Court File and Parties

Court File No.: Halton 13-252 Date: 2014-12-15 Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Rahul Kanuga

Before: Justice L.M. Baldwin

Heard on: March 13, 2014; April 1, 2014

Reasons for Judgment released on: December 15, 2014

Counsel:

• A. Khoorshed, for the Crown
• T. Sarantis, for the defendant Rahul Kanuga

Rulings on Charter Applications s. 8, 9, 10(b) and Trial-at-Large

BALDWIN J.:

1Mr. Kanuga is charged with Impaired Operation and Over 80 on January 18, 2013, in Burlington.

2Admissions as to jurisdiction, date, identification were made at the outset. A statement voir dire was not required on oral utterances made to the police.

3Rahul Kanuga testified as the first witness on the Charter Applications only. He did not file an Affidavit on his Charter Applications.

Summary of Mr. Kanuga's Voir Dire Testimony

4He is 38 years of age, married and has lived at 3500 Marion Court in Burlington for approximately a year and half now; prior to that he lived with family and friends in Mississauga. He has no criminal record.

5He immigrated to Canada from India on July 19, 2011. Fifteen to twenty years ago he studied hotel management in Switzerland. He had worked as the assistant manager at the bar and restaurant of the Sheraton Hotel at Pearson Airport. At the time of this incident he was unemployed. The work at the Sheraton was stressful and he left and took a break.

6He now works at a call centre in Burlington.

7Prior to the incident in question, he was at the Katz Bar and Eatery located on Mountain(side) Drive off Guelph Line in Burlington. He thinks he left the establishment around 1:45 a.m.

8It was snowing and the roads were not cleared. The plow was not in yet. The roads had sludge and were slick with packed ice in places.

9He was travelling about 40 to 50 kilometres an hour. The speed limit was 60 or 50, so he was travelling under the speed limit.

10He went over what he thinks was a section of packed ice and swerved into the oncoming lane of traffic. He corrected himself and swerved right. He did not have snow tires. When he "braked" he just kind of skid forward and then he hit the pole. (Tr. pp. 13, 14)

11He was not familiar with the driving conditions. The last time he drove in packed ice or snow or sludge was in Switzerland.

12His air bag went off. Civilians, police and ambulance were on scene. He was taken to the hospital by ambulance.

13He was dazed and his face was bloody.

14The police asked where he was coming from and he told them he was coming from Katz Bar and Eatery.

15"I told them I don't usually drive, I mean I don't usually drive drunk…I don't recall the entire conversation…I do recall telling them…I don't drive drunk, so." (p. 16)

16He did not understand that the police were following him to the hospital for an investigation.

17He does not recall being read rights to counsel or a caution in the ambulance at the scene. At one point he was told it was impaired driving.

18His leg was sore and he had an injury to his face.

19At the hospital he was handcuffed on a stretcher. The doctors and nurses went over his injuries. After a while he was taken into a room. A nurse came in and out.

20Then he was given a phone and told this is duty counsel. The gentleman on the phone identified himself as duty counsel. (p. 17)

Note: Exhibit #2 – 8 coloured photographs of this room were entered – photos taken by HRPS.

21When he was on the phone to duty counsel, the door to the room "might" have been ajar because after the nurse left the room he could hear everything outside of the room. (p. 21)

22First the nurse came into the room. She picked up something and she left. Then the officer came in with the phone and handed it to him. He does not know what officer it was. He does not know if the officer was male or female. He does not really know who came into the room. (p. 21)

23The officer said this is duty counsel on the phone for you. When the officer left, the door was ajar because he could hear people and the officers outside and the PA system in the hospital, the usual hospital noises. "…but I wasn't listening to it. I could hear them speaking though." (p. 23)

24He could see the officers through the blinds. He could see their shoulders standing "off the door". (p. 24)

25He was on the phone with duty counsel for 10 to 12 seconds. He did not know if someone else would come into the room…I don't know the laws of the land, so I was under the impression that someone would come visit me in the hospital and that would be a private consultation…I can hear people outside then I guess they can hear me too…I didn't know what I was supposed to do…so I kind of let it go…I was expecting a counselor to come to the hospital, so I didn't think much of it at that point in time." (p. 25, repeated pp. 26, 27)

26The nurse came in and went out again. Then the officer came in and took the phone "maybe 5 minutes later". (p. 28)

27He was taken back to emergency and he provided breath samples.

28In cross examination, Mr. Kanuga testified that he was dazed at the scene from being smashed in the face by the air bag. He denies being drunk.

29He cannot remember which officer spoke to him in the back of the ambulance. He does not remember the details of the conversation only "snippets" of it. (pp. 30, 32)

30He remembers telling the officer where he had been coming from and saying that he does not usually drink and drive. When the officer said something about impaired, he said "is it a DUI, or something of the sort, that I know it's a DUI". (p. 32)

31Well, I apologized to her because this is the first time I've been arrested. I, of course (caused?) all this commotion, I was…just being polite. I felt that resources could be used somewhere else. I wasn't apologizing for actually causing the accident. I was apologizing for…being an inconvenience and it's just the polite thing to do. Also, after she said…impaired driving…I might have said well is it a DUI, or I think it's a DUI, or whatever." (p. 33)

Q. And do you agree with me what you actually said is I'm sorry that I committed a DUI?

A. Well, if you put it that way, yes.

Q. Yes, you do say, okay. So you apologized to her, but your evidence is that you only apologized and confessed to a crime because it was the polite thing to do?

A. No, I…apologized because it was the polite thing to do because I was causing a confusion there and I wasn't ever arrested before in my life.

Q. Okay. But what you did not say, you agree with me, that you did not say I'm sorry for causing so much trouble, you said I'm sorry, I know this is a DUI?

A. I might have said that.

32Mr. Kanuga testified that he thought it was odd when the officer said impaired driving because he wasn't given a sobriety test. "…that's the way I think things proceed." (p. 35) Mr. Kanuga thought it odd that there was no breath test done at the time (on scene). He was not asked to "walk on a line".

33The officer might have said do you want a lawyer? He said the free one. He is not sure when the conversation happened.

34Mr. Kanuga agreed that DUI (driving under the influence) means the same thing as impaired driving.

35Mr. Kanuga testified that he is smart-serve certified, so he knows exactly how much to drink and not be over the limit, or over the warn limit.

36Mr. Kanuga agreed that at the hospital, before the (Intoxilyzer) broke, he may have put his arm out and indicated that they could take a blood test and get it over with.

37Mr. Kanuga testified that he does not know which officer came into the room and offered him the phone because he was not paying attention. He cannot say if it was the tall female blonde officer or the short balding dark-haired stocky male officer. (p. 42)

38Mr. Kanuga was asked if he told an officer sometime after the breath tests were done that he knew he had too much to drink and he could smell the alcohol coming off of himself. Mr. Kanuga said he did not remember saying that.

39Mr. Kanuga said he did not complain to any officer about the advice he received from duty counsel because he "didn't know it was advice. It was more like a directive." (p. 47)

40Mr. Kanuga did not complain about a lack of privacy when he was speaking to duty counsel because he "wasn't sure that there was supposed to be a private conversation…I wasn't sure that that was supposed to be the consultation. I thought somebody would come to visit me…I didn't have any concerns about privacy at that point in time because I didn't know that that was supposed to be private." (p. 48)

41Mr. Kanuga repeated that the nurse might have left the door to the room ajar after she left.

42He could hear police officers talking outside of the door. He could see their uniforms, just the shoulder straps, through the blinds. They were not paramedics.

Testimony Blended on Voir Dires and Trial-at-Large

Testimony of Jerry Gonzales

43He was driving a big truck, salting parking lots for a private company when he observed the incident in question.

44It was January 18th, 2013, around 2:00 a.m.

45He was stopped at Northside Road waiting to turn (right onto Mainway) when he saw a dark blue or black vehicle travelling at a fast speed drive through a red light. After a couple of seconds he lost sight of the vehicle.

46Mr. Gonzales turned his truck and was travelling eastbound on Mainway. About a block away on Dillon Road, he saw the same car wrapped around a light pole.

47He jumped out of his truck and ran to the car. He tried to talk to the male driver but he would not respond. The driver was just giving him hand signals and "trying to start the vehicle again". He tried to stop the driver from starting the vehicle while he was on the phone with dispatch. (p. 56)

48The officer arrived within 5 minutes. The ambulance arrived right after.

49Mr. Gonzales thought that this driver had been driving too fast for the icy road conditions and too fast for the speed limit. (p. 54)

50In cross examination, Mr. Gonzales agreed that Mr. Kanuga was trapped in the car due to the damage to his car.

51He knows the speed limit on Mainway. Mr. Kanuga was travelling over 60 kilometres an hour when he saw him speeding through the red light.

52"…he went through a full red light. Like he didn't make it at all…from Northside to Dillon Road it's only a block away, and within two to three seconds he got out of my sight…" (p. 61)

53Mr. Gonzales agreed that he did not tell the 911 dispatcher that he saw Mr. Kanuga speed through a red light before the reported crash into the light pole. (Exhibit #3 – CD of 911 call; played in Court)

54Mr. Gonzales testified that this was the first time he ever found a guy "beat up in a road". It was the first time he had called 911 for anything.

55Mr. Gonzales agreed that he did not tell dispatch or put in his police statement that Mr. Kanuga appeared to be driving over the speed limit. He told the officer that Mr. Kanuga was driving too fast for the road conditions.

Testimony of Mark Peebles

56Mr. Peebles was snow plowing shopping mall parking lots. There had just been a snow storm.

57At approximately 2:00 a.m., he was pulling up to Mainway and Dillon at a stop light and he observed a car lose control and hit a traffic light. The driver had been going a little bit faster than he should have for the snow condition. It was slippery at the time. The roads were still covered in snow. He saw the car fishtail before it hit the traffic light.

58In his first statement to police he noted the time of the accident to be 1:50 a.m. In his second statement he noted the time of the accident to be 2:04 a.m.

59He called 911 and was talking to the operator when another plow driver showed up and they both went over to the car. The driver was complaining that his leg hurt.

60The driver's door would not open because the front of his car was completely crumpled.

61The first officer arrived within 3 to 5 minutes.

62In cross examination, Mr. Gonzales testified that he did verbally tell the officer on scene that the driver was travelling too fast for the road conditions.

63He did not tell dispatch that the car was travelling more than 50 kilometres an hour before the crash.

64He told dispatch that the car was wrapped around a pole and "it looks like he lost it on the ice". (p. 79)

65Mr. Peebles agreed that the road conditions were slick.

Testimony of Officer Leah Vermeulen

66Officer Vermeulen started as a police officer with Peel Regional Police in 2007. She has been with HRPS since 2010.

67The dispatch call she received at 2:06 a.m. was for a motor vehicle collision involving a personal injury at the intersection of Mainway and Dillon Road. She was the first on scene, arriving at 2:12 a.m.

68Two snow plows were already on scene.

69She observed a 4-door blue Saturn. The front two tires and the right rear tire were off the road onto the curb. The left rear tire was on the roadway.

70The front of the vehicle was into a metal traffic pole located on the south side on Mainway. The traffic pole was leaning. The yellow piece with the lights on it was lying on the roadway. The vehicle had complete front end damage to it.

71The entire traffic pole was bent over from its ground base.

72The air bag had been deployed and there was a strong odour that resulted. The officer smelled this when the driver's window was down.

73Mr. Kanuga was still inside the car complaining of soreness to his left leg. The officer observed his face to be flushed and blood on his face from his nose.

74She opened the driver's side door with some difficulty due to the damage. Mr. Kanuga stayed in the car until the paramedics arrived.

75At 2:15 a.m. the paramedics arrived on scene. While they tended to Mr. Kanuga, she spoke with the Jerry Gonzales and Mark Peebles.

76Mr. Gonzales advised her "that he was a snow plow driver and that he was parked on Mainway, originally, and was driving behind the Saturn, which was travelling at a quick rate of speed for the road conditions, and that he saw the vehicle lose control and strike the traffic pole." (p. 86)

77She spoke next to Mr. Peebles, and he "advised me that he observed the vehicle on Mainway lose control and strike the pole. He approached the driver to see if he was okay and that he called 911." (p. 86)

78She provided them with statement forms. While they were doing that, she obtained the ownership and insurance for the vehicle that was inside the glove box.

79She then attended the ambulance and spoke to Mr. Kanuga. He was seated on the back of the stretcher. When she opened the door and got inside, she detected a strong odour of alcohol emanating from his breath. Mr. Kanuga advised her that he had been drinking and was driving home. He apologized and said that he knows that's a DUI. (p. 87)

80He described the accident as "he swerved to the right, then the left, then to the right again and he lost control and hit the pole." (p. 87)

81She asked him how much he had to drink tonight and he advised "four beers".

82At 02:34 hours she told Mr. Kanuga that he was under arrest for impaired driving.

83At 02:35 hours, she read the rights to counsel from the back of her notebook.

84"It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?

85Mr. Kanuga replied "Yeah".

86"You have the right to telephone any lawyer you wish. Do you understand?'

87Mr. Kanuga replied "Yeah".

88"You also have the right to free advice from a legal aid lawyer. Do you understand?" Mr. Kanuga stated: "Will you?" The officer took this to be a request that she contact the lawyer on his behalf. She said "Yes" and he said "Okay".

89She continued: "If you are charged with an offence you may apply to the Ontario Legal Aid Plan for legal assistance. Do you understand? Mr. Kanuga replied "Okay".

90At 02:36 hours she read "1-800-265-0451 is a toll-free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand? Mr. Kanuga stated, "I don't remember the number". Officer Vermeulen said that she would contact the number on his behalf. He said "Okay".

91The Officer continued "Do you wish to call a lawyer now?" He said, "Yes, the free one."

92At 02:37 hours she read the breath sample demand from the back of her notebook.

93Mr. Kanuga was asked if he understood the demand and he replied "Okay".

94When asked if he understood the caution, Mr. Kanuga stated, "The roads were not cleared. I tried to whatever, I tried to avoid the accident, but happened." He also stated that he's under medication, Prozac, but he hadn't taken it right now.

95The ambulance left the scene at 02:39 hours. Officer Vermeulen was in the back of the ambulance with Mr. Kanuga.

96While en route to Joseph Brant Hospital, Mr. Kanuga complained of soreness to his left ankle and asked her if there was "any way to get out of the impaired charge. He advised me that he was having marital problems at home and that his wife had made him quit his job." (p. 90)

97They arrived at the hospital at 02:47 hours.

98Mr. Kanuga was triaged in the emergency department.

99Officer Vermeulen was attempting to locate a phone to contact duty counsel and she was having some issues getting an outside line. She contacted duty counsel at 02:59 hours. At 03:09 hours Mr. Johnson, duty counsel, called back.

100Mr. Kanuga was being moved on the stretcher into bed B in the emergency department. The emergency department at Joseph Brant Hospital has 3 beds that are separated with a curtain.

101There is one secluded room at the end of the hallway in the trauma area that has walls and a door. Officer Vermeulen arranged for Mr. Kanuga to be placed in there for privacy.

102Mr. Kanuga was rolled into the room. Officer Vermeulen handed him the emergency cordless phone and said this is duty counsel.

103She closed the door to the room. It was a big metal door. The door itself has a window with blinds. The blinds were open. She could see into the room. She could not hear anything being said from outside of the room.

104No one went into the room when Mr. Kanuga was on the phone to duty counsel. Specifically, no nurse went into the room when Mr. Kanuga was on the phone with duty counsel.

105At 03:14 hours the call with duty counsel was complete. Mr. Kanuga made a hand motion to her to indicate that the call was complete.

106Officer Vermeulen went into the room and took the phone from Mr. Kanuga. At no time did he make any complaint or any statement about his call with duty counsel.

107The only other officers involved in this investigation who attended the hospital were Officers Nopper and Walker.

108Officer Nopper was not at the hospital when Mr. Kanuga was on the phone with duty counsel.

109Officer Walker may have been at the hospital then, but, if she was, she was not around the room when Mr. Kanuga was using the phone.

110Officer Vermeulen testified that she was the only officer outside of the room at that time.

111After the call, Mr. Kanuga was removed from the room and placed in bed B in the trauma area. He was treated by medical staff. This took "a few minutes".

112While waiting for the breath technician to arrive, Mr. Kanuga told Officer Vermeulen that he was sorry for wasting police time and he was told by his lawyer not to say anything. He advised he was going through a tough time, that his wife suspected he was cheating on her, and that she made him quit his job, that he worked at a bar and that now he was unemployed. (p. 98)

113At 03:39 hours, as Officer Nopper was setting up the Intoxilyzer on a table with wheels on it, Officer Nopper accidentally hit the table and the simulator (glass beaker with fluid inside) fell off the table and broke.

114Officer Nopper asked Officer Walker to run over to the OPP station next door to get another one.

115At 03:51 hours Mr. Kanuga was seen by Doctor Stempien. He was medically cleared at 3:53 hours (2 minutes later). Mr. Kanuga was given a little pamphlet about possible head trauma.

116At 04:05 hours officer Walker returned with the simulator.

117At 04:10 hours the Intoxilyzer was set up and warming.

118While observing Mr. Kanuga in the trauma area, Officer Vermeulen noted that he was very talkative, repeating questions, and shivering even though the room was at normal room temperature and there was a blanket right beside him on the bed. Mr. Kanuga was very thirsty and asked for water on three separate occasions. Mr. Kanuga kept putting his arm out as if they were going to take blood. The officers advised him on three separate occasions that the test uses a breath, not blood.

119The breath samples were taken when Mr. Kanuga was still in bed B of the trauma area.

120At 05:05 hours Mr. Kanuga was returned to her custody. Officer Vermeulen was advised of the test results and she charged Mr. Kanuga with Over 80.

121Mr. Kanuga stated that he had "drank too much, that he could smell alcohol on himself." (p. 105)

122Mr. Kanuga was taken back to the station. Officer Vermeulen served him with a Breath Certificate and Notice, marked as Exhibits #5 and #6.

123Mr. Kanuga never complained about advice from legal aid or not having privacy.

124In cross examination, Officer Vermeulen stated that the roads had recently been plowed. She has noted in her notebook that it was clear, that it had been snowing, the roads were just plowed.

125The dispatch information was 'vehicle into a pole right by Duke's Equipment, into a traffic light, party is still in vehicle. Second caller stated one vehicle lost control, smashed a traffic light and the victim is bleeding.' (p. 110)

126On scene, Mr. Gonzales told her that Mr. Kanuga's car had been travelling at a quick rate of speed for the road condition. He did not give her a speed. Mr. Gonzales did not tell her that the car had run a red light.

127On scene, Mr. Peebles told her that the car had lost control and hit a pole.

128She considered weather as a partial factor in her assessment of the cause of the accident.

129Mr. Kanuga spoke with a heavy accent. No other speech issue was noted.

130Officer Vermeulen smelled alcohol coming from his breath when she spoke with him.

131Officer Vermeulen repeated how she formed her grounds for arrest: "I get into the back of the ambulance and I can smell alcohol coming from him, and I'm asking, trying to determine what happened exactly, and that's when he advised me that he had been drinking and was driving home, and that he apologized and that he knows that's a DUI…It's a single vehicle motor vehicle collision. There's very little traffic on the roads at this point. The two snow plow drivers and what they're saying, that he was travelling at a quick rate of speed for the road conditions. And him losing control into a light standard, which is a structure that's not going to be moving in front of him, or anything, along with the alcohol and the road conditions that he was impaired by alcohol…along with the flushness of the face…" (p. 114)

132"…like I stated earlier, that he'd been drinking, was driving home, that he apologizes, he knows that's a DUI. He advised me that he swerved to the right, then to the left, then back to the right, lost control and hit the pole." (p. 117) Mr. Kanuga may have said he lost control on ice or snow.

133Officer Vermeulen did not have Mr. Kanuga perform any physical coordination tests as he was complaining of soreness to his leg and he was on a stretcher being attended to by paramedics.

134Officer Vermeulen did not make an ASD demand because she did not feel it was necessary. She had formed RPG to arrest for impaired driving. (pp. 116, 117)

135At the hospital, before Mr. Kanuga was moved into the trauma room, she told Mr. Kanuga that he was being moved there so he could speak with duty counsel.

136In having Mr. Kanuga moved into the trauma room, Officer Vermeulen was trying to make the best arrangements for privacy she could in the hospital setting.

137Officer Vermeulen repeated that no nurse went into the room when Mr. Kanuga was on the phone. Nobody went into that room when he was speaking with duty counsel.

138She could not hear anything Mr. Kanuga was saying from outside the room. She stood one metre to four metres away from the steel door. She could see into the room. Mr. Kanuga had not yet been seen by emergency staff, so it was important to be able to see him to make sure he did not go into some sort of medical distress. (pp. 125, 130)

139Officer Vermeulen initially disagreed that Mr. Kanuga's call with duty counsel was 10 to 12 seconds.

140Duty counsel called back at 03:09 hours. It took a minute or two to have Mr. Kanuga wheeled into the trauma room and handed the phone. The call was completed at 03:14 hours. The call lasted at least four minutes. Mr. Kanuga gestured to her that he was finished with the phone.

141Later in cross examination, Officer Vermeulen said it was possible that Mr. Kanuga only spoke to duty counsel for 10 seconds. (p. 135) Her eyes were not on him the whole time he was inside of that room.

142Officer Vermeulen did not later check the room to see if it was sound proof.

143Officer Vermeulen did not advise Mr. Kanuga that he had a right to privacy and she did not ask him if he was satisfied with the advice of duty counsel. (pp. 137, 138)

144Officer Vermeulen does not believe that Mr. Kanuga was handcuffed to the stretcher at any point.

Summary of the Evidence of Officer Steven Nopper

145He has been an officer with HRPS for 6 years and he was the designated Intoxilyzer Technician in this case. He has conducted 65 breath tests.

146He arrived at the hospital at 03:21 hours. Mr. Kanuga was in a bed in the emergency area.

147At 03:35 hours, he started setting up the Instrument on a small table with wheels. There was not much space. He bumped the table and the simulator beaker fell and smashed.

148At 03:38 hours he instructed Officer Walker to go next door to the OPP detachment and borrow their simulator. She returned at 04:04 hours.

149At 04:10 hours he began the Intoxilyzer set-up. It takes 20 to 25 minutes for the Instrument to warm up.

150At 04:34 hours he read the caution which Mr. Kanuga indicated he understood.

151At 04:35 hours he read the secondary caution which Mr. Kanuga indicated he understood.

152At 04:36 hours he read the breath demand which Mr. Kanuga indicated he understood.

153At 04:30 hours he performed the first calibration check.

154At 04:41 hours he completed taking the first breath sample which produced the result of 149 milligrams of alcohol in 100 millilitres of blood.

155He commenced taking the second sample at 05:03 hours which produced a reading of 140.

156Between the first and second samples Mr. Kanuga was asked questions contained in the Alcohol Influence Report. Mr. Kanuga was told that he did not need to answer the questions, but he did anyway.

157Mr. Kanuga stated that he was operating a motor vehicle and was on his way home from a dog park. He did not remember when he started driving. He had been drinking beer – 4 pints at the Katz Pub off Guelph Line. He started at 8:30 p.m. and stopped at 1:00 a.m.

158He takes Prozac and Lithium medications. The last dose was at 3:00 p.m.

159He has not consumed any alcohol since the accident.

160Officer Nopper noted that Mr. Kanuga appeared alert. The whole time he dealt with him Mr. Kanuga was laying down in a bed.

161Officer Nopper noted that there was an odour of alcohol on his breath. He noted watery and bloodshot eyes and the pupils were dilated.

162Mr. Kanuga was cooperative, polite and talkative. He kept asking the same questions over and over.

163In cross examination, Officer Nopper testified that the temperature that night was minus 4. He took the Instrument to the hospital in the trunk of his car.

164He checked the Instrument 6 to 12 times to make sure that the solution passed the temperature check. Then he did the diagnostic check and a self-test.

165He did not read rights to counsel to Mr. Kanuga. The grounds sheet indicated that rights to counsel had been read and a request for counsel was made at 02:34 hours.

166Mr. Kanuga's speech was noted as being good. Officer Nopper could not see all the effects of impairment by alcohol because Mr. Kanuga was lying in bed when he dealt with him. He noted that the impairment by alcohol appeared "slight".

Summary of the Evidence of Teri Martin

167Ms. Martin has been employed at the Center of Forensic Sciences as a forensic toxicologist since September of 1999.

168She was qualified on consent to give expert evidence on the absorption, distribution and elimination of alcohol from the human body and the theory and operation of the Intoxilyzer 8000C.

169She was the Chair of the Alcohol Test Committee in Canada for 3 years and she recommended the Intoxilyzer 8000C instrument for use in Canada.

170The Crown asked what the BAC range would be between 1:40 a.m. and 2:20 a.m. for a male, 5'7" in height and 165 lbs., who says he started drinking at 8:30 p.m. and finished drinking at 1 o'clock a.m., who provided breath samples at 4:41 a.m. and 5:03 a.m. with readings of 149 and 140.

171Ms. Martin testified that the BAC range would be between 140 and 200 based on 3 factors:

(1) the individual eliminates alcohol from the blood at a rate that ranges between 10 and 20 milligrams of alcohol in 100 millilitres of blood per hour;

(2) there was no large quantities of alcohol consumed within approximately 15 minutes of the incident;

(3) there was no alcohol consumed after the incident before the breath tests were conducted.

172Ms. Martin testified that an individual's ability to operate a vehicle would be impaired at these readings. In her opinion, there is significant impairment at BACs of 50.

173The effects would be on the individual's ability to divide one's attention between multiple sources of information, the ability to react promptly when there is an element of decision making involved and also in the ability to maintain position on a roadway which is often referred to as tracking ability. (p. 33)

174Alcohol can have effects on memory. Some individuals will experience complete memory loss. Other individuals will experience just some patchy, fragmentation of memory.

175Ms. Martin testified that the consumption of Prozac and Lithium would not impact the way the individual's body metabolizes or processes alcohol.

176Ms. Martin testified that it usually takes between 10 to 15 minutes to bring the standard alcohol solution up to 34 degrees from room temperature.

177If the standard alcohol solution was sitting in the trunk of the officer's car in January, it would take longer to warm up. The colder the alcohol solution is, the longer it would take to warm up to the proper operating temperature.

178Diagnostic testing of the Instrument can be done without the simulator. The CFS does train officers to perform diagnostic tests and a self-test as part of an overall quality assurance program.

179The self-test can also be performed without the simulator. (p. 45)

180It takes between 5 to 10 minutes to perform the diagnostics tests and the self-test.

Section 8 & 9 Charter Applications

Position of the Applicant

181The Applicant submits that the officer did not have objectively grounded RPG to arrest for impaired driving.

182It is submitted that the factors considered at the scene could raise a suspicion only and that an ASD demand should have been made.

183It is submitted that the arrest was, therefore, unlawful.

184The requested relief pursuant to s. 24(2) of the Charter, is for the exclusion of all statements made by Mr. Kanuga and the breath testing results.

185It is submitted that Mr. Kanuga's evidence, coupled with the evidence of the civilian witnesses, explains that the accident was caused by weather conditions.

186Mr. Peebles told 911 that the car seemed to slip on ice; Mr. Gonzales said the car was travelling too fast for the road conditions.

187Mr. Kanuga denies impairment by alcohol and testified that the accident was due to the road conditions, he did not have snow tires and he has not driven in snow for at least 15 years.

188It is submitted that Mr. Kanuga's reference to DUI comes from TV shows and he has denied saying he committed a DUI.

Position of the Crown

189The Crown submits that Mr. Kanuga's voir dire testimony was unreliable and incredible and it should be rejected.

190The Crown submits that they have established RPG on a balance of probabilities for the officer to arrest for impaired driving.

191The Crown submits that the officer correctly considered a number of factors, including the weather conditions, before she made the arrest.

192She considered that odour of alcohol on Mr. Kanuga's breath, his admission to drinking, the circumstances of the accident and his apology for committing a DUI.

193The Crown submits that a statement against penal interest is highly reliable because it is not something people generally do.

194The Crown submits that all statements and the breath tests should be admitted as evidence.

Ruling on Charter Applications ss. 8 & 9

195I agree with the position of the Crown. They have met their onus in establishing RPG in this case. This was a lawful arrest. These Applications are dismissed.

196The officer's grounds are objectively verifiable and sufficient (per R. v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.J. No. 12; 53 C.C.C. (3d) 316; R. v. Censoni, [2001] O.J. No. 5189 (SCJ)).

197I reject Mr. Kanuga's evidence as it is unreliable, incredible and highly inconsistent.

198He cannot remember with any precision at all what conversation he had with Officer Vermeulen at the scene.

199The stunning example is his testimony about his use of the phrase DUI.

200He denies it, and then he admits it in cross examination by Crown counsel.

Q. And do you agree with me what you actually said is I'm sorry that I committed a DUI?

A. Well, if you put it that way, yes.

201Then he denies saying that again and says he was just apologizing for causing confusion.

202This testimony was nonsense. Mr. Kanuga is confused because he cannot remember what he said. He recalls snippets of conversations and events only. Counsel's submission about TV shows on this issue was baseless.

203The weather conditions and the circumstances of the crash into the traffic light were appropriately considered by the Officer.

204Mr. Kanuga's testimony that he was not familiar with driving in winter conditions does not take away the Officer's RPG in this case. His testimony that he did not have snow tires on his car does not take away from the Officer's RPG.

205Officer Vermeulen had information from the civilian witnesses that Mr. Kanuga was driving too fast for the weather conditions. He smashed into a traffic light on a freshly plowed road. The accident was unexplained – no other cars or obstacles were a factor.

206Officer Vermeulen's grounds for arrest were detailed in examination-in-Chief and again in cross examination. Paragraphs [131] and [132] in this judgment capture all the factors she considered.

207Officer Vermeulen did not need to consider using the ASD demand in this case. Her grounds for arrest were ample and sufficient.

208The suggestion that Mr. Kanuga should have performed physical sobriety testing at the scene borders on ridiculous given that he was questioned by the Officer when he was on an ambulance stretcher being treated by paramedics.

209His injuries in the end were not significant. He was cleared by medical staff at the hospital after 2 minutes.

Applicant's Position on Charter Application s. 10(b)

210The Applicant submits that it was never explained to him that he has a right to consult with counsel in private.

211His perception was he was going to get a private consultation with a counsel at the hospital.

212He believed that the officers could hear him talking with duty counsel, so he cut the call short.

213He made no complaints about lack of privacy because he was never told he had that right.

214It is submitted that the officer should have asked him if he was satisfied with the advice he received from duty counsel.

215It is submitted that the Court should be concerned that Officer Vermeulen did not test the room to ensure it was sound proof.

216The Court should be concerned that the Officer has given different estimates about how far away from the door of the room she was.

217The Applicant requests that all statements and the results of the breath tests be excluded pursuant to s. 24(2).

Crown's Position on s. 10(b)

218The Crown submits that the Applicant has not met his onus on a balance of probabilities.

219They submit that the Applicant is not a reliable or credible witness. He has a poor recollection of the events and cannot even remember which officer brought him the phone. He cannot remember being read the right to counsel, caution or the breath demand.

220The Crown submits that the Applicant was given privacy when he spoke to duty counsel. The steel door to the trauma room was shut and no one entered when he was on the phone with duty counsel.

221The Applicant made no complaint about a lack of privacy when he spoke with duty counsel.

222The Crown relies upon the OCA's decision in R. v. Burley, 2004 CanLII 9437 (ON CA), [2004] O.J. No. 319 in support of their position.

223The Crown submits that there is no requirement to advise of the right to privacy in the informational component of the RTC as suggested by the Defence in this case.

224The Crown submits that their disclosure obligations are ongoing and that further questions put to Officer Vermeulen by the Crown were appropriate after this Charter Application was filed.

225The Crown submits that there is no requirement that officers ask if a person in their custody is satisfied with advice received from counsel.

Ruling on Charter s. 10(b)

226I agree with the Crown. There is no merit to this Charter Application and it is dismissed.

227I have negatively assessed the worth of Mr. Kanuga's testimony as described above.

228Mr. Kanuga testified that the trauma room door "might" have been ajar when he spoke to duty counsel.

229He was not sure when a nurse came in or out of the room.

230He did not know if it was the distinctly different female officer or male officer who handed him the phone and said this is duty counsel.

231He both did not know he had a right to consult with counsel in private, but also expected a counsel to come visit him personally at the hospital. This is nonsensical.

232The Defence is wrong in submitting there is an additional privacy informational component to the rights to counsel. Privacy is part of implementing rights to counsel. Privacy was provided appropriately in this case.

233The Defence is wrong to submit that police officers should check to ensure that detainees are satisfied with their legal advice. That would be a dangerous and slippery slope for police who must respect solicitor-client privilege. There is no case law that supports counsel's submission in this regard.

234It is unrealistic to expect that Officer Vermeulen would perform sound proof checking of the only available room with a door in the hospital emergency department.

235It was appropriate of the Crown to ask Officer Vermeulen follow-up questions on the specifics of this room given the nature of the Application before the Court. In 8 glossy pictures filed as Exhibits, it is clear that this room provided privacy in the circumstances of an emergency room setting.

236Whether Officer Vermeulen was one-and-a-half metres or 4 metres away when Mr. Kanuga spoke with duty counsel is of no import. She alone was outside the door. She could see him but not hear him. No one came in or went out of that room when he spoke to duty counsel.

237R. v. Burley, 2004 CanLII 9437 (ON CA), [2004] O.J. No. 319, a decision of the OCA, is factually similar to this case. Burley was involved in a car accident and was taken to the hospital for his injuries and then charged. He was then given time to consult a lawyer before breath samples were taken. The Applicant was found to have a subjective and unreasonable belief that the call was not in private. No complainant was made about a lack of privacy. There was no due diligence on the part of the Applicant in exercising his right to counsel in that regard. No s. 10(b) Charter breach was found.

238The Defence referred to the case of R. v. Vanstaceghem, 1987 CanLII 4428 (ON SC), [1987] O.J. No. 506; 1987 CanLII 6795 (ON CA), 36 C.C.C. (3d) 142 (SCC). This case deals with a Francophone accused being informed of his right to counsel in English only. This case has no application on this issue.

Submissions on Trial-at-Large

Defence Position

239The Defence raises four arguments in final submissions:

(1) that the breath samples were not taken as soon as practicable;

(2) there was no evidence to rebut bolus drinking;

(3) there was no evidence of the accused's weight and height to ground the forensic toxicologist's opinion;

(4) impaired driving has not been proven beyond a reasonable doubt.

240The Defence submits that the tests were not taken as soon as practicable as required by s. 254(3)(a)(i) of the CCC, because there were delays at the hospital in getting the Intoxilyzer set up due to the simulator breaking and due to the unnecessary diagnostics and self-test Officer Nopper performed when he received a new simulator.

241No Evidence to rebut bolus drinking: the Defence submits that without this evidence, the Toxicologist's opinion has no weight.

242No Evidence of Accused's height and weight: the Defence submits that without this evidence, the Toxicologist's opinion has no weight.

243Impairment not proven Beyond a Reasonable Doubt: the Defence submits that without the Toxicologist's opinion, there must be a reasonable doubt that the accident in this case was caused by the icy road conditions.

Crown's Position

244The Crown submits that all times have been reasonably explained.

245The Crown submits that the evidence of the forensic toxicologist puts the accused over 80 at the time of driving.

246The Crown submits that there were no statements from the accused to the officers that suggest bolus drinking. The accused's statements are that he drank alcohol between 8:30 p.m. and 1:00 a.m. He said he had 4 pints of beer which is consistent with normal drinking behaviour.

247The Crown relies upon the decisions of the OCA in R. v. Bulman, 2007 ONCA 169 (CanLII), [2007] O.J. No. 913 and R. v. Hall, 2007 ONCA 8 (CanLII), [2007] O.J. No. 49, in support of their submission.

248The Crown submits that the read-back by the Toxicologist stands independent of the height and weight of the man given in the hypothetical. The Toxicologist testified that almost everyone eliminates alcohol at a rate between 10 to 20. There was no suggestion in the evidence that the accused falls into the rare group of persons who suffers from Liver disease, for example.

249The Crown submits that there was not a single scenario put to the Toxicologist by Defence counsel, based on the evidence in this case, that puts the accused under 80.

250The Crown submits that they have proven impairment to drive beyond a reasonable doubt.

Decision on Trial-at-Large

251I agree with the submissions of the Crown.

252The officers have reasonably explained all time periods in this case. After Officer Nopper accidentally bumped the small table with wheels, and broke the simulator at 03:35 hours, he instructed Officer Walker go out to get a new one at 03:38 hours. Fortunately, the OPP station is beside the Joseph Brant Hospital and Officer Walker was back with the new simulator at 04:04 hours.

253The fact that it took 20 to 25 minutes later for the alcohol standard solution to warm up has been explained in the evidence. It was minus 4 degrees in temperature that early morning. As the Toxicologist testified, the colder the solution is, the longer it takes to warm up.

254The CFS trains police officers to perform diagnostic tests and self-tests for quality assurance purposes. It takes 5 to 10 minutes to perform the extra tests. The fact that Officer Nopper waited for the simulator to perform these tests did not lead to unexplained lengthy delay in this case.

255I am satisfied that the tests were taken as soon as practicable.

256The R. v. Bulman and Hall cases (supra) are dispositive of the bolus drinking argument. There was no statement made by the accused which suggests anything out of the ordinary with respect to his admitted drinking.

257The Toxicologist testified that the rate of elimination she used in her calculations will encompass the majority of the population.

It's possible that individuals can eliminate alcohol at a rate that is more rapid than 20 milligrams of alcohol in 100 millilitres of blood per hour. However, that only serves to increase the projected blood alcohol concentration range at the upper end of my projection. So, I don't normally consider that possibility unless it's specifically put to me and it's my opinion that the scientific evidence has only indicated that an individual can eliminate with a slower rate of elimination, that is less than 10 milligrams of alcohol in 100 millilitres of blood per hour, in cases where the individual has been hospitalized as a result of a liver disorder. (p. 31)

258It is clear on all the evidence that Mr. Kanuga was operating a vehicle with a BAC over 80 at the time of the accident in this case. A Finding of Guilt is registered on Count #2.

259With respect to impairment of his ability to drive, on the basis of the Toxicologist's evidence alone, Mr. Kanuga is guilty of this offence.

260In addition to that expert opinion evidence, there is the driving at a speed too fast for the winter weather conditions; the smashing into a traffic light pole when no other cars or obstacles were around to account for sharp swerving on the road; trying to start his car up again after smashing into the pole and after his air bag had been deployed; the physical symptoms and inculpatory behaviour and statements noted by Officers Vermeulen and Nopper after he spoke to duty counsel at the hospital (see paragraphs [112], [118], [121], and [157] through to [162] of this judgment).

261Taking all of this evidence together, the Crown has proven impairment by alcohol in the ability to operate a motor vehicle and a finding of guilt is registered on Count #1.

262I will conditionally stay the Over 80 Finding at the request of the Crown.

Released: December 15, 2014

Signed: "Justice L.M. Baldwin"