COURT FILE NO.: 86/12

DATE: 20121219

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty The Queen v. Laura Cazzola

BEFORE: Mr. Justice Kenneth L. Campbell

COUNSEL: Stephania Fericean, for the Crown, respondent

Graeme A. Hamilton, the accused, appellant

HEARD: November 21, 2012

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Introduction

[1] The appellant, Laura Cazzola, was tried by the Honourable Madam Justice M. Hogan of the Ontario Court of Justice on charges of impaired driving and operating a motor vehicle with a blood alcohol level in excess of 80 mgs. The offences were both alleged to have been committed in Toronto on June 12, 2011.

[2] The trial proceeded as a blended proceeding. The accused brought a motion to have the results of her breath samples excluded from evidence as a result of alleged violations of her rights under ss. 8 and 9 of the Charter of Rights, on the basis that the investigating police officer did not have reasonable and probable grounds to demand samples of her breath. The appellant also argued that her breath samples were not taken “as soon as practicable” as required by s. 258(1)(c)(ii) of the Criminal Code, R.S.C. 1985, chap. C-46. At the conclusion of the evidence, the Crown invited the trial judge to dismiss the impaired driving charge, and the appellant was acquitted on that charge. Accordingly, the parties advanced their closing arguments only in relation to the “over 80 mgs.” charge.

[3] Ultimately, on June 13, 2012, the trial judge delivered oral Reasons for Judgment in which she concluded that: (1) the appellant’s breath samples had been taken as soon as practicable; (2) the police officer had the necessary reasonable and probable grounds to make the demand for samples of the appellant’s breath and, accordingly, there was no violation of the appellant’s constitutional rights under the Charter; and (3) the Certificate from the breath technician, showing that the appellant’s Intoxilyzer readings were 110 and 100 mgs. of alcohol, established the guilt of the appellant regarding the “over 80” charge. In the result, the appellant was sentenced to the minimum fine of $1,000 and the mandatory one year driving prohibition.

[4] The appellant now appeals against her conviction. The appellant argues, essentially, that the trial judge misapprehended the evidence in such a way as to lead her to err in concluding that the police officer had the necessary reasonable and probable grounds, and err in concluding that her breath samples were taken as soon as practicable.

B. Overview of the Facts

1. The Testimony of the Taxi Driver

[5] Nagau Hailu, a taxi driver, testified that, at approximately 2:00 a.m. on June 11, 2011, he was stopped at a red light at the intersection of Bloor and Bathurst Streets in Toronto. He had been fully stopped at the intersection for approximately two seconds when he was suddenly rear-ended by a vehicle driven by the appellant.

[6] According to Mr. Hailu, when he got out of his vehicle and went to speak to the appellant to ask her “what happened” and obtain her driver’s license and insurance documents, the appellant did not verbally respond to his inquiries and appeared to be “frozen.” Eventually, when he asked again, a passenger in the vehicle provided him with the appellant’s documents. Mr. Hailu testified that he smelled alcohol coming from the vehicle and told the appellant that he was going to call the police.

[7] Mr. Hailu testified that he called the police and indicated over the phone that he thought the appellant was “drunk.” He based this conclusion on the smell of alcohol and the abnormal behaviour of the appellant.

2. The Testimony of the Investigating Police Officer

[8] In the early morning hours of June 12, 2011, Constable Dean Rheault, of the Toronto Police Service, was working alone, in uniform, on the 14 Division Traffic Response Unit, in a marked police car. This was his regular unit, and he was responsible for responding to reports of collisions, and conducting vehicle-associated investigations, including impaired drivers. Constable Rheault testified that he received the radio call in relation to this particular collision at 2:32 a.m. and he arrived at the scene of the collision at 2:43 a.m.

[9] Constable Rheault testified that upon his arrival he went to speak to the appellant, who was still seated in her vehicle, which was still located directly behind the taxi. The appellant was quite slouched down in the driver’s seat and she did not appear to be very alert. Constable Rheault smelled a strong odour of alcohol coming from the inside of the vehicle and noticed that the appellant’s eyes were bloodshot, glossy and slow moving. When he spoke to the appellant, he noticed that her speech was slow and slurred.

[10] When Constable Rheault engaged the appellant in conversation, she told him that she was coming home from a “club” where she had consumed three beers. When asked for her vehicle documentation, the appellant replied that the other driver (Mr. Hailu) had those documents.

[11] Constable Rheault then went to speak to the taxi driver. Mr. Hailu provided the officer with his account of the events, explaining how he had been stopped at the red light when he was struck from behind by the appellant. He provided the officer with the appellant’s documents. Mr. Hailu told the officer that the appellant was “drunk.” The officer continued his investigation by securing similar documentation from Mr. Hailu.

[12] With the assistance of their respective documentation, Constable Rheault then ran both the appellant and Mr. Hailu through the police information system. He completed his investigation by examining the vehicles and observing the relatively minor damage done to the front of the appellant’s vehicle and the rear of the taxi cab driven by Mr. Hailu. Constable Rheault testified that, at that point, he thought that he had reasonable and probable grounds for his belief that the appellant’s ability to operate a motor vehicle was impaired by alcohol. He articulated his grounds as including the strong smell of alcohol, the appellant’s admitted consumption of alcohol, his observations as to her bloodshot and glossy eyes and the slow movement of her eyes, her slow and slurred speech, and the nature of the collision. Indeed, Constable Rheault thought that the appellant was “quite intoxicated.”

[13] At that point, the officer made a number of calls. First, Constable Rheault called his dispatcher in order to determine if another unit could be sent to the scene to complete the collision investigation so that he could proceed with the arrest of the appellant and transport her back to the police station. However, that night was “extremely busy” with “many pending calls” and he was told that all of the other units were tied-up and not available to attend. Constable Rheault then asked the dispatcher to contact “Traffic Services” to see if they could send someone to assist in the continuing investigation. Traffic Services is a support unit that deals with traffic-related issues and can usually lend assistance when required. However, Constable Rheault was advised that this unit was also “extremely busy” and had no one available to attend at the scene to assist.

[14] Constable Rheault then proceeded to the appellant’s vehicle, had her exit the vehicle, and walked her over to the police car. He engaged the appellant in conversation and used the opportunity to observe her walking. At 2:54 a.m., Constable Rheault placed the appellant under arrest, placed her in the rear of his police car, and advised her of her right to counsel. The appellant declined the opportunity to consult with a lawyer. The officer then made a demand that the appellant provide him with samples of her breath and accompany him for that purpose. The appellant appeared to understand, and replied affirmatively.

[15] Thereafter, Constable Rheault spoke to the two female passengers in the appellant’s vehicle and arranged for them to leave the scene. He wanted to ensure that they were safely off the road. At some point a tow truck had arrived and offered to tow the appellant’s vehicle. Given that Constable Rheault could not get anyone else to attend at the scene to deal with the collision, the officer agreed to permit the tow truck to transport the appellant’s vehicle to Traffic Services so that he could transport the appellant “as quickly as possible” to a breath technician. Once the appellant’s vehicle was hooked-up to the tow-truck, Constable Rheault left the scene of the accident at 3:07 a.m. He drove the appellant to the closest Traffic Services facility, approximately five kilometers away, arriving there at 3:17 a.m.

[16] Following a brief delay in the sally port, Constable Rheault took the appellant into the booking area at 3:21 a.m. The appellant was again advised of her right to counsel, indicated that she understood the right, and declined the opportunity to speak to counsel. In their closing arguments, the parties agreed that it likely took approximately five to seven minutes for the appellant to be processed through the booking area.

[17] As soon as the appellant left the booking area, Constable Rheault spoke to the appellant again about her right to counsel and the possibility of speaking to “duty counsel.” As the appellant seemed unsure about whether or not she should speak to duty counsel, Constable Rheault placed a call to duty counsel on her behalf. The officer explained that he wanted to ensure that there was no doubt in the appellant’s mind about the upcoming breath tests and that she was “fully informed” about her rights. The appellant accepted this opportunity when it was provided to her. While the officer did not have a note as to the exact time that he placed the call to duty counsel, Constable Rheault testified that the phone was right outside the door to the booking area and he would have placed the call “right away” as he did not want to delay things.

[18] Constable Rheault testified that, at 3:51 a.m., duty counsel returned the call and spoke to the appellant privately for approximately five minutes. Once the call was completed, the officer took the appellant into the breath room, which was across the hall, at 3:56 a.m. and placed the appellant before a qualified breath technician.

[19] According to the Certificate of a Qualified Breath Technician, the appellant subsequently provided two samples of her breath directly into an Intoxilyzer 8000C, an approved instrument. More particularly, at 4:04 a.m. she provided her first breath sample, which revealed she had a blood alcohol level of 110 mgs. At 4:26 a.m. the appellant provided her second breath sample, and analysis showed that she had a blood alcohol level of 100 mgs.

C. Analysis

1. Introduction

[20] The appellant argues that the trial judge seriously misapprehended the evidence in relation to two important issues, namely, whether or not Constable Rheault had the necessary reasonable and probable grounds to believe the appellant’s ability to operate a motor vehicle was impaired by alcohol, and whether or not the appellant’s breath samples were taken “as soon as practicable.”

2. The Applicable Legal Standard – Alleged Misapprehensions of Evidence

[21] Arguments about alleged misapprehensions of evidence may involve allegations that the trial judge failed to consider evidence relevant to a material issue, was mistaken about the substance of the evidence, or failed to give proper effect to the evidence. However, to secure relief on appeal, it is not enough for an appellant to simply demonstrate that a trial judge misapprehended the evidence in any of these ways. Rather, an appellant must establish some link or nexus between the alleged misapprehension of the evidence and the core elements of the judge’s reasoning process that resulted in the appellant’s conviction. Accordingly, where it is argued on appeal that the trial judge misapprehended the evidence, the appeal court must: (1) determine whether the alleged misapprehension of the evidence has been established; and (2) whether any misapprehension of the evidence led to an unreasonable verdict or caused a miscarriage of justice. See: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at pp. 538-541; R. v. Wadforth (2009), 2009 ONCA 716, 247 C.C.C. (3d) 466 (Ont.C.A.) at para. 79-81. In R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, Binnie J., in delivering the judgment of the unanimous Supreme Court of Canada, described this as a “stringent standard,” noting at para. 2:

The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.

3. The Alleged Misapprehension Regarding the “Reasonable and Probable Grounds”

[22] The appellant accurately notes that, in concluding that the investigating police officer possessed the necessary reasonable and probable grounds to demand breath samples from the appellant, the trial judge focused on the various indicia of alcohol impairment said to have been observed by Constable Rheault, as confirmed by the observations of the taxi driver, Mr. Hailu.

[23] According to the appellant, however, the trial judge erred in failing to expressly consider the significance of the available video evidence, which showed that: (1) at the road-side, the officer allegedly made his observations concerning the appellant in darkness and over the course of only some 55 seconds; and (2) in the breath room, the appellant does not display all of the indicia of alcohol impairment allegedly observed at the road-side by the police officer. According to the appellant, had the trial judge properly considered this important video evidence, she would have concluded that it cast real doubt on the veracity of the testimony of the police officer, and would have caused the trial judge to reach a different conclusion as to whether the police officer possessed the necessary reasonable and probable grounds to believe the appellant was impaired.

[24] While the trial judge did not expressly refer to the available video evidence in her Reasons for Judgment in this case, I am not satisfied that the trial judge failed to consider this evidence, was mistaken about the substance of this evidence, or otherwise misapprehended the nature or potential significance of this evidence.

[25] The video evidence of the recorded events at the roadside and subsequently in the breath room was played in open court in the presence of the trial judge during the cross-examination of Constable Rheault. Accordingly, the trial judge could not have failed to view the evidence. Further, at trial, the appellant relied upon aspects of this video evidence in an effort to undermine the overall credibility and reliability of the evidence of Constable Rheault as to whether or not he had the necessary reasonable and probable grounds to believe the appellant was impaired by alcohol at the time of the accident. Accordingly, the trial judge could not have failed to understand the potential relevance and significance of this evidence from the perspective of the appellant. Nevertheless, in her Reasons for Judgment, it is clear that the trial judge accepted the testimony of Constable Rheault. In these circumstances, the only reasonable inference that can be drawn is that Hogan J. did not think that the video evidence undermined the credibility and reliability of Constable Rheault.

[26] Having carefully reviewed the video evidence in this case against the background of the other evidence in this case, in my view the trial judge did not err in reaching this conclusion or in failing to expressly mention it in her Reasons for Judgment. More particularly:

• Roadside Lighting Conditions - Observations of the Appellant: In giving his testimony as to his observations of the appellant at the roadside, Constable Rheault did not report any difficulty making the observations he did as to the appellant’s various indicia of impairment. The officer explained that there was “artificial lighting in the area” which appeared to be in “proper working order.” Further, it was never suggested to Constable Rheault in cross-examination that it was too dark for him to make his observations of the appellant. This is explained by viewing the video evidence. The video recording of this roadside interaction shows that it took place at night but in very well-lit conditions. The intersection appears to be a busy downtown location, notwithstanding the late hour, and there is considerable artificial light emanating from the traffic lights at the intersection, the surrounding store lights and the headlights from the passing vehicular traffic. The video recording clearly shows Constable Rheault standing right next to the driver’s door and talking to the appellant. At times, Constable Rheault appears to lean into the appellant’s vehicle through the driver’s window. In any event, from the video recording of this interaction, it is apparent that Constable Rheault and the appellant were in very close proximity during this period and, given the lighting conditions, the officer would have had no difficulty making the observations he claimed to have made in his testimony.

• The Time for Roadside Observations – 55 Seconds: While the roadside video of the interaction between Constable Rheault and the appellant establishes that the officer formed his grounds for arrest quickly, within a period of just 55 seconds, the indicia of impairment Constable Rheault observed would have been almost immediately apparent to the officer. As already noted, Constable Rheault summarized his grounds for believing the appellant was impaired as including the strong smell of alcohol, the appellant’s admitted consumption of alcohol, her glassy, bloodshot and slow-moving eyes, her slow, slurred speech, and the nature of the collision. All of these observations could have been made by Constable Rheault very quickly, and certainly within 55 seconds, especially given that the officer thought that the appellant appeared to be “quite intoxicated.” Of course, accepting the testimony of Constable Rheault, as the trial judge did, there could be no doubt that the officer had the necessary reasonable and probable grounds to believe that the appellant’s ability to operate a motor vehicle was impaired by alcohol. See: R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 (Ont.C.A.); R. v. Suntharalingam, 2012 ONSC 6207, at para. 19.

• Corroborative Evidence of Impairment – Taxi Driver: The taxi driver, Nagau Hailu, provided important evidence corroborating and confirming the police officer’s observations of the appellant as to her apparent alcohol impairment. Mr. Hailu described how the appellant acted abnormally in failing to respond to his inquiries immediately after the collision, and how she appeared “frozen.” Mr. Hailu also testified that he smelled alcohol coming through the appellant’s window, and how he also quickly formed the opinion that the appellant was “drunk.”

• The Breath Room Video Later in the Night: Constable Rheault agreed that, as the video from the well-lit breath room revealed, at 3:56 a.m., the appellant was no longer slurring her words and was relatively prompt in her responses to questions. The appellant also had no difficulty walking, and was sitting up in her chair with her legs crossed. It is important to recall, however, in assessing the potential significance of this evidence, the indicia of the appellant’s impairment which Constable Rheault observed at the roadside, were over an hour earlier at 2:43 a.m. Further, Constable Rheault did not suggest, even at the roadside, that the appellant had any difficulty walking, or that she was incapable of sitting upright. He simply observed that, when he arrived at the scene of the collision, the appellant was slouched down in the driver’s seat of her vehicle. Accordingly, as the breath room video evidence is in no way inconsistent with the evidence of Constable Rheault, it is of little assistance in assessing his credibility or reliability as a witness.

4. The Alleged Misapprehension of the Evidence Regarding “As Soon As Practicable”

a. Introduction

[27] At trial, the appellant argued that the appellant’s breath samples were not taken as soon as practicable as required by s. 258(1)(c)(ii) of the Criminal Code.

[28] According to the leading decision of the Court of Appeal for Ontario in R. v. Vanderbruggen (2006), 2006 CanLII 9039 (ON CA), 206 C.C.C. (3d) 489, authored by Rosenberg J.A., at para. 12-16, this statutory requirement means simply that the breath samples must be taken “within a reasonably prompt time” in the circumstances. It does not mean that the samples must be taken as soon as possible. Rather, the “touchstone” of this standard is whether “the police acted reasonably.” While the Crown must demonstrate that, in all the circumstances, the breath samples were taken “within a reasonably prompt time,” there is no requirement that the Crown must provide a detailed explanation or accounting of what happened during every minute that the accused was in custody. The parties agreed that this was the legal standard that the trial judge was obliged to apply, and in her Reasons for Judgment, this was the standard that Hogan J. expressly applied.

b. The Delay at the Roadside

[29] In advancing this argument at trial, the appellant focused on two time periods in particular. First, the appellant complained about the 13 minute delay at the roadside between 2:54 a.m., when the appellant was arrested, and 3:07 a.m., when Constable Rheault left the scene with the appellant and headed for the Traffic Services facility. The appellant argued that this delay was not satisfactorily explained by the Crown.

[30] The trial judge rejected this argument, finding that the Crown had “clearly explained” this time period. In her Reasons for Judgment on this issue, Hogan J. noted:

• There was a collision that required the officer to deal with a tow truck and provide instructions to the driver as to where the appellant’s vehicle should be delivered. The appellant’s vehicle also had to be secured.

• The officer also had to deal with the appellant’s passengers; they could not just be left on their own at the roadside. While they were at a downtown location and not out in the country, the police officer still had to ensure that they had a safe way of getting home.

• As there was a collision, information had to be gleaned from the taxi driver.

• Constable Rheault was working alone but tried to get assistance from his dispatcher to help with the investigation of the collision, but was told that this was a “very busy night” and no one was available to provide assistance.

• The officer expressly recognized that he needed to transport the appellant “quickly” and should not be “dawdling” in getting her to Traffic Services.

[31] On appeal, the appellant argued that the trial judge misapprehended the evidence on this issue as there was, in fact, no evidence that, during this time period, Constable Rheault spoke again to the taxi driver. The appellant argued that the evidence indicated only that the officer spoke to the taxi driver prior to the arrest of the appellant, not afterwards.

[32] The evidence is not entirely clear on this issue. The taxi driver indicated that he was still present on the scene when the appellant was arrested, and it was only later that he was told by Constable Rheault that it was alright for him to leave. So it appears that, at least according to Mr. Hailu, there was a subsequent conversation between he and the police officer after the appellant was under arrest. In these circumstances I cannot conclude that the trial judge misapprehended the evidence on this issue. On the basis of the testimony of Mr. Hailu, one of the issues that Constable Rheault continued to deal with during the time period after the arrest of the appellant was the presence of the taxi driver.

[33] In any event, however, even if I had concluded that the trial judge had misapprehended the nature of the evidence on this issue, and Constable Rheault had no further contact with Mr. Hailu following the arrest of the appellant, at least in the sense that the officer had not gleaned any further information from Mr. Hailu during this time period, I would not interfere with the verdict on this basis.

[34] As mentioned earlier, it is not every misapprehension of the evidence that justifies appellate interference with the verdict. The misapprehension of the evidence must be substantial and material and must impact upon an essential part of the reasoning process that resulted in conviction. The appellant has simply not met that “stringent standard” in this case. Any misapprehension by the trial judge in relation to this issue did not result in an unreasonable verdict or cause a miscarriage of justice. In my view, the trial judge’s brief reference to the fact that the officer had to glean further information from Mr. Hailu during this time period, even if it is a misapprehension of the evidence, could not have impacted on Hogan J.’s conclusion that this 13 minute delay at the roadside was “clearly explained” by the Crown.

c. The Delay at the Traffic Services Facility

[35] At trial, the appellant also complained about the delay of approximately 47 minutes between 3:17 a.m., when the officer and the appellant arrived at the Traffic Services facility, and 4:04 a.m., when the appellant provided his first breath sample. In argument it was apparent that the appellant’s main concern with respect to this time period was the period of approximately 32 minutes from the completion of the booking procedure (at approximately 3:24 a.m.) until the appellant entered the breath room (at 3:56 a.m.). It was during this period of time that the appellant was waiting to speak to duty counsel. While Constable Rheault had noted that duty counsel had returned his call at 3:51 a.m., and thereafter spoke privately with the appellant, he had no notation as to when he originally placed his call to duty counsel. His testimony was that, after he and the appellant left the booking area, they had another conversation about speaking to duty counsel. Constable Rheault testified that he would have placed the call to duty counsel “right away” at the phone right outside the door to the booking area as he did not want to delay things. The appellant argued that this left this period of time largely unexplained.

[36] In her Reasons for Judgment, the trial judge examined this period of time and concluded that the Crown had provided a “sufficient explanation” for this period of delay. She found that the police had made “appropriate efforts” to “move through the process expeditiously” and have the breath samples “taken as soon as practicable.” In reaching this conclusion, Hogan J. noted:

• While there is not “a lot of explanation” for this time period, it seems that at some point around the time of the booking procedure, the appellant understood that she ought to speak to duty counsel as she was unclear what she should do.

• At that point, the police did what was appropriate in the circumstances and took steps to ensure that the appellant spoke to a lawyer before providing her breath samples.

• The booking procedure would have concluded at approximately 3:25 a.m. or “a little earlier than that” and, thereafter, there would be “a wait for duty counsel.”

• While the evidence did not reveal precisely when the police officer first placed the call to duty counsel, the evidence did show that it was a “busy night” as it was a “busy night out there on the streets” and a “busy night for Traffic Services.”

• Duty counsel ultimately “called back” at 3:51 a.m. and spoke privately with the appellant.

[37] On appeal, the appellant contends that the trial judge erred in relying on the evidence that it was a “busy night” out on the streets to infer that it must also have been a busy night for duty counsel and that this explained why it took duty counsel so long to return the original call placed by Constable Rheault. The appellant argued that this left this period of time largely unexplained.

[38] I need not finally resolve this issue, as it is of no consequence. In her Reasons for Judgment the trial judge appears to have accepted the testimony of Constable Rheault that he would have placed the call to duty counsel promptly upon leaving the booking area. This meant that the original call to duty counsel would have been made at approximately 3:24 a.m. Duty counsel did not return the call until 3:51 a.m. Whether that 27 minute delay was caused by the fact that it was a “busy night” for duty counsel because it was a “busy night out on the streets,” or for some other wholly unrelated reason makes no difference to the outcome of whether the appellant’s breath samples were taken as soon as practicable. The fact of the matter is that once the appellant had asserted her right to counsel, guaranteed by s. 10(b) of the Charter of Rights, and requested an opportunity to consult with counsel, the police were obliged to refrain from taking her breath samples until she had been provided with a reasonable opportunity to consult with counsel. See: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236. Waiting this 27 minute period of time provided the appellant with this reasonable opportunity to privately consult with duty counsel prior to providing the demanded samples of her breath.

[39] After the appellant had an opportunity to speak with duty counsel about providing her pending breath samples, which Constable Rheault estimated took approximately five minutes, matters proceeded expeditiously. More particularly, the officer and the appellant entered the breath room at 3:56 a.m., and the appellant provided her first breath sample at 4:04 a.m.

[40] In any event, I see no proper basis upon which to interfere with the decision of Hogan J. that the Crown adequately explained this period of delay at the Traffic Services facility, and that the appellant’s breath samples were taken “as soon as practicable” in all of the circumstances. This case is unlike R. v. Dzaja, [2003] O.J. No. 2341 (C.A.), relied on by the appellant. In that case, there was a delay of at least 33 minutes between the time the accused was paraded before the officer-in-charge and the time the investigating officer first placed a phone call to duty counsel. In those circumstances, the court held that the trial judge had failed to direct his mind to the potential significance of that 33 minute gap in considering whether or not the accused’s breath samples were taken as soon as practicable. In this case, based on the evidence of Constable Rheault and seemingly accepted by the trial judge, there is no significant temporal gap between the completion of the appellant’s booking procedure and the police officer’s original call to duty counsel.

D. Conclusion

[41] In the result, the appeal must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

RELEASED: December 19, 2012