Court File and Parties

Court File No.: SCA(P) 22-480 Date: 2023 06 30 Ontario Superior Court of Justice Summary Conviction Appeal

Between: His Majesty the King, Respondent Amita Persad-Ford, for the Crown / Respondent

– and –

Matthew Priestley-Campbell, Appellant Alan D. Gold, for the Appellant

Heard: May 8, 2023

Reasons for Judgment [On Appeal from the Judgment of Justice K. Jalali, dated May 18, 2022]

J.M. WOOLLCOMBE J.

Introduction

[1] After a two day trial, the appellant was found guilty under s. 320.15(1) of the Criminal Code of Canada (“Code”) for failing to comply with a demand for an Approved Screening Device (“ASD”) sample made by a peace officer under s. 320.27 of the Code. He alleges that the trial judge made multiple errors that warrant setting aside his conviction and ordering a new trial.

[2] I shall address each of the errors alleged.

Whether the trial judge erred in finding that Officer Ratnakumar had in her possession an Approved Screening Device (“ASD”) that allowed her to make a lawful demand pursuant to s. 320.27 (2) of the Code

[3] A conviction under s. 320.15 requires the Crown to prove that there was a valid demand made under s. 320.27(2).

[4] Section 320.27(2) of the Code provides:

Mandatory alcohol screening

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer's opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

[5] The appellant submits, as he did at trial, that the Crown failed to prove beyond a reasonable doubt that the officer had an ASD in her possession at the time she made the demand. While the appellant acknowledges that Officer Ratnakumar testified that she had an ASD, he submits that her evidence cannot support a finding that the Crown has proven this element of the offence beyond a reasonable doubt because her evidence was inadmissible legal opinion. Proving that it was an ASD, submits the appellant, requires evidence of a valid legal opinion that the officer had an ASD in her possession.

[6] In her decision, the trial judge addressed and rejected the appellant’s submission that the officer’s evidence that she had an ASD with her did not amount to proof of this. In reaching that conclusion, she relied on the Court of Appeal decision in R. v. Gundy, 2008 ONCA 284 at paras. 40-41.

[7] The appellant submits, as he did before the trial judge, that Gundy is inapplicable because it was decided under the previous legislation, where the question was whether or not the officer had, on the basis of a failed ASD, reasonable grounds for a further demand. In that context, the Court of Appeal held that the officer need only have a reasonable belief that the instrument was an ASD. By contrast, counsel submits that under s. 320.27(2), the nature of the instrument must be proven beyond a reasonable doubt as an element of the offence. Thus, he submits, Gundy was not applicable.

[8] Gundy was a drinking and driving case in which one of the questions on appeal was what the Crown had to prove in order to show that the investigating officer made a valid Intoxilizer demand under the former s. 254(3) of the Code, where the officer’s ground for the demand depended on the results of a failed ASD. The Court grappled with how to decide whether the device used by the officer was, in fact, an ASD. In that context, Rosenberg J.A. held at:

44 In determining whether the particular device was approved, the court must consider all the evidence, including any circumstantial evidence. The court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his or her testimony refers to the device as an "approved screening device", the trial judge is entitled to infer that the device was indeed an approved device. As such, the officer is entitled to rely upon the "fail" recorded by the device to find that there were reasonable and probable grounds to make the breath demand.

45 The officer is not required to refer to the device by its particular brand and number such as "Alcotest 7410 GLC". Further, references to a part only of the identification such as "Alcotest" or "Alcotest GLC" do not rebut the reasonable inference from the officer's reference to the device as approved that it is indeed an approved screening device. The addition of the manufacturer's name, for example "Drager Alcotest 7410 GLC", is likewise not fatal: see R. v. Neziol (2001), 22 M.V.R. (4th) 299 (Ont. S.C.J.). Further, in my view, the context in which the officer refers to the device as approved is of no particular moment. Thus, if the officer testifies that he or she used an approved screening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely: see e.g. R. v. Latulippe (2005), 26 M.V.R. (5th) 97 (Ont. S.C.J.). [emphasis added]

[9] The decision in Gundy is consistent with earlier authority that “the unchallenged assertion by the officer that it was an approved screening device is sufficient proof thereof”: R. v. James, [1995] O.J. No. 190 (O.C.G.D.), at paras. 5-6; R. v. Kosa, [1992] O.J. No 2594 (C.A.), at para. 1; R. v. Latulippe, [2005] O.J. No 4521 (S.C.J.), at paras. 11-18.

[10] I recognize that none of these cases was decided under the new legislation and that the new provision of s. 320.27(2) authorizes a peace officer in possession of an ASD to make a demand for a breath sample in the absence of reasonable grounds to suspect: R. v. Breault, 2023 SCC 9, at para. 39. However, the fact that the question arises in a different context does not, in my view, undermine the analysis of the earlier cases, or the conclusion that an officer’s evidence that she had an ASD can amount to proof that she did. Nowhere in any of the cases decided in this context is there a suggestion that such evidence is inadmissible expert opinion evidence. Nor do I agree with counsel that it is.

[11] While a trier of fact must consider all of the circumstances in determining whether an officer had an ASD in his or her possession, unchallenged evidence from an officer that she did may support a finding that she did and that as a result s. 320.27(2) could be engaged. I see no error in the trial judge’s decision to accept Officer Ratnakumar’s unchallenged evidence that she had with her an ASD, and thus to find that her demand under s. 320.27(2) was valid.

[12] This ground of appeal must be dismissed.

Whether the trial judge erred in the manner in which she assessed the credibility of the appellant and Officer Ratnakumar’s evidence?

[13] The appellant makes three different arguments in support of his position that the trial judge erred in her assessment of his credibility. His credibility was crucial to two aspects of his defence. First, his evidence was important to his s. 10(b) Charter argument that he was not provided with rights to counsel until 4:00 a.m.. On this point, his evidence conflicted with the police evidence. Second, his evidence was important to undermine the police evidence on the refuse charge. In respect of the refuse, the appellant testified that he did not hear the officer properly and that he did not understand what the officer said when she made the demand. This conflicted with Officer Ratnakumar’s evidence. She testified that she made it clear to the appellant that providing a sample was not an option and that he would be arrested if he refused to do so and that he understood.

[14] The appellant’s position is the officer was not credible and that the trial judge improperly rejected the appellant’s evidence, preferring the officer’s evidence because she:

• Engaged in stereotypical reasoning about how an officer would behave and improperly rejecting his evidence on that basis;
• Failed to appreciate that when the officer went “off script”, she had little memory of details and so should not be relied upon; and
• Failed to accept the defence expert evidence demonstrating the appellant’s absence of motive to refuse to provide a breath sample.

[15] Credibility and reliability findings are in the province of the trial judge. They attract a high degree of deference on appeal. Trial judge’s reasons are not to be finely parsed in a line by line search for errors. They are to be read as a whole in the context of the evidence and issues, as well as the arguments at trial, with an appreciation of the function for which they are delivered. Appellate review must determine whether the trial judge took a balanced and fair approach to her credibility findings: R. v. A.A., 2015 ONCA 558, at para. 118; R. v. G.F., 2021 SCC 20, at paras. 81-82; R. v. Chung, 2020 SCC 8, at paras. 13, R. v. B.T.D., 2022 ONCA 732; R. v. Theriault, 2021 ONCA 517, at para. 140.

[16] Officer Ratnakumar and the appellant gave quite different versions of events as to what occurred after he was pulled over.

[17] According to the officer, after she initiated the traffic stop, she told the appellant that she had stopped him for speeding and slow driving and made a demand for his licence, ownership and insurance, Initially, he provided her with his health card, and then gave her his licence. She then read to him the ASD demand and asked if he understood. He said he did. She asked him to step out of his vehicle and he did. She said that she had an ASD in her pocket and that she explained to him how to provide a sample, the possible outcomes of what the ASD might show and what that might result in. He said he understood. She said that she put a new straw onto the ASD and informed the appellant how to provide a sample. He told her: “I refuse”.

[18] The officer did not recall the appellant saying he did not understand or asking if he had an option to refuse. She testified that she explained the consequence of refusing. This included telling him that refusing was a criminal offence and that he would be arrested and his licence would be suspended for 90 days and his vehicle impounded for 7 days. He said he understood and that he refused. Nothing led her to believe that he did not understand what she was saying. At 3:08 a.m., she advised him that she was arresting him. She handcuffed him, and requested a second unit with a male officer to attend to conduct a search prior to putting him into the police vehicle.

[19] The officer denied the suggestion made under cross-examination that she had been frustrated by the appellant looking in his glove compartment for documents and so she opened the car door and asked him to step out so she could see what was going on with him. She denied that she had taken him to her cruiser, 10 feet away, and commented on his speed being all over the place. She also denied that she was mumbling when she made the demand and that the appellant said he did not understand and asked if he had an option to refuse.

[20] The officer was asked if she had been fearful of the appellant because he was 6 foot 6 inches tall and weighed more than 300 pounds. She said that she was no more fearful or anxious than any other time she had arrested anyone.

[21] By contrast, according to the appellant, after the officer pulled him over, she came to his window and asked for his license and registration. He said that he looked in his wallet and mistakenly pulled out his health card. He explained that he had recently got a new green health card and that when he realized he had given her the wrong card, he corrected his mistake.

[22] According to the appellant, it was his mother-in-law’s car, which he drove infrequently, and so he told the officer he needed time to find the registration. He said that while he was looking, she said, “something’s going on with you. I want to see what’s going on with you.” He said that she opened the door and told him to step out of the vehicle. He said that at that point, he had no idea why he had been stopped. According to him, the officer then walked away from his car and told him to follow her, so he tried to. He said that he started to take a few steps and heard her mentioning that his speed was all over the place and that he had gone from 140 to 80. This gave him an idea, for the first time, as to why he had been pulled over.

[23] According to the appellant, after taking a few steps from his car, he realised it was still running, so he went back and turned it off. The officer continued to walk away from him, towards her car. After turning off his car, he saw the officer was at the passenger door of her vehicle. Under cross-examination, the appellant said that the officer had not previously told him to turn his vehicle off.

[24] The appellant said at that point, he walked towards the officer, staying six feet to maintain a safe distance. The officer started to speak. He could not quite hear her and said she wasn’t talking directly to him or facing him or looking at him. As he explained it:

So she starts to say something and I just — like I didn't quite understand, but I heard kind of small, like, different words and like, in her sentence that she was trying to say. So she said something about a demand, and she also said, she also said that refusal. She also said, would you like to provide a breath sample at the end of it. So I was just trying to pick apart words because I couldn't quite hear her, 'cause of the distance.

[25] The appellant said that while he could not hear what the officer said, he never asked her to repeat herself. Under cross-examination, he said that the officer had been reading something to him, but that he could not make it out. He then added that he assumed that she was reading because it had seemed scripted, and that she was reading or reciting something to him. He also said that she had something dark in her hand but he could not tell what it was. He said he did not hear what she said, but heard “refusing” so said “I know you said refuse, is that an option? Am I allowed to refuse?” She said refusal is an option and so he said he would take that option. He testified that he had thought refusal was an option and that had he known he could not, he would have complied with the demand. Under cross-examination, he added that he had told the officer, “Do I have an option – what do I – I don’t understand”, and that she did not re-read what she had said.

[26] According to the appellant, the officer never showed him the ASD and never pointed to it or showed him what she was holding or told him to blow into it. She never demonstrated to him the purpose of the object in her hand. She just arrested him for his refusal.

[27] Sergeant Jaswal arrived on the scene at 3:09 a.m., at which point the appellant had been arrested and was handcuffed. He was standing on the shoulder between his car and the police cruiser. Sergeant Jaswal conducted a search and assisted in getting the appellant into Officer Ratnakumar’s cruiser.

[28] According to the appellant, after his arrest, Sergeant Jaswal asked him, “have you had anything to drink tonight?” The appellant responded, “no”, which he said “wasn’t literally true”. He testified that he said it “because I had a casual drink. Two drinks…” He then explained that when the officer asked if he had been drinking, he took it to mean “partying or clubbing or something like that”. The appellant agreed that he had lied to the officer, because he “interpreted drinking to mean over a period of time” and that all he had was a “casual drink”.

[29] In her reasons, the trial judge explained that she rejected the appellant’s evidence and it did not leave her with any doubt. The appellant takes issue with the explanations the trial judge gave as to why this was.

The submission that the trial judge rejected the appellant’s evidence on the basis of stereotypical reasoning regarding police behaviour

[30] The appellant says that the trial judge engaged in rejecting the appellant’s evidence as to what occurred because she engaged in “stereotypical reasoning regarding police behaviour and the trial judge’s opinion regarding what a police officer would or would not do.”

[31] In support of this argument, the appellant points to the following passage in the trial judge’s analysis, one of the paragraphs in which she explained why she rejected the appellant’s evidence. The trial judge held:

Mr. Priestley-Campbell's version did not make any sense. He said he was pulled over and not advised as to the reason for the stop. He said the officer told him to get out of the vehicle because she said there was something wrong with him, yet she walked away from him and turned her back to him. He said on two or more occasions he was left alone by the officers, once when she opened his door and asked him to step out she started walking to her cruiser' even turning her back on him. I find this odd, and Mr. Priestley-Campbell even conceded this in cross-examination. It was 3:00 in the morning at the side of an off ramp from the 410 highway. Officer Ratnakumar is significantly smaller in stature than Mr. Priestley-Campbell. Why would she open his door, telI him to get out, and then walk away and turn her back to him? The second instance, Mr. Priestley-Campbell said happened when he was handcuffed and by the officer's cruiser. He said Sergeant Jaswal had just left him there to go speak to Officer Ratnakumar and he tried to get into the back of the cruiser by himself. I cannot imagine a detainee being under arrest and in handcuffs and not be assisted by the officer to get in the cruiser. I note on this point that both Officer Ratnakumar and Sergeant Jaswal denied that this occurred, and I accept their version.

[32] I do not read the trial judge’s analysis as her engaging in the sort of “stereotypical reasoning” alleged. The trial judge had heard two very different versions of events as to what happened. It was open to her to conclude that the appellant’s version of events made no sense. On his evidence, he was left alone by the police on two occasions, evidence that did not accord with the officers or with common sense:

a. First, on his evidence he was never told why he had been arrested and was told to get out of the car because the officer was frustrated by him. According to him, the officer then left him at his vehicle, which was still running, and walked back to her car. This left the much larger appellant alone, with the officer’s back to him as she walked away at 3:00 a.m. The trial judge did not find that the appellant’s version of events was incredible because it was inconsistent with typical police behaviour. She concluded that his version was not only inconsistent with the officer’s evidence, but was also not believable. It was not credible that this officer, in these circumstances, would have said nothing as to why she had stopped him, would have asked him to get out of her vehicle and then would have walked away to her own vehicle leaving him, at his car, which was still running. It was illogical to accept that this would have happened when her evidence was that she was making an ASD demand.

b. Furthermore, the trial judge observed that the appellant’s evidence that he had been left alone for a second time did not make sense. On his evidence, after having been handcuffed, Sergeant Jaswal walked him to the back of Officer Ratnakumar’s vehicle, opened the door, and then just left him there and walked away. He said he was then trying to figure out the best way to manoeuvre his way into the vehicle. This, of course, did not accord with Sergeant Jaswal’s evidence about how the appellant was assisted in getting into the cruiser. He had said that the appellant was handcuffed before he arrived and that after searching him, he attempted to put him in the rear of Officer Ratnakumar’s car. He denied ever having walked away and having the appellant come up to him and ask for assistance getting into the police cruiser. On this evidence, it was open to the trial judge to conclude that the appellant’s evidence about being left alone by police for a second time, which conflicted with both officers, was not credible.

The allegation of improper credibility findings respecting Officer Ratnakumar

[33] The overarching defence position at trial was that Officer Ratnakumar’s evidence was not credible because she testified using what counsel characterized as a “script” that created a “seamless narrative”, rather than notes that could properly be used to refresh her memory. As a result, the defence position was that the officer should not be believed as her version of events was really just her repeating what was in her script.

[34] The officer’s testimony is important. At the outset of her evidence, the officer was asked if she made notes about the date in question. She testified that she had made notes shortly after releasing the appellant. While she had an independent recollection of the events, she said she needed her notes to refresh her memory. During her evidence in chief (she was testifying by videoconference), defence counsel asked if the officer was only using her notes to refresh her memory. The trial judge specifically asked her about this, and the officer said that she was “not reading” and that she was using her notes to refresh her memory and was “glancing at her memo book” while she testified.

[35] The officer was cross-examined at length on her notebook entries, with the suggestion being made that her notes were really a script. In his submissions, counsel suggested that the officer’s evidence was not credible, and that it was “obvious” that the officer had no memory of the events and that she had just prepared a script. He suggested that this should make the trial judge “very suspicious” of the officer’s credibility as he said it was “odd behaviour” for the officer “to have a narrative to parrot in the courtroom”. Further, he highlighted that there were multiple areas in which the officer had indicated she did not recall things and that in the end, the trial judge should conclude that she had no reliable evidence as to what happened at the roadside. On this basis, the submission was made that the appellant’s evidence should, at least, raise a reasonable doubt that he understood the demand and should establish his claim of a s. 10(b) breach on a balance of probabilities.

[36] In her decision, the trial judge made the following finding respecting the Officer Ratnakumar:

… I found Officer Ratnakumar's evidence very credible and reliable. She made concessions when they were reasonable (that she did not hear the conversation between Sergeant Jaswal and Mr. Priestley-Campbell about the ride arrangement to get home). She did not exaggerate her observations and she readily conceded parts she did not recall precisely. I found her evidence to be very detailed, clear and forthright.

[37] Trial judges are best positioned to make credibility findings about the witnesses who testify before them. The trial judge was provided with fulsome submissions by counsel as to why she should not find the officer’s evidence credible or reliable. It was for her to decide the impact, if any, of the existence of the officer’s detailed notes, said by the defence to be a “narrative script”. The trial judge’s conclusions respecting credibility and reliability are to be accorded deference on appeal. Having reviewed the record that was before the trial judge, including the submissions of counsel, I find no basis to interfere with the trial judge’s finding about the officer’s credibility and the reliability of her testimony.

The conclusion that the expert evidence was entitled to no weight

[38] The appellant submits that the trial judge erred in failing to give appropriate weight to what is said to be a proven lack of motive for him to have refused to provide the sample.

[39] At trial, pursuant to s. 657.3(3) of the Code, the defence adduced a report prepared by Dr. Joel Mayer. He estimated, based on what he was told by the appellant (which is also what the appellant testified to at trial), that the appellant’s blood alcohol concentration (“BAC”) at the time of the incident, would have been about 15 mg of alcohol in 100 mL of blood, well below the legal limit. On the basis of this report, the defence contended that the appellant had no motive to refuse to provide a breath sample.

[40] In her reasons, the trial judge found as follows:

Despite Mr. Gold's valiant efforts to introduce the forensic toxicologist's affidavit to show that his client had no reason to refuse the demand, I once agree with the Crown that it is not relevant in this case. Firstly, the affidavit is not based on any objective factors but only on Mr. Priestley-Campbell's subjective evidence (he told the toxicologist how much he drank that night).

I have already, for the reasons above, indicated why I reject Mr. Priestley-CampbelI's version.

[41] For the detailed reasons she provided, the trial judge made clear that she did not accept the appellant’s evidence as credible. Dr. Mayer’s report was based on the appellant’s version of events as to how much he drank on the night in question. The report was only relevant if the facts underlying its conclusions were accepted. For the reasons given by the trial judge, the appellant’s evidence was not accepted. Accordingly, she made no error in finding the report was not relevant and did not assist the appellant.

Whether the trial judge reversed the burden of proof and mis-applied the principles in R. v. W.(D), [1991] 1 S.C.R. 742 when she characterized the appellant’s testimony as “self-serving”

[42] The appellant takes issue with the trial judge’s conclusion that, in general, she found the appellant’s evidence to be “self-serving”. The appellant submits that rejecting his evidence because it was self-serving eroded the presumption of innocence.

[43] Recently, in R. v. Myles, 2023 ONCA 90, while declining to intervene on the basis of the accused’s evidence having been characterized as “self-serving” the Court of Appeal commented, at para. 24, that:

… use of the pejorative term "self-serving" in characterizing the appellant's evidence is not helpful. Parties usually testify in their own self-interest and their testimony could always be characterized as "self-serving". But that description does no analytical work and is best avoided by trial judges.

[44] Appeal courts have pointed out that characterizing an accused person’s evidence as self-serving is not helpful and may, but does not necessarily, reflect reversible error. It is an error to assume that an accused’s evidence is inherently suspect because as an accused, it is advantageous to misrepresent or reconstruct events. Disbelieving an accused because of his interest in being acquitted amounts to reversible error because it displaces the presumption of innocence: R. v. B.(L), (1983), 82 C.C.C. (3d) 189 (Ont.C.A.).

[45] Assessing the defence submission requites an assessment of the trial judge’s comments in context. She said:

In general, I found Mr. Priestley-CampbeII's evidence to be self-serving. He even admitted that he lied to the police on the night in question when they asked him if he had anything to drink. Even though he had two drinks, he considered them to be casual drinks and not in a party setting or in a clubbing environment. I find this concerning. The question was very clear, "Have you had anything to drink?" and not, "Did you go clubbing or partying?" The question had nothing to do with that. The officer was asking a straightforward direct question and though Mr. Priestley-Campbell knew the answer he chose to lie for his own benefit.

[46] In my view, the trial judge’s reasons, when viewed as a whole, reflect a concern about the appellant having acknowledged lying to police and having provided an explanation for doing so that defied logic or common sense. When asked a clear question as to whether he had had anything to drink, he chose to lie and say he had not. At trial, his explanation was that even though he had consumed two drinks, he said he had not had anything because he thought what he had consumed was “casual drinks” and that the officer had really been asking if he had been clubbing or partying. As she was entitled to, the trial judge found that there had been nothing confusing about the question. She concluded that the appellant had chosen to lie and then to try to explain the lie in a manner that was unsatisfactory and problematic. Characterizing the appellant’s evidence as self-serving, in this context, really added little. Effectively, the trial judge was conveying that the appellant had admitted lying for reasons that made no sense, a factor that she found was relevant to his credibility and the reliability of his evidence.

[47] This is not a case in which the trial judge rejected the accused’s evidence because it was favourable to him. Instead, she explained that his evidence raised a concern about the veracity of his evidence generally, and gave her cause to find him not credible. I am not persuaded that the trial judge’s use of the term “self-serving” reversed the burden of proof or meant that she unfairly assessed the appellant’s evidence.

Whether the trial judge erred in finding no s. 10(b) Charter violation

[48] While not addressed in his oral submissions, counsel for the appellant raised in his factum that the trial judge had erred in law in dismissing the appellant’s s. 10(b) Charter argument because there was no attempt at implementation without delay.

[49] It was the appellant’s evidence that after he was arrested, Officer Ratnakumar did not provide him with his rights to counsel. He said he was in the back seat of the police car for what felt like an hour with no mention of a lawyer. He said that it was at around 4:00 a.m. that Sergeant Jaswal asked Officer Ratnakumar if she had asked him if he wanted counsel. She said she had not. He said that it was Sergeant Jaswal who then asked if he wanted counsel. He said he did. He testified that it was at that point that he directed Officer Ratnakumar to give him a cell phone. According to him, he then realised that everyone would be asleep and asked to speak to duty counsel. He disagreed with Officer Ratnakumar’s evidence that she had read him rights to counsel at 3:20, 12 minutes after his arrest.

[50] The trial judge accepted the evidence of Officer Ratnakumar as to the timing of critical events. She testified that she arrested the appellant at 3:08 a.m. and read him his rights to counsel at 3:20 a.m. He indicated that he understood and when asked if he wanted to contact counsel, he said, “No, I will call a lawyer tomorrow”. In view of the officer’s notation of this specific question and specific answer, it was open to the trial judge to prefer her evidence over the evidence of the appellant that it was not until 4:00 a.m. when Sergeant Jaswal asked whether he had spoken to counsel that he was offered the opportunity to speak to counsel. As the trial judge noted, both officers denied that the appellant ever asked to speak with his own lawyer or duty counsel.

[51] The trial judge found that the delay from the arrest until 3:20 a.m., when the appellant was provided with his right to counsel, was explained by the need for officer safety and the need to accommodate the appellant sitting in the back seat of the cruiser. In terms of officer safety, after Officer Ratnakumar called for backup, Sergeant Jaswal, who was to conduct the search, arrived on scene at 3:09 a.m. The search had to be conducted before he could be placed in the back seat. There followed a delay in safely securing the appellant in the back of the police vehicle, which the trial judge found was reasonable.

[52] In my view, the appellant has not demonstrated an error in the trial judge declining to find that he had established a breach of s. 10(b) right.

Conclusion

[53] For the reasons set out, the appeal is dismissed.

Woollcombe J. Released: June 30, 2023