ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
Corey Simon
Before Justice J. De Filippis
Heard on February 17 - 19, 2026
Reasons for Judgment released on April 2, 2026
Ms. H. Bajwa counsel for the Crown
Mr. S. Buchanan counsel for the defendant
De Filippis, J.:
INTRODUCTION
1On September 27, 2024, at noon, the defendant drove a black Ford Escape (SUV) motor vehicle in a residential area in Port Colborne, Ontario. He lost control of the car, with the result that it veered into a ditch, became airborne, and collided with a parked motor vehicle, a red Chevy Silverado pickup truck. The defendant was taken to hospital and the police obtained samples of his blood. He was charged with three offences relating to his operation of the motor vehicle; dangerous driving, driving while impaired by alcohol and driving with a blood alcohol level that exceeded the legal limit (“over 80”).
2The Crown called nine witnesses, including a toxicologist. For the most part, the evidence is not controversial, including the date, time, and place of the incident, the identity of the defendant as the driver of the motor vehicle, and the details of the collision. The Defence claimed that the police violated his rights pursuant to sections 7, 8, 9, and 10(b) of the Charter of Rights a Freedoms and sought a stay of proceedings pursuant to subsection 24(1) and the exclusion of evidence pursuant to subsection 24(2). A blended hearing was held, except for the testimony of the defendant, which only applies to the Charter voir dire. In submissions, the Defence did not press part of its claim pursuant to section 8 or the remedy pursuant to subsection 24(1). The Defence maintained that the bulk of the Crown evidence be excluded and, in any event, that the evidence does not support a finding of guilt for any of the charges.
3These reasons explain why I dismiss the Charter motions and find the defendant guilty of the three charges.
EVIDENCE AT TRIAL
4Mr. Adams lives in a single-family home, with a driveway in front of the attached garage on Third Avenue, in Port Colborne. Around lunch time Mr. Adams had just finished cutting his lawn and went inside the home for a drink of juice. He had moved his Chevy Silverado from the driveway to the shoulder of the road. While inside he heard a loud bang and, looking out the window, saw his pickup truck moving down the road where it came to rest about 150 feet from where it had been parked. He ran outside and saw a black motor vehicle occupied by one man – later identified as the defendant – in the driver’s seat. Mr. Adams is a firefighter and experienced in car accidents. He went to check on the defendant, who was “moaning”. Other neighbours arrived and one of them pointed to a bottle of rum on the dash. Mr. Adams saw that it was “half full”. As he assisted the defendant get out of the car, he detected the odour of alcohol. Mr. Adams identified photographs of his vehicle and the one occupied by the defendant. Both are severely damaged. The pick-up truck was later determined to be a “write off”. Since this incident, Mr. Adams has been concerned about his children playing on their front lawn.
5Mr. Moskalyk about 700 feet from Mr. Adams’ home. He was washing his car in his driveway when he heard a dark coloured car drive past him at a high rate of speed. At about 20 feet, he saw the driver of that motor vehicle – the defendant – with his head down. Mr. Moskalyk added that the driver “appeared to be lighting a cigarette and not to be focussed on the road”. Mr. Moskalyk lost sight of the motor vehicle and heard the impact of a collision. He called 911 and ran to the scene. He saw the black motor vehicle, now damaged, “sideways in the driveway” of a home and the red pickup down the road from this driveway. Mr. Moskalyk believes the speed limit in this residential area is 40 km/hr and that the motor vehicle driven by the defendant was travelling at 70 to 80 km/hr before impact. In cross-examination, Mr. Moskalyk agreed that these events did not occur in a school zone and that in the absence of a speed sign, the speed limit must have been 50 km/hr
6Mr. Newell also lives on Third Avenue. He had just finished lunch and was looking out his window. He saw the defendant’s black SUV “roaring down the street” toward his house. He said it was “accelerating faster and faster”. These observations made him “apprehensive” and he “knew it would not end well” so he called 911. As he did so, he saw the defendant’s vehicle hit a culvert and “go airborne”. Mr. Newell ran outside and saw Mr. Adams’ red pickup truck propelled down the road. He ran to the defendant’s motor vehicle and saw a “mickey bottle on the dash”. In cross-examination, Mr. Newell explained that the roaring sound he initially heard from the defendant’s vehicle came from the engine and not the muffler.
7PC McComber was one of the officers who responded to the call for service. On arrival he observed the two severely damaged motor vehicles and saw a “mickey size rum bottle, about two thirds full”, on the dash of the defendant’s vehicle. The defendant was on a gurney and being attended to by paramedics. The officer heard the defendant reply, in response to a question from one paramedic if he had had anything to drink, “a few beers and some alcohol”. Once the defendant had been stabilized, the officer arrested him for impaired operation of a motor vehicle and read him his rights to counsel. The defendant said he did not understand. Given the circumstances, the officer did not pursue the arrest or right to counsel at this time. When asked about his reasonable and probable grounds to arrest, the officer pointed to the admission of alcohol consumption, the presence of the rum bottle, and the collision. The officer followed the paramedics to the Hamilton General Hospital and learned the defendant had been sedated. As this meant he could not converse with the defendant, the officer left the hospital at 3:34 PM.
8The defendant remained in hospital for several weeks and on October 16, PC McComber returned and arrested him for impaired operation of a motor vehicle and dangerous driving. He had been told by the defendant’s father that the defendant would now be able to interact with the police. The officer advised the defendant of his rights to counsel. The defendant replied that he would contact a lawyer later. The officer noted that the defendant understood and was coherent. He issued a Form 10 release document to the defendant. PC McComber did not ask the defendant anything at the scene of the collision, the first trip to the hospital or on October 16 when the arrest was completed.
9The officer denied fabricating the overheard conversation in which the defendant told the paramedic he had consumed alcohol to bolster his grounds for making an arrest. He agreed that he did not smell alcohol from the defendant. The officer also agreed that the defendant was under detention at the scene of the accident and explained why the arrest and facilitation of the right to counsel had to be aborted given the medical issues at play. He resumed these duties on October 16 as he understood the defendant to be able to meaningfully participate. The officer rejection the suggestion he waited until this date because he knew a warrant to seize the defendant’s blood would be executed.
10PC Waters also responded to the call for service. On arrival the defendant was in the care of paramedics and appeared to be “in much pain”. The officer saw, and seized, a bottle of Bacardi rum on driver’s side dashboard of the defendant’s car. He said it was “about half full”. He described damage to the two motor vehicles and noted that the defendant’s SUV was “completely demolished, with parts on the road and driveway, and air bags deployed”. The officer does not recall any conversation between the defendant and others.
11PC Wahrmann is a qualified intoxylizer technician. At 3:04 pm on the day of the events in question, he went to the Hamilton General Hospital to obtain samples of the defendant’s breath. He realized this would not be possible on being told by hospital staff that the defendant was unconscious. As such, the officer assumed a “blood warrant” would be sought. He had been advised by Ms. Gow that blood had been taken from the defendant at 2:07 pm. At 3:47 pm, the officer placed a seal on a vial of blood, recorded the number, and advised hospital staff that a warrant might be sought to seize this vial.
12PC Wahrmann did not interact with the defendant in any way. He explained that he did not “make a blood demand” because the defendant’s medical condition meant he would not understand. The officer did not witness blood being drawn from the defendant. He acted on information received and went to the hospital lab. On being shown a vial of blood taken from the defendant, he placed a police seal on it pending an application for a warrant to seize it. He left that vial with the staff and departed.
13On October 15, 2025, PC Letford applied for and obtained a warrant to seize a sample of the defendant’s blood. He executed this warrant at the Hamilton General Hospital the next day. He seized the vial of blood that had been previously sealed by PC Wahrmann and brought to the “property fridge” at a Niagara Regional Police station and took it, the following day, to the Centre for Forensic Sciences (CFS) in Toronto. He later received a toxicology report prepared by the CFS.
14The expertise of Ms. Tse as a toxicologist is not in issue. She is the author of the report received by PC Letford and is in evidence before me. Ms. Tse analyzed blood contained in a vial, the seal on which, establishes the chain of continuity from PC Wahrmann. She confirmed that the sample was suitable for testing and explained the process involved. Her conclusion is that the defendant’s blood alcohol level at the time of the events in question was 186 - more than twice the legal limit. Ms. Tse agreed that she does not have personal knowledge of source of the blood or when and how it was drawn. She can only say that it is from the “Corey Simon” because that was name on the sealed vial.
DEFENCE EVIDENCE ON THE CHARTER VOIR DIRE
15The defendant testified with respect to the motion to exclude evidence.1
16He is 40 years old. He has no recollection of being in the hospital until “they removed a tube from my throat and asked me if I wanted to live…I was in and out [of consciousness] in the days that followed”, until October 16 when a police officer arrived at the hospital. The defendant was given a catheter and 32 staples at his bladder. He had a cast on his left arm and given special walking apparatus. He added that he was incredibly tired and in pain. He recalls speaking with a police officer but not for how long.
17The defendant testified that that he never gave consent to have his blood taken, or to have it stored by hospital officials for police use. He added that he first learned of it when he read the disclosure material in this case. The defendant does not recall being advised of his right to counsel, including information about the availability of duty counsel, on October 16.
CONCLUSION WITH RESPECT TO THE CHARTER CLAIMS
18The parties filed written submissions with respect to the Charter motions. The relevant provisions are:
7 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.
8 Everyone has the right to be secure against unreasonable search or seizure.
9 Everyone has the right not to be arbitrarily detained or imprisoned.
10 Everyone has the right on arrest or detention…..(b) to retain and instruct counsel without delay and to be informed of that right; and
24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
19As previously noted, the section 8 claim based on inadequate grounds to arrest was not pursued in submissions. This is not surprising. Reasonable and probable grounds for the arrest on charges of impaired operation and dangerous operation is established by the presence of alcohol, admission of alcohol consumption to the paramedic, and the motor vehicle collision. The Defence asserts, however, that the blood sample was seized in violation not only of section 8, but also sections 7, 9 and 10(b).
20Except for warrantless searches, the Defence must establish its claims on a balance of probabilities. I am not persuaded that any of the Charter claims succeed. They find no support in the evidence or law.
21The Defence argued that section 320.29 of the Criminal Code governs the seizure of blood samples in this case and it was not complied with because it is not known if Ms. Julia Gow is a qualified medical person to draw blood or if the container used to do so is a suitable one. The Defence added that Ms. Gow was acting as an agent for police and that the defendant never provided his consent to the taking of his blood. Moreover, the search warrant was improperly issued because there is no reason to believe the evidence sought – the vial of blood – was still at the place to be searched – the hospital. In this context the failure of the police to facilitate the right to counsel is important because the defendant could have had “input” with respect to the seizure.
22The Crown disputes the Defence argument about the applicability of section 320.29 on the facts of this case. The arrest of the defendant could not continue at the scene of the collision because his injuries required immediate attention. The police did not interfere with the defendant’s liberty or medical interests at any time. Having determined that a breath test was not feasible, PC Wahrmann determined that a blood sample had been taken by hospital staff and was granted his request to put a police seal on the relevant vial. The Crown submitted that this does nom make Ms. Gow an agent of the police. Moreover, there is no air of reality to suggestion the blood was not taken at the hospital by a qualified medical person. The label on vial and the testimony by Ms. Tse confirms this was a proper and suitable sample. On Oct 16, 2024, PC McComber went back to the hospital and found the defendant to be conscious and coherent. He was then rearrested for the previous charges and read rights to counsel.
23I agree with the Crown’s response to the Charter motions. I would add that I do not doubt that the defendant was tired and in pain when visited by PC. McComber on October 16. The defendant did not say he did not understand what the officer was telling him. The defendant also testified that he did not give consent to have his blood taken. I do not take the defendant to be complaining that his blood was drawn by medical professionals during his care. In these circumstances such a complaint would be absurd. The defendant was taken to hospital with serious injuries and unconscious. Of course, medical professionals would take samples of his blood without speaking to him. This is part of routine care: See R v Murray, 2013 ONCA 173. That the defendant did not give consent to the police to seize one of those samples does not matter since this was done pursuant to judicial authorization. There is no violation of section 8. These observations are also relevant to the section 7, 9 and 10(b) claims. There is no detention when an accused is under admission at the hospital for medical treatment and implementation of section 10(b) rights cannot happen if the accused is not medically stable or is unconscious.
24Accessing counsel would not have enabled the defendant to prevent the drawing of blood by the hospital, the placing of a police seal on the vial, and its seizure by judicial authority. In this regard, the sealing of a vial of blood does not constitute a police seizure. This is a reasonable measure to ensure the continuity of the sample. The police may ask medical staff if blood was drawn and where it was stored. These principles are discussed in R v Thompson, 2010 ONSC 4691. Lastly, I note that there is nothing before me to support the Defence arguments that the search warrant was not properly issued.
CONCLUSION WITH RESPECT TO OTHER TRIAL ISSUES
25The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty (R. v. W(D), 1991 93 (SCC), [1991] 1 S.C.R. 742).
26Probable guilt is not the criminal law standard of proof – it is closer to certainty. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence (R. v. Villaroman, 2016 SCC 33). In applying the standard, I can accept some, part, or none of what a witness states. The testimony of a witness is assessed based on the person’s credibility and reliability.
27There is no need to set out why I accept the evidence called by the Crown. It is not controversial. It was not seriously or successfully challenged or contradicted. I will explain why I conclude that evidence requires a finding of guilt for the three charges.
28The Defence submitted that even if the Charter challenges to the “over 80” count fail, the charge should be dismissed because the Crown has not proven that the blood analyzed by Ms. Tse was taken from the defendant and, if so, that it was a suitable sample stored in a proper container. The Crown replied that these submissions are speculative. Moreover, the testimony by Ms. Tse confirms that she received a proper vial with the defendant’s name on in it that contained a suitable sample of blood to analyze. I agree and would add the following comments: There is an unbroken chain of continuity of the blood sample from PC Wahrmann to Ms. Tse. That that blood sample was taken from the defendant is clear from all the circumstances. It is the only inference to be drawn from the context. The defendant was taken to a hospital with serious injuries. The police followed. PC Wahrmann realized that a breath sample could not be taken from the defendant and assumed a “blood warrant” would be sought. He went to the hospital lab and was shown a vial of blood with the defendant’s name on it. With the consent of the hospital, he placed a police seal on the vial. This blood was analyzed by CFS and forms the basis of the over 80 charge. There is no question in my mind that the blood in that vial was properly drawn by an authorized and competent person. In this regard, the decision in R v Murray, cited earlier, is instructive: It was held that a justice considering an application for a search warrant can draw reasonable inferences about the scope of medical treatment that a suspect might receive at a hospital. This includes inferring the routine practice of taking blood samples as part of the treatment of persons involved in serious accidents.
29The Defence asserted that the impaired charge is not proven because, although there was a bottle of rum found in the defendant’s motor vehicle and some witnesses detected an odour of alcohol, nobody said that odour emanated from the defendant’s breath. In any event, the consumption of alcohol and collision is not sufficient to support a conviction. The Crown replied that impairment to any degree will justify a finding of guilt and that, the collision with the parked vehicle is powerful evidence of impairment: See R v Wilson, 2020 ONSC 1956.
30Four people saw a rum bottle on the dash of the defendant’s vehicle after the collision. Of these, Mr. Adams and PC Waters said it was half full. PC Mcomber said it was two-thirds full. Mr. Adams noted the odour of alcohol as he assisted the defendant at his motor vehicle. PC McComber did not smell alcohol. However, the latter was not close to the defendant as was Mr. Adams. PC McComber made this observation while he was standing, and the defendant was on the ground on a gurney. I also note that the rum bottle was not broken or open. There is no suggestion alcohol had been spilled in the vehicle. There were no other occupants of that vehicle. This confirms my opinion that Mr. Adams detected the odour of alcohol from the defendant. Apart from this, there is the elephant in the room: The defendant told the paramedic that he had consumed “beer and some alcohol”. This admission against interest was not elicited from the police but overheard by an officer. I have no doubt that the defendant had consumed alcohol and that his ability to drive was impaired by it. The collision with a parked vehicle is compelling evidence of this, especially since it occurred on a clear afternoon, on a dry paved road, with no other traffic.
31It follows from my findings with respect to the impaired charge, in the circumstances of this case, that the defendant is also guilty of driving in a manner that was dangerous to the public. I would come to this conclusion even if there was no evidence of impairment. The uncontradicted evidence is that the defendant was speeding in a residential area. As his engine roared with acceleration, the defendant took his eyes off the road and looked down, perhaps to light a cigarette, and lost control of his vehicle by going into a ditch, becoming airborne and colliding with a parked vehicle. I reject the Defence suggestion that this does meet the test I question. The defendant’s conduct, in these circumstances, is a marked departure from the standard of a prudent driver.
RESULT
32I find the defendant guilty of dangerous driving, driving while impaired by alcohol and driving with a blood alcohol level that exceeded the legal limit (“over 80”). I will discuss the application of R v Kienapple 1974 14 (SCC), [1975] 1 SCR 729 with counsel.
Released: April 2, 2026
Signed: Justice J. De Filippis
Footnotes
- Before being called upon to elect to call evidence, the Defence brought a motion for non-suit with respect to the over 80 on the basis that there is no evidence the sample of blood tested by Ms. Tse is from the defendant and also that the mere presence of alcohol and an accident cannot be grounds for a conviction for impaired operation. For oral reasons given at the time, I dismissed this motion.