



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chaly, 2020 ONCA 35

DATE: 20200121

DOCKET: M50182

Benotto, Paciocco and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alisa Chaly

Appellant

Alisa Chaly, acting in person

Andrew Hotke, for the respondent

Heard and released orally: January 13, 2020

REASONS FOR DECISION

[1]

The motor vehicle Ms. Chaly was operating was stopped on April 15, 2016.
    After investigation, she was arrested for impaired driving and a breath demand
    was made. She was ultimately charged with impaired driving, refusing to provide
    a breath sample, and breaching the keep the peace condition of a peace bond
    recognizance that was in effect.

[2]

After trial, Ms. Chaly was acquitted of impaired driving but convicted
    of refusing to provide a breath sample and breach of recognizance. She was
    fined $1,000 and $100 respectively and a one-year driving prohibition was put
    in effect.

[3]

Ms. Chaly unsuccessfully appealed her conviction to a summary conviction
    appeal court. She now brings an inmate appeal to this court seeking leave to
    appeal, raising two grounds of appeal, one relating to whether proper rulings
    were made on the arbitrariness of her detention and the other relating to the
    treatment of the loss of the booking area video.

[4]

This is not an appropriate case for leave to appeal, since there are no
    questions of law raised that have significance to the administration of justice
    and no clear errors were committed. Even if we granted leave to appeal, we
    would be required to dismiss Ms. Chalys appeal.

[5]

Ms. Chaly urges that the trial judge erred in denying her claim that she
    was arbitrarily detained by being held longer than required after she was charged.
    The trial judge denied this claim because Ms. Chaly failed to offer evidence of
    how long she had been detained. Absent such evidence, her
Charter
motion
    could not succeed.

[6]

Nor was there an error in the summary conviction appeal justices
    decision to deny an appeal from the trial judges refusal to grant a stay based
    on the loss of the booking area video. The trial judge found appropriately that
    the loss of the video was not caused by negligence but by reasonable policies
    relating to the retention of booking area videos. We see no basis for
    interfering with that decision.

[7]

Moreover, the destruction of the video caused Ms. Chaly no material
    prejudice. The trial judge explicitly chose not to rely on what transpired in
    the booking area as evidence against Ms. Chaly as proof of her impairment, and
    the video could have only marginal relevance on the remaining charges. There
    was video tape evidence relating to Ms. Chalys refusal to provide a sample. The
    refusal charge turned on that video, not on issues relating to the officers
    credibility. As the trial judge noted:

The evidence that is disclosed in the breath room video
    provides ample support for the contention by the Crown that there was a deliberate
    refusal to provide breath samples.

[8]

Leave to appeal the conviction appeal is therefore denied. On consent,
    we set aside the victim surcharge.

M.L. Benotto
    J.A.

David M.
    Paciocco J.A.

Thorburn J.A.


