Court File and Parties

Ontario Court of Justice

Date: 2020-10-30

Court File No.: Brampton 3111 998 17 13370

Between:

Her Majesty the Queen

— and —

Jeremy Carmola-Chambers

Before: Justice A. Calsavara

Heard on: September 23 and 24, 2020

Reasons for Judgment released on: October 30, 2020

Counsel:

• H. Rim, for the Crown
• A. Lee, for the defendant Jeremy Carmola-Chambers

CALSAVARA J.:

I. INTRODUCTION

[1] At 1:53 AM on October 29th, 2017 the police found the defendant, Mr. Carmola-Chambers asleep in the driver's seat of an older model, grey Toyota sedan. The vehicle was running, but parked with its front end across a lane of traffic on Derry Road, and its back end remaining in the lot to an industrial unit. The front tires of the sedan were missing. The two front rims were damaged and smaller than normal as if they had been driven on. The front end, underneath the headlights, was damaged. Otherwise, the exterior of the vehicle looked fine. The front windshield was intact.

[2] The police banged on the window of the driver's door, but Mr. Carmola-Chambers did not respond. The top of the window was open by several inches. An officer reached in to unlock the door. Two police officers were then able to rouse Mr. Carmola-Chambers by shaking his shoulder multiple times. He seemed confused and at first incoherent. There were no noticeable injuries to Mr. Carmola-Chambers. No cuts. No bruises. No blood. There was a strong odour of alcohol on Mr. Carmola-Chambers' breath.

[3] Within seven minutes of attending this scene, an officer arrested Mr. Carmola-Chambers for impaired, care or control. Over two hours later, he provided a breath sample into an improved instrument, which registered at 120 mg of alcohol in 100 ml of blood. His second sample resulted in a reading of 113 mg. The Crown called a forensic toxicologist who, using the lowest reading—truncated to 110 mg—placed the defendant's blood-alcohol concentration between 111 mg to 162 mg of alcohol in 100 ml of blood at the time the police found Mr. Carmola-Chambers in care or control of the car. The toxicologist also testified that in this range, he would expect that a person's ability to operate a motor vehicle to be impaired. Subject to the admissibility of the defendant's breath readings, the toxicology opinion on both issues was accepted and unchallenged by the defence.

[4] Mr. Carmola-Chambers was charged with both Over 80 and Impaired Care or Control. A blended trial and Charter voir dire proceeded on these counts. In addition to the forensic toxicologist, the Crown called 3 police witnesses: two who had attended the scene and a qualified breath technician. Mr. Carmola-Chambers called no evidence. In the defence view, the case for the prosecution on both counts rises or falls on the result of the Charter application. The Crown argues it has proven its case on the Impaired count no matter the result of the Charter motion. The Defence seeks exclusion of the breath readings on the basis of several Charter breaches. On behalf of the defendant, Ms. Lee asserts that the administration of justice would be brought into disrepute if the breath readings were admitted. The various breaches alleged can be distilled as follows:

(i) Ss. 8, 9 – no reasonable grounds for the breath demand or the arrest for Impaired Care or Control

(ii) s. 8 – the breath tests were not completed as soon as practicable and thus the warrantless seizure was not prescribed by law

(iii) s. 10(a) – for failing to advise the defendant at the scene of his jeopardy in facing a charge for simple possession of marijuana when it was discovered search incident to arrest for the impaired care or control

(iv) S. 10(b) – for failing to re-advise the defendant of his rights to counsel after completing his breath tests and being advised of the further count of Over 80

[5] For the reasons that follow, I find that Mr. Carmola-Chambers' Charter rights were not violated. If I am wrong in my conclusion concerning Charter compliance, a 24(2) Grant analysis would favour inclusion of the readings. Even if the breath results were excluded—which would likewise render the toxicologist's opinion without factual foundation and without any weight—I would find the defendant guilty of the Impaired Care or Control count.

II. CHARTER CLAIMS

Reasonable Grounds

[6] The defence accepts as fact that Mr. Carmola-Chambers was in care or control of a motor vehicle. The element claimed to be lacking even on a reasonably-based probability standard is that his ability to operate one was impaired. Because of this, both the arrest and the demand were unlawful and his detention arbitrary. The defence, in essence, argues that the arresting officer rushed to judgment and neglected to conduct a more thorough investigation at the scene to rule out other possible explanations for finding Mr. Carmola-Chambers passed out behind the wheel of a running car partially on a major roadway without front tires and damaged rims at 2 AM.

[7] The defendant instead could have simply been tired, had a medical condition, was concussed and was simply trying to get off the roadway. In the defence view, the police should have pursued and ruled out all of these possibilities, citing Chartier v. Attorney General (Quebec), [1979] 2 SCR 474 in support before forming grounds and the absence to do so means the reasonable grounds standard, objectively, has not been made out.

[8] The Crown argues that the information known to the arresting officer together with her observations at the scene—on both an objective and subjective basis—meet the reasonable ground standard to base the arrest and make the breath demand.

[9] There is no question that an investigating police officer must consider all relevant information, as the defence submits—including evidence that points to a non-criminal basis for the circumstances under investigation in the formulation of her grounds for believing a crime has been committed. The police do not, however, have to negative every other possibility—even speculative ones as urged by the defence.

[10] Nor do the police have to deduct indicia from their assessment that could be attributable to some other cause, such as red eyes from fatigue. Justice Durno in R. v. Bush, 2010 ONCA 554, explained the standard in the context of a drinking and driving investigation:

55 In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection": Jacques at para. 23; also Censoni at para. 43. However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable: R. v. McClelland, 1995 ABCA 199, [1995] A.J. No. 539 (C.A.).

56 An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, at para. 21.

57 Consideration of the totality of the circumstances includes the existence of an accident. However, that the accident could have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has to totally eliminate those indicia from consideration: R. v. Duris, 2009 ONCA 740 at para. 2. They have to be considered along with all the other indicia in light of the fact there may be another explanation. To the extent that Uppal determines otherwise, with respect, it was wrongly decided.

58 Here the investigating officer testified that he took into consideration that the respondent had been in an accident. In assessing whether reasonable and probable grounds objectively existed, the trial judge appropriately considered that there had been an accident. However, that there might be another explanation for some of the factors the officer properly took into account in forming his opinion of impairment to drive did not eliminate the indicia or render them unreliable …

[11] In this case, officer Bannock, while acknowledging that certain facts when viewed in isolation might point away from impairment—such as the defendant being passed out behind the wheel could be due to a medical condition—believed that Mr. Carmola-Chambers was impaired on the totality of the information known to her at the time, including:

• At 1:49 AM, she was dispatched to the scene for a 'medical assist' and advised that an anonymous caller reported a grey Toyota (with the specific licence plate) in a live lane at Derry Road West

• The caller reported the vehicle had two missing front tires

• The caller reported that the driver was passed out and the caller tried to knock and wake up the driver

• The car was running

• When the officer attend at 1:54 AM, she located the grey Toyota identified by the anonymous caller with its rear end in a parking lot and the front in a live lane on Derry road, facing northbound

• There were two front tires missing and front end damage

• The two front end rims were damaged as if they had been driven on

• The car was running with keys in the ignition

• Both the headlights and rear lights were on

• A man [Mr. Carmola-Chambers] was the sole occupant and seated in the driver's seat, upright with his hands in his lap apparently asleep

• The driver's door window was down by several inches

• The arresting (along with another officer who separately attended the scene) rapped on the driver's side window and spoke loudly through the open window in an attempt to rouse the driver awake

• The driver remained unresponsive

• When her colleague reached in the vehicle to unlock and open the door, the officer shook the occupant's shoulder multiple times

• It took 30 seconds or more and multiple attempts, but she was able to wake up the driver

• The driver's speech seemed slurred and was incoherent

• The officers demanded that the driver step out of the vehicle, but he didn't and instead reached toward his right hip area near the console

• After demanding that he step out a second time, the officers took hold of the driver's left arm; however the driver grabbed onto the steering wheel with his right hand and would not let go

• The officer pried his right hand off the steering wheel in order to remove him from the vehicle

• The officer noted that the driver was unsteady on his feet when he exited

• The driver's eyes were watery and bloodshot and there was a strong odour of alcohol coming from his breath

• The driver had no visible injuries

• At 2:01 AM the officer formed the opinion the driver was impaired and in care or control of a motor vehicle

[12] This formulation was also objectively reasonable given these circumstances known to the officer: R. v. Storrey, [1990] 1 S.C.R. 241.

[13] I make this finding despite the additional point of contention, raised by the defence, with the arresting officer's observations that Mr. Carmola-Chambers was unsteady on his feet. The defence questioned the reliability of officer Bannock's testimony on this point.

[14] Constable Mageanu—the other officer who attended the scene—testified that Mr. Carmola-Chambers was unbalanced when he came out of the vehicle, but he chalked that up to the defendant having just woken up. He agreed that he did not notice the defendant unsteady or swaying when they walked him back to officer Bannock's cruiser upon arrest and pointed out that he was holding on to the defendant during this walk. This seeming discrepancy with Constable Bannock's evidence might simply be because Mageanu did not notice it at the time or—if he did notice it—make a record of it. It was a short walk. According to officer Bannock it was 10 feet – perhaps up to 20 at the most. Officer Mageanu's memory of the details from the scene was not great. This may be because he testified some three years after the events in question and his notes of what transpired at the roadway were not recorded until three hours after the fact. His poorly prepared notes were ineffectual as an aide to remembering. Whereas, Constable Bannock's memory of the investigation— at least while still at the roadway and about the grounds for the arrest —was precise, descriptive and reliable.

[15] In my view, with or without Bannock's observation of the defendant being unsteady or swaying, the grounds to support her belief that Mr. Carmola-Chambers found himself in the position that he was in at 1:53 AM, asleep at the wheel of a car with a running engine with missing front tires and damaged rims because his ability to operate a motor vehicle was impaired—even if just slightly—by alcohol were overwhelming.

[16] The smell of alcohol is indicative of consumption. Added to that, is Mr. Carmola-Chambers was fast asleep at the wheel of a car with its engine running, partly on the roadway. There was an apparent unexplained traffic mishap that resulted in Mr. Carmola-Chambers losing his front tires not at the place the police discovered him but elsewhere. His front rims appeared to be driven on. Despite all of this, the defendant was in a sleep deep enough that the police had trouble waking him up. An anonymous caller—whose information proved reliable—also tried (unsuccessfully) to wake up the defendant some five minutes or more earlier. Once they did wake him, Mr. Carmola-Chambers was confused and incoherent. His eyes were red and bloodshot; and yet, the evidence did not suggest a serious collision, with airbags deployed and a broken windshield which might account for Mr. Carmola-Chambers being 'concussed' as Ms. Lee on behalf of the defendant put it as opposed to being passed out from—at least in part—alcohol consumption. Mr. Carmola-Chambers was not suffering from any obvious injuries. That the officer formed the opinion that these circumstances were explained by the consumption of alcohol and that Mr. Carmola-Chambers' ability to operate a motor vehicle was impaired due to that consumption was an obvious and reasonable conclusion.

[17] The Crown has proved that the arrest and breath demand were lawful and in compliance with s. 8 of the Charter. Because of this finding, the defence claim under s. 9 of the Charter that Mr. Carmola-Chambers was arbitrarily detained on account of this arrest fails.

As Soon as Practicable 'ASAP'

[18] Is a failure to take an accused's breath sample "as soon as practicable" a breach of s. 8 of the Charter as the defence submits? Or, as the Crown argues, does it simply disentitle the prosecution to an evidentiary shortcut—in transitional cases—to prove blood-alcohol concentration for an offence under s. 253(b)? There is a debate at the trial level over this issue and it continues despite Parliament's re-write of the drinking and driving provisions in Bill C-46.

[19] This debate continues despite the fact that this 'ASAP' was seemingly put to rest with C-46 amendments since the elements to the drink drive offences have completely changed making it unnecessary for the crown to rely on the presumption of identity. What the defendant's BAC is 'at the time of or care or control' is no longer an element of the offence – but if as the defence posits, 'ASAP' on the taking of the samples is a precondition to admissibility under s. 8 search and seizure principles, then despite Parliament's re-write, litigation over its proof in impaired prosecutions will continue to be routine.

[20] Justice Fiorucci in R. v. Fancey, 2018 ONCJ 657 and more recently Justice Doody in R. v. Pillar, 2020 ONCJ 394, have both thoroughly discussed this debate and helpfully reviewed cases in support of each position. While there are nuances among the perspectives, the competing conclusions can be generalized.

[21] Those who espouse the former interpretation point to first principles of s. 8 search and seizure law. A warrantless search is presumptively unreasonable. A search will be reasonable if it is: prescribed by law, the law is reasonable and the manner in which it was carried out was reasonable: R. v. Collins, [1987] 1 S.C.R. 265. When the preconditions are met, s. 254(3) [now s. 320.28] empowers the state to seize breath samples. Just what those preconditions are is the centre of this debate. The relevant portion of s. 254(3) reads:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or …

[emphasis added]

It is argued that both clauses which cite the phrase "as soon as practicable" are preconditions to a valid seizure and hence preconditions to a constitutionally-compliant warrantless seizure.

[22] Moreover, proponents of this view point to the provision's aim of forcing a prompt police investigation—and hence minimizing state interference with liberty—as recognized in R. v. Deruelle, [1992] 2 S.C.R. 663 as a rationalization to expand the interpretation of s. 253(4) in this way.

[23] Those holding the competing view would say that the only 'as soon as practicable' requirement in s. 253(4) on the state relates to the timing of the demand – not to the taking of the samples. The second reference to 'as soon as practicable' relates to what the accused is obliged to do; or looked at another way, 'what' and 'how' the state is entitled to obtain. Those from this camp, assert that the reasonableness of the seizure and the minimization of the state interference with liberty is addressed by the preconditions to a valid demand which are explicit in the section, including the requirement that there be reasonable grounds.

[24] The only appellate authority binding in Ontario that is directly on point is Justice André's decision in R. v. Mawad, 2016 ONSC 7589. There the appellant was convicted of Over 80 at trial, in a case like this one, where the Crown could not rely on the presumption of identity because too much time had passed before the breath samples were taken; and instead called a toxicologist to prove the blood alcohol concentration at the material time. During the trial, the defence challenged the constitutionality of the seizure on the basis—principally—that the officer did not make the demand as soon as practicable and secondly failed to take the samples as soon as practicable.

[25] In the end, the trial judge found the police breached Mawad's s. 8 rights by failing to make a timely demand and noted that this breach was aggravated by the fact that the police failed to ensure the samples were taken as soon as practicable but made no specific finding that the time it took to take the samples was in and of itself a breach (and ultimately admitted the samples under 24(2)). The failure to make this specific finding—that is that the untimeliness in taking the samples is a s. 8 breach—proved to be a ground of appeal, putting this issue squarely before André J.

[26] In dismissing the appeal, Justice André essentially found that the taking of samples "as soon as practicable" is not a pre-condition in order for the seizure to be prescribed by law and hence not a precondition to admissibility and after reviewing the authorities—including importantly Deruelle —ultimately commented in a purposive analysis at paragraph 26, "…I fail to see how a statutory short cut given to the Crown to prove a charge of 'Over 80' against an accused can be elevated to a violation of his or her constitutional rights."

[27] Ms. Lee on behalf of Mr. Carmola-Chambers submits that because Justice André referred only to the statutory shortcut in his decision and never quoted from s. 253(4) he never considered that provision in dismissing the appeal and the case is therefore not binding authority. I disagree that there is this distinguishing aspect. The issue on appeal in Mawad is exactly the same as the Charter complaint raised by Mr. Carmola-Chambers. Mawad is binding on me.

[28] In any event, I disagree with my colleagues who suggest Mawad was wrongly decided. The authorities are clear on what constitutes a lawful demand as prescribed by s. 254(3)—and hence a seizure prescribed by law. In R. v. Wylie 2013 ONCA 673 the Summary Conviction Appeal judge overturned a conviction finding that 'details concerning the demand such as who gave it, what was said, and when and where the demand was made' are necessary elements the Crown must make out to prove a lawful demand. The Court of Appeal sent this clear reminder in swiftly granting the Crown appeal:

All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the "who, what, where and when" of the demand.

[emphasis added]

Justice André's comments in Mawad reflect that the constitutionality of the breath demand is already addressed by the requirements in 253(4) of 'reasonable grounds' and a timely demand. Implicit in his decision is a finding that the second reference to "as soon as practicable" in 253(4) is not a precondition to a lawful demand or seizure. This interpretation of the judgment is made all the more clearer with André J.'s concluding comments relating to this ground at paragraph 27, where he stated, "…[t]he subsequent failure to take the breath samples as soon as practicable does not amount to an unreasonable search and seizure given that the arresting officer and breathalyzer technician had the requisite grounds to make the breathalyzer demand … [t]he situation may have been different had they lacked the grounds to make the demand."

[29] In the context of a Charter s. 8 analysis of the preconditions to a valid demand, the Court of Appeal in R. v. Guenter, 2016 ONCA 572 had the opportunity to again reiterate its reminder in Wylie of what constitutes a valid demand:

89 Given the close inter-relationship between the operation of s. 254(3) and the need for officers to ensure that a detained person can exercise his s. 10(b) rights in a meaningful way, linking the making of the demand to the timing of the detention has a certain practical attractiveness. But that is not how s. 254(3) reads. As this court held in R. v. Wylie, 2013 ONCA 673, 51 M.V.R. (6th) 1, at para. 10: "All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the 'who, what, where and when' of the demand." Moreover, the larger objective of the Criminal Code's breathalyzer scheme of forcing prompt police investigation was held to be promoted by the three hour limit in s. 254(3): Deruelle, at p. 672.

[emphasis added]

Justice André's decision in Mawad is an application of these authorities. He declined to read in an additional requirement on the police in order to achieve Charter compliance.

[30] Furthermore, as I see it, the interplay between s. 258(1)(c) (the presumption of identity/evidentiary shortcut) and s. 254(3) (the law which prescribes the seizure of breath samples) is further proof that the taking of the sample as soon as practicable is not a condition-precedent to a lawfully obtained seizure. This revelation can be observed in the opening passage of the presumption of identity section in paragraph (c):

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3),

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) [Repealed before coming into force 2008, c. 20, s. 3.]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses;

[emphasis added]

Subsumed in that opening passage to clause (c) is that a sample has been obtained lawfully pursuant to section 254(3)—without specifically referencing the preconditions of reasonable grounds or a timely demand but then goes on to add the extra 'ASAP' component as a threshold for the Crown to make use of this evidentiary shortcut. If the taking of the samples as soon as practicable was already a requirement to a lawful seizure within s. 254(3), then Parliament would not have needed to refer to this extra 'ASAP' component; it would have been subsumed by reference to 254(3) along with the other components to a lawful seizure: reasonable grounds and that the demand be made as soon as practicable. As Justice André aptly put, I too "fail to see how a statutory short cut given to the Crown to prove a charge of 'Over 80' against an accused can be elevated to a violation of his or her constitutional rights".

[31] Accordingly, since the section does not oblige the police to pass this added ASAP threshold, and given my findings on the reasonable grounds issue, the Crown has shown that Mr. Carmola-Chambers' breath samples were taken pursuant to a lawful demand made pursuant to s. 254(3). The seizure of breath was prescribed by law and in compliance with s. 8 of the Charter.

Samples were not taken ASAP

[32] Although not necessary to decide this case since the Crown is not relying on the presumption of identity, I find in applying the test in R. v. Vanderbruggen, [2006] O.J. No. 1138 (Ont. C.A.), that the Crown failed to establish that the police obtained Mr. Carmola-Chambers' breath samples as soon as practicable. And if I am wrong in my conclusions above on the interpretation of the 'second ASAP' in s. 254(3), then this would constitute a breach under s. 8 of the Charter.

[33] The overall 'delay' between the time of the offence and the time of the taking of the first sample is just over two hours. Although there is a time while the arresting officer remained at the scene with the defendant, she explained that after the arrest, reading of rights, cautions and the demand she dedicated time at the scene to completing her notes. As I have already pointed out, officer Bannock's notes proved to be a good aide in helping her recollect an event that took place 3 years prior. It is appropriate in a criminal investigation for an officer to make timely and careful notes.

[34] In my view, the crucial period that is of concern given the overall time period is the 27 minutes from 2:41 when officer Bannock arrives at the division to 3:08 when officer Bannock and Mr. Carmola-Chambers enter the booking hall. An overall timeline is included below.

[35]

Timeline

• 1:54 police arrive on scene
• 2:01 police officer forms opinion accused is in CorC and his ability to operate MV is impaired by alcohol, makes arrest
• 2:03 arresting officer reads RTC and caution
• 2:12 breath demand
• 2:13 tow arrives; arresting officer preparing notes in cruiser
• 2:16 QT advised he is required for this investigation
• 2:22 arresting officer informed that QT available at 12 division and that is where tests will take place
• 2:22 arresting officer continues to prepare notes
• 2:30 arresting officer leaves the scene with the defendant
• 2:41 arresting officer arrives at 12 division sally port with the defendant
• 2:46 assisting officer (Mageanu) leaves scene – he remained there to take care of tow and drove around vicinity looking for a secondary scene to check for other damage
• 2:59 assisting officer (Mageanu) arrives at 12 division
• 3:08 defendant and officer Bannock enter booking room (until then unexplained delay in sallyport for 27 minutes)
• 3:12 officer Mageanu seen on booking video while defendant and arresting officer there – appears to be making a phone call & Mageanu looking in lawyer's book while in booking area
• 3:17 message left for lawyer of choice
• 3:21 message left for 2nd lawyer of choice at the request of the defendant
• 3:23 to 4:00 AM defendant spoke to lawyer of choice for 37 minutes
• 4:00 AM defendant brought into breath room
• 4:09 1st breath test into Intoxilyzer
• 4:31 2nd breath test
• 4:34 exit breath room
• 4:37 defendant advised of additional charge of possession of marijuana

[36] Essentially, the Crown was unable to offer reliable evidence about why there was a 27 minute delay of time before the defendant was brought into the police station. Critically, Officer Bannock did not continue to make careful and detailed notes after she left the scene. She made no notes to account for this time period in this investigation and it is not at all surprising that she would fail to remember three years later. Offered up as an assumption, officer Bannock suggested that another arrested party must have been in the booking area, causing her to wait with the defendant in the cruiser at the detachment sally port. She admitted she had no memory of this and as stated no note but indicated—according to her practice—it would be the only reason. Officer Bannock added that she would receive a call when the booking area was clear. No one would have to come out to get her.

[37] Officer Bannock's explanation of her typical approach might have tipped the balance in finding that the Crown adequately accounted for the time period, except that when presented with video of the division, showing officer Mageanu—who left the scene long after her and in fact arrived at the division after her—enter the sally port from the division gesturing for her to come in, she seemed genuinely surprised. Because of this, I cannot rely on her 'assumption' that someone else was in the booking hall causing this 27 minute lag as evidence to account for this delay.

[38] Officer Mageanu does not assist the Crown either. In fact, he did not recall being in the cells area at all and thought that officer Bannock and the defendant were already booked and in the breath room by the time he arrived at the police station. He had zero recollection of any contact with Bannock and the defendant in the booking hall until presented with footage from the booking area while the defendant was being booked. He too seemed generally surprised. Moreover, he testified that in his experience, it only takes about 15 minutes to book a detainee—not 27 minutes.

[39] However, as I said above, in my view even if there is a timeliness requirement in the taking of the samples on the police because it is read into s. 254(3) or because of s. 498 release obligations or other basis, it would not be the Vanderbruggen 'ASAP' test that applies. The Court in Vanderbruggen specifically speaks to the 'ASAP' provision being designed to expedite trial and aide in proof, noting, "we are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence."

10(a) relating to the seizure of marijuana

[40] Following Mr. Carmola-Chambers' arrest, Officer Mageanu performed the search and pulled from the defendant's pocket an envelope. The envelope contained a small amount of marijuana. Nothing was said to Mr. Carmola-Chambers or even to officer Bannock of this at the time. Officer Mageanu simply held on to it and advised officer Bannock of this finding later at the station. On the basis of this information, Officer Bannock decided the defendant would be charged with simple possession of this drug under the Controlled Drugs and Substances Act and asked Officer Mageanu to so advise the defendant and at 4:37 AM, shortly after the breath tests were completed the defendant was advised of this additional charge.

[41] The defence claims that the failure to advise Mr. Carmola-Chambers at the scene breached his rights under s. 10(a) of the Charter.

[42] The Crown asserts that the possession of this drug had nothing to do with Mr. Carmola-Chambers detention or arrest and played no part in the investigation that night and as such there was no requirement to specifically advise him of this charge. His jeopardy never appreciably changed as a result of this seizure. Still the police did re-read the defendant his rights to counsel upon informing him of this additional charge.

[43] The protection afforded by s. 10(a) is designed to ensure the detainee is generally informed of the reason so she or he can decide whether to submit to it and understand her or his jeopardy. It also ensures the individual can meaningfully exercise rights to counsel: R. v. Evans, [1991] 1 S.C.R. 869; R. v. Roberts, 2018 ONCA 411. On this record, far from being the reason for detention or arrest, there was near zero focus on the marijuana. In any event, the police did not decide to charge him with this offence until after the investigation was over and there is no evidence the police investigated anything but an alcohol related impaired driving offence that early morning.

[44] If I am wrong in my conclusion that there was no breach under s. 10(a) relating to this marijuana charge, the state misconduct would be of the most trivial variety and one which on the evidence had no impact on the defendant.

[45] Parenthetically, I note that the Crown did not proceed on this charge.

10(b) relating to the added over 80 charge

[46] After Mr. Carmola-Chambers gave his samples, resulting in readings showing his blood alcohol concentration was in excess of the legal limit, the police advised him he would be charged with 'Over 80'. As is customary upon the failure of the Intoxilyzer test, this charge was added to the Impaired Care or Control charge Mr. Carmola-Chambers was advised of upon arrest. Furthermore, he had already received legal advice for about 37 minutes during a phone call with his lawyer between his arrest for a drinking and driving related charge and the seizure of his breath (which led to the second drinking and driving related charge).

[47] Ms. Lee asserts that this amounts to a change in jeopardy and the police were obliged to re-inform the defendant of his rights to counsel. To my knowledge there is no case which supports this assertion and I do not accept, on the basis of the cases noted above under the s. 10(a) analysis nor pursuant to R. v Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 that Mr. Carmola-Chambers' jeopardy changed requiring an opportunity to re-consult with counsel.

[48] Mr. Carmola-Chambers has failed to establish any s. 10(b) violation.

s. 24(2) of the Charter

[49] If I am in error in my assessment of the ss. 8, 9 Charter claim and the state did breach Mr. Carmola-Chambers' rights, then the breath readings were obtained in a manner that infringed his right to be free from unreasonable search and seizure, unlawful arrest and arbitrary detention. Despite this, in applying the Grant analysis, I find that the applicant/defendant has failed to establish that the admission of the breath samples into evidence at trial would bring the administration of justice into disrepute.

(i) the seriousness of the Charter-infringing state conduct

[50] If the police ran afoul of the reasonable grounds requirement in arresting the defendant and making a breath demand, it was by a small margin. Not uncommonly reasonable people disagree on the application of this standard on a given set of facts. If it was in error, that the officer in this case believed Mr. Carmola-Chambers committed this drinking and driving related offence it was an honestly-held believe. Her evidence, in articulating her grounds for the arrest showed she appreciated the requirements of s. 254(3) and the reasonable grounds standard. The error, if any, was in its application in the moment, keeping in mind that the police must make quick but informed decisions concerning grounds in drinking and driving investigations.

[51] If there is a s. 8 breach because the taking of breath samples must be done as soon as practicable for it to be a constitutionally-compliant seizure, then, in my view, this was not a serious breach. The police acted in good faith. The evidence discloses the police were alive to the need to be timely in their investigation. Indeed, it was to their benefit to obtain the first sample within two hours of their attendance at the scene in order to avail the state of the presumption of identity—even though they missed that mark in the end. Moreover, given the judicial debate on this 'ASAP' issue at the trial level and the ambiguity in the law, how can it be said the police were not acting in good faith?

[52] The first Grant factor favours the admission of the evidence.

(ii) the impact of the breach on the accused's Charter-protected interests

[53] The taking of breath samples is minimally intrusive and generally evidence of this kind taken in a manner that infringed a detainee's rights favours inclusion: R. v. Jennings, 2018 ONCA 260 paras 30-32. However, that said, given that Mr. Carmola-Chambers spent not just a typical amount of time under police confinement given an arrest of this nature, but spent over 2.5 hours in police custody at least in part due to the police untimeliness (whether or not it in and of itself is a breach) makes the impact of an unlawful arrest on the accused all the more profound. Given those facts, assuming a finding that reasonable grounds to make the arrest was lacking, the impact is, on the scale, just serious enough to favour exclusion under this Grant factor.

(iii) society's interest in the adjudication of the case on the merits

[54] This factor favours admission. The breath results are reliable and essential evidence for the prosecution in proof of the Over 80 charge and important evidence for the impaired count—given the opinion evidence of the toxicologist.

[55] Since the state conduct was not serious, the impact on the defendant is at most marginally serious, and the importance of this evidence to the prosecution, the defence has failed to establish that the evidence ought to be excluded.

III. IMPAIRED COUNT

[56] For the reasons I stated in my assessment of the evidence during the 'reasonable grounds' assessment at paragraph 16, as well as a few additional points I will note, the Crown has shown that Mr. Carmola-Chambers' ability to operate a motor vehicle was slightly impaired by the consumption of alcohol at the time the police found him in care or control even without the resort to his breath readings and evidence of his blood-alcohol concentration.

[57] In my view, the conclusion that Mr. Carmola-Chambers was in the position that he was in at 1:53 AM, asleep at the wheel of a car with a running engine with missing front tires and damaged rims because his ability to operate a motor vehicle was impaired—even if just slightly—by alcohol is the only reasonable inference that arises from the evidence or lack of evidence.

[58] Before returning to the division, the assisting officer Mageanu drove around the area looking for a secondary scene. Given the damage to the defendant's car, he searched to see if there was property damage nearby, such as to a bus shelter or a pole. The officer tracked marks on the road leading from the defendant's car westbound on Derry for up to 3-4 km but found no 'accident' scene. The officer also saw pieces of rubber on the roadway, about 8-900 metres from the car.

[59] Additionally, as noted the defendant's front tires were missing and the two front rims appeared to have been driven on. There was front end damage below the headlights. When the police discovered him, Mr. Carmola-Chambers had the vehicle positioned perpendicular to Derry Road with the front end of the car in a live lane. After an unexplained traffic mishap, I find that Mr. Carmola-Chambers continued to drive.

[60] When the police found him, he was seated upright and in a sleep so deep, the police had trouble waking him until an officer shook him several times. Mr. Carmola-Chambers displayed signs that this 'impaired condition' was due at least in part to alcohol consumption. His breath smelled of alcohol, his eyes were red and watery, and he was unsteady when exiting the vehicle.

[61] Given the totality of these facts, what other reasonable inferences could be drawn other than alcohol was a cause of this condition?

[62] The defence argues that the Crown has not negated other possibilities, suggesting he could have simply been suffering from severe fatigue due to shift work or other reason or had a significant medical condition that accounted for these circumstances.

[63] Mr. Carmola-Chambers may well have been extra fatigued for some non-alcohol related reason, but given the totality of circumstances, it is inescapable that alcohol was a factor in his condition.

[64] Ms. Lee on behalf of the defendant moreover posits that the Crown has not negated the inference Mr. Carmola-Chambers had a medical condition that led to the circumstances he found himself in that early morning; however, there is no evidence of such an extreme medical issue that was operative here. There is no positive evidence of a medical condition. He was not suffering from any injuries apparent to the police officers. There is no evidence he was provided food or medical treatment during the two and half plus hours he was in police custody.

[65] While it is true that inferences alternative to guilt can be drawn from the lack of evidence, they still must be reasonable ones. Every speculative suggestion need not be negated. Cromwell J.'s remarks in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 are apposite:

37 When assessing circumstantial evidence, the trier of fact should consider "other plausible [page1020] theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd , [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[66] The possibilities must be reasonable. The possibility that these circumstances were caused by a medical condition not related—at least in part—to the voluntary consumption of alcohol is speculative.

[67] I am sure Mr. Carmola-Chambers' ability to operate a motor vehicle was impaired due to the consumption of alcohol, at least to a slight degree.

IV. CONCLUSION

[68] There is a finding of guilt on both the over 80 and Impaired Care or Control count.

Released: October 30th, 2020

Signed: Justice A. Calsavara