternoon was a police investigation into a 3 car collision and questions about drinking. This limb of the Charter Application is dismissed.
Seventh Argument: Expert Toxicology Report (Charter Violation)
43Seventh Argument – the Expert Report. The defence seeks exclusion of the toxicologist report exhibit A from Elizabeth Hird. That report was delivered to the defence on March 12, 2019, which was 4 days after the first day of trial and 31 days before the trial continuation. This Application seeks a Charter based remedy because, as the Notice of Motion says "The Crown's late production of a toxicology report to read back the Applicant's blood alcohol concentration follows the testimony of a civilian witness, Stephanie Manzoli, that raised a doubt on whether the first breath sample had been taken within two hours of the time of driving".
44In submissions I asked Mr. Jourard if the Crown had complied with s. 657.3 of the Criminal Code and he said that it had. That section of the Code details notice of expert reports:
657.3(3) "For the purpose of promoting the fair, orderly, and efficient presentation of the testimony of witnesses".
45The Defence filed its Application to exclude the expert report on the return day of the trial, April 23, 2019. When the case first came up that day I raised with both counsel how this Application should proceed. Mr. Jourard said that it could be heard at the very end of the case. There was no complaint that late delivery of the expert report caused any prejudice in Mr. Channa's conduct of the defence thus far. There was no suggestion that Ms. Manzoli needed to be re-called to be cross-examined in light of the new expert report. At that point the Crown was still calling evidence.
46The Application was therefore argued at the conclusion of the trial in submissions. Mr. Jourard's position was that even if the defence has no complaint about service and notice of the expert report under s. 657.3, there is still a Charter violation because of the fact that Ms. Manzoli had already testified prior to delivery of the Report. Mr. Jourard argues that once the case started the Crown could not adjust its case by seeking, disclosing, and filing the expert report. I disagree. I cannot reconcile the defence position that the Crown has complied with s. 657.3 and at the same time there is a Charter violation flowing from the circumstances. If there had been some trial unfairness flowing from filing the Expert Report I would have expected to hear about it when I raised the issue on the morning of April 23. I would have expected that counsel would ask that witnesses be recalled, or in an extreme example a mistrial request made. As Justice r commented in R. v. Kresko [2012] O.J. No. 5302 there are a range of remedies available if one party complains about late delivery of an expert report. In that case she granted an adjournment. As she said, "s. 657.3 provides an adequate safeguard in the circumstances of this case". I would apply that to this case too. When an expert report causes some prejudice to one of the parties the trial judge must be advised of that immediately, so that remedial steps may be considered and taken – at the moment. In the case before me there was no such complaint. There is no abuse of process which can be identified. There is no Charter violation. The seventh argument is dismissed.
One Last Charter Motion
47After the Defendant's written submissions were filed, and oral submissions completed, Mr. Jourard asked to make more submissions. I told him that, in the interests of finality, he could file one last additional written argument the next day. He did. The day after that, on May 30, he sent the following email to my assistant:
I am writing to request leave to add a further Charter breach to my submissions.
I spoke this morning with ACA Greg Elder and he said he'd (sic) consent. I told him that I wished to add a breach of s. 10(b) based on the failure to read the ASD demand forthwith.
The alleged breach resides in not giving Mr. Channa the right to counsel upon detention and prior to reading the ASD demand six minutes later. In my submission there was a realistic opportunity to speak to counsel given that Mr. Channa had a cell phone on his person with my phone number. Police could have given him privacy by stepping away during the call.
As the evidence showed I picked up when phoned by police at 3:47 PM, there's an inference I would have picked up at 2:45 PM as well. See R. v. Tornsey (2007), 2007 ONCA 67, 217 C.C.C. (3d) 571 (Ont. C.A.), para. 13.
48It is necessary to make the following observations. There must be some organization to Charter Motions. In this case arguments for 7 Charter violations were filed in writing, lengthy written submissions made including 3 Books of Authorities, oral submissions to buttress written submissions and further written submissions to buttress the oral submissions. It is unhelpful to the Court to re-open the proceedings during the time that the judge is deliberating. It is also unhelpful to send emails to the judicial assistant in this manner as a form of Charter Application. I repeat what I said to counsel in Court when he said that he wanted to supply further written submissions to buttress his oral submissions – there must be finality to the proceedings. For these reasons, I would not grant leave to consider this last Charter Application. The Crown has had no opportunity to respond and the case has been closed for some time. It is quite unclear why this could not have been raised during the case.
49Aside from the afterthought quality to the 8th Charter Application it has no merit and would be dismissed. The time frame argued here for Rights to Counsel pre-ASD sample is a matter of several minutes. The Defence argument that Mr. Jourard was necessarily available in that time frame to speak to Mr. Channa is speculative and would be rejected on that basis. This was a roadside investigation with civilians and police milling about. Mr. Channa didn't even put his dog down. In such roadside ASD investigations there is no right to counsel unless the ASD is not readily available, see R. v. Orbanski 2005 SCC 37, [2005] S.C.J. No. 37, R. v. George 2004 CanLII 6210 (ON CA), [2004] O.J. No. 3287, and in this case it was. The presence of a cell phone at the roadside does not displace the suspension of Rights to Counsel prior to providing an ASD sample where there is otherwise no reason for delay.
50In sum, the Charter motions are dismissed.
Merits of the Charge
Eighth Argument: Time of Driving
51Viii – time of driving. There is an abundance of evidence that the accident happened at 2:20 or 2:25. Ms. Manzoli testified to that, and explained why she came to that figure. She did not attempt to make that time precise. In her evidence she explained that, after the accident happened she called her husband, who arrived 5 minutes later, which was 10 – 15 minutes after the accident happened. Her husband called the police within 5 minutes and the police arrived 5 – 10 minutes later. The delay between the accident and the police arriving was between 25 – 35 minutes later. Ms. Manzoli's description of the events following the collision provide an explanation for the time between the collision and PC Rogowski's arrival on scene. Ms. Nguyen provided the only other time of the accident, which she put at 2:15 approximately. I therefore reject the argument that the evidence raises a doubt about the time of the collision being prior to 2:12, which was two hours before the first breath sample. There is, to be fair to the evidence, a lack of precision, but I am satisfied that the accident did not happen before 2:12.
52Having rejected the defence argument to exclude the Expert Toxicologist report I find that the evidence proves beyond a reasonable doubt that Mr. Channa's BAC was well over 80 as early as 2 pm. Ms. Hird's opinion is that between 2 pm and 2:25 pm his BAC was between 260 and 272 mg %. Even if I was in error about the time of driving from Ms. Manzoli and Ms. Nguyen the expert opinion is highly inculpatory given that there is no evidence from which I could possibly conclude that the accident happened before 2 pm. The expert report is therefore an additional piece of evidence which puts Mr. Channa Over 80 at the time of the accident.
Ninth Argument: Alcohol Standard Solution
53ix – the alcohol standard solution. In this case Cst. Metcalf viewed the certificate for the standard solution which was fixed to the wall of the Breath Room. As he said, "I probably did check the bottle, because in order to get the expiry dates, that's on the bottle". I find that on the evidence Cst. Metcalf viewed a certificate of standard solution, and the information on the standard solution bottle and was satisfied that the Approved Instrument was using the alcohol standard solution to confirm that it was indeed working properly and could accept a sample of breath for analysis. There is some authority for the proposition that the Crown must prove the alcohol standard solution by certificate, see R. v. Flores-Vigil, 2019 ONCJ 192. I disagree that a higher standard of proof is required for the alcohol standard solution than the Approved Instrument. Evidence of both can be led viva voce. Cst. Metcalf's evidence satisfies me that the Approved Instrument used to analyze Mr. Channa's breath was properly working, and was using a suitable standard solution.
Conviction
54Based on the foregoing, I find that Mr. Channa had a BAC of 260 mg in 100 ml of blood when he crashed his car into the rear of Ms. Manzoli's car on April 22, 2018. He is convicted of the charge.
Released: June 4, 2019
Signed: Justice Rose