R v McCoy, 2016 ABQB 240

Court of Queen ’ s Bench of Alberta Citation: R v McCoy, 2016 ABQB 240 Date: 20160510 Docket: 140028879S1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - David Franklin McCoy Appellant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C. Dario _______________________________________________________

Appeal from the Conviction by The Honourable Judge M.B. Golden Dated the 12th day of June, 2015 (Docket: 140028879P1) I. Introduction [1] This is a

summary conviction appeal from the Judgment of the Honourable Judge M.B. Golden on June 12, 2015. [2] The Appellant, Mr. McCoy, was pulled over at an Alberta Checkstop on a main road in Grande Prairie on December 15,2013. The Appellant failed to provide a breath sample after being provided with seven opportunities to do so. The Appellant wassubsequently charged with refusing to provide a breath sample into an approved screening device contrary to s 254(5) of the CriminalCode.

The police vehicle was equipped with an In-Car Digital Video System (“ICDVS”, also referred to as the Video Incident CaptureSystem, “VICS”). Although there are mandatory RCMP policies to record such interactions, the interactions between the police officer,Corporal Weigum, and the Appellant were not recorded (video or audio) until after the charge was laid and the police officer started todrive the Appellant to the dispatch unit. [3] In a voir dire application, the trial judge held that Mr.

McCoy’s s 7 and 8 Charter rights were not violated by the factCorporal Weigum failed to turn on the in-car digital video system. The evidence was entered into the trial proper and Mr. McCoy wassubsequently found guilty of failing to provide a breath sample. [4] Mr. McCoy appeals not only the decision regarding his Charter rights, but also facts found by the trial judge in the trialproper, as well as the trial judge’s application of the test in R v WD, (SCC), [1991] 1 SCR 742. [5] For the following reasons, the appeal is denied. II. Grounds of Appeal [6] There are three grounds of appeal: 1.

Did the trial judge err in law in finding that the failure of the RCMP officer to activate his In-Car Digital Video System did notviolate the Appellant’s sections 7 and 8 Charter rights? 2. Did the trial judge make several unreasonable findings of fact that were critical to the Appellant’s conviction or otherwisemisapply the law regarding a reasonable excuse to fail to provide a breath sample? 3. Did the trial judge err in law in his application of the test in WD? III. Standard of Review [7] For the first and third grounds of appeal, the standard of review is that of correctness.

The second ground of appeal involvesa finding of fact and the standard of review is overriding and palpable error: Housen v Nikolaisen, 2002 SCC 33. [8] Section 686(1)(

a) of the Criminal Code applies to

summary conviction appeals. Thus, on an appeal against conviction, theappellate court may allow an appeal where the verdict is unreasonable and unsupported by the evidence, where the trial judge haswrongly decided a question of law, or where a miscarriage of justice has occurred. The test is whether the evidence is so weak that aguilty verdict is unreasonable: R v Corbett, (SCC), [1975] 2 SCR 275. The appeal court may only re-evaluate and re-weigh the evidence to confirm whether the evidence is capable of supporting the conviction.

The appellate court is not to substitute itsview of the evidence for that of the trial judge: R v B (RH) (SCC), [1994] 1 SCR 656. It is up to the trier of fact toassess credibility: R v W (D), (SCC), [1991] 1 SCR 742, and the appeal court is to show great deference to the trialjudge’s findings: R v W (R), (SCC), [1992] 2 SCR 122. IV. Background [9] Two witnesses testified at trial: Corporal Weigum and Mr. McCoy. The trial judge made the following findings of fact. [10] On December 15, 2013, Corporal Weigum was working at an Alberta Checkstop in Grande Prairie.

A pickup truckapproached the Checkstop and was signaled by Corporal Weigum to stop. Constable Weigum noted that there were five people in thevehicle. He also noted that there was an odour of alcohol emanating from the vehicle. Upon questioning, the driver, Mr. McCoy, advisedCorporal Weigum that they were coming from a local bar, however he told Corporal Weigum that he did not have anything to drink.Corporal Weigum noted an odour of alcohol on Mr. McCoy’s breath, that his face was flushed, and he appeared sleepy or lethargic.

[ 11 ] After producing his driver’s license, the Appellant was asked to pull his vehicle over to the side of the road. At 12:12 a.m. Corporal Weigum formed the suspicion that the Appellant was operating a motor vehicle with alcohol in his body. Corporal Weigum made a breath demand from memory for a roadside screening device. After the Corporal ensured the Alco-Sensor FST was operating properly, and provided an explanation on how to use the device, Mr. McCoy was given three opportunities to provide samples, however, none were obtained. Mr. McCoy did not appear to be passing any air into the instrument.

Corporal Weigum did not observe any air coming from the exhaust port into the straw, or any indication from the LED screen that breath was flowing through the instrument. After the third attempt, Mr. McCoy stated he was getting a headache from trying to blow into the instrument, however, Corporal Weigum told him that he had not blown anything in the instrument and suggested he might possibly be getting the headache from holding his breath and trying to make it look like he was blowing. Mr. McCoy then stated he had a head injury and was having trouble blowing. [ 12 ] Mr.

McCoy was provided with a fourth opportunity to provide a sample, and put his mouth to the straw but did not make any effort to put any breath sample into the instrument. During Corporal Weigum’s subsequent attempt to explain how to provide a sample, Mr. McCoy became argumentative and complained that he could not provide a sample due to a prior quading accident that had resulted in a brain injury. [ 13 ] At that point, Mr. McCoy said he was not feeling well and got out of the vehicle.

As the road was busy, for safety reasons, Corporal Weigum suggested they go to the police vehicle which was about ten car lengths away from Mr. McCoy’s vehicle. In the police vehicle, Corporal Weigum again demonstrated how to provide a sample, and Mr. McCoy was given further opportunities to provide samples. During the next two attempts, as soon as the tone was activated, Mr. McCoy terminated the breath sample, advising that he was hurt and unable to provide samples. Mr. McCoy was provided with a further opportunity to provide a sample and warned that failure to do so would result in a charge of refusal.

In his last attempt, Mr. McCoy again stopped blowing as soon as the tone was activated. At 12:28 a.m. he was charged and arrested for refusal to provide a breath sample. He was read his Charter rights and police caution. [ 14 ] At this point, the only medical distress Corporal Weigum noted regarding Mr. McCoy was that Mr. McCoy complained about his headache and he appeared to be wincing, closing his eyes and holding his head. He also seemed to have difficulty concentrating or focusing but no difficulty breathing. Despite Corporal Weigum not observing any other signs, he inquired of Mr.

McCoy whether he was in medical distress. Mr. McCoy stated he was in medical distress and Corporal Weigum contacted an ambulance to meet them at the RCMP detachment, as in his experience this was quicker than going to the hospital. Although Corporal Weigum called an ambulance, he testified that he did not believe Mr. McCoy was actually experiencing a medical crisis, however, EMS was contacted to assess Mr.

McCoy to ensure there was nothing wrong. [ 15 ] Upon arrest, Corporal Weigum conducted a cursory search of the vehicle incidental to the arrest and found two empty whiskey bottles in the center console of the vehicle. [ 16 ] Corporal Weigum did not turn on the In-Car Digital Video System until they departed the Checkstop for the RCMP station. Additional findings of fact related to this will be described in greater detail below in the analysis of the second ground of appeal. [ 17 ] At the cell block, Mr. McCoy was argumentative and spoke overtop of Corporal Weigum. Corporal Weigum testified that at one point, Mr.

McCoy announced that he was about to have a seizure and then he appeared to have a seizure, but when no one responded, he ceased demonstrating those symptoms. The video of Mr. McCoy in the cell block revealed less pronounced physical manifestations of a seizure than the symptoms described by Corporal Weigum, however, the trial judge noted that Mr. McCoy did announce when he was about to have the seizure, even though Mr. McCoy later testified that he would not be able to tell when a seizure would occur. [ 18 ] EMS arrived and according to Corporal Weigum appeared to conduct an examination. Mr.

McCoy was served with documentation and released. At this point, Mr. McCoy was not only argumentative, but upset, and angry. He was yelling, and cursing, and told the Corporal that he was a corrupt cop and had messed up the entire investigation. Mr. McCoy requested to leave with the EMS. Mr. McCoy eventually left the RCMP station, walked over to the ambulance and was driven to the hospital by EMS. No evidence was led as to whether Mr. McCoy was admitted to or examined at the hospital. Mr. McCoy was subsequently unable to remember most of the events that occurred that night. V.

Decision of the Provincial Court Judge [ 19 ] The trial judge provided an oral decision on November 18, 2014, following a voir dire in this matter. He found that there was no breach of Mr. McCoy’s s 7 and 8 Charter rights. The trial judge also found that if there had been a breach, he would not have excluded the evidence pursuant to s 24(2) of the Charter. [ 20 ] The trial judge held in the voir dire that there is no duty on the RCMP to have the recording through use of the VICS. While such video would be beneficial to both the crown and accused, it is not an essential task that must be completed.

Instead, the positive duty on the officer is to make notes during the investigation. Even where the officer fails to make notes or if there is a deficiency in the notes, this does not automatically result in a Charter violation, or a remedy of exclusion of evidence. Rather, it may impact the weight to be given to testimony of the officer.

The trial judge accepted Corporal Weigum’s testimony as to why the VICS camera was not turned on and determined that the fact that he forgot to turn on the recording camera unit in the car did not raise it to the level of “unacceptable negligence or would be akin to lost evidence” (Trial Transcript, p 84, line 27). [ 21 ] In coming to his decision, the trial judge referred to two unreported decisions and stated as follows, at Trial Transcript, p 84, lines 30-35: As was noted by the Honourable Madam Justice Nation in R v Barlson , (phonetic), there is a distinction between a failure to preserve evidence and not having an in-car camera recording system, or that an inoperable in-car camera system was a breach.

As was noted by this Court previously in R v Franklin Matison (phonetic), on August 5, 2014, where a peace officer forgot to turn on his in-car camera it

did not constitute a breach. [22] The trial judge went on to conclude that pursuant to s 24(2) of the Charter, he would not have excluded any evidence even ifthere had been a breach of the Appellant’s Charter rights. Specifically, he applied the test in R v Grant, 2009 SCC 32, and found withrespect to the first stage of the Grant analysis that there was no “mala fides” on behalf of Corporal Weigum; his actions were one ofoversight and not a deliberate refusal to record the interaction.

With respect to stage two of the Grant analysis, the extent to which thebreach undermined the interests protected by the infringed right, the trial judge found the non-recording had minimal impact: it was justanother piece of evidence that may or may not have assisted with the evidence of Corporal Weigum. Thirdly, the court inquires whetherthe truth seeking function would be better served by the exclusion or the admission of evidence.

The trial judge considered imposing anobligation for officers to record interactions, the failure of which would result in an exclusion of evidence, even where a witness couldtestify to the matter in issue. This would not assist in the truth-seeking function of the trial process. For these reasons, he would not haveexcluded evidence under s 24 even if a Charter violation had been established. VI. Grounds of Appeal 1.

Did the trial judge err in law in finding that the failure of the RCMPofficer to activate his in-car digital video system did not violate the appellant sections7 and 8 Charter rights? [23] Corporal Weigum did not turn on the VICS until after Mr. McCoy’s arrest and upon departing for the RCMP station. He alsodid not have a microphone recording his interactions with Mr. McCoy prior to that time. Corporal Weigum acknowledged that the RCMPpolicy was to have the VICS activated if the vehicle had a camera installed, which his vehicle did, in certain circumstances.

One of thepolicies requires that the VICS be used for any interaction with a violator and in areas where contentious situations are anticipated, aswell as during certain dealings with impaired drivers. The trial judge accepted that, had the camera been activated while interactionsoccurred at Mr. McCoy’s vehicle, the camera would only have recorded the police vehicle parked in front of it, not Mr. McCoy’svehicle. While Corporal Weigum could have started the video recording once they entered the police vehicle, the trial judge found thathe merely forgot to do so. [24] Mr.

McCoy argues that the failure of the RCMP officer to activate his in-car digital video system was a failure to comply withthe RCMP operating policies relating to the VICS. He contends that this failure of the officer to comply with the operating policiesconstitutes s7 and s 8 Charter violations. The appellant asserts the trial judge’s finding that there is no duty on the RCMP to have therecording through use of the VICS is an error of law. A.

Section 7 [25]

Section 7 of the Charter states: “Everyone has the right to life, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principles of fundamental justice.” [26] The onus is on the accused to establish a Charter violation on a balance of probabilities: see R v Sorenson, 2014 ABQB 464;R v Collins, (SCC), [1987] 1 SCR 265, at 277-78. i. Appellant’s position [27] Mr. McCoy argues that the lack of recording resulted in his inability to make a full answer and defence to the charge contraryto s 7 of the Charter.

The Appellant relies on certain Alberta Provincial Court authorities wherein the courts held a Charter breachoccurred due to officers not activating the VICS.

In these cases, the standard applied to find the conduct of the officers sufficient to resultin an exclusion of evidence or stay in proceedings spanned from: a simple want of care: see R v Peters (21 August 2014) Fort McMurray130455389P1 (ABPC); to unacceptable negligence, even where the conduct was not an intentional attempt to avoid the recording: see Rv Mullan, (14 November 2013) Leduc 130353956P1 (ABPC); to a pattern of indifference: see R v Nabrotzky, (25 November 2014),Sherwood Park 141033977P1 (ABPC). [28] The Appellant submits in oral argument that, while the court cannot require officers to record all interactions with the police,the requirement should be that the police be obligated to record interactions with the public/violators whenever recording facilities areavailable if the officers want the court to accept the officer’s testimony.

It is not clear whether the Appellant’s position is limited tosituations in which officers are dealing with impaired drivers or for any police interaction with possible violators or the public generally.If based on the mandatory nature of the policies (which is one of the Appellant’s arguments for such requirement), it would have to bethe latter, as the policies, as discussed below, require the VICS to be used in “all officer/violator contacts, and in areas where contentioussituations are anticipated”, or for “all contact with the public or when investigating an occurrence”.

If the Appellant’s position isaccepted and provided the police vehicle is equipped with the VICS, this would mean that, for any interaction of the police with violatorsor any member of the public within 500 feet of the police vehicle (which is the audio range of the VICS), the officer’s testimony couldbe discarded if not recorded, and other relevant related evidence could also be deemed inadmissible due to a lack of video recording. ii. Crown / Respondent’s position: [29] In response, the Crown argues first, that the onus is on the accused to prove the Charter violation on a balance ofprobabilities.

Second, the Appellant has no constitutional right to have all his interactions with the RCMP videotaped: R v Piko, [2000]OJ No. 3605; R v Brownlee [2008] OJ No. 2432. In similar circumstances, it was found that there is no obligation on the RCMP tocreate video of interactions in the breath tech room: R v Newell, 2013 ONSC 581, thus the trial judge in the present case made no errorin making credibility assessments in absence of the video.

[30] Charter challenges concerning cell block and VICS video that have been lost or destroyed have generally apply the“unacceptable negligence” test as set out by the Supreme Court of Canada in R v LA (SCC), [1997] 2 SCR 680, whichis a different standard than just negligence. The “unacceptable negligence” standard is applied in LA where a video had been created andwas subsequently destroyed by human error.

In arriving at this test, the Supreme Court was considering whether the duty to disclose hadbeen breached. [31] The Crown submits that courts differentiate between evidence lost or destroyed due to unacceptable negligence, which mayresult in a s 7 breach unless a reasonable explanation can be provided for why it was not maintained, and the situation where there is noevidence created and no legal obligation to create the same, in which case no such breach occurs: R v Sharma 2014 ABPC 131.

Whereno evidence was created, the unacceptable negligence test does not apply. [32] The Crown’s position is that there is no Charter violation due to police officer failure to record interactions using the VICS.Even could the accused however establish a Charter violation by proving on a balance of probabilities that the police officers have been“outrageously cavalier or indifferent towards the use of the VICS”, such as suggested in Nabrotzky, the accused has not established suchofficer conduct here. [33] Additionally, the Crown maintains that there can be no s 7 breach without evidence of actual prejudice to the accused, which,as a constituent element of a Charter violation, the Appellant has the onus of proving on a balance of probabilities: R v Bjelland, 2009SCC 38, 2 SCR 651 at para 21.

The Crown submits no actual prejudice from the absence of the video footage is established in this case. iii. Analysis [34] The RCMP are required to follow the K Division Operational Manual and the RCMP National Policy Operational manualwith respect the in-car digital video system. Some of the relevant sections in the K Division Operational Manual provide as follows: General 1.1 Mandatory use of the In-Car Digital Video System (ICDVS) is required for all police vehicles equipped with this equipment.

The useof the ICDVS is to support members in the execution of their duties. 3.2 Ensure that the ICDVS is utilized in all officer/violator contacts and in areas where contentious situations are anticipated 3.5 When dealing with impaired drivers; 3.5.1 Leave the ICDVS running and the microphone on to record. [35] The RCMP National Policy Operational Manual provides as follows: 2.1.1 Activate the ICDVS, both audio and video, for all contact with the public or when investigating an occurrence. [36] As can be seen by the language of these policies, the use of the ICDVS is not limited to dealing with impaired drivers; ratherthe mandatory use is broadly applied, extending to all contact with the public. iv.

Requirement to use the VICS/ICDVS [37] The Appellant relies on the following cases in support of his position that the failure to comply with these policies constituteda violation of his s.7 Charter rights. In Mullan, it was held that the failure to activate the In-Car Video System constituted “unacceptablenegligence”. In that case, two officers were involved in dealing with the accused and neither turned on the in-car camera.

The trial judgeheld that although the officers had not intentionally or deliberately attempted to avoid recording, the trial judge nevertheless held thatthis was an unacceptable level of negligence for both of them to fail in the execution of their duties.

The trial judge went on to find thatthe non-recording should be considered a “lost” recording and treated as though the evidence was “lost”, based on the trial judge’sfinding that it would have been material/relevant to the case if recorded. [38] This finding appears to be at complete odds with Sharma and the balance of the case authority in which lost or destroyed datais evaluated in the context of the right to disclosure, the failure of which has the potential to found a Charter breach, as opposed toevidence was never created.

Furthermore, in Mullan, the Court does not turn its’ mind to whether actual prejudice occurred in that case. [39] An even lower threshold for a Charter violation was found in Peters, wherein the Court found a simple want of care insending out police vehicles in which the video recording equipment was not functioning properly was sufficient for an exclusion ofevidence. In this case, the VICS video recording was turned on and captured an image of what was going on in front of the policevehicle. There was however no audio.

Once the police officer and the accused were in the police vehicle there was no recorded imageand an error message arose. [40] In that case, the trial judge stated that it was necessary to look beyond the investigating officer and to the RCMP and thoseresponsible as a whole. The trial judge found that, even though there is no obligation in law or in the Charter to record the evidence, it isimplicit in the policy that if it is going to be mandatory to use these devices in the cars equipped with them the machine should be fullyfunctioning (Trail Transcript, p 3, lines 22 - 28).

The trial judge did not discuss the cost to maintain fully functioning VICS at all times,or the cost or practicality of removing the police vehicles (and the officers) from duty during the period of repair. Instead, he consideredthe failure to record as “lost” evidence, contrary to the preponderance of the case law. Furthermore, the trial judge did not addresswhether there was actual prejudice in this particular case, but found a violation even though he suggested the recording likely would havebeen helpful to the Crown (Trial Transcript, page 6, lines 29-31).

This is inconsistent with the direction of the Supreme Court of Canada:Bjelland at para 21. Implicit in the trial judge’s findings is that whenever there is a malfunctioning video recording machine there will bea Charter violation.

[41] In Nabrotzky, the Court considered video and audio that was not recorded in relation to an impaired driving offence whereinseveral police vehicles were involved. Regarding some of the video, the judge rejected outright that the missing video could be a breachof s 7 rights as it was clear that the video from those cars would not have disclosed any evidence in relation to this offence. With respectto other video and all audio recordings, the judge noted that, although video was running during the investigation, the audio was not.

Heheld that the officers involved in this roadside Checkstop disclosed a “pattern of indifference” to the RCMP policy requiring audio andvideo recording. He came to this conclusion based on his findings that one of the officers never engaged the audio recording despite thepolicy; a second officer did not engage the audio recording because he did not like the sound of his voice on the recording; and the thirdofficer did not even know how to use the system.

Although finding that the officers demonstrated a “pattern of indifference”, the trialjudge was clear in stating that the court is not bound by the policy and the failure to adhere to that policy does not necessarily result in a s7 breach (Trial Transcript, page 4, lines 24-26; page 5, lines 6-7). The judge held that, in this case, the s 7 breach was the cavalierattitude of the police officers toward the policy and found that the reasons provided by the officers for not using the audio were“outrageous”.

I note that in the present case, the trial judge made no such factual finding regarding Corporal Weigum’s attitude. [42] In R v Stanton (15 June 2015) 141460899P1 Athabasca, (ABPC), the trial judge found that the reason given for not turningon the video recording was nonsensical. The police officer was concerned that the system would run out of recording space. The trialjudge concluded that, since it was conceded that the decision to not record was deliberate, the “decision was made for the purpose of notcreating evidence”.

The trial judge consequently found the officer deliberately chose not to activate the VICS, resulting in a Charterbreach. The trial judge found that prejudice was established as there was reason to conclude that the peace officer’s memory on certainmatters was of concern because of “vagueness and uncertainty”. [43] The Appellant also relies on R v Moore-McFarlane (2001), (ON CA), 56 OR (3d) 737 (CA), in addressingthe need for video recording in order for the Crown to discharge its burden.

As will be discussed later, I find that this case does notsupport such position in relation to a s 7 or 8 Charter breach. [44] The cases cited in support of the Appellant’s position are not uniform in the legal principle applied. This is also true of thecases cited by the Crown, which apply a spectrum of legal standards ranging from: a deliberate avoidance of recording when thefacilities were available (Piko) or officers being negligent or unreasonable in electing not to video record (Newell) as being sufficient toestablish a breach; to finding that non-recording does not rise to the level of a Charter breach.

The latter view is supported by theSupreme Court of Canada (Oickle, infra). For the sake of completeness, I will review the other authorities although not binding on thisCourt. [45] The courts in several of the cases cited by the parties rely upon the direction provided by the Supreme Court in LA. That casedealt with a video recording of a 13-year-old girl prior to the commencement of an investigation by the police against the accused. Thepolice found the complainant, a thirteen run-away, in a vehicle driven by a man known to the police as a pimp.

The complainant wastaken to police headquarters and one of the complainant’s conversations was taped in preparation for a secure treatment application. Bythe time of the preliminary inquiry, the constable had forgotten about the tape and it was misplaced. This video recording was notpreserved, as it was not considered part of the fruits of investigation. [46] In that case, even though the video footage was created and subsequently lost due to human error, no unacceptable negligencehad been established and therefore no s.7 Charter breach occurred.

It is noteworthy that LA dealt with the destruction of an existingvideo, and the “unacceptable negligence” test was applied to address the “duty of the Crown and the police to preserve the fruits of theinvestigation”: at para 20.

The Court considered if there was a satisfactory explanation in assessing whether unacceptable negligence wasestablished: at para 21. [47] In contrast, with few exceptions (such as in Mullan and Peters), case law is clear that the issues for consideration (andtherefore the rights invoked) where a video is already in existence is much different from the circumstance where no such evidence wasever created. As there is no obligation on the Crown to create evidence, the failure to record is not an issue of full disclosure.

A failure tocreate evidence cannot be equated with a failure to preserve or disclose evidence for the purpose of founding a Charter violation. [48] This view was the finding of the Alberta Provincial Court in Sharma. In that case, the trial judge considered different types ofvideo recordings that occurred within the detachment: “real-time” monitoring versus saved recordings. The trial judge extensivelyreviewed the law throughout Canada on capturing and preserving cell block evidence.

Separate from its findings regarding recordingsthat had been made and were part of the ongoing investigation, the Court found that despite the fact that the live feed could have beensaved, decisions around whether the video feed would be recorded, and if recorded, how long it would be kept (assuming they were notpart of an ongoing investigation), were decisions of the Calgary Police Service. The preservation of those images could only come aboutif the police performed additional tasks to facilitate and direct the recordings of those images.

The trial judge concluded that a distinctionmust be drawn between evidence that has been destroyed as opposed to evidence that has never been created. He stated at para 135: In my view, the police did not, by choosing to not record the monitor-only image, destroy evidence.

Rather, the police, by choosing tonot record the monitor-only evidence, simply refrained from taking the investigatory step of creating evidence. [49] Similarly, I find the same distinction should be drawn between lost evidence and non-existent evidence. [50] Fourteen years prior to the decision in Sharma, the Court in the Ontario decision of Piko made a similar distinction betweenlost or destroyed evidence and evidence that was not recorded. In that case, the VICS equipment had broken down ten days prior to Mr.Piko’s arrest, and a service request had been placed.

Although there was recording equipment in the witness room, the officers wouldhave to move the intoxilyzer machine to that room, which would result in a 15-minute delay in obtaining the sample. The Court in Pikonoted the distinction between lost evidence, and where no evidence existed in the first place: at para 6. Unlike Mullan, the distinctionthe Court makes is not conditioned on the relevance of the missing video footage.

The Court in Piko held that, “[a]bsent policenegligence regarding evidence which they possessed or a deliberate avoidance of recording when the facilities were available there is noCharter violation”: at para 6. It made this determination even though such video may have assisted the trial judge. The Court also heldthat even though there was evidence that could have supported a different outcome, the verdict was not unreasonable. In coming to itsconclusion, the Court considered that there is no statutory or similar obligation to video the interaction with the accused, but there was a

statutory requirement to conduct the breath test as soon as practicable. I contrast the finding of this case with that of the Court in Peters , which held a Charter violation occurred due to non-operational equipment. [ 51 ] In R v Brownlee [2008] OJ No. 2432 (ONSC) , there was recording equipment in the witness room but not in the breath test room. The witness room was not a secure room, and was not used for breath tests due to concerns about officer safety. The trial judge followed the decision in Piko .

On appeal, the Court held that: the lack of videotape of the appellant’s conduct in the breath room did not deprive him of a fair trial in that case; that the cases where videotape evidence was lost or destroyed are distinguishable; and that there is no constitutional right or right at common law that the appellant have his breath room evidence preserved by videotaping: at para 50. The Court also held that there was no evidentiary basis for a finding that the police conducted themselves in this case in such manner as to call into question the integrity of the justice system: at para 50.

Even if there had been a breach, the Court would have not granted a stay as there was ample evidence for the trail judge to base a guilty verdict in that case: at para 50. [ 52 ] In R v Juneau , 2015 ABPC 179 , the constable acknowledged the existence of an RCMP policy relating to the use of the VICS. He was not aware, however, of the policy when he arrested the accused. He assumed his vehicle was equipped with VICS but he said the VICS was not turned on at any time during his interactions with the accused.

Although, the trial judge found that police officer’s failure to activate the VICS fell below the standards required of him and it was “unacceptably negligent”: at para 13, the Court found the negligent failure to activate VICS did not breach Mr.

Juneau’s rights. [ 53 ] The trial judge found that, despite the recording being a very useful investigative tool which can provide critical evidence to the court, an accused’s rights are not violated where VICS footage is not captured, even if such recording is “reasonably available, even when the interaction is expected to produce relevant and material evidence, and even when police policy is to record the interaction”: at para 35. [ 54 ] That Court went on to note that accused had not established prejudice from the absence of a video recording.

The Court held that since there was no apparent inconsistency in the available evidence that would be resolved by the recording, actual prejudice was not established (such prejudice requiring a reasonable possibility of the evidence assisting an accused): para 36. It found no Charter violation occurred. While that Court considers in the evaluation of prejudice that the officer’s failure may have been negligent but not purposeful or cavalier, I do not view this as a requisite element of the evaluation. v.

Direction from the Supreme Court of Canada [ 55 ] In terms of binding authority on the specific issue of the obligation to record interactions with officers, the Supreme Court commented on this issue in R v Oickle , 2000 SCC 38 , 2 SCR 3 . In dealing with the issue of voluntariness of unrecorded confessions, Justice Iaccobucci, speaking for the majority commented on the growing practice of recording police interrogations and importance of video recordings.

He made the following comments at para 46: Before turning to how the confessions rule responds to these dangers, I would like to comment briefly on the growing practice of recording police interrogations, preferably by videotape. As pointed out by J. J. Furedy and J. Liss in “Countering Confessions Induced by the Polygraph: Of Confessionals and Psychological Rubber Hoses” (1986), 29 Crim. L.Q. 91, at p. 104, even if “notes were accurate concerning the content of what was said . . ., the notes cannot reflect the tone of what was said and any body language that may have been employed” (emphasis in original).

White, supra , at pp. 153-54, similarly offers four reasons why videotaping is important: First, it provides a means by which courts can monitor interrogation practices and thereby enforce the other safeguards. Second, it deters the police from employing interrogation methods likely to lead to untrustworthy confessions. Third, it enables courts to make more informed judgments about whether interrogation practices were likely to lead to an untrustworthy confession.

Finally, mandating this safeguard accords with sound public policy because the safeguard will have additional salutary effects besides reducing untrustworthy confessions, including more net benefits for law enforcement.

This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when a recording is made, it can greatly assist the trier of fact in assessing the confession. [ 56 ] Despite noting all of the advantages to recording police interrogations that suggest the importance of such recordings, the Supreme Court is clear in stating that non-recorded interrogations, even those that result in a confession, are not inherently suspect. The recording is merely another piece of evidence that can assist the trier of fact.

In some cases, the video or other recording could resolve evidentiary inconsistencies, gaps, or claims of involuntariness of the confession given. [ 57 ] If the non-recording is not sufficient to constitute a Charter breach in the context of a confession, this is even more so the case for the non-recording of an investigatory interaction.

To this I would note that the “outrageously cavalier or indifferent” attitude of officers towards recording such interactions may be relevant, but not because it necessarily invokes a Charter right; rather its relevance is in assisting the Court in evaluating the reliability and possibly credibility of testimony and other evidence provided at trial.

Ultimately, these considerations will go to the weight the trial judge places on the evidence before him at trial. [ 58 ] Further, while often the issue of admissibility of a confession is a s 7 Charter issue dealt with in a voir dire due to questions of voluntariness, that does not equate to any lapse in videotaping resulting in a Charter violation.

Voluntariness of a confession is a separate issue to the consequence of not recording interactions. [ 59 ] This finding − that there is no Charter violation due to non-recording of an interaction with police − holds true regardless of the existence of a police policy, mandatory or not. I fail to see how the RCMP through the construction of polices can create Charter rights in these circumstances. [ 60 ] The comments of the Supreme Court in Oickle are relied upon in Moore-McFarlane .

Like Oickle , Moore-McFarlane deals with the issue of voluntariness of the confession, and the Court considered the need for video recording in order for the Crown to discharge its burden of proof beyond a reasonable doubt. The Court held the existence of a video recording may form part of the

evidentiary record; the absence of which may affect whether the evidentiary burden is established: at para 61-65. That is an appropriatestatement for the presence or absence of any evidence. The Court noted that there is no absolute rule requiring the recording ofstatements, but noted that the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and thepolice. The onus may be satisfied by a video recording; it may also be satisfied without one.

As I read it, this issue in Moore-McFarlaneis not about a Charter breach, but a question of the Crown satisfying the evidentiary burden in establishing voluntariness, which burdenis high: beyond a reasonable doubt. [61] Although the Court in Moore-McFarlane appears to narrow the statements in Oickle by finding that deliberate actions of thepolice to interrogate a suspect without a thought to making a recording may render the statements suspect, there are two considerationsthat temper the application of this finding to the present case.

First, in the full context of the statement, the Court is discussing the abilityof the Crown to satisfy its burden to establish voluntariness of the confession. As noted earlier, voluntariness of a confession is a separateissue with a different party bearing the onus of proof than a s.7 Charter violation. At para 65 the Court states: However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onusmay be readily satisfied by the use of audio, or better still, video recording.

Indeed, it is my view that where the suspect is in custody,recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to themaking of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect.

In such cases, it will be amatter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has beenprovided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. [Emphasis added.] [62] Secondly, courts in other jurisdictions suggest this statement of the Court in Moore-McFarlane has inappropriately narrowedthe position of the Court in Oickle, and have consequently limited the statements in Moore-McFarlane to the extreme fact circumstancesof that case and differentiated it on that basis: R v Crockett, 2002 BCCA 658; R v Ducharme (2004) 2004 MBCA 29 , 182 CCC(3d) 243 (MCA).

The Court in R v Crockett at para 19 considered the factual circumstances in Moore-McFarlane, which included thatthere “were two accused who alleged assaults by the police before and during the interrogation; one accused was interrogated while hewas naked; some taped statements and records of the arrest of one accused were lost; and during the voir dire the trial judge interrupteddefence counsel's cross-examination on the circumstances of the interrogation.

There was good reason for the Court of Appeal to beconcerned about the state of the record and the deliberate failure of the police to record the statements.” That was not at all the factpattern before the Court in Crockett. That Court found no basis for appeal despite the absence of video recording of a confession and theaccused’s assertion that the confession was involuntary.

As stated by the Court in Crockett, at para 20: While a tape or video would likely have resolved the issue on this appeal – that is, whether either officer responded to the appellant'squestion about sentences by saying "the truth goes a long way" – that question may also be resolved by a traditional assessment of thecredibility and reliability of the testimony of the participants, as the trial judge did in this case. [63] Unlike Moore-McFarlane, the fact that recording facilities were readily available and the police deliberately set out tointerrogate the suspect without giving any thought to the making of a reliable record did not impact the voluntariness determination inthat case; the absence of video recording was not sufficient grounds for an appeal. vi.

Additional Considerations [64] Some of the policy reasons for not imposing the obligation on police to record interactions (regardless of a mandatory policy)are referenced in the case law. [65] In Bjelland, the Supreme Court of Canada addressed what having a fair trial means. At paras 21 and 22, it considered fairnessfrom both the perspective of the accused and also of society more broadly: However, the Crown's failure to disclose evidence does not, in and of itself, constitute a violation of s. 7.

Rather, an accused mustgenerally show "actual prejudice to [his or her] ability to make full answer and defence" (R. v. O'Connor, (SCC), [1995]4 S.C.R. 411, at para. 74) in order to be entitled to a remedy under s. 24(1). While the accused must receive a fair trial, the trial must be fair from both the perspective of the accused and of society more broadly. InR. v. Harrer, (SCC), [1995] 3 S.C.R. 562, McLachlin J. (as she then was) provided guidance on what is meant by trialfairness.

She stated, at para. 45, that: At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trialmust not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, (SCC),[1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldomattained.

A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for theaccused. [Emphasis added by SCC in Bjelland.] [66] The notion that an accused person is entitled to a fair trial, not a perfect trial was also expressly applied in R v Iakouchev,2006 ONCJ 44 at para 62 (driving over 80) and Brownlee (impaired driving). [67] The context of a fair trial from the perspective of the public cannot require that non-compliance with such a policy (mandatoryor not) result in a Charter violation, particularly when other evidence is available to establish the issue in question.

Non-compliance withthe RCMP policy must be considered in light of the possibility of human or technological error and the consequence to the public of suchrigid requirements. [68] Consistent with the views in Oickle and Crockett, while the policy requiring videotaping interactions is useful and has severalpurposes, including to enhance trial evidence, video recordings do not usurp the truth seeking function of the courts. To suggestotherwise has far reaching implications beyond impaired driving cases, even to where no police policy exists.

Without the videorecordings, courts perform the same function that they do in all other trials; they weigh the evidence and make credibility assessments on

the evidence available. I concur with the description set out by the Court in Newell regarding the method by which a trial judge may take into consideration the absence of video in assessing conflict in the evidence. At para 30, the Court notes that it is not the same as drawing an adverse inference against the officer testimony.

Rather it is similar to the way trial judges evaluate evidence in trials generally: by looking at the whole of the evidentiary record and assessing the weight to ascribe to the evidence based in part on the presence or absence of corroborating or conflicting evidence, the equivocation in the testimony of an officer or other witness, and other circumstances. As that Court states at para 30: “There is no rule.

It is in the discretion of the trial judge.” [ 69 ] Further, mere advances in technology are not sufficient to raise the requirement for video recordings to that of a Charter entitlement, nor does it constitute a Charter violation to rely on other evidence without the recording. The Court in Juneau held at paras 34 and 35 : There is no denying that “time marches on,” and what was once the stuff of science fiction, such as routine a u dio-visual recording of police-citizen interactions, becomes mundane and expected.

As well, there is no question that worldwide, video recording of those interactions, by both police and citizens, is now often being used to hold the state to account, as well as to successfully prosecute criminal activity. But have we now reached a point in our technological development that justifies an automatic finding that a person’s Charter rights have been breached because that person’s interactions with law enforcement personnel are not recorded in circumstances where it is simple and reasonable to do so?

While audio-visual recording is a very useful investigative tool, and can provide critical evidence to the Court, I am unable to find that the Charter entitles citizens to a recording of all encounters with police officers whenever recording is reasonably available, even when the interaction is expected to produce relevant and material evidence, and even when police policy is to record the interaction. [ 70 ] I find that, since the Crown does not bear the onus to create evidence, the non-recording by police of the interaction with the accused, even where a mandatory policy requiring the police to do so, will not be sufficient to found a s 7 Charter breach in this case.

Rather, the trial judge may consider the failure to create a recording where the equipment is available and functional, including where officers have been outrageously cavalier or indifferent towards the use of the VICS, in assessing weight to give the evidence adduced at trial. vii. Principles Applied to the Present Case [ 71 ] At issue in the present case is whether the Appellant met the burden, on the balance of probabilities, that he had a reasonable excuse for not providing a breath sample. [ 72 ] The trial judge in the present case found that there was no s 7 Charter violation.

The trial judge held a situation of non- recording is to be distinguished from a factual scenario where evidence is lost or destroyed. The Court considered that the accused failed to establish that the officer was outrageously cavalier or indifferent towards the use of the VICS, and was also unable to establish that he suffered any prejudice from not having a video recording of the interaction.

As discussed further below, these are findings clearly supported by the evidence. [ 73 ] I find that there was no s 7 Charter violation because the non-recording by police of the interaction with the accused, even where a mandatory policy requiring the police to do so, is not sufficient to constitute a s.7 Charter breach in this case. [ 74 ] There is no s 7 Charter violation due merely to a failure of the officer to turn on the VICS as there is no constitutional obligation on the police to record the interactions.

Even if that were not correct, and the accused need only satisfy the court that the officer was outrageously cavalier or indifferent toward the use of the VICS, the Appellant would still fail in his Charter challenge for two reasons. First, the evidence does not support such a finding regarding the officer behaviour, and second, the Appellant did not satisfy the burden of establishing that the failure would have resulted in actual prejudice to him on the balance of probabilities. a.

Evidence of Outrageously Cavalier or Indifferent Behaviour [ 75 ] Regarding the issue of the officer being outrageously cavalier or indifferent toward the use of the VICS, the Appellant states that the trial judge ignored the evidence that the Corporal was aware of the mandate requiring him to use the cameras and the audio recording systems however, has never followed this direction when conducting a Checkstop investigation; the Appellant argues that the Corporal was aware of the policy and chose not to follow it.

He states the Corporal had demonstrated an outrageously cavalier attitude toward the VICS policy. [ 76 ] The evidence does not support the Appellant’s position. Corporal Weigum’s testimony in this case was that the VICS was not activated while interactions occurred at Mr. McCoy’s vehicle since the camera would only have recorded the police vehicle parked in front of it, not Mr. McCoy’s vehicle which was parked approximately ten car-lengths away from the police vehicle. He did not use VICS as an audio recording device as he would wear another microphone on his person (Trial Transcript, p 72, lines 10-17).

He also stated that he would usually have the VICS microphone on him if he commences the Checkstop subsequent to being on patrol (during which time he would wear the microphone). He tried to make it his common practice to carry the microphone with him (Trial Transcript, p 71, line 34). On that occasion, the microphone was on the cradle charging (Trial Transcript, p 71, line 34). Corporal Weigum’s evidence is clear that he had the microphone on the charger and had his pockets full with the ASD straws and other equipment. He stated several times that he forgot to turn on the camera.

There is no conflicting evidence on these points. [ 77 ] I note that this case is somewhat unusual as the breath demand would normally occur at the accused’s vehicle, not in the police vehicle. In this case, the parties moved to the police vehicle due to Mr. McCoy not wanting to remain in his truck and the Corporal wanting to move the parties to safety.

It is understandable in these circumstances that Corporal Weigum would not have turned on the VICS until they started to move to the detachment, as this would be the typical first point in a Checkstop investigation at which the accused would be in the police vehicle. [ 78 ] Considering all of this evidence, trial judge’s findings were supported by the evidence. Although I find the issue of a s. 7

Charter violation is not invoked here, the appeal should not succeed as there is no basis upon which this Court could find that the verdictis unreasonable and unsupported by the evidence, where the trial judge has wrongly decided a question of law that would change theoutcome of this matter, or where a miscarriage of justice has occurred. b.

Prejudice [79] Even had I found that the circumstances in this case could give rise to a Charter violation, there is generally no s 7 Charterbreach without evidence of actual prejudice to the accused, which the Appellant has the onus of proving on a balance of probabilities inorder to be entitled to a remedy under s 24(1): R v O’Connor, (SCC), [1995] 4 SCR. 411, at para 74; Bjelland, at para21. [80] In Juneau the Court found that prejudice requires a “reasonable possibility of the evidence assisting an accused” at para 35.That requirement will not be met if there is no apparent inconsistency in the available evidence that would be resolved by the recording:at para 36. [81] In R v Stuart, 2013 ABPC 290: even where the Court found that the police negligence had been unacceptable, since there wasno specific prejudice alleged, the Court would be left speculating that the video may have raised issues about the officer’s credibility.There was insufficient evidence of prejudice, so the Court found the missing video to be only marginally relevant and minimallyprejudicial. [82] In the present case, the facts support the trial judge’s decision that the Appellant failed to prove on a balance of probabilitiesthat he suffered any actual prejudice as a result of the lack of video evidence.

To establish prejudice, it is not enough to merely suggestthat the video evidence might have helped the Appellant’s defence. In the present case, the trial judge stated he had no evidence that thevideo would have been different than described by the officer’s notes. The Corporal’s notes indicated the Appellant complained ofheadaches, and that he could not blow due to a head injury. This is the same position as what the Appellant is now arguing.

TheAppellant has not even suggested actual prejudice from the absence of the video footage, let alone established it on a balance ofprobabilities. [83] The trial judge held there was no actual prejudice from the absence of the video footage, and therefore, no breach of s 7rights. I find that this principle was properly applied by the trial judge. c.

Section 24 of the Charter [84] The trial judge applied the test in R v Grant, 2009 SCC 32, to assess whether, had a breach of s 7 rights been found, theexclusion of evidence was a proper remedy in the present case. He determined it was not. It does not appear that the Appellant challengesthe legal test applied to this aspect of the trial judge’s decision, nor do I see how that test could be challenged. I find no error in the legaltest applied by the trial judge in this regard. B.

Section 8 [85]

Section 8 of the Charter states: Everyone has the right to be secure against unreasonable search or seizure. [86] The Appellant asserts that his s 8 right requires a “reasonable manner of search” and seizure of the breath samples. Mr.McCoy does not dispute the seizure of the Appellant’s breath samples was authorized by s 254 (2) of the Criminal Code and that it isreasonable law.

He argues instead that the crown has failed to establish that the search was carried out in a reasonable manner. [87] The Appellant argues that compliance with the two RCMP policies regarding the use of the VICS should be considered arequirement of a reasonable search, the failure in compliance of which constitutes a s 8 breach. The Appellant was unable to provide anycases directly on point.

In support of this proposition, the Appellant suggests other scenarios are helpful to this analysis such as stripsearches and search warrants where certain parameters were laid out by the court to delineate what constitutes a reasonable manner ofsearch, including consideration of other legislation, case law, and in one case, Abbotsford Police Department (Re), (BC LA), the standard practice outlined in the police manual regarding conducting surveillance and executing a warrant. [88] By way of example, for a search warrant, the case law sets out parameters to promote the principle of an announced entry.

Byway of another example, with respect to strip searches, case law appears to address the very sensitive nature of this type search and theprotection and preservation of privacy to the individual searched based, either primarily or at least in part, on Guidelines set out in theEnglish legislation which address the invasion of privacy and threat to the detainee’s bodily integrity. [89] On this basis, the appellant argues that there is judicial precedent for courts to consider existing common-law requirements,training manuals and printed policies or guidelines when determining what a “reasonable manner search” entails.

Additionally, theAppellant argues that the further the deviation from these policies, the greater the burden on the Crown to explain the reason for thedeviation. [90] In contrast, the Crown states that even these with these more invasive situations suggested by the Appellant, the cases addressthe deliberate, unexplained conduct on the part of the police that disregarded the rights of an accused.

It argues that in this case, therewas no such behavior by police. [91] There are many sources a court can refer to in order to specify what constitutes a reasonable search and seizure, particularlywhen previously unspecified. No authority was provided to suggest that requirements set out in guidelines or policies − even mandatoryrequirements − have become the threshold requirement for what constitutes a “search carried out in a reasonable manner”. [92] Mr.

McCoy references case examples of when the court intervened to establish minimum expectations for a reasonable searchto address issues of: police entering a home unannounced: R v Cornell, 2010 SCC 31; police failing to conduct surveillance while

obtaining a search warrant without providing an explanation: Abbotsford Police Department (Re ) ; police leaving a suspect fully naked during a strip search with the door left open: R v Smith , [2010] O.J. No. 1596 Ct. Just; and clarifying when a party could be strip searched in the field rather than the police station: R v Golden , 2001 SCC 83 . These examples are not at all similar by analogy to the present situation in terms of the unreasonableness of a search and the intrusion into ones’ right to privacy. These cases all deal with deliberate unexplained conduct on the part of the police.

By way of further differentiation, they deal with the manner of a search, not the evidentiary record of it. These cases are clearly distinguishable from the present case, not only on the facts, but on the nature of the issues in question. [93] I find that the non-compliance with the VICS policy does not engage s 8 Charter rights in this case. Additionally, to demonstrate the absurdity of the Appellant’s Charter challenge, it is worth noting the effect of requiring compliance with this VICS policy in order to establish the reasonableness of the search.

In the present case, since the outward facing camera of the police car would only record the parked police car in front of it, there was no point turning it on. The Appellant suggests that, in order to comply with the policy, the police cars park on an angle and stop vehicles for the Checkstop so that they would land within the range of the camera.

The impracticality of the suggestion that the officers would have to park their cruisers on an angle into a busy stretch of road and attempt to stop vehicles in the middle of traffic so that they would land within the range of the camera contrary to public or officer safety is a perfect example of how the mandatory nature of the policy cannot be an absolute, including when it is not practical, such as in the present case. [94] There are reasons why the RCMP implemented this policy, laid out in the policy itself, that are not directed toward the reasonableness of the search.

I do not find that the Appellant’s s 8 Charter rights are compromised by the absence of a video recording or non-compliance with this policy. [95] While the wording of the policy is mandatory, the findings of the trial judge are consistent with the K Division Operational Manual policy itself which states that: 1.3 The video recording is to be used to augment members’ notes. [96] Further, at 1.4 the manual indicates the ICDVS may be used as a method to improve officer/violator contacts; professionalism, and safety in approaching vehicles and people. [97] The trial judge applied the correct legal test, and found no s 8 violation. [98] The trial judge further held that in the event he was incorrect in his finding on the Charter violations, he would not in any event exclude the evidence under s 24.

There is no basis to disturb these findings. 2. Did the trial judge make several unreasonable findings of fact that were critical to the Appellant’s conviction or otherwise misapply the law regarding a reasonable excuse to fail to provide a breath sample [99] The Appellant asserts that the trial judge made several unreasonable findings of fact that were critical to the Appellant’s conviction. The Appellant argues that the trial judge had a duty to address the reliability and credibility of Corporal Weigum’s testimony in light of the contradictions raised by the evidence.

Furthermore had the trial judge undertaken an independent assessment of Corporal Weigum’s evidence, he may not have convicted the Appellant. [100] The Crown submits that the trial judge was in the best position to assess and weigh the evidence of the Appellant and Corporal Weigum and properly did so. The onus rests with an accused to establish a factual foundation for a reasonable excuse for failing to provide a breath sample. The Appellant, in the present case, was unable to do this.

It is not enough that the Appellant sometimes suffers from conditions which may impact his ability to provide breath samples; he must establish a foundation that on the evening in question he was suffering from such a condition. [101] The Appellant provides two examples to demonstrate that Corporal Weigum’s testimony was unreliable. First, the Appellant argues Corporal Weigum’s testimony exaggerated the seizure that the Appellant had while at the detachment.

Although this inconsistency was noted by the trial judge, the Appellant argues it had no impact on the trial judge’s credibility assessment of Corporal Weigum. Second, at one point in his testimony, Corporal Weigum stated he had documented the seizure in his notes.

Upon a review of his notes, however, there was no such comment. [102] The Appellant argues that in light of the video evidence regarding the Appellant’s seizure, the specific error in his recollection of his notes and Corporal Weigum’s blatant refusal to admit his recollection of the seizure was inaccurate or exaggerated, the trial judge ought to have found Corporal’s evidence to be unreliable. Furthermore, the Appellant submits that the trial judge should have had concerns about the reliability of all of Corporal Weigum’s evidence especially those portions that were deliberately not audio or video recorded.

I note that, as discussed above, the absence of recorded evidence may go to the weight the trial judge may place on the testimony of the officer, but does not necessarily result in discounting all evidence merely due to an inconsistency. [103] With respect to the first alleged “inconsistency,” the exaggerated description of the seizure, Corporal Weigum testified that the video display may not have revealed what he saw at the same intensity given the camera angle.

Corporal Weigum explained that there may have been a difference between what he was able to observe and what was captured on the video and concedes that what he described is not observed on the video.

Even though the seizure captured on the video was less pronounced than that described by Constable Weigum, it would be improper for the trial judge to reject the entirety of Constable Weigum’s’ evidence merely on that basis. [104] In terms of the second alleged “inconsistency”, Corporal Weigum merely misstated where he had made the note, and later in testimony clarified that the notation was made in the General Report rather than his notebook. I hardly consider that an inconsistency and the trial judge’s reliance on Corporal Weigum’s testimony is not erroneous in light of this momentary “misstatement”.

[105] The Appellant also argues that, in finding the Appellant’s memory of the night in question was faulty and unreliable, the trial judge erred in discounting all of the Appellant’s testimony. Here the Appellant raises two errors of the trial judge. First, although the Appellant was candid about the fact he could not remember most of the events that occurred on the night he was charged, he did recall that he had hurt his head and had to be taken to the hospital.

The Appellant states that the trial judge dismissed this testimony because the Appellant could not recall being taken to the hospital by ambulance, yet he was not asked that question or provided evidence to that effect. The Appellant contends that this was an unreasonable finding of fact. [106] Secondly, the Appellant submits that the Appellant’s testimony regarding his medical condition should not have been discounted. The Appellant argues that his knowledge of his medical condition would not have been impacted by his poor memory in the night in question.

The Appellant states this was incongruent reasoning on the part of the trial judge. [107] I note that the trial judge at no time states that he does not believe the Appellant did not have a head injury or had memory issues or other symptoms as a result of the injury. The Court accepted that Mr. McCoy suffered from a medical condition and as a result had no recollection of the evening in question. The trial judge only rejected the Appellant’s evidence regarding what occurred in dealing with Corporal Weigum, and noted “to accept the evidence of Mr.

McCoy would be to state Corporal Weigum was incorrect with respect to all the events that occurred. This court is not prepared to do so and therefore rejects the evidence of Mr. McCoy on that issue.” (Trial Transcript, p 147, lines 9-10). [108] I further comment that the Appellant’s evidence was also inconsistent with the events of the night in question.

In reviewing the video of the cell block, the trial judge noted that the Appellant clearly announced he was about to have a seizure, notwithstanding the Appellant’s testimony at trial that he could not predict when seizures would come. [109] Corporal Weigum testified that the Appellant was not actually blowing for the first four attempts. Corporal Weigum explained at trial (Trial Transcript, p 10, lines 37-39) that there was no indication on the LCD screen that any air had been provided into the instrument.

Corporal Weigum testified as follows, (Trial Transcript, p 11, lines 22-27): He repeatedly said to me that he was trying, that he – he was blowing, and then he said he was starting to get a headache from trying to blow into the instrument.

I stated that he hadn’t actually blown into the instrument yet, that possibly he was getting a headache from his holding his breath and trying to make it look like he was providing a sample into the instrument. [110] Addressing his general memory, beyond the night in question, the Appellant could not remember the event that caused his sobriety - an event he testified was so significant that he tattooed the words “never again” on his fingers. Nor could he remember the name of his treating physician.

In light of this evidence, it was reasonable for the trial judge to place as little weight on the Appellant’s testimony as he deemed appropriate, even if that amount was none. The trial judge found as follows: Corporal Weigum ensured that the approved screening device was operational and provided Mr. McCoy with seven opportunities to provide a sample of his breath. During these opportunities Corporal Weigum demonstrated to Mr. McCoy how to provide a sample into the unit. Mr. McCoy was not providing samples of breath into the unit. During the tests Mr.

McCoy either failed to provide any air into the instrument, or stopped immediately upon a tone being activated. The court finds that these actions were deliberate and intentional by Mr. McCoy. As such he failed to provide samples in accordance with the demand. [111] In regards to the issue of reasonable excuse, the trial judge found that Mr. McCoy did not establish a factual foundation for his refusal. He stated in his oral judgment (Trial Transcript, p 47, lines 33-41): The issue remaining before the court is whether Mr. McCoy had a reasonable excuse for not providing sample of breath.

This court is not satisfied that Mr. McCoy has established a factual foundation for his refusal on a balance of probabilities. While it may not be necessary to lead medical evidence to establish reasonable excuse, where it is readily available and ascertainable, as in this case, it would have been of great assistance. Mr. McCoy has no recollection of the incident. He believes he was in medical distress, an ambulance was called for Mr. McCoy, an examination was conducted at the detachment, and he wished to leave the detachment in the ambulance to the hospital. Again, while Mr.

McCoy has no recollection of the events of that night, any medical attention that Mr. McCoy received at the hospital would of assistance to address his inability to provide a breath sample. [112] Beyond these specific findings of fact of the trial judge, however, I consider where the burden lays in establishing a “reasonable excuse”. Section 254(2) (

b) of the Criminal Code requires the defendant to provide a breath sample where a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and where the defendant has operated a motor vehicle within the preceding three hours. Section 254(5) declares it an offence for a defendant, without reasonable excuse, to fail or refuse to comply with such breath sample demand. The Criminal Code at s 794(2) clarifies that the burden of proving that excuse is entirely on the defendant: 794

(2) The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information. [113] In raising the defence of reasonable excuse, the Appellant is conceding that the Crown has proven beyond a reasonable doubt the existence of the requisite mens rea and actus reas for the offence; since the excuse must be objectively reasonable, the onus of the establishing the proffered excuse rests with the Appellant; R v Goleski , 2014 BCCA 80 at para 13 ; aff’d, 2015 SCC 6 .

That the persuasive burden rests on the Appellant to prove an excuse was confirmed in Goleski (SCC). [114] The trial judge in the present case held that the Appellant had not “established a factual foundation for his refusal on the balance of probabilities” (Trial Transcript, p 147, lines 33-34). Merely raising an air of reality is not sufficient to overcome this burden. It is not enough for the Appellant to say he sometimes suffers from conditions that impact his ability to provide breath samples, he must establish a foundation that on the evening in question he was suffering from such a condition.

While there was no requirement for the Appellant to lead medical evidence, as acknowledged by the trial judge, he noted it would have been helpful as the Appellant had no recollection and that evidence was readily available.

[115] The trial judge correctly held that the burden was on the Appellant to make out a reasonable excuse for not providing the breath sample. In the present case, he failed to call evidence to support his claim, and the trial judge determined that it was not possible to trust his testimony due to the Appellant’s lac k of memory and his own inconsistent statements. I find no error in the trial judge’s application of the law regarding a reasonable excuse to fail to provide a breath sample.

Nor do I find the trial judge made unreasonable findings of fact, and certainly none that rise to the level of overriding and palpable error. I do not find that the Appellant has established that the verdict of guilty is unreasonable, nor is it unsupported by the evidence in this case. 3. Did the trial judge fail to properly apply the test as set out in R v WD? [116] Mr. McCoy argues that in setting out his reasons, the trial judge did not properly apply WD . The trial judge’s reasons included that he must consider whether

a) he believed the accused, and if not

b) if the rest of the evidence caused him to be in sufficient doubt of his guilt. In doing so, Mr. McCoy alleges that the trial judge put the officer’s and the accused’s testimonies in competition with each other, contrary to WD . Mr. McCoy argues that, had the trial judge just considered the evidence of the officer, there would be sufficient information to support the accused’s version and to raise a reasonable doubt. [117] How a trial judge articulates the test in WD need not follow a particular pattern or formula, rather, the substance of the test must be met: R v Dinardo , 2008 SCC 24 at para 23 .

As such, I must evaluate how the evidence was considered by the trial justice to confirm that the substance of the test was applied. [118] The test to be applied by a trial judge in weighing the evidence is established in WD : First, if you believe the evidence of the accused you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [119] The trial judge summarized both the testimony of the Appellant and Corporal Weigum. At p 146 lines 33 to 38 of the Trial Transcript, he reviewed the evidence of Mr. McCoy and found that: “The evidence of Mr. McCoy must be given little weight”, as Mr. McCoy has no recollection of the evening as to what occurred. I note that the judge is not stating Mr.

McCoy does not know whether or not he has had a brain injury or that there are consequences of it; rather he is saying Mr. McCoy’s testimony of the events of that evening are basically: “I can’t remember” and therefore it would be very difficult to come to the conclusion that this evidence supports the Appellant’s position. This addresses the first step of the WD test; there was not enough evidence presented by Mr. McCoy to consider it the basis for acquittal. [120] With respect to the little evidence to which Mr.

McCoy was able to attest, the trial judge provided reasons for why such testimony was not believable, primarily related to inconsistencies in Mr. McCoy’s own testimony. Specifically, some of points regarding Mr.

McCoy’s evidence are as follows: The Appellant was unable to provide an explanation as to why there were bottles of alcohol in his vehicle. (Trial Transcript, p 146, lines 8-14) The Appellant testified that he could not forecast when a seizure occurred and yet Constable Weigum’s evidence was that the Appellant told him when he was about to have a seizure. (Trial Transcript, p 145, lines 40-41; p 146, lines 1-6) The Appellant testified that if the headaches associated with his injury continued then he would become ill and vomit.

There is no evidence this occurred, despite a clear opportunity to obtain this evidence from the paramedics. (Trial Transcript, p 145, lines 40-41) The Appellant testified he stopped drinking prior to the accident due to a significant event, to become sober and tattoo the words “never again” on his fingers. Yet, he was unable to state what that significant event was which triggered the sobriety. (Trial Transcript, p 146, lines 10-17) [121] The trial judge also considered the testimony of the Appellant to the effect that he had not been drinking that night and that there was no alcohol in the car.

Yet the Corporal noted alcohol both emitting from the Appellant’s vehicle and on his breath, and again from the back of the police cruiser when the Appellant was the sole occupant, and on the straw of the ASD after the Appellant used it.

The trial judge rejected the testimony of the Appellant due to all of the inconsistencies, and was not left with a reasonable doubt based on his testimony. [122] In essence, what the trial judge is saying is not: I prefer the testimony of the officer over the testimony of the Appellant; instead, he is explaining why the evidence of the Appellant does not leave him with a reasonable doubt, including due to credibility issues.

This addresses the second step of WD . [123] Finally, the last step of WD is to consider that, even if the accused’s evidence does not leave you with a reasonable doubt of his guilt, you may convict him only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt. To meet this test, the trial judge goes through the evidence that is before him (Trial Transcript p 146, lines 40 – 41; p 147 line 1 to p 151 line 12).

The trial judge finds that the evidence which the trial judge accepts is sufficient to establish the required elements of the offence beyond a reasonable doubt. [124] In coming to this determination, the trial judge had to consider whether to discount the credibility of Corporal Weigum, as he was urged to do by the Appellant. In assessing what weight to place on the Corporal’s testimony, the trial judge considered the testimony of the Appellant that contradicted it. The trial judge considered the many inconsistencies in the Appellant’s evidence.

[125] In conclusion, although the trial judge did not articulate each step of WD as he reviewed the evidence, I find that he did not merely pit the Appellant’s version of events against that of the Corporal. Rather, he methodically reviewed the evidence and made determinations of credibility where required. The trial judge was not required to articulate the WD test as a “magic incantation” of distinct steps. The trial judge properly applied the WD test. VII. Conclusion [126] As all bases of appeal have failed, Mr. McCoy’s conviction stands. Heard on the 22 nd day of February, 2016.

Dated at the City of Calgary, Alberta this 10 th day of May, 2016. C. Dario J.C.Q.B.A. Appearances: Shannon W. Davis for the Respondent Timothy E. Foster for the Appellant