At 6:30 pm on April 21, 1998, Boris Piko drove his behicle into a gas staion lot in Mississuga. Witnesses noted noting unusual about his driving or hos walking into a restourant. When he emerged about a half hour later he appeared to be heavily intoxicated to civilians who called teh police. When police arrived the Appellant was in a very extreme state on intoxication. He was arrested for impaired operation and taken to the station where he did not provide a breath sample. At trial he was acquitted on teh omparied operation chagre and convicted of refusing to provide a sample. He appeals alleging the rial judge erred in permitting the Crown to call evidence on the Charter application when no affiavit had been filed in response o the Appellant's, in failing to find the police failure to videotape proceedings in teh breathalyzer room violated s. 7 onf teh Charter and in failing to find breaches of section 8 and 10(b) of the Charter. As regrards the substantive issues, the Appellant alleges the trial judge erred in his asessment of the evidence on the issure of teh Appellant's capaity to refuse to provide a breath sample, the verdict was unreasonable, the tial judge failed to consider the character evidence called onbehalf on Mr. Piko

Ten days before the appellant's arrest the videotaping equipment at the divishon had broken down. while a request for repair had been made it had not been done by the time MR. Piko was arrested. THis is not a case wehre police lost or destoryed evidence here the evidence never existed.