Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
Richard William Saaybe Hansen
Judicial Officer and Counsel
Before: Justice Peter C. West
Evidence Heard: August 22 and 23, 2018 and December 12, 2018
Oral Submissions Heard: August 23, 2018 (Charter application) and December 12, 2018 (Trial proper)
Oral Reasons for Judgment Given: January 3, 2019
Counsel:
- O. Fitzgerald, for the Crown
- S. Price, for the accused Richard William Saaybe Hansen
WEST J.:
Introduction
1Richard Hansen is charged with operating a motor vehicle with over 80 mg of alcohol in 100 ml of blood on August 27, 2017. He pleaded not guilty. The defence brought a Charter application alleging Mr. Hansen's s. 8, 9 and 10(b) Charter rights were infringed. Counsel agreed to proceed by way of a blended hearing. The Crown called P.C. Jeffrey Tyler and filed a Toxicology Expert Report, prepared by Amanda Lowe, a toxicologist with the Centre of Forensic Sciences. The defence agreed to the Toxicology Report being filed as Exhibit 2. Prior to Mr. Hansen testifying on the Charter application, Mr. Price advised he was abandoning the ss. 8 and 9 Charter applications and was only arguing the s. 10(b) Charter infringement. Mr. Hansen testified on the Charter application prior to the conclusion of the Crown's case.
2At the conclusion of the Crown's case, both counsel made submissions respecting the s. 10(b) alleged Charter violations. It was Mr. Price's position that P.C. Tyler funnelled Mr. Hansen to duty counsel rather than waiting to wait for his counsel of choice to call back. Further, the defence submitted Mr. Hansen's telephone call with duty counsel was not in private. Mr. Price argued these two breaches were serious breaches, which impacted Mr. Hansen's Charter-protected rights and the two breath samples obtained should be excluded pursuant to s. 24(2) of the Charter. The Crown argued there were no Charter violations of Mr. Hansen's s. 10(b) rights and the breath samples should be admitted.
3After hearing submissions on the Charter application, both counsel suggested we continue with the trial and Mr. Price advised he intended to call Mr. Hansen on the trial proper. Mr. Hansen testified that he had consumed two double vodka drinks in the 10 minutes prior to leaving Moxies Restaurant and he was stopped by police three to three and a half minutes after he left the restaurant. The Crown called Mr. Revanth Persaud, the bartender/server from Moxies and P.C. Ryan Sheridan as reply witnesses. There was no objection taken by the defence. The argument at the conclusion of the case was if I believed Mr. Hansen's evidence as to what he consumed and when or it left me with a reasonable doubt, I could not rely upon the Toxicology Report because of the bolus drinking evidence provided by Mr. Hansen.
4After hearing submissions on this issue I reserved judgment on both the Charter application and my decision on the trial proper, if necessary, until January 3, 2019.
Factual Background
5On August 27, 2017, P.C. Tyler, a recently appointed Durham Regional Police officer, received a radio call from dispatch at 11:26 p.m., concerning a possible impaired driver who had left Moxies Restaurant at Kingston Road and Liverpool Road in Pickering. P.C. Tyler was with his partner, P.C. Bowler, who was driving the police cruiser. The motor vehicle was described as a white F-150 pickup, license # AN62953. The pickup was last seen travelling westbound on Kingston Road.
6P.C. Tyler testified this was his first time testifying in court and he was tired from having just ended a 12 hour shift at 7 a.m., just before coming to court.
7P.C. Tyler observed a white F-150 pickup travelling westbound on Kingston Road approaching Whites Road in Pickering. He observed the driver, who was the lone occupant of the pickup, and determined he matched the description broadcast by dispatch. At 11:29 p.m., P.C. Bowler effected a traffic stop before the white pickup made a right turn onto Whites Road in Pickering, Ontario.
8P.C. Tyler went to the driver's door to determine if the driver was the person called about. P.C. Bowler directed traffic around the stopped vehicles. P.C. Tyler detected an odour of alcohol from inside the vehicle. Mr. Hansen's speech was slurred and slow. He had trouble keeping his eyes open and seemed confused. It was P.C. Tyler's opinion he was exhibiting signs of impairment. P.C. Tyler asked Mr. Hansen to step out of the vehicle and he had trouble getting out and used the door for support. Mr. Hansen had to take an extra step to steady himself. P.C. Tyler formed a reasonable suspicion Mr. Hansen had alcohol in his body when he had been operating a motor vehicle.
9P.C. Tyler read Mr. Hansen an approved screening demand from the back of his notebook at 11:31 p.m. He had to read the demand twice and then explain it a third time because Mr. Hansen did not understand. He asked Mr. Hansen when his last drink was and Mr. Hansen replied it was approximately an hour earlier. P.C. Tyler testified he believed the consumption was less than an hour before but he was not concerned about mouth alcohol because he believed 15 minutes would have elapsed from the time Mr. Hansen left Moxies, 911 being called, which led to the radio dispatch, the stopping of Mr. Hansen's truck, the time spent by P.C. Tyler in talking to Mr. Hansen, forming his reasonable suspicion, the ASD demand and Mr. Hansen blowing into the ASD.
10P.C. Tyler explained to Mr. Hansen how the ASD worked and then demonstrated it by providing a sample into the ASD, which registered a zero. P.C. Tyler believed the ASD was working properly. Mr. Hansen provided a sample of his breath directly into the ASD and it registered a "Fail" at 11:35 p.m.
11At 11:35 p.m., P.C. Tyler placed Mr. Hansen under arrest. He searched his person and found Mr. Hansen's Ontario Driver's License, the photo matched Mr. Hansen. He was handcuffed to the rear and placed in the rear of the police cruiser.
12At 11:37 p.m., P.C. Tyler read Mr. Hansen his right to counsel and caution from the back of his police notebook. Mr. Hansen said he understood and asked to speak to Peter Bawden, his lawyer. Mr. Hansen's vehicle was searched incident to arrest and to secure it for the tow to the police impound. Two other officers had attended the scene to assist and during the search of Mr. Hansen's vehicle a large quantity of cash was discovered, $7350 in cash, mainly $20 bills. It was placed in a property bag.
13P.C. Tyler and P.C. Bowler transported Mr. Hansen to the Pickering police station, leaving the scene at 11:47 p.m. and arriving at 11:53 p.m. There was an odour of alcohol in the cruiser after the transport. Mr. Hansen was paraded before Acting Sgt. Rhoden at 11:59 p.m. After the booking Mr. Hansen was searched again.
14Mr. Hansen was placed in the telephone room for privacy while P.C. Tyler did an internet Google search to look up Peter Bawden's phone number. The first number called was 416-599-1891, ext. 222, at 12:20 a.m. and a message was left with the details of Mr. Hansen's arrest and a police number for callback. P.C. Tyler looked again on the internet and found another number, which he called it at 12:25 a.m., and left a second message on the answering machine that answered.
15At 12:34 a.m., P.C. Tyler spoke to Mr. Hansen and advised him that two messages had been left at Peter Bawden's telephone numbers. P.C. Tyler asked Mr. Hansen if he had another lawyer he wanted to call. He testified he recalled offering Mr. Hansen a phonebook if he wanted to look at one, this was not in his notes but he had a specific recollection of offering this to him.
16P.C. Tyler told Mr. Hansen he could find another lawyer or he could call duty counsel, it was his choice. Mr. Hansen said he would call duty counsel. P.C. Tyler immediately placed a call to duty counsel and left a message to call the police concerning an individual under arrest and provided a callback number. P.C. Tyler denied telling Mr. Hansen they could not wait any longer and duty counsel was available.
17At 1:03 a.m., duty counsel called back to the police station, Kate Brockman was the duty counsel's name. Mr. Bawden had not called back to the police station by 1:03 a.m., 43 minutes after the initial call by P.C. Tyler. At 1:04 a.m., the call was transferred to the telephone room where Mr. Hansen was able to speak to Ms. Brockman in private. The call was completed at 1:20 a.m. P.C. Tyler told Mr. Hansen to knock on the door when he was finished speaking to duty counsel.
18The telephone room for an accused to speak to a lawyer is a small room with a door that closes that has a small window. It is located about 3-5 meters away from the booking area. The breath room, where P.C. Sheridan, the qualified breath technician was setting up is also further down the hallway where the telephone room is located. There is also a room off this same hallway where officers have access to a computer to type up reports and use for internet searches. P.C. Tyler agreed in cross-examination it was possible officers were talking to each other while they would be in this room or in booking area.
19P.C. Tyler testified at the time Mr. Hansen was on the phone with duty counsel the booking area was not crowded. At 1:20 a.m., Mr. Hansen was brought out of the telephone room and custody was given to P.C. Sheridan. Mr. Hansen did not make any complaints about his call with duty counsel.
20P.C. Tyler was called to the breath room to take Mr. Hansen to the washroom at 1:31 a.m. and he was returned to the breath room at 1:32 a.m. At 1:56 a.m., Mr. Hansen's custody was returned to P.C. Tyler who placed him in an interview room upstairs in the police station. He served Mr. Hansen with various papers including the Qualified Breath Technician's Certificate, which was filed as Exhibit 1. It reflected two truncated readings of 180 mg of alcohol in 100 ml of blood at 1:30 a.m. and 200 mg of alcohol in 100 ml of blood at 1:53 a.m.
21The actual readings provided to the toxicologist from the Intoxilyzer 8000C printout were 186 and 200 mg of alcohol in 100 ml of blood. The projected blood alcohol concentration (BAC) determined by the CFS Toxicologist, Amanda Lowe, in her report, Exhibit 2, at or between 11:25 p.m. and 11:35 p.m. was 180 to 220 mg of alcohol in 100 ml of blood.
22The four factors taken into account by the toxicologist were:
- A rate of elimination of alcohol from the blood ranging from 10 to 20 mg/100ml per hour
- Allowance for a plateau of up to two hours.
- No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident.
- No consumption of alcoholic beverages after the incident and before the breath tests.
23Mr. Hansen testified on the Charter application. He recalled being advised about speaking to a lawyer and he told the officer he wanted to call Peter Bawden. He did not have an opportunity to speak to Mr. Bawden. He knew an attempt was made to call Mr. Bawden. At 12:34 a.m., P.C. Tyler told him he had tried to reach Peter Bawden. Mr. Hansen testified the officer told him duty counsel was available.
24Mr. Hansen testified he felt that the only option for him was to call duty counsel, who was the only lawyer available. He denied being told that he could call any other lawyer and P.C. Tyler did not offer him the use of a phone book. The officer did not offer to wait further for Mr. Bawden to call. When he was asked by Mr. Price if he would have wanted to wait if this was offered, Mr. Hansen said "Yes."
25When Mr. Hansen was asked why he did not insist on waiting, he answered, "I felt pressure to speak to duty counsel" and he heard no other option to wait.
26When Mr. Hansen was asked why he did not insist on waiting, he answered, "I felt pressure to speak to duty counsel" and he heard no other option to wait.
26Mr. Hansen spoke to duty counsel in a small room with a table and chair and a phone on the wall. He testified he could hear officers laughing and joking outside this room. He just heard voices talking outside the room. He was trying to focus on the phone call with duty counsel so he was not concentrating on the words being said by the officers. He was unable to indicate any of the words spoken by the officers. Mr. Hansen testified he concluded if he could hear them then they could hear him.
27He testified he was limited in what he could say to duty counsel. He believed the officers were right outside the door or not far away. He testified he did not want to speak loudly as a result.
28When Mr. Hansen was asked why he did not complain, he responded he was trying to stay on the best side of the police. He did not know whether it would make his situation better or worse.
29In cross Mr. Hansen agreed the officers who dealt with him were professional in their dealings with him. There was nothing in his dealings with P.C. Tyler or P.C. Sheridan that was out of the ordinary. He felt intimidated being arrested. He was not concerned about the officers being violent with him. None of the officers did anything to break the trust he has for the police. They were courteous and polite to him. P.C. Tyler informed Mr. Hansen they had called Peter Bawden and left messages. He did not know Peter Bawden's phone number. P.C. Tyler took him to the washroom when he requested this.
30Mr. Hansen agreed Peter Bawden was not likely to be in his office at the time of night when Mr. Hansen was arrested. He had previously called him once at 9 p.m. and Mr. Bawden answered.
31Mr. Hansen agreed he did not tell P.C. Tyler, P.C. Bowler or P.C. Sheridan he could hear them through the door. He agreed he spoke to duty counsel for 16 minutes. He did not recall if P.C. Sheridan asked if he was satisfied with his call to duty counsel. Mr. Hansen agreed he did not complain to any police officer about his call with duty counsel. After his phone call with duty counsel he did not ask to speak to another lawyer or another duty counsel.
32Mr. Hansen did not agree he was intoxicated. He agreed he was a little under the influence of alcohol when he was speaking to duty counsel but not significantly under the influence.
33When Mr. Hansen was asked if after drinking his memory was affected he said it depends on the individual, different people react in different ways. In re-examination Mr. Hansen testified his memory was not that affected by alcohol.
Legal Principles Applicable on the Charter Application
Right to Counsel under s. 10(b)
34It is important to note at the outset that Mr. Hansen bears the onus of proving a breach of his s. 10 Charter rights on a balance of probabilities. Mr. Price submitted the police "funnelled" or "steered" Mr. Hansen to duty counsel and consequently, they breached his Charter rights under s. 10(b) of the Charter. He argued the police failed in their implementational duties by not advising Mr. Hansen they could continue to wait to see if Peter Bawden returned the messages that P.C. Tyler had left. Further, it was Mr. Hansen's position his call with duty counsel was not made in private as he could hear police officers outside the room he was in, they were joking and laughing while he was speaking to duty counsel.
35Section 10(b) of the Charter is comprised of two components: an informational component and an implementational component: see R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192. Ordinarily, the informational component only requires the police to inform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aid and duty counsel: see Bartle; R. v. Devries, 2009 ONCA 477 (CanLII), [2009] O.J. No. 2421 (C.A.), at paras. 21-23 and 28; and R. v. Willier, 2010 SCC 37 (CanLII), [2010] 2 S.C.R. 429, at paras. 29-30.
36In R. v. Brydges (1990), 1990 CanLII 123 (SCC), 53 C.C.C.(3d) 330 (S.C.C.), the Supreme Court held the police must give a detainee his rights to counsel before breath samples are provided and must give the detainee sufficient information to make an informed decision about speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have an obligation to facilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and consult counsel, see R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385 (S.C.C.) at p. 391.
37The Supreme Court of Canada has consistently held since R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, that the implementation duties of the police "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel": R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 30, 33; R. v. Taylor, 2014 SCC 50 (CanLII), [2014] 2 S.C.R. 495, at paras. 23-24. The Ontario Court of Appeal has also held that implementation obligations arise only when detainees express a wish to exercise their right to counsel: R. v. Fuller, 2012 ONCA 565, at para. 17. The question of whether a detainee asserted a desire to consult with counsel is essentially a question of fact: R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754 (Ont. C.A.), at paras. 77-78 and R. v. Owens, 2015 ONCA 652 (CanLII), [2015] O.J. No. 4972 (C.A.), at para. 28.
38In R. v. Sinclair, 2010 SCC 35 (CanLII), [2010] 2 S.C.R. 310, at para. 27, the Supreme Court has also made it clear the implementational duties of the police flowing from s. 10(b) are not absolute. Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended. This has been recently confirmed in R. v. Owens, supra, at para. 25. (See also R. v. Burlingham (1995), 1995 CanLII 88 (SCC), 97 C.C.C. (3d) 385 (S.C.C.) at para. 16, R. v. Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135 and R. v. Richfield, 2003 CanLII 52164 (ON CA), [2003] O.J. No. 3230 (C.A.).)
39P.C. Tyler's evidence was clear, after arresting Mr. Hansen on a charge of over 80 because of his failure of the ASD test, he read Mr. Hansen his right to counsel from the back of his police notebook. Mr. Hansen advised he understood his right to counsel and when he was asked if he wanted to speak to a lawyer now, he requested to speak to Peter Bawden.
40After Mr. Hansen was paraded and booked before the sergeant at the police station, P.C. Tyler testified he looked up Peter Bawden through Google on the Internet, found Peter Bawden's telephone number, called it and left a message after the recorded message. P.C. Tyler left a second message at a second telephone number he found for Peter Bawden. Mr. Hansen testified he did not provide a telephone number for Peter Bawden as he could not recall Peter Bawden's telephone number.
41After 14 minutes had elapsed from the first call to Peter Bawden's office, P.C. Tyler advised Mr. Hansen he had left two messages for Mr. Bawden but no one had returned the message and he wanted to know what Mr. Hansen wanted to do. P.C. Tyler testified he asked Mr. Hansen if he had another lawyer he wanted to call. He provided Mr. Hansen with options, he could find another lawyer by looking in the phonebook or he could call duty counsel, it was his choice.
42P.C. Tyler agreed he did not write in his notes that he offered to let Mr. Hansen find another lawyer in the phonebook but he had a specific recollection of offering this to Mr. Hansen. Mr. Hansen testified the officer did tell him that he had called Mr. Bawden but Mr. Bawden had not returned the call. The officer told him duty counsel was available. Mr. Hansen testified he "felt like that was the only option, that duty counsel was available." When Mr. Price asked him why he did not insist on waiting for Mr. Bawden to call back, Mr. Hansen said he "felt pressure to talk to duty counsel and did not know he had the option to wait."
43I found P.C. Tyler to be a very credible and reliable witness. His answers were internally consistent, he did not attempt to embellish his observations and he was fair in his description of his observations of and his interactions with Mr. Hansen. No issues were taken respecting his reasonable suspicion that Mr. Hansen had alcohol in his body or his ASD demand and his explanation to Mr. Hansen respecting how to properly blow into the ASD. P.C. Tyler's understanding of the workings of the ASD and his explanation underlying his belief that it was working properly was impeccable.
44Mr. Hansen did not convey to P.C. Tyler his wish to wait for Mr. Bawden to return the call nor did he even ask if he could wait. He described P.C. Tyler as being polite and courteous towards him and he had no reason to disbelieve that P.C. Tyler had left messages for Mr. Bawden. Mr. Hansen testified he trusted the police before being stopped by the police and afterwards he continued to trust the police. Mr. Hansen did not describe any interaction with P.C. Tyler that would have caused him to believe the police were putting pressure on him to call duty counsel. In fact, he did not describe any words said to him by P.C. Tyler that could be interpreted as putting pressure on him or funnelling him to duty counsel. It is my view any pressure felt by Mr. Hansen was of his own making and he did not express it in any way to P.C. Tyler. It is my view a police officer is not required to be able to read the mind of a detainee. The detainee has an obligation of his own to be diligent in the exercise of his right to counsel. An area of Mr. Hansen's evidence where I found Mr. Hansen to be evasive and less than forthright was respecting whether he ever expressed to either P.C. Tyler or P.C. Sheridan that he was dissatisfied or had concerns about the advice he had been provided by duty counsel. He eventually agreed he never asked to speak to another lawyer or another duty counsel after completing his 16 minute call with Ms. Brockman.
45In my view it is significant that Mr. Hansen did not complain to any police officer about the legal advice he received from duty counsel. The Supreme Court of Canada in R. v. Willier, 2010 SCC 37 (CanLII), [2010] S.C.J. No. 37 at paras. 33 and 41-43 make this abundantly clear:
33 Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonable diligence in attempting to contact counsel: R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138; R. v. Smith, 1989 CanLII 27 (SCC), [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson J. stated in Black (pp. 154-55):
A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain from questioning the accused are suspended: see R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435.
41 While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard of adequacy is unclear. As this Court recognized in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27, there is a "wide range of reasonable professional assistance", and as such what is considered reasonable, sufficient, or adequate advice is ill defined and highly variable.
42 As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier's conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate. Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning. Mr. Willier is not entitled to express such satisfaction, remain silent in the face of offers from the police for further contact with counsel, remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advice was inadequate because of its brevity. A s. 10(b) Charter breach cannot be founded upon an assertion of the inadequacy of Mr. Willier's legal advice. [Emphasis added]
43 Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(b) right to counsel. In no way did the police interfere with Mr. Willier's right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Cst. Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise.
46I accept the evidence of P.C. Tyler and I find he did ask Mr. Hansen if he wanted to find another lawyer in the phonebook or call duty counsel who was available and that it was Mr. Hansen's choice. I find Mr. Hansen made his own choice to call duty counsel and was not in any way pressured to speak to duty counsel by P.C. Tyler. Mr. Hansen's evidence did not disclose anything that was said or done by P.C. Tyler or P.C. Sheridan that could, in any way, be viewed as putting pressure on Mr. Hansen to call duty counsel. I find Mr. Hansen was not "funnelled" to duty counsel. He requested to speak to Peter Bawden and P.C. Tyler took reasonable steps to attempt to implement that request. Mr. Hansen made his own decision to speak to duty counsel, which he did for 16 minutes and expressed no complaint to anyone concerning the legal advice he received.
47I further find if Mr. Hansen wanted to wait for Mr. Bawden to return the messages left by P.C. Tyler he needed to be diligent and request this from the officer at the time, not during the trial of this matter. In R. v. Gentile, [2008] O.J. No. 3664 (SCJ, Durno J.) and R. v. Winterfield, 2010 ONSC 1288 (CanLII), [2010] O.J. No. 952 (SCJ, Durno J.). In Gentile, at para. 24, Justice Durno held:
Whether the police have provided a detainee with his or her rights to counsel requires a fact-specific determination in each case. The test is not whether the police could have done more to contact Mr. Locke. Clearly, they could have. Rather, the questions are whether the police provided the detainee with the information required to assist in exercising the rights to counsel and whether the police facilitated that contact, the implementational component, including whether they failed to "hold off" while the appellant was attempting to contact counsel.
48Mr. Hansen did not complain about the advice he received from duty counsel, either at the time or during his evidence on the Charter application. If he had a complaint about the advice he received he should have made it to either P.C. Tyler or to the qualified breath technician, P.C. Sheridan but he did not. Mr. Hansen never testified he misunderstood the advice provided by duty counsel and nothing done by P.C. Tyler in any way affected Mr. Hansen's ability to exercise his right to counsel. In my view Mr. Hansen's unexpressed desire to wait for Peter Bawden to call back cannot result in a breach of s. 10(b). (See R. v. Littleford, 2001 CanLII 8559 (ON CA), [2001] O.J. No. 2437 (C.A.); R. v. Zoghaib, [2006] O.J. No. 1023 (C.A.))
49On the totality of the evidence of this issue of whether P.C. Tyler "funnelled" Mr. Hansen to duty counsel I find for the reasons indicated above, he did not. The defence has not satisfied me on a balance of probabilities that Mr. Hansen's s. 10(b) Charter rights were violated respecting this issue.
50The second submission by Mr. Hansen is that his call with duty counsel was not in private and consequently his right to counsel was infringed.
51Mr. Hansen alleged he could hear officers joking and laughing outside of the room he was in when he was speaking to duty counsel. He was upset by this because to him this was a serious matter and they were in a great mood outside. He was asked whether he was able to hear specific words or anything said by any of the officers and he testified he could not. Yet despite this he concluded if he could hear them then they could hear him. He testified he spoke softly when he was on the phone speaking to the duty counsel. It is my view Mr. Hansen's evidence on this issue does not raise a realistic concern about whether his call to duty counsel was or not in private. Mr. Hansen agreed he did not complain to any police officer about his hearing voices outside the room when he was speaking to duty counsel. Further Mr. Hansen never said he even expressed his concern about his call with duty counsel being in private to the duty counsel, Ms. Brockman. Mr. Hansen testified he thought the officers were close to the room he was in but never looked out the window to see exactly where they were.
52P.C. Tyler was not asked by defence counsel whether he could hear Mr. Hansen speaking on the phone to duty counsel when Mr. Hansen was in the phone room with the door closed. He agreed it was possible police officers in the booking hall might be talking to each other. P.C. Tyler testified in-chief he believed he was in the booking area when Mr. Hansen was on the phone with duty counsel. P.C. Tyler testified he likely knew Mr. Hansen was finished because his practice is to get a detainee to knock on door when the call was finished. P.C. Tyler testified he has been in the private phone room with the door open and if door is open you would be able to hear what people outside were saying. The door to the phone room was closed when Mr. Hansen was talking to duty counsel. P.C. Tyler testified Mr. Hansen did not complain about hearing officers joking and laughing when he finished his call with duty counsel and was taken out of the phone room and turned over to P.C. Sheridan.
53In R. v. Playford, 1987 CanLII 125 (ON CA), [1987] O.J. No. 1107 (C.A.), Goodman J.A. stated as follows in para. 38:
…An accused who believes that his conversation will be overheard by the police will of course be substantially prejudiced in making use of his right to retain and instruct counsel. That does not mean, of course, that every accused who has such belief no matter how unreasonable, can assert that his right to retain and instruct counsel has been infringed.
54In R. v. Burley, 2004 CanLII 9437 (ON CA), [2004] O.J. No. 319 (C.A.), McMurtry C.J.O. held:
In my view, in considering whether there has been a s. 10(b) breach related to the absence of reasonable privacy in consulting counsel, one must examine the totality of the circumstances.
55As I have already found above, P.C. Tyler was polite and courteous to Mr. Hansen. Mr. Hanson made no complainants about any of his interactions with P.C. Tyler. Mr. Hansen spoke to duty counsel for 16 minutes, which he did not dispute in his evidence on the Charter application. At no time did Mr. Hansen ever complain or even suggest to any officer he was concerned about his privacy. The door to the room was closed. Mr. Hansen did not hear one specific word spoken for the entire 16 minutes he spoke to duty counsel. All he could say was he heard voices and made the assumption the officers were joking and laughing, which in my view leads to the reasonable inference the officers were not listening to Mr. Hansen's phone call, rather they were talking to each other and Mr. Hansen's call was in fact in private. On the totality of the evidence in this case, Mr. Hansen has not established on a balance of probabilities that he believed he was unable to retain and instruct counsel in private and I further find he has not established that such a belief would have been reasonably held in the circumstances. (See R. v. Procyck, [2018] O.J. No. 6416, at paras. 27-33 (OCJ, McInnes J.); R. v. Schaump, 2015 ONSC 3113 (CanLII), [2015] O.J. No. 2558, at paras. 25-31 (SCJ); R. v. Cairns, 2004 CanLII 17588 (ON CA), [2004] O.J. No. 210 (C.A.); and R. v. Kidder, [2015] O.J. No. 4075, at paras. 50-70 (OCJ).)
56Consequently, I find on the totality of the evidence there were no breaches or infringement of Mr. Hansen's s. 10 Charter rights and the two breath samples are admissible.
Judgment on the Trial Proper
Bolus Drinking Argument
57As indicated above, Amanda Lowe's Toxicologist Report, Exhibit 2, is based on four assumptions. The evidence of Mr. Hansen puts Ms. Lowe's third assumption into issue. The defence submitted if Mr. Hansen's evidence was accepted that he consumed two double vodka drinks within the 10 minutes before leaving the Moxies Restaurant on August 27, 2017, then the third assumption, "No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident" was not met and the Toxicologist's Report could not be relied upon to prove beyond a reasonable doubt that Mr. Hansen was over 80 at the time of driving.
Factual Background
58Mr. Hansen also separately testified on the trial proper. He was unable to say when he arrived at Moxies Restaurant but said he was not there for a very long time, perhaps 30 minutes. He testified he was consuming alcohol prior to his arrival at Moxies. In his evidence in-chief he was asked very specifically what alcohol he consumed "in the 10 minutes prior to leaving Moxies." He responded, "Two double shots of vodka," which he testified was "40 per cent bar rail" or typical vodka as he did not specify a brand. Mr. Hansen testified he was provided two "rocks glasses" with ice and each glass had two ounces of vodka, as a single shot is one ounce.
59He testified about a minute after doing the last shot he said his good-byes to his friends and he walked out. He said it only took him three minutes to three and a half minutes to drive from Moxies to where he was stopped by the police. There was very little traffic as it was a Sunday night. He did not include the time it took walking from the table in the restaurant to his car. He was asked how he would characterize himself as a drinker on the day he was arrested by the police and he testified he was a "heavy drinker" at that time.
60In cross-examination Mr. Hansen testified he was at a barbecue before going to Moxies but he consumed two beers there. According to Mr. Hansen's evidence, this was two hours before he went to Moxies. Mr. Hansen testified he went to the barbecue and to Moxies with the same friend. He testified he only had three double shots of vodka, in total, when he was at Moxies. On his evidence this would have been a total of six ounces. When he was asked about his evidence concerning three double shots of vodka when he had earlier said he had two double shots of vodka, Mr. Hansen said, "Two in the last 10 minutes." He testified the final two were "in very quick succession." The beer was "Stella."
61Mr. Hansen testified if someone at Moxies testified he did not consume any drinks after arriving at Moxies, they would be incorrect. When he was asked if what he was saying was he consumed two beers beforehand and then three double shots of vodka and this resulted in readings of more than double the legal limit, he responded, "If that's what the readings are, I'm not a toxicologist or a police officer."
62Mr. Hansen also testified if he had to guess how long he was at Moxies he would say 30 minutes. He did not think it could have been 45 minutes. He described having to wait for his drinks, so his estimated guess was 30 minutes. He testified he was there with his friend he went to the barbecue with and two other girls they met, one of the girl's names was Jaron but he did not recall the other girl's name.
63The barbecue was at Brock and Bayley in Pickering and there were lots of people there. When he was asked who he knew he said he went with his one buddy but he did not provide his name. He testified he did not know anyone else at the barbecue.
64Mr. Hansen testified his memory was just fine despite the alcohol he consumed or the passage of time.
65The Crown called Revanth Persaud as a reply witness. He was working on August 27, 2017, at Moxies as the bartender and after 10 p.m. he was also responsible for serving a section of tables in the bar area of the restaurant. He was trained in Smart Serve and as a bartender kept an eye on individuals he believed might have had too much to drink.
66On August 27, 2017, he dealt with Mr. Hansen who was sitting at a booth in the bar area, which he was responsible for serving. Mr. Persaud testified he believed Mr. Hansen was with another gentleman and two women. This was later in the evening when things were quiet in the restaurant. He recalled serving three tables in total at the time he was serving the booth Mr. Hansen was sitting at. The booths are on the outside of the room and surround the bar, which is in a rectangular shape. The booth Mr. Hansen was sitting at was right across from where Mr. Persaud was standing at the bar mixing drinks, the booth was very close to the bar and Mr. Persaud had a clear view of it.
67It was Mr. Persaud's evidence he served Mr. Hansen one drink, which sat on the table and Mr. Hansen did not really drink any of it. He could not recall what the drink was but it was clear. There was a point where Mr. Persaud pointed Mr. Hansen out to his manager, as Mr. Hansen appeared to be drowsy or tired as he was closing his eyes while sitting at the table with his friends. Mr. Persaud asked his manager to keep an eye on Mr. Hansen. Mr. Persaud testified he would not have served Mr. Hansen another alcoholic drink because of this concern. This was why he kept an eye on the table where Mr. Hansen was sitting and whether he was drinking his drink that Mr. Persaud had served shortly after they arrived.
68Mr. Persaud never personally saw Mr. Hansen consume any of the drink that he had served Mr. Hansen originally. He never saw him drinking anything. The drink he served Mr. Hansen remained in the middle of the table untouched. Mr. Persaud testified he kept an eye on the table to see if any of the others needed their drinks replenished. Mr. Hansen was at the booth for 40 minutes to an hour and a half.
69Mr. Hansen was wearing a white short-sleeved shirt and red pants. The Crown also called P.C. Sheridan, the qualified breath technician, to indicate what Mr. Hansen was wearing when he dealt with him, which was a white t-shirt and red pants.
70Mr. Persaud was the person who called 911 about a possible impaired driver operating a white pickup truck. His manager was with him when he made the call.
71Mr. Persaud saw his manager and Mr. Hansen come back into the restaurant at one point. Mr. Persaud's manager told him Mr. Hansen was not going to drive home but was going to take a cab. Mr. Hansen went back to the booth where his friends were. He remained there for another 20 minutes or less and then left the restaurant again. It was at the point Mr. Persaud and his manager saw Mr. Hansen driving the white pickup truck on Kingston Road that Mr. Persaud called 911.
72Mr. Persaud did not recall the time he saw Mr. Hansen finally leave Moxies. He called 911 shortly after he saw Mr. Hansen leave. Mr. Hansen arrived between 9 and 10:30 p.m. and would have left sometime between 10:30 p.m. and 12:00 midnight. In cross-examination Mr. Persaud testified he expected Mr. Hansen to be in court and he agreed with the defence lawyer, Mr. Price, Mr. Hanson was only person sitting beside Mr. Price. He only "kind of remembered Mr. Hansen's face." Mr. Persaud only visited the table two or three times but walked past it numerous times attending to the other two booths he was serving.
73Mr. Persaud was concerned about Mr. Hansen because of his drowsiness and this was why he brought him to the attention of his manager. He was concerned about Mr. Hansen's sobriety. He saw him close his eyes and he knows alcohol is a depressant. Mr. Persaud believed Mr. Hansen had been drinking previously before coming to Moxies. Mr. Persaud could not recall any of the drinks he served the table but he recalled serving multiple rounds to the other members of the table. Nobody was consuming shooters in shot glasses. Mr. Persaud could not say if Mr. Hansen was consuming other people's drinks at his table. The drinks the others at the table ordered were mixed drinks in glasses.
74Mr. Persaud agreed he told the 911 operator Mr. Hansen was drunk when he came in. Mr. Persaud's manager had spoken to Mr. Hansen. When Mr. Persaud saw Mr. Hansen leave the bar he told his manager. He did not tell Mr. Hansen to stop when he saw him leaving. He saw his manager speak with Mr. Hansen earlier and saw Mr. Hansen and his manager come back into the restaurant from outside the restaurant. He saw them in the hostess area, in the lobby. He believed Mr. Hansen returned to his table. Mr. Persaud was at the bar mixing drinks at this point for other tables.
75When Mr. Persaud saw Mr. Hansen leave the second time he went to his manager. The manager told Mr. Persaud that Mr. Hansen was supposed to be getting a cab. They both went to hostess area and saw Mr. Hansen in the white pickup truck driving on the road, going westbound. The manager knew what vehicle Mr. Hansen was driving from speaking to him outside the first time Mr. Hansen left the restaurant. They decided to call 911 and Mr. Persaud spoke on behalf of himself and the manager, this was why he referred to "We" in the 911 call. Mr. Persaud's manager had said to him that he did not believe Mr. Hansen was going to drive but then they saw him driving on the roadway in front of the restaurant.
76Mr. Persaud testified in cross-examination he only served Mr. Hansen one drink, this was something he was very clear about. It was his job to know this.
Position of the Parties
77It was Mr. Price's submission that the evidence called in reply did not in any way affect Mr. Hansen's evidence as to his consumption of alcohol at Moxies. I should not accept Mr. Persaud's evidence and if I accept Mr. Hansen's evidence or it causes me to have a reasonable doubt, I must acquit Mr. Hansen.
78The Crown submitted that I should not accept Mr. Hansen's evidence of his consumption of alcohol just before he left Moxies because of the evidence provided by Mr. Persaud. Mr. Fitzgerald submitted the Crown had proven the lack of bolus drinking by Mr. Hansen. Further, Mr. Hansen's evidence was not credible or reliable and did not accord with common sense as people do not consume significant amounts of alcohol just before they get into their car to drive.
Applicable Legal Principles and Analysis
79In R. v. Grosse, 1996 CanLII 6643 (ON CA), [1996] O.J. No. 1840 (C.A.), the Court of Appeal held that where an expert's opinion as the blood-alcohol concentration (BAC) was dependent upon the lack of "bolus drinking," the Crown is required to prove the lack of bolus drinking. More recently in R. v. Paszczenko; R. v. Lima, 2010 ONCA 615 (CanLII), [2010] O.J. No. 3974 (C.A.) at paras. 27 to 30, the Court explained the dilemma for the Crown:
27 "Bolus drinking" is generally meant to describe the consumption of large quantities of alcohol immediately or shortly before driving: see Grosse, at p. 788; R. v. Hall (2007), 2007 ONCA 8 (CanLII), 83 O.R. (3d) 641 (C.A.), at para. 14. See also Phillips [1] at pp. 158-162, for a description of the "relatively rare" phenomenon, although not by the "no bolus drinking" name.
28 In establishing that an accused has not engaged in bolus drinking, the Crown is in the unenviable position of having to prove a negative. But how does it meet that onus in circumstances where - as is likely in many cases - it has no statement or evidence from the accused as to his or her drinking pattern at the relevant time and no other witnesses or evidence to shed any light on that issue? That is the dilemma posed, principally, by the Lima appeal.
29 At one level, the answer is straightforward: the Crown need do very little. The toxicologist's report is premised - amongst other things - on there being no bolus drinking. In the absence of something on the record to suggest the contrary, on what basis could a trier of fact conclude there was bolus drinking? This Court has answered the question posed by concluding that triers of fact may resort to a common sense inference in such circumstances, namely, that people do not normally ingest large amounts of alcohol just prior to, or while, driving: see Grosse, Hall, and R. v. Bulman, 2007 ONCA 169. As noted above, bolus drinking has been said to be a "relatively rare" phenomenon: Phillips, at pp. 158-162. "No bolus drinking" is therefore largely a matter of common knowledge and common sense about how people behave.
30 In Grosse, at p. 792, the Court said:
The trial judge was also entitled to consider that it was inherently unlikely that the respondent, in the space of less than 30 minutes, before embarking on his trip home to Brampton would consume the equivalent of nine ounces of alcohol. This was not a matter of taking judicial notice of drinking patterns but merely applying common sense as to how ordinary people behave.
31 And in Bulman and Hall, respectively, Justices Gillese and LaForme observed:
Bulman, para. 13:
The jury was aware that [the toxicologist's] expert testimony was dependent on an underlying assumption that had to be proven by the Crown - namely, that the appellant had not consumed a large quantity of alcohol shortly before driving ("bolus drinking"). Whether [the expert's] underlying assumption was proven was a question of fact for the jury to decide. In making this finding, the jurors were entitled to rely upon their common sense, and to draw inferences about how normal people behave. A reasonable inference is that normal people do not consume large quantities of alcohol shortly before, or while, driving.
Hall, para. 20:
There can be no doubt that the trial judge rejected his evidence on this issue entirely [i.e., the evidence of a defence witness to the effect that the accused had consumed half a glass of beer quickly just before leaving a restaurant]. Having done so, there was no evidence whatsoever of bolus drinking, nor was there any other evidence to undermine the common-sense inference of drinking at a normal pace, on which the trial judge was therefore entitled to rely.
80These cases were cited with approval in the Supreme Court of Canada in R. v. St.-Onge Lamoureux, 2012 SCC 57 (CanLII), [2012] 3 S.C.R. 187, at para. 95:
95 This conclusion can best be understood by considering the situation that arises in a case in which the prosecution cannot rely on the presumption of identity established in s. 258(1)(d.1), where, for example, more than two hours passed between the time of the alleged offence and that of the test. In such a case, an expert will take the blood alcohol level of the accused at the time of the test and use it to try to calculate retroactively what that level would have been at the time when the accused was pulled over. To do this, the expert must make certain factual assumptions, for example, that the accused did not consume a large quantity of alcohol within approximately one half hour before the alleged offence (in other words, that a portion of the alcohol the accused consumed had already been absorbed when he or she was pulled over), or between the time when he or she was pulled over and that of the test. If nothing in the evidence makes it possible to cast doubt on the expert's assumptions, the court may make a deduction, based on common sense, that a person will not generally ingest large quantities of alcohol immediately before driving or while driving, or after being pulled over by the police (R. v. Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424; R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785; R. v. Hall, 2007 ONCA 8, 83 O.R. (3d) 641; R. v. Bulman, 2007 ONCA 169, 221 O.A.C. 210).
81Given the evidence of Mr. Hansen, the issue of "bolus drinking" has been clearly put in issue. This is not one of those "bolus drinking" cases where the accused has not testified as to his consumption of alcohol just before getting into his motor vehicle and driving and the defence is suggesting there is a possibility of "bolus drinking." In this case Mr. Hansen has taken the stand and testified as to what alcohol he consumed. If I accept the evidence of Mr. Hansen or if I reject his evidence but I still have a reasonable doubt because of it, I must acquit Mr. Hansen because the toxicologist's report would not provide evidence that would establish beyond a reasonable doubt Mr. Hansen's BAC was over 80 mg of alcohol in 100 ml of blood.
82As in any criminal case, Mr. Hansen is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr (2000), 2000 SCC 40 (CanLII), 147 C.C.C. (3d) 449 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.
83I recognize that the rule of reasonable doubt applies to the issue of credibility. Mr. Hansen testified and indicated he had consumed four ounces of alcohol within 10 minutes of driving. There was no onus on him to testify and he does not have to prove his innocence. The onus remains on the Crown to prove Mr. Hansen's guilt beyond a reasonable doubt throughout this trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. Accordingly, in this case I must acquit Mr. Hansen if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole on the issue of "bolus drinking." If I reject his evidence respecting the issue of "bolus drinking", or it does not leave me with a reasonable doubt on that issue, I must still go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.
84There are a number of reasons why I have concluded Mr. Hansen's evidence should be rejected and why it did not leave me with a reasonable doubt. Considering the whole of the evidence on this issue I did not find Mr. Hansen's evidence to be credible or reliable.
1. The only thing Mr. Hansen was sure about in his evidence was that he consumed two double shots of vodka within the 10 minutes before he left Moxies. He initially did not describe consuming any other alcohol at Moxies until he was cross-examined when he testified he had another double shot of vodka on the rocks earlier, although he did not know when he consumed it. He did not know when he arrived at Moxies or when he left. He did not provide the name of his friend that he had been at the barbecue with and then at Moxies. Mr. Hansen's evidence was also in conflict with Mr. Persaud's evidence that Mr. Hansen only ordered one drink and did not consume much, if any, of it. I will address these inconsistencies later.
2. Mr. Hansen's evidence concerning his total consumption of alcoholic beverages on the evening of August 27, 2017, does not explain his breath readings of 180 mg alcohol/100ml blood and 200 mg alcohol/100ml blood, more than twice the legal limit, that were obtained at 1:30 am and 1:53 a.m.; namely, he testified he only consumed 2 beers two hours before he arrived at Moxies and a total of 3 double shots of vodka (6 ounces) over the 30 minutes he testified he was at Moxies. I found Mr. Hansen's response to the Crown's question on this issue to be completely evasive. He testified he did not know what the readings were and he was not a toxicologist or a police officer. I have no doubt Mr. Hansen was fully aware that his breath readings were more than double the legal limit given his insistence he did not have any memory issues because, as he testified, this was a very serious matter for him.
3. Mr. Hansen's evidence was in direct conflict and inconsistent with Mr. Persaud's evidence. Mr. Persaud testified he served Mr. Hansen only one drink, a clear beverage, which remained in the centre of the table untouched by Mr. Hansen for the time he was in Moxies. I found Mr. Persaud to be a credible and reliable witness who did not attempt to embellish his evidence and was not evasive in the answers he provided. He was certain about the one drink he served Mr. Hansen because he became concerned about Mr. Hansen's sobriety during the time Mr. Hansen was in the restaurant. He had observed Mr. Hansen to be tired and drowsy to the point where Mr. Hansen was having difficulty keeping his eyes open, even though he was with his buddy who he went to the barbecue with and two women they had met, either at the barbecue or at Moxies. This was something he had been trained through Smart Serve to watch for as a bartender. Further, he advised his manager of his concern and requested the manager also keep an eye on Mr. Hansen when he was serving other tables. I found Mr. Persaud's evidence to be credible as to why he was paying particular attention to Mr. Hansen's consumption of alcohol. Mr. Hansen's evidence concerning his consumption of alcohol was not detailed in any way in terms of times of consumption, how long he was at the barbecue, when he consumed the two beer and when he arrived at Moxies.
4. Mr. Hansen described consuming 2 double shots of vodka on the rocks in the 10 minutes prior to his leaving Moxies. It was his evidence he ordered these 2 double shots just before he left. He provided no explanation for ordering two double shots of vodka in two rocks glasses when, on his evidence when he was asked what other alcoholic drinks he had consumed, he had previously only ordered a single double shot of vodka. This conduct is both contrived and unconvincing. In my view this type of drinking behaviour does not accord with common sense or with how people normally conduct themselves when they are about to get in their motor vehicle to drive home, particularly when they have already been consuming alcohol. Further, given Mr. Hansen's evidence as to how much and when he had consumed alcohol throughout the entire evening, his evidence of consuming two double shots of vodka in the 10 minutes just before he knew he was leaving was unbelievable and unworthy of belief. In my view there was no air of reality to his evidence. He had already ordered one double shot of vodka, according to his evidence in cross-examination, when he first sat down in Moxies. He provided no explanation for why he ordered two double shots within 10 minutes of his leaving to drive home. The time he left Moxies was not just prior to last call at the restaurant, which might have provided some sort of an explanation for his drinking behaviour. It is my view, his drinking pattern on August 27, 2017, according to what he testified he consumed, did not even support his assertion that he was a "heavy drinker."
5. Mr. Hansen described consuming the 2 double shots of vodka and then immediately leaving Moxies. He did not describe leaving the restaurant, speaking to the manager outside and then returning to the restaurant with the manager. Mr. Persaud's explanation for why he called 911 after Mr. Hansen left the second time and was seen driving westbound on Kingston Road accords with common sense and in my view confirms Mr. Persaud's earlier concern about Mr. Hansen's sobriety and why he requested his manager also observe Mr. Hansen. Of course, my assessment of credibility should not and cannot devolve into a credibility contest between Mr. Hansen and Mr. Persaud. However, as I have outlined above and considering the totality of the evidence, Mr. Hansen's evidence on this issue does not accord with common sense or human experience as to the normal manner of drinking. It was suggested to Mr. Persaud he did not know if Mr. Hansen had consumed some of the drinks ordered by his friends, to which he agreed. This demonstrates Mr. Persaud's fairness in answering questions in cross-examination but the suggestion is also contrary to Mr. Hansen's own evidence of his ordering 2 double shots of vodka from the server and then consuming them in the 10 minutes just before he left.
6. As I indicated I found Mr. Persaud's evidence to be persuasive and convincing, his attention was drawn to Mr. Hansen because he was drowsy and tired and was closing his eyes, which he testified were signs he had been taught to look out for. He spoke to his manager to also keep an eye on Mr. Hansen. Mr. Persaud's evidence was internally consistent. He saw the manager returning from outside with Mr. Hansen. His manager told him Mr. Hansen would not be driving home but would call a cab. This does not go in for the truth but was admissible to go to Mr. Persaud's state of mind and provided context to Mr. Persaud's decision to call 911 when Mr. Hansen left the restaurant the second time. When Mr. Persaud and the manager saw Mr. Hansen drive by the restaurant in his white pickup, Mr. Persaud called 911. All of these pieces of evidence provide support for Mr. Persaud calling 911 and corroborate his evidence of being very clear he only served only one "clear" drink to Mr. Hansen that sat untouched by Mr. Hansen for the time he was at Moxies. I find Mr. Persaud was a credible and reliable witness.
7. For all of the reasons indicated above I do not accept Mr. Hansen's evidence, which in my view was a little too convenient in terms of providing a "bolus drinking" defence. The drinking pattern described by Mr. Hansen in the 10 minutes before he left was completely inconsistent with the earlier drinking pattern he only described because he was asked questions in cross-examination about. His evidence amounts to a bald assertion of "bolus drinking," which was self-serving and uncorroborated. In addition, it did not leave me in a state of reasonable doubt as to whether Mr. Hansen did engage in "bolus drinking."
85Consequently, I rely upon the common sense inference that people normally do not engage in drinking excessive amounts of alcohol just before they are planning to drive home. I find Mr. Hansen did not consume 2 double shots of vodka in the 10 minutes prior to leaving Moxies. As a result, I find the assumptions relied upon by the CFS toxicologist, Amanda Lowe, have been established and that Mr. Hansen's breath readings at the time of driving would have been between 180 and 220 mg of alcohol/100ml of blood. The Crown has proven the charge beyond a reasonable doubt and there will be a conviction registered on the charge of operating a motor vehicle with greater than 80 mg of alcohol/100ml of blood.
Released: January 3, 2019
Signed: Justice Peter C. West
1(1988), 1988 CanLII 198 (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.).