Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Mamerto Robinos
Before: Justice Susan M. Chapman
Heard on: April 19 and 20, 2018
Judgment released on: May 28, 2018
Counsel
J. Scarfe — counsel for the Crown
Y. Obouhov — counsel for the accused
CHAPMAN, J.:
Overview
1The accused stands charged with the Criminal Code offences of impaired driving, drive "over 80" and the Highway Traffic Act offence of being a novice driver and driving a car with a blood alcohol level in excess of zero. Prior to trial, the defence brought an application seeking relief in relation to alleged violations of the accused's section 8, 9 and 10(b) Charter rights. In particular it is alleged that there were not reasonable and probable grounds to make an arrest and that the accused was denied the right to counsel due to language related issues. The trial took place on April 19 and 20, 2018 and on consent included a blended Charter voir dire.
The Facts
2On January 19, 2017 at around 10:00 p.m., Parise Gioacchina was driving north on Bathurst Street in Toronto when she saw a car driving next to her in the curb lane go through the red light at a major intersection. She saw the same car switch into the left lane and stop on the other side of the intersection before taking off at a high rate of speed up Bathurst Street while again returning to the curb lane. Shortly thereafter she heard a loud bang. As she drove up Bathurst Street, she saw that the same car had hit a pole near the Baycrest Centre. She called 911 to report the incident.
3Joanne Au testified that she was in her 6th floor condo on the east side of Bathurst Street at approximately 10:30 p.m. when she heard a very loud bang. She immediately went out onto her balcony which looks across the street and slightly south towards the Baycrest Centre and saw a badly damaged car on the lawn between the sidewalk and the road. The car was facing south adjacent to the north lanes of Bathurst Street. She went in to her condo briefly to retrieve the phone to call 911 and when she returned she observed a single person get out of the car on the passenger side. The man who got out of the car sat down in the fetal position on the lawn near the post. She observed the scene for some time and did not see anyone else get out of the damaged car. She saw a security guard from Baycrest Centre come out and remove what she thought to be a bumper of the car from off of the roadway. She then saw the first responders arrive and interact with the male that got out of the car. It was her impression that the male in the car was staggering and needed assistance to be placed on the gurney but she was watching from some distance.
4Ms. Au took a number of photos of the scene that were entered into exhibits. She identified the damaged car as being at the south east corner of Bathurst Street and Brooke Avenue. There was a field of car debris on Bathurst as depicted in exhibit #2. Ms. Au observed a light post further south on Bathurst Street that had been cut in half.
5David Chapley testified that he is a Kosher supervisor and had just finished an inspection of Ba-Li Laffa restaurant when he got into his car and started to drive northbound on Bathurst Street just south of the intersection at Bathurst and Baycrest Avenue. All of a sudden a car "whizzed past" him on his right side, travelling at a "very fast rate of speed". He saw this same car go right up on to the sidewalk and then flip over a number of times. The car turned end to end as it went north down Bathurst Street for some distance. Mr. Chapley drove past the car and pulled over to the side to call 911. He remained in his car and observed the damaged and now-stopped car in his rear view mirror as he reported what he saw to the 911 operator. He thought he saw a male get out of the car on the driver's side of the vehicle, though it became clear in his evidence that he did not appreciate that the car in question was facing in a south and not a north direction. He agreed that the individual got out of the car on the side of the curb lane, and it is clear from the pictures and the evidence of the other witnesses that it was the passenger's side, and not the driver's side of the car, that was on the curb lane side of the car adjacent to the roadway. He could only see one side of the car and thought that the car was upside down on the sidewalk. In this, he was clearly mistaken.
6Mr. Victor Gita, a security guard with Baycrest Centre, testified that he was sitting at his security desk just in the door of the hospital when another staff member came in and told him that there had been a big accident involving a white Toyota Corolla on Bathurst Street. He ran to the location and was first on scene. He could not see the driver as the air bags were all deployed. The glass of both the front and the back windshields was shattered and the door handle on the driver's side of the car was off. He knocked on the driver's side window of the car but could not open the door. The car was facing south, partly on the sidewalk and partly on the street. He went around to the other side of the car and found that the passenger side door handle was also not working. He only ever saw one person in the car. There was no one else around initially.
7He saw a male he identified in court as the accused in the car and told him to move to the passenger's side to get out. When he went around to the passenger's side of the car, he could see the accused trying to move from the driver's seat of the car to the passenger's side. He appeared to be in between seats with the left side of his body still in the driver's seat and one leg on either side of the console. After he came out the passenger side of the car, Mr. Gita asked the accused if he was alright. The accused did not appear to have any injuries. He looked dizzy and disoriented and initially could not answer his questions properly. Mr. Gita initially wondered whether or not there was a language barrier. The accused eventually answered his questions. He told him that he was not injured. He got out of the car and sat on the curb of the road.
8Jonathan Mak is a paramedic who arrived on scene, with his partner Alvin Yuhalogarasan, at approximately 10:56 p.m. The original dispatch call came in at 10:52 p.m. and alerted them to a single car crash involving a knocked over hydro pole. They saw a car on the east side of Bathurst, on the north bound lane side of the road, but facing southbound. When they arrived they could see a light standard had been knocked over with half on the roadway and the other half suspended from the wires. Only the accused and the security guard were on scene when they arrived. Mr. Mak first asked the accused whether there was someone else in the car and he said "no". He then asked him his name and some other questions but the accused did not answer his questions. It was Mr. Mak's impression that the accused could understand the questions but was wanting to speak to someone on the phone that he had in his hand. He assessed the accused for injuries and found none. Mr. Mak testified that he heard the accused answer his partner's questions in the ambulance. He left the accused with his partner while he went and got the stretcher. He observed the accused to be unsteady on his feet when he took 1 or 2 steps before being placed on the gurney. As he was strapping the accused to the stretcher, Mr. Mak could smell the odour of alcohol.
9The paramedics loaded the accused into the ambulance and Mr. Mak went back to assess the scene for the benefit of the doctor's knowledge. He observed extensive damage to the car. There was mud and grass on the roof of the car suggesting that it had rolled over. He also observed that the car had "taken out" both a stop sign and a light standard. There was extensive debris along a long stretch of Bathurst Street leading to the car. The car was destroyed. When Mr. Mak returned to the ambulance, the accused was vomiting. They rolled him over to prevent him from choking and then cleaned up the car. The vomit smelled strongly of alcohol. During his interactions with the accused, he did not recall anything that suggested the accused was having difficulty understanding English. He specifically recalled his partner asking the accused whether he had been seat belted and the accused responding "yes".
10Mr. Yuhalogarasan engaged the accused in conversation while his partner retrieved the stretcher from the ambulance. He asked the accused what happened and the accused told him that he had been struck by another car. He did not appear to have any difficulty answering questions in English. Mr. Yuhalogarasan asked the accused if he had any injuries and other questions. For the most part, he did not record the accused's exact words, not surprisingly given his first job of tending to the accused. However, he recalled that the accused was asked to provide a description of the other car that hit him and was unable to do so. During this time, the paramedic observed the accused to have bloodshot eyes. He also smelled of alcohol. He asked the accused if he had been drinking alcohol and the accused denied it. He asked the accused if he had taken drugs and the accused told him that he did not take any medications. He asked the accused if he had any allergies or medical problems and he denied that he did. As he palpated the accused's back, Mr. Yuhalogarasan asked him if it hurt and the accused responded "yes". According to the witness, the accused was speaking at times in full sentences. At other times he was answering "yes" or "no". However, the witness agreed in cross-examination that no purported direct quotes from the accused were noted in his witness statement taken that same night. As well, he agreed that the accused had an accent. He asked the accused again whether or not he had been drinking, as he moved him into the back of the ambulance, and the accused denied it. At one point, P.C. Angus came into the back of the ambulance to speak to the accused but shortly thereafter the accused began to vomit. The vomit smelled of alcohol. The paramedics took the accused to Sunnybrook Hospital.
11P.C. Natalie Moi testified that she obtained a production order in order to seize the accused's medical records from Sunnybrook Hospital, including a hematology report reflecting the results of blood work done on the accused. The hematology report, filed as exhibit 6 at trial, indicates that a sample of blood was taken that evening at 23:55 p.m. Further filed on consent, as exhibit 7, is the opinion letter of the toxicologist from the CFS, indicating that the accused's blood alcohol level, read back to 10:51 p.m., was in the range of 215-230 mg per 100 ml of blood. It is noteworthy that the expert report does not truncate the breath readings and for this reason, and because they were taken outside of the two hours, the Crown does not rely on the breath readings, except to the extent that they may evidence some consumption of alcohol.
12P.C. Darren Angus has been a Toronto police officer for over ten years. He has been with Traffic Services since 2014. He testified that he was working on January 19, 2017 when he received a radio call to attend the Bathurst/Baycrest/Brooke Avenue location concerning a car accident and arrived at 11:04 p.m. It was unusually warm weather that night and the roads were dry. Upon arrival at the scene, he observed a field of debris on Bathurst Street including a damaged wooden stop sign. He also saw a white Toyota MT car facing southbound on the sidewalk or grassy boulevard on the east side of the street approximately 24 metres north of Brooke Avenue. The car had sustained extreme damage.
13P.C. Angus parked his scout car behind the EMS vehicle and was soon approached by the paramedics and firefighters on scene. The paramedics and the firefighters on scene told P.C. Angus that the accused was the sole occupant of the car and was impaired. No police officers had yet spoken to the accused. P.C. Angus had a brief conversation with P.C. Kroustolis at this time. P.C. Kroustolis did not testify at trial as he was injured on duty.
14When P.C. Angus arrived, the accused was in the back of the ambulance. As soon as he opened the back door of the ambulance, P.C. Angus could smell the strong odour of alcohol. He got into the ambulance and observed the accused on the stretcher with his head facing the rear doors. The accused was conscious and the officer could smell alcohol on his breath. As the paramedics attended to the accused, P.C. Angus spoke with P.C. Kroustolis outside of the ambulance. P.C. Kroustolis gave P.C. Angus information that he had learned from the witnesses on scene. On the basis of the information received, P.C. Angus testified that he formed the grounds to believe that the accused was impaired. In particular he was provided with information that the accused was the sole occupant of the car and the only person seen getting out of the car. Further, the driver of that same car had earlier been observed going through a red light. The paramedics and the firefighters told him that the accused was impaired. Though he agreed in cross-examination that he could not attribute this opinion to any particular named individual, he maintained that it was several of the first responders that told him that the accused was impaired.
15P.C. Angus entered the ambulance. The accused almost immediately began to vomit violently. P.C. Angus again left the back of the ambulance so as to allow the paramedics to flip over the accused and deal with the situation. P.C. Angus re-entered the ambulance at 23:18 hours. He observed the accused to have blood shot eyes and slurred speech. Again the odour of alcohol coming from the accused was strong. At this time, P.C. Angus formed the grounds to arrest the accused for impaired care or control. Without prompting, the accused said to P.C. Angus "they hit me". When asked who hit him, the accused responded "they did". At 23:19 hours, P.C. Angus read the accused his right to counsel. He asked him if he wanted to call a lawyer but was unable to understand his response. P.C. Angus was not concerned that the accused could not speak English. He was concerned that he was highly intoxicated. P.C. Angus testified that he had no reason to believe that the accused could not understand English. As he read the right to counsel and the Approved Instrument (AI) demand at 23:20 hours, the accused shook his head side to side which P.C. Angus took to be that he did not understand. The accused then closed his eyes and stopped responding to the officer. P.C. Angus was not sure that the accused understood his rights but concluded that the accused was simply done responding to him. There was no further conversation at this time. EMS left shortly thereafter and P.C. Angus remained on scene in order to do an accident scene investigation. He later obtained the class of license documentation filed as Exhibit 9 at trial.
16In cross-examination, P.C. Angus clarified that it was P.C. Kroustolis told him that he had interviewed Mr. Gita, the security guard, and had been told that the accused was the lone occupant of the car. However, the security guard had not witnessed any driving or the collision. It was also from P.C. Kroustolis that P.C. Angus learned that a witness had seen the same car drive through a red light, though that particular witness could not put the accused in the driver's seat. P.C. Angus testified that he also learned from Mr. Pak that the accused was the sole occupant of the car.
17P.C. Patil is a designated breath technician that attended at Sunnybrook Hospital in the early morning hours of January 20, 2017. He was met by P.C. Kroustolis at the hospital who advised him that the accused was under arrest for impaired operation of a motor vehicle. After having been assessed by medical staff, the accused was placed in a room in the so called Green zone of the hospital. It took P.C. Patil approximately 35-40 minutes to ready the Intoxilyzer to take a sample. During this time P.C. Patil overheard the accused interacting with P.C. Kroustolis. The first thing P.C. Kroustolis did was read the accused the Approved Instrument demand. He then read the accused the right to counsel and a primary and secondary caution, in what is conceded to be the appropriate wording. Though the accused did not respond to the cautions, he did say that he would like to speak with duty counsel and this was then facilitated. He and P.C. Kroustolis stepped out of the room while the accused spoke to duty counsel. The call lasted approximately six minutes. Upon their return to the room, P.C. Patil spoke to the accused who confirmed for him that he had spoken to duty counsel. The first breath sample was then taken at 1:03 a.m. P.C. Patil testified that during this interactions he did not detect any language barriers.
18P.C. Patil testified that it is his practice to ask the detainee if they need an interpreter and that the form he filled in that evening specifically indicates no need for an interpreter. He proceeded to explain to the accused that he was to provide two samples of his breath which he did. The readings were 176 and 159 mg of alcohol per 100 ml of blood. P.C. Patil observed that the accused was tired by this point in time and appeared to be a little confused.
19Though he could not recall the specific reason for his indicating that the accused was confused, he would have made a special note of it had he thought it was due to a language barrier. It was P.C. Patil's impression that the accused had no problem understanding what was being said to him. If he had any concern at all that there was a language barrier, he would have immediately advised of the need to involve an interpreter. He would not have done the breath tests had he not been satisfied that the accused could speak and understand English. In cross-examination he agreed that he did not record in his notes any verbatim comments attributed to the accused. Instead, just the general conversation and his impressions are noted. As well, P.C. Patil agreed that the accused spoke with an accent, did not respond to some inquiries and at times appeared confused. However, it was not the officer's impression that the failure to respond to some questions was due to a language barrier.
20In cross-examination, Officer Patil could not provide further clarification as to why he noted that the accused was confused and quiet. He did maintain that these were not language-related issues as he would have noted them as such. P.C. Patil testified that the accused "had no problems understanding English". The officer filled out a standard form indicating the responses of the accused but they do not purport to be verbatim. The interaction was not videotaped, as it normally would be, because the tests were administered in the hospital and not at the police station. Officer Patil agreed in cross-examination that the accused did not make any verbal response to the question "do you understand" that followed both the AI demand and the primary and secondary cautions. Further, the accused indicated he was in some pain by pointing to the catheter rather than verbalizing the complaint. P.C. Patil made the decision that the accused did not need an interpreter after he spent approximately one hour with him, watching him interact with nursing staff and P.C. Kroustolis and himself.
The Issues
21On the blended voir dire, defence counsel raised the following Charter related issues:
Did the police officer have the necessary objective grounds to make an arrest of the accused?; and
Should the police have obtained an interpreter for the accused, or taken other steps, in order to make sure that he understood his right to counsel?
22If the answer to either of these questions is "yes", it is the defence position that the accused is entitled to a Charter remedy including the exclusion of not only the breath samples but the blood samples subsequently seized from the hospital by way of a production order. As for the trial on the merits, the defence argue that the Crown has failed to prove its case beyond a reasonable doubt, and in particular, by failing to prove either the identity of the driver or the fact of impairment. I will deal with each issue in turn.
Analysis
The Arrest
23Again, the defence argue that, though P.C. Angus may have subjectively believed he had grounds to arrest the accused at the time that he did, he did not have the requisite objective grounds to do so. The gaps in the evidence pointed to by defence counsel relate to: (a) the time of operation of the car; (b) the fact of care or control; and, (c) the identity of the driver.
24I find that P.C. Angus had objective grounds to arrest the accused. The accused was the single occupant of a car involved in a single car crash. It was a bad accident involving significant damage to the car and the roadway. Before arriving on scene P.C. Angus knew that this was a single car collision. This fact was confirmed for him by numerous witnesses. Upon his arrival, he describes being swarmed by the paramedics and fire fighters on scene who told him that the driver of the car was impaired. P.C. Kroustolis provided P.C. Angus with information he had learned from some of the witnesses including the fact that the driver of that same car had been seen going through a red light at the intersection. He had the opportunity himself to observe that the accused smelled of alcohol and had bloodshot eyes and was slurring his words. P.C. Angus entered the back of the ambulance to speak to the accused and shortly thereafter the accused vomited and a strong odour of alcohol emanated from him. He had a brief conversation with the accused that confirmed indicia of impairment. To sum up, at the time of the arrest, P.C. Angus had information that:
- The accused was the sole occupant and driver of the car;
- The car had been involved in a very serious single car accident;
- The same car had been seen driving through a red light on Bathurst street;
- The accused's breath smelled of alcohol; and
- The accused had slurred speech and bloodshot eyes.
25This was clearly a sufficient basis upon which to establish the requisite grounds for the arrest: R. v. Censoni, [2001] O.J. No. 5189 at para. 33. Furthermore, though the officer was entitled to rely on third party information in order to form his grounds, he did have some first-hand dealings with the accused that confirmed the information he received.
The Right to Counsel Issue: Section 10(b) Information and Implementational Duty in Relation to Language
26The defence argue that the accused was deprived of his right to counsel because he was not in a position to comprehend what was being said to him due to a language barrier. The law in relation to the informational and implementational duties under s. 10(b) as they relate to language is well-established and carefully summarized by Justice Copeland in R. v. Bassi, 2015 ONCJ 340 at paras. 6 to 21.
27A police officer who arrests or detains an individual has an obligation to inform the individual of his or her right to counsel in a meaningful way, and to ensure the individual understands the various components of the right. In general, in relation to language comprehension, if there are no circumstances that suggest an issue regarding comprehension of English, it is fair to infer that the individual understands the rights as read to him or her. However, where "special circumstances" exist, an officer is required to take steps to ensure that the detainee understands his or her legal rights. Special circumstances in relation to language comprehension may exist where: (1) there is objective evidence that English is not the defendant's first language; and (2) there is objective evidence of some lack of understanding of the right to counsel or other information provided to the detainee by police at the time of the detention or arrest: R. v. Vanstaceghem, 36 C.C.C. (3d) 142; R. v. Lukavecki, [1992] O.J. No. 2123 (Gen. Div.); R. v. Oliva-Baca, 2009 ONCJ 194 at paras. 8-45; R. v. Peralta-Brito, 2008 ONCJ 4 at paras. 39-45; R. v. Silva, 2005 ONCJ 2 at para. 11; R. v. Ikuta, [2000] O.J. No. 2764 at paras. 4-15; R. v. Zbarecea, [1988] O.J. No. 11-1 (Gen. Div.); R. v. Ly, [1993] O.J. No 268 at paras. 7-12 (Prov. Div.); R. v. Thygarajah, 2014 ONCJ 91 at paras. 20-22.
28The test is an objective one and one that recognizes the vulnerability of individuals arrested or detained and the importance of the right to counsel to all detainees regardless of language background. A suspect who may be able to manage day to day in English may nonetheless not be comfortable in English when dealing with the complexities of understanding the right to counsel. It is not simply the officer's view of the situation but the objective grounds that exist in all of the circumstances that trigger special duties.
29As with any Charter application, the onus is on the defendant to show on a balance of probability is that his s. 10(b) rights were violated, and in particular in this context, that special circumstances existed. There is no obligation on the detainee to specifically ask for counsel or duty counsel in a language other than English as they may not know that they have this right. Where special circumstances exist, the police must take reasonable steps to ascertain that the detainee has understood his constitutional rights. At the informational stage, this could be done by giving right to counsel through an officer who speaks the detainee's language or through an interpreter or in some cases, depending on the detainees level of English, through more careful explanation of the right to counsel by the arresting officer. With respect to the implementational aspect of the right, officers must facilitate contact with counsel in a manner that addresses the detainee's language issues, such as providing duty counsel who speaks the detainee's language or simultaneous translation.
30In this case, the defence argue that the circumstances of the police interactions with the accused should have alerted them to a language barrier and special circumstances requiring further inquiry. Although this is a close case, on the whole I find that special circumstances did not exist. The accused's s. 10(b) rights were properly administered to him. The accused communicated in English with one of the paramedics at some length. He also spoke to the police officers in English. He did at times stop responding to some of the questions asked, and at one point closed his eyes. However, this is, standing alone, insufficient to trigger special duties.
31The circumstances of this case, viewed objectively, were not sufficient to trigger the need for the police to take special steps to ensure that the accused understood his right to counsel. The accused was able to answer questions. P.C. Patil testified that there was nothing in his interactions with the accused that caused him to believe there was a language barrier. In fact, he specifically checked off the box on his standard forms indicating that there was no need for an interpreter. It is true that P.C. Patil acknowledged that the accused had an accent, appeared confused at certain points in time and did not respond to questions concerning his understanding of his rights. But based on his interactions with the accused he did not see these refusals as based on a lack of understanding of what was being said to him. Over the course of nearly an hour, P.C. Patil observed the accused interacting with P.C. Kroustolis and himself and the nursing staff and concluded that he spoke English. In all of the circumstances I find that there was no breach of the right to counsel.
32Even if the accused's English was limited, and there is no evidence that this is the case, one would expect him to indicate that in some manner. Perhaps by shrugging his shoulder or speaking in a different language or indicating verbally that he was having some difficulty understanding what was being said to him. He did not do any of those things. To be clear, there is no onus on him to do so but in the absence of an objective basis to suggest special circumstances, these facts do not assist him in establishing a s. 10(b) Charter breach.
33This case can be factually distinguished from Bassi, where the accused specifically told the police that Punjabi was his first language and that by virtue of the language barrier he only understood 90 percent of what counsel said to him. It can also be distinguished from the facts of R. v. Silva 2005 ONCJ 2, though I agree with defence counsel that the factors listed in Silva do not constitute a closed list of situations giving rise to "special circumstances". It is not the subjective belief of the officers that dictate whether special circumstances exist in a particular case but the objective facts. I find that the officers in this case were not alerted to a language issue and therefore did not fail to take the necessary steps to ensure that the accused was provided with his right to counsel in a meaningful and comprehensive way.
Section 24(2)
34Had I found a breach of the right to counsel, I would have to consider what if any evidence to exclude pursuant to s. 24(2) of the Charter. Again, the defence bear the onus in seeking this remedy. Counsel to the accused argues that both the breath samples and the blood samples obtained from the subsequent production order should be excluded. The Crown concedes that if I find a s.10(b) breach of the Charter, then the breath samples but not the blood samples should be excluded. Notably, the crown does not actually rely on the breath samples in this case as they were taken outside of the two hours and the opinion of the toxicologist does not truncate the readings to the time of the accident.
35Though it is not necessary to finally decide this issue, in light of my ruling on the breach, I would observe that even on the broadest possible reading of R. v. Pino, 2016 ONCA 389, the exclusion of the medical records evidencing the blood readings is not justified in this case. There is no sufficient nexus between any alleged breach of s.10(b) of the Charter and the obtaining of the blood readings, such as to justify the exclusion of the hematology report obtained from the hospital by way of a production order.
36In Pino, Laskin J.A., on behalf of the court, cites the decision of Rosenberg J.A. in R. v. LaChappelle, 2007 ONCA 655, leave refused [2007] S.C.C.A. No. 584. In that case, Rosenberg J.A. relied on the Supreme Court of Canada decision in R. v. Strachan, [1988] S.C.J. No. 94 at para. 46, in holding that evidence seized by the police before an alleged Charter violation could not be excluded under s.24(2). In that case, the accused had been injured in a car accident and was taken to the hospital. On the orders of a doctor, a nurse drew five vials of his blood. Although the accused had been suspected of drinking, the trial judge found that the vials of blood were taken solely for medical purposes. Soon after the blood samples were taken, the police concluded they had grounds to arrest and charge the accused with impaired driving. While he was still in the hospital an officer read him his rights under s. 10(b) of the Charter and made a breath demand. The accused then asked to speak to duty counsel and had a private 15 minute consultation with counsel. Two days later, the police obtained a warrant to seize the vials and the accompanying blood/alcohol analysis. At trial the accused sought to exclude the results of the breath test and the analysis of his blood samples on the ground, among others, that his s.10(b) rights had been breached because he did not receive competent advice from duty counsel. The trial judge found that the advice the accused received was competent. On appeal Rosenberg J.A. held that even if the advice was incompetent he would not exclude the evidence. At paras. 46-47 he wrote:
Even if the appellant is right that merely showing that he received incompetent advice resulted in a s. 10(b) violation, on the findings of fact by the trial judge, no evidence was obtained by that violation. Accordingly, there was no basis for invoking s.24(2) of the Charter and possibly excluding the results of the blood test.
… But here the trial judge found that the vials had already been sealed and were no longer within the appellant's control when he finished talking too duty counsel. There was no factual or temporal connection between the alleged breach and the obtaining of the evidence; the evidence had already been obtained before the alleged breach of the appellant's rights because of his incompetent legal advice.
In Pino, Justice Laskin sets out the rationale in LaChappelle in the following terms:
In LaChappelle, the alleged Charter breach and the obtaining of the evidence were not part of the same transaction. The evidence was lawfully seized before the breach, by persons who were not even state actors. As Rosenberg J.A. held, there was no connection, at least no close connection, between the evidence and the breach. In my view, LaChappelle does not stand for the sweeping proposition that a Charter breach after the evidence has been discovered can never meet the "obtained in a manner" requirement in s. 24(2). That it may do so in an appropriate case finds support in academic commentary.
A temporal link between the infringement of the Charter and the discovery of the evidence is not determinative of, but figures prominently in, an assessment of s.24(2) engagement, particularly where the Charter violation and the discovery of the evidence occur in the course of a single transaction: Strachan at para. 46. The factors set out in para. 72 of Pino are those that govern.
The facts of the case at bar are close but not identical to LaChappelle. In LaChappelle the Charter breach took place after the obtaining of the blood samples; in this case, the blood samples were obtained at 23:55 by hospital staff for medical reasons and only later provided to police pursuant to a lawful production order. In the case at bar I find that, had there been a breach of the Charter, it is too remote from the blood sample evidence to be "obtained in a manner" that infringed the Charter.
In the further alternative, even if s. 24(2) is engaged in this case, the Grant factors point to the inclusion and not the exclusion of the blood test evidence. Though the breach of s.10(b) of the Charter is inevitably serious, the police acted in good faith at all times in their dealings with the accused – there is no suggestion otherwise; if the evidence was "obtained in a manner" that violated the Charter, the connection was remote; the blood samples are reliable evidence and the charges serious; R. v. Jennings 2018 ONCA 260.
The Merits
Identification of the Driver
37Several witnesses testified to seeing only one individual emerge from the car. Though there are some frailties in each of their evidence, the totality of the evidence establishes the identity of the driver beyond a reasonable doubt. Mr. Chapley testified that he saw a single person emerge from the car. Ms. Au testified that she saw a man get out of the car and sit next to it until the time that the paramedics arrived and started to interact with him. She did not see anyone else get out of the car. Though she did not constantly observe the scene, her evidence on this point is consistent with that of the security guard from Baycrest Centre who was first on the scene and in the best position to determine who was in the car. He interacted with the accused while he was in the car and urged him to get out of the car on the passenger side given the damage done to the driver's side of the car. He too testified that there was only one occupant in the car. He saw the accused moving from the driver's seat of the car over to the passenger side of the car in order to get out. The accused had clearly been occupying the driver's seat of the car. One of the paramedics testified that he specifically asked the accused whether there was anyone else in the car and the accused told him that there was not. There is no evidence whatsoever that there was another person in the car that crashed. Accordingly, the evidence of the identity of the accused as the driver of the car is overwhelming.
Proof of Impairment
38According to the blood samples and the expert opinion interpreting them, the accused's blood alcohol level at the time of this single car collision was in the range of 210-230 mg of alcohol per 100 ml of blood. That is nearly three times the legal limit. As well, the breath samples demonstrate some consumption of alcohol (in the absence of any evidence whatsoever of bolus drinking). However, all apart from the breath samples or the blood readings, the evidence of the accused's impairment was overwhelming. The defence concedes, as they must, that there is some evidence of alcohol consumption. The security guard and the paramedics testified to the odour of alcohol coming from the accused. One paramedic testified that the accused's eyes were bloodshot. Another paramedic testified that the accused's gait was unsteady when he took one or two steps on his own before being placed on the gurney. The accused threw up in the back of the ambulance and his vomit smelled strongly of alcohol. P.C. Angus testified that the accused was mumbling and slurring his words in the back of the ambulance. P.C. Patil observed the accused to have bloodshot eyes. In addition to the evidence of some consumption of alcohol, there was a large body of evidence of impairment by alcohol, including:
- The accused drove through a red light;
- The accused's car was swerving from lane to lane;
- The accused stopped on the other side of the intersection and then took off at a high rate of speed;
- He knocked out a stop sign and a light standard on Bathurst Street;
- He flipped his car several times before it landed facing south next to the northbound lanes on Bathurst Street;
- This was a single car collision.
39I reject the defence submission that because we do not know the exact cause of the accident there was insufficient evidence of bad driving to prove some impairment. I find that the evidence of alcohol consumption, in combination with the evidence of very bad driving, demonstrates beyond a reasonable doubt that the accused was significantly impaired at the time of the accident.
Conclusion
40I am satisfied that the Crown has proven beyond a reasonable doubt each and every element of the offences of impaired care or control and "over 80". It follows that the Crown has also proven beyond a reasonable doubt the Highway Traffic Act offence.
May 28, 2018
Justice Susan M. Chapman