Court File and Parties

Court File No.: Halton 12/43 Date: 2013-08-20 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Cornel Zanet

Before: Justice Frederick L. Forsyth

Heard on: August 17, 2012, December 6, 2012, April 29, 2013

Reasons for Judgment released on: August 20, 2013

Counsel:

• Emily Roda and Christopher Presswood, for the Crown
• Aswani Kumar Datt, for the defendant Cornel Zanet

FORSYTH J.:

Summary of the Evidence

[1] Mr. Zanet was charged with a single count contrary to s. 253.1 (b) of the Criminal Code arising out of New Year's Day, January 1, 2012 in the Town of Milton, Ontario.

[2] On August 17, 2012 in Milton Provincial Court the Crown proceeded summarily and Mr. Zanet entered a plea of not guilty, represented by Mr. Datt. His trial commenced on that day.

[3] The first witness called by the Crown was P.C. Shawn Hexter who testified in Chief that he was a member of the Halton Regional Police Service and was the officer in charge of this investigation. He had made notes in the ordinary course of his investigation and they were qualified in court along with a will say statement which he had typed. He testified that he had typed the will say on January 4, 2012. He was given permission to refresh his memory from both his notes and his will say statement.

[4] He said he first became involved at 1:16 a.m. on January 1st when he was a passenger in a two officer cruiser with the driver being P.C. David McInnis. It was an unmarked cruiser and they were driving on Bennett Boulevard in the Town of Milton. He said that he looked out the passenger window to his right and observed a motor vehicle stopped in the middle of the road on Irving Terrace facing west on a bit of an angle with its lights on and the passenger door open. Bennett Boulevard and Irving Terrace are both residential roads. P.C. Hexter said that he asked P.C. McInnis to turn their cruiser around and return to have another look at this vehicle. They did so and proceeded down Irving Terrace and came up behind the vehicle. At this time, he said, the passenger door was closed and the vehicle was beginning to travel slowly in a westerly direction. Therefore, the two officers followed the vehicle west on Irving Terrace at what P.C. Hexter described as a very slow speed, approximately 5 kilometres per hour, "pretty much at a crawl." He said that they remained about a car length behind the vehicle as it turned south in sort of a looping fashion on Irving Terrace as that road loops. The two officers followed and the vehicle was still travelling at an extremely slow rate of speed and then seemed to come to almost a complete stop as it was turning with the road. He said that the cruiser's emergency lights were then activated but the vehicle did not stop and drove a short distance into a laneway about 100 metres away at 794 Irving Terrace. He then described the laneway as the residential driveway of 794 Irving Terrace.

[5] P.C. Hexter said that he exited the cruiser and approached the driver's window and the driver identified himself with a driver's licence. There is no issue in this trial that the driver was the accused, Cornel Zanet. After receiving the identification from the accused, P.C. Hexter said that he could smell a strong odour of alcohol coming from Mr. Zanet's breath and that his speech was slow and concentrated. He said that it seemed like he had to think before answering the officer's questions. He also made observations of the accused's eyes which were red and glossy. He asked the accused how much alcohol he had consumed and he responded that he had two glasses of wine, the last one being about 30 minutes before being stopped by the police.

[6] P.C. Hexter then said, "At this time I, I had suspicion that he had alcohol, the accused had alcohol within his body." He also said that the accused's wife was in the vehicle with him and he had also obtained her identification. She was in the passenger seat. He estimated that it was approximately 1:16 a.m. when he had this conversation with the accused at his vehicle.

[7] He said that at 1:17 a.m. he had read the accused the approved screening device demand from the back of his duty book and he read it at the request of the Crown in court. He asked the accused if he understood the demand and the accused's response was, "Yes I do." He said that he had an ASD with him at the time and he administered it to the accused who provided a proper breath sample.

[8] The Crown asked him to describe the ASD from a technical standpoint, but since that is not an issue in this case I will simply say that the officer said that it was an approved instrument and that it had been calibrated on the 22nd of December 2011 by another officer whose name appeared on the calibration sticker on the unit.

[9] The Crown asked him if the accused was still seated in his motor vehicle when the demand was read to him and P.C. Hexter could not recall if he had asked him to step out at that time or not. In any event he said that the accused produced an "F" on the ASD which to the officer indicated that he had blown a sample that the ASD registered as a "fail" and that to him meant that the accused had 100 milligrams of alcohol in 100 millilitres of blood or more.

[10] His actual testimony on that point was, "I had reasonable grounds to believe that the accused had 100 milligrams of alcohol within 100 millilitres of blood or more while operating a motor vehicle."

[11] He placed the accused under arrest at 1:18 a.m. and informed him of the nature of the charge.

[12] He then stated that he had read the accused's s. 10(b) Charter right to counsel to him at 1:20 a.m. and he believed that by that time the accused was out of the vehicle standing beside him at his request.

[13] He asked the accused if he understood his right to counsel and said that Mr. Zanet said "Yes, sir". When he asked Mr. Zanet if he wished to call a lawyer now, Mr. Zanet's answer was, "Not now, no".

[14] The next thing the officer did was read the standard police caution directly from his duty book at 1:23 a.m. He then stated that he had read the formal breath demand pursuant to s. 254(3) of the Criminal Code and then at the request of Mr. Datt he repeated that verbatim in court. He said that the accused had indicated that he understood the demand by saying, "Yup".

[15] After reading the breath demand he said that he and P.C. McInnis waited for another police vehicle to respond to take care of the towing arrangements for Mr. Zanet's vehicle. When asked why one officer would not simply stand at the scene and wait for that second police vehicle while the other one escorted Mr. Zanet to the police station to be processed on the charge, he said that an officer would have been standing out in the middle of the road with no vehicle and seemed to be implying that would be contrary to officer safety protocol. He said it took about nine minutes for the other officer to arrive, and he arrived at 1:32 a.m.

[16] He said that he and P.C. McInnis then began to travel to the police station with the accused in the cruiser at 1:34 a.m. They arrived at 1:42 am. at 12 Division in Milton, not having made any stops along the way.

[17] He testified that inside the cruiser at 1:35 a.m. he read a police caution to the accused, and once again Mr. Datt wished to hear it in open court and the officer read it in court. He said that the accused indicated that he understood that caution by saying, "Yes I do".

[18] The Crown then asked him to relate to the Court questions and answers that were asked in the cruiser, but before doing so, the Court asked Mr. Datt if there was an express admission of voluntariness for those questions and answers and Mr. Datt said that there was such an admission.

[19] P.C. Hexter said that he asked the accused where he had been coming from and he had answered that he was coming from his neighbour's place and that he knew that he had done something really bad. P.C. Hexter noted that he was speaking with slow speech. He asked the accused why he would not have walked home and the accused's answer was, "I was stupid. I have to recognize I was stupid." He then continued to say, "You know what, it was a two minute walk but I took my car. Now I put my family in a very difficult spot".

[20] He then told the Crown that the next question he had in his notes was, "How much you drink?" and then explained that he actually would have asked the accused, "How much did you drink?". He said that the accused told him that he consumed two glasses of wine, but two pretty big glasses he recognized. When he was asked when his last drink had been consumed, the accused said, "About one hour ago." P.C. Hexter explained that P.C. McInnis was driving the cruiser while he, Hexter, was asking these questions.

[21] When they arrived at the station P.C. Hexter said that the accused was taken directly to the booking room and he volunteered another utterance: "I know what I did I was only 300 metres from home."

[22] He said that it was 1:42 a.m. when they arrived at the station and they then waited for the staff sergeant to attend the booking room to begin the booking process. He was not sure when that process began, but he did have a note in his book that it had been completed at 2:00 a.m. when the accused was lodged in a cell waiting for the Intoxilyzer technician to deal with him. However, he added the opinion that the booking process could have been completed long before that time because he recalled there was another person in the booking room who needed to be booked at the same time.

[23] The officer then testified that at 1:15 a.m. he called duty counsel and left a message for him to call back. The Crown asked him why he had done that and he said, "The individual was, I felt, intoxicated." The Crown asked him if Mr. Zanet had asked to speak to duty counsel, and the officer said that he knew at the time when he first read his rights to counsel to him Mr. Zanet had said that he did not wish to call a lawyer at that time, but he could not recall if Mr. Zanet had asked to call duty counsel during the booking procedure. In other words, he seemed to be saying that he did not recall whether Mr. Zanet had changed his mind from his first answer at the scene. Specifically he said, "I don't recall if he asked or if I took it upon myself to call." He did say that he told the accused that he was going to be calling duty counsel and the accused was sitting right in front of him as he made the call. However, when the Crown followed up and asked him if he had verbally told him that he was calling duty counsel, P.C. Hexter said that he did not recall but he was pretty sure, but he could not say 100 percent.

[24] He said that by 2:30 a.m. the duty counsel had not returned the call so he called again and left duty counsel another message requesting a call back. During this time he said that he believed that the Intoxilyzer technician was busy warming up the Intoxilyzer, but he did not know at what particular time the technician had been prepared to receive Mr. Zanet from him for the purposes of breath testing.

[25] He said that at 2:36 a.m. duty counsel by the name of Mike Roberts returned the call and the officer spoke with him briefly. At 2:38 a.m. the accused was taken out of the cell and was speaking with Mr. Roberts in private. He said that he was not really sure which officer had removed Mr. Zanet from the cell, but he was certain that he, himself, had handed the phone for the duty counsel to Mr. Zanet to talk in private. He was asked if the accused had ever objected to him about speaking to duty counsel and he said that he had not done so.

[26] The Crown then asked him why he would have taken it upon himself to call duty counsel and the officer responded by saying that if the accused was intoxicated he might not be of sound mind and if duty counsel called back and he said he did not wish to speak to them, then he could hang up. He also pointed out that he was saying he did not really recall that the accused requested to speak to duty counsel, but "When he's being booked by the staff sergeant he's asked then as well. So he may have indicated at that point he wanted to speak to counsel". He said that the duty counsel call was completed by 2:41 a.m.

[27] At 2:43 a.m. he had already delivered the accused to P.C. McInnis, his partner in the cruiser who happened also to be the qualified Intoxilyzer technician on duty at that station at that time. P.C. Hexter said that he, himself, did not enter the Intoxilyzer room and that he may have stayed in the booking area, but once again he could not really recall.

[28] He told the Crown that he was not really sure whether P.C. McInnis had ever returned Mr. Zanet to his custody or whether McInnis placed Mr. Zanet back in the cells after the breath tests. However, his note of when he next dealt with Mr. Zanet was at 4:34 a.m. when he served the accused the true copies of the Certificate of Analysis and Notice. The Crown went through the usual series of questions with respect to the service of those documents, but Mr. Datt has not made an issue of the documentation service so I will leave it at that. On consent, the Certificate of Analysis combined with the Notice was introduced as Exhibit Number 1.

[29] The Exhibit Number 1 Certificate indicates the first breath test was completed at 2:50 a.m. with a reading of 180 milligrams of alcohol in 100 millilitres of blood and the second test was completed at 3:18 a.m. producing a reading of 170 milligrams of alcohol in 100 millilitres of blood.

[30] In cross-examination Mr. Datt suggested to P.C. Hexter that although he had testified in Chief that he had observed the accused to be driving at as slow a rate of speed as five kilometres per hour approximately, he had not made a note to that effect. The officer agreed and said that the driving of the accused was "at a crawl". He then disagreed with Mr. Datt's suggestion that because it was a residential area he might have expected a vehicle to be driving slowly because he said he did not think anybody would drive that slowly through the area. Next, he also agreed with Mr. Datt that he had only recorded in his notes the odour of alcohol on the accused's breath as opposed to a strong odour which he had testified in Chief he detected. He also agreed with Mr. Datt that he had made a mistake in recording the birthday of the accused as being the birthday of his wife.

[31] Next he agreed with Mr. Datt's suggestion that although he had noted that the accused's speech was slow when he spoke with him and that he seemed to be thinking before answering, he had never before spoken to the accused so he would have no idea of his normal pattern of speech. He did disagree with Mr. Datt's suggestion that it would be quite normal to be very slow in responding when answering a question from a police officer in the sense that he said that he thought that when a person is asked his own name and "stuff like that" he should not have to think about it.

[32] At this point in the cross-examination I did remind Mr. Datt that there is no impaired charge before the court and it seemed as though the cross-examination was being conducted in a manner that would be consistent with trying to neutralize evidence of symptoms of impairment. However, Mr. Datt asked the Court to trust him and stated that he knew where he was going with the cross-examination, and thus I did.

[33] Mr. Datt then asked him to agree that the reason he gave an ASD demand to Mr. Zanet was because he needed grounds in order to give the official breath demand and P.C. Hexter agreed by saying, "Well, yeah, if there's suspicion that they have alcohol within their body, yes". The officer agreed with Mr. Datt's suggestion that without the fail on the ASD by Mr. Zanet he would not have resorted to the official s. 254(3) demand for samples of Mr. Zanet's breath.

[34] Next, after agreeing with Mr. Datt that the thought process that would lead him to having the suspicion that the accused had alcohol in his body while operating his motor vehicle was important to him, he agreed that he had not written the words in his notebook "I formed reasonable suspicion" or words to that effect. Instead, P.C. Hexter told the Court and Mr. Datt that he said those words for his will say statement, but he believed that when the accused had advised him that he had two glasses of wine he thought that that gave him suspicion that there was alcohol in his system.

[35] However, Mr. Datt persisted and also suggested to him that those words were not actually in his will say statement either. In other words, he suggested that the formal words that an officer might use after forming a s. 254(2) suspicion such as "I formed a reasonable suspicion that the accused had alcohol in his body while operating a motor vehicle" were not in his will say statement either. P.C. Hexter asked to see the statement and, after reading it, he agreed that those words were not in his statement.

[36] Mr. Datt then continually suggested to the officer that it was important and it should have been important to him to record those words or words to that effect in his notebook about forming a reasonable suspicion that the accused had alcohol in his system at the time of operating his motor vehicle. P.C. Hexter responded by saying:

I, I think it's important to say that here today in court that – so I'm going to say that here today in court, but when I'm making my duty book notes, to me when I indicate that, "I have two glasses of wine", when he's telling me, to me that's, that's him telling – giving me my suspicion. But, no, I did not write those particular words down.

[37] Again, somewhat repetitiously, Mr. Datt persisted and pressed him into agreeing that he either never records those words or words to that effect in his notebook when he encounters a similar situation, or at least in this case he did not do so. Again, the officer answered by saying, "Not in those words that you said, but I did put them in other words". Mr. Datt finally suggested that it would be important for him to have indicated what his thought process was by recording it in his notebook, that the statement by the accused about having had the two glasses of wine contributed to his suspicion that the accused had alcohol in his system and, therefore, that he should administer the ASD to him. The officer simply agreed that it was important to have notes to that effect and he said that the observation was what he had put in his duty book.

[38] Finally, Mr. Datt moved on to another area. P.C. Hexter agreed with him that, in his opinion, the accused had no problem understanding his rights to counsel and also the fact that he had waived his right to speak to counsel immediately after being given his rights at the scene. The officer agreed with the suggestion that he had not doubted the accused's response when he said that he did not wish to speak to a lawyer at that time.

[39] The officer also agreed that he had no independent recollection, nor any note of the accused ever telling him that he was changing his mind and wanting to speak to counsel, although he wondered whether the staff sergeant in the booking room procedure could have advised him about rights to counsel. When the Court reminded him that that was mere speculation, he agreed and said he did not recall the accused ever, in his own words, changing his mind and withdrawing his waiver of his right to speak to counsel.

[40] Mr. Datt then suggested to him that when he had placed the call to duty counsel for the accused at 1:51 a.m. the accused had not prompted him to do so. P.C. Hexter said that he did not recall. Nor did he recall whether any other police officer had prompted him by telling him that the accused wanted to speak to duty counsel.

[41] Mr. Datt then reminded him of his evidence in Chief wherein he had stated that he had called duty counsel because he had thought that Mr. Zanet was intoxicated and he explained that you give a subject the option and if they do not want to speak to the duty counsel after you place the call, then they do not have to do so.

[42] Mr. Datt then suggested that by placing that duty counsel call at 1:51 a.m. and by the time the call was actually finished with the accused speaking to duty counsel at 2:36 a.m., more than 30 minutes had been "wasted". The Court reminded Mr. Datt that the term "wasted" was perhaps a matter of argument and Mr. Datt agreed that the correct terminology at this point in his cross-examination perhaps should be that more than 30 minutes had elapsed.

[43] Mr. Datt then suggested that the 45 or 50 minutes that had elapsed had been solely for the purpose of having Mr. Zanet speak to duty counsel, but P.C. Hexter said that he did not believe that to be correct. He then spoke about having placed two calls for duty counsel and he believed that there was another individual being booked at the same time for a charge of impaired driving. In this little byplay of cross-examination, the officer agreed that he would not have been the one to make the decision as to which accused, between Mr. Zanet and this other person, would have priority with respect to their investigation proceeding. Once again, Mr. Datt asked the officer if he would agree that the 50-minute period that was required for the completion of the duty counsel call for Mr. Zanet was consumed despite the fact that Mr. Zanet had originally waived his right to speak to counsel and had never changed his mind by verbalizing any change to P.C. Hexter. P.C. Hexter agreed with that suggestion.

[44] The Court then broke for lunch recess. Upon resuming, Ms. Pecorella informed the Court that during the lunch recess P.C. Hexter had approached her and provided her with disclosure of a prisoner custody record document. She had then disclosed it to Mr. Datt. She informed the Court that the relevance of the document was that it contained a question and answer on it phrased in this fashion: "Does the prisoner wish to speak with duty counsel? Answer: Yes".

[45] After some discussion with the Crown, Mr. Datt informed the Court that he was prepared to allow an exception to the order that the officer not discuss his evidence with anyone, which would include, of course, the Crown when he is under cross-examination, and he would permit the Crown to ask the officer the limited question of trying to ascertain who had authored this prisoner custody record document. After stepping outside of the courtroom and speaking with P.C. Hexter, the Crown returned and informed the Court that P.C. Hexter told her that he had completed a portion of the document, namely the top or introductory portion of the document. He then also told her that Staff Sergeant Wilkinson, who is the staff sergeant on duty at the station on the night in question, had filled out the remainder of the document, in his understanding.

[46] The Crown then proposed to ask P.C. Hexter questions about this document in re-examination after Mr. Datt completed his cross-examination. Mr. Datt was vigorously opposed to that suggestion. He submitted to the Court that the officer's conduct by obtaining this document in the midst of his cross-examination instead of obtaining it during the course of his compiling the investigative documents to support the prosecution and thereby having it disclosed originally to the defence, was an egregious violation. Whether or not it was ever considered to be an egregious violation, Mr. Datt said that it concerned him that the officer would be doing this in the midst of his cross-examination. Had the document been disclosed in advance, then any right to re-examine on the issue would be moot because it should have been raised beforehand he argued.

[47] The Court and Mr. Datt then had a discussion about the Crown's right to call Sergeant Wilkinson as a witness in the case and Mr. Datt agreed that Ms. Pecorella would have that right. However, the Crown and the Court agreed that before the Crown could do that she would certainly have to disclose Sergeant Wilkinson's proposed evidence to Mr. Datt. After a considerable discussion amongst the Crown, the Court and Mr. Datt, Mr. Datt agreed to continue his cross-examination of P.C. Hexter while the Crown awaited the arrival of Sergeant Wilkinson whom she had requested to attend the courthouse in order to try to discuss his potential evidence and disclose it to Mr. Datt.

[48] P.C. Hexter was then recalled to the witness stand. Mr. Datt returned to the officer's evidence about reasonable suspicion of alcohol being in the accused's body back at the scene when he had approached the accused's vehicle. He suggested to the officer specifically that his evidence at trial about what to him triggered the reasonable suspicion or words to that effect that he had put in his notebook really meant that he was simply guessing as to what his thought process was back on January 1st, 2012. P.C. Hexter categorically disagreed with that suggestion.

[49] Mr. Datt then asked him if after the officer got through this trial would he now make it his practice to record words of reasonable suspicion or words to that effect in his notebook in future investigations. The officer's response was, "That's possible. I haven't thought about it". Mr. Datt then suggested that it would make some sense to record those words and the officer agreed and said, "I guess there is probably a lot that I could do different, maybe".

[50] Mr. Datt then questioned the officer about his discussions with the other officer at the lunch recess. P.C. Hexter said that he had spoken to P.C. Paul Glenn who works in the Central Lock-Up of the Halton Regional Police. He acknowledged that he realized the Court had given him the caution that he was not to speak to anyone about his evidence while he was under cross-examination. He said that he believed that he had asked P.C. Glenn if he could access the Central Lock-Up booking sheet for Mr. Zanet. He said that no one had asked him to do that and that he had decided to do this on his own accord. He also said that he had advised P.C. Glenn that he was actually in the middle of cross-examination at the time. He agreed that given his experience of five or six years in police work, the fact that a prisoner custody record would be created for every prisoner would certainly not be something that was new to him. However, when asked if that would be a document that he would normally produce through the ordinary course of disclosure in terms of an investigation, he said that it would not have been unless it had some intrinsical part to play in the case. He said he had done many criminal briefs where that was not the case.

[51] When asked whether he had turned his mind to the caution by the Court about not discussing his evidence with anybody during cross-examination he said that he was not trying to be mischievous. He said that he just figured that maybe the Court would want to know about that booking record since questions had come up about the booking procedure with Mr. Zanet. He figured he would just try to obtain the document and provide it to the Crown and let the Crown do whatever she wished to do with it. He insisted that he had only given the name of the accused and the occurrence number of the case to P.C. Glenn and nothing else about his own evidence in court.

[52] Mr. Datt then asked him to agree that he had no notation of any discussion between him and Sergeant Wilkinson in either his handwritten or his typed will say statement, and P.C. Hexter agreed. He also agreed that he had no independent recollection of any conversation between himself and Sergeant Wilkinson. This concluded the cross-examination of P.C. Hexter by Mr. Datt.

[53] In re-examination by the Crown, referring him to the prisoner custody record, the Crown asked him if the record had any information on it about a conversation taking place between Sergeant Wilkinson and Mr. Zanet in the presence of P.C. Hexter. P.C. Hexter agreed that there was such a conversation and that he had been present for it. At this point the Crown asked the officer if, by referring to the document, his memory had been refreshed with respect to any discussion between Sergeant Wilkinson and the accused about duty counsel. Mr. Datt objected to this line of questioning as being improper re-examination. The Court received submissions from both counsel and I provided an interlocutory ruling on the issue which is a matter of record in the August 17, 2012 transcript. In summary, I ruled that it was really not proper re-examination by the Crown and I suggested that the Crown consider calling Sergeant Wilkinson if she wished to make any use of the document at all. The Crown then terminated her re-examination.

[54] The next witness called by the Crown was Constable Dave McInnis who testified in Chief that he is a qualified Intoxilyzer technician with the Halton Regional Police Service. On December 31, 2011 he was assigned to Number 1 District Response Unit to look for impaired drivers because this was New Year's Eve. His shift began at 3:00 p.m. and was to end at 3:00 a.m. He was the driver of his unmarked police cruiser and Constable Hexter was his passenger. He said that at approximately 1:18 a.m. on January 1, 2012 he was alerted by P.C. Hexter of a motor vehicle that to him had been driving in a suspicious manner near Irving Terrace and Bennett Boulevard. P.C. McInnis then turned his cruiser around and headed back towards that area and he said that he observed a motor vehicle slowly pulling away approximately 200 yards from his location in a westbound direction. It was driving quite slowly and making a left-hand turn while still on Irving Terrace. He said the vehicle stopped momentarily in the street and then continued its turn. His attention having thus been attracted, he followed the vehicle approximately 50 yards from that intersection and activated his emergency lights and executed a traffic stop.

[55] He said that P.C. Hexter exited the cruiser and approached the driver after the stop. McInnis said that he did not exit the cruiser right away. However, after notifying dispatch, he did exit the cruiser and stood by it, close to P.C. Hexter and his interaction with the accused person before the court. He said he was not close enough to overhear the conversation between the two of them because he was about 15 or 20 feet away with his door open.

[56] His first contact with the accused was when P.C. Hexter placed him in the rear seat of the McInnis cruiser. He said that it was evident to him that P.C. Hexter was making a demand for a sample of breath from Mr. Zanet into the approved screening device ("ASD") that he had removed from the cruiser. P.C. McInnis said that he himself had tested that particular ASD earlier in his shift and he had found it to be in good working order. Mr. Datt conceded that there was no issue with respect to the calibration or proper working order of the ASD.

[57] The Crown asked him to estimate the time when the accused was placed into his cruiser and P.C. McInnis said it would be before 1:34 a.m. because that was the time when they departed for 12 Division with the accused, but other than that he was only hazarding a guess. He explained that he and P.C. Hexter had to remain at the scene with the accused until another officer arrived to take care of the towing of the accused's vehicle. P.C. McInnis had requested that an officer attend for that purpose because he and Hexter were together in one cruiser.

[58] P.C. McInnis said that he himself made the call to 12 Division notifying them that he would be coming in to conduct breath tests because he actually was the breath technician responsible for that operation out of Number 1 District at that time.

[59] He said that they arrived at 12 Division at 1:42 a.m. and immediately Mr. Zanet was placed in the booking room. P.C. McInnis then removed the police cruiser from the sally port access area and parked it in the back. He then walked through another entrance close to that area and entered the breath room where he immediately initiated the Intoxilyzer 8000C required self diagnostics. He said that he began putting the unit through its tests between 1:52 and 1:57 a.m. He actually said that the self-diagnostic testing was completed at 1:57 a.m. Following that procedure, he determined that the 8000C was in good working order.

[60] He said that he was ready to begin the information input procedure that is required of a qualified Intoxilyzer technician at 2:00 a.m. and he would have been ready at that time to receive Mr. Zanet from P.C. Hexter. He said that this input procedure takes two or three minutes and he always does it after he has received custody of the subject to be tested. When asked why he waits for the subject to be in the room with him before he inputs the information, he explained that if there is any kind of delay after he had begun to input the information it could cause the instrument to time out and then the entire procedure would have to begin again.

[61] He was then asked by the Crown to provide the time at which Mr. Zanet was turned over to him by P.C. Hexter. P.C. McInnis said that before that could happen another prisoner had arrived at the station also charged with impaired driving. He said that he could hear a radio transmission coming from the sally port just outside the breath room and he realized that this prisoner was going to be brought into the breath room. He said that, as he understood it, "We were still waiting for duty counsel to call back". By the term "we", I assume that P.C. McInnis meant P.C. Hexter and he were waiting for duty counsel to call back for Mr. Zanet to exercise his right to counsel.

[62] He said that the second prisoner was received into his custody in the breath room at 2:12 a.m., and since he had already put the 8000C instrument through its self-diagnostics and it was ready to accept a breath sample, he decided to deal with that second person first. He explained that he understood that that gentleman had already made arrangements either to phone a lawyer or that there was not an issue. He began the actual breath testing procedure on this individual at 2:27 a.m. He said that he completed the breath tests with that second subject at 2:40 a.m. and received custody of Mr. Zanet at 2:43 a.m.

[63] When the Court questioned the number of minutes that seemed to be available to him to deal with the first subject on two tests, P.C. McInnis clarified that he had only completed one breath test on the first subject because, after the first test, he would switch tapes given that there is only one package of audio-visual videotape available to cover the proceedings in the breath room. Finally, he then clarified that he was really talking about discs and not tapes and that the whole purpose of this procedure was to enable two people to be audio-videotaped without ending one disc and starting another.

[64] He then testified that after he received custody of Mr. Zanet he confirmed that the breath demand had been given to him and that he had been given his right to counsel and the caution. He provided a secondary caution to Mr. Zanet, as is his custom, because he does not know everything that has happened in the booking room. He then conducted the input procedure to which he had referred earlier with the 8000C. He confirmed that the breath demand which he administered to Mr. Zanet was at 2:45 a.m. He also testified that he ensured that Mr. Zanet had spoken to a lawyer or to duty counsel. The Crown asked him to relate the conversation that he had conducted with Mr. Zanet, if he could recall any specifics of it, and Mr. Datt indicated to the Court that there was no issue with respect to voluntariness with regard to this conversation.

[65] He said that he then confirmed with Mr. Zanet that he had spoken to duty counsel and he said that Mr. Zanet had not made any complaint about his discussion with duty counsel. He pointed out that he does not necessarily make notes of everything that is said between him and one of his breath test subjects because he realizes that it is all on video in any event.

[66] The Crown finally asked him when he had taken the first breath sample from Mr. Zanet and he said that he completed the first suitable sample at 2:50 a.m. That test result was 181 milligrams of alcohol in 100 millilitres of blood. He then testified that Mr. Zanet provided a second sample at 3:13 a.m. resulting in a reading of 178 milligrams of alcohol in 100 millilitres of blood.

[67] At this point I mentioned to the officer that the Certificate of Analysis which had been filed seemed to say 3:18 as opposed to 3:13 for the second test. As a result of the Court's inquiry, there was some discussion between the officer and the Crown and the Court and he looked at the Certificate of Analysis and testified that after looking at the test records from the 8000C and also looking at the Certificate of Analysis, he believed that the 13 that he had written should really have been 18. The way he put it was a bit unusual, and I will quote: "My 3:13 should be an 18. So the three is not fully developed or I have erred in completing it". It was then agreed by Mr. Datt that the Intoxilyzer test record printout which the officer had used to assist him in arriving at this conclusion be made an exhibit and it was entered as Exhibit Number 2 on this trial.

[68] The Crown then asked him why he waited until 3:18 a.m. to conduct the second test and he said the reason was that he had to do the second test for the first subject before he commenced the second test on Mr. Zanet. He said that he completed the second test on the first subject whom he had tested, who was actually the second subject to arrive at the station. Mr. Zanet had been the first subject to have arrived at the station at 3:11 a.m.

[69] The Crown asked him if there were any steps that he had to take between 3:11 a.m. and 3:18 a.m. when he commenced taking the second sample from Mr. Zanet. The officer said that he is immobile when he is in the breath room and so he, therefore, communicates to the officers who are involved with a particular subject, and in this case he communicated with Constable Andrews who is the arresting officer on the second gentleman. That officer then took care of transporting him to and from the breath room.

[70] He said that after he completed taking the second test from Mr. Zanet his dealings with Mr. Zanet had been completed.

[71] The Crown asked him if he had conducted any conversation or communication with Mr. Zanet while he was in his custody and the officer explained that between the first and the second test he did fill out the Alcohol Influence Report which includes a question and answer segment. Once again, the Court asked Mr. Datt if there was any issue as to voluntariness with respect to this discussion between the two tests and Mr. Datt indicated that there was not. P.C. McInnis was then permitted to testify about the interview with Mr. Zanet between the two breath tests.

[72] The summary of that discussion was that Mr. Zanet admitted to having been operating a motor vehicle. He also said that he was heading home and he was not sure where he had begun driving, but it was at a friend's home and he provided two possible addresses of the street. He said that he had just left the friend's house before being arrested. He was not totally sure of the exact time. He admitted that he had been drinking wine and he estimated approximately one half a litre. He said that he had been drinking it at a residence on Irving Terrace and that he had begun drinking around 10:00 p.m. and stopped drinking at approximately midnight. He said that he had no injury or illness to complain about and he was not taking any medications.

[73] In cross-examination Mr. Datt asked the officer if it appeared to him that the accused had understood everything that he was saying to him and the officer agreed. He also agreed that he was cooperative and polite and that his speech was good. P.C. McInnis confirmed that he had thought that he was going to be dealing with Mr. Zanet's breath tests first in time and that, because he was the first to arrive at the station, he would normally be the first one to be tested. He agreed that if it had not been for the fact that P.C. Hexter had taken Mr. Zanet out of the breath room to speak to duty counsel, he would have been ready to begin the breath testing of Mr. Zanet at that point. He said that he was waiting for Mr. Zanet to be given back to him so that he could actually begin the breath tests.

[74] Ms. Pecorella had no re-examination of P.C. McInnis and that concluded his evidence.

[75] There was then discussion amongst Crown counsel, defence counsel and the Court about the procedure to be followed with the Crown providing disclosure of the anticipated evidence of the anticipated witness, Sergeant Wilkinson from the booking room. At the end of the discussion it was agreed to remand the trial to December 6, 2012 at which time the Crown would be calling Sergeant Wilkinson and, of course, disclosure would have been provided long before that date.

[76] On December 6, 2012 Ms. Pecorella was no longer the Crown Attorney in charge of this case and Mr. Presswood assumed the carriage of it. He called Sergeant Brett Wilkinson who testified in Chief that he is a member of the Halton Regional Police Service and is a staff sergeant with that service. He testified that he was on duty on January 1, 2012 and that he had some independent recollection of that day's duties. He also, of course, had made notes in his police notebook of his duties on that day. After the appropriate questions about any deletions or omissions since the time of making the notes, and Mr. Datt taking no issue with the Court allowing him to refresh his memory from those notes, I permitted the officer to testify with the notes to refresh his memory.

[77] Sergeant Wilkinson testified that just slightly past 1:30 a.m. on January 1, 2012 he was at Number 12 Division station in his role as staff sergeant and officer in charge of the station. At approximately 1:42 a.m. he attended the booking room where he was advised by P.C. Hexter that Mr. Zanet was present and booking of him was required. He said that P.C. Hexter had begun to complete the prisoner booking sheet and upon Sergeant Wilkinson's arrival, he took over those duties and completed the booking process by asking Mr. Zanet a series of questions which he then documented and also Mr. Zanet's answers on the booking sheet.

[78] He explained that whenever prisoners are brought in under arrest a prisoner custody record is created and referred to as a prisoner booking form. The purpose of it, of course, is to discover whether there are any medical issues and certain other questions that are required to be asked. The Crown asked him if it was his responsibility specifically to complete that record and Sergeant Wilkinson said the top of the form indicates that it should be completed by the arresting or transporting officer. However, he said that he makes it his practice to attend the booking room and complete the form himself because there is a series of questions on the form that, as the officer in charge of the station, he needs to be aware of and he prefers to get that information himself from the prisoner. He confirmed that he has spoken directly to Mr. Zanet on this occasion.

[79] He recalled that P.C. Hexter was in the booking room at the same time as he, Sergeant Wilkinson, was dealing with Mr. Zanet.

[80] The Crown then asked him to identify a document which he provided to the officer and he said that it looked like a faxed copy of a prisoner custody record for Mr. Zanet from January 1, 2012. He confirmed that he himself had not completed the first row of information, but he had placed his badge number on the document in another area and then he completed everything from the very first question relating to the prisoner which was, "Has the prisoner been advised of the reason for arrest?" He completed that form from that point to the end of it.

[81] Before I allowed Sergeant Wilkinson to relate to the Court the questions and answers that he had engaged in and recorded with respect to Mr. Zanet and the prisoner record form, I asked Mr. Datt if voluntariness was in issue at this point with respect to this interaction between his client and Sergeant Wilkinson. Mr. Datt, once again, conceded voluntariness and did not require a voluntariness voir dire. He actually took a moment to take an instruction from Mr. Zanet in the courtroom before he made that concession.

[82] Sergeant Wilkinson said that one of the questions he asked Mr. Zanet was if he understood his rights to counsel, and Mr. Zanet told him that he did understand. He said that as far as he recalled there were no questions from the accused about his rights to counsel and Sergeant Wilkinson was satisfied that the accused clearly understood those rights.

[83] He said that the next question that he asked him was whether he wished to speak with duty counsel. He said that Mr. Zanet told him that he would like to speak to duty counsel. The officer asked him if he had his own lawyer to whom he would like to speak and Mr. Zanet indicated that he did not. Based on those responses, Sergeant Wilkinson said that he instructed P.C. Hexter to place a call to duty counsel on Mr. Zanet's behalf, and that call was placed at approximately 1:52 a.m. He said that he actually observed P.C. Hexter making the call and noted the time of the call on the booking sheet in the space provided for that purpose.

[84] The officer explained that when the booking form is completed, if duty counsel has not called back by that time, then the prisoner, in this case Mr. Zanet, would be taken to a cell and lodged in the cell to wait for the call back from duty counsel. Sergeant Wilkinson said that that is exactly what happened with Mr. Zanet.

[85] He said that he was aware that duty counsel eventually did call back. However, after Mr. Zanet was lodged in the cell to wait for the duty counsel call, Sergeant Wilkinson said that he had to book a second prisoner who had been brought into the station. He repeated the same procedure with that particular prisoner and called duty counsel for him. While he was in the process of completing the booking process with that second prisoner, he said that duty counsel called back. He explained that because he had that particular prisoner in front of him and Mr. Zanet waiting in the cells, he decided to allow the prisoner who was currently in the booking room with him to speak with duty counsel in priority. Just for clarity, that was not Mr. Zanet. He was still waiting in the holding cell.

[86] At this point, for clarification, I asked the officer if he had made the decision to put the second prisoner who was in his presence in the booking room onto the phone to speak to duty counsel because he was immediately present there as opposed to being in the cell. Sergeant Wilkinson said, "Yeah. It didn't make sense to me at that time to put him into a cell, bring another person ... out of the cell when they both needed to speak with duty counsel".

[87] Sergeant Wilkinson said that as soon as the first duty counsel call was completed Mr. Zanet was brought out of the cell and he spoke with duty counsel. He explained that the duty counsel simply remained on the line and waited for Mr. Zanet to be brought to the phone to speak to him. He could not recall which officer had retrieved Mr. Zanet from the cell for that purpose and he could not recall if he had actually seen Mr. Zanet commence a discussion with duty counsel on the phone. He tried to refresh his memory from the booking sheet which he had in front of him in the witness stand, and he said that he had a notation on it that at 2:20 a.m. the second accused who had been brought into the station had spoken to duty counsel and then right after that Mr. Zanet spoke with the duty counsel. He explained that the second prisoner who had been brought into the station was also under arrest for the same alleged type of offence as was Mr. Zanet.

[88] Shown the booking form, he agreed that there were initials beside a time written on the form of 2:36 a.m. referring to the time of the duty counsel call. He said that the initials looked like SH, which would be Officer Shawn Hexter.

[89] Sergeant Wilkinson confirmed that from where he stood in the booking room at 12 Division he was able to see Mr. Zanet while he was on the phone with duty counsel by means of a window that allows that to be done for security purposes. However, he in no way could hear the conversation and he confirmed that Mr. Zanet appeared to be speaking to the duty counsel in a private setting. He explained that he has to be able to see when the call is completed by noticing that the accused person has hung up on the phone call. He said that his next and last involvement with Mr. Zanet was to release him from the station on a promise to appear at 4:34 a.m.

[90] Mr. Presswood asked him about the observation log document that had been faxed over to the court on the first day of this trial, and he said that that document was prepared by the station duty clerk, and that he had no role in preparing that document.

[91] In cross-examination Mr. Datt asked Sergeant Wilkinson if he could explain the fact that there was an original time listed on the prisoner custody record form of 02:17 that was scratched out and changed to 02:36. Sergeant Wilkinson said he really could not explain the reason for that, but he could identify the initials S.H. beside the alteration as being the initials of P.C. Shawn Hexter. Sergeant Wilkinson did say that when he checked his own notebook he noticed that the duty counsel call for Mr. Zanet was 2:17 a.m. and that seemed to coincide with the 2:17 a.m. notation on the form.

[92] Next, Mr. Datt pointed out to Sergeant Wilkinson that there seemed to be a mistake in the name of the duty counsel initially on the form with one fellow's name, Joel Welch, scratched out and the name Mike Roberts replacing it. He suggested to the officer that, again with the initials S.H. beside that alteration, it would make common sense that Officer Hexter had made another mistake and changed it. Sergeant Wilkinson could only agree. However, he said he did not see Hexter make these changes, nor did Hexter ever mention them to him, and he said that that would not have been an issue for him.

[93] Mr. Zanet then asked the officer if the arresting officer, when parading his prisoner in front of him, provides him with any other information other than the basic notations on the top of the form, Sergeant Wilkinson said that the arresting officer would not provide any additional information other than why the person was arrested and whether the person has been provided their rights to counsel and the reason for bringing him to that station.

[94] He agreed with Mr. Datt that Officer Hexter had at least advised him that Mr. Zanet had been given his right to counsel. Mr. Datt asked him if P.C. Hexter had also told him that Mr. Zanet had waived his right to counsel. Sergeant Wilkinson said that he did not know if that was the case and he certainly did not make any notation to that effect. However, he said that he decided to ask Mr. Zanet himself about the exercising of his right to counsel.

[95] He agreed that he had not dealt with P.C. McInnis as the breathalyzer technician with respect to Mr. Zanet.

[96] Mr. Datt attempted to have Sergeant Wilkinson agree that it would be important for him to know from the arresting officer whether or not an accused person had waived his right to counsel. However, Sergeant Wilkinson disagreed with that suggestion and said that he concern was when they are booked into him, he then goes through the booking sheet and determines whether or not they need to speak to duty counsel. He said, "I make sure they get to speak with duty counsel".

[97] Mr. Datt suggested hypothetically that if an accused person had been arrested and detained at the roadside and provided his rights to counsel which he clearly and unequivocally waived to the arresting officer, Sergeant Wilkinson would want to know this information from the arresting officer before asking any further questions. However, Sergeant Wilkinson disagreed and said that that does not concern him.

[98] Mr. Datt then directed the officer's mind to the second prisoner scenario. He suggested to Sergeant Wilkinson that the first person who comes into the station under arrest into the booking room would have priority to speak to duty counsel and Sergeant Wilkinson agreed by saying that that would be the normal process. He said that they call duty counsel, then they lodge the prisoner in a cell, and when duty counsel returns the call, the individual is brought out of the cell to speak with duty counsel.

[99] Mr. Datt then suggested that Sergeant Wilkinson's answer was to the effect that there was no formal or informal policy with the Halton Regional Police to prioritize an accused to speak to duty counsel based on a first-come, first-serve basis. Sergeant Wilkinson agreed and said that this particular decision on this night in question was strictly his own decision and that he had made it using common sense. He agreed that he did not recall consulting about his decision with P.C. Hexter as the officer in charge or with P.C. McInnis as the breathalyzer technician about, as Mr. Datt put it, "timings, about any potential delay before you made this decision, correct?". Sergeant Wilkinson agreed.

[100] Mr. Datt then suggested to Sergeant Wilkinson, when he made the decision to allow the second detainee to speak to duty counsel first, that he had no idea how long Mr. Zanet had been under arrest or how long he had been waiting in the station for his breath tests. Mr. Datt suggested that Sergeant Wilkinson had made his decision as a matter of convenience because he found himself in the presence of a second detainee in the booking room when the duty counsel called back. Sergeant Wilkinson's response was that he did know how long Mr. Zanet had been in the station and how long he had been lodged in the cells. He said that he had been lodged at 2:00 a.m. and duty counsel called back somewhere in the neighbourhood of 2:20 a.m. He said that because he realizes that the conversations with duty counsel do not usually last for an extended period of time, he did not see the relevance of placing one detainee into the cells "and moving prisoners around to accommodate who came in first and who came in second".

[101] Upon the conclusion of this cross-examination by Mr. Datt, Mr. Presswood did not have any questions in re-examination. However, he asked the Court to make the prisoner custody record Exhibit Number 3 on the trial. Mr. Datt objected and, after some discussion between the Court and both counsel, I ruled that it should not be entered as an exhibit.

[102] I asked some questions of Sergeant Wilkinson for clarification. I asked him if he had been present to see where Mr. Zanet had spoken to duty counsel, in other words, in what part of the police station. Sergeant Wilkinson responded that he did not believe that he was present to see that, but that there is only one room which is reserved for a prisoner to speak to duty counsel in privacy. He agreed with my assumption that he put the first fellow in to speak to duty counsel, and presumably once he had completed his call he would have been removed from the room and Mr. Zanet would have been placed in the room to talk to duty counsel who was still on the line. Sergeant Wilkinson said that that is exactly the procedure that would have been followed inasmuch as they have only the one room for that purpose in the station. Neither Crown counsel nor Mr. Datt had any questions arising out of the Court's questions for Sergeant Wilkinson.

[103] Mr. Presswood then closed the case for the Crown at this point. Mr. Datt elected not to call evidence on behalf of Mr. Zanet.

[104] Discussion then occurred amongst both counsel and the Court about a date on which final submissions would be received. During the discussion, Mr. Datt informed the Court that he would likely be making an argument that P.C. Hexter did not have the necessary reasonable suspicion to make his s. 254(2) ASD demand upon Mr. Zanet. Both the Crown and the Court expressed the point of view that this type of argument really amounts to a s. 8 Charter argument and, therefore, ought to be initiated by an application pursuant to the Rules of Court. Mr. Datt expressed some circumspection about the accuracy of that opinion of the Court, but was most cooperative and agreed to prepare an application to be presented on the date that was selected for the submissions to be presented. In fact, he did so and ultimately the matter was adjourned to April 29, 2013 for that purpose.

[105] Between December 6, 2012 and April 29, 2013 Mr. Presswood was transferred to the Durham Region and was conscientious enough to provide written submissions for the benefit of both Mr. Datt and the Court. On April 29, 2013 Ms. Emily Roda, [nee Pecorella] assumed carriage of this case and on that date Mr. Zanet made his oral submissions in response to Mr. Presswood's written submissions. At the conclusion of his oral submissions, Ms. Roda made some supplementary oral submissions to the written submissions of Mr. Presswood and Mr. Datt made some oral submissions in reply. Ms. Roda also prepared the Crown's response to Ms. Zanet's s. 8, 24(2) Charter application.

Position of the Parties

The Defence s. 8 Charter Application

[106] Mr. Datt argued that the essence of the s. 8 application was that the evidence of P.C. Hexter reveals that he did not make any notes of the actual formation of his suspicion that Mr. Zanet had alcohol in his body while operating his motor vehicle which is the required belief imposed upon him by Parliament in s. 254(2) of the Code. Therefore, Mr. Datt raised the question for the Court to consider of whether or not the Court could be satisfied that P.C. Hexter actually gave consideration to that standard before he read the ASD demand to Mr. Zanet and required that he comply by providing a sample of breath into the ASD.

[107] Mr. Datt referred the Court to the evidence of P.C. Hexter in cross-examination wherein he had admitted that he would maybe do things differently in the future. Therefore, Mr. Datt argued that the Court should be satisfied that there was no proper ASD demand which would amount to a breach of Mr. Zanet's s. 8 Charter rights. He further argued that after the Court finds such a breach, there should be no difficulty for the Court, after engaging in the appropriate analysis pursuant to the principles of R. v. Grant, 2009 SCC 32, in excluding the results of the breath tests supplied by Mr. Zanet to the ASD. Mr. Datt then argued that in the absence of that evidence, P.C. Hexter would have had no grounds whatsoever to demand that Mr. Zanet supply samples of his breath into the Intoxilyzer 8000C at the station pursuant to s. 254(3) of the Criminal Code and, therefore, those breath results should also be excluded.

[108] Mr. Datt's reference to the evidence of P.C. Hexter admitting that he would perhaps do things differently in the future was to page 77 of the August 17, 2012 transcript:

Q. So after today, would you make it your practice now to record words of reasonable suspicion or words to that effect on future investigations?

A. That's possible. I haven't thought about it.

Q. Yeah, but it, it would make sense to record that?

A. It would make sense. I guess there is probably a lot that I could do different, maybe.

Position of the Crown on the s. 8 Application

[109] Ms. Roda submitted that P.C. Hexter had the following evidentiary factors available to him to allow him to form the required reasonable suspicion that the accused had alcohol in his body while operating his motor vehicle:

• A strong odour of alcohol on his breath;
• Mr. Zanet's admission that he had consumed two glasses of wine approximately 30 minutes before being stopped by P.C. Hexter;
• P.C. Hexter's observation of Mr. Zanet's eyes being red and glossy and that his speech was slow and that he appeared to be thinking longer than would ordinarily be necessary before answering simple questions;
• The fact that Mr. Zanet's motor vehicle was initially stopped in the middle of the road with the passenger door open and then proceeded further, driving significantly under the posted speed limit;

[110] Ms. Roda also submits that, in fact, the odour of alcohol by itself is sufficient for an officer to form grounds that an accused driver, having been stopped by the officer, has alcohol in his body in order to provide the requisite grounds for an ASD demand. In support of that submission, she refers the Court to the Ontario Court of Appeal decision of R. v. Carson, 2009 ONCA 157.

[111] The Crown submits that in cross-examination by Mr. Datt P.C. Hexter acknowledged that his notes do not specifically state in so many words that he formed a reasonable suspicion to make the s. 254(2) breath demand. However, Ms. Roda submits that P.C. Hexter did testify that while he did not use those specific words, he had noted the "underlying factors" that caused him to form his suspicion, which included the odour of alcohol on the accused's breath and the admission that he had recently consumed alcohol. The Crown submits that the essence of P.C. Hexter's testimony should be accepted by the Court as being that these notations were just simply his way of informing his own mind that he had formed a reasonable suspicion that the accused had alcohol in his body while operating his motor vehicle.

[112] Ms. Roda submits that there is no common law requirement that an arresting officer note the specific words "reasonable suspicion" in his notebook in order to establish that he had genuinely formed such a suspicion. Once again, she submits that given the notes that were made by P.C. Hexter which underpinned the officer's suspicion, in the Crown's submission, the Court should have no difficulty in finding that the accused has not established on the required balance of probabilities that his s. 8 Charter right was breached by P.C. Hexter by the manner in which he required that the accused comply with the ASD demand.

[113] As a corollary submission, Ms. Roda referred to the submission of Mr. Datt that because the officer was unable to recollect some details when giving his evidence and also the fact that he had to admit to having made some errors, and some factual matters that had to be corrected, the Court should have some considerable circumspection about the reliability of P.C. Hexter's evidence about any of his conclusions, including his evidence that he had formed the reasonable suspicion required before the ASD demand. The Crown simply submits that these examples provided by Mr. Datt are minor details that should not affect the reliability of the officer's evidence, at least on a balance of probabilities as required under a s. 8 Charter application.

[114] Finally, of course, the Crown submits that if the Court happens to agree with Mr. Datt that the accused's s. 8 Charter rights were breached by the evidence P.C. Hexter has given surrounding his imposition of the s. 254(2) ASD demand on Mr. Zanet, then after the appropriate analysis in R. v. Grant, supra, the Court should find that the evidence of the breath tests should not be excluded because the admission of it would not bring the administration of justice into disrepute because the actions of P.C. Hexter, if indeed he did breach Mr. Zanet's right, were not wilful or flagrant and it was not a serious breach.

Excerpts from Mr. Presswood's Original Written Submissions on What He Anticipated as a s. 8 Charter Application by the Defence

[115] In addition to the submissions of Ms. Roda on the s. 8 application, which I have summarized above, Mr. Presswood initially made the following comments. He referred the Court to page 12 of the August 17, 2012 transcript wherein P.C. Hexter had testified that he had smelled a strong odour of alcohol coming from Mr. Zanet's breath, and although at page 43 in cross-examination he agreed that his notes did not say "strong smell", he was stating it was a strong odour because he could smell it even while standing outside on a cool winter night. Mr. Presswood's point is that whether the odour was strong or not, and whether or not the officer noted the word "strong" in his notes or not, if the Court accepts that he had detected at least an odour of alcohol from Mr. Zanet's breath, then that would be all that is required in accordance with R. v. Carson, supra.

[116] Mr. Presswood referred the Court to page 13 of the August 17 transcript where P.C. Hexter testified in Chief that "At this time, I, I had suspicion that he had alcohol, the accused had alcohol within his body".

[117] Mr. Presswood also referred the Court to page 48 of the August 17 transcript in cross-examination and also at page 51 where P.C. Hexter testified at length in cross-examination about the fact that he did not happen to write into his notebook "I formed a reasonable suspicion". Mr. Presswood submits that the officer's response was totally reasonable when he said that he did not write those specific words because when he wrote down the indicia that he had noticed, then, in his mind, those indicia would remind him that he had formed his reasonable suspicion as required under s. 254(2) before he imposed the ASD demand.

[118] Mr. Presswood refers the Court to additional passages from page 77 of the August 17 transcript wherein P.C. Hexter disagreed with Mr. Datt in cross-examination when Mr. Datt suggested that he had not turned his mind to the reasonable suspicion requirement by saying that if he had not done so he would not have requested the ASD sample in the first place.

[119] Mr. Presswood also made the same submission that was made by Ms. Roda in April of 2013 that there is no requirement for an officer to write down in his notebook those specific words of forming a suspicion because the notes are to refresh memory and that P.C. Hexter's notes are clear that he had observed the necessary indicia on the part of Mr. Zanet to allow him to form the required reasonable suspicion pursuant to s. 254(2).

Mr. Presswood's Written Crown Submissions on the Issue of "As Soon As Practicable"

[120] First of all, Mr. Presswood submits that the Crown need not account for each and every minute that the accused is in custody with respect to the issue of as soon as practicable on the timing of the breath tests in order for the Crown to retain the advantage of the presumption under s. 258(1)(c). He refers the Court to the decision of R. v. Vanderbruggen (2006), CCC (3d) 489.

[121] Mr. Presswood submits that the appropriate test for the Court is whether or not the breath tests were taken "reasonably promptly in the circumstances". He argues that the Court should find that to have been the case.

[122] Initially he refers to the approximately 10 minutes of delay at the roadside while P.C. Hexter and McInnis were waiting for the third officer to arrive to take care of the towing of the accused's vehicle. Mr. Presswood submits that it was perfectly reasonable for the officers when they were arriving together in the same cruiser to wait for the third officer to arrive because, otherwise, one of them would have to be left without a cruiser standing in the middle of the road waiting for the tow truck. This would obviously be not compatible with officer safety procedures, submits the Crown. He also referred to the evidence of P.C. Hexter that officer safety protocol in the Halton Regional Police Service mandates that two officers accompany an accused person to the station.

[123] If that reasoning is not enough, the Crown argues that it was perfectly reasonable under the circumstances that P.C. McInnis was the only Intoxilyzer technician on duty at that time who could perform the tests upon Mr. Zanet at the station. Therefore, he obviously had to proceed to the station. Both officers were aware from their testimony, argues Mr. Presswood, that the third officer would arrive very shortly because they were situated in the central part of the Town of Milton.

The One-Hour Delay from the Arrival at the Police Station to the Time When Mr. Zanet was Turned Over to P.C. McInnis in the Breath Room – 1:42 a.m. to 2:43 a.m.

[124] Mr. Presswood agrees that the Crown has the onus of proving that the breath tests were taken as soon as practicable and also within the two-hour period stipulated by s. 258(1)(c) in order for the Crown to receive the benefit of the presumption.

[125] He argues that Sergeant Wilkinson's evidence, in the totality of the circumstances that were available to him at the time, should be considered by the Court to establish that he acted reasonably under the circumstances. In particular, the Crown submits that Sergeant Wilkinson's decision to allow the second detainee to talk to duty counsel before Mr. Zanet was perfectly reasonable given Sergeant Wilkinson's explanation about the fact that it was less troublesome and confusing to remove Mr. Zanet from a cell and bring him up to the booking room area for the duty counsel call when it came in when the second accused was standing right there and ready and available to be able to talk to duty counsel. He also took into account the fact that the duty counsel calls usually do not take a long time and he, therefore, made that decision. The Crown argues that this decision should be considered by the Court to have been reasonable under the circumstances.

[126] The Crown concedes that from the totality of the evidence on this trial the Court might conclude that there was some confusion at the time of the duty counsel call after the second detainee had completed his call because Mr. Zanet did not speak to that same duty counsel, who remained on the phone for about 18 minutes, after the other detainee had completed his call. However, the Crown submits that Sergeant Wilkinson was trying to balance the rights and time constraints with respect to the two accused persons who were being dealt with by him in his station at the same time. The Crown argues that Sergeant Wilkinson turned his mind to the timing issue and determined that, in his experience, it would not delay Mr. Zanet's opportunity to speak to duty counsel by a significant period of time by allowing the second detainee to speak to duty counsel when he was standing right there when the call arrived.

[127] Therefore, in conclusion, the Crown submits that the evidence of Sergeant Wilkinson should establish beyond a reasonable doubt that the breath tests of Mr. Zanet were taken, when considered in the totality of the circumstances as soon as practicable.

The April 29, 2013 Defence Submissions

[128] Mr. Datt dealt with the evidence of P.C. Hexter in some considerable detail. He seriously challenges the reliability of the officer's evidence for a number of reasons. He reminds the Court that P.C. Hexter could not recall the exact date on which he had prepared his will say statement. He also admitted that he had initially recorded the birth date of the accused as the birth date of his wife. The officer did not recall if he had asked the accused to step out of his car or whether the accused did so on his own accord.

[129] Mr. Datt also argued that P.C. Hexter conceded in cross-examination that he sometimes recalls things better over a period of time and he conceded that he had made no notes about the weather at the time.

[130] With respect to P.C. Hexter's evidence that the accused was driving as slowly as five kilometres per hour before he was pulled over, Mr. Datt reminds the Court that the officer had not made such a note in his notebook after the investigation and he submits that P.C. Hexter was probably guessing at such details when he testified.

[131] Mr. Datt also refers the Court to the evidence of P.C. Hexter wherein he admitted that he had only noted in his notebook an odour of alcohol on the breath of Mr. Zanet as opposed to the strong odour of alcohol that he testified in court he had noticed.

[132] For all of these reasons in general, Mr. Datt submits that the Court should be circumspect about the reliability of P.C. Hexter's evidence.

The Section 8 Charter Application

[133] Mr. Datt submitted that the failure of P.C. Hexter to have noted in his book that he had formed the reasonable suspicion that Mr. Zanet had alcohol in his body while operating his motor vehicle, specifically in those terms or at least specifically to that effect, should raise some serious circumspection in the mind of the Court about whether or not the officer had actually considered the appropriate standard which is imposed upon him by s. 254(2) of the Criminal Code before he demanded that Mr. Zanet provide a sample of his breath into the ASD.

[134] Specifically, Mr. Datt refers the Court to page 77 of the August 17, 2013 transcript evidence of P.C. Hexter and he argues that the officer admitted at that time in cross-examination that he would "maybe do things differently in the future". This cross-examination was with respect to the type of notation that the officer had made in his book about his reasonable suspicion or lack of same.

[135] In conclusion, Mr. Datt submits that the totality of the evidence should leave the Court in a position where it should find that P.C. Hexter did not form the proper reasonable suspicion required by s. 254(2) before he demanded a sample of breath from Mr. Zanet into the ASD and that, therefore, Mr. Zanet's s. 8 Charter right was breached by that demand.

[136] Mr. Datt then argues that the Court should find, on the required balance of probabilities, that the evidence thus obtained by the breath test on the ASD which led to the two formal breath test samples on the 8000C at the station later ought to be excluded from the body of trial evidence pursuant to s. 24(2) of the Charter after the appropriate analysis according to the principles enunciated in R. v. Grant, supra.

[137] Mr. Datt emphasizes that obviously without the fail on the ASD by Mr. Zanet, P.C. Hexter had no reasonable and probable grounds to arrest him and, therefore, the breach is serious and arbitrary.

The "As Soon As Practicable" Issue

[138] Mr. Datt refers the Court to the evidence of P.C. Hexter wherein he admitted that the accused had initially clearly declined to exercise his right to counsel at the scene where he was stopped by P.C. Hexter after his rights to counsel had been provided.

[139] Additionally, Mr. Datt refers the Court to evidence from P.C. Hexter that he was not sure whether the accused had ever changed his mind about exercising his right to counsel even though he ended up calling duty counsel on his behalf at the station. P.C. Hexter testified that he did not recall being asked to call duty counsel by Sergeant Wilkinson notwithstanding Sergeant Wilkinson's evidence that he had instructed him to do so.

[140] Thus, argues Mr. Datt, there is no nexus between Sergeant Wilkinson's evidence of the accused exercising his right to counsel after Sergeant Wilkinson had provided his rights to him and requesting to speak to duty counsel and the action of P.C. Hexter of calling duty counsel.

[141] Mr. Datt argues that the evidence of P.C. McInnis clearly illustrates that he was ready to receive Mr. Zanet as early as 2:00 a.m. in order to begin the procedure of taking the breath tests. P.C. McInnis' evidence was that he thought that Mr. Zanet would have been the first test for him to conduct and not the other detainee who was tested before Mr. Zanet.

[142] Mr. Datt argued that P.C. McInnis should have taken the first breath test from Mr. Zanet and then waited the 17 minutes required between the first and the second test to see if duty counsel called back. Mr. Datt submits that such an action by P.C. McInnis would have better stood the scrutiny of his "as soon as practicable" argument.

[143] In conclusion, Mr. Datt simply argues that there is no evidence before this Court that Mr. Zanet ever changed his mind to P.C. Hexter with respect to his initial waiver of his right to counsel which he had expressed to P.C. Hexter at the scene. Therefore, argues Mr. Datt, P.C. Hexter's action in calling duty counsel on Mr. Zanet's behalf when he has also testified that he did not recall being instructed to do so by Sergeant Wilkinson, was an unnecessary action that resulted in considerable delay before the breath tests of Mr. Zanet were taken and, therefore, those breath tests were not taken as soon as practicable.

[144] Since the onus is on the Crown to establish beyond a reasonable doubt that they were taken as soon as practicable, Mr. Datt argues that this evidence should allow the Court to have at least a reasonable doubt on that issue and, therefore, the Crown would not be able to benefit from the s. 258(1)(c) presumption that the results of the breath tests would be the BAC of Mr. Zanet at the time when he was stopped by P.C. Hexter in his vehicle.

Oral Submissions by the Crown, Ms. Roda, on April 29, 2013 in Response to Defence Oral Submissions

[145] Ms. Roda simply disagreed with Mr. Datt's argument that P.C. McInnis should have taken the first breath test from Mr. Zanet and then, during the 17-minute interval between the first test and the second test, waited to see if duty counsel happened to call back and presumably, if duty counsel did call back during that period, allow Mr. Zanet to speak to the duty counsel. The Crown argues that if P.C. McInnis had taken the first breath test before allowing the accused to speak to duty counsel, assuming that Mr. Zanet had made that request as Sergeant Wilkinson has testified, then Mr. Zanet's s. 10(b) Charter rights would have been thereby breached.

[146] Ms. Roda also submits that Mr. Datt's submissions about the evidence of P.C. Hexter, considered in its totality, allowing the Court to conclude that his evidence should be considered to be unreliable on almost all of the points of his evidence, is simply untenable, because Ms. Roda submits that the errors which were made by P.C. Hexter and/or the omissions of certain words from his notebook are all relatively insignificant in the big picture.

[147] With respect to the s. 8 Charter application evidence, Ms. Roda submits that a careful reading of P.C. Hexter's evidence in the August 17, 2013 transcript clearly indicates that he felt that he had made whatever necessary notations he needed to make to remind him that he had formed the reasonable suspicion that the accused had alcohol in his body while operating his motor vehicle at the time when he imposed the ASD demand upon him. She argues, as did Mr. Presswood, that the omission by the officer of the specific words set out in s. 254(2) does not and should not cause the Court to conclude that the officer, as Mr. Datt has argued, did not turn his mind to that onus upon him before making the ASD demand to Mr. Zanet.

[148] Ms. Roda also argued that even if the Court happened to find on the required balance of probabilities that P.C. Hexter had breached Mr. Zanet's s. 8 right by the totality of his evidence, the Court should also find that the breach could be considered as minor and, after the appropriate Grant analysis, would not result in the exclusion of the breath tests that were received from Mr. Zanet.

The "As Soon As Practicable" Issue – April 29, 2013 Crown Submissions

[149] Ms. Roda argued that the requirement placed upon the Crown by Parliament of proving beyond a reasonable doubt that the breath tests were taken as soon as practicable under the legislative scheme of s. 258(1)(c) does not include the requirement that the Crown has to prove beyond a reasonable doubt that P.C. Hexter knew that the accused had informed Sergeant Wilkinson that he wished to exercise his right to speak to duty counsel. The Crown argues that this evidence should be examined from an objective standpoint and that the Court should conclude that, if the Court accepts the evidence of Sergeant Wilkinson, and there has been no defence evidence to the contrary, Mr. Zanet made that request of Sergeant Wilkinson. If so, argues the Crown, then the call to duty counsel by P.C. Hexter cannot be considered to have been in violation of the standard of as soon as practicable with respect to the breath tests.

[150] Mr. Datt made some brief submissions in reply and specifically he argued that the Crown should be required to prove that P.C. Hexter had turned his mind to a consideration of the required standard of reasonable suspicion mandated by s. 254(2) with respect to the ASD demand. This submission, in my view, was simply a corollary to Mr. Datt's earlier submissions to the effect that the Court should be circumspect about accepting the evidence of P.C. Hexter that he had turned his mind to that standard simply by the type of wording that he had included in his notebook in the absence of evidence that he had turned his mind to the very specific wording of s. 254(2).

Analysis

The Section 8 Charter Application

The Issue of the Sufficiency of P.C. Hexter's Evidence With Respect to the Onus Placed Upon Him by Section 254(2) of the Criminal Code

[151] I have informed my decision by a reference to a decision of Mr. Justice Hill in the Ontario Superior Court of Justice presiding as a summary conviction appeal court in the case of R. v. Mutisi, [2011] O.J. No. 4546. In this decision, Mr. Justice Hill engaged in a detailed analysis of the approved screening device regime. He stated in the following paragraphs:

15 The ASD regime, authorizing administration on a reasonable suspicion of any alcohol in the body at the time of a traffic stop, is not an onerous standard. This approach is deliberate. The employ of the device in circumstances of minimal detention and intrusion upon privacy is designed to determine whether potential risk to public safety has some scientific confirmation justifying more intrusive interdiction measures. In R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.J.), at paragraph 49, the court observed:

The detection of drivers who are impaired at the moderate level of impairment though observations by peace officers is ineffective: Regina v. Seo (1986), 25 C.C.C. (3d) 385 (Ont. C.A.) at 398-9 per Finlayson J.A. (quoted with approval in Thomsen v. The Queen (1988), 40 C.C.C. (3d) 411 (S.C.C.) at 421 2 per Le Dain J.). As well, it can be difficult to detect impaired driving by observing the driving itself: Hufsky v. The Queen (1988), 40 C.C.C. (3d) 398 (S.C.C.) at 408 per Le Dain J. In [Regina v. Andrews (1996) 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.) (leave to appeal refused, [1996] 2 S.C.R. R. ix)] at 401-3, the court noted the observations in Regina v. McKenzie (1955), 111 C.C.C. 317 (Alta. Dist. Ct.) at 318-319 that there may be dangerous impairment even though there are no objective symptoms of intoxication. As noted in Regina v. Latour (1997), 116 C.C.C. (3d) 279 (Ont. C.A.) at 282-3 by Charron J.A., [as she then was], symptoms of impairment can vary according to the individual's tolerance to alcohol.

16 Section 254(2) of the Code provides:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

18 An invalid demand exists where reasonable suspicion cannot, subjectively and objectively, be reasonably supported on the facts of the case.

19 As stated in Censoni, at para. 34, "[t]he subjective component amounts to an actual or honest belief". On behalf of the appellant, counsel acknowledged both at trial and on appeal that Constable Ambrosio, subjectively, held a reasonable suspicion that the appellant had alcohol in his body when he made the s. 254(2) demand.

20 The focus of the trial became whether the trial judge could reasonably be satisfied, on the totality of the evidence, that the officer's demand was made in objectively supportable circumstances of reasonable suspicion of alcohol in the appellant's blood. She came to such a conclusion. It was both reasonable and correct for her to have done so.

30 Accordingly, while it is unnecessary for the purposes of disposition of the appeal to decide whether a trial court, in reviewing the objective existence of reasonable suspicion, can consider additional factors not mentioned by an officer in describing his/her formation of grounds, I would note the following. The objective existence of reasonable grounds to believe or to suspect as the case may be is assessed on the basis of the totality of the circumstances. As stated in R. v. Storrey, [1990] 1 S.C.R. 241, at paras. 16-8, scrutiny of the existence of the objective justification for grounds of belief requires the court to ask whether "a reasonable person, standing in the shoes of the police officer", would be able to conclude that there were ... reasonable ... grounds" (see also R. v. Latimer, [1997] 1 S.C.R. 217, at paras. 26-7).

[152] Specifically, I agree with the argument of the Crown that the wording that was used by P.C. Hexter in his notebook to remind himself, as he testified, that he had formed the reasonable suspicion that Mr. Zanet had alcohol in his body while operating his motor vehicle, was sufficient for the purposes of s. 254(2) on both a subjective and an objective analysis basis.

[153] I also agree with the Crown that the errors which were exposed by Mr. Datt in the cross-examination of P.C. Hexter, as itemized in my summary of the defence submissions and as revealed in the evidence of P.C. Hexter, do not significantly impact upon my assessment of whether or not he had formed the proper reasonable suspicion required by s. 254(2) before imposing the ASD demand upon Mr. Zanet. Indeed, with respect to that particular issue, Mr. Datt is actually relying upon the evidence given by P.C. Hexter with respect to the type of notation in his notebook about the issue.

[154] I find that the totality of the evidence in this case, and on this issue, and in particular the evidence of P.C. Hexter, does not allow this Court to conclude that Mr. Zanet's s. 8 Charter right was breached by P.C. Hexter's ASD demand. Therefore, I dismiss the s. 8 Charter application and there is no need to engage in a s. 24(2) analysis.

The "As Soon As Practicable" Issue

[155] The Ontario Court of Appeal had occasion to consider the meaning of "as soon as practicable" and the consequent evidentiary burden upon the Crown in R. v. Seed, [1998] O.J. No. 4362. Mr. Seed had been acquitted in the Ontario Provincial Court on the basis that his breath tests had not been taken as soon as practicable. The decision was upheld by the General Division appeal judge who agreed with the Provincial Court judge that an unexplained delay of 14 minutes was fatal simpliciter to the Crown's evidentiary burden under s. 258(1)(c)(ii). The Ontario Court of Appeal felt that the issue was of such singular importance that they decided to comment upon the merits of the proposed appeal to them even though they denied leave to appeal to the Crown because of a failure to perfect the appeal.

[156] At paragraph 7 the Court stated:

It would have been our view had we granted leave to appeal that both the trial judge and the appeal judge misconstrued the meaning of "as soon as practicable" and in imposing an evidentiary burden on the prosecution to account for every minute between the time of arrest and the administration of the first test, rather than focusing on whether the police had acted reasonably, and expeditiously, in all the circumstances. Their decisions were contrary to an established line of authority. In addition to the Phillips case and the Payne case, see, for example, R. v. McCarthy (1981), 64 C.C.C. (2d) 280 (Newf. C.A.); R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.); R. v. Carter (1980), 55 C.C.C. (2d) 405 (B.C.C.A.); R. v. Rasmussen (1981), 64 C.C.C. (2d) 304 (B.C.C.A.).

[157] In R. v. Phillips (1998), 42 C.C.C. (3d) 150 and R. v. Payne (1990), 56 C.C.C. (3d) 548, the Ontario Court of Appeal had also considered the issue. These cases were referred to by the Ontario Court of Appeal in Seed, supra, wherein the Court held that these two cases had established "that the test of practicability is reasonableness and that the Court must be satisfied that the conduct of the police in the interval between the arrest and the taking of the breath sample was reasonable having regard to all the circumstances" [Emphasis added]. Also see R. v. Cambrin, (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) also referred to in R. v. Seed, supra.

[158] With respect to the approximately 18 minutes of delay between the second detainee's completion of his duty counsel call and the opportunity afforded to Mr. Zanet to speak to duty counsel, I note with interest the decision of R. v. Schouten, [2002] O.J. No. 4777, a summary conviction appeal decision by Mr. Justice Durno in the Ontario Superior Court of Justice at paragraph 12 where he was dealing with a totally unexplained delay of 18 minutes:

...Given there was an 18 minute period when it is uncertain what the arresting officer and the appellant were doing, I agree the conclusion is unreasonable and not supported by the evidence.

[159] In this paragraph, Mr. Justice Durno was referring to the trial judge's finding that despite the fact that he found 18 minutes to be unexplained, nevertheless he was satisfied that the Crown had shown that the police had acted reasonably in all of the circumstances.

[160] In Mr. Zanet's case, I find, and I agree with the Crown, that Sergeant Wilkinson acted reasonably in all of the circumstances that he had available to him at the time when he allowed the second detainee to speak to duty counsel before Mr. Zanet because that detainee was physically present in the booking room adjacent to the duty counsel call room at the precise time when duty counsel returned the call.

[161] I find his evidence that he believed that the duty counsel call would only take a very few minutes, from his experience with similar calls, to be reasonable under the circumstances and any subsequent delay that was created by what was apparently some confusion on the part of the officers as to when to move Mr. Zanet from his cell back up to the duty counsel room to take his call to be simply an inadvertent result of the reasonable actions taken by Sergeant Wilkinson when Mr. Zanet expressed the desire to him to speak to duty counsel and the events unfolded as he has testified.

[162] Specifically, I see no reason not to accept the evidence of Sergeant Wilkinson in its totality. There has been no defence evidence to challenge his evidence and I find that his evidence is internally and objectively logical, reliable and credible.

[163] I also agree with the Crown that the fact that P.C. Hexter apparently did not recall the instruction given to him by Sergeant Wilkinson to call duty counsel for Mr. Zanet, believing that he may have done so on his own, is of no consequence to the issue of whether or not the placement of that call and the subsequent participation in that call by Mr. Zanet was contrary to the onus upon the Crown to establish that the breath tests from Mr. Zanet were obtained as soon as practicable. The fact remains that I have accepted the evidence of Sergeant Wilkinson that Mr. Zanet decided to exercise his right to counsel to him, and at the risk of repeating myself, I have also found that the actions of the police that were taken consequent to that exercising of his right were reasonably undertaken under all of the circumstances.

Conclusion

[164] For all of these reasons, I find that the Crown has satisfied me beyond a reasonable doubt that the breath tests of Mr. Zanet were taken as soon as practicable and they will be included as evidence in this trial. Given that I have already dismissed the s. 8 Charter application and I have found that the breath tests were taken as soon as practicable, I find that the Crown has satisfied this Court beyond a reasonable doubt that the charge pursuant to s. 253 (b) of the Criminal Code has been proven against Mr. Zanet and I, therefore, find him guilty as charged and a conviction is registered.

[165] This concludes my written reasons for my oral finding of guilt without reasons on August 1, 2013.

[166] I thank all three counsel for their well prepared and interesting submissions.

Released: August 20, 2013

Signed: "Justice F.L. FORSYTH"