COURT FILE NO.: SCA(P) 1131/21 DATE: 20230119 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN:

HIS MAJESTY THE KING Appellant

Patrick Quilty, for the Crown Appellant

– and –

KEVIN LAVOIE Respondent

Michael Lacy/Bryan Badali, for the Respondent

HEARD: August 22, 2022

REASONS FOR JUDGMENT

[On Appeal from the Judgment of Justice K. Jalali, dated September 15, 2021]

Tzimas J.

INTRODUCTION

[1] This is an appeal by the Crown (the Appellant) of Justice Jalali’s verdict to acquit Kevin Lavoie, (the Respondent) of the charges of impaired operation and excess blood alcohol, contrary to sections 320.14(1)(a) and 320.14(1)(b) of the Criminal Code.

[2] The Appellant contends that the trial judge misapprehended the evidence and therefore erred in her finding that the police breached the respondent’s s.10(a) and 10(b) Charter rights, her exclusion of the breath samples from the evidence and her acquittal of the Respondent. The Appellant therefore asks this court to set aside acquittals, rely on the breath samples to enter a conviction, or alternatively to order a new trial.

[3] The Respondent disagrees. He submits that the Appellant is seeking to re-litigate the trial judge’s findings. The trial judge did not misapprehend the evidence. The factual findings she made were available to her to make. On the strength of those findings, the trial judge correctly found that the police violated the Respondent’s Charter rights. She was also correct to exclude the breath sample evidence and therefore arrive at an acquittal.

[4] Having reviewed the submissions of counsel, the trial transcript and the trial judge’s decision, I find that the five-minute lapse between the police’s first contact with the Respondent and his arrest, combined with the intervening information-gathering by the officer, is insufficient to ground a s.10(a) Charter breach. I am therefore satisfied that the trial judge erred in her finding that the Respondent’s s.10(a) Charter right was breached.

[5] However, the evidentiary record fully supports the trial judge’s finding that the Respondent’s s.10(b) Charter right was violated. In my review of the evidentiary record, I am satisfied that the trial judge’s findings, including her assessment of the officer’s interaction with Respondent as a “flagrant disrespect” of the Respondent’s rights, with which I agree, was fully grounded in the evidence.

[6] On the strength of the trial judge’s findings concerning the police’s level of disrespect and absence of good faith in their attempt to enable the Respondent to speak to his counsel, and combined with my own observation that there was sufficient evidence to find that the Respondent did not appear to have fully understood the advice he received from duty counsel about his legal rights and obligations, I am satisfied that there is no reason to disturb the trial judge’s s.24(2) analysis and her decision to exclude the breath sample evidence. Even with my rejection of a s.10(a) breach, the magnitude of the breach of the Respondent’s s.10(b) Charter right is sufficient to support the trial judge’s decision to exclude the breath sample evidence.

[7] In the result, the appeal is dismissed. The trial judge’s order to exclude the breath sample evidence and the Respondent’s acquittal is affirmed.

TZIMAS J. Date: January 19, 2023