R. v. Fontaine, 2021 ONCJ 36

Court and Parties

DATE: January 20, 2021 Information No.: 19 - 0165

ONTARIO COURT OF JUSTICE (at Burlington, Ontario)

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

JOSHUA FONTAINE

Ms. M. McGuigan for the Crown Mr. P. Lindsay for Joshua Fontaine

Reasons for Judgment on Charter Applications

NADEL, J.:

Introduction

1On December 13, 2018 after failing an ASD test at the scene of a single vehicle accident, Mr. Fontaine blew over 80 into an approved instrument and was charged with that offence. Alleging breaches of his s. 7 and s. 10(b) rights Mr. Fontaine applies to have his breath test results excluded.

The Fact Pattern

2While driving eastbound on Highway 401 in a snow storm, east of Guelph Line in Milton, Mr. Fontaine lost control of his vehicle. He spun out and collided with the concrete median on his left. Mr. Sandhu, a following driver, called 9-1-1 and then spoke with Mr. Fontaine. A tow truck driver responded almost immediately. The tow truck driver, Mr. Jarrar, hooked-up Mr. Fontaine’s vehicle and pulled it to the right shoulder, where everyone waited for the police to attend. Because of the storm, that took a very long time. When an officer arrived, he administered an ASD test to Mr. Fontaine, who failed the test. As a result, Mr. Fontaine was arrested for being over 80. He subsequently blew into an approved instrument resulting in readings well over the legal limit.

The Charter Breaches Alleged

3Two breach allegations were pursued in a blended Haas voir dire. First, Mr. Fontaine says that he was not given medical attention and that his s. 7 rights were thus violated. Second, Mr. Fontaine says that he invoked his right to counsel but that it was not implemented as invoked. Rather, he was defaulted to duty counsel so that his rights under s. 10 were violated.

4The evidence and the submissions expand upon these two Charter complaints.

A Review of the Evidence ¹

The Evidence of Hardik Singh Sandhu

5Mr. Sandhu was proceeding behind Mr. Fontaine at about 12:30 a.m. and saw Mr. Fontaine hit a cement guardrail. The collision caused substantial damage to the right side of Mr. Fontaine’s car.

6Mr. Sandhu stayed in his car and called 9-1-1. He saw a woman from another car check on Mr. Fontaine, who was still in his vehicle. The 9-1-1 call-taker told him that they already had a call about this incident and that someone was on their way.

7Mr. Sandhu approached Mr. Fontaine’s car to make sure that Mr. Fontaine was okay.

8Mr. Fontaine told Mr. Sandhu that he was from Bolton, that he was coming from a party in Cambridge and that his vehicle’s steering mechanism had failed. At some point during their conversation Mr. Fontaine got out of his car.

9Mr. Sandhu said that he had called 9-1-1 and that a tow truck would be there soon. Mr. Fontaine replied that he didn’t need a tow because he was a member of the C.A.A. Mr. Sandhu said that an ambulance responded although he was unsure of the order in which a tow truck, the police, an ambulance and a fire truck arrived. Mr. Sandhu was uncertain of whether the ambulance people spoke to Mr. Fontaine.

10Mr. Sandhu did not recall Mr. Fontaine having any injuries.

11Mr. Sandhu, a non-drinker, assumed that Mr. Fontaine was probably drunk. He described Mr. Fontaine’s eyes as being red and that Mr. Fontaine had a little smell about him. Mr. Sandhu told the responding police officer that he thought Mr. Fontaine had been consuming alcohol.

12When the tow truck arrived Mr. Fontaine sat in it.

13Several Mr. Sandhu’s recollections were wrong, including how long it took for the police to arrive, the order of the arrival of some of the responders, where Mr. Fontaine’s vehicle came to rest and how Mr. Fontaine’s vehicle was moved.

The Evidence of Jareq Jarrar

14Mr. Jarrar was in his tow-truck at Guelph Line and the 401 monitoring police transmissions. He heard of Mr. Fontaine’s accident and arrived at the scene at 12:40 a.m., within a minute of hearing the police transmission about it.

15He found Mr. Fontaine’s car was in the middle of the eastbound lanes of Highway 401. It had sustained substantial damage. He spoke to Mr. Fontaine to determine if he was injured because Mr. Jarrar was not permitted to move any vehicle if there were any personal injuries.

16He saw that Mr. Fontaine was not injured but as soon as he spoke to him, because of the condition of his eyes and the smell of alcohol coming from him, he realized that Mr. Fontaine had been drinking.

17Mr. Jarrar told a police call-taker that there were no personal injuries, but that alcohol was involved in the accident. The police call-taker gave Mr. Jarrar permission to hook-up Mr. Fontaine’s car and move it onto the left shoulder to await the arrival of the police.

18It took the police about two hours to arrive. During that time, he waited in his tow-truck with Mr. Fontaine.

19Mr. Fontaine persistently and annoyingly implored Mr. Jarrar to leave the accident scene, offering him money to do so. Mr. Fontaine kept on saying things like: “Oh, come on bro, come on bro, please bro, let’s just get out of here bro, I’ll take care of you man.”

20Guelph Line at Highway 401 borders the communities of Cambridge and Milton. Mr. Fontaine thought, wrongly, that the next exit east on the 401 was the exit to Woodbridge. In fact, the exit to Woodbridge was 45 minutes away. The next exit east was Highway No. 25. Mr. Jarrar did not correct Mr. Fontaine and just let him talk.

21Mr. Jarrar could not remember who else responded to the accident scene, other than a police officer.

The Evidence of the Arresting Officer, Constable Aldridge Miranda

22Miranda’s shift began on December 12, 2018. He obtained an ASD and tested it. He testified that, “first I did the cal check as well as an accuracy check, and then I would do a self breath test on myself.” In fact, as he clarified, he did not do the calibration check or the accuracy check. Rather, he recorded that another qualified technician had performed those steps and then he did a self-test. ²

23He became aware of a call for service to Mr. Fontaine’s accident at 12:48 a.m. on December 13, 2018, when he was 50 kilometres away and involved in another investigation. He left to go to Mr. Fontaine’s location at 1:50 a.m. arriving there at 2:20 a.m. Mr. Fontaine’s car had suffered extensive damage. The front of the car was demolished. There was damage to its right side and the rear of the right side, too.

24He spoke first to Mr. Sandhu, who had called 9-1-1 and learned that: (i) Mr. Fontaine was the driver of the damaged vehicle; (ii) Mr. Fontaine had hit the guardrail twice; (iii) Mr. Sandhu smelled alcohol on Mr. Fontaine’s breath; and, (iv) Mr. Sandhu had asked Mr. Fontaine if he was okay because Mr. Sandhu wanted to make sure that he was.

25Miranda then spoke to Mr. Fontaine to ask him if he was okay and Mr. Fontaine replied, “Yes, yes I’m okay. Yes, I’m okay, just shaken up from the crash”. Seeing no injuries on Mr. Fontaine, Miranda believed that he was okay. Mr. Fontaine did not complain of any injuries at that time.

26Upon speaking to Mr. Fontaine, Miranda formed a reasonable suspicion that Mr. Fontaine had alcohol in his body. Miranda asked him if he had consumed any alcoholic beverages and Mr. Fontaine said, “No, I had one shot of codeine for my sore throat. I was on my way home from Cambridge. I was at a friend’s house.”

27Miranda made an ASD demand, which Mr. Fontaine complied with, resulting in a fail. So, Miranda arrested Mr. Fontaine for having over 80 milligrams of alcohol in 100 millilitres of blood.

28In reading Mr. Fontaine his rights to counsel Miranda said: “I am arresting you for impaired over 80 (sic) …”

29In answer to the question, “Do you understand?” Mr. Fontaine answered, “Yes, I have nothing to hide.”

30In answer to the question, “Do you wish to call a lawyer now?” Mr. Fontaine answered, “I will call duty.” Miranda understood that Mr. Fontaine wanted to speak to duty counsel. These questions and answers were taken down verbatim by Miranda and constitutes the entirety of Mr. Fontaine’s responses.

31In cross-examination, Mr. Lindsay, suggested to Miranda that in answering the question, “Do you wish to call a lawyer now?”, Mr. Fontaine effectively said that he wanted to call his father in order to contact counsel but that Miranda suggested, as it was late at night, that Mr. Fontaine would be better off calling duty counsel. Miranda did not accept that suggestion, not even as a possibility.

32At the Port Credit detachment, after Mr. Fontaine’s testing began, Miranda typed out a narrative of his investigation. He copied and pasted this narrative into three different reports: (i) an arrest report; (ii) a general report; and, (iii) a crown brief synopsis. In the narrative that he composed he wrote, inter alia,

“At 2:25 am breath demand was read. All were understood and at this time he did wish to speak to a lawyer or duty counsel at Port Credit detachment. He was subsequently transported to the Port Credit Detachment for his conversation with duty counsel and breath tests.”

33Miranda agreed in cross-examination that “lawyer” meant a private lawyer. Miranda further agreed that the report that he had written meant that Mr. Fontaine wanted to speak to a private lawyer or duty counsel. Given the words that Miranda had composed and typed, Mr. Lindsay suggested to Miranda that at the scene, “it wasn’t yet clear at that point whether he wanted to speak to a private lawyer or duty counsel.”

34Despite this apparent inconsistency between what Miranda had noted verbatim in his duty book with what he wrote and pasted into subsequent reports, Miranda’s testified that Mr. Fontaine had asked to speak to duty counsel.

35On being pressed about his reports and their inconsistency with his testimony Miranda said: (i) that he should not have put in the word lawyer; (ii) that he had no explanation for why he typed the wording in the fashion that he did; and, (iii) that he agreed that it looked on paper as if there was some uncertainty as to who Mr. Fontaine wanted to speak to. But Miranda was insistent and consistent in his testimony that he took Mr. Fontaine’s answers to the rights to counsel questions down verbatim. And, that was why, when they got to the station, he contacted duty counsel as quickly as possible.

36Mr. Fontaine’s evidence on this and other issues will be précised later.

37At the scene, after completing the informational component of Mr. Fontaine’s rights to counsel, Miranda read Mr. Fontaine a primary police caution, and in doing so said, “You are charged or will be charged with impaired over 80 (sic) …”

38Miranda left the accident scene at 2:28 a.m. and took Mr. Fontaine to the Port Credit detachment of the OPP. He had contacted Acting Sergeant Souza, a qualified technician, to let her know that he was bringing in an arrestee for “impaired over 80” (sic) so she could set up for the testing. They arrived at 3:01 a.m.

39On the trip to Port Credit Mr. Fontaine was talkative, cooperative and he coughed a lot and very hard. He told Miranda that he was sick and had a bad cough.

40While being booked in, Mr. Fontaine complained of no injuries or any medical conditions other than his cough in Miranda’s presence.

41During the booking process Miranda did not ask Mr. Fontaine about duty counsel. The only discussion that occurred between Miranda and Mr. Fontaine about counsel was when Miranda advised Mr. Fontaine about his rights to counsel at the scene of the arrest.

42While the booking process was occurring Miranda left to go upstairs to the constables’ phone area to contact duty counsel. At 3:10 a.m. he contacted a duty counsel named Murphy.

43By 3:11 a.m. Miranda had patched-in Murphy to Mr. Fontaine who had been placed in the private phone room close to the station’s cell area. However, that initial call somehow disconnected and Mr. Fontaine opened the room’s door to let Miranda know that nobody was on the line.

44So, at 3:13 a.m. Miranda ran back upstairs and called duty counsel again. This time he reached Mr. Pete Gakiri. Mr. Fontaine spoke to Mr. Gakiri from 3:14 a.m. until 3:25 a.m. when Mr. Fontaine hung up the pone and knocked on the door to say that he was done.

45When Mr. Fontaine came out of the phone room after his consultation with duty counsel, Miranda asked him if he was satisfied with the conversation that he had just had with duty counsel and Mr. Fontaine said that he was. While Miranda noted this response from Mr. Fontaine in his duty book, he did not note his question and Mr. Fontaine’s answer down verbatim. He testified that he had asked Mr. Fontaine, “Are you satisfied with the conversation with duty counsel?” and that Mr. Fontaine had replied, “yes”.

46Miranda did not accept Mr. Lindsey’s suggestion that “it may well be from [the discussion that Sgt. Souza had with Mr. Fontaine about rights to counsel in the breath room] that [Miranda] formed the opinion [Mr. Fontaine] was satisfied with duty counsel. Fair?” Miranda confirmed, again, that it was as soon as Mr. Fontaine walked out of the phone room that he asked, and Mr. Fontaine confirmed that Mr. Fontaine was satisfied with his conversation with duty counsel.

47Mr. Fontaine never told Miranda that he needed any medical care prior to being turned over to Sgt. Souza.

48Firefighters were on scene at the accident site before Miranda arrived. No firefighter approached Miranda to say that anyone was injured in the accident. No one, not any firefighter, the tow-truck driver or Mr. Fontaine asked Miranda to call an ambulance.

49Nonetheless, Miranda agreed that upon entering the breath room, albeit off camera, Sgt. Souza asks Mr. Fontaine,” Is that from the seatbelt?” and that Mr. Fontaine responds, “Yeah, I got smashed hard.” Miranda agreed that that was some indication that Mr. Fontaine had some injuries at that point, and that he could see that Mr. Fontaine was in some discomfort.

50Miranda agreed that at that point his training dictated that he ought to have asked Mr. Fontaine if he wanted any medical attention and he further agreed that he did not follow his training and do so. In addition, the following exchange took place between Mr. Lindsay and Miranda:

Q: And he did tell you at the side of the road that he was okay but he was also shaken up form the accident, fair? A: Yes, right. Q: Sometimes people may not be the – the best judge themselves after they’ve been in automobile accident (sic) of how they’re doing, fair? A: Yes Q: That’s why you’re also trained to ask at the side of the road whether they want any medical attention, fair? A: Yes, that’s right. Q: And you did not do that as well as the side of the road, fair enough? A: Yes, and the reason – I did observe that there were no injuries, like I said before. There was nothing visible that I’d see, no bruising, no cuts, scar or anything like that, and I asked him when (sic) he was okay – if he was okay, and that’s when he started talking to me – said he was okay. Q: Well he also said he was shaken up from the accident … A: That’s … Q: … fair? Q: … right, yes. Q: You know from your training surely that there are lots of injuries that may not be readily apparent, fair? A: Yes. Q: Concussion for example. A: Yes. Q: And so, you can’t simply rely on the fact that you don’t see him bleeding or having scars, whatever that has to do with it. You’re trained to ask him whether he wants any medical attention, fair? A: Yes. Q: You should’ve done that at the side of the road, and you did not do that at the side of the road, fair enough? A: Yes.

The Evidence of the Qualified Technician, Acting Sergeant Rosana Souza

51Acting Sergeant Souza is a qualified technician. At 2:28 a.m. on December 13, 2018 she was dispatched to the OPP Port Credit detachment to set up for a breath test. She arrived at 2:44 a.m.

52She booked Mr. Fontaine into the station by filling out a “prisoner custody report.” Mr. Fontaine, while cuffed from behind, walked into the booking area without difficulty. He smelled strongly of alcohol and was polite and cooperative.

53She heard Miranda ask Mr. Fontaine if he wished to speak to a lawyer or duty counsel and Mr. Fontaine responded, “duty counsel.” So, she told Miranda to go upstairs and make the call without delay and she would complete the lodging process. She made no notation of this question and answer.

54Subsequently, she repeated the same recollection in different words; viz. as Miranda was removing the cuffs he said, “You want to speak to duty counsel because you don’t have your own lawyer correct?” At still another point, this time in cross-examination, she repeated the recollection differently again: viz, “So do you still want to talk to duty counsel?”

55On being directed to the variations in her answers she replied that she was testifying about “the direction of the question, not the exact words.”

56She agreed with Mr. Lindsay that she had not written down this question or answer and that she was testifying to events that occurred two years earlier. She also agreed that she really did not remember what the exact question was. However, she disagreed with his suggestion that she did not remember what his answer was. Souza testified that Mr. Fontaine’s answer was “duty counsel.”

57During this sequence of cross-examination, Souza explained that she “was in charge of the platoon at that time. It was [her] obligation to make sure that things were running smoothly and that rights were not violated. Constable Miranda had to go make a phone call, and that’s why [she] said, ‘I will do the booking for you’ because usually it’s the arresting officer that will do that.”

58In re-examination, Ms. McGuigan drew Souza’s attention to a note that Souza had made in her “alcohol influence report” where, at 3:07 a.m., she wrote that she “started lodging [Mr. Fontaine’s] property while P.C. Miranda went upstairs to call duty counsel as per [Mr. Fontaine’s] request.”

59Souza also testified that when Mr. Fontaine came out of the phone room Miranda asked him if he was satisfied with his conversation with duty counsel and that Mr. Fontaine said that he was. That was the gist of their exchange.

60In addition to questions about rights to counsel, Mr. Lindsay pursued two other themes during his cross-examinations of both of Miranda and Souza. The first theme was the fact that neither Miranda nor Souza ever asked Mr. Fontaine if he wanted medical attention.

61Regarding the s.7 complaint, Souza acknowledged that despite knowing that Mr. Fontaine had been involved in an accident she never asked him if he wanted medical attention. That said, throughout her testimony she was consistent in maintaining that she did not believe that he required any medical attention. Her evidence was that if she felt that he did, she would have called an ambulance for him immediately.

62The state of Mr. Fontaine’s well-being is central to the defence application under s. 7. A portion of Mr. Lindsay’s cross-examination of Souza dealt with whether she asked Mr. Fontaine, at booking, if he had any injuries. Souza’s answers to that question were inconsistent, as detailed in the following paragraphs.

63Under the heading “apparent mental state at time of arrest/lodging” Souza selected “healthy” from various options available. While Mr. Fontaine also told Souza that he had bronchitis and was taking medication for it, she chose “healthy” as referring to his mental state even though she saw that he had a cough, including phlegm, and even though she believed that he had bronchitis.

64The booking questionnaire included a section titled “Medical Information” which contained sub-sections. Under the sub-heading “Suspected substance consumption” she X’d in alcohol because she smelled it on his breath. She also noted that he had no “medical alert” concerns. She further noted, as he had told her, that he had consumed some codeine between 4:30 and 5:00 p.m. as prescribed for his bronchitis.

65Finally, under the sub-section titled:

“Prisoner is ill/injured (visible/alleged/complaint)”

Souza circled the word ill and X’d in the box “yes” and noted “bronchitis” in the space left for description.

66When Ms. McGuigan asked Souza, “What about the ‘injured’ part of that?” the q & a proceeded as follows:

Q: What about the ‘injured’ part of that? A: He didn’t have any injuries as far as I could tell and he didn’t mention any injuries? Q: Did you ask him? A: Yes. And sometimes people complain about handcuffs and things like that, but he didn’t.

67In cross-examination Souza conceded that at booking she only asked Mr. Fontaine if he had any medical conditions and she accepted Mr. Lindsay’s suggestion that, “The reality is at the booking you never asked [Mr. Fontaine] if he had any injuries.”

68Continuing on, Mr. Lindsay’s questions and Souza’s answers proceed:

Q: All right. And so when you said earlier, ‘He did not have any injuries. I asked him” – you said that earlier in examination in-chief. What period are you talking about when you say that? A: During lodging. Q: ‘He did not have any injuries. I asked him.’ You just said you didn’t ask him at lodging if he had injuries, right? A: Sir, when I was doing the lodging, I did not ask him anything about an injuries, so at the time I did not know he had any injuries. In the breath room when I asked him the questions he does answer – the injuries that he had. He listed them. Q: I got a very clear note of what your evidence was in-chief, and you said, ‘He did not have any injuries. I asked him.’ Do you acknowledge giving that evidence in-chief? A: If you say so, yes.

69A playback of a portion of Souza’s evidence then occurred and Mr. Lindsay continued:

Q: So you did say, “He did not have any injuries. I asked.” Did you hear yourself say that? A: Yes. Q: What time period were you referring to as to when you asked him about injuries and he said he didn’t have any injuries? A: During lodging. Q: Okay, because earlier, not 10 minutes ago, I ask you about whether you asked him if he had injuries in lodging and you said you ever asked him that. You … A: So I was … Q: … recall … A: … wrong. Yes, I recall, and I was wrong.

70The booking form had a spot for documenting any requirement for transporting the prisoner to a medical facility and Souza X’d in “No” because in her opinion Mr. Fontaine did not require transportation to a medial facility. That was her judgment. She did not ask Mr. Fontaine what his opinion would be in answer to that question. She testified that if his presentation caused her to think otherwise, she would have contacted an ambulance to transport Mr. Fontaine, but that was not the case. ³

71Indeed, on several occasions Souza testified that if she felt that Mr. Fontaine’s presentation changed and that she believed that he required medical attention she would have stopped what they were doing and gotten it for him. She never called for an ambulance for Mr. Fontaine because she did not think that he needed medical attention. She maintained this opinion despite Mr. Fontaine’s description of the accident in which he said that he hit his head on the interior of his car.

72Mr. Fontaine never stated or complained that he had a headache and he walked normally without any balance issues. He never requested any medical attention and she did not see that he had any need for medical attention. If she had seen any such need, for example, if he was sweating or vomited or fainted or lost consciousness she would have done so; but Mr. Fontaine exhibited none of those behaviours.

73The breath testing procedures were recorded and that recording was exhibited. ⁴ That recording demonstrates to my satisfaction that Mr. Fontaine showed no obvious signs of impairment by alcohol, neither the slurring of his speech, nor any signs of gross or even fine motor control impairment. Mr. Fontaine’s walking was normal, and he demonstrated no abnormal balance issues notwithstanding that everyone who spoke to him after the collision smelled alcohol on his breath.

74It was only upon entering the breath testing room that Souza learned from Mr. Fontaine that he had a sore hip and neck. Off camera while walking into the breath room Souza sees Mr. Fontaine doing something that causes her to ask him, “Is that from the seatbelt?” And he replies, “Ya I got smashed hard.”

75The most significant sequence for the s. 7 complaint commences at about 3:48:27 a.m. during Souza’s questioning of Mr. Fontaine between the tests.

Q: Do you have any injuries? A: Right now yeah. Q: Is that on your? A: On my hip. Q: On your right side? A: On my hip, my neck. Um, I’m sure I’m going to feel it the next morning. Right now it’s my hips and my neck. Q: Do you have any physical handicaps? A: No. Q: Have you bumped or injured your head recently? A: You know what? When the accident happened. Q: You bumped your head? A: Yes. Q: When? A: I hit the left side and boom my head. We kinda spun out and I tried to grab the wheel and my head was folding back and forth. ⁵ I’m educated enough to know that when your brain vibrates, swings back and forth that much that can cause a concussion. Q: Yeah that’s what they say.

76That response, “Yeah that’s what they say,” was Souza’s only response to Mr. Fontaine’s comment,

“I hit the left side and boom my head. We kinda spun out and I tried to grab the wheel and my bead was folding back and forth – I’m educated enough to know that when your brain vibrates, swings back and forth that much that can cause a concussion.”

Souza simply continued asking the questions set out in the form that she was following.

77Mr. Lindsay suggested to Souza that, “if someone has potentially a concussion that’s something they should get immediate medical attention for, fair?” Sousa replied that she did not know whether that was true. Regardless, she insisted that she did not believe that Mr. Fontaine had a concussion, which is why she did not offer anything.

The Evidence of Joshua Fontaine, (in-chief)

78Mr. Fontaine was born in 1994. He works as a dry-wall finisher. On December 12, 2018 he visited a friend in Cambridge. There, he drank four regular sized cans of beer between 9:00 p.m. to 11:00 p.m. He then left, at about 11:00 p.m. to drive to his girlfriend’s home in Woodbridge. When he left, the weather was bad.

79On November 29, 2018, he had had his winter tires installed but the installation had not been performed properly. As a result, Mr. Fontaine’s car’s steering wheel vibrated a highway speed.

80On this early morning, while in the passing lane, his steering wheel began to vibrate. He hit his brakes causing his wheels to lock up. That, combined with the snow and slush, sent him into the guard rail. He collided with the guard rail on the left side of his vehicle which rotated until the car hit the guard rail on its passenger side, spinning him around again and hitting the driver’s side, once again, and then came to a stop.

81The accident happened at about 12:20 a.m. due to extremely rough weather conditions – snow and ice and slush all over the roads. The alcohol that he drank had no effect upon him and played no part in this collision and neither did the anti-biotics or codeine that he had been taking for bronchitis.

82Mr. Fontaine was hurt as a result of the accident. When his vehicle collided with the guard rail, he hit the left side of his head on the steering wheel. Then, through the rotation of his head, which was rocking back and forth, he sustained a concussion, whiplash, bruising to his hip and back pain.

83He admitted to lying to the qualified technician by saying that he had had nothing to drink. He lied because he had never been in a car accident before. He was in a state of shock and “the events that happened prior to the accident were prevalent in [his] mind and [he] didn’t want to self-incriminate [himself] any further.” He went on to explain that he was experiencing fear and loss of control.

84When asked by his counsel why the court ought to believe his trial evidence he said that he was not testifying after just having had a traumatic experience, that he was sworn to tell the truth and that he was ready to give his honest story and recollection of what happened that night.

85Mr. Fontaine denied being approached by Mr. Sandhu and having a conversation with him. Rather, he left his vehicle and walked to Mr. Sandhu’s vehicle, about forty feet distant, to ask him if he was okay.

86Mr. Fontaine agreed that he spoke to the tow truck driver but says they only spoke briefly. While he agreed that he did offer that driver money he said it was not to avoid police involvement. Rather, he explained that he had never been in any accident before; so, “after standing there for about an hour [he] asked the tow driver, “Do I need to pay you to leave, what is happening right now?” He said the driver then informed him that the police had been informed of this accident and they had to wait for them to arrive to move forward.

87When a police officer arrived, about two and a half hours after the collision, Mr. Fontaine was standing near enough to overhear the officer ask the tow truck driver, “who was driving?” Hearing that, he presented himself to the police officer.

88While a fire truck was on scene blocking off the road, no ambulance attended.

89After failing a roadside test, the officer began arresting him.

90Mr. Fontaine’s examination then proceeded:

Q: And did the subject of lawyers come up at all? A: Yes, he mentioned to me that I had the right to call a lawyer to which I responded “Ah, my father has a family friend in whom I trust as my lawyer and that’s who I would like to call.” Q: Okay and what did you say in terms of who you wanted to call specifically? A: I said my family lawyer. Q: And did you have contact information for that lawyer? A: Ah yes, Q: How would you contact that lawyer? A: I could have easily called my father’s cell phone, my stepmother’s cell phone who would have then gotten in touch with her (sic) and they would have contacted me. Q: Did you have the lawyer’s direct number yourself? A: At the time no, I did not. Q: Now you mention this to the officer, what does the officer say about this? A: The officer then told me it’s late at night you should probably leave your father alone and call deputy (sic) counsel. Q: What did you say to that if anything? A: I wanted to oblige. I wanted to be as easy going as I could, um as I said, I mentioned I wanted to call my lawyer. He kinda of, ah, in a way persuaded me in a way, you know, leave your father alone. It is late at night, call deputy counsel or whatnot and I obliged. I said okay. I didn’t want to be a burden you know escalate the situation any more. Q: Now previously had your father ever talked to you about this idea of the family friend? A: Yes this conversation had happened, you know he mentioned to me, should I ever be in a situation where I need counselling from a lawyer or advice from a lawyer this is the person that we call, this is the person who we trust. And it was instilled in my brain that that is what I would have to do in any such situation.

91Mr. Fontaine denied saying that he wanted to call duty counsel as Miranda quoted him as saying, (as set out above at paragraphs [29] to [31]).

92Mr. Fontaine said that there was no further discussion about lawyers when he was lodged into the station. Further, during that process he was not asked if he had any injuries.

93While he spoke to duty counsel, he was not satisfied with the advice that he received during that consultation, nor did he know precisely what duty counsel was. Moreover, he was never asked if he was satisfied with the conversation with duty counsel and he never volunteered that he was satisfied with that call.

94In addition, he was never offered medical attention while in custody by the police. Had they done so he would have accepted it “one hundred percent.”

95When he was released from the station, his girlfriend picked him up and drove him to his mother’s home in Vaughn.

96This is how he described feeling while in custody:

“After the collision I could notice that I was, my cognitive reception was not on point to what I usually am. My sentence formulization wasn’t as acute as to what I normally can produce. I felt sluggish, dizzy, of course discomfort throughout my entire body which I mentioned to the officers you know, mainly in my hip and my neck. And then moving forward I could not sit in rooms with lights for an extended period of time after, I felt nauseous. The injuries to my back and neck and also the concussion left me unable to go to work for an extended period of time. Ya, so I did not feel like myself for a very long period of time after.”

97The collision, arrest and release all happened in the early morning hours of a Thursday. Mr. Fontaine was scheduled to fly out to New Brunswick to visit his father on Friday. He went on that trip. He was released around 5 a.m. and was driven to his mother’s home in Vaughn. Arriving there around 6:30 a.m. He slept until about 8:00 p.m. He then had to get ready to fly out to visit his father the next day. His flight left in the afternoon of that Friday and it was too late to go to any walk-in clinic as he had a bag to pack.

98He was in New Brunswick for the weekend. He felt beat up and spent the entire trip laying on a couch and “being nurtured”.

99When he returned home, he went to a walk-in “as soon as I had an availability to go”. When asked by Mr. Lindsay, what that meant, he explained:

A: I flew back in the Sunday night and my transportation had been revoked so I had to wait until someone was available to take me to see a doctor and this is days after the accident where I still feeling extreme repercussions from the accident.

100He went to a walk-in clinic on Tuesday, December 18, 2018 in Woodbridge. ⁶ There, he was prescribed an anti-inflammatory medication and was advised to avoid labour for a time. He testified to suffering from sensitivity to light and to suffering from migraine headaches. He repeated that his “cognitive reception and sentence formalization” (sic) were compromised and he felt that there was no way to tell if he would ever completely recover from this accident.

The Evidence of Joshua Fontaine, (in cross-examination)

101Ms. McGuigan had Mr. Fontaine expressly concede that:

• this was a single vehicle accident;
• that Mr. Fontaine was alone in his vehicle;
• that his vehicle came to rest on the passing lane of the highway;
• that he was aware of the steering wheel vibration problem;
• that he was aware that it manifested itself in highway driving;
• that he was aware of treacherous road conditions before setting out for the 401 with improperly installed tires.

102Mr. Fontaine disagreed that Mr. Sandhu came to help him. Rather, Mr. Sandhu remained in his car the entire time and it was Mr. Fontaine that approached him to make sure that he, (Mr. Sandhu), was okay. He denied that Mr. Sandhu asked him if he was okay and he denied, (asked or not), telling Mr. Sandhu that he was okay.

103He agreed that he never told Mr. Sandhu he, (Mr. Fontaine), was injured in any way. Ms. McGuigan suggested that that was because as far as he knew he wasn’t injured at that point. Mr. Fontaine never responded to that suggestion, simply replying that, “As far as I understood I didn’t have a conversation with him about my injuries.”

104Mr. Fontaine denied telling Mr. Sandhu that he, (Mr. Fontaine), had been coming from a party in Cambridge. He denied telling Mr. Sandhu that his steering had failed. He did not deny but did not recall Mr. Sandhu telling him that 9-1-1 had been called.

105Mr. Fontaine agreed that the tow truck showed up within minutes of the collision.

106Ms. McGuigan suggested that the tow truck driver asked him if he had any injuries and that Mr. Fontaine did not tell him of any. It seemed to me that Mr. Fontaine was about to agree with that suggestion, but he stopped himself and then paused before answering, “I cannot recall that.” He did accept that the tow truck driver told him that they were waiting for the police. While he agreed that he did offer money to the tow truck driver to leave he denied doing so repeatedly.

107Mr. Fontaine did not remember seeing an ambulance but in any event denied that an EMS worker came over to him and checked him out. While he does recall a fire truck being present, he denied that anyone from it came over to talk to him.

108Initially, Mr. Fontaine described the fire truck as being was “a couple of yards away” but then said it was a far distance away. He did so, I find, to I find help buttress his denial of having spoken to any firefighter from the truck despite the fact that the fire truck arrived right after the tow truck and despite the fact that he concedes the fire truck remained on scene until the police arrived and despite the fact that this was a single motor vehicle accident and that he was the only person in the motor vehicle.

109While waiting for the police to arrive Mr. Fontaine called and spoke to his mother for about 15 minutes on his cell phone. Ms. McGuigan suggested to him that at that point he did not believe he needed any medical care. ⁷ Mr. Fontaine’s response was:

A: “At that point it’s hard to assume because there’s adrenalin running through you after the time of an accident; it’s hard to justify that I have a concussion when you’re inebriated yourself from walking out of an accident and being confused and distraught right?” Q: Inebriated by alcohol right? A: ah, Not inebriated that’s … being um, I was trying to say like to be, you know, in a state of confusion and distress ‘cuz you just crashed your car.

110When Ms. McGuigan pointed out that he had his cell phone whole time and was free to use it and did not call for 911 for medical care Mr. Fontaine said that he was “not in a stable state of mind from this concussion, from this series of events, from this impact collision, this traumatic experience.” He agreed that he never asked any person for an ambulance or a paramedic and that the firefighters were still present when Miranda arrived.

111Mr. Fontaine said that he did not remember Miranda asking him if he was okay. He went on to say that Miranda just asked him what happened. When pressed, Mr. Fontaine specifically denied that Miranda ever asked him if he was okay and he denied telling Miranda, “Yes, yes I’m okay. Yes, I’m okay, just shaken up from the crash”.

112When Ms. McGuigan suggested that he never told Miranda that he was injured in any way Mr. Fontaine paused for eight seconds and then said, “sorry I’m just trying to recall the events of that night” and then, after a further pause he said, “I believe I did mention to officer Miranda, ‘Look at the severity of the vehicle here – I am probably injured right now.’ He then began to say, “I think I mentioned” but changed his response to “I mentioned that I hit my head”.

113Mr. Fontaine insisted that he was in a state of confusion and shock. When Ms. McGuigan suggested that he never told Miranda that he was in a state of shock and confusion, Mr. Fontaine’s response answer was: “maybe not in those exact words – I did say this accident is my first time to which with his professional training he should have been left to assume that I was, you know, I was in a state of shock.”

114Mr. Fontaine agreed that Miranda had accurately taken down his answer to the first rights to counsel question; that in answer to the question: “Do you understand?” He did say, “Yes, I have nothing to hide.” He further agreed that he understood at that moment what Miranda had just read to him, although he qualified that answer by saying that while he thought that he did at that time, he now did not think that he really did.

115Mr. Fontaine’s position was that he was being agreeable to the police as did not want to escalate (sic) the situation, that he “wanted to be as good a person as he could be.”

116He further conceded that he did not ask Souza for medical assistance and did not complain to her about any injuries. As Ms. McGuigan put it:

Q: You never complained to a single person throughout all of the events at the roadside and at the station about anything medical or injury except what we see on the video? A: Yes. After the accident I was experiencing adrenalin.

117He agreed that he was feeling no pain at roadside, merely some discomfort. Moreover, he testified, incorrectly, that he had complained of back pain when listing his complaints to Souza during the breath testing.

118At one point in his cross-examination, Mr. Fontaine said that he spoke to “duty” when referring to duty counsel. When Ms. McGuigan highlighted that usage, (which she immediately recognized as being consistent with what Miranda had noted down), Mr. Fontaine denied having just said it and said that he had said “duty counsel”. He did not. Just as Ms. McGuigan noted, Mr. Fontaine, in that instance had referred to duty counsel simply as “duty”.

119He also confirmed that both Miranda and Souza were present when he left the telephone consultation room, although he denied being asked or confirming that he was satisfied with his telephone call. He characterized his position as not being satisfied with the consultation but that he kept his dissatisfaction to himself. Once again, he explained that he did not want to be a problem. He said that it was so late at night, that he was exhausted, hurt, traumatized and that he “simply wanted to be fine and easygoing in that situation.”

120Despite deliberately lying to Souza about whether he had had anything to drink, Mr. Fontaine denied that his lies were deliberate. ⁸

Q: So when Sgt. Souza asked you if you had any alcohol to drink that night you said, “no”. Is that right? A: Yes. Q: And actually, she asked you when you last had had a drink you said not for the last two weeks since you were diagnosed with bronchitis. A: Yes. Q: And that was a deliberate lie, yes? A: It wasn’t a deliberate lie, I just um … The Court: It was or was not? A: It was not a deliberate lie. Q: What was it then? A: It was um … it was me not even recalling um you know, everything that was on my mind was that accident and what that accident had happened and she was asking me the last time that I drank I told her two weeks ago, like I said I didn’t want to incriminate myself any further and put myself in a position were I was already afraid. Q: So, was it, “me not even recalling” or was it, “me not wanting to incriminate myself”, which one was it? A: It was me not wanting to incriminate myself. Q: So, it was a deliberate lie. A: (after a six second pause) Yes.

121When Madam Crown pointed out that between the tests Souza told Mr. Fontaine that he smelled of alcohol he chose to lie to her again by telling her that he had no explanation for that. He then said that he lied because he was afraid to lose his licence.

122He agreed with the Crown’s observation that his concerns displayed in the recording of the breath testing were directed, not to his physical condition, but whether his arrest would stop him from going on the trip, would interfere with his plans to fly out to New Brunswick. His cross-examination proceeded:

Q: You didn’t believe that you were injured. You thought that if the police would let you go you were good to travel from a physical perspective. A: (after a ten second pause) Um, no I knew I was injured but I knew I had the plane tickets booked. I was in a position where it was out of my control. Q: Well I’m going to suggest that you were quite sure that your injuries were not going to stop you from travelling because all that was a concern was would the police let you go. A: To see my father yes, I was concerned if I get to see my dad, yes. Q: And you didn’t want anything about any injuries to interfere with that because you didn’t think you were injured. A: My … I didn’t mention anything about my injuries interfering with my flight. Q: Because they didn’t, right? A: Uh, sure.

123He conceded his flight left more than 24 hours after he got home and that he did not seek any medical care. He agreed that he did not get taken to a hospital after leaving the police station or that he did not get his mother or girlfriend to drive him to a clinic. He said that he did not go to a hospital in New Brunswick because he was not sure if his Ontario OHIP card would cover the expense. While he came home on Sunday night, he did not go to a clinic or seek care on the Monday because he did not want to pay for a cab to do so, as his girlfriend had told him that she would drive him to a clinic on Tuesday.

124When Ms. McGuigan pointed out the obvious, that he was prepared to wait until Tuesday because his need for medical care was not urgent he said, “It became prevalent when I was experiencing you know, ah, effects days later.” Ultimately, he agreed that it wasn’t apparent to him that he needed medical care until he was in New Brunswick, on the Saturday following Thursday’s collision and that he did not actually seek any care until the next Tuesday.

125Continuing her cross-examination, Ms. McGuigan had Mr. Fontaine agree that when Souza asked him if he had any injuries, she was asking him if he had any pain anywhere. He agreed that that was what he understood and that he said he had pain in his hips and neck.

126While Mr. Fontaine contended that he implied to Souza that he had suffered a concussion he agreed that he did not say his head hurts and he did not tell her he was suffering pain (other than on his hips and neck.)

127Finally, when Mr. Fontaine told Souza that Miranda was very kind, he testified that all he meant by that was that Miranda had not beaten him.

Why I Find Mr. Fontaine to be an Incredible and Unreliable Witness

128I found Mr. Fontaine to be incredible and unreliable as a witness. Without intending to be exhaustive:

• he lied about not drinking to the police officers several times;
• he lied to me about not intentionally lying to Souza;
• he lied or at the very least was almost immediately mistaken about something he had just testified to when he told me that he had not said “duty” when referring to duty counsel;
• his evidence about the extent of his injuries and his need for medical treatment was inconsistent with his behaviour, as he did not seek treatment for five days;
• he was untruthful to me about what he meant when he lauded Miranda to Souza;
• his evidence respecting his interactions with Mr. Sandhu was not reasonable or credible and his denials about giving information to Mr. Sandhu was not credible as Mr. Sandhu knew details about Mr. Fontaine that Mr. Fontaine must have told him;
• he denied being asked by Mr. Jarrar and Miranda if he was okay. I believe them when they said that each asked Mr. Fontaine if he was okay and he said that he was;
• he added back pain to his list of complaints to Souza despite not having made any complaint of back pain to her.

In addition to the foregoing specifics, Mr. Fontaine’s manner of testifying left me feeling that he was not being truthful. It is often difficult to verbalize precisely the reasons why I find a witness to be incredible or unreliable, so I have noted some aspects of those observations earlier in these reasons.

Mr. Lindsay’s Submissions

129Mr. Lindsay’s submissions paralleled his examinations, in developing three themes. First, Miranda failed to implement Mr. Fontaine’s right to counsel as Mr. Fontaine invoked it. Second, that the police breached Mr. Fontaine’s right to security of his person under s. 7 of the Charter by failing to provide him with medical care or to even ask him if he wanted any medical care. Third, the police failed to make a record that would have clarified the extent of their failures on both issues. Further, and as a corollary, the lack of these clarifying records ought to both be a matter of concern to the court and a potential basis for drawing an adverse inference against the police evidence on these applications.

The Lack of Recordings and the Section 10(b) Submissions

130Mr. Lindsay submits that the evidence of Miranda and Mr. Fontaine is consistent: viz.; there was no discussion of rights to counsel at booking. Souza’s contrary evidence ought to be rejected on that point. This is especially so since there is no recording of that process and that absence of a recording is a product of Souza failing to initiate the recording system in the breath room that was contiguous to the booking area. Had she done so it may have captured some of what occurred at booking.

131The lack of an audio/visual record at booking, the lack of a similar record at the scene when rights to counsel were given and answers made, the lack of that kind of recording when Mr. Fontaine came out of his consultation with duty counsel should individually and cumulatively be a matter of concern to the court.

132In counsel’s submission, having such recordings would put to rest many areas of contention.

133To that I say, perhaps, although not necessarily. In this case there is an excellent recording of the breath testing procedures, (provided it is played on a system that has good audio play-back). Yet, despite the fact that Mr. Fontaine is seen and heard in that recording describing Miranda to Souza as being “great,” that “he was very kind” and despite twice saying that “he was excellent,” Mr. Fontaine says at trial, all I meant by saying that he was “very kind” is that he did not beat me. So, the existence of a record does not necessarily solve or resolve all issues, although that one is easily disposed of. I reject what Mr. Fontaine said at trial. He clearly meant exactly what he said: viz.: that Officer Miranda was great to him, that Officer Miranda was very kind to him, and that Officer Miranda was excellent towards him.

134The defence complaints (i) that Miranda was not equipped with a body camera and his cruiser had no dash camera; (ii) that there was no recording equipment at or near the telephone consultation room; (iii) that the booking room was not equipped with recording equipment; and, (iv) that the breath room equipment was not utilized to pick up that which it might from the booking area are not matters that give me pause or cause me concern on the facts of this case. ⁹

135In my view there is nothing to this issue in this case. I find that neither officer intentionally acted to avoid creating a record. Neither officer intentionally failed to record any of their interactions with Mr. Fontaine in order to hide any aspect of their involvement with him. The circumstances here are nothing like R. v. Moore – McFarlane, 2001 ONCA 6363, [2001] O.J. No. 4646 (C.A.). Neither officer turned off a sound or video-recorder to avoid creating a permanent record of their interaction with Mr. Fontaine. That the booking area was not equipped with recording capabilities does not cause me to doubt the evidence of either officer, so far as that goes. The lack of recording devices near the telephone room or in the booking area or on Miranda or in his police vehicle are of no moment. ¹⁰

136The defence contentions and complaints about a lack of recordings of what transpired at booking or elsewhere do not prevent me from making findings of fact. I reiterate that neither officer intentionally failed to record any of their interactions with Mr. Fontaine in order to hide any aspect of their involvement with him. Neither officer turned off a sound or video recorder to avoid creating a permanent record of their interaction with Mr. Fontaine.

137Returning then to the substance of the s. 10(b) complaint, Mr. Lindsay submits the s.10(b) questions and answers as testified to by Miranda lack the ring of truth. ¹¹ Mr. Lindsay submits that it is unbelievable that Mr. Fontaine would say, “I will call duty” in response to the question: “do you wish to call a lawyer now?” Mr. Lindsay urges that such a response is incredible and that there is an obvious lack of ring of truth to it.

138I do not accept that submission for several reasons including the fact that during his cross-examination, Mr. Fontaine referred to duty counsel as “duty” in the same way as he did to Miranda. In addition, Mr. Fontaine agreed that Miranda quoted him exactly in response to the first s. 10(b) question, (do you understand?) Next, for many reasons, as set out previously, I find Mr. Fontaine to be both incredible and unreliable. In addition, I believe the evidence of Miranda and Souza, even though there are inconsistencies between them on the s. 10(b) issue.

139As detailed above at paragraphs [32] to [35], Mr. Lindsay urged that if Mr. Fontaine really said, “Yes, I will call duty”, there was no reason for Miranda to write in typed reports “At 2:25 am breath demand was read. All were understood and at this time he did wish to speak to a lawyer or duty counsel at Port Credit detachment (emphasis added). He was subsequently transported to the Port Credit Detachment for his conversation with duty counsel and breath tests.” Moreover, Miranda had no answer as to why he had done so.

140While Miranda had no answer to the question, the answer is clear to me. I accept Ms. McGuigan’s submission that Miranda failed to note down and as a result did not recall his inquiry of Mr. Fontaine at booking. But Souza recalled it because she was an “acting” sergeant and as she said, she was responsible for ensuring detainees’ rights were respected. She testified that she heard Miranda ask Mr. Fontaine if he wished to speak to a lawyer or duty counsel and that he responded duty counsel, so she sent Miranda away to contact duty counsel for Mr. Fontaine (emphasis added). ¹²

141This wording, “to a lawyer or duty counsel” was common to both officers and is, it seems to me, the kind of rote phrasing in common usage and no different in kind than Miranda’s repeated use of the phrase “impaired over 80” detailed previously; and, no more significant in this case either. Miranda displayed other loose use of language when he said he did a calibration check of the ASD, rather than saying more clearly and precisely that he confirmed the device had been properly calibrated by another officer. ¹³

142In addition to the foregoing, Souza made a contemporaneous note in her alcohol influence report that she “started lodging [Mr. Fontaine’s] property while P.C. Miranda went upstairs to call duty counsel as per [Mr. Fontaine’s] request.” ¹⁴

143Finally, both officers testified that Miranda asked Mr. Fontaine if he was satisfied with his call with duty counsel and he acknowledged that he was. I accept that evidence.

144I disbelieve Mr. Fontaine’s denial of that exchange.

145Mr. Lindsay urged that it would be dangerous for me to find an explanation for Miranda’s failure to offer any explanation for why he typed those words into a report when he could not find an explanation. Counsel urged that I should exercise caution about looking for an explanation as it is the witness who is supposed to give one. I disagree to this extent. While it is clearly not my job to solves mysteries, if the pieces of a puzzle fit together in a certain fashion that makes sense to me then those are findings are open to me, assuming that the evidence is there to support those findings.

146Mr. Lindsay contended that Mr. Fontaine’s version of being defaulted to duty counsel makes a lot of sense. Once again, I disagree. Beyond voicing what I would characterize as a smarmy telling of his recollection respecting his invocation of his right to counsel, and in addition to the many deficits to his credibility, Mr. Fontaine’s evidence was unreliable, too. As Ms. McGuigan noted in her submissions Mr. Fontaine’s recollections were markedly inconsistent with both civilians. Further, he denied being asked by Miranda if he was okay and he denied saying that he was. I reject his evidence in that regard too. Three witnesses, at different times, specifically asked or checked on Mr. Fontaine to see if he was okay and at each inquiry or check Mr. Fontaine said he was okay or appeared to be okay.

147Here is the point. The defence asks me to reject the evidence of both officers on the issue of rights to counsel, despite my assessment of them as credible witnesses - not perfect by any means but credible. I am asked to accept more probably than not that this was a diversion to duty counsel and yet, I see no reason or basis to reach that conclusion. There is no suggestion that time was in issue or that the officers were too lazy to make an extra call, or that they were mean or mendacious. I simply do not accept that they did not let Mr. Fontaine call his father to get a family lawyer’s telephone number if that was what he had asked to do.

148The officers are strangers to Mr. Fontaine, who is an admitted liar. Both officers are credible even though each has exhibited some reliability issues. Still, there is nothing in their behaviour or in their demeanour or attitude towards Mr. Fontaine that would have precluded them from allowing him to exercise his right as he invoked it. They say that they did not because that is not how he invoked it.

149Mr. Lindsay does not allege a conspiracy against Mr. Fontaine, but he urges that, given the conflicts in the evidence, the lack of recordings of these contested matters are critical. Again, I do not see things that way. Mr. Fontaine is an admitted liar. There is no prior history between him and the officers and no evidence of any animus between them. Moreover, during his cross-examination, Mr. Fontaine testified to actions that did not make sense, for example, leaving his damaged vehicle to walk back to Mr. Sandhu’s undamaged vehicle to make sure Mr. Sandhu, who was not involved in any accident, was okay; or, that his offer of money to the tow truck driver to leave was not motivated by a desire to avoid the police but simply out of ignorance about how things proceed after accidents.

150Additionally, his description of the severity of his injuries and the discomfort that he was feeling was inconsistent with his action of flying out to New Brunswick and of not seeking medical attention until the Tuesday after the accident, (which happened at about 12:30 a.m. on the prior Thursday morning.) He lied to both officers about not having consumed alcohol and then refused to candidly admit that that was a lie.

151The bottom line on this s. 10(b) complaint is that I believe Miranda. I see nothing implausible or unreasonable about his testimony about Mr. Fontaine’s invocation of his right to counsel nor anything implausible or unreasonable about Miranda’s implementation of that right. Miranda was clearly wrong about an important point, namely his discussion with Mr. Fontaine at booking, but that error is one of reliability not credibility and I accept Souza’s evidence regarding that discussion.

152I do not accept Mr. Fontaine’s evidence about what he said in answer to Miranda’s question, “do you want to call a lawyer now?” Any plausibility to Mr. Fontaine’s recollections evaporated during his cross-examination by Ms. McGuigan. Leaving aside Mr. Fontaine’s wilful failure to candidly admit that he lied to the police about not having consumed alcohol, he had multiple failures of recall during his cross-examination. I found much of what he said both in his evidence in-chief and in cross-examination to be incredible or unreasonable. ¹⁵

153The defence position is that there was an express attempt by Miranda to dissuade Mr. Fontaine from contacting his father to get counsel. I just don’t buy that. That is not how I heard Miranda give his evidence; that is not what I saw. Miranda was not perfect by any means and his evidence is not completely consistent; but I do not see any lie in his evidence. He said quite candidly, ‘my training says I should have asked him this question and I did not; I should have made an inquiry and I did not.’ That is not self-serving.

154Indeed, as I noted during Mr. Lindsay’s submissions, Mr. Lindsay was able to get Miranda to become what I have heard is colloquially called a “yes-robot” for a period. But, Miranda never waivered on what he said to Mr. Fontaine and what Mr. Fontaine said to him about rights to counsel. ¹⁶

155I am not satisfied on the balance of probabilities that there was any infringement of Mr. Fontaine’s right to counsel, either in the informational component of that right or in the implementation of that right and that Charter application is dismissed.

The Section 7 Submissions

156Section 7 provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

157While put differently at times by Mr. Lindsay and while restated differently at times by me during our colloquy, the essence of this complaint as framed by the defence is that:

• Mr. Fontaine was injured in a motor vehicle accident;
• both officers knew that he had been in a motor vehicle accident;
• both officers knew that Mr. Fontaine was injured seriously in that accident;
• at the very least, both knew that he was potentially seriously injured in that accident;
• both knew that Mr. Fontaine was in their custody and control; and,
• despite all that knowledge neither Miranda nor Souza ever asked Mr. Fontaine if he wanted medical attention.

158Mr. Fontaine’s position is that had either officer asked him if he wanted medical attention, he would have accepted their invitation “one hundred percent.”

159Consequently, their failure to offer him medical attention amounted to a breach of the security of the person component of s. 7. By failing, in the circumstances that obtained, to ask Mr. Fontaine if he wanted medical attention, the officers deprived him of his right to security of the person.

160“Like ‘liberty’, the phrase ‘security of the person’ is capable of a broad range of meaning.” (Singh v. Canada (Minister of Employment and Immigration), [1985] 1 SCR 177, [1985] S.C.J. No. 11 at paragraph [46]) That broad range of meaning has included, inter alia, freedom from the threat of punishment or suffering punishment, (Singh v. Canada (Minister of Employment and Immigration), [1985] 1 SCR 177, supra), the right to control the course of a pregnancy, (R. v. Morgentaler, [1988] 1 SCR 30), the right to obtain therapeutic marijuana, (R. v. Parker), and prohibitions on bawdy-houses, living on the avails of prostitution, and communicating in public for the purposes of prostitution. (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101).

161Given the broad range of concerns encompassed by s. 7, Mr. Lindsay submitted that a failure to provide needed medical care fell within the scope of security of the person. He pointed to two authorities to that effect.

162The first was authority was R. v. Ugbaja, 2019 ONSC 53. In Ugbaja, at paragraph [39] McKelvey J. found a breach of s. 7 due to a failure to provide medical care to an inmate of a correctional facility. Mr. Lindsay immediately acknowledged that while the facts in Ugbaja were obviously distinguishable from Mr. Fontaine’s, Ugbaja is authority for the proposition that s. 7 can be breached by a failure of a detaining authority to provide medical care. ¹⁷

163Justice McKelvey arrived at his decision by considering R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 140, where the use of excessive force by arresting police officers, compounded by their failure to alert their superiors to their use of that excessive force, and further compounded by the officers’ failure to ensure that Mr. Nasogaluak received medical attention “posed a very real threat to [his] security of the person that was not in accordance with any principle of fundamental justice.”

164Despite the Supreme Court of Canada’s restraint in Nasogaluak by not formally declaring that police have an affirmative duty to obtain medical assistance for persons under their care, ¹⁸ Justice McKelvey concluded that in Mr. Ugbaja’s case the correctional facticity had a positive duty to obtain medical assistance for him, as he was totally under state control within the correctional system. In arriving at that conclusion Justice McKelvey considered that the regulations under which the corrections system operates in Ontario required that a health care professional be in each institution and be responsible for the provision of health care services to inmates.

165As a consequence of, inter alia, that regulation he concluded that the correctional authorities had a positive obligation to obtain medical assistance for Mr. Ugbaja.

166The second authority relied upon by Mr. Lindsay is R. v. O'Shea, 2018 ONCJ 3510 a decision by Madam Justice Ray.

167While Justice Ray ultimately found no breach of s. 7 as a result of inadequate action by the police, the decision confirms that a breach of s. 7 can be caused by a failure of the police to provide adequate medical care to a detainee under their control. Further,

O’Shea is closer on the facts in that it was an impaired driving/refusal arrest.

168The question in O’Shea was whether “security of the person” is engaged by a need for care, albeit that Ms. O’Shea required psychiatric rather than physical care.

169Justice Ray reached the following conclusion:

30 The case law on security of the person does include imminent deprivations of medical or psychiatric treatment, health and safety, and control over one's body as falling within the scope of security of the person. ¹⁹ Detention and potential incarceration can easily fit within this rubric, but it is generally considered a deprivation of liberty rather than security of the person, although it can be both. Security of the person was in my view engaged by O'Shea's need for psychiatric attention. I accept her evidence that she was experiencing a panic attack. All of the evidence and the circumstances point to a valid conclusion that she needed medical attention, a conclusion that is reinforced by the fact that she was eventually taken to hospital after becoming unconscious.

170Given Justice Ray’s conclusion, that security of the person under s. 7 is engaged by imminent deprivations of medical or psychiatric treatment, health and safety, and control over one's body, Mr. Lindsay submits that Mr. Fontaine’s circumstances on the occasion of his detention implicate that engagement.

171Mr. Lindsay framed the issue succinctly as follows: Do you want medical attention? No one asked Mr. Fontaine and in these circumstances that is a s. 7 breach. ²⁰ More fulsomely Mr. Lindsay submitted:

Mr. Fontaine had neck and head injuries from a serious car accident. He told police about his injuries, including wondering about having a concussion. Police ought to have offered him medical attention. Officer Miranda acknowledged that he should have asked Mr. Fontaine whether he wanted medical attention, both at the side of the road and at the police station, and was trained to do so. He admitted that he failed to follow that training. Officer Souza would not admit that she did anything wrong. Her actions seemed to be based on her admittedly unqualified opinion that Mr. Fontaine did not have a concussion and did not require medical attention. In the circumstances of this case, it is submitted that the police failure to offer and provide medical attention to Mr. Fontaine violated his rights under section 7 of the Charter.

172Mr. Lindsay submitted that the duty to obtain medical care flows because of the state’s control over the detainee and noted that Souza acknowledged a responsibility to obtain medical care for a detainee in her control. Hence, he contends that their failure to obtain medical assistance for Mr. Fontaine and their failure in not even asking the question, “Do you want medical assistance?” was a breach of s. 7.

173As Mr. Lindsay expressed it, “[Mr. Fontaine] clearly in his own way (sic) was hurt and was expressing the hurt to the officers at the time and they had the corollative duty and their failure to discharge that duty was a violation of his security of the person not in accordance with the principles of fundamental justice.”

174I accept the conclusions of both Justice McKelvey in Ugbaja and Justice Ray in O’Shea, but find that neither officer breached Mr. Fontaine’s s. 7 right to security of the person and find that he suffered no deprivation of security to his person at the hands of Miranda or Souza. To place the matter within the terms of the two authorities referred to by the defence, neither officer failed to provide required medical care to Mr. Fontaine, a detainee in their custody and under their control. Equally, I rule that Mr. Fontaine was not deprived of imminently necessary or required medical treatment or, that he suffered any deprivation of any facet of security of his person.

175I come to these conclusions on the facts before me. I believe Souza when she insisted that she would have immediately responded to any medical issues presented by any detainee under her control. I believe Miranda when he said that Mr. Fontaine told him he was okay.

176In my view the defence contention that Mr. Fontaine exhibited warning signs of potential medical issues that required imminent attention is incorrect. I do not accept, and I do not find, that Souza failed to be open to the possibility that Mr. Fontaine was suffering from any imminent and serious injury or that there was even a risk that he was.

177Souza was quite solicitous of Mr. Fontaine’s needs. She repeatedly gave him cups of water for his coughing and she was very reassuring to him. I agree with Ms. McGuigan’s submission that it is obvious from the recording that if she had had any concerns for his health, she would have acted on them.

178Neither his voiced complaint of pain or discomfort from a seat belt bruise or soreness to his neck required Souza or Miranda to offer Mr. Fontaine medical treatment. In my view, having seen the recording of his breath testing procedures, Mr. Fontaine’s security of person was not engaged. Beyond stating that he was sure he was going to feel it the next morning, (and other than his bronchitis for which he was being treated), he displayed and voiced no imminent concerns to either officer.

179Mr. Fontaine conceded to Ms. McGuigan that when he was being asked about injuries he was being asked if he had any pains. Yet, as Madam Crown observed, the only time Mr. Fontaine referenced his head at all is when Souza asks him about it expressly. Until then he did not mention any injury or any pain to his head. He never called his head an injured part of his body when he was asked about injuries.

180As Ms. McGuigan noted, in the breath room Mr. Fontaine is calm, collected and joking. He displays no tension other than being worried about not getting on his flight. He displays no concern about his medical condition interfering with his ability to take his trip because it was not a concern for him at that time. That is the presentation that Souza responded to. She responded not only to what she saw but also to what his concerns appeared to be at the time. His concerns were about the flight and she reassured him that he would not be detained, that his plans would not be affected and that he would get home.

181I agree with the Crown’s submission that the evidence demonstrates that when Mr. Fontaine left the station, he did not think that he needed medical care. Mr. Fontaine’s subjective belief about his need for medical care was consistent with Souza’s belief.

182At paragraph [76] I have recounted the salient portion of the questions and answers of Souza and Mr. Fontaine between the two tests. Mr. Lindsay submits that it was inappropriate for Souza to merely say, “So they say” and go on to the next question in the form that she was following. He submits that Mr. Fontaine’s explanation of what happened to him in the accident cast a s. 7 duty on Souza at that very moment to ask him if he wanted medical attention.

183Equally, the defence contends that despite Miranda asking Mr. Fontaine at the scene if he was okay and despite Mr. Fontaine telling Miranda that he was okay, Miranda breached Mr. Fontaine’s s. 7 right to security of the person at that moment.

184At one point in Mr. Lindsay’s submissions he agreed with this restatement of them: There was sufficient evidence that they ought to have done something affirmatively and at a minimum to have asked the question, “Do you want medical care?” Their failure to do so, especially considering their training, amounts to a breach of s. 7.

185I reject that submission. So far as Souza is concerned, Mr. Fontaine displayed no signs of illness or injury that merited or required medical attention while he was with her. Souza insisted, and I accept, that she was responsive to Mr. Fontaine’s presentation. She had been with him for about 30 minutes by that point and other than his cough he displayed no signs or symptoms that caused her to believe he was in any imminent distress or in need of immediate medical attention. In my view, the recording of the breath testing procedures demonstrates that beyond question.

186Despite Mr. Lindsay urging that “[Mr. Fontaine] in his own way (sic) was hurt and was expressing the hurt to the officers at the time” Mr. Fontaine did not tell Souza that he had suffered a concussion and Mr. Lindsay concedes there is no substantively admissible evidence at this trial to show that Mr. Fontaine did sustain a concussion as a result of the collision.

187Mr. Fontaine said he was okay, or appeared to be okay, to three people at three different times. Asking someone if they are okay is asking them if they are hurt, if they are injured, if they are having any problem.

188He told Mr. Jarrar that he was okay minutes after the collision and before Mr. Jarrar got permission to move Mr. Fontaine’s car off the travelled portion of the highway. Then, more than two hours later, he told Miranda that he was okay.

189Each of these three asked Mr. Fontaine if he was okay or checked on him to confirm that he was okay. Clearly, they were inquiring about his state of wellbeing, about whether Mr. Fontaine was injured. In response to each inquiry made Mr. Fontaine said he was okay; i.e., that he was not injured or he clearly appeared to be okay.

190Mr. Fontaine had no external signs of any injury to his head. He never lost consciousness as a result of the collision. He was not cut or bruised. Further, he did not complain of having any headache or pain in his head ²¹. Indeed, and as noted by Ms. McGuigan, despite a persistent, wracking cough he made no complaint about any pain to his head.

191Mr. Fontaine had a perfectly normal gait. He displayed no gross or even fine motor impairment. On occasion he balanced on one buttock on the edge of his seat in the breath room. He opened the cellophane wrappers of the approved instrument mouthpieces and he place the mouthpieces into the receiving tube of the approved instrument. ²²

192There was no evidentiary basis to suggest that Mr. Fontaine required medical attention then and there. There was nothing in his presentation that demonstrated that he did.

193Despite that, Mr. Lindsay submitted that Mr. Fontaine was not obliged to show that anything flowed from the failure of the police to ask, “Do you want medical care?” Further, he submitted that he was not obliged to show that Mr. Fontaine suffered physical harm as a result of the lack of medical attention. Mr. Lindsay’s position was that I would fall into error by looking at the recording and concluding that Mr. Fontaine looked fine. Rather, Mr. Lindsay contends that once Mr. Fontaine said to Souza that he had hit his head and said, in effect “I’m worried about concussion” there was a risk that he might suffer a serious consequence unless he was given the option of accepting an offer of medical care.

194I do not agree. The onus in this application is on the defence to demonstrate, more probably than not, that the actions of the police deprived Mr. Fontaine of his right to security of the person. In my view the defence has failed in its onus to demonstrate any deprivation of Mr. Fontaine’s right to security of his person on this evidence.

195Mr. Fontaine never displayed any need for immediate medical attention. He never asked for any immediate medical attention. He repeatedly stated that he was okay. The police never thought he needed immediate medical attention. The police never thought he needed immediate medical attention and refused to provide it to him. And, significantly in my view, Mr. Fontaine never sought immediate medical attention. He waited five days before going to a walk-in clinic. He could have gone a day earlier but he did not want to spend money on cab fare to do so. He does nothing about his purported medical condition for many days because he was not in any immanent risk of harm.

196As the Crown observed, the defence has not produced any authority to support the proposition that to fail to ask a person under the control of the state who is not in apparent need of medical care if they want medical care is a breach of s.7.

197I agree with Ms. McGuigan’s submission that there is no basis to distinguish the result in this application from the result in O’Shea, 2018 ONCJ 3510, where the s. 7 application was dismissed. Paraphrasing from paragraph [33] of O’Shea with necessary modifications, I do not find the manner in which the officers carried out their duties and handled this investigation to be offensive. I would not characterise it as being not in accordance with the principles of fundamental justice or falling outside the parameters of the basic tenents of our legal system, and I find no breach of s.7. The s. 7 application is dismissed.

Dated at Burlington, this 20th day of January 2021.

J.S. Nadel (O.C.J.)

Footnotes

Footnotes

1. 1This review is essentially limited to the Charter allegations.
2. 2The ASD was calibrated to register a Fail when it detected 100 milligrams of alcohol in 100 millilitres of blood.
3. 3“Well if he had stated problems with visions (sic) or not being able to hear, something like that I would think “You’re not well. You need to be seen by a doctor” – this is not just what I believe would be the consumption of a – of a substance or some sort of bleeding or a broken bone or a loss of consciousness – thing in (sic) those lines – you know – when somebody goes pale you can tell the blood pressure is dropping. Things like that - you – it would trigger a - a contact with an ambulance for transportation to the hospital. That wasn’t the case. Like I said, he was coughing but everything else about him seemed to be normal.”
4. 4The quality of the playback equipment used during the trial was not very good but I have had an opportunity to listen to the exhibit using an external speaker with better sound capability than the courtroom equipment.
5. 5Mr. Lindsay suggests that phrase was “bolting back and forth”
6. 6Mr. Fontaine testified to the medical advice he was given. Notwithstanding, Mr. Lindsay accepts that there is no admissible evidence of any medical diagnosis before me and no admissible evidence that Mr. Fontaine was concussed as a result of the collision.
7. 7Mr. Fontaine did not approach the firefighters, the tow truck driver or any civilian to ask for any medical care while at the scene of the collision. Nor did he make any telephone call to obtain any.
8. 8He also lied about drinking to Miranda at the scene of the collision as noted in paragraph [26].
9. 9That is not to say that a lack of evidence may be the basis for a reasonable doubt. As Mr. Justice Cromwell said in R. v. J.M.H., 2011 SCC 45, [2011] 3 SCR 197 at paragraph [39]: “As I explained earlier, the principle set out in Schuldt (and many other cases) is that a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt.” Correspondingly, Ms. McGuigan submitted that as this was a single car accident with only one person in that vehicle I ought to find that some emergency responder, either an EMS provider or a firefighter, would necessarily have seen to and medically cleared Mr. Fontaine. Given the absence of any testimony from either type of first responder I am not prepared to formally make that finding, even though it is probably correct, especially since firefighters were at the scene for hours.
10. 10Mr. Lindsay provided me with cases where judges have decried an absence of recordings and lamented that their presence would have made the job of judging easier. See for example, Justice Blouin in R. v. Nosratollah Magdoori, 2008.03.26 in the O.C.J. in Newmarket at paragraphs [25] and [26]. And see R. v. Faba, 2004 ONCJ 1305 where Justice Taylor observed and ruled that video recordings of interaction between the police and citizenry are not a constitutional imperative, however helpful they might be. As well, Justice West in R. v. Suyat-Pavalara, 2017 ONCJ 5105 at paragraph [50] urges police forces to install recording equipment at booking procedures. Interestingly, Moore-McFarlane is perhaps less robustly applied in British Columbia. See, for example, R. v. Chen, 2014 BCSC 1575 at paragraphs [49] to [53].
11. 11See paragraphs [29] and [30].
12. 12As noted by Mr. Lindsay in his cross-examination of Souza, she recounted this episode in different words but to the same effect; namely that Mr. Fontaine asked to speak with duty counsel.
13. 13Leaving aside his many other failings as a witness, Mr. Fontaine, too, used language loosely and imprecisely. For example, he would say “we” when he meant “I”.
14. 14There was no section in the booking form that Souza was following to note rights to counsel information. It ought to be amended to include inquiries about that issue.
15. 15Mr. Lindsay contended that one ought not to take much from the roadside when Mr. Fontaine says ‘I can’t remember or recall’ because he has just been in a very serious motor vehicle accident. In my view, the evidence of the two civilians and the recording of the breath testing procedures demonstrates how minimally debilitating that collision was to Mr. Fontaine.
16. 16Mr. Lindsay also submitted that I ought to be troubled by inconsistencies in the evidence of the two officers regarding their respective practices when conducting approved instrument testing. I am not. Respectfully, those differences merely demonstrate that each officer differed about what each says on tape regarding rights to counsel when acting as a qualified technician. Miranda’s practice in that regard, (having the detainee confirm satisfaction with the implementation of the right to counsel on tape), is clearly the better practice and one that Souza would be well advised to adopt.
17. 17Mr. Ugbaja had a comminuted fracture of his left heel and despite his condition being urgent and despite a notation on his medical chart that he must be seen to he wasn’t. In addition, earlier in this lack of medical care, he had made a complaint of heart pain and left chest pain radiating into his left arm.
18. 18On the evidence and record before the court in in Nasogaluak the Supreme Court of Canada assumed that there was a breach of s. 7 that was not saved by s. 1 of the Charter.
19. 19This was footnote 46 in the judgment: See Peter W Hogg, Constitutional Law of Canada, 5th ed, (Toronto: Carswell, 2007), Vol II, at 376-381.
20. 20Somewhat inconsistently Mr. Lindsay suggested to Miranda that despite Mr. Fontaine telling Miranda that he was okay, he, (Mr. Fontaine), might not be the best judge of his condition: Q: Sometimes people may not be the – the best judge themselves after they’ve been in automobile accident (sic) of how they’re doing, fair? A: Yes
21. 21Contrary to the defence submissions, Mr. Fontaine does not refer to his head at about 3:26:26 of the recording. He says hip. Similarly, at about 3:8:23 in answer to the question, “and do you have any injuries?” he refers to his hip and does not say head.
22. 22Mr. Lindsay points to the evidence of the tow truck driver that Mr. Fontaine did not know where he was geographically. That was a product of his lack of knowledge of his progress in a snow storm. There was nothing in his manner or presentation or deportment to suggest it was other than he did not know how far he had travelled in the snow storm. So, while Mr. Fontaine lost his bearings in the snowy weather and did not recognize what exit he was close to when the collision occurred, that was not confusion caused by concussion.