Court File and Parties

COURT FILE NO.: CR-21-12245-AP DATE: 2024/11/07 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Octavio Gomez Appellant

Counsel: Julian Daller, for the Crown Jeylan Davies, for the Appellant

HEARD: October 30, 2024

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Parfett J.

[1] The Appellant, Mr. Octavio Gomez, appeals from his conviction for impaired operation of a motor vehicle, contrary to s. 320.14 (a) of the Criminal Code (“Code”)[^1], and operation of a motor vehicle with a blood alcohol concentration of greater than 80 mg per 100 ml of blood, contrary to s. 320.14(b) of the Code.

Background

[2] On December 18, 2022, Cst. Jaggon of the Ottawa Police Service was on general patrol in a marked police cruiser.

[3] At 5:09 am, Mr. Gomez pulled out from a side street in front of Cst. Jaggon’s cruiser without yielding to his right of way and narrowly avoiding an accident. He was driving without his rear lights on.

[4] Cst. Jaggon initiated a traffic stop. The Appellant pulled over but mounted the curb.

[5] Cst. Jaggon spoke to Mr. Gomez and asked him whether he was aware he had parked his car partially on the sidewalk. The Appellant indicated he did not realize he had done that. Cst. Jaggon also informed the Appellant that he was driving with his lights off.

[6] TMr. Gomez was asked for his driver’s licence and other documentation. He provided his health card to the officer.

[7] Cst. Jaggon noticed an open bottle of liquor in the central console with a shot glass on top. The bottle was within easy reach of the Appellant. He asked the Appellant whether he had been drinking and the Appellant responded that he may have had two shots.

[8] Consequently, the officer asked tMr. Gomez to get out of his car and walk to the rear of the car. The Appellant had difficulty doing so and had to lean on the car to steady himself as he was walking. The officer formed the opinion that the Appellant was impaired by alcohol and arrested him, read him his rights to counsel, and made a breathalyser demand.

[9] There are no issues in relation to the events that took place after the arrest and before the intoxilyzer results were obtained. Two tests were taken, and the results were 198 mg per 100 ml of blood and 202 mg per 100 ml of blood, respectively.

[10] The Appellant was released at 12:20 pm the same day.

Issues on appeal

[11] Two issues were raised at trial and are being raised again on this appeal.

[12] First, whether the Appellant’s s. 10(a) right pursuant to the Canadian Charter of Rights and Freedoms (“Charter”)[^2], was breached because Cst. Jaggon failed to inform him why he was being asked to exit his vehicle.

[13] Second, whether the Appellant’s s. 9 right pursuant to the Charter was breached because of the delay in releasing him from custody.

Trial decision

[14] As noted earlier, the Appellant raised the same Charter issues at trial as are being raised on appeal.

[15] There were only two witnesses at trial – Cst. Jaggon and Sgt. Balasundaram. The trial judge found both witnesses to be credible and reliable.[^3]

[16] The primary witness in relation to the purported s. 10(a) Charter breach was Cst. Jaggon. At trial, Defence counsel argued that Cst. Jaggon failed to tell Mr. Gomez of the reason for the stop and failed to tell the Appellant the reason for the demand to exit his vehicle. The Trial Judge found that Cst. Jaggon had informed the Appellant of the reason for the stop. Defence counsel is not taking issue with that aspect of the trial judge’s ruling.[^4]

[17] With respect to the issue of whether the Appellant understood why he was pulled over, the Trial Judge found that Cst. Jaggon told Mr. Gomez that he did not have his rear lights on. The Appellant responded that he was unaware of that fact. The Trial Judge found that this response was a clear indication that the Appellant had been made aware of the reason that he had been pulled over.[^5]

[18] The Trial Judge agreed with Defence’s assertion that the Appellant’s jeopardy had changed when he was asked to get out of his car. When Cst. Jaggon made that demand, he had noticed the presence of a bottle of vodka in the center console of the car within easy reach of the Appellant. Cst. Jaggon asked Mr. Gomez if had been drinking and the Appellant responded “maybe two shots”.[^6]

[19] In relation to whether the Appellant understood from the circumstances that the focus of his interaction with the police officer had changed, the Trial Judge stated,

It was…clear to Mr. Gomez, for reasons also set out above, that the reason Constable Jaggon had asked whether he had been drinking, as – he’s entitled to do in the interest of public safety, the reason he asked him is because there, in plain view, beside the driver with a shot glass perched atop it, was a bottle of vodka.

It was clear to Mr. Gomez that that was why he being asked if he’d had anything to drink. And – and that is made clear by his response itself.

In the circumstances here, however, I cannot find that [the police officer] breached Mr. Gomez’ informational right.[^7]

[20] Defence counsel also asserted at trial that Mr. Gomez’s s. 9 Charter right to be free from arbitrary detention had been breached when he spent three and a half hours in custody after he had been served with all the documents necessary to be released.

[21] At trial and on this appeal, counsel for the Appellant argued in their written materials that the time period of the alleged overholding should start as of the end of the taking of the second intoxilyzer test at 7:31am. In oral argument, both counsel focused on the time period starting with the service of the final document by Cst. Jaggon at 8:56am and ending with Mr. Gomez’ release at 12:20pm.

[22] In my view, this narrowing of the timeframe was wise. Between the end of the second intoxilyzer test and the service of the final document, Cst. Jaggon testified that he was carefully preparing all the relevant documentation. This matter was his first impaired driving case that he had handled alone, and he indicated that he was being particularly careful to ensure that he got it all correct. That process took time. In the circumstances, a finding that this time did not qualify as an arbitrary detention was inevitable.

[23] The sergeant in charge of the cellblock on December 18, 2022, testified at trial. Sgt. Balasundaram stated that he was the only sergeant who was on duty, and he oversaw all the intake as well as the security and well-being of all the inmates (who could number as many as 65).[^8]

[24] Sgt. Balasundaram testified that when deciding when to release someone from the cellblock, he took into consideration a variety of factors. Some of the factors relate to the cellblock as a whole and some to the individual detainee.

[25] The sergeant stated that factors relating to the cellblock included how busy it was, managing detainees making lawyers’ calls, maintaining the privacy of the individual detainees, and whether there were any medical emergencies.[^9]

[26] He added that factors relating to the specific inmate included such issues as whether the detainee:

• could climb two flights of stairs to the exit and would be safe stepping out into a roadway;[^10]
• was properly attired for the weather;[^11]
• had no medical issues arising from the consumption of alcohol;[^12]
• had a sufficiently reduced level of impairment and/or blood alcohol readings; and[^13]
• had been fingerprinted and booked and understands the documents he was served.[^14]

[27] Sgt. Balasundaram was unable to recall very much detail in relation to Mr. Gomez. He recalled Mr. Gomez’ arrival and had made a note of the fact that he was slightly unsteady on his feet.[^15] He was aware that the Appellant had intoxilyzer readings of approximately 200 mg per 100 ml of blood. In preparation for trial, Sgt. Balasundaram had reviewed the cellblock logs and was aware that regular checks had been made on the Appellant while he was in the cellblock.[^16] When shown the cellblock log, he was able to confirm that the Appellant had been released at 12:20pm.[^17]

[28] The Trial Judge reviewed the caselaw on this issue and determined that there are competing decisions on the issue of the amount of time a person can be detained on the sole basis of blood alcohol readings.[^18]

[29] Ultimately, he concluded,

[W]ith respect to Sgt. Balasundaram’s overall conduct and his testimony in this court, it is my view that – that he – he was a clearly experienced officer, one who makes decisions in a careful and measured fashion. The fact that he does not now recall the specific reasons that he left Mr. Gomez remain in custody for three and half hours, in a case that he dealt with two years ago, does not, in my view, provide evidence that on a balance of probabilities, the Charter right was breached.

He did not make detailed notes, [but] that does not mean that he did not reach a careful decision.

[I]n the absence of an authoritative decision from the Court of Appeal on the point, I’m not satisfied in the circumstances of this case that the manner in which Sgt. Balasundaram dealt with Mr. Gomez constituted a breach of s. 9.[^19]

[30] The Trial Judge concluded that there had been no breach of either s. 10(a) or s. 9 of the Charter and convicted Mr. Gomez on both counts.

Standard of Review

[31] The standard for appellate review is set out in R. v. Biniaris, 2000 SCC 15.[^20] The Supreme Court of Canada cites the traditional test of whether a properly instructed jury, acting judicially, could reasonably have rendered the impugned verdict, and then goes on to comment:

That formulation of the test imports both an objective assessment and, to some extent, subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyze and, within the limits of appellate disadvantage, weigh the evidence.[^21]

[32] In Biniaris, the Court also indicated that in reviewing a trial judge’s reasons for judgment, an appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis. If so, then the appellate court could reverse the trial judge’s decision. However, trial judges are entitled to be accorded deference with respect to their findings of fact, particularly where findings of credibility are made. As noted in Biniaris,

Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned.[^22]

[33] As other courts have noted, a verdict is unreasonable if the trier of fact made a “palpable and overriding error” and its functional equivalents, including “clearly wrong”, and “not reasonably supported by the evidence”.[^23]

[34] Counsel in the present matter are in agreement that the issues raised concern mixed fact and law and therefore, the test is whether the trial judge made a palpable and overriding error.

Legal Principles and Analysis re Section 10(a) of the Charter

[35] Pursuant to s. 10(a) of the Charter, everyone has the right on detention to be informed promptly of the reasons thereof. Accordingly, a person does not have to submit to a detention without knowing the reasons for that detention.

[36] The term “promptly” has been interpreted to mean “immediately”.[^24]

[37] The Supreme Court of Canada in R. v. Evans noted that,

It is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).[^25]

[38] That decision is eminently practical given the fluid and sometimes volatile situation of a roadside stop.

[39] Interestingly, despite the statement by the Supreme Court of Canada in the Evans case, the issue of what is needed to fulfill the informational component of the s. 10 Charter right has been subsequently the subject of considerable debate in the caselaw.

[40] There is a line of cases, primarily summary conviction appellate cases, that is divided over what precisely is required to comply with s. 10(a).

[41] Starting with R. v. Evans, 2015 ONCJ 305 (a different Evans than the Supreme Court of Canada case), there is a line of cases that insists that the informational component of s. 10 can only be met if the detaining officer explicitly states the reason for the detention.[^26]

[42] On the other hand, there is another line of cases that is more concerned with substance than with form.

[43] In R. v. Mann, 2004 SCC 52, the Supreme Court of Canada summarized the requirement that was to be met in s. 10(a) as follows, “at a minimum, individuals who are detained for investigative purposes must…be advised, in clear and simple language, of the reasons for the detention”.[^27]

[44] However, as noted in R. v. Gardner, 2021 ONSC 3468,

[A]ppellate courts have concluded that this statement [in Mann] has not overruled or modified the approach taken in Evans. As stated by the Ontario Court of Appeal in R. v. Nguyen, 2008 ONCA 49,

…a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed.[^28]

[45] In R. v. Borer, 2015 ONSC 4592, the summary conviction appellate court upheld the trial judge’s finding that it was evident to the accused that although she had initially been pulled over for a traffic violation, that because of a conversation with the detaining officer, she was subsequently being investigated for a possible impaired driving situation. In that case the trial judge noted,

I am not persuaded that the law requires [the investigating officer] to be explicit about [the reason for the detention] given the context of events – pulling [the accused] over for a Highway Traffic Act violation, then asking [the accused] routine questions about alcohol consumption, [and] receiving an affirmative response.[^29]

[46] In R. v. Kumarasamy, 2011 ONSC 1385, the summary conviction appellate court also upheld the trial judge’s finding that there had not been a breach of s. 10(a). The court stated,

The respondent was obviously aware that it was late at night, that he had consumed alcohol, that there was an odour of alcohol in his car, and that he was driving erratically – in the short time before he was stopped alone he almost hit the curb several times, and at one point almost hit a light post. He could not help but know that P.C. MacKay stopped him because of a concern about his unsafe driving, and that the officer would suspect that his erratic driving might have been the result of the excessive consumption of alcohol. This case falls squarely within what was said in Nguyen: even if the officer had said nothing to the respondent, the circumstances of this case are such that the respondent knew why he was stopped.[^30]

[47] In the present case, the Appellant was advised by Cst. Jaggon that he had been driving without his rear lights turned on. There was alcohol in plain view within easy reach of the Appellant while he was driving. Cst. Jaggon askedMr. Gomez how much he had had to drink, and the Appellant had responded that he had had maybe two shots. At that point, Cst. Jaggon asked the Appellant to exit his car and walk towards the cruiser. The evidence amply supported the trial judge’s conclusion that the Appellant knew the reason for his detention.

[48] This ground of appeal must fail.

Legal Principles and Analysis re Section 9 of the Charter

[49] Section 9 of the Charter states, “everyone has the right not to be arbitrarily detained or imprisoned”.

[50] In the context of a detainee at a police station, s. 498 of the Code also plays a role and it is trite law that keeping a person in custody contrary to s. 498 constitutes arbitrary detention.[^31] However, in the present case, Defence counsel did not suggest there had been any contravention of the requirements of s. 498.

[51] Instead, the key issue argued by Defence counsel in the present case was what to make of Sgt. Balasundaram’s evidence.

[52] Defence counsel argued that in the absence of evidence that Sgt. Balasundaram adverted specifically to Mr. Gomez’ situation, that the Trial Judge could not take into consideration what Sgt. Balasundaram usually did to conclude that the detention was not arbitrary. Instead, she asserted that in the absence of anything more than the brief notation that the Appellant was slightly unsteady on his feet when he arrived at the station, there was a dearth of evidence concerning why he was kept in custody for three and a half hours. In Defence counsel’s view, given the absence of evidence, the trial judge ought to have concluded that the detention was arbitrary.

[53] Respectfully, I disagree.

[54] It is not reasonable to expect a witness to recall a routine event that occurred two years earlier. Nor is it reasonable to expect the sergeant in charge of a busy cellblock with up to 65 prisoners, all of whom are being brought into custody, booked, allowed to speak to counsel, and generally moving around the cellblockand ultimately released, to have detailed notes of every detainee.

[55] In the present case, I agree with the trial judge that it would have been nice to have a bit more in the way of information.

[56] However, evidence of Sgt. Balasundaram’s routine is evidence that the trial judge was entitled to consider.

[57] In R. v. Thompson[^32], the Court of Appeal for Ontario, found that the standard practice of a police officer is evidence that a trial court may find a verdict upon. Of note, is that Thompson dealt with the administration of a roadside breath sample. At issue was if, “the trial judge erred in finding that [the officer] had checked for obstructions in the mouthpiece before the appellant's apparent attempts to blow into it. Her evidence was that, although she had no specific memory of doing so, she did check for obstructions because this was her standard practice”.[^33] The Court found that the officer’s evidence of her routine practice could be used to determine what had happened on the date in question.

[58] Moreover, in Sopinka’s The Law of Evidence in Canada[^34] the authors state:

A fact will be relevant not only where it relates directly to the fact in issue, but also where it proves or renders probable the past, present or future existence (or non-existence) of any fact in issue. In R. v. Watson, the defence sought to adduce evidence of the deceased’s habitual possession of a weapon to extricate the accused of any involvement in the shooting. The Ontario Court of Appeal held that such evidence was relevant as the deceased’s conduct was in issue. Evidence that a person repeatedly acted in a certain way in the past when circumstances similar to the present occasion arose has been received as evidence that the person acted in conformity with past practice on the occasion in question. The reasoning is that the fact that a person was in the habit of doing a certain thing in a given situation suggests that the person acted in the same way when a similar situation arose. It makes the conclusion that a person acted in a particular way more likely than it would be without the evidence of habit.

[59] Specifically, in R. v. Watson, Doherty J.A. defines habit as:

Evidence of habit involves an inference of conduct on a given occasion based on an established pattern of past conduct…Evidence of habit proceeds on the basis that repeated conduct in a given situation is a reliable predictor that repeated conduct in a given situation is a reliable predictor of conduct in that situation.[^35]

[60] Doherty J.A., in Watson, concludes upon reviewing various authorities on evidence that:

Where a person's conduct in given circumstances is in issue, evidence that the person repeatedly acted in a certain way when those circumstances in the past has been received as circumstantial evidence that the person acted in conformity with past practice on the occasion in question.

The fact that a person is in the habit of doing a certain thing in a given situation suggests that on a specific occasion in which those circumstances arose the person acted in accordance with established practice. It makes the conclusion that the person acted in a particular way more likely than it would be without the evidence of habit. Evidence of habit is therefore properly viewed as circumstantial evidence that a person acted in a certain way on the occasion in issue.[^36]

[61] Later, Doherty J.A., referring to McCormick on Evidence (4th ed.), writes in Watson:

The recognition that evidence of habit is relevant to prove conduct on a specific occasion begs the more fundamental question — what is a habit? McCormick at p. 826 describes habit as:

the person's regular practice of responding to a particular kind of situation with a specific type of conduct.

Habit therefore involves a repeated and specific response to a particular situation.[^37]

[62] Notably, the British Columbia Court of Appeal in R. v. Ashmore, 2011 BCCA 18, states:

[I]t is to be remembered that testimony regarding standard or habitual practice, even standing alone, can serve as the basis for finding that something was done in a certain way. As Mr. Justice Seaton stated in Belknap v. Greater Victoria Hospital Society (1989), 64 D.L.R. (4th) 452 (B.C. C.A.), at 465:

If a person can say of something he regularly does in his professional life that he invariably does it in a certain way, that surely is evidence and possibly convincing evidence, that he did it in that way on the day in question.[^38]

[63] The Court of Appeal for Ontario, in R. v. Vant, 2015 ONCA 481 affirms the importance of evidence of habit, finding “the potential for prejudice is substantially lessened in cases of habit since the detailed patterns of situation-specific behaviour that constitute habits seem unlikely to provoke much sympathy or antipathy in the trier of fact”.[^39]

[64] Still, the Court of Appeal for Ontario offers important limits to the use of habit evidence. Notably the Court limits it application in aiding the credibility of a witness:

A related problem associated with evidence of habit is how to evidence it. At bottom, there must be specific instances numerous enough to support an inference of systematic conduct: John Henry Wigmore, Wigmore on Evidence, revised by James H. Chadbourn (Toronto: Little, Brown and Company, 1979), § 376, at p. 385.[^40]

[65] In the present case, Sgt. Balasundaram testified to his habit and all the various factors that he took into consideration before releasing a detainee. He was a 10-year veteran of the police service and on a 2-year rotation as a cellblock supervisor.[^41] The trial judge found as a fact that the sergeant was “one who makes decisions in a careful and measured fashion”.[^42]

[66] It was open to the Trial Judge to find that Sgt. Balasundaram was an officer who routinely made careful decisions and who relied on the factors that he outlined in his evidence to make those decisions and that, therefore, the sergeant had followed his normal practice on the date in question when deciding when to release Mr. Gomez.

[67] In addition, there is appellate caselaw that strongly suggests that high blood alcohol readings, of themselves, are enough to justify keeping a detainee in custody.

[68] The Trial JJudge chose not to follow the Court of Appeal decision of R. v. Sapusak, [1989] O. J. No. 4148.[^43] He accepted Defence counsel’s argument that it was an endorsement only and should be treated with caution. That decision states,

We are not persuaded that the police in light of the 130mg reading, were not justified in detaining the appellant for his own protection. However, in the event that there was an arbitrary detention, it could not, in our view, be a basis for excluding the breathalyser evidence since there was no temporal or causal connection between the breach and the obtaining of the evidence.[^44]

[69] However, I agree with Heeney J. in Kavanagh that this decision is “clear and binding authority for the proposition that detaining an individual for his own protection for 6 to 7 hours based solely on readings of 130 mg per 100 ml of blood does not constitute arbitrary detention”.[^45]

[70] Consequently, there is no palpable and overriding error and this ground of appeal fails.

Section 24(2) of the Charter

[71] Defence counsel asked the court to opine on the issue of the exclusion of the evidence, regardless of whether it found a breach of a Charter right to have occurred.

[72] Defence counsel also conceded that a breach of s. 10(a), by itself, would not meet the criteria in s. 24(2). She argued that it would be the cumulative effect of the two breaches, or alternatively, the effect of the s. 9 Charter breach on its own that would justify the exclusion of the evidence.

[73] For the following reasons, I find that even if the court found that there was a breach of both s. 10(a) and s. 9 or, alternatively, solely a breach of s. 9, the evidence should not be excluded pursuant to s. 24(2) of the Charter.

[74] Section 24(2) of the Charter engages the potential exclusion of evidence that is ‘obtained in a manner’ that infringes a right. In determining whether evidence has been obtained in that manner, causal, temporal and contextual factors are all relevant.[^46] In the context of an overholding, contextual factors are paramount as generally, the court is required to reach backwards to exclude evidence that was obtained prior to the breach.

[75] As noted in R. v. Plaha,

The evidence will be ‘obtained in a manner’ that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct…. [t]he connection must be more than tenuous.[^47]

[76] If, in the present case, the court had found solely a breach of s. 9, in my view the intoxilyzer results would not have been excluded because there is no connexion between the intoxilyzer results and the overholding. Cst. Jaggon stopped Mr. Gomez, formed the requisite grounds, made a proper demand and took Mr. Gomez into custody for a breath test. The breath tests and analysis were performed by an intoxilyzer technician and there was no breach of any Charter right. The Appellant was then returned to the cellblock and Sgt. Balasundaram kept the Appellant in custody until his release.

[77] If a s. 9 breach occurred, it would have been committed by Sgt. Balasundaram, who had nothing to do with any of the previous, lawful events. In my view, it was a separate transaction.

[78] As stated in Kavanagh,

While Laskin J.A. directs the court to consider the entire chain of events, that does not mean the mere fact that the obtaining of the evidence and the Charter breach can both be found somewhere on that chain will suffice to support a conclusion that the evidence was obtained in a manner that breached the individual’s rights. The obtaining of the evidence and the Charter breach must still be found to be part of the ‘same transaction or court of conduct’. The decision by [the cellblock officer] to keep the Appellant in custody was not part of the transaction that generated the intoxilyzer results, nor was it part of the court of conduct of the two other officers who, together, generated the intoxilyzer results.[^48]

[79] Only if the court found that both s. 10(a) and s. 9 had been breached, would it be possible to find that the evidence had been obtained in a manner that infringed Charter rights.

[80] The cumulative effect of the two breaches would then need to be analyzed pursuant to the three factors outlined in R. v. Grant, 2009 SCC 32:

• The seriousness of the Charter-infringing state conduct;
• The impact of the violation on the Charter-protected interests of the Appellant; and
• Society’s interest in an adjudication of the allegation on the merits.[^49]

Seriousness of the conduct

[81] In the present case, if there was a breach of s. 10(a) it would be at the very low end of the spectrum, given the Appellant was made aware of his erratic driving, the fact he was driving without his rear lights turned on, alcohol was in plain view in the car and there had been a conversation concerning his alcohol consumption. Apart from explicitly advising Mr. Gomez that he was being investigated for a possible drinking and driving offence, there is little more that Cst. Jaggon could have done to make the Appellant aware of the direction of the investigation.

[82] With respect to any finding of a s. 9 breach, Sgt. Balasundaram’s decision to continue Mr. Gomez’ detention was at a minimum done with knowledge of the Appellant’s confusion regarding why he was at the police station, his unsteadiness and the high blood alcohol readings. This breach would also be at the low end of the spectrum.

Impact of the violation

[83] The time period between Cst. Jaggon asking Mr. Gomez to exit his car and when he was arrested for impaired driving was minimal. There is no suggestion that Mr. Gomez was not properly read his rights to counsel, nor that he did not have the opportunity to speak with counsel prior to the intoxilyzer tests being conducted. Consequently, any impact on the Charter-protected interests of the Appellant were short-lived and quickly rectified.

[84] The overholding (if that were found to have occurred) lasted approximately 3.5 hours. For the reasons noted above regarding the seriousness of the breach, Sgt. Balasundaram had, at a minimum good reason to keep Mr. Gomez for at least some time. There is no allegation there was anything untoward about the detention. The Appellant was simply left to “sleep it off”. In the circumstances, the impact of any s. 9 breach would be at the low end of the scale.

Society’s interest in the litigation

[85] Defence counsel conceded in her argument that the third Grant factor would militate in favour of including the evidence given the serious impact that drunk driving has on society and therefore, society’s interest in seeing such cases adjudicated on their merits.

[86] In short, none of the Grant factors would lead to a conclusion in this case that the evidence of the intoxilyzer results should be excluded. The cumulative effect of the breaches, would not, in the circumstances of this case, change that result.

Conclusion

[87] For all the reasons set out above, the appeal is dismissed.

Parfett J.

Released: November 6, 2024

COURT FILE NO.: CR-21-12245-AP DATE: 2024/11/07 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – Octavio Gomez Appellant

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL Released: November 7, 2024

Footnotes

[^1]: R.S.C., 1985, c. C-46 (“Code”). [^2]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c.11 [^3]: Reasons for Judgment, Appeal Book, tab 6 at p. 18 of the transcript (p. 279 of the Appeal Book) [^4]: Reasons for Judgment, Appeal Book, tab 6 at pp. 17, 19 of the transcript (pp. 278, 280 of the Appeal Book) [^5]: Reasons for Judgment, Appeal Book, tab 6 at p. 17 of the transcript (p. 278 of the Appeal Book) [^6]: Reasons for Judgment, Appeal Book, tab 6 at p. 25 of the transcript (p. 286 of the Appeal Book) [^7]: Reasons for Judgment, Appeal Book, tab 6 at p. 28 of the transcript (p. 289 of the Appeal Book) [^8]: Trial transcript, Appeal Book, tab 4 at p. 65 of the transcript (p. 102 of the Appeal Book) [^9]: Trial transcript, Appeal Book, tab 4 at p. 80 of the transcript (p. 117 of the Appeal Book) [^10]: Trial transcript, Appeal Book, tab 4 at p. 65 of the transcript (p. 102 of the Appeal Book) [^11]: Trial transcript, Appeal Book, tab 4 at pp. 66, 79 of the transcript (pp. 103,116 of the Appeal Book) [^12]: Trial transcript, Appeal Book, tab 4 at p. 77 of the transcript (p. 114 of the Appeal Book) [^13]: Trial transcript, Appeal Book, tab 4 at pp. 81-82 of the transcript (p. 118-119 of the Appeal Book) [^14]: Trial transcript, Appeal Book, tab 4 at p. 93 of the transcript (p. 130 of the Appeal Book) [^15]: Trial transcript, Appeal Book, tab 4 at pp. 76, 89 of the transcript (p. 113,126 of the Appeal Book) [^16]: Trial transcript, Appeal Book, tab 4 at p. 84 of the transcript (p. 121 of the Appeal Book) [^17]: Trial transcript, Appeal Book, tab 4 at p. 104 of the transcript (p. 138 of the Appeal Book) [^18]: See R. v. Price, 2010 ONSC 1898, 212 C.R.R. (2d) 249, and R. v. Kavanagh, 2017 ONSC 637. [^19]: Reasons for Judgment, Appeal Book, tab 6 at p. 41 of the transcript (p. 302 of the Appeal Book) [^20]: 2000 SCC 15, [2000] 1 S.C.R. 381. [^21]: At para. 36. [^22]: At para. 24. [^23]: H.L. v. Canada (A.G.), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 110. [^24]: R. v. Kelly, (1995), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424 as cited in R. v. Nguyen, 2008 ONCA 49, 55 C.R. (6th) 82, at para. 17. [^25]: , [1991] 1 S.C.R. 869, at para. 35. [^26]: R. v. Evans, 2015 ONCJ 305, 21 C.R. (7th) 133, at paras. 48-51. See also R. v. Poon, 2017 ONCJ 639; R. v. Mueller, 2018 ONSC 2734 and R. v. Farquharson, [2019] O.J. No. 6107 (C.J.). [^27]: 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21. [^28]: Gardner, 2021 ONSC 3468 at para. 26, citing R. v. Nguyen, 2008 ONCA 49, at para. 16. Emphasis added in Gardner. [^29]: 2015 ONSC 4592, at para. 18. [^30]: 2011 ONSC 1385, at para. 52. [^31]: Kavanagh, at para. 31. [^32]: , 52 O.R. (3d) 779, at para. 9. [^33]: At para. 7. [^34]: Sidney N. Lederman, Michelle Fuerst & Hamish C. Stewart, 6th ed, (Toronto: LexisNexis Canada, 2022), at § 2.02 (¶2.57). [Emphasis added.] [^35]: , 30 O.R. (3d) 161 (C.A.) at pp. 173-4. [^36]: At p. 173. [^37]: At p. 174. [Emphasis added.] [^38]: 2011 BCCA 18, leave to appeal refused [2011] C.C.C.A. No. 280, at para. 61. [Emphasis added.] [^39]: 2015 ONCA 481, at para. 67. [^40]: At para 69. [^41]: Trial transcript, Appeal Book, tab 4 at p. 64 of the transcript (p. 101 of the Appeal Book) [^42]: Reasons for Judgment, Appeal Book, tab 6 at p. 41 of the transcript (p. 302 of the Appeal Book) [^43]: [1989] O. J. No. 4148. [^44]: At para. 1. [^45]: Kavanagh, at para. 40. [^46]: R. v. Pino, 2016 ONCA 389, at para. 49, 54. [^47]: (2004), , 188 C.C.C.(3d) 289 (Ont. C.A.), at para. 45. [^48]: At para. 50. [^49]: 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.