Court File and Parties

Ontario Court of Justice

Date: 2020-03-13

Court File No.: Toronto 18-15000896

Between:

Her Majesty the Queen Respondent

— And —

Michael Chapman Applicant/Accused

Before: Justice Patrice F. Band

Reasons for Judgment

Counsel:

• S. Husband, counsel for the Crown
• P. Chand, counsel for the Accused Michael Chapman

I. Introduction and Procedural History

[1] Mr. Chapman stood trial on counts of driving while his ability to do so was impaired by alcohol and with a BAC "over 80" contrary to ss. 253(1)(a) and (b) of the Criminal Code. The events began in the early morning hours of February 4, 2018, when Mr. Chapman's Honda crashed on the Gardiner Expressway.

[2] The last appearance in court in this matter took place over two years later, on February 7, 2020. On that date, final submissions were expected. As it turned out, that was not the end of it. Regrettably, even though Mr. Chapman quite rightly did not seek relief pursuant to s. 11(b) of the Charter, I must present a procedural history to provide context for my decisions in relation to some of the claims for relief that both parties have made. Before doing so, however, I want to indicate that none of the procedural history I will summarize is Mr. Chapman's fault or otherwise attributable to him.

[3] This matter was, like most of its kind in these courts, rather routine. Police responded to 911 calls concerning the crash. What started as a motor vehicle accident investigation quickly led to an ASD demand. Mr. Chapman produced a "fail" in the approved screening device (ASD). He was taken to the station, where he spoke to duty counsel and then provided two samples of his breath into an approved instrument (AI). The results were 196 and 172 mg of alcohol in 100 ml of blood (mg%). He was charged with both offences and released some time thereafter.

[4] Because Charter arguments were being advanced, the trial proceeded in "blended" fashion. Mr. Chapman testified first and only in relation to the Charter.

[5] On behalf of Mr. Chapman, Mr. Chand had raised a number of Charter-based allegations at the outset, citing s. 7, 8, 9 and 10(b) rights and seeking a remedy pursuant to s. 24(1). Some were abandoned and revived only to be abandoned once again. Some evolved in scope or kind. Others were layered on over time. One that was consistently in play, based on s. 7, is commonly referred to as a White/Soules issue. Mr. Chapman had identified himself as the driver who had lost control and crashed the car when the first officer on scene, PC Brian Kellar, asked him what happened.

[6] The trial was plagued with adjournments and stumbling blocks. Some – relating to disclosure or health-related issues – were acceptable, if unfortunate. Others – the product of inefficiency, indecisiveness or inconsistent positions – less so.

[7] Mr. Chand's first Notice of Application ("Form 1") included a s. 10(b) claim. He abandoned that claim on the record on the morning of trial. As the trial developed, he renewed it. Some disclosure issues arose, and with them s. 7 arguments. As the evidence developed, the claims accreted. At each juncture, on behalf of the Crown, Mr. Husband cited fairness concerns, requested that a new (and final) Form 1 be filed or sought summary dismissal of new claims for Charter relief. Mr. Husband's claim for summary dismissal remained constant to the very end, at least to the extent that Mr. Chand made new Charter-based allegations after the close of the evidence. By the end of the evidentiary phase of the trial, Mr. Chand had filed three Form 1s. When all was said and done, he had filed five.

[8] In September 2019, once the evidence was in, I inquired whether written submissions might not be appropriate in light of the checkered history and ever-evolving nature of the matter. Both counsel demurred and insisted that a half-day in court would suffice for oral submissions. We chose November 15 for argument, and I set deadlines for the filing of a final Form 1. On that date, due to illness, an agent attended for Mr. Chand and the matter was adjourned to December 18 for final argument. Again, the parties confirmed that a half-day would suffice. Mr. Husband expressed a potential intention to seek to call evidence to address new Charter allegations disclosed in the October 28 Form 1, so I set an interim date to attempt to manage the matter. On that date, Mr. Husband indicated that he would not seek to call more evidence. Mr. Chand advised that he did not expect to make additional Charter allegations and would confine himself to the last iteration of his Form 1.

[9] On December 18, Mr. Chand raised the idea of written submissions. Mr. Husband remained opposed, citing delays and the interests of justice. In response to a question of mine, Mr. Chand indicated that he would be at his best in writing, so we selected February 7, 2020 and I imposed timelines on the parties. The point of that appearance was for counsel to respond to any questions I might have regarding their written submissions. The hope was that it would be correspondingly brief.

[10] In the interim, Mr. Chand filed two sets of written submissions: "Merits Submissions" and "Charter Submissions." The latter raised new or expanded Charter allegations relating to ss. 7 and 10(b). This prompted Mr. Husband to seek written directions from me as to how to proceed before filing his responding materials. I provided these through my judicial secretary on January 20, 2020. I directed that the matter would proceed on February 7 as planned if Mr. Husband: (i) was not seeking to re-open, (ii) made sure to indicate what he believed was new in his responding written submissions and (iii) was content to respond to those in writing. Failing that, the parties were to notify me in advance. The Directions also specified that if the February 7 date was to remain in place, my expectation was that the parties would "make oral submissions to complement (not expand the scope of) their written submissions (if they so choose) and respond to questions from His Honour, if any" (emphasis in original). Mr. Husband later indicated his agreement and filed his written submissions as required. They included a list of what he considered to be new Charter allegations.

[11] Mr. Chand filed "Reply Submissions" in which a concession was made regarding the newly alleged breach of the right to counsel of choice: that PC Lemonia Paroussoudi, the officer who had arrested Mr. Chapman, transported him to the station, called his mother and put him in contact with duty counsel did not breach his s. 10(b) rights by "failing to facilitate contact with the lawyer" of his choice. I will refer to this as "the concession" for ease of reference.

[12] On February 7, I asked the questions I had of both parties and most were answered. Of particular interest is that regarding the concession, Mr. Chand advised that he was not alleging that PC Paroussoudi had breached the implementational component of s. 10(b). I also asked Mr. Chand to provide two pinpoint cites for some propositions made in his written material and to provide me with a clear and final list of alleged Charter breaches that remained in play. I asked him to provide that list before he left court that day, either orally or handwritten on a piece of paper. At the end of the day, Mr. Chand asked if he could respond to my requests by February 10 and indicated that he would do so by filing another Form 1. Ambivalent as to form, I agreed.

[13] On February 10, Mr. Chand filed a fourth Form 1, a document entitled "Notice of Application" and three additional Supreme Court of Canada decisions. The Form 1 alleged that the police – which could only have been PC Paroussoudi – had violated Mr. Chapman's right to retain and instruct counsel without delay. Also alleged, for the first time, was a breach of s. 10(a). The "Notice of Application" contained over 51 paragraphs of argument. It did not, however, contain the list of alleged Charter breaches I had requested.

[14] Mr. Husband complained in writing and sought summary dismissal of this latest salvo. By letter dated February 14, I dismissed the additional allegations summarily, rejected the supporting material and provided reasons for doing so. I also directed that Mr. Chand provide the list I had asked for.

[15] On February 19, Mr. Chand filed a fifth Form 1. It alleged that PCs Kellar and Paroussoudi had breached the informational and implementational components of s. 10(b). Mr. Husband then wrote to indicate that this was tantamount to the renewal of an abandoned claim. However, because he had already responded to it and did not feel prejudiced, he did not request its summary dismissal.

[16] I wrote to Mr. Chand asking how the concession, which had previously been made in writing and confirmed on the record, could have been resiled from in such a fashion in the context of this case. Notwithstanding Mr. Husband's position, I directed Mr. Chand to provide "clear and final confirmation regarding the concession." On February 28, Mr. Chand wrote that "the Defence no longer takes the position that s. 10(b) of the Charter was breached in this case."

II. Preliminary Issues: Delayed Disclosure and New Charter Claims

[17] Mr. Chapman seeks a stay of proceedings for late disclosure. The Crown seeks summary dismissal of the new Charter claims. Both requests are dismissed for the reasons that follow. I have chosen to address them first because that will assist in bringing the more meritorious issues into focus.

A. Delayed Disclosure

One page of PC Kellar's notes

[18] While PC Kellar was the first officer to testify (in January 2019), his evidence was interrupted a number of times because three disclosure-related issues came to light: (i) one page of his notes had not been disclosed; (ii) in the disclosure, a video that appeared to be from PC Paroussoudi's in-car camera (ICC) contained nothing relevant but another video from her ICC came to the parties' attention and was produced to the Defence; and (iii) PC Kellar had become the subject of Police Services Act (PSA) proceedings in relation to an accident investigation he had conducted in January 2018.

[19] On January 8, 2019, Mr. Chand indicated that he was "not taking issue" with the just-disclosed page of PC Kellar's notes but was concerned about a possible pattern of late disclosure given the issue relating to PC Paroussoudi's ICC video. In my view, experienced counsel are able to adapt to the disclosure of one page of notes "on the fly" or after a brief recess. In this case, the adjournment was more than ample, and no possible prejudice could have attached to that small oversight per se.

PC Paroussoudi's ICC video

[20] Mr. Chand argues that PC Paroussoudi's ICC video was necessary to allow the Defence to assess Mr. Chapman's physical and mental state and how it "impacted his ability to understand and exercise his Charter rights, and to assess the reasonableness of his arrest and detention." It was also "crucial to assessing the time between when Mr. Chapman was detained and provided his rights to counsel as well as the times between the two breathalyzer tests…".

[21] The Crown disagrees, points to the fact that an adjournment was occasioned and argues that Mr. Chand failed in his duty to be diligent in requesting the ICC video.

[22] I disagree that Mr. Chand failed in his duty to be diligent. Mr. Husband himself had been labouring under the belief that the video from PC Paroussoudi's ICC that had been previously disclosed was the only one extant. How, then, could Mr. Chand be blamed for having the same belief?

[23] It is also beyond dispute that the relevant ICC video was important disclosure that should have been made in a timely fashion. Where I part ways with Mr. Chand is on the impact of its late disclosure on trial fairness or the right to make full answer and defence. First of all, the adjournment gave Mr. Chand the ability to assess Mr. Chapman's condition during the arrest and transport and to fold it into his cross-examinations of all the police officers as well as his final arguments. Second, it must be noted that the s. 10(b) allegations were abandoned in the end, after Mr. Chand's "review of the merits of the Defence's s. 10(b) Charter arguments" as described in his February 28 letter. If Mr. Chapman's ability to understand his "Charter rights" was at issue, surely his s. 10(b) rights would have been central among them. Third, the ICC video was not and could not have been the only source of information as to the times at which Mr. Chapman was arrested and advised of his right to counsel, much less of the period that elapsed between his breath samples. Had the first two been unknown, one would have expected to hear about it during the cross-examination of PC Paroussoudi. As for the third, the qualified breath technician (PC Iulian Andrici) testified in great detail in this case and the certificate, test record card and breath room video were filed as exhibits. These had obviously been disclosed prior to trial.

PC Kellar's PSA matter

[24] Mr. Husband argues that the complaint became a formal "charge" under the PSA during the course of the trial and that disclosure was made promptly after that. Prior to that, it was merely an investigation which, in his view, was not disclosable. Mr. Chand argues that it ought to have been disclosed earlier, even at the complaint stage. Counsel base their arguments on different interpretations of R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66. I need not resolve this debate because the adjournment provided Mr. Chand with ample time to incorporate the topic into his cross-examination of PC Kellar as well as his submissions.

A "pattern" of late disclosure

[25] Assuming that the Crown should have disclosed the PSA allegation before trial, along with the other items that were clearly disclosable, then one might very well see a "pattern" in this case. Delayed disclosure is always regrettable. Patterns more so. But a pattern of late disclosure that is met with appropriate adjournments and causes no unfairness or prejudice to the right to make full answer and defence does not warrant a stay of proceedings. That remedy is reserved for the "clearest of cases."

[26] Having observed this trial over the course of many days, I perceived no measurable impact that the disclosure issues could have had on Mr. Chand's approach or trial strategy in this case. As I stated more than once on the record, his cross-examinations of the police officers were akin to discoveries and strayed into irrelevant or tangential matters in an open-ended fashion. Even though Charter issues can sometimes arise somewhat organically during the course of some trials and our system must remain flexible enough to accept them (within reason), the history of this matter, including the shifting Charter allegations, suggests something less than a clearly defined and focused trial strategy. So, too, does the fact that Mr. Chand managed to file a total of 46 cases. While the Crown filed a good number in response, its total of 41 is excessive.

[27] Mr. Chapman is not entitled to a stay of proceedings as a result of delayed disclosure.

B. New Charter Claims

[28] Mr. Husband argues that the new Charter claims have caused prejudice to the Crown's case yet, despite a number of invitations, he refused to seek to re-call any of the witnesses. Most important, in his view, is that even if he had done so, he would have "remained stuck with the existing evidence which ha[d] been elicited without being aware of its purpose and future relevance." Calling additional evidence would have not only lengthened the trial, but also created a "backward distortion."

[29] I disagree that this is such a case. First, any previous testimony would have to be assessed in light of the fact that it had been given without notice of a potential (and likely discrete) issue. Second, most if not all of the disputed subject matter was recorded by the ICCs and breath-room camera and was, therefore, capable of being corroborated. Third, after the concession was cleared up, the only new Charter claims that remain alive are s. 7 allegations that relate to late disclosure and the conditions under which Mr. Chapman was arrested. While I appreciate that this took place well after February 7, it remains a fact that Mr. Husband was well able to respond to those. The delayed disclosure issue was not witness-dependent, and the conditions of Mr. Chapman's arrest, transportation and detention were captured on video and, to some extent, already raised in cross-examination. Furthermore, as Mr. Husband correctly pointed out, there is a complete absence of evidence to support one aspect of the s. 7 allegation, to which I will return below.

[30] The power to dismiss claims summarily must be exercised cautiously. As the Court of Appeal recently stated in R. v. Kazman, 2020 ONCA 22 at para. 15, "[m]otions that advance constitutional claims should be addressed on their merits unless the broader interest of justice clearly demand otherwise." The broader interests of justice favoured addressing the new Charter claims on their merits.

III. Summary of the Evidence

[31] A brief summary of the non-controversial evidence will put the remaining issues into context. A woman named Kassandra Cameron was travelling on the Gardiner in a taxi with some friends when she saw a white or silver Honda or Volkswagen pass the taxi at a high rate of speed and sharply veer into the center median. It bounced off the median and made its way to the right side of the highway where it collided with the guardrail and then kept driving for 30-60 seconds, past the next exit. Sparks could be seen as it did so. A tire was off its rim. The car's license plate began with the letters BSFR or BSFL. She described the driver as a white male with dark features, a scruffy beard and a shaved head. She believed that he was intoxicated, particularly because he kept on driving. She had no communication with the driver as the taxi continued on. She called 911 and told the operator that the driver seemed impaired. In cross-examination, Ms. Cameron acknowledged that she had been unable to gauge the speed of the other car with precision and that she had consumed two beers in the previous four hours.

[32] PC Kellar received information about the crash and arrived on scene at the Gardiner near the Jameson exit at 1:32 a.m. to investigate it. He saw a white Honda bearing the license plate BSFL 045. It had damage to both sides, and he believed it to be undrivable. Near the Honda were Mr. Chapman and a tow truck driver. Mr. Chapman is a white male with short brown hair. PC Kellar had conversation with Mr. Chapman, who admitted he had lost control of his car. PC Kellar quickly observed what he believed to be signs of impairment. At 1:37 a.m. he made an ASD demand. He was preparing the ASD as PC Paroussoudi arrived. PC Paroussoudi is a qualified breath technician. PC Kellar told her his grounds and it was decided that she would administer the ASD. PC Kellar would take care of the accident investigation. Sgt. Sondhi later arrived and advised PC Kellar that someone else would be investigating the accident.

[33] The tow truck driver testified that Mr. Chapman was in the driver's seat when he arrived. He had Mr. Chapman get out of his car and had him stand near the guardrail for safety.

[34] PC Paroussoudi arrived at 1:39 a.m. She tested the ASD and demonstrated it before administering the test. Mr. Chapman's sample resulted in a "fail." She testified that it only took one attempt. PC Paroussoudi then arrested Mr. Chapman at approximately 1:41 a.m. She advised him of his rights. Mr. Chapman was paraded at 2:11 a.m. and taken to the interview room to facilitate his right to counsel. He had asked that PC Paroussoudi call his mother to find information about a lawyer. She did so and left a voicemail. At 2:29 a.m., Mr. Chapman's mother called back. Those efforts did not bear fruit, and Mr. Chapman agreed to speak to duty counsel. He did so from 2:41 to 2:48 a.m.

[35] PC Andrici, the qualified breath technician, testified and the video of the testing sequence was entered into evidence. After setting up and having the AI go through its preparatory tests, he repeated that sequence again before receiving Mr. Chapman's first sample. The first sample was received at 2:56 a.m. and yielded a reading of 196. The second test was conducted after the AI had gone through its self-testing procedure. The sample was received at 3:20 a.m. and yielded a reading of 172.

[36] Mr. Chapman testified on the voir-dire in support of the Charter allegations only. He explained that he had consumed one glass of wine and two bottles of beer at a wedding. The crash occurred because his tire blew when he hit a pothole. A woman stopped and told him that she had called 911. For that reason, he did not call police, but he remained. He understood from a previous experience that his accident was reportable and that he was obligated to answer a police officer's questions about it, including those about alcohol consumption. He testified that he had a history of concussions and that he was in shock and fuzzy when speaking to PC Kellar.

IV. The Issues

[37] The stated issues in this case were clustered into two groups: the Charter and the merits.

A. The Charter

Section 7 – White/Soules

[38] Mr. Chand argues that Mr. Chapman identified himself to PC Kellar and told him what happened because he was compelled to do so by law.

Section 7 – Rights and duties when the investigation shifted to criminal

[39] Mr. Chand also argues that PC Kellar had a duty to tell Mr. Chapman when his investigation tipped from an accident investigation to a criminal one, and that Mr. Chapman had a corresponding right to that information. He also asserts that PC Kellar had an obligation to advise Mr. Chapman of his "Charter rights" at that moment.

[40] As a result, Mr. Chapman's admissions must be excluded. Without them, the Crown cannot prove that Mr. Chapman was the driver and he is entitled to acquittals on both counts.

Section 7 – Manner of arrest and transport

[41] Mr. Chand argues that Mr. Chapman was vulnerable and in a post-concussive state due to the crash and deployment of the airbags. PC Paroussoudi's observations included that he appeared dazed and that he had dried blood on his nose and upper lip. In those circumstances, and despite his refusals, Mr. Chapman should have been seen by paramedics and the gathering of further evidence should have been postponed. Mr. Chand also argues that PC Paroussoudi's manner of driving Mr. Chapman from the scene to the station further exacerbated his mental state, thereby violating his s. 7 rights.

Section 8 – Reasonable Suspicion and Reasonable and Probable Grounds

[42] Mr. Chand argues that PC Kellar did not have a reasonable suspicion that Mr. Chapman had alcohol in his system. His ASD demand, the ensuing ASD "fail", arrest and subsequent breath tests therefore lacked the requisite grounds. Mr. Chand also argues that despite PC Paroussoudi's testimony to the contrary, either the ASD displayed error messages during the roadside testing of Mr. Chapman or her explanations regarding her notetaking were unsatisfactory. This made her an unreliable witness and deprived her of reasonable grounds to arrest Mr. Chapman and make the breath demand.

B. The Merits

Over 80

[43] Mr. Chapman argues that the ASD and AI were not operated properly or reliably and that the tests were not taken as soon as practicable. As a result, the presumptions found in the Code are not available to the Crown.

Impaired Operation

[44] Mr. Chapman made few submissions regarding the impaired operation count beyond the White/Soules argument concerning identity. He argued that Ms. Cameron's evidence was unreliable due to her consumption of alcohol and inability to gauge the car's speed with precision.

V. Analysis

A. Credibility and Reliability of the Crown Witnesses – Generally

[45] I begin with my assessment of the credibility and reliability of the witnesses upon whom the Crown relies to avoid unnecessary repetition. I will discuss my findings relating to Mr. Chapman's credibility and reliability in my discussion of the Charter issues.

[46] I found that Ms. Cameron, PC Kellar, PC Paroussoudi and PC Andrici gave credible and reliable evidence. The fact that Ms. Cameron had consumed two bottles of beer in the four hours that preceded her taxi ride home did not affect her reliability in my eyes, given the nature of her evidence. What is more, she seemed honest and willing to admit what she could not be sure of. I accept her evidence that the taxi was likely traveling at approximately 110 km/h on the Gardiner at that time of night and that the car that passed them was traveling a lot faster than that. I also accept her evidence that the car continued to drive for a period of time after the crash, past the exit.

[47] All of the police officers were experienced, knowledgeable and competent. While PC Andrici's operation of the AI was put into question, his credibility and reliability were not really challenged. He is a very seasoned officer with 11 years' experience as qualified breath technician who has performed approximately 1,200 breath tests. He gave his evidence concisely and in the dispassionate manner one would expect from someone with his experience testifying about breath tests. I found him credible, reliable and highly competent.

[48] Mr. Chand's most forceful arguments regarding credibility or reliability were focused on PCs Kellar and Paroussoudi. He argued that PC Kellar's credibility and reliability were adversely affected by a number of factors. Foremost among them was the PSA matter. PC Kellar explained that he had investigated an accident in which a teenage boy had been struck by a car. He had been unable to lay a charge against the motorist and the boy's father complained. This, Mr. Chand argues, should give me concerns about PC Kellar's abilities regarding the investigation of Mr. Chapman. To this, Mr. Chand adds that PC Kellar had been reassigned by Sgt. Sondhi. He also suggested that PC Paroussoudi took over the ASD testing because PC Kellar was not competent to do it himself. He challenged PCs Kellar and Paroussoudi on these points in cross-examination by suggesting that PC Kellar was not up to the tasks. Both denied those suggestions and explained that they simply agreed to do what each was best at: he the accident investigation and she the ASD procedure. PC Kellar also offered an explanation as to why Sgt. Sondhi had reassigned him.

[49] PC Kellar is an officer with 16 years' experience. Based on his testimony and my review of the ICC videos in this case, I find that he was competent and that his skills were more than equal to the task at hand. The PSA matter did nothing to affect my assessment and I did not believe that PC Paroussoudi had taken the ASD from him or that he had been reassigned for reasons having to do with his aptitudes. I note in this regard that while Sgt. Sondhi was available, Mr. Chand did not seek to have him called to testify.

[50] PC Paroussoudi is an officer with ten years' experience. Prior to that, she was a medical doctor in her native Poland. In addition to being a qualified breath technician, she is a drug recognition expert who had made arrests in over 200 impaired investigations prior to this one. She administers the ASD up to ten times per shift and has not once received an error message that related to her operation of the device. As she put it, the ASD is "idiot-proof."

[51] Mr. Chand challenged PC Paroussoudi most forcefully on two points. First, an entry in her notes that suggested error messages regarding the ASD; second, whether she had taken sufficient care of Mr. Chapman, whom she knew had been in a car crash in which the airbags had deployed, which was the likely reason for the dried blood she observed.

[52] PC Paroussoudi explained that the error-message entry was a mistake. It had nothing to do with this case. It was a function of being tired, not careless. She scratched it out immediately. She also admitted that her failure to note her time of arrival on scene was a mistake about an important fact. As for Mr. Chapman's mental state, PC Paroussoudi acknowledged that his dazed appearance could have been due to a head injury. Or a combination of impairment and fatigue at that time of night. In any event, she explained that she takes care of all of those who are in her custody. In this case, she asked Mr. Chapman if he wanted to see the paramedics and he replied that he felt fine. She told him to let her know if the situation changed. As a trained physician, she is familiar with concussions. She did not see signs of that in Mr. Chapman, who did not complain of anything to her.

[53] Having heard PC Paroussoudi's testimony and reviewed the ICC videos, I believed her. In fact, I was particularly impressed by her testimony. She admitted her own errors easily and struck me as honest, forthright, credible, careful and compassionate.

B. The Charter

Section 7 – White/Soules

[54] In R. v. White, [1999] 2 S.C.R. 417 (S.C.C.), the Supreme Court held that an accused's statements made under compulsion in compliance with highway traffic legislation were not admissible in criminal proceedings. At para. 75, the Court wrote:

... the test for compulsion … is whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given.

[55] The Court elaborated as follows, at para. 76:

The requirement that the accident report be given on the basis of a subjective belief exists because compulsion, by definition, implies an absence of consent. If a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant's statements. The declarant would then be speaking to police on the basis of motivating factors other than [legislation].

[56] In R. v. Parol, 2011 ONCJ 292, [2011] O.J. No. 2641 (C.J.), a case cited by both parties, Duncan J. unpacked the burden on an accused person seeking use immunity from a statutorily compelled report at para. 6. That person must demonstrate on a balance of probabilities that:

i. he or she was in fact compelled by statute to provide a report;

ii. the statements he or she made were a "report" within the meaning of the compelling statute; and

iii. he or she gave his report in the honest and reasonable belief that he or she was compelled by the statute to do so.

[57] At the roadside, PC Kellar asked Mr. Chapman what happened as soon as he approached him. After Mr. Chapman told him that he had been involved in the crash, the exchange went as follows. PC Kellar asked Mr. Chapman if he had had anything to drink. Mr. Chapman said "no." PC Kellar asked him again, "nothing?" Answer: "no." PC Kellar asked him for a third time whether he had "anything" to drink, this time adding that he observed signs of impairment. Answer: "yes, sir." PC Kellar asked him how much. Answer: "not much at all." PC Kellar asked "how much is not much?" Answer: "three pints."

[58] In his evidence-in-chief, Mr. Chapman testified that he knew of the obligation to report. He also explained that his father was a firefighter and that he had been raised to treat people in uniform with respect. He felt he had no choice but to answer PC Kellar because he was a police officer. One is not supposed to lie to police. As a result, he believed that he was "required to answer truthfully and to the best of [his] ability."

[59] In cross-examination, Mr. Chapman said that he understood that he needed to give a full and truthful account to PC Kellar. While he had been aware of the possibility of an impaired driving investigation, he was not trying to hide anything at the time. He denied feeling free to hide facts or being at liberty to lie. When pushed as to whether he had lied to PC Kellar, Mr. Chapman said he did not recall having twice denied the consumption of any alcohol. The Crown played the relevant portion of the ICC video for him, and he denied that it refreshed his memory because he was in shock and was fuzzy due to violent head trauma.

[60] The Crown argues that the third prong of the White test is most at issue in this case and that Mr. Chapman's application must fail because he lied to PC Kellar out of a desire to exculpate himself and did not feel compelled to give a full and accurate report.

[61] There is appeal to the view, stated in Parol, supra, that the exchange between PC Kellar and Mr. Chapman was not a "report". Faced with a similar situation, Duncan J. wrote at para. 13,

Nothing could be more ordinary and natural than a police officer arriving at the scene of an accident and asking who was driving. If the exchange in issue here is considered a "report" then the "dividing line" drawn by the Court in White would be completely obliterated.

[62] However, in this case, I find that the issue is best addressed through the lens of credibility and reliability. I simply did not believe Mr. Chapman that he answered PC Kellar's questions out of a sense of legal compulsion. He lied to PC Kellar twice at the scene. He testified that he believed, at the time, that he was obligated to give a full and truthful report. I did not believe that he was unable to recall lying to PC Kellar because of his mental state at the time. This did not sit well with his ability to recall other details at trial, such as the precise amount of alcohol he had consumed at the wedding. Nor did it sit well with the fact that he told PC Kellar that he was "fine" and not hurt and that he had declined to be seen by paramedics at the scene or thereafter.

[63] In the alternative, if Mr. Chapman was in the fuzzy state of shock that he described as resulting from a head injury, his evidence about what was going through his mind at the time is unreliable.

[64] Mr. Chapman has not met his burden to demonstrate that his answers to PC Kellar's questions were given under compulsion. Rather, I find that it is more likely than not that his answers were motivated by a combination of his innate belief that he should answer questions posed by police officers and a desire to avoid criminal investigation.

Section 7 – Rights and duties when the investigation shifted to criminal

[65] Mr. Chand relies on para. 29 of R. v. Hussainyar, 2015 ONSC 2109 (S.C.) for the proposition that officers in PC Kellar's position must advise the suspect when the reporting obligation has ceased and a criminal investigation has begun. Para. 29 states:

Going forward, however, police investigators should be on notice that if they are investigating what they view to be a "reportable" collision pursuant to the Highway Traffic Act, they must assume that the driver may identify themselves as such to police pursuant to a perceived obligation to do so under that legislation. Investigators should therefore look for other evidence to identify the driver in order to provide reasonable grounds to make an ASD or breath sample demand.

With respect, I do not read that paragraph as imposing a duty on officers that was not expressed in White. I interpret it as sound advice to officers not to rest on an admission of identity in the context of a reportable collision as the keystone of their ensuing criminal investigation.

[66] I am not aware of any authority supporting Mr. Chand's argument. When I asked him during submissions, he suggested that it might be found in R. v. Soules, 2011 ONCA 429. In that case, at para. 53, the Court of Appeal referred to aspects of the reasons in White, in which Iacobucci J. described "several ways in which police might investigate so as to acquire information independently of the accident report that is subject to use immunity." This was in response to the Crown's argument on appeal that police investigations would be crippled by subsequent use immunity in relation to the formation of grounds.

[67] Mr. Chapman has not met his onus regarding this alleged violation of his s. 7 rights.

Section 7 – Manner of arrest and transport

[68] Mr. Chand argues that PC Paroussoudi drove Mr. Chapman to the station in an unreasonable manner, thereby exacerbating his mental and physical condition. While he testified to having had a bad headache at the scene and mentioned it to PC Andrici during the breath testing sequence, he gave no indication to PCs Kellar or Paroussoudi that he was in any pain or distress. To the contrary, he said that he was fine and declined to be seen by paramedics when PC Paroussoudi brought it up. I also accept that PC Kellar failed to see any dried blood because of the lighting and position the two were in.

[69] Most importantly, there is no foundation for the argument that PC Paroussoudi drove back to the station in an unreasonable manner. Mr. Chapman did not testify to that effect, the suggestion was not put to PC Paroussoudi and it is not supported by the ICC video.

[70] Mr. Chapman has not met his onus regarding this alleged violation of his s. 7 rights.

Section 8 – Reasonable Suspicion and Reasonable and Probable Grounds

[71] Mr. Chand argues that PC Kellar lacked the reasonable suspicion required to support an ASD demand, particularly because there was evidence of a serious car crash. PC Kellar arrived to find a single motor vehicle accident that was, at that time, unexplained. Shortly after engaging with Mr. Chapman, he observed glassy eyes, a blank stare, a hint of unsteadiness in his stance and the odour of an alcoholic beverage. Mr. Chapman also admitted to having consumed "three pints." Whether or not some of PC Kellar's observations could have been explained by the crash, they easily amount to a reasonable suspicion and PC Paroussoudi was entitled to proceed with the ASD.

[72] Mr. Chand argues that despite the fact that Mr. Chapman failed the ASD, PC Paroussoudi did not have reasonable and probable grounds to arrest him and make the associated breath demand. He argues that the error messages that she wrote about in her notes and immediately crossed out are evidence that she demonstrated a lack of understanding of error messages and that her evidence is unreliable. For the reasons I have already indicated, I disagree. I accept PC Paroussoudi's evidence as truthful and accurate. What is more, I believe that she tested the ASD, found it to be in proper working order and operated it properly.

[73] Reasonable and probable grounds is not an onerous threshold in a case like this: see R. v. Bush, 2010 ONCA 554, at para. 46 (C.A.). Viewed objectively and subjectively, PC Paroussoudi's grounds were more than sufficient to meet the requirements of s. 8 of the Charter.

Conclusion regarding the Charter claims

[74] Mr. Chapman's Charter-based claims are dismissed. His admission that he was driving and the evidence gathered thereafter are admissible.

C. The Merits

Over 80

[75] I have already explained that the ASD was in good working order and was operated properly.

[76] Mr. Chand's arguments concerning the AI are intertwined and require unpacking. The first, and simplest, is that the tests were not taken as soon as practicable because the 24-minute gap between them was not completely accounted for. This deprives the Crown of the benefit of the presumptions set out in the Code. For that argument, Mr. Chand relies on R. v. Kunsenhauser, 2006 ONCJ 382 at para. 31 (C.J.).

[77] Mr. Chand is correct that the 9 minutes beyond the minimum required by the Code were not explained. However, 17-to-20-minute intervals are commonly accepted in Ontario as a function of the AI's self-testing procedures. Moreover, Kunsenhauser post-dated the Court of Appeal's seminal decision in R. v. Vanderbruggen, 2006 O.J. No. 1138, but does not refer to it. I note also that it relied on R. v. Bugler, [1997] O.J. No. 2283 (C.A.), an endorsement that the Court subsequently warned us to read with caution: see R. v. Singh, 2014 ONCA 293 at paras. 7-11.

[78] In Vanderbruggen, at paras. 12-14, Justice Rosenberg wrote that as soon as practicable does not mean as soon as possible. Rather, it means that the tests should be administered within a reasonably prompt time in the overall circumstances, having concern for the entire chain of events and bearing in mind the outside limit of two hours. The Crown need not account for what occurred during every minute that the accused was in custody.

[79] In this case, the first sample was obtained approximately one hour and 30 minutes to one hour and 40 minutes after Mr. Chapman had been driving. The second sample was obtained at 3:20 a.m., less than two hours after Mr. Chapman had been driving. Also, over 45 minutes were consumed by PC Paroussoudi's efforts to put Mr. Chapman in contact with counsel.

[80] The police acted reasonably and the samples were taken as soon as practicable. In coming to this conclusion, I note that a delay of 28 minutes between samples was found to be acceptable in Singh.

[81] Mr. Chand also argues that the combination of the 24-minute gap and the variance of 24 mg% between the first and second test results is evidence that the AI was either malfunctioning or operated improperly such that doubt is cast on the reliability of the results. This argument is founded on two premises. First, the fact that Mr. Chapman was not under observation in the interim. Second, the possibility that he burped or belched during that period leading to the presence of mouth alcohol that could have affected the second result. Mr. Chand argues that the Supreme Court of Canada's decision in R. v. St. Onge-Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187 imposes on the police the obligation to observe the subject between tests.

[82] I reject this argument for a number of reasons. First, as PC Andrici explained, the variance to be considered is between the tests results as truncated. In this case, the relevant variance is 20 mg% which, according to PC Andrici, represents good agreement. He was not challenged on that opinion which, I note, conforms with s. 320.31(1)(c). Second, there is no evidence that Mr. Chapman burped or belched in the intervening minutes; it is nothing more than speculation. Third, to my knowledge, there is no observation requirement in Ontario. Even if there is, I agree with the Crown that R. v. Cyr-Langlois 2018 SCC 54, [2018] 3 S.C.R. 456 is a complete answer to this argument in the circumstances of this case. I accept PC Andrici's opinion that the samples were suitable and in sufficient agreement, and that the AI was in proper working order. There had been no error messages and I also accept that he operated it properly. As a result, there is no evidence tending to cast doubt on the results: see Cyr-Langlois, at para. 5 in particular.

[83] The Crown is entitled to rely on the presumptions set out in s. 258(1)(c). The remaining requirements found in s. 320.31(1) of the Code were met by virtue of PC Andrici's testimony and the documents filed as exhibits, the contents of which were not challenged.

Conclusion regarding Over 80

[84] I find Mr. Chapman guilty of the "Over 80" count beyond a reasonable doubt.

Impaired Driving

[85] The Crown must prove beyond a reasonable doubt that Mr. Chapman's ability to operate a motor vehicle was impaired. Impairment need not be extreme. Proof beyond a reasonable doubt of a slight impairment of his ability is sufficient: see R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), at p. 384; aff'd (1993), , 90 C.C.C. (3d) 160 (S.C.C.).

[86] Mr. Chapman became involved in an unexplained single motor vehicle accident while driving at high speeds on the Gardiner. I accept Ms. Cameron's evidence about that, and the fact that he continued to drive for a period of time, past an exit. He exhibited a number of signs of impairment at the scene and thereafter. PC Andrici was of the opinion that his ability to drive was impaired by alcohol, the effects of which were obvious. These included unsteady balance and slurring of speech. I detected the slurring at times in PC Paroussoudi's ICC video as well as the breath room video.

[87] For these reasons, I am convinced beyond a reasonable doubt that Mr. Chapman's ability to operate a motor vehicle was impaired at least slightly by the effects of alcohol.

Conclusion regarding Impaired Driving

[88] I find Mr. Chapman guilty of the impaired driving count beyond a reasonable doubt.

VI. Conclusion

[89] Findings of guilt will be entered on both counts. I would invite the Crown to advise which ought to be stayed pursuant to the rule in R. v. Kienapple (1975), 15 C.C.C. (2d) 524 (S.C.C.).

Released: March 13, 2020

Justice Patrice F. Band