COURT FILE NO.: CR-21-70000010-00AP

DATE: 20231207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

MARIA-MARTA JAMES

Appellant

J. Andres Hannah-Suarez, for the Crown

Stephen Whitzman, for the Appellant

HEARD: November 30, 2023

DINEEN J.

Overview

1The Appellant was charged with impaired operation of a motor vehicle and with having excess blood alcohol within two hours of operating a motor vehicle. She applied for a stay of proceedings, or in the alternative the exclusion of evidence, based on alleged violations of her rights under ss. 7, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms. Her trial proceeded as a blended voir dire before Rutherford J.

2The Charter application had two main components. First, the Appellant argued that the police had failed to make a breath demand at any time, did not promptly inform her of her right to counsel upon her arrest, and had unreasonably refused to permit her to call a lawyer at the scene of the arrest using her cell phone. Second, the Appellant sought a remedy for the unexplained loss of the in-car camera recording that would have captured her interactions with the police at the scene and on the drive to the police station.

3Following a three-day proceeding, on December 17, 2020 the trial judge delivered reasons in which she found breaches of ss. 7, 10(a) and 10(b), excluded the evidence of breath samples taken from the Appellant on the night in question, and acquitted her of the excess alcohol offence. The trial judge however declined to order a stay of proceedings and convicted the Appellant of impaired driving. The Appellant appeals this conviction.

4In his able submissions on her behalf, Mr. Whitzman focused primarily on the allegation that the Appellant received ineffective assistance from her trial counsel. This argument rests on trial counsel’s decision to call the Appellant with the agreement that her testimony could be used on both the voir dire and the trial. In the course of her evidence, the Appellant admitted that she was sufficiently impaired by alcohol that she was in no condition to drive at the relevant time and the trial judge referred to this testimony in convicting her. The Appellant argues that trial counsel failed to inform her of the possibility of testifying solely on the voir dire and failed to give her competent advice about her options.

5The Appellant also challenges the trial judge’s Charter ruling, submitting that the trial judge should have found a further s. 10(b) breach and that a stay of proceedings or the exclusion of the observations of the arresting police officers should have been ordered.

Overview of the facts

The evidence at trial

6The Appellant’s arrest took place on the evening of June 6, 2019. It followed a 9-1-1 call placed by Molly Deal, who saw the Appellant stagger across the road wearing only one shoe and get into the driver’s seat of an SUV. She testified that she saw the vehicle pull out and do a U-turn, and the passenger’s side wheels jumped up onto the curb in the process. The vehicle then parked by nearby tennis courts. Ms. Deal was concerned that the Appellant was seriously impaired and might drive again and so she called 9-1-1 when she returned home some five to seven minutes later to report what she had observed.

7Two police officers – Officer Lashley and Officer Javed – responded to the call and located the Appellant in the driver’s seat of her vehicle with the engine running at 8:54 p.m. The Appellant was slumped over the steering wheel and music was playing which the officers described as loud. The police knocked on the window several times until the Appellant woke up. She appeared to have difficulty opening the car door, pressing several buttons in the car and stepping accidentally on the gas petal causing the engine to rev before she rolled down her window. Both officers testified that they detected a smell of alcohol on her breath. When she left the vehicle as requested by the police, she appeared unsteady on her feet and was wearing only one shoe.

8At 8:58 p.m., Officer Lashley arrested the Appellant for impaired driving and handcuffed her. On all accounts, the Appellant immediately and persistently asked to speak to a lawyer right away, identifying her brother and her cousin as lawyers she wished to call.

9The Appellant testified on both the voir dire and the trial. Her evidence differed from that of the officers on a number of factual questions about what took place at the scene including: whether the Appellant was immediately informed of her right to counsel upon arrest; whether she was given a breath demand at any point; and, whether she told the police the location of her cell phone in her purse and whether they looked for it in an effort to implement her right to counsel.

10In addition to testifying about these subjects, the Appellant gave evidence touching on the indicia of impairment described by Ms. Deal and the officers. She testified that she had unsuccessfully contested a union election earlier in the day and had consumed three cups of homemade wine at a social gathering at her tennis club that afternoon. She fell asleep and when she woke up her friends had departed and she could not locate one of her shoes.

11The Appellant testified that she went to her car simply to park it closer to the tennis club before calling an Uber. She denied Ms. Deal’s evidence that she mounted the curb in doing so and testified that what Ms. Deal observed to be walking unsteadily could be consistent with how she usually walks as a “hyper” person. The Appellant turned the music on in her car but disagreed with the police evidence that it was “blaring.” Still feeling very tired and emotionally upset by the election loss, she did mindfulness exercises in the car that led her to fall asleep until she was awoken by the police. She explained the police’s observations that she touched several buttons when they woke her up by saying that she was turning the music and air conditioning off. She acknowledged accidentally revving the engine, saying that she was surprised to wake up and see the police there.

12The officers and the Appellant left the scene at 9:18 p.m. and arrived at 41 Division at 9:34 p.m. The Appellant was again informed of her right to counsel and a call was placed to the Appellant’s cousin at 10:02 p.m. The call ended at 10:20 p.m. and the Appellant subsequently provided two breath samples, with readings of 177 and 187 milligrams of alcohol in 100 millilitres of blood. The breath technician did not make a demand for a breath sample, understanding that this had already been done.

13In cross-examination, the Appellant was pressed on the reason she intended to take an Uber. She agreed with the suggestion that the homemade wine she consumed seemed stronger than normal wine by its effects on her. She further agreed that she had believed she was not in a condition to drive because of the effects of the alcohol.

The trial judge’s reasons

14The trial judge found that both officers and the Appellant were credible witnesses who testified to the best of their recollections. She found that the unexplained loss of the in-car video was a breach of the Appellant’s s. 7 right and that it would have provided reliable evidence to resolve the conflict in the evidence about whether a breath demand was made and when the Appellant was informed of her right to counsel. While not finding “gross negligence” by the Crown or police, she concluded that the loss reflected “extreme carelessness on the part of the state.” The trial judge also found a breach of s. 10(a) in reliance on the defence’s loss of the ability to access the video evidence in support of its claim under that section. While she did not expressly find a breach of s. 10(b), I am satisfied that, reading her reasons as a whole, she also found that as a result of the loss of the video she would resolve in the Appellant’s favour the issue of whether timely information about the right to counsel was provided.

15However, the trial judge rejected the defence’s request for a stay of proceedings, holding that this was not the “clearest of cases.” She also concluded that it was reasonable for the police to delay implementation of the Appellant’s s. 10(b) right until she was at the police station where security and privacy were possible. However, based on the lost evidence, the uncertainty about the Appellant’s understanding of her right to counsel, and the failure to make a breath demand, the trial judge excluded the readings of the Appellant’s breath samples from evidence and acquitted her of the excess alcohol charge.

16With respect to the impaired driving count, the trial judge found that Ms. Deal’s evidence about her observations was reliable, including her evidence that the Appellant mounted the curb. The trial judge noted that the Appellant acknowledged in her evidence that she was affected by alcohol to the point that she knew she should not drive when she entered her vehicle, and that she was evidently intoxicated when investigated by the police. The trial judge was satisfied beyond a reasonable doubt that the Appellant’s ability to operate a motor vehicle was impaired by alcohol.

The grounds of appeal raised by the Appellant

Issue 1: Was the Appellant’s trial rendered unfair by the ineffective assistance of counsel?

The principles applicable to a claim of ineffective assistance of counsel

17To succeed on a claim of ineffective assistance of counsel, an appellant must establish:

• (1) the material facts that underpin the claim;

• (2) the incompetence of the representation provided by counsel (the performance component); and,

• (3) a miscarriage of justice as a result of the incompetent representation (the prejudice component).

The appellant bears the burden of establishing the facts supporting her claim of ineffective assistance on a balance of probabilities. See R. v. G.D.B. 2000 SCC 22, 2000 S.C.C. 22 at para 27-29 and R. v. Archer (2005) 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.) at para 119-142.

18On the performance component, counsel’s conduct is evaluated against a standard of reasonableness. The analysis starts from a strong presumption that counsel’s conduct fell within “the wide range of reasonable professional assistance.” The exercise is not to grade or dissect counsel’s representation of an accused long after the fact and hindsight has no place in this analysis. The appellant must show that trial counsel’s acts or omissions were unreasonable in that they fell below existing professional standards of reasonable skill and judgment. An appellate court’s review of trial counsel’s performance should be deferential, given the broad spectrum of professional judgment that might be considered reasonable: R. v. White (1997) 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 (Ont.C.A.) at para 63-64

19The prejudice component is concerned with whether a miscarriage of justice has occurred. Even assuming that an appellant establishes that counsel’s conduct fell below competence standards, a new trial will only be ordered where the Court is satisfied that a miscarriage of justice has occurred. An appellate court is not to look behind every decision made by defence counsel. The examination of such decisions is only warranted where it is essential to prevent a miscarriage of justice. In G.D.B., the Supreme Court identified two ways in which counsel’s performance may occasion a miscarriage of justice: procedural unfairness or an unreliable verdict. To establish the former, the appellant must show a reasonable probability that his counsel’s conduct deprived him of a fair trial. To satisfy the latter, the appellant must show that there is a reasonable probability that the verdict would have been different had the appellant received effective legal representation

20Paciocco J.A. recently described the trial fairness component as follows in R. v. Fiorilli 2021 ONCA 461:

The trial fairness branch of the prejudice component is concerned with the “adjudicative fairness of the process used to arrive at the verdict”: Joanisse, at p. 57. Occasionally, appellate courts refer to “procedural” fairness instead of trial fairness to describe this branch: see e.g., R. v. G.D.B., at para. 34; Prebtani, at para. 4. In Joanisse, when illustrating the kinds of infirmities in legal representation that might cause a trial to become unfair, at pp. 62-63, Doherty J.A. spoke of lawyers who are intoxicated throughout a trial, or who are acting in a conflict of interest. In such cases, the incompetence is so pervasive that it destroys the fairness of the adjudicative process at trial, thereby amounting to a constructive denial of the assistance of counsel: Joanisse, at pp. 62-63.

Some of the decisions that must be made during the course of a trial, such as the mode of trial, whether to testify or plead guilty, or whether to advance the defence of not criminally responsible, are so fundamental to procedural fairness that counsel’s failure to permit the appellant to make the decision, or to provide effective advice on the matter, can raise questions of procedural fairness: R. v. G.D.B., at para. 34; R. v. Trought, 2021 ONCA 379, at paras. 46-50.

Where the trial fairness branch of the prejudice component is at issue, the focus is, in fact, on “the appearance of the fairness of the trial”: Archer, at para. 120. This is in keeping with the principle that “justice must not only be done, but must manifestly be seen to be done”: Joanisse, at p. 63, citing R. v. Cook and Cain (1980), 1980 CanLII 2839 (ON CA), 53 C.C.C. (2d) 217 (Ont. C.A.), at p. 224. If counsel’s performance has undermined the appearance of trial fairness, no further prejudice need be established: R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at para. 14.

The Appellant’s claim of ineffective assistance

21The governing authorities establish that I must first consider whether a miscarriage of justice resulted from the alleged ineffective assistance before making any determination about the competence of counsel’s representation. This reflects the fact that my task is not to grade counsel’s performance but to determine whether the verdict below must be set aside.

22The Appellant does not argue that counsel’s representation led to an unreliable verdict. I am satisfied that the verdict is irreproachable. Even leaving aside the admissions made by the Appellant in her evidence, the observations made by Ms. Deal and the police officers in my view overwhelmingly establish the Appellant’s guilt on the impaired operation count.

23Instead, the Appellant submits that a miscarriage of justice arose from trial counsel’s failure to explain to her the possibility of testifying solely on the Charter voir dire while not permitting her evidence to be used in the trial proper, and from his failure to give competent advice about the risks of testifying on the trial. She submits that these failings led her to effectively confess to the offence while testifying. The position of the Appellant is that an appearance of unfairness would result if she were permitted to be convicted on the basis of her self-incrimination flowing from inadequate legal representation.

24As is usual in ineffective assistance appeals, both the Appellant and trial counsel prepared affidavits and were cross-examined.

25Trial counsel disagrees that he failed to tell the Appellant that she could testify only on the voir dire. He testified on the appeal that, while he may not have used the legal term “voir dire,” he explained the distinction between this proceeding and the trial to her in plain language and communicated that her options included testifying on one and not the other. His position is that his advice to her was that her evidence was not necessary to succeed on the Charter issues and so he would not have advised her to testify only on the voir dire. The primary purpose of her evidence from his point of view was to assist the defence case on the merits of the impaired operation offence by offering an alternative explanation for the indicia of impairment observed by the Crown witnesses. His view was that the Appellant would inevitably be convicted without such an explanation.

26Both trial counsel and the Appellant agree that they had many conversations about whether she should testify. According to the Appellant, she was very reluctant to do so, in part based on advice she received from her boyfriend, who is also a lawyer. The Appellant understood that it was her decision whether or not to testify. While she did not wish to do so, she ultimately relied on trial counsel’s advice and agreed to pursue his chosen strategy.

27Trial counsel testified that he extensively prepared the Appellant to testify and conducted mock cross-examinations. The Appellant acknowledged that mock cross-examinations took place. According to trial counsel, he was taken by surprise at trial when the Appellant under cross-examination agreed that she had consumed too much alcohol to drive. In their preparations and in the mock cross-examinations, she had attributed her apparent indicia of impairment and her belief that she should not drive to other factors including her emotional state and tiredness. This was, as I have described, the main purpose of her evidence from his point of view. The Appellant, by contrast, testified that she told her trial counsel that she would testify that alcohol consumption was part of her rationale for not driving home.

28I accept trial counsel’s evidence on this point. It is more consistent with how events unfolded at trial.

29In her examination in-chief at trial, when asked if she felt in a position to drive when she entered her vehicle, the Appellant said that she did not. Trial counsel asked her to elaborate on her plan that night and she described feeling exhausted and unhappy and in a bad state emotionally. She said these feelings led to her desire to take an Uber and to her falling asleep in the car.

30It was not until she was cross-examined that the Appellant agreed with the direct suggestion that she had been consuming alcohol to the point that she should not be driving. When cross-examination along these lines continued with suggestions that her alcohol consumption might affect her memory or have caused her to fall asleep, trial counsel objected on the basis that the Appellant was not an expert on the effects of alcohol. While the trial judge rejected this objection, the Appellant then re-iterated her evidence in chief that other factors had left her exhausted and testified that the alcohol did not contribute to her falling asleep. It appears to me that trial counsel’s objection had the effect of re-focusing the Appellant on the defence trial strategy of attributing the signs of impairment to other factors.

31In closing submissions, trial counsel staked his case on both charges almost entirely on the requested Charter relief. The trial judge told him he had done an “admirable job” advocating for this relief but repeatedly encouraged him to make submissions in the alternative about the merits of the charges. Trial counsel did seek to rely on possible alternative explanations for the observed indicia of impairment, while acknowledging somewhat ruefully that the Appellant had given “forthright” testimony that did not assist her position on this point.

32Trial counsel attached to his affidavit on this appeal a text message exchange with the Appellant that followed her testimony. In his messages, he expressed the hope that her admission “rendered a lot of credibility to her evidence” and that this might inure to the defence benefit on the Charter application. He further expressed the opinion that there was “no way” the trial judge would have found the Appellant was not impaired in any event. The Appellant said of the trial judge “she can do anything now that I admit to it and that made the Crown happy” and in an apparent reference to the Crown’s suggestions that she felt too drunk to drive said that she “went along with it.”

33In my view, these events strongly support trial counsel’s recollection that he was taken by surprise when the appellant testified that she had consumed too much alcohol to be in a position to safely drive.

34Mr. Whitzman submits that, even if trial counsel did not specifically anticipate that the Appellant would admit that she was too impaired by alcohol to drive, the risk of such an admission was obvious and outweighed any benefit of her testifying on the trial proper. Given how much the Appellant had to drink, the suggestion that it had contributed to her feeling unable to drive was almost irresistible and the prospect of her raising a reasonable doubt with alternative explanations was entirely unrealistic. Trial counsel was well aware of how much the Appellant would say she had consumed: he testified that he rejected her suggestion that she could falsely claim to have only had one drink.

35While there is certainly some force in this argument, my task is not to employ an exacting degree of scrutiny informed by hindsight to second-guess the wisdom of trial counsel’s strategic decisions. It is easy to say given how this trial played out that it would have been better to call the Appellant only on the voir dire or not at all. Even so, it appears to me that a conviction on the merits was virtually inevitable even if the Appellant had not testified on the trial proper. Trial counsel also testified that he believed the Appellant’s conduct on the booking video had left a poor impression on the trial judge and he thought that if she were to testify she would come across much more favourably and that this might assist with both the trial and the voir dire. I cannot say that this was a wholly unreasonable view. In my view, the need for deference towards defence tactical decisions at trial is even greater in a situation where counsel is facing a formidable case and choosing among challenging options.

36In asserting that a miscarriage of justice occurred here, the Appellant places substantial reliance on the Court of Appeal’s decision in R. v. Trought 2021 ONCA 379, a case with some similarities to the case at bar. In that case, an ineffective assistance of counsel claim was accepted where trial counsel called the accused on a blended voir dire / trial and the accused admitted the elements of the offence.

37However, there are important differences between Trought and the case at bar. Trotter J.A. found there that Mr. Trought was never told in advance that his testimony could be used on the trial proper, and that trial counsel made this decision in the middle of his evidence without having considered the matter or sought instructions from his client. He also found that trial counsel did not explain the elements of the offence to Mr. Trought to enable him to understand that he was effectively admitting guilt.

38By contrast, in the case at bar there is no question that the Appellant understood the nature of the offences. She was a relatively sophisticated client who had close personal relationships with a number of lawyers and she obtained a second opinion about the conduct of the trial from a senior criminal lawyer before the first trial date. She also does not claim that she did not understand that her evidence could be used against her on the trial proper. Her claim rather is that the option of testifying only on the voir dire was not explained. I prefer trial counsel’s recollection on this point. In any case, the significance of this option appears to have been low given that the Appellant’s wish was not to testify at all, while trial counsel’s strategy (to which she acceded) specifically rested on her evidence being used on both the voir dire and the trial. There is no reason to believe that the Appellant would have chosen to testify only on the voir dire even had this option been explained to her in a different or clearer way given that this option accorded with neither her nor her counsel’s preferences.

39In my view, the advice given by trial counsel cannot represent the type of incompetence capable of giving rise to an appearance of unfairness that would fatally taint the conviction. The Appellant understood that whether to testify was her choice. She knew she was testifying on the trial proper and understood the legal effect of the admissions she ultimately made. Trial counsel has articulated a rationale for the advice he gave that is not so unreasonable as to displace the “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance” (Joanisse at para. 60). I conclude that the fact that cross-examination elicited damaging admissions and that counsel possessing the benefit of hindsight would obviously urge different choices on the Appellant is not a basis to set aside this reliable verdict.

40The resolution of this issue was substantially complicated by trial counsel’s failure to obtain written instructions about the decision to testify or to keep contemporaneous notes of his preparation of the Appellant for her testimony. I note the following admonition from Trotter J.A. in Trought at paragraphs 76-78:

The lawyer who fails to obtain written instructions risks exposure to unfounded allegations of unprofessionalism: see Christine Mainville, “Professionally Serving and Managing Clients: Defence Counsel’s Role in the Solicitor-Client Relationship”, For the Defence, 39:3 (13 February 2019), at p. 9. And although not indicative of ineffectiveness itself, the failure to obtain instructions may undercut trial counsel’s attempts to defend against claims of ineffectiveness.

The failure to obtain written instructions also makes it more difficult for an appellate court to adjudicate claims such as the one advanced on this appeal: see R. v. Hamzehali, 2017 BCCA 290, 350 C.C.C. (3d) 71, at para. 76, leave to appeal refused, [2017] S.C.C.A. No. 380, and R. v. Wells (2001), 2001 CanLII 24130 (Ont. C.A.), at para. 61. Written instructions may resolve competing claims on appeal. In R. v. Archer (2006), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), Doherty J.A. observed, at para. 143, “The largest hurdle faced by the appellant in trying to convince the court that the decision to testify was made by trial counsel is the direction signed by the appellant during the trial.” Similarly, in Faudar, at para. 82, Tulloch J.A. referred to a reporting letter sent by trial counsel about the perils of constructive possession. The same approach would also have been helpful in this case, avoiding the necessity of dueling affidavits and cross-examinations.

Issue 2: Did the trial judge err in declining to grant a stay of proceedings?

41The Appellant challenges the trial judge’s decision to deny a stay of proceedings as a s. 24(1) remedy for the lost in-car camera video. The standard of review for this decision is a highly deferential one. Moldaver J. held in R. v. Babos 2014 SCC 16 at para 48 that “Appellate intervention is warranted only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice.””

42The Appellant contends that the trial judge applied the wrong standard to this issue, pointing to her holding that there had not been “gross negligence” on the part of the Crown or police and noting that “unacceptable negligence” is the standard to be applied in determining whether the loss of evidence amounts to a Charter breach. I do not agree. The trial judge found a breach of the Appellant’s s. 7 right. This necessarily implies that she did find unacceptable negligence. On a fair reading of her reasons, she referred to “gross negligence” to situate the seriousness of this breach on the spectrum of unacceptably negligent conduct. I see no error.

43The trial judge granted a substantial remedy for the breach, finding breaches of s. 10(a) and 10(b) where the lost evidence would have assisted in resolving relevant factual issues, and excluding the breath samples. I cannot say that she was “clearly wrong” in finding that this remedy was sufficient and that this was not the clearest of cases for which a stay would be appropriate.

44It was reasonable for the trial judge to conclude that staying the impaired operation charge would be disproportionate and unwarranted given that there was ample evidence supporting that charge that stood entirely independent of what would be captured on the lost recordings. I disagree that it was an error to consider the Appellant’s own admissions as part of that evidence. The trial judge was not obliged to draw the speculative conclusion that the Appellant might not have testified or might have testified differently had the video been preserved.

Issue 3: Did the trial judge err in finding that the delay in implementing the Appellant’s right to counsel violated s. 10(b)?

45As I read her reasons, the trial judge found a s. 10(b) breach arising from a delay in informing the Appellant of her right to counsel. The Appellant submits that she erred in not finding a further breach from the police decision to wait until they arrived at the police station to allow her to call her counsel. The trial judge found:

I am also of the view that even had Ms. James been properly informed of her right to counsel in a timely fashion she would not have been able to contact counsel at the roadside. Although there is conflicting evidence regarding whether Officer Lashley retrieved Ms. James’s purse from Ms. James’s car, I do not find it to be fatal to this issue. It is undisputed that Ms. James was loud and that she was intoxicated. She was found asleep in her vehicle with the engine running. She revved the engine when she was awakened by the officers. She was unknown to the police. It is not unreasonable in these circumstances for the police to have made the decision to not remove the handcuffs for the purpose to speak to counsel at the roadside. They simply did not know what she would do. For the same reasons, it was not unreasonable for the police to refuse to allow Ms. James to speak to counsel in the back of the cruiser. The in-car camera was running. Ms. James would not have been afforded privacy. Given the dynamics of the particular circumstances, it was important for the scene to be recorded. It made no sense to shut the camera off for Ms. James to speak to counsel.

46I see no error in this conclusion. The trial judge could find on the record that it was reasonable to handcuff the Appellant given her intoxication and her behaviour at the scene, and that the earliest she could reasonably have had a private and secure consultation with counsel was at the police station: see R.v. Pileggi 2021 ONCA 4 at para. 75-77.

47I do not agree with the Appellant that the trial judge’s conclusion is tainted by factual errors. Even if it could be said that it was not “undisputed” that the Appellant was intoxicated at the time, the trial judge drew this factual conclusion from a solid foundation in the evidence. The trial judge’s characterization of the Appellant as “loud” is consistent with the video evidence from the police station and with the police evidence that the Appellant was talkative and assertive.

48In any event, even if such a breach had been found, I see no reasonable possibility that it would have affected the trial judge’s conclusions on what evidence to exclude for the breaches she did identify.

Issue 4: Did the trial judge err in declining to exclude the observations of the police officers?

49The Appellant advances two bases for challenging the trial judge’s decision not to exclude the evidence of the police officers and the indicia of impairment they observed. First, she argues that this remedy should have been ordered pursuant to s. 24(1) as a result of the lost evidence. Second, she argues this evidence should have been excluded pursuant to s. 24(2) for the breaches of s. 10(a) and 10(b) found by the trial judge.

50I do not agree that there was any error in the remedy selected by the trial judge for the loss of the in-car camera recordings. She was entitled to evaluate the effect of the lost evidence based on the entire trial record: R. v. La (1997) 1997 CanLII 309 (SCC), 116 C.C.C. (3d) 97 (S.C.C.) at para. 27-28. Based on the full record, the existence of most of the indicia of alcohol observed by the officers was not in dispute, with the defence primarily providing explanations for what the officers saw. It was open to the trial judge to find that the effect of the lost evidence did not warrant the exclusion of the officers’ evidence based on the very limited degree to which the recording would have assisted her in evaluating that evidence.

51The Appellant also relies on the relevance of the lost evidence to the s. 10(b) issue, in that it might have resolved the conflict in the evidence about whether Officer Lashley looked for the Appellant’s phone in her purse and about what exactly was said on the subject. However, the trial judge found that the resolution of the s. 10(b) issue did not turn on this conflict in the evidence and I see no error in this conclusion.

52The trial judge did not expressly consider whether the police observations should be excluded pursuant to s. 24(2) on the basis of s. 10(a) and 10(b) violations. Given that her finding of those violations flowed from the loss of the in-car camera recordings and its effect on the defence’s ability to litigate these Charter issues, I read her reasons as subsuming the s. 24(2) analysis into her choice of a s. 24(1) remedy for the lost evidence.

53I conclude that the trial judge’s decision to distinguish between the breath samples, which she excluded, and the observations of the officers, which she did not, is supportable under either analysis. The breath samples were directly connected to and affected by the s. 10(a) breach. By contrast, the police observations critical to the impaired driving count largely preceded and were minimally connected to the breaches. While they may have formed part of the same transaction making them capable of engaging s. 24(2), the lack of any other connection between the breaches and the police evidence affected the impact of the breaches on the Appellant’s Charter-protected interests: see R. v. Keshavarz 2022 ONCA 312 at para 115. The evidence was also reliable and vital to the Crown’s case. The fact that the trial judge excluded evidence with a much stronger link to the breaches resulting in an acquittal on the excess alcohol charge meant that she had already communicated the Court’s disapproval of the Charter violations: see R. v. O’Brien 2023 ONCA 197 at para 61. In my view, all of these circumstances support the trial judge’s implicit conclusion that the observations of the police officers were admissible and I would not interfere.

Disposition

54The appeal is dismissed.

Dineen J.