Court of Appeal for Ontario

Date: 2019-07-04

Docket: C66111

Judges: Brown, Miller and Trotter JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Michael Canavan Appellant

Counsel

Patrick J. Ducharme, for the appellant

Christopher Webb, for the respondent

Hearing and Appeal

Heard: June 21, 2019

On appeal from: The conviction entered by Justice E. Ria Tzimas of the Superior Court of Justice on July 4, 2018, with reasons reported at 2018 ONSC 4171.

Reasons for Decision

Overview

[1] On the evening of June 12, 2015, the appellant, Michael Canavan, was driving northbound on Trafalgar Road in the southbound lane – the wrong lane – as he was going up a hill. He collided head-on with a southbound car as it crested the hill, resulting in the death of the driver of the other car, Janice Bye, and injuries to the two passengers. The appellant was convicted of impaired operation of a motor vehicle causing death, operating a motor vehicle with over 80 mg of alcohol per 100 ml of blood, and two counts of driving while impaired causing bodily harm.

[2] The appellant appeals his convictions. At the hearing, we dismissed the appeal, with reasons to follow. These are those reasons.

[3] The appellant advances several grounds of appeal, which we deal with in turn.

Violation of s. 8 Rights

[4] Following the head-on collision, the appellant was taken by ambulance to the Georgetown Hospital for emergency treatment, where the staff drew several vials of blood for analysis. About 10 days later, on June 22, 2015, the police seized some of the vials of blood at the Hospital pursuant to a warrant. The appellant submits that the trial judge erred in failing to find that the blood samples were seized in violation of his s. 8 Charter rights. The appellant contends that the seizure effectively was a warrantless one.

[5] The appellant repeats the arguments he made at trial but were rejected by the trial judge: (i) at the time of the appellant's admission to the Hospital a police officer, Sgt. Houser, asked a nurse to preserve blood samples; (ii) the appellant did not consent to having blood drawn; (iii) Hospital staff drew more blood than was necessary for medical purposes; and (iv) the Hospital staff acted as agents of the police. The appellant relies on the dissent of Pardu J.A. in R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241, affirmed 2018 SCC 57, 429 D.L.R. (4th) 1, at paras. 77-78 and 88-95, to submit that the police had co-opted the Hospital staff to take extra blood samples for purposes of the criminal investigation.

[6] We are not persuaded by the appellant's submission.

[7] In her reasons, the trial judge reviewed the evidence at length. She considered the evidence of Sgt. Houser and five members of the Hospital's nursing staff. The trial judge made numerous findings of fact. She found that on the night of the accident: (i) the staff at the Hospital acted independently of the police and only in accordance with the attending physician's orders; (ii) Sgt. Houser did not speak to the nursing staff on the evening of the appellant's admission or direct the Hospital staff to draw blood; and (iii) the appellant did not refuse blood work and he consented to treatment as a trauma patient at the Hospital.

[8] The trial judge also found that there was no evidence that the staff drew more blood than was necessary for medical purposes. She also found that: (i) the staff complied with Hospital protocols that gave specific directions about how to engage with the police and the permitted reasons for drawing blood; and (ii) the Hospital staff were not acting as agents of the state.

[9] Her findings in that regard were not based on any misapprehension of the evidence but were fully supported by the evidence. Michele Moleta, the nurse who treated the appellant as a trauma patient in the emergency room, testified that: (i) she had drawn blood samples on the instructions of the emergency room physician; (ii) she had not talked with the police; and (iii) she drew the standard number of vials of blood for the emergency treatment of a trauma patient. The lab technician who analysed the blood samples, Kathy Lambert, testified that after analysing the blood samples, she took it upon herself to store the vials on a separate rack in the central fridge. She knew there was alcohol involved and the samples might be needed for testing later. Joanne Johnston, the team leader of the Hospital's lab technologists, testified that on June 19, 2015 she received a phone call from the police asking if blood samples from the appellant were still in the lab. She checked the lab's main refrigerator, found some blood samples, and turned them over to the police when they served the warrant a few days later.

[10] On the basis of the findings she made, the trial judge found no breach of the appellant's s. 8 rights. The appellant has not demonstrated that the trial judge made any palpable and overriding error in those factual findings. Those facts distinguish the present case from the circumstances in Culotta. Accordingly, we would not give effect to this ground of appeal.

Violation of s. 10(b) Rights

[11] Second, the appellant argues that the trial judge erred in failing to find that his s. 10(b) rights were violated.

[12] Again, the trial judge conducted a detailed review of the evidence. The appellant was trapped in his car at the scene of the collision before he was extricated and moved to an ambulance on a backboard. He was then taken to the Hospital. After treatment by emergency staff, the police talked to the appellant and ultimately a breathalyzer technician administered a breath test to the appellant at the Hospital.

[13] The trial judge's reasons disclose that she accepted that the police discharged the informational and implementation elements of s. 10(b) in the following manner:

(i) in the ambulance Sgt. Houser placed the appellant under arrest for impaired driving causing death and read him his rights to counsel. The appellant said he did not want to speak to a lawyer;

(ii) at the Hospital, Sgt. Houser again discussed with the appellant arrangements to speak with a lawyer. The appellant could not recall the name of his lawyer and asked Sgt. Houser to contact his wife to obtain the name. Sgt. Houser called the wife and left a message;

(iii) in the meantime, the appellant recalled the lawyer's name. Sgt. Houser called the lawyer's office and left a message on his voicemail;

(iv) the lawyer's office voicemail provided a cell phone number to which a text message should be sent. Sgt. Houser instructed another officer to send a text to that number, which was done, but there was no response;

(v) Sgt. Houser advised the appellant that duty counsel was available but the appellant did not want to speak to duty counsel;

(vi) Prior to administering the breathalyzer test, the technician officer advised the appellant of his right to counsel. The appellant stated he wanted to speak to his lawyer and not to duty counsel. The technician advised that the lawyer had not responded to contact attempts;

(vii) The officers did not provide the appellant with a phone book or any other resource to look for another lawyer. A Hospital nurse testified that she did not know if the Hospital even had a phone book and a Hospital computer would not be made available to the appellant, even if requested by the police;

(viii) Almost three and one-half hours elapsed between the time of the collision and the administration of the breathalyzer test at the Hospital at around 2 a.m. on June 13, 2015; and

(ix) The appellant's lawyer did not respond to the contacts made by the police until close to 9 a.m. on June 13.

[14] Drawing on those findings, the trial judge was unable to accept the appellant's argument that the efforts of the police to facilitate the appellant's communications with counsel of his choice were inadequate or that the police failed to show reasonable diligence. She concluded that the police did not treat the Hospital as a "Charter-free zone", tried to facilitate the appellant's communications with counsel immediately upon arrival at the hospital, and made several efforts to contact counsel of choice in the middle of the night. Given the appellant's firm position that he wanted to speak to counsel of choice – not to duty counsel – the trial judge concluded that she did not see how the appellant would be willing to trust some lawyer picked out of a phone book or electronic directory. In those circumstances, she found no breach of the appellant's s. 10(b) rights.

[15] The appellant does not submit that the trial judge committed any error in principle in arriving at her conclusion. Instead, the appellant contends the trial judge erred by failing to find that in the circumstances the police were not reasonably diligent in facilitating the appellant's ability to contact counsel. The appellant contends that the police should have done more to facilitate putting him in touch with his counsel of choice. Specifically, he contends that the police should have phoned counsel's cell phone number, and not simply sent a text.

[16] Absent palpable and overriding error, the trial judge's findings on this issue are entitled to deference. The appellant has not demonstrated any such error. As to the appellant's contention that police efforts were insufficient because an officer did not follow up a text to the counsel of choice with a call to the lawyer's cell phone number, the evidence from Sgts. Houser and Porterfield, taken together, was that the message played on the lawyer's office phone directed that a text be sent to the specified number. The police followed the preferred method of communication identified by the counsel of choice.

[17] Accordingly, we see no basis to interfere with the trial judge's conclusion that the police showed reasonable diligence in the circumstances to facilitate the appellant's exercise of his s. 10(b) rights. We do not give effect to this ground of appeal.

The Involvement of a Third Vehicle

[18] A brief review of the evidence is required to place the appellant's third ground of appeal in context.

[19] The appellant testified that he did not recall the collision. He assumed that he moved out of the northbound lane into the southbound lane at some point as he began to go up the hill. He saw lights coming towards him in the northbound lane, directly in front of him, and then remembered two sets of headlights at the point of collision.

[20] Two cars were travelling southbound on Trafalgar Road some distance behind the Bye car. The car driven by Bramling Douglas was about 300 feet behind the Bye car. In his statement to the police, Mr. Douglas recalled seeing two vehicles travelling south ahead of him with two sets of tail-lights, with one set in the northbound lane going south. At trial, he could not say whether there was another vehicle travelling south in the northbound lane.

[21] Further back was a truck driven by Chad Vinden. Just prior to the collision, he saw a car ahead of him (the Douglas vehicle) and, ahead of that, two sets of tail-lights with both travelling in the right-hand, southbound lane. After the collision, one set of those tail-lights continued south.

[22] The Crown's accident reconstruction expert, Cst. Blacklock, testified that: the collision occurred entirely in the southbound lane of Trafalgar Road; the collision was head-on, not at an angle, with a very severe impact; and she could not identify any physical evidence that would explain why the appellant's car entered the southbound lane.

[23] The defence called Thomas Flynn as an accident reconstruction expert. He did not dispute the findings of Cst. Blacklock. He opined that there was nothing on the road that would have prevented a third vehicle from passing the Bye car and that of the appellant without leaving any marks on the ground.

[24] During cross-examination, it was put to Mr. Flynn that if there had been a third car travelling southbound in the northbound lane, parallel to the Bye car, then:

[S]omeone who was coming up the crest of that hill, also in the northbound lane wouldn't have seen that vehicle?

Mr. Flynn: Ah, the – most likely would have seen headlights appearing over the – like light shining over the top, but a direct sight line, I don't think that was possible, no.

Q: Okay. So, do you think that – that same northbound vehicle we're talking about hypothetically could see the – the shine of the head – of the [victims'] headlights in the southbound land?

Mr. Flynn: Ah, possibly, but light coming over the top of the hill could also just appear as – as single set of lights, if you can't see the lights themselves. Just the shine could appear to be one set of headlights. [Emphasis added.]

[25] In her reasons, the trial judge reproduced the last portion of Mr. Flynn's answer as: "Just the shine would appear to be one set of headlights. (emphasis added)"

[26] The appellant contends that the trial judge's incorrect rendering of Mr. Flynn's answer of "could appear" as "would appear" amounted to a misapprehension of his evidence. In the appellant's submission, Mr. Flynn's evidence amounted to saying that the shine could appear to be two sets of lights or one set of lights.

[27] We do not accept this submission.

[28] The trial judge relied, in part, on that portion of Mr. Flynn's evidence to conclude that the appellant was impaired on the night of the collision because the evidence undermined the appellant's theory that he saw two sets of headlights coming towards him as he approached the crest of the hill. The trial judge explained, in para. 276 of her reasons:

In other words, the lights on the other end of the crest could not be attributed to a third car. Since we know that Mrs. Bye was driving southbound, in the southbound lane, the shine of lights on the other side of the crest would be coming from her car. On that aspect of Mr. Flynn's evidence the light shine or glow from the crest of the hill was not from any third car. Mr. Canavan would not have seen a distinct set of headlights, as he said he did. He saw a shine from a single set of lights. His inability to process what he saw is the first indicator of impairment.

[29] In our view, the trial judge's conclusion that the appellant would not have seen a distinct, second set of lights, was not based on a misapprehension of Mr. Flynn's evidence; it was an inference fairly drawn from it. Taken as a whole, Mr. Flynn's evidence was that a northbound-travelling car approaching the crest would see a shine of approaching lights over the crest, not distinct, separate headlights. We see no error that warrants appellate intervention.

Bolus Drinking

[30] At trial, the appellant gave a detailed description of his pattern of drinking just prior to the collision: he testified that he had consumed three tall-boys of beer within 25 or 30 minutes. As his final ground of appeal, the appellant argues that the trial judge erred in rejecting that evidence. The appellant contends that: his evidence was credible and should have been believed; and, the trial judge erred in rejecting it as implausible and contrived by relying on the common sense inference that people normally do not ingest large amounts of alcohol just prior to or while driving: see, for example, R. v. Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424, at para. 29.

[31] According to the appellant, on the night of the collision he had visited an Oakville hockey rink to scout hockey players. He had nothing to drink at the arena. The hockey rink was a one-hour drive from his home. On his way home, he stopped at his brother's house in Georgetown, which is about a 20-minute drive from his home and an eight-minute drive to the collision scene. The appellant's brother was not home. The appellant testified that he decided to wait for his brother to return. He went into his brother's garage, opened a fridge, and over the course of 30-minutes consumed three tall-boy cans of beer. The appellant tired of waiting, got into his car, drove up Trafalgar Road, and collided with the Bye car.

[32] The trial judge did not believe the appellant's evidence about his pattern of drinking prior to the collision. She gave extensive reasons explaining why she rejected his evidence on that point: (i) the appellant did not explain why he drank the way he did that night, especially when there was no reason for him to be as thirsty as his conduct would otherwise suggest; (ii) he gave no explanation "for his rush to finish the three drinks in the given twenty-five minutes"; (iii) his detailed account of his pre-collision drinking "stood in stark contrast to his casual or approximate memory of his activities just prior to his alleged drinking and the of course of his virtually complete inability to remember anything about the accident and the several hours that followed," which led the trial judge to characterize his memory of the drinking as "highly suspect"; (iv) his idea of bolus drinking was "contrived" to produce the lowest possible BAC, given that two of the three tall-boys would have had to be consumed in the 15 minutes prior to the collision; (v) his description of the drinking stood in contrast to statements he gave to other individuals about his evening's activities; and (vi) the appellant's suggested pattern of drinking defied common sense, including the common sense inference that people normally do not ingest large amounts of alcohol just prior to or while driving.

[33] In support of his submission that the trial erred in rejecting the evidence concerning his pre-collision pattern of drinking, the appellant advances two arguments.

[34] First, the appellant submits that in her assessment of his credibility the trial judge did not give effect or sufficient weight to statements he made to a paramedic while he was trapped in his car and to a police officer while he was in the ambulance that he had consumed three tall-boys. We are not persuaded by this submission. In the section of her reasons dealing with the voluntariness and admissibility of statements made by the appellant to the first responders, the trial judge reviewed the statements he made at the scene and in the ambulance about consuming three tall-boys. From the structure of her reasons, it is evident that the trial judge drew, in part, upon that evidence when making her credibility assessment.

[35] Second, the appellant contends that the trial judge erred in relying on the common sense inference "because there was credible evidence of bolus drinking". However, the only evidence of the appellant's pattern of drinking was his own testimony. The trial judge made a clear finding about the appellant's credibility on this point: she did not believe him.

[36] Appellate courts show great deference to findings of credibility made at trial, recognizing the special position of the trier of fact on matters of credibility, including the advantage enjoyed by the trial judge of seeing and hearing the evidence of witnesses: R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 131. In respect of a finding of credibility by a trial judge, an appeal court must defer to the conclusions of the trial judge unless a palpable and overriding error can be shown. It is not enough that there is a difference of opinion with the trial judge: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 10.

[37] In the present case, the trial judge's detailed reasons display a strong grasp of the evidence and the parties' arguments. As well, her reasons offer a full explanation for the findings of fact she made regarding the appellant's pre-collision drinking. In assessing the appellant's credibility, it was open to the trial judge to rely on the common sense inference of drinking at a normal pace: Paszczenko, at paras. 29 to 34. However, as her detailed reasons disclose, that was only one of several factors that led her to reject the appellant's evidence. The appellant has failed to point to any clear and significant error in the fact-finding process articulated in the trial judge's reasons. Consequently, we do not give effect to this ground of appeal.

Disposition

[38] For these reasons, we dismissed the appellant's appeal from conviction.

"David Brown J.A."

"B.W. Miller J.A."

"G.T. Trotter J.A."