R. v. LaChappelle, 2007 ONCA 655

CITATION: R. v. LaChappelle, 2007 ONCA 655

DATE: 20070924

DOCKET: C43943

COURT OF APPEAL FOR ONTARIO

ROSENBERG, FELDMAN and ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

CHRISTOPHER LACHAPPELLE

Appellant

Alan D. Gold and R. Matthew Barteaux for the appellant

James V. Palangio for the respondent

Heard: May 9, 2007

On appeal from conviction by Justice Terrance O’Connor of the Superior Court of Justice, sitting with a jury, dated May 11, 2005 and sentence imposed August 10, 2005.

ROSENBERG J.A.:

[1] This appeal from conviction arising out of an automobile collision raises two sets of issues. The first, whether the trial judge, O’Connor J., was required to give the jury a special instruction concerning the frailties of eyewitness evidence of events. The second, whether blood and breath samples were seized in accordance with the law, including the Canadian Charter of Rights and Freedoms. I have concluded that the special instruction was not required in the particular context of this case. I am also satisfied that the blood and breath samples were properly taken. I would therefore dismiss the appeal from conviction.

[2] The appellant also appeals from the sentence totalling twenty-one months imprisonment. He argues that the trial judge erred in principle in refusing to impose a conditional sentence of imprisonment and that, in any event, the sentence is excessive. I would also dismiss the sentence appeal.

THE FACTS

[3] On May 6, 2001 at around 9:45 p.m. the appellant’s vehicle collided with a vehicle driven by Henry Belanger. As a result of the collision, Mr. Belanger was killed and his daughter, Madeline Henwood, was injured. The appellant was also injured. Some witnesses at the scene, including an off-duty police officer, noted that the appellant had been drinking. The off-duty officer told the officer in charge of the investigation at the scene, Sergeant Ronald Gignac, that he thought the appellant had alcohol on his breath. Sergeant Gignac assigned Constable Nicole Randall to stay with the appellant. The presence of Constable Randall in the ambulance and at the hospital became one of the foundations for the appellant’s argument that the seizure of blood and breath violated his Charter rights.

[4] One of the important issues in the case was whether the appellant, who was travelling north, had crossed over into the victims’ lane or whether the victims’ car crossed over into the appellant’s lane. Robert Andrews was driving the second car behind the Belanger vehicle. He testified that he saw the appellant’s vehicle cross into the southbound lane. Ms. Henwood testified to the same effect.

[5] The appellant is a police officer. He was not on duty at the time of the collision. Rather, he was returning from a family event where, he admits, he had been drinking. He testified that just before the collision, he was distracted when his pager went off and he looked down at it. He also testified, however, that he did not cross over into the other lane. There was also evidence that the appellant’s vehicle veered off the paved surface of the road a short time before the collision. The appellant denied leaving the paved surface at any time.

[6] The Crown and defence each called expert accident reconstruction evidence. The Crown expert testified that the collision occurred in the Belangers’ lane. The defence expert disagreed.

[7] To prove that the appellant’s ability to drive was impaired by alcohol, the Crown not only led evidence of drinking, but also relied on the results of analysis of blood samples taken at the hospital for medical purposes and the results of an Intoxilyer test performed by the police at the hospital. An expert witness testified that based on these results, the appellant’s blood alcohol level was somewhere between 130 and 210 milligrams of alcohol in 100 millilitres of blood at the time of the collision. The expert concluded that if the appellant’s testimony as to how much he had drunk was accepted then his blood alcohol level would have been less than 50 milligrams of alcohol in 100 millilitres of blood at the time of the collision.

ANALYSIS

(1) The Jury Charge Issue

[8] Both the appellant and Mr. Andrews testified that they were sure of their observations. Defence counsel cross-examined Mr. Andrews on his statement to the police the day after the accident in which he said, “As far as I could tell I’m pretty positive it was the guy who was coming northbound that crossed the centre line.” In his testimony before the jury, Mr. Andrews insisted that he had seen the northbound car cross into the oncoming traffic, and that this was not simply an opinion or a reconstruction of events. Under cross-examination, he agreed that he was not paying particular attention to the Belanger vehicle and that the events occurred very quickly. He also agreed that the wording of his statement suggested some reservation on his part. In re-examination, Crown counsel referred to the statement and asked Mr. Andrews whether he had any reservations about his testimony of what he saw. Mr. Andrews responded that he did not have any reservations: “I saw what I saw, and that’s that.” When questioned about his degree of confidence, he said he was “totally confident”.

[9] In his jury address, defence counsel summarized his cross-examination of Mr. Andrews and emphasized his statement to the police. In his jury address, Crown counsel summarized Mr. Andrews’ direct examination and quoted verbatim from his re-examination.

[10] In the pre-charge conference, counsel for the appellant sought a special instruction concerning Mr. Andrews’ evidence. In light of the re-examination and the emphasis placed upon it by Crown counsel in his jury address, the defence wanted the trial judge to instruct the jury that witnesses’ confidence is unrelated to their reliability. The trial judge refused to give the instruction. The appellant argues that this was an error of law in the circumstances of this case. In my view, the instruction was not required. To understand why, it is necessary to appreciate the structure of the jury charge.

[11] In his charge to the jury, the trial judge gave the usual instructions concerning the assessment of testimony. For example, he told the jury to consider whether the witness seemed able to make accurate and complete observations about the event and whether the witness had a good opportunity to do so. He said to consider the circumstances under which the observations were made and whether the event itself was unusual or routine. He also told the jury to consider whether the witness seemed to be reporting what he or she saw or was simply putting together an account based on information obtained from other sources. He cautioned the jury not to jump to conclusions based entirely on how a witness had testified since “looks can be deceiving”. He warned, “There are simply too many variables to make the manner in which a witness testifies the only or most important fact in your decision.” All of these instructions had particular application to Mr. Andrews given the defence position that Mr. Andrews was not paying particular attention at the time of the collision and had, in effect, reconstructed events after the fact, as demonstrated by his statement given to the police the day following the collision.

[12] When the trial judge came to discuss prior inconsistent statements, he used Mr. Andrews as an example. He highlighted the apparent contradiction between Mr. Andrews’ testimony and his police statement. He reminded the jury of Mr. Andrews’ explanation that the phrase “As far as I could tell” was simply a figure of speech.

[13] The trial judge referred again to Mr. Andrews’ evidence on several more occasions when dealing with the questions of impairment and the location of the collision. Each time, he also reminded the jury of the appellant’s evidence to the contrary. When summarizing the Crown theory, the trial judge said this about Mr. Andrews’ evidence:

Mr. Robert Andrews was wholly independent, sober and in an excellent position to see the collision. He testified that Mr. LaChappelle crossed into the southbound lane, causing the collision.

[14] The trial judge never referred to Mr. Andrews’ re-examination in his charge to the jury.

[15] Defence counsel objected to the charge to the jury. He asked for an instruction concerning witness confidence:

Your Honour, with regard to Andrews I would ask for an instruction that when a witness says I saw what I saw, those are often the last thing that an accused hears before being wrongfully convicted. I mean that’s – my friend just argued that to the jury, that when a witness says I saw what I saw, and is confident that that’s something they should rely on, and in my submission they receive an instruction that when witnesses say they – I saw what I saw and I’m confident, that in fact that is completely unrelated to the reliability of their evidence.

[16] The trial judge refused to give the instruction, concluding that the general instructions about witness reliability were sufficient. After deliberating for several hours, the jury asked for Mr. Andrews’ testimony and his statement. Defence counsel repeated his request for the special instruction. The trial judge took time to consider the matter, but decided not to give the instruction. He repeated that he was satisfied that the general instructions were sufficient and that the special instruction would place undue emphasis on this aspect of the witness’ evidence. The trial judge gave to the jury a transcript of Mr. Andrews’ evidence, which, of course, included the re-examination. The jury returned with a guilty verdict just over two hours later.

[17] The appellant relies on eyewitness identification cases to support his submission that the special instruction was required in this case. In R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. (3d) 129 (S.C.C.) at para. 52, Arbour J. suggested that in that case it would have been “prudent” for the trial judge to have emphasized for the jury “the very weak link between the confidence level of a witness and the accuracy of that witness”. In R. v. Knox (2006), 2006 16479 (ON CA), 209 C.C.C. (3d) 76 (Ont. C.A.), Laskin J.A. held that it was problematic for the trial judge to suggest that the jury consider the identifying witness’ own certainty about his identification.

[18] The appellant submits that the need for a Hibbert-type instruction is not limited to eyewitness cases but can also apply in other circumstances where there is a risk that the jury will be misled into believing that the witness’ own confidence in the reliability of his or her observations is relevant. He submits that the experience of the law, as gained from identification cases, about the danger of the trier of fact giving weight to witness confidence applies with equal force to analogous circumstances. He submits that those circumstances existed here: the witness’ evidence depended upon a very brief observation of a startling event and the prosecution relied upon the witness’ confidence as a factor to support the reliability of the observations.

[19] Crown counsel disagrees. He submits that there is a fundamental distinction between eyewitness identification and testimony of an event. He submits that eyewitness identification is in reality an opinion, the expression of which can make a dramatic and unjustified impact on a jury. Testimony of an event, by contrast, is testimony concerning a fact; it does not suffer from the same inherent frailties. I cannot agree with Crown counsel’s submission. The issue is not whether identification is an opinion and testimony of an event is a fact, but whether witnesses’ own confidence in the accuracy of their observations and recollections is a relevant factor. In the circumstances of this case, the witness’ own confidence in the reliability of his observations was of little relevance in considering the accuracy of those observations. That said, it may be that testimony about events may not have the same dramatic or persuasive impact as eyewitness identification evidence.

[20] In any event, in my view the principal reason for the admission of the evidence of the witness’ confidence was not to bolster the reliability of his observations, but rather to rehabilitate a witness whose credibility had been damaged in cross-examination. Defence counsel forcefully cross-examined the witness on his statement to the police to suggest that he had changed his story and that his tentative observation shortly after the event had evolved into a more confident recollection. The statement was used to undermine the witness’ credibility. It was open to Crown counsel in those circumstances to attempt to rehabilitate the witness by establishing, if possible, that his recollection had always been the same.

[21] The special charge was unnecessary. Not only had defence counsel vigorously cross-examined Mr. Andrews on this issue, but the trial judge had also, in his general instructions, pinpointed the important factors for the jury to consider in assessing the reliability of Mr. Andrews’ evidence.

[22] This case is not like Knox. In Knox the trial judge suggested that the jury could consider an eyewitness’ own certainty in assessing reliability. Here, the trial judge made no such assertion, even when he referred to the Crown’s theory that Mr. Andrews’ confidence in his observations was a relevant consideration.

[23] Finally, a special charge likely would not have benefited the appellant. As Crown counsel pointed out at trial, the appellant had used language similar to Mr. Andrews’ in describing the location of the collision. The jury could have easily applied any special instruction to this testimony as well.

[24] In the circumstances, and notwithstanding the undoubted importance of Mr. Andrews’ evidence, I am not persuaded that the failure to give the special instruction constituted an error. Therefore, to use the language of Hibbert, while it might have been prudent for the trial judge to have given the requested instruction, his failure to do so did not constitute an error of law.

[25] Accordingly, I would not give effect to this ground of appeal.

(2) The Charter Arguments

[26] At trial, the appellant mounted a full-scale attack on the admissibility of the blood samples and the breath samples. Many of those same arguments are made on appeal. I will first describe the factual context that led to the seizure of the blood samples and the taking of the breath samples and then deal with the various arguments.

[27] As indicated above, once it was suspected that the appellant had been drinking, Constable Randall was assigned by her superior to stay with the appellant. In the result, she rode with him in the ambulance and stayed at his side for some of the time he was in the hospital. There was no suggestion that her presence interfered with any treatment that the appellant needed either in the ambulance or in the hospital. Further, the ambulance and hospital staff consented to Constable Randall’s presence, and the appellant at no time objected to her presence.

[28] In the ambulance, Constable Randall noted an odour of alcohol on the appellant and that he was answering the paramedics’ questions with one-word answers and hand gestures as if he was attempting to avoid talking. Randall did not speak to the appellant while he was in the ambulance. She remained with the appellant at the hospital except when he went for X-rays. Again she noticed that the appellant appeared to be trying to avoid talking, instead using gestures or one-word answers. About thirty minutes after they arrived at the hospital, Randall saw the appellant put some gum in his mouth. She told him he should not be eating anything. At this time, the appellant recognized Randall as an officer with whom he had attended Police College. He addressed her by name. Randall noted that his speech was slurred, his eyes were red and bloodshot, and he still had an odour of alcohol around him.

[29] Three minutes later, on orders from a physician, a nurse took five vials of blood for medical purposes. The appellant did not object to the taking of the blood samples. The vials remained in Randall’s sight until another officer, Detective Constable Scherer, arrived at the hospital. That officer watched the vials until they were placed in a laboratory refrigerator. At that time, he placed Centre of Forensic Sciences seals on the remaining vials. A hospital technician testified that if further medical tests had been needed, she could have broken the seals and used the vials. She also testified that vials of blood that are not necessary for medical purposes are ordinarily destroyed. Two days later, Detective Constable Scherer called the hospital and confirmed the existence of a blood chemistry report. He then obtained a search warrant to seize the vials and the report, which contained a blood/alcohol analysis.

[30] Forty-five minutes after the hospital blood samples were taken, the appellant went for X-rays. Constable Randall did not accompany him. While the appellant was gone, Randall concluded that she had grounds to arrest the appellant for impaired driving. Accordingly, when he returned, Randall arrested the appellant for impaired driving. She read the appellant his rights under s. 10(b) of the Charter and made a breath demand. The appellant said that he understood the demand and would comply. He then said he wished to speak to duty counsel. The appellant had a fifteen minute private conversation with duty counsel. After the call, the appellant told Randall that duty counsel had informed him that the other driver had died (Randall had provided this information to duty counsel). Randall told the appellant that the charge would now be impaired driving causing death. She asked him if he still wanted to provide breath samples. The appellant agreed. The samples were given about four hours after the collision.

[31] At trial, the Crown tendered evidence of the results of the breath tests and analysis of the blood samples. The appellant raises the following issues concerning the admissibility of this evidence.

(a) The presence of Constable Randall in the ambulance violated the appellant’s privacy rights.

(b) The appellant’s s. 8 rights were violated by the hospital when personnel took blood samples without consent.

(c) Detective Constable Scherer violated the appellant’s right to protection against unreasonable search and seizure under s. 8 of the Charter when he placed seals on the vials of blood that had been taken for medical purposes.

(d) Constable Randall detained the appellant while he was in the ambulance and the hospital and therefore violated his rights under ss. 9 and 10 of the Charter.

(e) Constable Randall did not make the breath demand as soon as practicable and therefore the breath demand was not lawfully made.

(f) The appellant’s s. 10(b) rights were violated because he did not receive competent advice from duty counsel.

(g) The combined effect of these various infringements violated the appellant’s rights under s. 7 of the Charter.

(a) Violation of the appellant’s rights in the ambulance

[32] The appellant submits that his rights under s. 8 of the Charter were violated because Constable Randall remained with him in the ambulance while he was transported to the hospital. He argues that Constable Randall violated his right to privacy and seized information from him by observing his interaction with the ambulance personnel. This information was later used by Constable Randall to form her grounds for the breath demand and may have been some of the information used by Detective Constable Scherer to obtain the search warrant.

[33] The trial judge found that Constable Randall’s non-intrusive presence with the consent of the ambulance personnel did not breach the appellant’s reasonable expectation of privacy. He principally relied upon a decision of Durno J. in R. v. Colbourne (1998), 19 M.V.R. (4th) 1 (Ont. Ct. J. (Gen. Div.)) aff’d (2001), 2001 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.). Accordingly, he found there was no violation of the appellant’s s. 8 rights in the ambulance.

[34] In my view, the mere fact that Constable Randall accompanied the appellant in the ambulance did not violate his s. 8 rights, even if the appellant had a reasonable expectation of privacy with respect to the ambulance. Section 8 is only engaged if there is a search or seizure. In this case, the appellant claims that information was seized by Constable Randall because she was able to observe his interaction with the ambulance attendants. The Supreme Court has dealt with informational privacy in several cases. In R. v. Plant (1993), 1993 70 (SCC), 84 C.C.C. (3d) 203 at 212 (S.C.C.) para. 26. Sopinka J. set out the factors to consider where the protection afforded by s. 8 with respect to informational privacy has allegedly been violated:

Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained, and the seriousness of the crime being investigated, allow for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement. It is, then, necessary to apply this contextual approach to the facts of the case at bar.

[35] This passage was approved by Binnie J. speaking for the court in R. v. Tessling (2004), 2004 SCC 67, 189 C.C.C. (3d) 129 (S.C.C.) at para. 18 where he added the following:

In the result the right to be free from examination by the State is subject to constitutionally permissible limitations. First"not every form of examination conducted by the government will constitute a ‘search’ for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a ‘search’ within the meaning of s. 8" [reference omitted].

[36] In my view, when the Plant factors are considered, the appellant did not make out a violation of his s. 8 rights. The information about which the appellant complains was Constable Randall’s observations that the appellant was communicating using one-word answers or gestures. She inferred from this conduct that the appellant was attempting not to speak. This kind of information was not of a highly confidential nature. Constable Randall was able to make the same observations later at the hospital. There is no suggestion that the words or the gestures conveyed any kind of confidential information. Constable Randall did not question the appellant in the ambulance or attempt in any other way to obtain incriminatory evidence from the appellant; she was merely making observations.

[37] As to the place where the information was obtained, the appellant had no property interest in the ambulance and no control over who rode in it. The trial judge found that the people who did have control over the ambulance, the ambulance personnel, impliedly consented to Constable Randall being present. Constable Randall’s presence did not in any way interfere with the appellant’s medical care. The appellant did not testify that he was inhibited by Constable Randall’s presence in the ambulance.

[38] Finally, the offence under investigation was a most serious one. The acts of Constable Randall in passively observing the appellant in the ambulance were wholly proportionate to the seriousness of the situation.

[39] To conclude, applying the contextual approach mandated by Plant, I am satisfied that the trial judge correctly concluded that the appellant’s rights under s. 8 of the Charter were not violated.

(b) Taking blood samples by hospital personnel

[40] The trial judge found that hospital personnel took blood samples only for medical reasons. There is absolutely no evidence that the physician who ordered that the blood samples be taken or that the nurse who took them were acting as agents of the state or that they took the samples with the intention of sharing the blood or the results of any analysis with the police. Accordingly, s. 8 of the Charter was not engaged. See R. v. Dersch (1993), 1993 32 (SCC), 85 C.C.C. (3d) 1 (S.C.C.) at 12-3.

(c) Placing seals on the vials of blood that had been taken for medical purposes

[41] The appellant submits that the act of Detective Constable Scherer in placing seals on the vials of blood that had originally been taken for medical purposes constituted an unreasonable seizure in violation of s. 8 of the Charter. The appellant points out that the evidence shows that but for Detective Constable Scherer’s intervention, the blood samples would undoubtedly have been destroyed before the police could have lawfully obtained the evidence through a search warrant. This court has determined this issue against the position taken by the appellant on several occasions, most recently in R. v. Gettins (2003), 2003 9312 (ON CA), 181 C.C.C. (3d) 304 (Ont. C.A.). In Gettins, this court held that sealing vials of blood until a search warrant could be obtained, where, as here, the vials remained under the control of the hospital in the event they were needed for medical purposes, was not an unreasonable seizure.

(d) Constable Randall detained the appellant and violated ss. 9 and 10 of the Charter

[42] The appellant submits that Constable Randall detained him in the ambulance and the hospital and violated his rights under ss. 9 and 10 of the Charter. There is no merit to this submission. Constable Randall did nothing to detain the appellant. She did not make any demand or give any direction that resulted in his physical or psychological detention. The appellant was “detained” by his injuries from the collision.

(e) Constable Randall did not make the breath demand as soon as practicable and therefore the breath demand violated s. 254(3) of the Criminal Code

[43] The appellant submits that Constable Randall intentionally delayed arresting him and making the breath demand. He argues that Randall had already formulated the grounds for making the breath demand before the blood samples were taken. Had she acted expeditiously, the appellant would have spoken to counsel and learned that he could withhold his consent to the taking of the blood samples. The question of when Constable Randall formed her grounds for arrest and making the breath demand was a factual issue. The trial judge resolved that issue against the appellant. The trial judge extensively reviewed the evidence and concluded that the demand was made as soon as practicable. I see no basis for interfering with this conclusion. The appellant has not pointed to any misapprehension of fact by the trial judge or any failure to advert to relevant evidence.

(f) The appellant’s s. 10(b) rights were violated because he did not receive competent advice from duty counsel

[44] The question of whether a detainee’s s. 10(b) right to counsel is violated because the detainee has not received competent advice from duty counsel appears to be one of first impression in this court. The trial judge applied the test formulated in R. v. B. (G.D.) (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 (S.C.C.) where an appellant alleges ineffective assistance of counsel at trial. B. (G.D.) involves a two-part test. The appellant must show not only ineffective assistance but that this ineffective assistance resulted in significant prejudice to the fair trial. The trial judge concluded that the appellant received competent advice concerning the breath demand, but did not receive competent advice concerning blood samples. However, he went on to hold that the appellant was not prejudiced because by the time he had finished speaking to duty counsel, the police had already sealed the vials, and the appellant led no evidence that he could have required the hospital to destroy the vials of blood even if counsel had advised him to ask that this be done.

[45] The appellant submits that the trial judge applied the wrong test and that there was no requirement that he prove prejudice. For the purposes of dealing with this ground of appeal, I will assume that where duty counsel provides incompetent advice, a detainee’s s. 10(b) rights are infringed. However, I should not be taken as having decided that issue. The issue is a complex one and would require an analysis of the relationship between the duty counsel programme and the state’s s. 10(b) obligations.

[46] Even if the appellant is right that merely showing that he received incompetent advice resulted in a s. 10(b) violation, on the findings of fact by the trial judge, no evidence was obtained by that violation. Accordingly, there was no basis for invoking s. 24(2) of the Charter and possibly excluding the results of the blood test.

[47] In R. v. Strachan (1988), 1988 25 (SCC), 46 C.C.C. (3d) 479 (S.C.C.) at 495, Dickson C.J.C. held that s. 24(2) is triggered, “if the infringement or denial of the right or freedom has preceded, or occurred in the course of, the obtaining of the evidence. It is not necessary to establish that the evidence would not have been obtained but for the violation of the Charter.” See also R. v. Goldhart (1996), 1996 214 (SCC), 107 C.C.C. (3d) 481 (S.C.C.) at paras. 34 – 40. But here the trial judge found that the vials had already been sealed and were no longer within the appellant’s control when he finished talking to duty counsel. There was no factual or temporal connection between the alleged breach and the obtaining of the evidence; the evidence had already been obtained before the alleged breach of the appellant’s rights because of the incompetent legal advice.

(g) The combined effect of these various infringements violated the appellant’s rights under s. 7 of the Charter

[48] The appellant argues that the entire course of conduct in this case, starting with the invasion of his privacy from the moment he was placed in the ambulance, the taking of the blood, the delay in making the arrest and the incompetent advice from duty counsel violated the appellant’s s. 7 right to fundamental justice. This attempt to repackage these alleged violations of ss. 8, 9 and 10 in this manner does not strengthen the arguments nor change their character. The lack of success on the individual arguments cannot be turned into a breach of fundamental justice.

[49] Accordingly, I would not give effect to any of the appellant’s Charter arguments.

THE SENTENCE APPEAL

[50] The trial judge imposed a sentence of twenty-one months imprisonment for the offence of impaired driving causing death and fifteen months imprisonment concurrent on the charge of impaired driving causing bodily harm. He also imposed a five-year driving prohibition. At the time of sentencing, the appellant was forty-one years of age. He was married but had no children. He and his wife now have a young child. He had been a police officer for seventeen years. The trial judge accepted that the appellant would lose his job as a result of the convictions. The appellant had an exemplary character and was an excellent police officer. He had no prior criminal or driving record.

[51] The victim impact statements demonstrated the devastating effect of the appellant’s crime on the family of the deceased. The Henwood and Belanger families lost a father and grandfather. Ms. Henwood sustained serious physical injuries in the collision and also suffered from post-traumatic stress disorder. The family members found it particularly inexplicable that someone who had sworn to serve and protect the public could commit this crime.

[52] At trial, the appellant sought a conditional sentence of imprisonment. He seeks the same relief in this court and, in the alternative, a reduced sentence of imprisonment.

[53] The appellant submits that the trial judge made several errors in principle. He made a category error by in effect holding that a conditional sentence was not available for this offence and failed to assess the circumstances of these particular offences properly. Counsel for the appellant submits that this was a momentary lapse by a person of otherwise good character. Finally, counsel submits that the sentence was excessive and out of the range imposed for similar offences.

[54] In my view, the trial judge did not err in principle in failing to impose a conditional sentence. He was aware that a conditional sentence is available for these offences and referred to several cases where that disposition had been imposed. He was satisfied, however, that the objective of general deterrence would not be satisfied by a conditional sentence. This determination was not unreasonable. This was not a momentary lapse in judgment. The evidence showed that the appellant consumed alcohol over a considerable period of time. Because of the delay in obtaining the breath and blood samples, the appellant’s blood alcohol at the time of the offence could not be fixed with precision. It was, however, between 130 and 210 milligrams of alcohol in 100 millilitres of blood. This is a significant blood alcohol level and demonstrates a serious disregard for the safety of others. There was also some, albeit limited, evidence of poor driving before the accident.

[55] As far as the length of the sentence, I cannot say that twenty-one months imprisonment is manifestly excessive. This court has upheld sentences of even greater length in not dissimilar circumstances. See for example R. v. Heaslip (2001), 10 M.V.R. (4th) 220 (Ont. C.A.).

DISPOSITION

[56] Accordingly, I would dismiss the appeal from conviction. While I would grant leave to appeal sentence, I would dismiss the sentence appeal.

“M. Rosenberg J.A.”

“I agree K. Feldman J.A.”

“I agree Robert P. Armstrong J.A.”

RELEASED: “MR” September 21, 2007