Court of Appeal for Ontario

Date: 2020-01-21 Docket: M50182

Before: Benotto, Paciocco and Thorburn JJ.A.

Between: Her Majesty the Queen, Respondent And: Alisa Chaly, Appellant

Counsel: Alisa Chaly, acting in person Andrew Hotke, for the respondent

Heard and released orally: January 13, 2020

Reasons for Decision

[1] The motor vehicle Ms. Chaly was operating was stopped on April 15, 2016. After investigation, she was arrested for impaired driving and a breath demand was made. She was ultimately charged with impaired driving, refusing to provide a breath sample, and breaching the keep the peace condition of a peace bond recognizance that was in effect.

[2] After trial, Ms. Chaly was acquitted of impaired driving but convicted of refusing to provide a breath sample and breach of recognizance. She was fined $1,000 and $100 respectively and a one-year driving prohibition was put in effect.

[3] Ms. Chaly unsuccessfully appealed her conviction to a summary conviction appeal court. She now brings an inmate appeal to this court seeking leave to appeal, raising two grounds of appeal, one relating to whether proper rulings were made on the arbitrariness of her detention and the other relating to the treatment of the loss of the booking area video.

[4] This is not an appropriate case for leave to appeal, since there are no questions of law raised that have significance to the administration of justice and no clear errors were committed. Even if we granted leave to appeal, we would be required to dismiss Ms. Chaly’s appeal.

[5] Ms. Chaly urges that the trial judge erred in denying her claim that she was arbitrarily detained by being held longer than required after she was charged. The trial judge denied this claim because Ms. Chaly failed to offer evidence of how long she had been detained. Absent such evidence, her Charter motion could not succeed.

[6] Nor was there an error in the summary conviction appeal justice’s decision to deny an appeal from the trial judge’s refusal to grant a stay based on the loss of the booking area video. The trial judge found appropriately that the loss of the video was not caused by negligence but by reasonable policies relating to the retention of booking area videos. We see no basis for interfering with that decision.

[7] Moreover, the destruction of the video caused Ms. Chaly no material prejudice. The trial judge explicitly chose not to rely on what transpired in the booking area as evidence against Ms. Chaly as proof of her impairment, and the video could have only marginal relevance on the remaining charges. There was video tape evidence relating to Ms. Chaly’s refusal to provide a sample. The refusal charge turned on that video, not on issues relating to the officer’s credibility. As the trial judge noted:

The evidence that is disclosed in the breath room video provides ample support for the contention by the Crown that there was a deliberate refusal to provide breath samples.

[8] Leave to appeal the conviction appeal is therefore denied. On consent, we set aside the victim surcharge.

“M.L. Benotto J.A.” “David M. Paciocco J.A.” “Thorburn J.A.”