Court File and Parties

Court File No.: City of Burlington 17-2714 Date: 2019-07-10 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jacob James Chapman

Before: Justice Stephen D. Brown

Heard on: July 31, 2018 and March 13 and 29, 2019

Reasons for Judgment released on: July 10, 2019

Counsel:

• Erin O'Marra and Maureen McGuigan for the Crown
• Adam Little for the accused Jacob James Chapman

Brown J.:

1.0 INTRODUCTION

[1] Jacob Chapman is charged that on or about August 24, 2017 he operated a motor vehicle with an excess blood alcohol content contrary to s. 253(1)(b) of the Criminal Code.

[2] The Crown proceeded by way of summary conviction and a trial was held before me on the above dates.

[3] The defence argued that the accused's ss. 7, 8 and 9 rights under the Canadian Charter of Rights and Freedoms were violated and seeks an exclusion of the Intoxilyzer results pursuant to s. 24(2) of the Charter. The defendant further argues that the evidence of the booking sergeant should be excluded from the trial.

[4] A blended voir dire was held.

2.0 ISSUES BEFORE THE COURT

[5] There are two issues before the Court: Were the defendant's rights violated under s. 8 and s. 9 and, if so, should the breath test results be excluded under s. 24(2).

[6] Mr. Little also argued on behalf of Mr. Chapman that the testimony of Detective Constable Williams should be excluded from consideration at the trial because of a breach of s. 7 and section 11(d) of the Charter.

3.0 EVIDENCE AT TRIAL

3.1 Evidence of Luke Kriel

[7] Constable Kriel has been a member of the Halton Regional Police Service since May 2014.

[8] On August 24, 2017 he was on general patrol when he saw the defendant's motor vehicle pull out of a private drive on Guelph Line at 10:55 p.m. and proceed southbound at a rapidly accelerating speed reaching the speed of 100 kph in a posted 60 kph speed zone. The vehicle slowed down and stopped for a red light and Constable Kriel radioed for another unit to assist and then after the light turned green he activated his emergency equipment and stopped the vehicle at 10:56 p.m. at Guelph Line and Queensway Drive.

[9] Mr. Chapman was the lone occupant of the vehicle and was advised of the reasons for the stop. While at the driver's side window Officer Kriel detected the strong odour of an alcoholic beverage emanating from the driver's window and observed an opened seal-wrapped pack of Budweiser beers in the passenger footwell of the vehicle with four beers still wrapped and two missing. He also noticed three open and empty Budweiser cans in the rear passenger footwell of the vehicle.

[10] He requested the defendant to step outside of the vehicle and he did so. They went to a safe area of the road and Constable Kriel continued his investigation. He advised him that he had detected an odour of alcohol on his breath and asked if he had consumed any alcohol that day. The defendant admitted that he had consumed alcohol somewhere between 12:00 p.m. and 1:00 p.m. that day.

[11] Constable Kriel then formed the reasonable suspicion that he was operating a motor vehicle with alcohol in his system at 10:58 p.m. and read him the demand that he provide an ASD sample into an approved screening device. There is no issue that the proper demand was read and that a proper ASD was used. The defendant agreed to provide a sample of his breath. He was polite and cooperative at all times.

[12] Constable Kriel retrieved the ASD from his cruiser and performed a self-test of the device after it was turned on and it had done its self-checks. The results of his self-test were the expected zero reading and, as a result, he was of the opinion that the ASD was in proper working order. He asked Mr. Chapman if there were any questions, and when he replied that there were none he had him provide a sample of his breath into the ASD which registered a fail on the first attempt at 11:03 p.m. Accordingly, he formed the opinion that he was operating a motor vehicle with a blood alcohol limit above the prescribed level and arrested him for that offence at 11:07 p.m., cautioned him and gave him his rights to counsel. He was searched and handcuffed and taken to the police cruiser. The rights to counsel began at 11:08 p.m. and the caution was given at 11:10 p.m.

[13] Constable Kriel stated that when he read the defendant his rights to counsel from his police-issued notebook, he then explained the rights in a less wordy way to explain that if he did not have a lawyer, he could speak to a free Legal Aid lawyer. Mr. Chapman advised that he did not have a lawyer which Constable Kriel took to mean that he would wish to speak to duty counsel.

[14] After the tow was underway they left for the station at 11:13 p.m. and arrived at 11:23 p.m. He was then paraded before the officer in charge of the station, Acting Sergeant Williams, at 11:28 p.m. Constable Kriel placed a call to duty counsel. Subsequently, the defendant spoke to duty counsel and indicated that he was satisfied with the advice received.

[15] At 11:49 p.m. custody was transferred to the qualified breath technician and the defendant provided two suitable samples into the qualified instrument resulting in two readings that were over the legal limit.

[16] He was charged accordingly and subsequently released. He did not indicate that he wanted to speak to any other lawyer and he stated that he was satisfied with speaking to duty counsel. He never told Constable Kriel that he did not want to speak to duty counsel.

[17] In cross-examination it was established that Constable Kriel had done approximately 10 to 15 drinking and driving investigations before and that he was the arresting officer in five to six of those cases. In the others, he had assisted the arresting officer.

[18] This case was only the second drinking and driving trial that Constable Kriel had testified at as the officer in charge.

[19] He testified that he was aware of the necessity in these types of offences to keep detailed and accurate notes to refresh his memory at a later date and to provide details of the investigation to the Crown and the defence.

[20] Much was made of the fact that Constable Kriel did not put in his notes the time of the stop. He did request a backup to assist at 10:55 p.m. as he was following the defendant southbound on Guelph Line at Davidson Court. Because he stopped the defendant on Guelph Line and Queensway Road, he estimated that to travel that distance and to stop the vehicle would have put the time of the stop at 10:56 p.m. I find this to be a reasonable estimate and I do not find fault with it.

[21] Constable Kriel's cross-examination spanned some 99 pages of transcript on July 31, 2018. Suffice to say, it was an extensive and detailed cross-examination conducted by a skillful and experienced counsel.

[22] The areas covered were widespread and I will only deal with what I believe to be the important areas.

[23] Constable Kriel had some deficiencies in his note taking wherein some important points were left out. For instance, regarding the ss. 8 and 9 issues, the position of the defence was that Constable Kriel should have held off and waited 15 minutes before administering the ASD test because of the possibility that the defendant had consumed alcohol within 15 minutes before the stop. Constable Kriel was aware of the necessity of doing so if there had been recent consumption of alcohol and was aware that the defendant had readily accessible alcohol in the car, being the six pack of Budweiser beers that was open in the front passenger footwell, with two cans missing, and with 3 empty beer cans found in the rear passenger footwell.

[24] He was also aware that the defendant was adamant when he told him in response to the officer's question that he had only consumed one beer at 12:00 p.m. to 1:00 p.m. that day that this was not likely true. That said Constable Kriel was of the opinion that there was not recent consumption in this case and he was not shaken on that point in cross-examination, although he had a difficult time articulating precisely why he was of that view. He stated that he would have asked and did ask the defendant a few times if that is all he had and that if he had consumed alcohol recently that it could affect the ASD test and that he should be honest with him. Constable Kriel was steadfast and maintained throughout his testimony that he would not have administered the ASD test if he thought that there was recent consumption of alcohol.

[25] At one point in the cross-examination Constable Kriel agreed with Mr. Little that there was a real possibility that there was recent consumption. The following extract from the cross-examination of July 31, 2018 seems to support this:

Q. Okay, and what we established was, your brain, you thought to yourself, since he's lying to you and since there's access to alcohol here, he could have recently just consumed that alcohol. Fair?

A. I didn't know if he had consumed it or not.

Q. No, I understand that. But in your mind, you're starting to think, this is a real possibility, that he had recently consumed alcohol?

A. Yes.

Q. Okay. Despite that being in your mind, that this is a real possibility that this gentleman had just or recently consumed alcohol, you go on and you administer the test. Fair?

A. Yes.

Q. Okay, and in administering the test, what you've done is you've administered a test in a situation where there's a very real possibility that this gentleman has consumed alcohol in the last 15 minutes?

A. I believed that he had consumed it prior to that.

Q. Well, based on what?

A. Since speaking to him, he was adamant that he had consumed it at 12:00 to 1:00 and might have consumed it earlier, but I didn't think he was impaired at the time, and had been drinking on the way there, so....

Q. Drinking on the way where?

A. Wherever he was going, when he was driving.

Q. Okay, but where is he going?

A. I don't know.

Q. Because you didn't ask the question?

A. No.

Q. Right, so you don't ask him where he's going, you don't ask him where he's coming from, right?

A. Yeah.

Q. You don't do anything to deal with this real possibility that this gentleman could have just been drinking, other than to ask him the same question a couple of times, and get the same answer which is, he hasn't had anything to drink since 12:00 or 1:00?

A. Yeah, he drank a beer earlier in the day.

Q. Which you don't accept and you don't believe?

A. I thought there was a possibility that he was lying, yes.

Q. Well, not a possibility. I think we've established that you thought he was lying. Fair?

A. Yes, I, I...

Q. Okay.

A. ...it was most likely that he was lying, yes.

Q. All right, so, what I'm suggesting to you, Officer, is you know, in this particular fact situation, what you should have done was waited 15 minutes to ensure the reliability of the test. On the facts of this particular case.

A. I thought I could issue the test and, that's why I issued it.

Q. Well, you thought you could issue the test? What does that mean?

A. I issued the test to him at....

Q. No, I know that you did, okay, but I'm trying to get into this fact that what you're, there's a strong possibility here that what you're going to get is a test result that you can't rely upon. Based on your training, and your experience?

A. Yes, I believed that the -- I don't know how else to say it. I believed that he was, I had explained to him that if he had it more recently, he had to tell me, be honest or it could affect the result. He was saying no, I didn't, I didn't, so I administered the test.

Q. So, that's one, excepting that you asked those questions even though it's not in your notes, right? That you actually give him that information?

A. That's what I had meant when I had written that he was adamant about it, that I brought it up multiple times to him and he had said no, I haven't drank in, in the past while so.... [1]

[26] Later the following exchange occurs:

Q. Okay. So, if I can decipher from what your evidence is then, unless someone tells me, I had something to consume in the last 15 minutes, you're going to go and administer the test. Is that fair?

A. Yeah, I, I had -- yes, that's why I administered the test after explaining to him that it could affect it, sorry. [2]

[27] Despite some frailties in the officer's ability to clearly articulate why he believed that there was no consumption within the last 15 minutes and despite some shortcomings in the officer's note writing, I find him to be a credible and an honest witness who truly believed that there had been no consumption of alcohol by the defendant within 15 minutes before the test. He clearly directed his mind to that, was aware of the effects of recent consumption and residual mouth alcohol on the ASD results, and believed honestly that there had been none. I am prepared to accept his evidence on this issue.

[28] That Constable Kriel admitted that because there was beer within reach of the defendant, and that there was always a possibility of consumption, does not, in my view, amount to a s. 8 breach. If it did, then any person operating a motor vehicle with easy access to alcohol in the vehicle would compel the police to wait 15 minutes after the stop before administering the ASD even when the defendant was adamant about only having had one beer some 10 hours earlier, and when further questioned and told to be honest. Constable Kriel was aware of the issues, investigated recent consumption and, in my view, came to a reasonably held belief that there was not. Based on the fact that he had been told by Mr. Chapman that he had not had a drink for "awhile" and based upon his demeanour and his relative cooperativeness with the police, Constable Kriel came to a reasonable conclusion that there had been no recent consumption. It would have been better if he had put the particulars of these conversations in his notes, but simply because he did not does not affect my positive finding that he was a credible and reliable, if somewhat inexperienced, witness at the time of his trial testimony.

[29] Accordingly, I find no s. 8 and, flowing from that, no s. 9 violation of the defendant's Charter rights.

3.2 Evidence of Jon Williams

[30] Detective Constable Jon Williams started as a police officer with the Metropolitan Police in London, England for three or four years and has been employed as a police officer with the Halton Regional Police for approximately fifteen years. At the time of this incident he was the acting booking sergeant at the station where the defendant was processed.

[31] Mr. Chapman was booked by this officer, but he has no present recollection of their interactions. We have the booking room video of their interaction and the Prisoner Custody Record which was filled out by Acting Sergeant Williams.

[32] Unfortunately, as is the case with all Halton police booking procedures, there is no audio recording of the booking process, just video. For what must be a minimal cost to upgrade the system, myself and my brother and sister judges in this Region constantly are doing trials involving issues which could have easily been resolved if only there was proper audio of the interactions between prisoners and officers during the booking process.

[33] The issue at play in this trial is whether or not Mr. Chapman requested to speak to duty counsel during the booking procedure. D.C. Williams says that despite the entry on the prisoner custody record that he filled out indicating that he did not wish to speak to duty counsel, he would not have not instructed Constable Kriel to place a call to duty counsel, nor allowed him to do that unless the defendant had changed his mind later and requested to speak to duty counsel. According to D.C. Williams' time a call was placed to duty counsel by Constable Kriel at 23:34 hours and duty counsel returned that call at 23:44. Subsequent to this, there was a private consultation between the defendant and duty counsel.

[34] At the time of this incident, Acting Sergeant Williams had occasionally acted as officer in charge of the station during the booking procedure; he estimated perhaps about twelve times in total. Mr. Chapman was the last person that he booked or perhaps the second last before he was transferred from the road into the Fraud Unit where he is presently a detective constable.

[35] Despite having virtually no recollection of his interactions with the defendant, he was able to testify about what his normal procedure was when acting as a booking sergeant and in dealing with rights to counsel.

[36] He acknowledged that as the Prisoner Custody Record shows, he checked the box "yes" beside the question on the form that says "does the prisoner understand their rights to counsel?" Thereafter, in response to the next two questions on the form, which were "does the prisoner wish to speak with Duty Counsel?" and "does the prisoner wish to speak to their own lawyer?" he checked both boxes as "no."

[37] Yet, he did note the time that a call was placed to duty counsel by Constable Kriel as being at 23:34 hours. His testimony was that although he has no recollection of the conversation that he had with the defendant, he would not have requested that a call be placed to duty counsel unless Mr. Chapman had later changed his mind and asked to speak to duty counsel. That is his usual procedure that he always follows.

[38] He testified that he has never personally placed or ordered a call to be placed to duty counsel when the defendant did not wish to speak to duty counsel and has never experienced another officer doing so. He was unshaken in cross-examination on this point.

[39] His evidence was clear and concise about his normal practices and procedures in his roll as a booking sergeant. He stated that with all prisoners he not only asks the questions on the Prisoner Custody Record concerning whether they wish to speak to duty counsel or their own lawyer, but he revisits the issue from time to time during the booking process. It is his evidence that from his experience prisoners sometimes change their minds. He did not make a notation on the Prisoner Custody Record that the defendant had changed his mind, but, to him, the entry of a time a call was placed to duty counsel would only be present on the form if they had done so and requested to speak to duty counsel after initially declining.

[40] I found Detective Constable Williams to be a credible and reliable witness when it came to what his procedure was while acting in that role and despite a suggestion from Mr. Little that Mr. Chapman had never requested to speak to duty counsel and declined to do so throughout the whole process Williams was certain that he had not said that. If he had, a call to duty counsel never would have been placed.

[41] Mr. Chapman willingly consulted with duty counsel, and when asked by the breath technician, as is evidenced by an agreed statement of facts filed in the trial, he said to him that he had spoken to duty counsel. When asked if he was satisfied that he had time to talk with them, he said yes. He never voiced a concern about speaking with duty counsel to any officer and he did not testify on the voir dire.

[42] There is, therefore, no evidence before me that he did not change his mind about speaking to duty counsel or that the police unilaterally decided to call duty counsel for him. The only rational conclusion that I can draw from the evidence before me, that I accept, is that he did change his mind after initially declining to speak to duty counsel before the booking sergeant, Acting Sergeant Williams. I accept the evidence of Acting Sergeant Williams that he would not have called duty counsel had Mr. Chapman not changed his mind, nor would he have allowed Constable Kriel to call duty counsel if he had maintained his refusal to speak to duty counsel.

[43] I am alive to the fact that Constable Kriel thought that he wanted to speak to duty counsel after he gave him his rights to counsel at the roadside, which may not have been the case. He did state to Constable Kriel that he did not know a lawyer, so Constable Kriel took that to mean that he wished to speak to duty counsel at the station. I cannot necessarily agree, but it is, in my view, of little importance because I do accept Acting Sergeant Williams' evidence that his standard practice is to continue to bring up whether the prisoner would like to speak to a lawyer or duty counsel during the booking process and I am satisfied that he did so in this situation and that Mr. Chapman did change his mind and request to speak to duty counsel.

[44] Mr. Little spent some time in cross-examination about Acting Sergeant Williams checking off a box on the Prisoner Custody Record that said that Mr. Chapman was intoxicated. This did not assist me in my assessment of the evidence. It appears after some confusing answers that Acting Sergeant Williams had a very wide definition for intoxicated and one could say that it, in his mind, almost encompasses everyone who is charged with a drinking and driving offence, a definition that is much wider than my understanding or that of most people. In my view, it did not detract from his credibility. He fairly acknowledged that he had no recollection of why he put that on the form and fairly stated that from watching the booking room video he could detect no signs of impairment or intoxication. It does not play an important factor in my finding that he was a credible and truthful witness and I find this to be a rather peripheral issue as it is clear that the defendant was not showing any significant signs of impairment and, if he was, he would have been charged with impaired operation. Constable Kriel was clear in his evidence that absent the ASD fail he would have had no reason to arrest Mr. Chapman.

[45] In summary, I find that Acting Sergeant Williams was an honest and credible witness who, although having virtually no recollection of his interactions with the defendant when he testified, was able to testify as to his standard practices regarding the booking process and the calling of duty counsel. I accept that he would not have instructed nor allowed Constable Kriel to call duty counsel on the defendant's behalf unless the defendant subsequently changed his mind and requested duty counsel be called, after initially declining this.

4.0 ANALYSIS

4.1 Was the arresting officer required to hold off taking the ASD sample because of the possibility of residual mouth alcohol?

[46] In most cases, an accused bears the burden of persuading the Court on a balance of probabilities that his or her Charter rights have been infringed, but in the s. 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or seizure was reasonable. [3]

[47] In this case, then, the onus is on Mr. Chapman to establish an infringement of his s. 9 rights, but the onus is on the Crown with respect to the s. 8 rights. I have, accordingly, approached this alleged violation of rights as one where the Crown bears the onus.

[48] In R. v. Notaro, Paciocco J.A., in dealing with a case involving an officer failing to ask about residual mouth alcohol, he states as follows:

24 First, it is settled law that arresting officers do not have a duty to inquire into the presence of residual mouth alcohol; it makes no sense to treat a failure to consider something that there is no duty to inquire about to be a Charter violation.

25 Second, the reasonable and probable grounds test does not turn on the quality of the inquiry, such as whether the arresting officer asked herself all of the questions that a prudent person would. It turns, instead, on whether the arresting officer subjectively has an honest belief that the suspect has committed an offence and whether, objectively, there are reasonable grounds for that belief. [4]

[49] Further he states:

31 An officer is not under a duty to inquire about the presence of residual mouth alcohol even where, on the information known to them, there is a possibility that the driver could have residual mouth alcohol. For example, in Mastromartino, at para. 57, Durno J. affirmed the principle that there is no duty to ask drivers when they last consumed alcohol even though the arresting officer in that case believed that the suspect, Mr. Mastromartino, had just exited a bar. At paras. 20 and 23, Durno J. also relied on Einarson to reject the submission that an officer, knowing a driver had just left a bar, must either "eliminate the possibility that [the suspect] had consumed alcohol within 15 minutes of being stopped, or wait 15 minutes before administering the test."

32 Similarly, it was not a problem in Einarson that the police officer who witnessed the suspect's vehicle leaving the parking lot of a bar, did not inquire about Ms. Einarson's last drink before relying on the ASD fail result.

33 In my view, the rejection of a duty to inquire into the presence of residual mouth alcohol can best be understood by recognizing that the reasonable and probable grounds test does not focus on the inquiry an arresting officer makes or the questions she asks herself. Reasonable and probable grounds is determined, instead, according to the subjective belief of the arresting officer, and whether, on the information known to the officer, that belief is reasonable. [5]

[50] It is acknowledged that an officer to be able to have the reasonable and probable grounds to make a breath demand as a result of a failure on the ASD turns on whether the officer subjectively has an honest belief that the suspect has committed an offence and whether, objectively, there are reasonable grounds for that belief. The information known to the officer was that Mr. Chapman had readily accessible alcohol available to him in the motor vehicle and there were three empty cans of beer in the back passenger footwell. Notwithstanding this, I find that Mr. Chapman had at times indicated to the officer that he only had one beer between 12:00 p.m. and 1:00 pm. Constable Kriel did not believe him, but also had the honestly held subjective belief that he had not consumed alcohol within 15 minutes of the stop. I accept Constable Kriel's evidence that he did warn the defendant that it would be best to be honest because it might affect the test results and I also accept his evidence that the defendant at one time said to him that he had not had anything to drink for "awhile" despite him not making a note of this in his notebook. [6]

[51] Objectively, the availability of alcohol in a vehicle will not, in my view, require an officer to automatically hold off taking the roadside test. All the circumstances must be taken into account. When I do so in this case, I cannot find that Constable Kriel did not have an honestly held subjective belief that there had been no recent alcohol consumption, nor that that belief was not objectively reasonable.

[52] In all the circumstances of this case, I find that the Crown has met its onus of proving that there was not a breach of the defendant's s. 8 rights.

4.2 Was the defendant required to speak to duty counsel when he had declined to do so?

[53] The simple answer to this question is that I find that he was not. I accept the evidence of Acting Sergeant Williams that he never would have instructed Constable Kriel to call duty counsel if Mr. Chapman had maintained that he did not wish to do so. I also accept his evidence that he would have not have allowed Constable Kriel to do so on his own. The booking video clearly shows Constable Kriel calling duty counsel from a phone located mere feet away from Acting Sergeant Williams and within clear earshot. Further, Acting Sergeant Williams noted the time of the call and was well aware that it was being made. I find that the call was allowed to be placed only because Mr. Chapman had changed his mind from his original position of not wanting to speak to duty counsel and had requested that he be allowed to do so. Further weight to this is accorded, in my view, in that Mr. Chapman made no complaint to the breath technician about speaking to duty counsel in the agreed statement of facts filed.

[54] Mr. Little requested that the Crown call Acting Sergeant Williams as part of their case and they obliged.

[55] The fact that Acting Sergeant Williams testified about how he filled out the Prisoner Custody Record which clearly notes that the defendant refused to speak to duty counsel when asked, but then, in my view, Acting Sergeant Williams adequately explained his usual procedure which is to continue to engage prisoners in ongoing discussions about whether they wish to speak to counsel or duty counsel and if they change their minds and request to do so, he will note down the time the call was placed, which is precisely what he did in this case.

[56] That this was a surprise to Mr. Little in that he thought that Acting Sergeant Williams would have testified that duty counsel were called despite his client saying that he did not want to speak to them, and despite the fact that Mr. Little made certain tactical decisions based on the Prisoner Custody Record, and it alone, may be unfortunate, but does not render the trial unfair, in my view, under s. 11(d) or s. 7 of the Charter. I have been provided with no persuasive authority to suggest otherwise and to support his proposition that I should exclude the evidence of Acting Sergeant Williams and I decline to do so.

[57] That Acting Sergeant Williams gave evidence that I accept that Mr. Chapman changed his mind and would have requested to speak to duty counsel may have taken away a defence submission that the Intoxilyzer tests were not taken as soon as practicable under s. 258(1)(c)(ii) of the Criminal Code is unfortunate for the defendant, but it was a tactical gamble that the defendant lost.

[58] As trial judges, defence counsel, and Crown counsel well know, witnesses may and many times do expand on what may seem on the face of a document to say one thing and then if that evidence is accepted, as I have done so here, shows to the Court that the defendant has not met his obligation on a balance of probabilities to show that a Charter breach of s. 7 or 11(d) has occurred. Mr. Little probably for very valid tactical reasons did not ask for a further will-say from Acting Sergeant Williams about the apparent incongruity of the note on the Prisoner Custody Record showing that his client declined to speak to duty counsel at 23:25 hours, yet then a call was placed to duty counsel at 23:34 hours. I suppose that this is not the first time in Mr. Little's career that a witness has testified to something that he did not anticipate, nor will it be the last. It does not rise to a breach of disclosure or result in an unfair trial in the circumstances of this case.

[59] In discussing the requirement of a system of jury selection that results in a fair trial, the Supreme Court of Canada had this to say in R. v. Find about the nature of a fair trial:

28 The ultimate requirement of a system of jury selection is that it results in a fair trial. A fair trial, however, should not be confused with a perfect trial, or the most advantageous trial possible from the accused's perspective. As I stated in R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 193, "[w]hat constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process... . What the law demands is not perfect justice, but fundamentally fair justice". See also R. v. Carosella, [1997] 1 S.C.R. 80, at para. 72; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362; R. v. Harrer, [1995] 3 S.C.R. 562, at para. 14. At the same time, occasional injustice cannot be accepted as the price of efficiency: M. (A.) v. Ryan, [1997] 1 S.C.R. 157, at para. 32; R. v. Leipert, [1997] 1 S.C.R. 281. [7]

[60] I end by saying that, if anything, this once again shows that the Halton Regional Police policy of not having audio of what transpired during the booking process is a real and substantial concern to myself and fellow members of my bench. Mr. Little would no doubt have reviewed that and would have been in a position to abandon that aspect of the defence or, alternatively, advanced it with audio proof which likely would have been determinative of this issue.

[61] Because that policy exists as it presently does, valuable court resources are expended on litigating these issues at great cost to our justice system.

[62] Continued inaction on the part of the Halton Regional Police Service to rectify this issue despite warnings from our bench may in the future result in a different outcome than the one in this case.

[63] Very important interactions occur during the booking process, including discussions and decisions made regarding the defendant's right to counsel and the implementation of that right. To refuse to install audio recording in the booking process may in the future, and on a proper record, result in a Charter breach under ss. 7, 10(b) or 11(d). A Court would presumably require evidence about the standards and procedures of other police forces in having audio and video recording of the booking process. That is something that is not before this Court in this case, but may be in a future case.

[64] Because I have found no Charter violations in this case, it is not necessary for me to engage in a s. 24(2) analysis.

5.0 CONCLUSION

[65] After considering all of the evidence, the submissions of both counsel and the caselaw provided I find that there have been no breaches of Mr. Chapman's Charter rights in this case.

[66] Because of these findings and because the defence has submitted that their defence is predicated on a finding of Charter breaches that would have led to a consideration of whether to exclude the evidence of the Intoxilyzer readings, I am prepared to admit the Certificate of a Qualified Breath Technician filed as Exhibit A in these proceedings.

[67] Because those results are in excess of 80 mgs of alcohol in 100 mLs of blood, the Crown has proven all of the essential elements of their case beyond a reasonable doubt and Mr. Chapman will be found guilty of the offence as charged.

Released: July 10, 2019

Signed: "Justice Stephen D. Brown"

Footnotes

[1] Transcript July 31, 2018 pages 79-80

[2] Ibid page 82

[3] R. v. Haas, [2005] O.J. No. 3160 (Ont. C.A.) per Goudge J.A. at paras. 24 to 26; R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35 (S.C.C.) per McLachlin C.J. and Charron J. at paras 15-16

[4] R. v. Notaro, [2018] O.J. No. 2537 (OCA) pages 5-6

[5] Ibid pages 6-7

[6] Transcript July 31, 2018 page 86

[7] R. v. Find, 2001 SCC 32, [2001] S.C.J. No. 34 para 28