BARRIE COURT FILE NO.: CR-13-067-00AP

DATE: 20131105

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

PAUL MARCHILDON

Appellant

L. Saunders, for the Respondent
R. Jourard, for the Appellant

HEARD: October 21, 2013

ON APPEAL FROM THE DECISION OF THE HON. MR. JUSTICE M. HARPUR
DATED MARCH 8, 2013

REASONS FOR DECISION

DiTOMASO J.

THE APPEAL

[1] The Appellant Paul Marchildon (“Mr. Marchildon”) was tried on a two count Information charging that on or about July 29, 2011 at the City of Barrie he had care or control of a motor vehicle while impaired by alcohol and had care or control of a motor vehicle while Over 80.

[2] After a three day trial on June 12, 2012, October 25, 2012 and November 2, 2012, before His Honour Justice M. Harpur, Mr. Marchildon was found guilty of both charges. He was convicted on the impaired driving count, fined $400 and prohibited from driving for one year.

OVERVIEW

[3] There are four grounds of appeal as follows:

(a) the trial judge erred in ruling out bolus drinking. He misapprehended the evidence with regard to the period of time when a civilian witness lost sight of Mr. Marchildon and Mr. Marchildon could have engaged in bolus drinking;

(b) the trial judge failed to consider evidence of cocaine consumption that could have accounted for Mr. Marchildon’s erratic driving;

(c) the trial judge erred in finding that police had reasonable grounds to subject Mr. Marchildon to a strip search with the result that the unlawful search breached Mr. Marchildon’s s.8 Charter rights; and,

(d) the trial judge erred in finding that the breath tests were done as soon as practicable.

THE FACTS

[4] The facts are largely not in dispute and can be taken from the factums submitted on behalf of Mr. Marchildon and the Crown.

Bolus Drinking

[5] A civilian, Don Geniole, stated that at about 5:50 p.m. he observed Mr. Marchildon’s vehicle swerving in front of him on Highway 400. A “couple of times” Mr. Marchildon’s vehicle drifted out of the centre lane and Mr. Marchildon over-corrected when returning to his lane. At one point, Mr. Marchildon tried to get into the curb lane and ended up on the shoulder. He returned to the curb lane but straddled the skip lines separating it from the next lane.

[6] Mr. Geniole testified that he did not see the Appellant drink anything throughout the time he observed him. He said he had a “clear view” of Mr. Marchildon as they drove along Highway 400 and that throughout his observation he was focused on Mr. Marchildon. He conceded, however, it was possible Mr. Marchildon drank but that he did not see it.

[7] In examination-in-chief, Mr. Geniole stated that he lost sight of Mr. Marchildon only on “two occasions” and for a few seconds. However, in cross-examination he acknowledged losing sight of Mr. Marchildon on a further occasion: he stated that he arrived at the bar parking lot within one or two minutes of Mr. Marchildon and that he did not see Mr. Marchildon exit his car. When Mr. Geniole arrived Mr. Marchildon was 20 feet from his car.

[8] Mr. Geniole stated that Mr. Marchildon was “staggering, very uncertain of his footing, barely able to open the front door” [to the bar]. James Stewart, the bartender at Crossovers, stated that Mr. Marchildon was “staggering, went to put a hand on the bar and missed” and “slammed the keys down [on the bar]”.

[9] Mr. Geniole stated that when police engaged Mr. Marchildon after he exited the bar, he spoke in a “slow, slurred tone”. As Mr. Geniole said that Mr. Marchildon was in Crossovers for about 15 minutes, these observations were made about 15 minutes after care or control ended.

[10] P.C. Bamford stated that Mr. Marchildon’s car was parked in the parking lot on an angle and over a cement barrier. She did not clarify what she meant by “over” the barrier. Mr. Geniole observed only that the vehicle was parked on an angle and described the parking as a “quick pull in”.

[11] Following Mr. Marchildon’s arrest, P.C. Bamford noted that he was “unsteady on his feet, I had to support him a bit as we were walking back to the cruiser. There’s a bit of stumbling that took place.”

[12] P.C. Bamford seized a 350 ml bottle of 40 proof white rum from the console of Mr. Marchildon’s car after his arrest. She said the bottle was three-quarters empty. Mr. Geniole saw the bottle and estimated it was three quarters to three fifths empty. At trial, Ms. Bugyra, a toxicologist from the Centre of Forensic Sciences, examined the bottle (Exhibit 2) and described it as two-thirds empty. She testified that consumption by the Appellant of as little as two thirds (1231 ml) of the bottle in the 15 minutes preceding the end of care or control could result in the blood alcohol readings taken at the police station.

[13] One of the assumptions underpinning Ms. Bugyra’s opinion that Mr. Marchildon’s blood alcohol concentration (BAC) was 210 to 215 mg of alcohol per 100 ml of blood at the time of his care or control just before exiting his vehicle was that he had consumed no alcohol from about 15 minutes before that time until his breath tests at the police station.

[14] P.C. Bamford arrested the Appellant at 6:32 p.m. The reading of his rights, the caution and breath demand took until 6:36 p.m. She departed for the station right after a tow truck arrived at 6:57 p.m. While waiting for the tow truck, she secured a tow slip for the tow truck driver, participated in a search of the Appellant’s vehicle with P.C. Rasmussens (who was present for the arrest) and made some “quick” notes. The Crown asked her why she stayed at the scene to deal with the towing and vehicle search. She answered: “no particular reason”.

Evidence Regarding Cocaine

[15] On his arrival at the station, P.C. Stamp did a cursory search of Mr. Marchildon and found two small plastic baggies in his cargo pants pockets containing a white powder-like substance. Mr. Marchildon was charged with possession of cocaine.

[16] P.C. Storey stated that he agreed with the observation of P.C. Stamp that dust on the tops of both baggies showed that they had been opened and he testified that he believed that Mr. Marchildon had consumed cocaine earlier that day.

[17] Ms. Bugyra stated that in the crash phase following use of cocaine, exhaustion and extreme fatigue could cause lapses of attention and focus, lack of alertness, and account for erratic driving such as swerving and drifting between the lanes. She noted that the extent of the crash phase would vary depending on the amount of cocaine consumed and whether the user was binging.

[18] P.C. Stamp testified that he removed Mr. Marchildon from his cell at 9:49 p.m. (after the breath tests which completed at 8:32 p.m.) for fingerprinting and afterward escorted him back to his cell. He stated that as he was about to put the Appellant back in the cell, he located a small blue transparent baggie “inside the perimeter of his cell, on the floor by the door area…about a foot inside the door.” He said it was about midway between the concrete walls, “in clear view of the camera”. He testified there were other male prisoners in the cell area. He stated that the baggie was similar to the ones he had seized earlier and contained a “clear capsule containing dark powder” which he suspected may be heroin. He said Mr. Marchildon denied any knowledge of the baggie. He acknowledged that he may have told the Appellant, as the Appellant testified, that he was going to check the video to see if the baggie was his.

[19] After locating the baggie, P.C. Stamp immediately notified Sgt. Berriault that he had located it inside Mr. Marchildon’s cell.

The Strip Search

[20] Sgt. Berriault was aware that what appeared to be a controlled substance had been found in Mr. Marchildon’s pockets during the initial search at the station. The sergeant, “satisfied with the information that I got from Constable Stamp that obviously there was a pill in the cell area,” authorized a complete search. He said the location of a substance believed to be narcotics satisfied him that a complete search was necessary to ensure Mr. Marchildon, for his safety, did not have further pills in his possession. The strip search was conducted at about 10:25 p.m.

[21] The sergeant said he ordered the pill destroyed because “we couldn’t prove the continuity.” He was not able to determine if the cell where P.C. Stamp said it was found had been swept for other potential drugs before Mr. Marchildon was lodged there.

[22] Although Sgt. Berriault knew the cell was videotaped, he stated he did not think to look at the videotape to see whether Mr. Marchildon had dropped the baggie. It would have taken at least several minutes to do so. He acknowledged that he could have had P.C. Stamp watch the Appellant to ensure he did not ingest any drugs while he checked the video.

[23] Mr. Marchildon testified that after P.C. Stamp returned him to his cell following fingerprinting, P.C. Stamp started to walk away. At that point, he said, the officer bent down and picked up the baggie from the floor outside his cell. The baggie was “probably three or four feet out from the bars,” opposite the middle of the cell.

[24] Mr. Marchildon stated that he had never before been strip searched and that he felt humiliated and degraded.

[25] Defence counsel had requested the Crown to disclose the cell block video in order to determine where police had found the baggie – inside or outside the Appellant’s cell.

[26] The Crown accepted Mr. Marchildon’s review of the evidence as substantially accurate except where it was stated or supplemented in the Crown’s factum as follows.

[27] It was dry and sunny. Mr. Marchildon was the lone occupant of the vehicle.

[28] Mr. Marchildon, when attempting to overcorrect, almost hit the barrier that separates the northbound traffic from the oncoming southbound traffic. Mr. Marchildon was observed overcorrecting “a couple of times”.

[29] Other vehicle on the road were forced to take evasive steps. Mr. Marchildon took the Dunlop Street exit, started to move at a faster rate of speed, and almost ended up in a ditch at one point. Mr. Marchildon mounted a curb and made a U-turn to head westbound.

[30] Mr. Marchildon was Mr. Geniole’s main focus throughout and at no point in time did Mr. Geniole observe Mr. Marchildon to be eating or drinking anything.

[31] Mr. Geniole lost sight of Mr. Marchildon’s vehicle twice. The first time, Mr. Geniole lost sight of the vehicle as it went over a hill and the second time; Mr. Marchildon took a quick right into one of the warehouses or stores and then returned back to Dunlop Street. Mr. Geniole lost sight for two seconds the first time, and for a mere second the next.

[32] Mr. Geniole gave evidence that he arrived at Crossovers, an adult entertainment bar, approximately one to two minutes after Mr. Marchildon but as he was not looking at his watch to keep track of time, was unable to confirm this time estimate.

[33] Upon arrival, Mr. Geniole saw the Appellant attempting to walk towards the entrance, staggering, very uncertain of his footing, barely able to open the front door. Mr. Marchildon was wearing heavy strap sandals, dark safari shorts, and a dark green t-shirt. Mr. Marchildon was approximately 20 feet away from his vehicle.

[34] Mr. Geniole noticed a mickey bottle of Bacardi’s White Rum sitting on the centre console of Mr. Marchildon’s vehicle. Mr. Marchildon had not pulled into a parking spot. His vehicle was straddling on the yellow painted line on an angle.

[35] Once the officers arrived on scene, Mr. Geniole provided them with the relevant information that he had provided during his 911 call and all updates thereafter.

[36] Mr. Geniole informed the officers that Mr. Marchildon was exiting Crossovers. He gave evidence that this was a maximum of 15 minutes after he had walked in.

[37] Mr. Marchildon noticed police presence and started to walk away from his vehicle. Mr. Geniole and the female officer, Constable Sarah Bamford began to follow. Constable Bamford called out Mr. Marchildon’s name and he responded in a slow, slurred tone, “Hey, how do you know my name?”

[38] Mr. Geniole returned back to his vehicle and continued to observe.

Evidence of the Crossovers’ Bartender Mr. James Stewart

[39] Mr. Stewart observed Mr. Marchildon come into the bar and stagger back and forth.

[40] Mr. Stewart refused to serve Mr. Marchildon and asked him if he could call him a cab, to which Mr. Marchildon replied, “No, thank you.”

[41] Mr. Stewart asked the doorman to escort Mr. Marchildon out of the bar as he was not comfortable serving Mr. Marchildon; it was obvious that he already had too much to drink. Mr. Marchildon did not have anything to eat or drink while inside Crossovers.

Evidence of the Investigating Officer, Police Constable Sarah Bamford

[42] Constable Bamford advised that Mr. Marchildon exited Crossovers roughly five to seven minutes after she arrived on scene. She noticed that Mr. Marchildon observed police in the parking lot, looked directly at her, and began to walk away. She gave evidence that at this point; she observed for herself that Mr. Marchildon was staggering and unsteady on his feet. She called out the name of the registered owner, provided to her by dispatch, of the vehicle that the Appellant was driving before she had arrived on scene. Mr. Marchildon responded in the affirmative.

[43] Constable Bamford informed Mr. Marchildon of an impaired driving complaint and immediately cautioned him for the offence of impaired driving. Mr. Marchildon laughed and responded that he was only at Crossovers because he thought they sold boats.

[44] Mr. Marchildon confirmed that the black Honda that Mr. Geniole had been following was indeed his vehicle and that he had been driving too much to be driving. At this point, Constable Bamford formed her grounds and arrested Mr. Marchildon. This was approximately at 6:32 p.m. The Rights to Counsel were read at 6:35 p.m. and understood. Mr. Marchildon stated that he would provide Constable Bamford with his lawyer’s number at the police station.

[45] Mr. Marchildon made no complaints about feeling ill or discomfort. Constable Bamford was unable to recall but it was possible that Mr. Marchildon complained that his cuffs were tight. The breath demand was read at approximately 6:36 p.m. and understood.

[46] Constable Bamford called for a tow and prepared tow slips. She conducted a search of Mr. Marchildon’s vehicle and in plain view there was a 375 millilitre bottle of Bacardi White Rum, 40 percent sitting in the centre console. It was approximately two thirds to four fifths empty. It was seized and placed into a property bag.

[47] Between 6:36 p.m. and 6:38 p.m. Constable Bamford assisted in the tow process, the search of the motor vehicle and made notes in her notebook. She arrived with Mr. Marchildon at the police station at approximately 7:09 p.m.

[48] Staff Sergeant Berriault asked several questions to assist with booking Mr. Marchildon. Constable Stamp conducted a pat down search and found two baggies of cocaine, photos of which were made Exhibit A at trial.

[49] A message was left and Mr. Marchildon waited to speak to his lawyer of choice. Mr. Marchildon spoke to his lawyer at approximately 7:33 p.m. He finished speaking to his lawyer at approximately 7:50 p.m. and waited for the breath technician, Constable Storey, to whom he was taken at approximately 8:03 p.m.

Evidence of the Breath Technician, Police Constable Jason Storey

[50] Results of the analysis of the first as well as second suitable samples of Mr. Marchildon’s breath were a reading of 210 milligrams of alcohol in 100 millilitres of blood each.

[51] Mr. Marchildon at no point in time, made any complaints about feeling ill or discomfort.

Evidence of Expert Toxicologist, Ms. Inger Bugyra

[52] Working backwards from the time of the breath samples being taken into the Approved Instrument and calculating backwards from the readings of 210 milligrams of alcohol in 100 millilitres of blood, Mr. Marchildon would have had to consume six standard drinks from the bottle of Bacardi White Rum within fifteen minutes of the breath test in order to provide such readings.

Evidence of the Booking Officer, Police Constable Jason Stamp

[53] No complaints were made to Constable Stamp about any physical discomfort or injury.

[54] No other prisoner had access to Mr. Marchildon’s cell between the time he was taken out for fingerprinting at 9:49 p.m. to the time that he was returned and the baggie containing a “clear capsule containing a dark powder” suspected to be heroin was found. Upon informing Staff Sergeant Berriault, a strip search was authorized and conducted by both of them. At no point was Mr. Marchildon touched.

Evidence of the Booking Staff Sergeant at the Detachment, Sergeant Dave Berriault.

[55] There are grounds to authorize a complete search when there is something to substantiate that there could be other evidence that would support the crime that Mr. Marchildon was involved in, something that would injure him or potentially offer evidence.

Review of Mr. Marchildon’s Evidence

[56] Mr. Marchildon did not testify at the trial proper.

REVIEW OF THE REASONS FOR JUDGMENT

[57] The trial judge delivered Reasons for Judgment dated December 14, 2012 and Reasons for Judgment dated March 8, 2013.

[58] Regarding Reasons for Judgment dated March 8, 2013, the trial judge delivered ten pages of reasons. In his reasons, the trial judge made express reference to the onus and burden of proof, correctly stated. He also cited the following authorities, R. v. Stellato, R. v. Golden, R. v. Regan, R. v. O’Connor and R. v. Murphy.[^1]

[59] The trial judge found that the impaired care or control as well as the care or control over 80 offences were proven beyond a reasonable doubt.

[60] With respect to the impaired driving charge, the trial judge considered the totality of the evidence given by Mr. Geniole, the investigating officer, the bartender, the breath technician regarding Mr. Marchildon’s erratic driving, staggering, lacking control over his body movements and unsteadiness while on his feet at the adult entertainment bar as well as at the police detachment. The trial judge also considered the strong odour of alcohol on Mr. Marchildon’s breath. The trial judge was satisfied that the Crown certainly proved “any degree of impairment ranging from slight to great” to make out the offence.

[61] Regarding the administration of the Approved Instrument “as soon as practicable” the trial judge addressed this issue in his Reasons for Judgment dated December 14, 2012. He accepted that the actions adopted by the police were reasonable as there were no puzzling gaps and nothing questionable. As such, in the mind of a trial judge, this precondition was satisfied. The trial judge concluded that the “two hours – or – less” issue was moot. In his Reasons for Judgment dated December 14, 2012, the trial judge accepted the testimonies of Mr. Geniole and Constable Bamford. He concluded that Mr. Marchildon was found to be in care or control of his vehicle immediately prior to exiting it at approximately 6:08 p.m. – 6:12 p.m. The trial judge listed the evidence he took into account in concluding that although the partly – emptied rum bottle in the car initially “puts in play” the possibility of bolus drinking, the enumerated factors in paragraph 31 of his Judgment overcame the presence of the bottle alone as an impediment to the Crown’s case. The trial judge accepted the expert’s non-bolus – drinking evidence.

[62] The trial judge held that as Mr. Marchildon did not testify, he did not meet the evidentiary onus regarding the alleged cocaine use or any drunken conduct resulting from that drug use.

[63] At some considerable length in his Reasons dated March 8, 2013 from pages 4 – 10, the trial judge considered the overall treatment of Mr. Marchildon by the police. He considered numerous cases where police conduct has been characterized as egregious and stated that this was not one of those instances. He concluded that the police conduct was “too trivial to engage the fundamental values prescribed by the Charter”. At para. 16, he found that the “lost evidence” of the cell area video did not merit a stay as any resulting prejudice was negligible and alternative remedies were available;[^2] that the search of Mr. Marchildon was lawful as it was based on grounds that satisfy it as a search incident to arrest and conducted reasonably in light of the eleven standards provided in R. v. Golden.[^3]

[64] The trial judge spoke of the minor/technical nature of any shortcomings related to the strip search and stated that in this case, nothing shocked the conscience of the public to the extent of warranting an extraordinary remedy of a stay.[^4] The Charter Application, in the blended voir dire was dismissed. Mr. Marchildon was found guilty of both offences as charged.[^5]

POSITION OF THE PARTIES

Position of Mr. Marchildon

[65] On behalf of Mr. Marchildon, it is submitted that there are four grounds upon which this appeal ought to be granted. Those grounds have been previously identified. In the result, Mr. Marchildon submits that the appeal against conviction be granted and that an acquittal be entered or that the charges be stayed. Alternatively, he requested a new trial be conducted before a differently constituted court.

Position of the Crown

[66] On behalf of the Crown, it is submitted that the trial judge considered all the evidence. The evidence of impairment met the test in R. v. Stellato. Further, the evidence in this trial established more than the “slight” degree of impairment of the ability to operate a motor vehicle can found conviction. The Crown submits that the verdict was reasonable and the appeal should be dismissed. In addition, if the trial judge is found to have committed an error in coming to that conclusion, the Crown submits that the evidence in this case was overwhelming and that the curative proviso be applied.

ANALYSIS

Standard of Review

[67] Section 686(1)(a)(i) of the Criminal Code of Canada (applicable to summary conviction appeals by s. 822) provides that an appeal maybe allowed where the appellate court concludes that (i) the verdict reached at trial was unreasonable or unsupported by the evidence, (ii) or should be set aside on the ground of wrong decision on a question of law, or (iii) on any ground where there has was a miscarriage of justice.

[68] The summary conviction appeal court has limited jurisdiction in reviewing findings of fact by the trial judge.[^6]

[69] An appellate court is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it. Providing this threshold test is met, an appellate court is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.[^7]

[70] I find that the trial judge was alive to all of the issues before him both factual and legal. He considered the relevant authorities, statutory provisions, and the evidence. On all of the evidence, he concluded that all of the essential elements of the offences had been proven beyond a reasonable doubt. I find that he did not commit an error of law by failing to consider and apply relevant jurisprudence. To the contrary, in respect of the standard of review, the trial judge could have and did reasonably reach the conclusion that he did on the evidence and relevant jurisprudence before him.

(a) Did the trial judge misapprehend evidence regarding the period of time when the civilian witness lost sight of Mr. Marchildon and he could have engaged in bolus-drinking?

[71] On behalf of Mr. Marchildon it is argued that he could have consumed rum from the bottle found in the driver’s compartment of his vehicle in the 15 minutes prior to giving up care and control of his vehicle before he arrived at the bar.

[72] Counsel for Mr. Marchildon relies on the evidence of Mr. Geniole where he lost sight for a split second when Mr. Marchildon’s vehicle went over a bridge and another second when he drove in and out of a warehouse area. Not referenced was a third occasion during which Mr. Marchildon parked his car at the bar. Mr. Geniole did not see Mr. Marchildon get out of his vehicle upon arrival at the bar. Neither did he see Mr. Geniole park his car. It is argued that the trial judge erred in rejecting evidence regarding the consumption of alcohol when there was evidence that the civilian witness lost sight of Mr. Marchildon’s vehicle on two occasions and that Mr. Marchildon could have consumed alcohol while parking his car or on those occasions when the civilian witness lost sight of the Marchildon motor vehicle. It was argued that the issue of bolus drinking was in play upon the discovery of the rum bottle in Mr. Marchildon’s vehicle. However, it is argued that the common sense inference referred to in R. v. Paszczenko, 2010 ONCA 615, [2010] O.J. No. 3974 (CA) at para. 29 is displaced because of the discovery of the rum bottle. It is submitted that the trial judge erred in relying on a common sense inference at para. 31 of his Reasons dated December 14, 2012. The trial judge did not agree that there was reasonable doubt as to bolus drinking. He took into account Mr. Geniole’s evidence which included:

(iii) the unlikelihood of [Mr. Marchildon] drinking alcohol from the bottle in his car as he inched north on Highway 400 approaching Dunlop Street surrounded by other cars and motorists; and

(iv) the unlikelihood of [Mr. Marchildon] having consumed approximately one-quarter of a litre of white rum in his car as he exited his vehicle, a brief period during which he was not seen by Mr. Geniole.

[73] The Crown submitted that the evidence of Mr. Geniole supports a finding that he did not lose sight of Mr. Marchildon’s motor vehicle and that there was no basis on the evidence upon which it could be found that Mr. Geniole lost sight during a one to two minute period during which Mr. Marchildon might have had something to drink. The trial judge’s finding was grounded in the evidence and it was reasonable for him to make that finding or it was reasonable for him to infer on the evidence before him to make that finding regarding which deference should be given.

[74] In particular, the trial judge listed a constellation of factors to reject bolus drinking which he listed at para. 31 of his December 14, 2012 Reasons. In that paragraph, the trial judge offered six bases on which to reject the possibility of bolus drinking.

[75] I accept the Crown’s argument that the Criminal Code does not prescribe any special tests for determining impairment. The trial judge must be satisfied beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol. If the evidence of impairment establishes any degree of that ability, ranging from slight to great, the offence has been made out.[^8]

[76] In this case, the trial judge delivered a fulsome and multi-paged analysis of the evidence concerning the impaired driving charge. It is submitted by the Crown and I agree that the trial judge’s analysis was more than adequate to support the findings of fact which he made. It cannot be said that those findings are unreasonable. Nor do I find that the trial judge misapprehended the evidence or improperly applied or ignored the operative legal principles.

[77] The trial judge was entitled to accept, all, some or none of the evidence of any particular witness. His findings of fact in his assessment of credibility are entitled to great weight and respect as he had the advantage of seeing and hearing the witnesses testify.[^9]

[78] In our case, the trial judge looked at the totality of the evidence.

[79] At para. 31 of his decision, he rejected that there was a reasonable doubt on the evidence presented by Mr. Marchildon regarding bolus drinking. In taking into account the totality of the evidence, he enumerated his considerations and found the following to be overwhelming evidence upon which the possibility of bolus drinking was rejected:

i) Mr. Geniole’s evidence that Mr. Marchildon was exhibiting signs of impaired ability to operate his motor vehicle prior to the approximately fifteen minute interval preceding Mr. Marchildon’s exiting his car in the bar lot;

ii) Mr. Geniole’s, Mr. Stewart’s and P.C. Bamford’s evidence that Mr. Marchildon exhibited signs of intoxication while entering, while in and while exiting the bar;

iii) The unlikelihood of Mr. Marchildon drinking alcohol from the bottle in his car as he inched north on Highway 400 approaching Dunlop Street surrounded by other cars and motorists;

iv) The unlikelihood of Mr. Marchildon having consumed approximately one-quarter of a litre of white rum in his car as he exited his vehicle, a brief period during which he was not seen by Mr. Geniole;

v) Mr. Geniole’s evidence that he did not see Mr. Marchildon drink anything from shortly before 5:50 p.m. until Mr. Marchildon arrived at the bar parking lot and that his observation of Mr. Marchildon was consistent and clear, apart from a few seconds; and

vi) The absence of evidence from Mr. Marchildon’s observers that his apparent level of intoxication was rising appreciably after the time he was observed by Mr. Geniole approaching the bar.[^10]

[80] For these reasons, I find that the trial judge did not misapprehend the evidence with regard to the period of time when a civilian witness lost sight of Mr. Marchildon during which Mr. Marchildon could have engaged in bolus drinking. The trial judge considered the totality of the evidence and was correct in rejecting the possibility of bolus drinking. Based on these reasons, I find this ground of appeal fails.

(b) Did the trial judge err in failing to consider evidence of cocaine consumption that could account for Mr. Marchildon’s erratic driving?

[81] In his Reasons, the trial judge concluded that there was no basis on the record to infer that Mr. Marchildon had ingested cocaine prior to being seen by Mr. Geniole on July 29, 2011. It was argued that Mr. Marchildon “may” have consumed cocaine earlier on that evening and this would have accounted for any “drunken” conduct at that stage. Quite correctly, the trial judge regarded the “evidential onus” described in R. v. Paszczenko (supra) as Mr. Marchildon’s onus.

[82] At para. 32 of his Reasons dated December 14, 2012 the trial judge stated:

These are facts uniquely within his knowledge. The Crown evidence did not address whether the white powder seized was indeed cocaine, nor whether or when the substance was ingested by Mr. Marchildon. Mr. Marchildon did not testify. There is no basis on the record as it stands to infer that Mr. Marchildon had ingested cocaine prior to being seen by Mr. Geniole on July 29, 2011.

[83] The trial judge went on at para. 33 to find that while the partly emptied rum bottle in Mr. Marchildon’s car initially “puts in play” the possibility of bolus drinking, the trial judge went on to find that based on enumerated factors set out in paragraph 31 “overwhelm the presence of that bottle alone as an impediment to the Crown’s circumstantial case that Mr. Marchildon did not engage in bolus drinking.”

[84] At para. 34, the trial judge considered the non-bolus drinking assumption made by Ms. Bugyra as proven and would not refrain from giving weight to his opinion on that basis. I find the trial judge correctly rejected Mr. Marchildon’s invitation to speculate and accepted the evidence of the expert toxicologist, Ms. Bugyra, as reliable and weight worthy.

[85] The trial judge found there was no proof from either the Crown or Mr. Marchildon that the “seemingly – open packages of what appear to the police to be cocaine” was in fact cocaine. Accordingly, the trial judge was not required to consider the impairing effects of the substance as he was not provided with any basis for inferring that Mr. Marchildon had ingested the substance prior to being seen by Mr. Geniole.[^11]

[86] I find the trial judge gave proper weight to the evidence. He was alive to the relevant law and relied upon the entire evidentiary record in coming to his Judgment. There was sufficient evidence that a reasonably instructed trier of fact could have reached the same decision as to that reached by the trial judge.

[87] For these reasons, this ground of appeal also fails.

(c) Did the trial judge err in finding that police had reasonable grounds to subject Mr. Marchildon to a strip search?

[88] Regarding this ground of appeal, it is submitted on behalf of Mr. Marchildon that the trial judge erred in finding that there were reasonable grounds for the strip search where the mere possibility of evidence being concealed was insufficient justification. It was submitted that there were no reasonable and probable grounds to justify Mr. Marchildon’s strip search and that the illegal strip search and the Crown’s failure to disclose the cell video were interdependent. He asserts that both his s.7 and s.8 Charter rights have been violated. He submitted that the baggie of seemingly – illicit drug which led to the strip search was either (a) located outside his cell in an area subject to traffic by others in custody or (b) “planted” in the cell area by the police as a pretext for the strip search which followed.

[89] The trial judge considered these positions and found them to be untenable.[^12] He went on to give extensive Reasons where he rejected arguments concerning the third baggie’s location and “planting” this third baggie by P.C. Stamp outside Mr. Marchildon’s cell, i.e. fabricated basis for the ensuing strip search. The trial judge’s Reasons can be found regarding the location of the third baggie at paras. 17 – 25 and of his reasons and regarding the “planting” from para. 26 – 34. He also considered the loss of the video at paras. 35 – 37 and the manner in which the strip search was conducted at paras. 38 – 40.

[90] Absent a palpable and overriding error, the trial judge’s findings of fact in relation to an alleged Charter violation are to be given deference. The scope of the Charter right is in an inextricable question of law for which the correctness standard applies.[^13]

[91] At para. 23 of his Judgment dated March 8, 2013, the trial judge considered the law relating to strip searches as set out by the Supreme Court of Canada in R. v. Golden. In Golden, the Supreme Court of Canada ruled that strip searches required a nuanced approach that took into account a number of factors both particular to the individual and to the risk posed by the possibility of hidden evidence to the safety of the officers as well to the individual himself.[^14]

[92] At para. 23, the trial judge concluded that the circumstances of this case provided Sergeant Berriault with reasonable grounds to order the strip search and that this strip search would have been incidental to the drug possession arrest already made. The trial judge stated that:

The subject would have been an individual who, had come through a pat-down search at the scene, still in possession of apparently illicit-drugs… a prisoner whose vicinity in the cells a small blue transparent baggie similar to the one seized earlier had been found. Indeed, even if the strip search is not to be seen as incidental to the earlier arrest on the drug charge and, rather, should be regarded as a fresh event, there again Sgt. Berriault had grounds.[^15]

[93] The trial judge was correct in applying the principles set out in R. v. Golden. He concluded that the search in these circumstances did not violate s.8 and was one that was open to him as per the criteria set out in R. v. Golden. In addition, he made the following findings of fact: (a) Mr. Marchildon was in possession of apparently-illicit drugs after a pat-down; (b) he had a similar baggie of apparently-illicit drugs found in his police cell to the ones found during his booking; (c) he was going to be returned back to his police cell; (d) he was wearing clothing capable of concealing further evidence; and (e) the evidence opposed the planting of the baggie theory proposed by Mr. Marchildon.

[94] As for the manner of search, the evidence establishes that the search was conducted respectfully and professionally and resulted in very minimal intrusion upon Mr. Marchildon’s dignity.

[95] I agree with the Crown submissions that the trial judge was correct in finding that recommendations expressed in Golden for strip searches were met in this case and that the Barrie Police Service was, at the time, cognizant of the Golden recommendations and communicated them to its officers by way of written policy.

[96] I agree with the Crown submissions that the trial judge concluded the manner of carrying out the strip search complied with all but three of the Golden standards for an optimal manner of conducting such a search. As such, the trial judge held that the manner of the strip search complied fully with the remaining eight standards:

i) The strip search was conducted at the police station;

ii) the strip search was in a manner that ensured health and safety of all involved;

iii) the strip search was authorized by a police officer acting in a supervisory capacity;

iv) the officers carrying out the strip search were of the same gender as the Appellant;

v) the number of police officers involved was no more than was reasonably necessary;

vi) minimum force necessary to conduct the strip search was used;

vii) will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?

viii) if the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or having the object removed by a trained medical professional?[^16]

[97] Regarding the privacy of the search so that no one other than the individuals engaged in the search can observe the search, the trial judge correctly held that the Crown proved that the search was conducted in private. Further, the trial judge correctly accepted the evidence of the officers that although Mr. Marchildon was made to disrobe completely, the time during which he was completely naked was substantially less than the five minutes to which he testified. Further, the trial judge felt that there was a written policy in place that all officers make entries in their notebooks including the results of the search and that the officers in this case were aware of it.

[98] I find that the trial judge delivered lengthy, careful and persuasive Reasons for Judgment at the conclusion of this case. In his Reasons dated March 8, 2013, the trial judge fully and accurately considered all of the relevant evidence in its totality and articulated and applied the operative legal principles. He did not misapprehend any piece of evidence nor did he fail to consider any relevant aspect of the evidence. He did not admit to any presumptively inadmissible evidence, nor did he employ any evidence for improper purposes. He only rejected the evidence not to be relied upon after careful consideration and gave his Reasons accordingly. The correct burden of proof was understood and applied by the trial judge.

[99] As a result, and for the foregoing reasons, this ground of appeal also fails.

(d) Did the trial judge err in finding that the breath tests were done as soon as practicable.

[100] On behalf of Mr. Marchildon, it is submitted that the breath tests were not done as soon as practicable[^17] and that his s.8 Charter rights were violated.

[101] The Crown submits that the trial judge found that demand was made “as soon as practicable” and such a finding was a reasonable one. Further, it cannot be said that the trial judge’s verdict was so unreasonable that no trial judge, acting judicially, could possibly have reached it. The Crown submits that the appeal should be dismissed on this ground as well.

[102] The Crown submits that absent a palpable and overriding error, the trial judge’s findings of fact in relation to an alleged Charter violation are to be given deference, but the scope of the Charter right is an inextricable question of law for which the correctness standard applies.[^18]

[103] The test in cases involving the issue of “as soon as practicable” as been stated in R. v. Phillips:

The test of practicability is reasonableness. A court must be satisfied that the conduct of the police in the interval between the arrest and the breathalyser test was reasonable.[^19]

[104] In the case at bar, the trial judge reviewed in detail the evidence of the officer with respect to the time that had elapsed before the breath samples were taken. He applied the appropriate test. He found that the actions of the officer in ensuring the availability of tow slip for the towing company, in searching Mr. Marchildon’s car, and in making “quick” notes concerning the occurrence were not unreasonable. The trial judge stated that the arrest was P.C. Bamford’s. The search was not lengthy and was one that required seizure of property (i.e. partially – full bottle of rum). He considered and accepted that the officer made notes of several remarks made by Mr. Marchildon to the officer in five to seven minutes of conversation from 6:25/6:27 p.m. until the end of 6:32 p.m. when the arrest was made. He concluded that this was an objectively reasonable approach to the occurrence.[^20]

[105] The circumstances in our case were found distinguishable by the trial judge in other cases. Rather, the trial judge found that the officer had given an explanation for her activities between 6:36 p.m. and 6:58 p.m. and did not leave any puzzling gaps. The activities would plausibly have consumed the time in question. In para. 4 of his Judgment, the trial judge provided a chronology of relevant events.[^21]

[106] The trial judge found that the demand was made “as soon as practicable” and that such a demand was reasonable. I agree. I further agree that the trial judge applied the correct test. “As soon as practicable” does not mean as soon as possible. “As soon as practicable” involves a component of reasonableness. “Practicable” means feasible, fair and convenient and is not synonymous with “possible”. The trial judge did not err in ruling the tests were taken “as soon as practicable”.[^22]

[107] On this ground, the trial judge’s finding that the demand was made “as soon as practicable” was a reasonable one. As such, this last ground of appeal also fails.

[108] I have also considered whether the trial judge erred by misdirecting himself in relation to the law or committed some reviewable factual error or reach a decision that was so clearly wrong as to amounting to an injustice regarding the remedy of a stay for the alleged Charter breaches.

[109] The trial judge was alive to this issue as well. He considered the totality of the evidence and also the gravity of the alleged Charter breaches. He applied the operative legal principles, took into account the relevant factual considerations and weighed the strong public interest engaged by virtue of the danger caused to the public by the impaired driving of Mr. Marchildon. The trial judge was correct in not ordering a stay but rather he took the Charter breach of s.7 into account. He did so by reducing the fine to $400.

[110] In all of the circumstances, I find that the curative provision set out in s.686(1)(b)(iii) of the Criminal Code of Canada does not apply in this case. There has been no miscarriage of justice when the convictions were entered as the trial judge committed no errors legal or factual that would have produced a different verdict had the error not been made.

DISPOSITION

[111] For these reasons, the appeal is dismissed.

DiTOMASO J.

Released: November 5, 2013