A three-member panel of Ontario's highest court has upheld the conviction and sentence of a former Orangeville resident and Peel Regional police officer in the impaired driving death of a senior citizen in Caledon six years ago.

The judges ruled that Superior Court Justice Terrance O'Connor had instructed the jury properly in the trial of Christopher LaChappelle, and that a 21- month prison sentence - rather than a conditional sentence - for impaired driving causing death, plus 15 months concurrent for impaired driving causing injury, and a five-year license suspension was appropriate for the offence.

Toronto lawyer Alan Gold represented Mr. LaChappelle at his March 2005 jury trial in Brampton, and at the sentencing hearing in August 2005, and again before the Court of Appeal last month. And he said Tuesday that he will seek leave to appeal the latest ruling to the Supreme Court of Canada

Writing for the appeal court, Mr. Justice Marc Rosenberg said the conviction appeal raised two sets of issues. "The first, whether the trial judge, O'Connor J., was required to give the jury a special instruction concerning the frailties of eyewitness evidence of events. The second, whether blood and breath samples were seized in accordance with the law, including the Canadian Charter of Rights and Freedoms."

He concluded that the special instruction was not required in the particular context of this case. "I am also satisfied that the blood and breath samples were properly taken. I would therefore dismiss the appeal from conviction."

As for the sentence appeal, Mr. Gold had argued that the trial judge erred in principle in refusing to impose a conditional sentence of imprisonment "and that, in any event, the sentence is excessive. I would also dismiss the sentence appeal."

According to the evidence at trial, an eyewitness saw Mr. LaChappelle's northbound vehicle cross into the southbound lane on Highway 10 at Caledon Village on May 6, 2001, at about 9:45 p.m., where it struck a southbound vehicle in which Henry Belanger of Maxwell was killed and his daughter, Madeline Henwood, crippled. The accused was also injured in the crash.

Mr. LaChappelle's own evidence was that prior to the collision he had been drinking in Brampton while celebrating his brother's admission into the Police Academy. Other witnesses, including an off-duty police officer, noted the smell of alcohol on Mr. LaChappelle's breath.

Following the collision, Constable Nicole Randall was told to stay with Mr. LaChappelle in the ambulance and at the hospital where he was taken for his injuries.

In the appeal, Mr. Gold argued that the officer's presence and the seizure of blood and breath samples violated Mr. LaChappelle's Charter rights. Ms. Randall said the accused voluntarily gave the breath sample. The panel rejected Mr. Gold's argument.

At trial, there had been expert evidence that Mr. LaChappelle would have had a blood-alcohol reading of between 130 and 210 mg alcohol in 100 mL of blood, but Mr. LaChappelle's testimony would have placed the content at less than 50 mg at the time of the collision. The legal limit is 80 mg/100 mL.

Nonetheless, the gravity of the offence and the nature of the sentence might have hinged in large measure on whether the collision happened in the northbound or southbound lane.

Experts for the defence and Crown differed in their reconstruction of the collision. Mr. LaChappelle said his vehicle did not cross the centre line, but eyewitness Robert Andrews said it did.

At trial, Mr. Gold crossexamined Mr. Andrews on his level of confidence in what he had seen, and Crown James Palangio had re-examined him on the same point. Justice O'Connor reviewed that testimony in his charge to the jury but did not accede to Mr. Gold's request to instruct the jury that witness's confidence is "unrelated to their reliability."

On appeal, Mr. Gold argued that the jury had been improperly charged. But the panel found that the judge had instructed the jury properly as he had pointed out inconsistencies between Mr. Andrews' statement to the police ("as nearly as I could tell") and his statement of confidence at trial ("I saw what I saw") on the crucial lane-crossing point.

"The special charge was unnecessary. Not only had defence counsel vigorously cross-examined Mr. Andrews on this issue, but the trial judge had also, in his general instructions, pinpointed the important factors for the jury to consider in assessing the reliability of Mr. Andrews' evidence," Justice Rosenberg wrote.

Mr. Gold argued that 21 months in jail would be excessive punishment for a person of Mr. LaChappelle's excellent character and 17 years of exemplary police service. He submitted that this first offence was a "momentary lapse by a person of otherwise good character." The panel, which included Justices Kathryn Feldman and Robert Armstrong, disagreed.

"This was not a momentary lapse in judgment," wrote Justice Rosenberg. "The evidence showed that the appellant consumed alcohol over a considerable period of time. Because of the delay in obtaining the breath and blood samples, the appellant's blood alcohol at the time of the offence could not be fixed with precision. It was, however, between 130 and 210 milligrams of alcohol in 100 millilitres of blood. This is a significant blood alcohol level and demonstrates a serious disregard for the safety of others. There was also some, albeit limited, evidence of poor driving before the accident.

"As far as the length of the sentence, I cannot say that 21 months imprisonment is manifestly excessive. This court has upheld sentences of even greater length in not dissimilar circumstances."