R. v. Carmola-Chambers, 2020 ONCJ 493

ONTARIO COURT OF JUSTICE CITATION: R. v. Carmola-Chambers , 2020 ONCJ 493 DATE: 2020 10 30 COURT FILE No.: Brampton 3111 998 17 13370 BETWEEN: HER MAJESTY THE QUEEN — AND — JEREMY CARMOLA-CHAMBERS Before Justice A. Calsavara Heard on September 23 and 24, 2020 Reasons for Judgment released on October 30, 2020 H. Rim.................................................................................................... counsel for the Crown A. Lee......................................................... for the defendant Jeremy Carmola-Chambers CALSAVARA J.: I.

INTRODUCTION [ 1 ] At 1:53am on October 29 th , 2017 the police found the defendant, Mr. Carmola-Chambers asleep in the driver’s seat of an older model, grey Toyota sedan. The vehicle was running, but parked with its front end across a lane of traffic on Derry Road, and its back end remaining in the lot to an industrial unit. The front tires of the sedan were missing. The two front rims were damaged and smaller than normal as if they had been driven on. The front end, underneath the headlights, was damaged. Otherwise, the exterior of the vehicle looked fine.

The front windshield was intact. [ 2 ] The police banged on the window of the driver’s door, but Mr. Carmola-Chamber’s did not respond. The top of the window was open by several inches. An officer reached in to unlock the door. Two police officers were then able to rouse Mr. Carmola-Chambers by shaking his shoulder multiple times. He seemed confused and at first incoherent. There were no noticeable injuries to Mr. Carmola- Chambers. No cuts. No bruises. No blood. There was a strong odour of alcohol on Mr. Carmola-Chamber’s breath. [ 3 ] Within seven minutes of attending this scene, an officer arrested Mr.

Carmola-Chambers for impaired, care or control. Over two hours later, he provided a breath sample into an improved instrument, which registered at 120mg of alcohol in 100ml of blood. His second sample resulted in a reading of 113mg. The Crown called a forensic toxicologist who, using the lowest reading—truncated to 110mg—placed the defendant’s blood-alcohol concentration between 111mg to 162mg of alcohol in 100ml of blood at the time the police found Mr. Carmola-Chambers in care or control of the car.

The toxicologist also testified that in this range, he would expect that a person’s ability to operate a motor vehicle to be impaired. Subject to the admissibility of the defendant’s breath readings, the toxicology opinion on both issues was accepted and unchallenged by the defence. [ 4 ] Mr. Carmola-Chambers was charged with both Over 80 and Impaired Care or Control. A blended trial and Charter voir dire proceeded on these counts. In addition to the forensic toxicologist, the Crown called 3 police witnesses: two who had attended the scene and a qualified breath technician. Mr.

Carmola-Chambers called no evidence. In the defence view, the case for the prosecution on both counts rises or falls on the result of the Charter application. The Crown argues it has proven its case on the Impaired count no

matter the result of the Charter motion. The Defence seeks exclusion of the breath readings on the basis of several Charter breaches. On behalf of the defendant, Ms. Lee asserts that the administration of justice would be brought into disrepute if the breath readings wereadmitted. The various breaches alleged can be distilled as follows: (

i) Ss. 8,9 – no reasonable grounds for the breath demand or the arrest for Impaired Care or Control (ii) s. 8 – the breath tests were not completed as soon as practicable and thus the warrantless seizure was not prescribed by law (iii) s. 10(a) – for failing to advise the defendant at the scene of his jeopardy in facing a charge for simple possession of marijuanawhen it was discovered search incident to arrest for the impaired care or control (iv) S. 10(b) – for failing to re-advise the defendant of his rights to counsel after completing his breath tests and being advised of thefurther count of Over 80 [5] For the reasons that follow, I find that Mr.

Carmola-Chamber’s Charter rights were not violated. If I am wrong in myconclusion concerning Charter compliance, a 24(2) Grant analysis would favour inclusion of the readings. Even if the breath resultswere excluded—which would likewise render the toxicologist’s opinion without factual foundation and without any weight—I wouldfind the defendant guilty of the Impaired Care or Control count. II. CHARTER CLAIMS Reasonable Grounds [6] The defence accepts as fact that Mr. Carmola-Chambers was in care or control of a motor vehicle.

The element claimed to belacking even on a reasonably-based probability standard is that his ability to operate one was impaired. Because of this, both the arrestand the demand were unlawful and his detention arbitrary. The defence, in essence, argues that the arresting officer rushed to judgmentand neglected to conduct a more thorough investigation at the scene to rule out other possible explanations for finding Mr.

Carmola-Chambers passed out behind the wheel of a running car partially on a major roadway without front tires and damaged rims at 2am. [7] The defendant instead could have simply been tired, had a medical condition, was concussed and was simply trying to get offthe roadway. In the defence view, the police should have pursued and ruled out all of these possibilities, citing Chartier v.

AttorneyGeneral (Quebec), (SCC), [1979] 2 SCR 474 in support before forming grounds and the absence to do so means thereasonable grounds standard, objectively, has not been made out. [8] The Crown argues that the information known to the arresting officer together with her observations at the scene—on both anobjective and subjective basis—meet the reasonable ground standard to base the arrest and make the breath demand. [9] There is no question that an investigating police officer must consider all relevant information, as the defence submits—including evidence that points to a non-criminal basis for the circumstances under investigation in the formulation of her grounds forbelieving a crime has been committed.

The police do not, however, have to negative every other possibility—even speculative ones asurged by the defence. [10] Nor do the police have to deduct indicia from their assessment that could be attributable to some other cause, such as red eyesfrom fatigue. Justice Durno in R. v.

Bush, 2010 ONCA 554, explained the standard in the context of a drinking and driving investigation: 55 In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of theofficer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection":Jacques at para. 23; also Censoni at para. 43. However, it is neither necessary nor desirable to conduct an impaired driving trial as athreshold exercise in determining whether the officer's belief was reasonable: R. v.

McClelland, 1995 ABCA 199 , [1995] A.J.No. 539 (C.A.). 56 An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaireddriver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as theessential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable groundsobjectively existed; Censoni at para. 46.

The absence of some indicia that are often found in impaired drivers does not necessarilyundermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello(2002),22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, at para. 21. 57 Consideration of the totality of the circumstances includes the existence of an accident. However, that the accident could have causedsome of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has tototally eliminate those indicia from consideration: R. v.

Duris, 2009 ONCA 740 at para. 2. They have to be considered along with all theother indicia in light of the fact there may be another explanation. To the extent that Uppal determines otherwise, with respect, it waswrongly decided. 58 Here the investigating officer testified that he took into consideration that the respondent had been in an accident. In assessingwhether reasonable and probable grounds objectively existed, the trial judge appropriately considered that there had been an accident.

However, that there might be another explanation for some of the factors the officer properly took into account in forming his opinion ofimpairment to drive did not eliminate the indicia or render them unreliable … [11] In this case, officer Bannock, while acknowledging that certain facts when viewed in isolation might point away from impairment—such as the defendant being passed out behind the wheel could be due to a medical condition—believed that Mr.

Camola-Chamberswas impaired[1] on the totality of the information known to her at the time, including: • At 1:49am, she was dispatched to the scene for a ‘medical assist’ and advised that an anonymous caller reported a grey Toyota(with the specific licence plate) in a live lane at Derry Road West • The caller reported the vehicle had two missing front tires • The caller reported that the driver was passed out and the caller tried to knock and wake up the driver • The car was running • When the officer attend at 1:54am, she located the grey Toyota identified by the anonymous caller with its rear end in a parking lotand the front in a live lane on Derry road, facing northbound • There were two front tires missing and front end damage • The two front end rims were damaged as if they had been driven on • The car was running with keys in the ignition • Both the headlights and rear lights were on • A man [Mr.

Carmola-Chambers] was the sole occupant and seated in the driver’s seat, upright with his hands in his lap apparentlyasleep • The driver’s door window was down by several inches • The arresting (along with another officer who separately attended the scene) rapt on the driver’s side window and spoke loudlythrough the open window in an attempt to rouse the driver awake • The driver remained unresponsive • When her colleague reached in the vehicle to unlock and open the door, the officer shook the occupant’s shoulder multiple times • It took 30 seconds or more and multiple attempts, but she was able to wake up the driver • The driver’s speech seemed slurred and was incoherent • The officers demanded that the driver step out of the vehicle, but he didn’t and instead reached toward his right hip area near theconsole • After demanding that he step out a second time, the officers took hold of the driver’s left arm; however the driver grabbed onto tothe steering wheel with his right hand and would not let go • The officer pried his right hand off the steering wheel in order to remove him from the vehicle • The officer noted that the driver was unsteady on his feet when he exited • The driver’s eyes were watery and bloodshot and there was a strong odour of alcohol coming from his breath • The driver had no visible injuries • At 2:01 the officer formed the opinion the driver was impaired and in care or control of a motor vehicle [12] This formulation was also objectively reasonable given these circumstances known to the officer: R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241. [13] I make this finding despite the additional point of contention, raised by the defence, with the arresting officer’s observations thatMr. Carmola-Chambers was unsteady on his feet. The defence questioned the reliability of officer Bannock’s testimony on this point. [14] Constable Mageanu—the other officer who attended the scene—testified that Mr. Carmola-Chambers was unbalanced when hecame out of the vehicle, but he chalked that up to the defendant having just woken up.

He agreed that he did not notice the defendantunsteady or swaying when they walked him back to officer Bannock’s cruiser upon arrest and pointed out that he was holding on to thedefendant during this walk. This seeming discrepancy with Constable Bannock’s evidence might simply be because Mageanu did notnotice it at the time or—if he did notice it—make a make a record of it. It was a short walk. According to officer Bannock it was 10 feet– perhaps up to 20 at the most. Officer Magenau’s memory of the details from the scene was not great.

This may be because he testifiedsome three years after the events in question and his notes of what transpired at the roadway were not recorded until three hours after thefact. His poorly prepared notes were ineffectual as an aide to remembering. Whereas, Constable Bannock’s memory of the investigation—at least while still at the roadway and about the grounds for the arrest—was precise, descriptive and reliable.

[15] In my view, with or without Bannock’s observation of the defendant being unsteady or swaying, the grounds to support her beliefthat Mr. Carmola-Chambers found himself in the position that he was in at 1:53am, asleep at the wheel of a car with a running enginewith missing front tires and damaged rims because his ability to operate a motor vehicle was impaired—even if just slightly—by alcoholwere overwhelming. [16] The smell of alcohol is indicative of consumption. Added to that, is Mr. Carmola-Chambers was fast asleep at the wheel of a carwith its engine running, partly on the roadway.

There was an apparent unexplained traffic mishap that resulted in Mr. Carmola-Chambers losing his front tires not at the place the police discovered him but elsewhere. His front rims appeared to be driven on. Despite all of this, the defendant was in a sleep deep enough that the police had trouble waking him up. An anonymous caller—whoseinformation proved reliable—also tried (unsuccessfully) to wake up the defendant some five minutes or more earlier. Once they didwake him, Mr. Carmola-Chambers was confused and incoherent.

His eyes were red and bloodshot; and yet, the evidence did not suggesta serious collision, with airbags deployed and a broken windshield which might account for Mr. Carmola-Chambers being ‘concussed’ asMs. Lee on behalf of the defendant put it as opposed to be being passed out from—at least in part—alcohol consumption. Mr. Carmola-Chambers was not suffering from any obvious injuries. That the officer formed the opinion that these circumstances were explained bythe consumption of alcohol and that Mr.

Carmola-Chambers’ ability to operate a motor vehicle was impaired due to that consumptionwas an obvious and reasonable conclusion. [17] The Crown has proved that the arrest and breath demand were lawful and in compliance with s. 8 of the Charter. Because of thisfinding, the defence claim under s.9 of the Charter that Mr. Carmola-Chambers was arbitrarily detained on account of this arrest fails. As Soon as Practicable ‘ASAP’ [18] Is a failure to take an accused’s breath sample "as soon as practicable" a breach of s. 8 of the Charter as the defence submits?

Or, as the Crown argues, does it simply disentitle the prosecution to an evidentiary shortcut—in transitional cases—to prove blood-alcohol concentration for an offence under s. 253(b)? There is a debate at the trial level over this issue and it continues despiteParliament’s re-write of the drinking and driving provisions in Bill C-46. [19] This debate continues despite the fact that this ‘ASAP’ was seemingly put to rest with C-46 amendments since the elements tothe drink drive offences have completely changed making it unnecessary for the crown to rely on the presumption of identity.

What thedefendant’s BAC is ‘at the time of or care or control’ is no longer an element of the offence – but if as the defence posits, ‘ASAP’ on thetaking of the samples is a precondition to admissibility under s. 8 search and seizure principles, then despite Parliament’s re-write,litigation over its proof in impaired prosecutions will continue to be routine. [20] Justice Fiorucci in R. v. Fancey, 2018 ONCJ 657 and more recently Justice Doody in R. v. Pillar, 2020 ONCJ 394, have boththoroughly discussed this debate and helpfully reviewed cases in support of each position.

While there are nuances among theperspectives, the competing conclusions can be generalized. [21] Those who espouse the former

interpretation point to first principles of s.8 search and seizure law. A warrantless search ispresumptively unreasonable. A search will be reasonable if it is: prescribed by law, the law is reasonable and the manner in which itwas carried out was reasonable: R. v. Collins, (SCC), [1987] 1 S.C.R. 265. When the preconditions are met, s. 254(3)[now s. 320.28] empowers the state to seize breath samples. Just what those preconditions are is the centre of this debate. The relevantportion of s.254(3)[2] reads:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or … [emphasis added] It is argued that both clauses which site the phrase “as soon as practicable” are preconditions to a valid seizure and hence preconditionsto a constitutionally-compliant warrantless seizure. [22] Moreover, proponents of this view point to the provision’s aim of forcing a prompt police investigation—and hence minimizingstate interference with liberty—as recognized in R. v. Deruelle, (SCC), [1992] 2 S.C.R. 663 as a rationalization toexpand the

interpretation of s. 253(4) in this way. [23] Those holding the competing view would say that the only ‘as soon as practicable’ requirement in s.253(4) on the state relates tothe timing of the demand – not to the taking of the samples. The second reference to ‘as soon as practicable’ relates to what the accusedis obliged to do; or looked at another way, ‘what’ and ‘how’ the state is entitled to obtain.

Those from this camp, assert that thereasonableness of the seizure and the minimization of the state interference with liberty is addressed by the preconditions to a validdemand which are explicit in the section, including the requirement that there be reasonable grounds. [24] The only appellate authority binding in Ontario that is directly on point is Justice André’s decision in R. v. Mawad, 2016 ONSC7589.

There the appellant was convicted of Over 80 at trial, in a case like this one, where the Crown could not rely on the presumptionof identity because too much time had passed before the breath samples were taken; and instead called a toxicologist to prove the bloodalcohol concentration at the material time. During the trial, the defence challenged the constitutionality of the seizure on the basis—principally—that the officer did not make the demand as soon as practicable and secondly failed to take the samples as soon aspracticable.

[ 25 ] In the end, the trial judge found the police breached Mawad’s s.8 rights by failing to make a timely demand and noted that this breach was aggravated by the fact that the police failed to ensure the samples were taken as soon as practicable but made no specific finding that the time it took to take the samples was in and of itself a breach (and ultimately admitted the samples under 24(2)).

The failure to make this specific finding—that is that the untimeliness in taking the samples is a s.8 breach—proved to be a ground of appeal, putting this issue squarely before André J. [ 26 ] In dismissing the appeal, Justice André essentially found that the taking of samples “as soon as practicable” is not a pre-condition in order for the seizure to be prescribed by law and hence not a precondition to admissibility and after reviewing the authorities— including importantly Deruelle —ultimately commented in a purposive analysis at paragraph 26, “…I fail to see how a statutory short cut given to the Crown to prove a charge of ‘Over 80’ against an accused can be elevated to a violation of his or her constitutional rights.” [ 27 ] Ms.

Lee on behalf of Mr. Carmola-Chambers submits that because Justice André referred only to the statutory shortcut in his decision and never quoted from s. 253(4) he never considered that provision in dismissing the appeal and the case is therefore not binding authority. I disagree that there is this distinguishing aspect. The issue on appeal in Mawad is exactly the same as the Charter complaint raised by Mr. Carmola-Chambers. Mawad is binding on me. [ 28 ] In any event, I disagree with my colleagues who suggest Mawad was wrongly decided [3] .

The authorities are clear on what constitutes a lawful demand as prescribed by s. 254(3)—and hence a seizure prescribed by law. In R. v. Wylie 2013 ONCA 673 the

Summary Conviction Appeal judge overturned a conviction finding that ‘details concerning the demand such as who gave it, what was said, and when and where the demand was made’ are necessary elements the Crown must make out to prove a lawful demand. The Court of Appeal sent this clear reminder in swiftly granting the Crown appeal: All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable .

There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the "who, what, where and when" of the demand. [emphasis added] Justice André ’s comments in Mawad reflect that the constitutionality of the breath demand is already addressed by the requirements in 253(4) of ‘reasonable grounds’ and a timely demand . Implicit in his decision is a finding that the second reference to “as soon as practicable” in 253(4) is not a precondition to a lawful demand or seizure. This

interpretation of the judgment is made all the more clearer with André J.’s concluding comments relating to this ground at paragraph 27, where he stated, “…[t]he subsequent failure to take the breath samples as soon as practicable does not amount to an unreasonable search and seizure given that the arresting officer and breathalyzer technician had the requisite grounds to make the breathalyzer demand … [t]he situation may have been different had they lacked the grounds to make the demand.” [ 29 ] In the context of a Charter s.8 analysis of the preconditions to a valid demand, the Court of Appeal in R. v.

Guenter, 2016 ONCA 572 [4] had the opportunity to again reiterate its reminder in Wylie of what constitutes a valid demand: 89 Given the close inter-relationship between the operation of s. 254(3) and the need for officers to ensure that a detained person can exercise his s. 10(

b) rights in a meaningful way, linking the making of the demand to the timing of the detention has a certain practical attractiveness. But that is not how s. 254(3) reads. As this court held in R. v. Wylie , 2013 ONCA 673 , 51 M.V.R. (6th) 1 , at para. 10 : "All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable.

There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the 'who, what, where and when' of the demand." Moreover, the larger objective of the Criminal Code's breathalyzer scheme of forcing prompt police investigation was held to be promoted by the three hour limit in s. 254(3): Deruelle , at p. 672 . [emphasis added] Justice André’s decision in Mawad is an application of these authorities.

He declined to read in an additional requirement on the police in order to achieve Charter compliance. [ 30 ] Furthermore, as I see it, the interplay between s. 258(1)(c) (the presumption of identity/evidentiary shortcut) and s.254(3) (the law which prescribes the seizure of breath samples) is further proof that the taking of the sample as soon as practicable is not a condition- precedent to a lawfully obtained seizure. This revelation can be observed in the opening passage of the presumption of identity

section in paragraph (c): 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or in any proceedings under subsection 255(2) or (3), ******** (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3 ) , if (i) [Repealed before coming into force 2008, c. 20, s. 3 .] ( ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol inthe blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are thesame, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrationsdetermined by the analyses; [emphasis added] Subsumed in that opening passage to clause (

c) is that a sample has been obtained lawfully pursuant to section 254(3)—withoutspecifically referencing the preconditions of reasonable grounds or a timely demand but then goes on to add the extra ‘ASAP’component as a threshold for the Crown to make use of this evidentiary shortcut.

If the taking of the samples as soon as practicable wasalready a requirement to a lawful seizure within s. 254(3), then Parliament would not have needed to refer to this extra ‘ASAP’component; it would have been subsumed by reference to 254(3) along with the other components to a lawful seizure: reasonablegrounds and that the demand be made as soon as practicable. As Justice André aptly put, I too “fail to see how a statutory short cut givento the Crown to prove a charge of ‘Over 80’ against an accused can be elevated to a violation of his or her constitutional rights”. [31] Accordingly, since the

section does not oblige the police to pass this added ASAP threshold, and given my findings on thereasonable grounds issue[5], the Crown has shown that Mr. Carmola-Chambers’ breath samples were taken pursuant to a lawful demandmade pursuant to s. 254(3). The seizure of breath was prescribed by law and in compliance with s. 8 of the Charter. Samples were not taken ASAP [32] Although not necessary to decide this case since the Crown is not relying on the presumption of identity, I find in applying thetest in R. v. Vanderbruggen, (ON CA), [2006] O.J. No. 1138 (Ont.

C.A.), that the Crown failed to establish that thepolice obtained Mr. Carmola-Chambers’ breath samples as soon as practicable. And if I am wrong in my conclusions above on theinterpretation of the ‘second ASAP’ in s. 254(3), then this would constitute a breach under s. 8 of the Charter. [33] The overall ‘delay’ between the time of the offence and the time of the taking of the first sample is just over two hours.

Althoughthere is a time while the arresting officer remained at the scene with the defendant, she explained that after the arrest, reading of rights,cautions and the demand she dedicated time at the scene to completing her notes. As I have already pointed out, officer Bannock’s notesproved to be a good aide in helping her recollect an event that took place 3 years prior.

It is appropriate in a criminal investigation for anofficer to make timely and careful notes. [34] In my view, the crucial period that is of concern given the overall time period is the 27 minutes from 2:41 when officer Bannockarrives at the division to 3:08 when officer Bannock and Mr. Carmola-Chambers enter the booking hall.

An overall timeline is includedbelow. [35] Time line • 1:54 police arrive on scene • 2:01 police officer forms opinion accused is in CorC and his ability to operate MV is impaired by alcohol, makes arrest • 2:03 arresting officer reads RTC and caution • 2:12 breath demand • 2:13 tow arrives; arresting officer preparing notes in cruiser • 2:16 QT advised he is required for this investigation • 2:22 arresting officer informed that that QT available at 12 division and that is where tests will take place; • 2:22 arresting officer continues to prepare notes • 2:30 arresting officer leaves the scene with the defendant • 2:41 arresting officer arrives at 12 division sally port with the defendant • 2:46 assisting officer (Mageanu) leaves scene – he remained there to take care of tow and drove around vicinity looking for asecondary scene to check for other damage • 2:59 assisting officer (Mageanu) arrives at 12 divison • 3:08 defendant and officer Bannock enter booking room (until then unexplained delay in sallyport for 27 minutes) • 3:12 officer Mageanu seen on booking video while defendant and arresting officer there – appears to be making a phone call &Mageanu looking in lawyer’s book while in booking area • 3:17 message left for lawyer of choice • 3:21 message left for 2nd lawyer of choice at the request of the defendant;

• 3:23 to 4am defendant spoke to lawyer of choice for 37 minutes • 4am defendant brought into breath room • 4:09 1st breath test into Intoxilyzer • 4:31 2nd breath test • 4:34 exit breath room • 4:37 defendant advised of additional charge of possession of marijuana [36] Essentially, the Crown was unable to offer reliable evidence about why there was a 27 minute delay of time before the defendantwas brought into the police station. Critically, Officer Bannock did not continue to make careful and detailed notes after she left thescene.

She made no notes to account for this time period in this investigation and it is not at all surprising that she would fail toremember three years later. Offered up as an assumption, officer Bannock suggested that another arrested party must have been in thebooking area, causing her to wait with the defendant in the cruiser at the detachment sally port. She admitted she had no memory of thisand as stated no note but indicated—according to her practice—it would be the only reason. Officer Bannock added that she wouldreceive a call when the booking area was clear.

No one would have to come out to get her. [37] Officer Bannock’s explanation of her typical approach might have tipped the balance in finding that the Crown adequatelyaccounted for the time period, except that when presented with video of the division, showing officer Magenau—who left the scene longafter her and in fact arrived at the division after her—enter the sally port from the division gesturing for her to come in, she seemedgenuinely surprised.

Because of this, I cannot rely on her ‘assumption’ that someone else was in the booking hall causing this 27 minutelag as evidence to account for this delay. [38] Officer Mageanu does not assist the Crown either. In fact, he did not recall being in the cells area at all and thought that officerBannock and the defendant were already booked and in the breath room by the time he arrived at the police station. He had zerorecollection of any contact with Bannock and the defendant in the booking hall until presented with footage from the booking area whilethe defendant was being booked.

He too seemed generally surprised. Moreover, he testified that in his experience, it only takes about 15minutes to book a detainee—not 27 minutes. [39] However, as I said above, in my view even if there is a timeliness requirement in the taking of the samples on the police becauseit is read into s. 254(3) or because of s. 498 release obligations or other basis, it would not be the Vanderbruggen ‘ASAP’ test thatapplies.

The Court in Vanderbruggen specifically speaks to the ‘ASAP’ provision being designed to expedite trial and aide in proof,noting, “we are now far removed from the days when the breathalyser was first introduced into Canada and there may have been somesuspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisionsmust be interpreted reasonably in a manner that is consistent with Parliament’s purpose in facilitating the use of this reliable evidence.” 10(

a) relating to the seizure of marijuana [40] Following Mr. Carmola-Chamber’s arrest, Officer Magenau performed the search and pulled from the defendant’s pocket anenvelope. The envelope contained a small amount of marijuana. Nothing was said to Mr. Carmola-Chambers or even to officerBannock of this at the time. Officer Magenau simply held on to it and advised officer Bannock of this finding later at the station.

Onthe basis of this information, Officer Bannock decided the defendant would be charged with simple possession of this drug under theControlled Drugs and Substances Act and asked Officer Magenau to so advise the defendant and at 4:37am, shortly after the breath testswere completed the defendant was advised of this additional charge. [41] The defence claims that the failure to advise Mr. Carmola-Chambers at the scene breached his rights under s. 10(

a) of theCharter. [42] The Crown asserts that the possession of this drug had nothing to do with Mr. Carmola-Chambers detention or arrest and playedno

part in the investigation that night and as such there was no requirement to specifically advise him of this charge. His jeopardy neverappreciably changed as a result of this seizure. Still the police did re-read the defendant his rights to counsel upon informing him of thisadditional charge. [43] The protection afforded by s. 10(

a) is designed to ensure the detainee is generally informed of the reason so she or he can decidewhether to submit to it and understand her or his jeopardy. It also ensures the individual can meaningfully exercise rights to counsel: R.v. Evans, (SCC), [1991] 1 S.C.R. 869; R. v. Roberts, 2018 ONCA 411; On this record, far from being the reason fordetention or arrest, there was near zero focus on the marijuana.

In any event, the police did not decide to charge him with this offenceuntil after the investigation was over and there is no evidence the police investigated anything but an alcohol related impaired drivingoffence that early morning. [44] If I am wrong in my conclusion that there was no breach under s. 10(

a) relating to this marijuana charge, the state misconductwould be of the most trivial variety and one which on the evidence had no impact on the defendant. [45] Parenthetically, I note that the Crown did not proceed on this charge. 10(

b) relating to the added over 80 charge [46] After Mr. Carmola-Chambers gave his samples, resulting in readings showing his blood alcohol concentration was in excess ofthe legal limit, the police advised him he would be charged with ‘Over 80’. As is customary upon the failure of the Intoxilyzer test, thischarge was added to the Impaired Care or Control charge Mr. Carmola-Chambers was advised of upon arrest. Furthermore, he hadalready received legal advice for about for 37 minutes during a phone call with his lawyer between his arrest for a drinking and driving

related charge and the seizure of his breath (which led to the second drinking and driving related charge). [47] Ms. Lee asserts that this amounts to a change in jeopardy and the police were obliged to re-inform the defendant of this rights tocounsel. To my knowledge there is no case which supports this assertion and I do not accept, on the basis of the cases noted above underthe s. 10(

a) analysis nor pursuant to R. v Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310 that Mr. Carmola-Chamber’s jeopardychanged requiring an opportunity to re-consult with counsel. [48] Mr. Carmola-Chambers has failed to establish any s. 10(

b) violation. s. 24(2) of the Charter [49] If I am in error in my assessment of the ss. 8, 9 Charter claim and the state did breach Mr. Carmola-Chambers’ rights, then thebreath readings were obtained in a manner that infringed his right to be free from unreasonable search and seizure, unlawful arrest andarbitrary detention. Despite this, in applying the Grant[6] analysis, I find that the applicant/defendant has failed to establish that theadmission of the breath samples into evidence at trial would bring the administration of justice into disrepute. (

i) the seriousness of the Charter-infringing state conduct [50] If the police ran afoul of the reasonable grounds requirement in arresting the defendant and making a breath demand, it was by asmall margin. Not uncommonly reasonable people disagree on the application of this standard on a given set of facts. If it was in error,that the officer in this case believed Mr. Carmola-Chambers committed this drinking and driving related offence it was an honestly-heldbelieve. Her evidence, in articulating her grounds for the arrest showed she appreciated the requirements of s. 254(3) and the reasonablegrounds standard.

The error, if any, was in its application in the moment, keeping in mind that the police must make quick but informeddecisions concerning grounds in drinking and driving investigations. [51] If there is a s. 8 breach because the taking of breath samples must be done as soon as practicable for it to be a constitutionally-compliant seizure, then, in my view, this was not a serious breach. The police acted in good faith. The evidence discloses the policewere alive to the need to be timely in their investigation.

Indeed, it was to their benefit to obtain the first sample within two hours oftheir attendance at the scene in order to avail the state of the presumption of identity—even though they missed that mark in the end.

Moreover, given the judicial debate on this ‘ASAP’ issue at the trial level and the ambiguity in the law, how can it be said the policewere not acting in good faith? [52] The first Grant factor favours the admission of the evidence. (ii) the impact of the breach on the accused’s Charter-protected interests [53] The taking of breath samples is minimally intrusive and generally evidence of this kind taken in a manner that infringed adetainee’s rights favours inclusion: R. v. Jennings, [2018] ONCA 260 paras 30-32. However, that said, given that Mr.

Carmola-Chambers spent not just a typical amount of time under police confinement given an arrest of this nature, but spent over 2.5 hours inpolice custody at least in part due to the police untimeliness (whether or not it in and of itself is a breach) makes the impact of anunlawful arrest on the accused all the more profound.

Given those facts, assuming a finding that reasonable grounds to make the arrestwas lacking, the impact is, on the scale, just serious enough to favour exclusion under this Grant factor. (iii) society’s interest in the adjudication of the case on the merits [54] This factor favours admission.

The breath results are reliable and essential evidence for the prosecution in proof of the Over 80charge and important evidence for the impaired count—given the opinion evidence of the toxicologist. [55] Since the state conduct was not serious, the impact on the defendant is at most marginally serious, and the importance of thisevidence to the prosecution, the defence has failed to establish that the evidence ought to be excluded. III.

IMPAIRED COUNT [56] For the reasons I stated in my assessment of the evidence during the ‘reasonable grounds’ assessment at paragraph 16,[7] as wellas a few additional points I will note, the Crown has shown that Mr. Carmola-Chambers’ ability to operate a motor vehicle was slightlyimpaired by the consumption of alcohol at the time the police found him in care or control even without the resort to his breath readingsand evidence of his blood-alcohol concentration. [57] In my view, the conclusion that that Mr.

Carmola-Chambers was in the position that he was in at 1:53am, asleep at the wheel of acar with a running engine with missing front tires and damaged rims because his ability to operate a motor vehicle was impaired—evenif just slightly—by alcohol is the only reasonable inference that arises from the evidence or lack of evidence. [58] Before returning to the division, the assisting officer Mageanu drove around the area looking for a secondary scene. Given thedamage to the defendant’s car, he searched to see if there was property damage nearby, such as to a bus shelter or a pole.

The officertracked marks on the road leading from the defendant’s car westbound on Derry for up to 3-4 km but found no ‘accident’ scene. Theofficer also saw pieces of rubber on the roadway, about 8-900 metres from the car. [59] Additionally, as noted the defendant’s front tires were missing and the two front rims appeared to have been driven on. Therewas front end damage below the headlights. When the police discovered him, Mr. Camola-Chambers had the vehicle positionedperpendicular to Derry Road with the front end of the car in a live lane. After an unexplained traffic mishap, I find that Mr. Camola-

Chambers continued to drive. [60] When the police found him, he was seated upright and in a sleep so deep, the police had trouble waking him until an officershook him several times. Mr. Carmola-Chambers displayed signs that this ‘impaired condition’ was due at least in part to alcoholconsumption.

His breath smelled of alcohol, his eyes were red and watery, and he was unsteady when exiting the vehicle. [61] Given the totality of these facts, what other reasonable inferences could be drawn other than alcohol was a cause of thiscondition? [62] The defence argues that the Crown has not negated other possibilities, suggesting he could have simply been suffering fromsevere fatigue due to shift work or other reason or had a significant medical evident that accounted for these circumstances. [63] Mr.

Carmola-Chambers may well have been extra fatigued for some non-alcohol related reason, but given the totality ofcircumstances, it is inescapable that alcohol was a factor in his condition. [64] Ms. Lee on behalf of the defendant moreover posits that the Crown has not negated the inference Mr. Carmola-Chambers had amedical condition that led to the circumstances he found himself in that early morning; however, there is no evidence of such an extrememedical issue that was operative here. There is no positive evidence of a medical condition. He was not suffering from any injuriesapparent to the police officers.

There is no evidence he was provided food or medial treatment during the two and half plus hours he wasin police custody. [65] While it is true that inferences alternative to guilt can be drawn from the lack of evidence, they still must be reasonable ones. Every speculative suggestion need not be negated. Cromwell J.’s remarks in R. v. Villaroman, 2016 SCC 33 , [2016] 1 S.C.R.1000 are apposite: 37 When assessing circumstantial evidence, the trier of fact should consider "other plausible [page1020] theor[ies]" and "otherreasonable possibilities" which are inconsistent with guilt: R. v.

Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205and 211, per Middleton J.A., aff'd (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20;R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative thesereasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, whichmight be consistent with the innocence of the accused": R. v. Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8.

"Other plausibletheories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, noton speculation. [66] The possibilities must be reasonable. The possibility that these circumstances were caused by a medical evident not related—atleast in part-to the voluntary consumption of alcohol is speculative. [67] I am sure Mr. Carmola-Chambers ability to operate a motor vehicle was impaired due to the consumption of alcohol, at least to aslight degree. IV.

CONCLUSION [68] There is a finding of guilt on both the over 80 and Impaired Care or Control count. Released: October 30th, 2020 Signed: Justice A. Calsavara 320.28

(1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability tooperate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, bydemand made as soon as practicable, (

a) require the person to provide, as soon as practicable, (

i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of anapproved instrument, or …