Her Majesty the Queen v. Jeffrey Lyle Casselman

Ontario Court of Justice (East Region)

Before: Justice David M. Paciocco – Ottawa, ON

Reasons for Decision

Released: January 29, 2014

Counsel

For the Crown: Mr. J. Neubauer

For Mr. Casselman: Mr. L. Russomanno

I. Introduction

[1] Mr. Casselman has been charged with a number of offences arising from a traffic accident that occurred on 9 February 2013, when Mr. Casselman admittedly drove his 1991 Honda Accord into Derek Smith's snowmobile, causing serious injury to Mr. Smith. Mr. Smith was sixteen at the time. This trial has proceeded as a blended voir dire, in which Mr. Casselman seeks the exclusion of much of the evidence as a result of a claimed "right to counsel" breach that occurred during the investigation.

II. The Evidence

[2] The collision that resulted in this trial happened shortly before 10:00 p.m. as Mr. Casselman was travelling northbound on a dark concession road just south of the Village of Metcalfe, Ontario. I heard evidence from the three witnesses to the accident. For his part, Mr. Smith could recall little. It is agreed that at the time of the accident he was sledding with two other young people, Travis (Dylan) Griffith and Veronica Burgess, each on their own snowmobile. The three had been riding on groomed trails throughout the region. While returning home to the Village of Russell they chose to leave the trails and take a shortcut through the Village of Metcalfe. They ran along a ditch until reaching the heart of Metcalfe and then followed south along the right shoulder of 8th Line Road, knowing that immediately south of the cluster of buildings they could rejoin the trail on the other side, or east side of 8th Line Road. This would require the drivers to cross the paved road, from the opposite shoulder. At that point they are immediately south of the village lights, and there is no artificial light in the area, just the headlights from vehicles. Mr. Griffith referred to the area as pitch black, absent vehicle lights. The speed limit is 80 km per hour at that point but immediately south of the snowmobile trail a sign warns that it will be 50 km ahead.

[3] The eastbound groomed trail intersects 8th Line Road at a right angle. Since snowmobiles cannot turn on pavement, and since it is impossible to turn 90 degrees on the narrow road shoulder, the party planned to intercept the trail by turning 45 degrees shortly before reaching the intersection. The groomed trail is perhaps 6-8 feet wide, with a ditch to the south side.

[4] Travis Griffith, driving the lead snowmobile, managed to cross the 8th Line Road successfully, but Derek Smith, who was behind him, turned too late and overshot the trail. He reached the left shoulder a few feet south of the trail. He stopped so that he could reposition the skis manually in the hope of catching the trail. The snowmobile was still on the 45 degree angle it had travelled, but its exact position relative to the paved portion of the road is unclear. Travis Griffith inferred that the snowmobile was completely off the paved portion of the road since, from Mr. Griffith's vantage point looking at the front of the snowmobile from 100 or so feet down the eastbound trail, it appeared that the front-end was on the downslope into the ditch. He surmised this because its headlight was dim as though shining down. Based on the inference that the nose was into the downslope of the ditch Mr. Griffith presumed that the rear end of the sled had to be off of the pavement. Veronica Burgess, who had not yet crossed, was looking from across 8th Line Road at the rear of Mr. Smith's snowmobile. She was of the impression that the rear of the snowmobile was jutting onto the paved portion of the roadway. The Crown has given the benefit of the doubt on this to Mr. Casselman, arguing before me that the snowmobile was in fact jutting an unknown distance onto the paved portion of the road.

[5] Meanwhile Mr. Casselman was driving his vehicle northbound. There is slight rise in the road about 300-400 metres before the snowmobile trail. It runs slightly downhill towards the trail's intersection. When Mr. Griffith crossed there were no vehicles in sight. Mr. Casselman's vehicle must have been south of the knoll. The stretch from the rise to the trail's intersection is straight and unobstructed. Mr. Casselman would have had an unobstructed, modestly elevated view of the road ahead of him from the time he crested the hill.

[6] From Mr. Casselman's viewpoint as he crested the hill, the headlight of Ms. Burgess's snowmobile, on the west side of the road, would have been obvious. It was angled towards the road, across from the groomed east-bound trail, on an approximate 45 degree angle, tilted towards the field of vision of a northbound driver. This is consistent with Ms. Burgess's testimony and the photographic evidence in exhibit 3, pp.7-8. I have no doubt that the headlight of Ms. Burgess's machine would also have cast light on Mr. Smith's snowmobile, even if she was poised to turn at a point earlier than he did. From where she was Ms. Burgess was able to describe Mr. Smith's actions with some precision, making it obvious that she could see him from across the road, no doubt with the aid of her light. So, too, could Mr. Griffith see Mr. Smith, from 100 feet down the eastbound pathway.

[7] Mr. Smith's machine was equipped with a headlight and two taillights. The taillights are next to one another separated by reflector tape. Mr. Smith testified that both the taillights and the headlight wrap around to the side. The concave shape of the lights that achieve this can be seen in exhibit 3, pp.57 and 61. The tail of Mr. Smith's vehicle would have been facing to the northwest, away from Mr. Casselman's oncoming car. A side view of the headlight would have been available to him, although the headlight may have been pointing downward to a degree described by Mr. Griffith, a point I will return to later.

[8] At the time of the accident there were two side reflectors on the snowmobile's right side which was facing Mr. Casselman's oncoming vehicle. Both sustained damage in the collision. The first reflector is a fluorescent patch on the side of the back of the snowmobile above the tread. Remnants of it can be seen in exhibit 3, p. 63. A light reflector was also housed near the front of the machine where the driver's legs would rest. The remnant of that reflector can be seen in exhibit 3, p.64 and its original location can be gleaned by examining the left side photograph at p.67, where the housing of that reflector is shown below the licence sticker.

[9] Mr. Smith's black and red snowmobile suit was ruined in the accident. He replaced it with an identical coat that was shown in Court during his testimony. It is equipped with grey reflective piping along its arms and shoulders, a white patch on the chest and chevrons on the sleeves, all of which would catch oncoming light.

[10] Mr. Griffith and Ms. Burgess both saw the Casselman vehicle drive into Mr. Smith's snowmobile. They noticed the vehicle only seconds before this happened. Neither thought it was a car. They testified that the vehicle had only one operating headlight, on the passenger side. They inferred when they first noticed it that this was another snowmobile. Mr. Griffith did not situate it on the road. Ms. Burgess testified, however, that the headlight was "just on the right side of the road" "more to the right line than the middle of the road" but "on the left side of the white line." In other words, the vehicle was driving in its lane when she saw it. Mr. Griffith said he heard sudden braking before the collision but Ms. Burgess did not remember that.

[11] When the vehicles collided Mr. Smith was bent over at the waist on the north side of the snowmobile trying to adjust its skis so that the snowmobile could negotiate its way to the left to meet the groomed trail. Ms. Burgess believed Mr. Smith had successfully moved the vehicle on the first pull and it was when he was moving it with his second that the car hit. Mr. Smith's body position would have obscured if not obstructed the prospect of light reflection of the car's light from Mr. Smith's snowsuit.

[12] The exact point of impact on the snowmobile is unclear. There is extensive damage to the entire right-hand side bench area of the sled up to and including the underside of the motor housing, opening the possibility that the car struck the snowmobile mid-way up. I am not equipped to make this finding without expert evidence. What is known is that the snowmobile was vaulted by the collision many metres to the north and it was left, still running on its track, in the bushed area a few metres from the side east side of the road. Damage could have occurred as the snowmobile was being dragged. Cst. Eustace Roberts offered evidence that his examination of the car showed the point of impact on the front end of the car, which he identified as the cleavage shown most clearly in photograph 42. Cst. Roberts did not have the expertise to offer this evidence. All that can be said with certainty is that the front end of Mr. Casselman's car struck the right side of the snowmobile at some point towards the rear, and that the best evidence is that this happened on the paved roadway.

[13] Tragically, when the careening snowmobile struck Mr. Smith he was evidently vaulted against the windshield of Mr. Casselman's car. Witness testimony and photographs confirm that the passenger side of the windshield was opened by a deep and wide depression fracture, and there was blood on the windshield. Indeed, Mr. Smith's helmet was shattered and dislodged during the collision. The jaw piece and fragments of the helmet were ultimately found inside Mr. Casselman's car. Mr. Smith came to rest in the northbound lane of 8th Line Road metres north of the collision sight. He had sustained life-threatening injuries, including every bone in his right leg being broken, and a serious "brain bleed."

[14] Immediately after the collision Mr. Casselman's car veered across the road getting stuck in the snowbank adjacent to the southbound lane. The vehicle began to rev loudly. Mr. Griffith, concluding that the driver was trying to flee, ran towards the dark vehicle to stop the driver. He was clearly running on the roadway as his snowmobile was parked next to it. Before Mr. Griffith could get close enough to read its licence plate, the vehicle managed to free itself, back up and take off at high speed northbound on 8th Line Road. Mr. Smith said it was going as fast as it could go. Ms. Burgess attended to Mr. Smith, while Mr. Griffith ran to a nearby home to summon help. It is agreed that at 10:00 p.m. a 911 call was placed.

[15] Ms. Rhonda Pommainville-Rowe was several hundred metres north of the collision, outside the Metcalfe arena, having a cigarette. It was approaching 10:00, no earlier than 9:50, when she went outside, as her sons had just finished playing hockey and she was waiting for them to change. She saw the three snowmobiles cross on the other side of the road. A short time later she heard "tires squeal" and a "bang." She moved closer to the road to look south when a severely damaged midsized dark coloured car with some kind of pinstripe on the side sped past. She noticed that the passenger side of the vehicle was badly damaged and the passenger's side front wheel was on its rim sparking and smoking and making a strange, loud noise. She was close to the vehicle, only a few feet, but it went quickly enough that she could not see the occupants. Although not contained in her statement Ms. Pommainville-Rowe testified that she could hear someone from inside yelling "Go, go, go." I accept her explanation that she now remembered this detail. The car continued northbound out of sight.

[16] Forest Green Crescent intersects 8th line road in two places, approximately 5.7 kilometres north of the collision site. Around 9:30 on 9 February 2013 Brad and Deborah Haffner had just arrived at their new, empty home on Forest Green Drive, after driving a U-Haul truck from southern Ontario. It was approximately 10:15 and they had just entered the home after Mr. Haffner plowed a path for his truck. They had not even begun unpacking when the doorbell rang on the road-side door adjacent to their garage. It was Mr. Casselman. His hand and his leg had blood on them and he had a bit of blood on his face. He said he had hit a deer and needed to use the phone. Both Mr. and Mrs. Haffner testified that they could not seem to get him to understand that they did not yet have a phone even though it was obvious they had not yet moved in. He seemed to be trying to let himself into the house, but they did not let him. Mr. Casselman asked where he should go and pointed to the right. He was directed to the left to a neighbour's house where there was a light on. Mr. Casselman left and the Haffners closed the door. Seconds later someone knocked at their front door, which faced the same direction as the side door but was several metres to its right. It was Mr. Casselman, and Mr. Haffner had to tell him it was the same house. Mrs. Haffner agreed during cross-examination that the house is large and the area dark, making it possible to mistake the home to be a duplex. Mr. Casselman fell on the snowy stairs as he left. Due to Mr. Casselman's evident confusion, Mr. Haffner assumed he had been drinking but did not smell alcohol or notice any slurring.

[17] Mr. Casselman next went to the Daley's home, next door to the Haffner's. Joanne Evans Daley was home with her two teenage sons. Mr. Casselman asked if he could use the phone as his car hit a deer and he wanted to call his brother and a tow truck. She invited him into the kitchen and helped him attend to his wounds, including a small cut or two to this hand and what appeared to be a bleeding leg under an L-shaped tear in his jeans. She found Mr. Casselman to seem confused. He was agitated and would not stay seated. She handed him a phone but he either could not or did not dial, so she offered to do so. She contacted Mr. Casselman's brother and Mr. Casselman took the phone and asked him to come, saying he hit a deer and his car needs a tow. After the call he told Ms. Daley that he wanted to call a tow truck from the Winchester area, where he was from, but did not seem to know who to call. She offered the name of a Metcalfe towing service but he insisted on someone from Winchester even though he could not identify who should be contacted.

[18] In the meantime Mr. Haffner went outside and smelled burning rubber. The U-Haul truck the Haffners had rented had been parked against the shoulder to the right of its driving lane, and Mr. Haffner noticed that a car had climbed the snowbank immediately adjacent to the U-Haul, to the right of the truck. It came to a stop with its front end past the rear end of the U-Haul, banked on the snowbank with its front end partially buried in the snow. Mr. Haffner assumed the U-Haul had been struck.

[19] Mrs. Haffner inferred that the car was Mr. Casselman's and decided to find him. She approached the Daley's home, assuming he was there. She introduced herself to Ms. Daley and said that she thought someone had driven into the back of the U-Haul. Mr. Casselman said he did not hit the back but came close. He said he came down the road to turn around and looked up and saw the U-Haul and it scared him and he swerved so he would not hit it. Ms. Haffner and Ms. Daley then went to inspect the U-Haul for possible damage. No damage could be seen on the U-Haul but when Ms. Daley saw the extent of the damage to the Honda Accord she concluded that the police had to be called for such a major accident. She suggested this to Mr. Casselman. Both Ms. Haffner and Ms. Daley describe Mr. Casselman responding that "we don't need to call the police as it's just an old car on worth $500," or words to that effect. Ms. Haffner recalled him adding that nobody was injured and he would get his family to come and get the car in the morning. Ms. Daley testified that Mr. Casselman also said that calling the police would just cause him "a world of trouble." She said he pleaded with her not to call the police.

[20] Ms. Daley decided that the police had to be called and under the pretence of getting help from another neighbour, she called Cst. Nicole MacLaurin, who happened to live down the road. Cst. MacLaurin called for on-duty police officer to come and then went to the Daley's residence. She drove past the U-Haul, which she had no difficulty seeing. She then parked and soon after began talking to Mr. Casselman. Shortly after, Cst. Wayne Clayton pulled up in a marked police cruiser. Mr. Casselman said to Ms. Daley, "You called the police," and she apologized, saying it was a bad accident. He said "You are not sorry."

[21] When Cst. Clayton first arrived on Forest Green Crescent he noticed a trail of what appeared to be rubber on the road. The trail led him to the banked Honda Accord at 10:47 p.m. The vehicle did not have a rear licence plate. Cst. Clayton noted that there was ample room for two cars to pass the U-Haul, had the Accord passed on the left side. As he approached off-duty Cst. McLaurin, she identified Mr. Casselman as the driver. Cst. Clayton testified that he approached Mr. Casselman and gave him a "soft" or informal caution that he was investigating a motor vehicle accident on 8th Line Road and that anything Mr. Casselman says could be used against him. Mr. Casselman admitted to being the driver of the banked car and said he hit a deer. Cst. Clayton testified that during this conversation he was approximately five feet from Mr. Casselman, and did not detect the smell of alcohol.

[22] Cst. Clayton observed how extensive the damage to the Honda was, blood on its hood, and no sign of a deer collision and was satisfied that this was the vehicle that had struck Mr. Smith. At this point, 10:48, one minute after he arrived, Cst. Clayton had resolved to place and keep Mr. Casselman in custody. He placed Mr. Casselman under arrest for "failing to remain" at the scene of an accident. He handcuffed Mr. Casselman, and then read him his rights to counsel. He then asked Mr. Casselman if he understood. Mr. Casselman said that he was "not saying anything." He responded similarly when asked if he wanted to call a lawyer now. He repeated the same response when being given his caution and secondary caution. The 524 caution that followed was provided at 10:52 p.m.

[23] After the arrest protocol was finished Cst. Clayton decided to question Mr. Casselman further "to see if he was going to become truthful of what had occurred." He advised Mr. Casselman that he was still investigating the motor vehicle accident and asked who was driving the car tonight. Mr. Casselman said he was. Further questioning prompted Mr. Casselman to admit ownership, along with his son, and included standard questions about the status of his driver's licence. By this point Cst. Clayton was close to the handcuffed Mr. Casselman, and could smell alcohol on Mr. Casselman's breath. The odour was "escalating as he was talking." At this point in the conversation the paramedics arrived. Having noted Mr. Casselman's apparently injured hand and leg, Cst. Clayton suspended the questioning as he felt obliged to let Mr. Casselman get medical attention. Cst. Clayton suspended the questioning, explaining in this testimony that "Mr. Casselman has the right to his privacy at the time." Cst. Clayton let the paramedics take him to their nearby vehicle.

[24] Mr. Casselman was returned to Cst. Clayton a short time later because his injuries were not serious enough to require hospital treatment. While the paramedics were with Mr. Casselman, Cst. Clayton had looked inside the Honda Civic and noted that the keys were in the ignition and there was a 10 ounce bottle with a Smirnoff Vodka label on it. When he received custody back he asked Mr. Casselman if he had consumed alcohol tonight, Mr. Casselman said he had a few drinks a couple of hours ago and at 11:04 he gave Mr. Casselman an alcohol screening device demand.

[25] After the demand was made Mr. Clayton failed on his second attempt at 11:06, and was re-arrested at 11:07 for "over 80," "dangerous operation" and failing to remain, at which time he was reprocessed. This time he said "yes" when asked if he understood his right to counsel and said "yes" when asked if he wanted to speak to a lawyer. At 1:13 he was provided with an evidential breath demand and he was brought precipitously to the Elgin St. police station.

[26] In the meantime Cst. Sweet had taken over the scene on Forest Green Crescent. He observed that the front hood and bumper of the Honda were dented. The hood appeared to have blood on it and the front windshield was caved in and the front tire was completely gone. All that remained was the rim. He also observed what he believed to be the remnants of a red and black snowmobile helmet, the kind Mr. Smith testified before me he had been wearing, inside the car, including small fragments and the chin area of the helmet. He testified that the chin area piece was in the front. Photographic evidence (exhibit 3 p.50) shows it to have been in the back seat passenger's side on the floor.

[27] Cst. Clayton and Mr. Casselman arrived at the Elgin St. police station at 11:37. Cst. Clayton testified that en route to the station he could not smell alcohol, but once at the sally port when he returned to the car to get Mr. Casselman he could smell alcohol, as the car was warm. On arrival Mr. Casselman spoke to counsel without delay, in a 14 minute conversation. Around 12:30 he was brought to the breathalyzer technician, Cst. Martin Lachance, and at 12:37 was permitted to call counsel again for seven more minutes after asking to speak to his lawyer about the potential "over 80" charge. At 12:50 he provided a sample into the approved instrument that produced a reading of 89 milligrams of alcohol in 100 millilitres of blood. At 1:12 the reading was 85 milligrams.

[28] Both Cst. Clayton and Cst. Lachance gave evidence relevant to Mr. Casselman's sobriety. Cst. Clayton offered the opinion after the roadside screening device that Mr. Casselman was over the legal limit, "the only thing I had was the smell. His eyes were a little glossy but other than that he was walking fine, he was not all over the place, he was not abusive. From the scene on I never had any issues with him other than at first he did not want to speak, he was generally co-operative." Cst. Lachance said that throughout his dealings with Mr. Casselman in the small breathalyzer room the smell of alcoholic beverage was evident, he had a red coloured face, his eyes were bloodshot and his pupils were dilated and his speech fair. While Cst. Lachance noticed a slight slur he allowed that it could be his accent. He did not notice any balance problems and Mr. Casselman's walking did not appear to be out of the normal.

[29] The Crown called an expert toxicologist, Jean Paul Palmentier, from the Centre for Forensic Sciences. Since the first breath sample was secured from Mr. Casselman more than two hours after the last known time of driving, Mr. Palmentier was asked to calculate Mr. Casselman's blood alcohol content between 9:30 and 10:00 p.m., based on the readings obtained. Applying calculations generous to Mr. Casselman given available variables and conditions, and based on four assumptions, Mr. Palmentier testified that at that time Mr. Casselman's blood alcohol would have been between 85 milligrams and 145 milligrams of alcohol in 100 millilitres of blood.

[30] The first two of the four assumptions relied upon by Mr. Palmentier related to the usual elimination rate for healthy adults, and the plateau effect. Neither of these assumptions are at issue in this case.

[31] The third and fourth assumption was that Mr. Casselman did not engage in bolus drinking. Mr. Palmentier explained that if Mr. Casselman had done so, using the most generous assumptions his blood alcohol level would have been at or below the legal limit at the time of the accident, estimated at 9:55-10:00, if he had consumed 1¼ standard beverages within the 15 minutes prior to that time. A standard drink would include 1½ fluid ounces of 40% spirits, requiring Mr. Casselman to consume 1.875 fluid ounces to be at 80 at the time of the accident. He would have had to have consumed 2¾ standard drinks in the 15 minute period to have had a blood alcohol content of 50 milligrams of alcohol in 100 millilitres of blood at the time of the accident. If the alcohol content was 60%, applying the most generous assumption ¾ of a standard drink, or a little over an ounce consumed in that 15 minute period, would have brought Mr. Casselman's blood alcohol level calculation to 80.

[32] The fourth assumption was that Mr. Casselman did not consume alcohol after the accident. Had he done so in the quantities indicated in the bolus drinking scenario, he would have been at the legal limit or at 50 milligrams, respectively.

[33] Mr. Palmentier was shown the Smirnoff's vodka bottle seized from Mr. Casselman's car. He testified that in spite of its label, this unsealed bottle did not contain vodka. The liquid was amber. He also offered the opinion that it did not contain 60% rum, because the colour was too light. He did not know what other spirits, if any, came in 60% alcohol by volume. The substance in the bottle was not tested to confirm whether it was alcohol, nor was an empty Aquafina water bottle found on the floor of the vehicle to see what it had contained. It was agreed between the parties that the Smirnoff's vodka bottle was filled past the point that is conventional but that there was still room for up to approximately .8 oz of liquid.

[34] Mr. Palmentier also offered testimony about the effects of alcohol on the human body. He indicated that it is possible for impaired individuals to be able to move or speak without apparent impairment based on their experience and compensation. He said that this is not possible for tolerance to lessen the impacts that alcohol has on the mental processes, including divided attention, choice reaction time, decision-making, judgment of speed, judgment of distance, and vigilance, or to lessen physiological changes such as red or glassy eyes or flushed face. He offered the opinion that the impairing effects of alcohol become significant starting at 50 milligrams of alcohol in 100 millilitres of blood and increases as blood alcohol content does, irrespective of the lack of apparent physical effects.

III. Analysis

A. The Charter Application

[35] Section 10(b) of the Canadian Charter of Rights and Freedoms assures that after someone is detained and informed properly of their right to counsel, the police must refrain from eliciting evidence from the detainee until he has been given a reasonable opportunity to consult counsel: R. v. Manninen. The reason for the moratorium on using the accused as a source of evidence is obvious. One of the primary purposes for the right to counsel is to enable detained individuals to discover what their legal rights are relating to the collection of evidence before that evidence is collected. Mr. Casselman urges that Cst. Clayton breached his duty, and therefore Mr. Casselman's rights, by immediately questioning him after he was arrested and informed of his right to counsel, before Mr. Casselman was given a real opportunity to consult counsel. This breach, Mr. Casselman contends, produced answers to the questions, and it was while he was answering that Cst. Clayton detected the odour of alcohol in his breath. The answers and that odour gave the grounds to Cst. Clayton for the use of an alcohol screening device that produced the fail, which in turn enabled evidential breath samples to be secured from him. Mr. Casselman expressly seeks exclusion of those evidential breath samples. By implication, the Crown correctly understood that Mr. Casselman was also seeking exclusion of the evidence secured while he was being questioned, and the Charter application was argued on that basis.

[36] The Crown did take objection during argument to any complaint by Mr. Casselman during his Charter application relating to the sufficiency of the grounds for the alcohol screening test demand, because this had not been pleaded in the Charter application. Mr. Neubauer argued that the Crown was prejudiced when this issue came up in argument, as the Crown had not dealt with it while evidence was being presented, not having received sufficient notice. In my view if the Crown was prejudiced by the contents of the notice, it was prejudice of the Crown's own making by reading the Charter notice in a stilted fashion. The notice was ample. First, it was inherently obvious that the legality of the demand would fall into issue. The notice explicitly asks for exclusion of the evidentiary breath samples. On the facts, including those expressly pled in the Charter notice, the demand was the legal basis for securing those impugned breath samples. It is implicit in the request to exclude the samples that the impact of the alleged Charter breach on Cst. Clayton's ability to make a demand is a necessary link in the train to that exclusion.

[37] Second, even had the validity of the demand not been implicitly and necessarily implicated in the Charter application, the notice itself was clear enough. Section 8 was pled, a provision that would be relevant in context only by impugning the demands. The Crown disregards specifically pled provisions as boilerplate only at its peril. Moreover, when Mr. Russomanno described his Charter application prior to Cst. Clayton's testimony Mr. Russomanno complained that the evidence secured during the Charter breach constituted the grounds for the demand. The written Charter notice itself recites Cst. Clayton's purported grounds for reasonable suspicion (para. 5), complains that "[t]he police cannot rely on breaches of the Charter to provide an evidentiary basis and grounds for a subsequent search and seizure"(para 7), recites that the observations Cst. Clayton made as a result of the alleged breach formed the basis for the ASD demand (para.8), and restates that Cst. Clayton relied upon unconstitutional observations and answers (para.12). During his questioning of Cst. Clayton Mr. Russomanno focused on the grounds for the demand, in a procedure adopted in which the Crown was given latitude during re-examination to explore new issues that had arisen. As I say, the Crown had ample notice. I am therefore going to entertain the application in its entirety, including the role that the answers and alcohol odour allegedly secured as a direct result of the breach may have had on the legality and hence the constitutional validity of the demands that led to the evidential breath samples.

[38] The burden of establishing the Charter breach is on Mr. Casselman, on the balance of probabilities. Factually the foundation for that claim is not disputed. The Crown agrees that things happened essentially as Mr. Casselman contends, namely that Cst. Clayton arrested Mr. Casselman for failing to remain, handcuffed him, read him his rights to counsel, and then questioned him immediately. During his exchange with Mr. Casselman, Cst. Clayton formed his grounds for an Alcohol Screening Device demand, administered the test and then re-arrested Mr. Casselman. On the evidence it was Cst. Clayton's intention all along to take steps to put Mr. Casselman in touch with a lawyer later, after they had arrived at the station.

[39] The Crown contends that there was nonetheless no breach of the Charter on these facts because (1) Cst. Clayton had the authority to question Mr. Casselman under the Highway Traffic Act, (2) the duty to refrain from using the accused as a source of evidence is suspended for roadside investigations into alcohol driving offences, and (3) Mr. Casselman waived his right to counsel in any event. I find none of these arguments to be persuasive.

[40] With respect to the Highway Traffic Act, I accept that police officers are permitted to question drivers about matters relevant to their compliance with the rules of the road, including for the purpose of receiving accident reports. Indeed, Charter rights related to detention and gathering evidence are suspended when this is occurring: R. v. Harrison 2009 SCC 34 at para. 48, and see R. v. Johnson 2013 ONCA 177 and R. v. Suberu 2009 SCC 33. Once a detained driver is arrested, however, the landscape changes. The driver is no longer being delayed temporarily to enable administrative Highway Traffic Act processing. The deprivation of his liberty is far more intrusive. This in my view triggers the constitutional obligation on police officers to refrain from using the accused as a source of evidence. The fact that functionally officers can conduct a dual purpose investigation does not, in my view, change this. It is highly doubtful that the duty to refrain from using the accused as a source of evidence can be abridged by a provincial statute empowering the police officers to ask questions, or by legislatively compelling drivers to answer questions. If that were so in criminal driving cases police officers could continue with impunity to question arrested drivers while they were being transported to the station. Charter case law is careful to ensure that administrative obligations do not denigrate from constitutional rights; where a driver responds to questioning because of a legislated duty to do so, the answers secured cannot be relied upon in a criminal prosecution: R. v. Soules 2011 ONCA 429. It would create an uneven Charter landscape, in my view, to hold that questioning authorized under Highway Traffic Act powers is permitted to override the duty to refrain from using the accused as a source of evidence before they have enjoyed a real opportunity to get legal advice.

[41] In any event, the Charter breach in this case does not turn on that legal issue of whether questioning is permitted after arrest for Highway Traffic Act purposes because that is not why Cst. Clayton was questioning Mr. Casselman, in spite of the evidence he gave during re-examination to the contrary. During his evidence in-chief when asked his purpose in questioning Mr. Casselman, Cst. Clayton responded "to see if he was going to become truthful about what had occurred." In context, the occurrence Cst. Clayton was referring to was the hit and run that he had used his criminal powers of arrest to address. Cst. Clayton was not concerned with ticketable offences when he questioned Mr. Casselman. He was looking for admissions of guilt relating to the criminal investigation allegation he had arrested Mr. Casselman for.

[42] In support of its argument that Mr. Casselman's Charter rights were suspended during the preliminary alcohol driving investigation, the Crown relies on case law supporting the proposition that a police officer that arrests a suspect for one offence, is not prevented by the Charter from shortly afterward shifting the focus of the investigation to an alcohol driving investigation and then benefiting from the reasonable limitations on Charter rights that apply in alcohol driving investigations, including suspending the informational component of the right to counsel and securing a roadside screening demand before counsel is consulted: R. v. Boudreau [2005] O.J. No. 1175 (Ont.C.J.); R. v. Trunzo [2007] O.J. No. 1163 (Ont.S.C.J.); R. v. Lapointe [2004] O.J. No. 3955 (Ont.S.C.J.); R. v. Chicot [2000] O.N. No. 2226 (Ont.C.J.). These decisions are sensible, but they differ materially from what occurred here. Cst. Clayton did not happen upon evidence of alcohol consumption in the proper conduct of the initial arrest; instead he secured the evidence of alcohol consumption by engaging in the very questioning that is being impugned in this application. In effect and in context, the Crown is arguing that even if the questioning that led to the evidence of alcohol consumption was obtained in violation of the obligations that were in place given the nature of the detention at the time, once alcohol consumption was determined that impugned breach disintegrates because had the alcohol consumption been noticed from the outset the Charter obligations that are alleged to have been violated would not have arisen. Moreover, the decisions relied upon by the Crown involved the propriety of pursuing the newfound alcohol driving investigation by requiring detainees to provide roadside samples. In this case the impugned conscription of the accused was his questioning by Cst. Clayton. It is noteworthy that in both Chicot, supra at para.15, and Lapointe, supra at para. para.16, it was important to the judges in validating a post-arrest suspension of rights that the officers had not interrogated the detainee. And in Bourdeau, supra at para.11, Fournier J. took comfort in the fact that once the Charter rights were suspended to facilitate the newfound alcohol driving investigation, the officer did not pursue his original line of investigation in breach of the Charter. In this case it is clear that Cst. Clayton questioned Mr. Casselman because he did not believe his story about hitting a deer, and wanted "to see if he was going to become truthful about what had occurred." In other words, he was continuing his original investigation when the questions were asked. I reject the notion that Mr. Casselman's right to counsel was properly suspended in this case.

[43] Finally, I disagree with the Crown's third point. There was no waiver by Mr. Casselman of his right to counsel when he responded "not saying anything" when his right to counsel was initially read to him and he was asked whether he wanted to call a lawyer now. It is trite law that the test for the waiver of a Charter right is a "strict one": R. v. Wilford [2004] O.J, No. 258 at para. 10 (Ont.C.A.). A waiver must be clear, unequivocal and made with full knowledge: R. v. Clarkson (1986), 50 C.R. (3d) 289 at 301-302 (S.C.C.). At the very least, it requires a communicated intention not to enjoy the right. The statement "not saying anything," could not reasonably be taken to mean this, in the circumstances of this case. First, this was not a comment made while being offered a phonebook or phone at the station, where one could imply from his comment and his inaction that he was not interested in taking up the opportunity. This comment was made at the roadside long before any desire he had to speak to counsel could realistically be facilitated. Second, Mr. Casselman, who had at that point been given the soft caution, responded "not saying anything" to every question posed throughout his initial processing. He said it when asked if he understood the primary and secondary caution, the rights to counsel, the 524 warning, and when he was asked if he wanted to contact a lawyer now. He was clearly communicating that he did not want to say anything at all to Cst. Clayton. To treat this as a waiver of the right to counsel is tantamount to treating silence as a waiver. Nor is this a situation that is governed by those authorities dealing with the lapse of the right to counsel for not having exercised due diligence in enjoying it, such as R. v. Smith, relied upon by the Crown. Those authorities are relevant when the opportunity to facilitate the right is presented and not taken up. That is not what happened here. What happened here is Mr. Casselman was detained, advised of his right to counsel, and then immediately conscripted to assist in his own investigation through police questioning undertaken before he could get advice. This was not done by an officer who honestly felt that Mr. Casselman had lost his Charter protection through waiver, but by an officer who intended to take Mr. Casselman to a phone after they arrived at the station and present him with a list of lawyers. The defence has discharged its burden. Mr. Casselman's right to counsel was violated as contended.

[44] As indicated, Mr. Casselman seeks the exclusion of evidence as a result. All of the evidence sought to be excluded – the answers to the questions, the odour of alcohol detected during the impugned conversation and the breath samples secured based on demands arising from those answers and that odour – were obtained in a manner that violated the Charter. The link required between a breach and the target evidence can be established in different ways: R. v Wittwer 2008 SCC 33 at para. 21. This case exemplifies each of them, including the firmest kind of link, causation. The breach led ultimately to all of the evidence sought to be excluded. The remaining question, then, is whether Mr. Casselman has demonstrated on the balance of probabilities that, in all the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute. The principles that govern that determination were, of course, set out in R. v. Grant 2009 SCC 32, and involve the examination of the seriousness of the violation, the impact of the violation on the Charter protected interests of the accused, and the negative impact exclusion would have on the reputation of the administration of justice.

[45] The first factor, the seriousness of the Charter breach, is about the "gravity of the state conduct": R. v. Grant at para. 73. It turns primarily on the behaviour of the police officers who breached the right. In making this assessment courts consider the blameworthiness of the conduct, its degree of departure from Charter standards, and the presence or absence of extenuating circumstances.

[46] In terms of the blameworthiness of the conduct I agree with the Crown that Cst. Clayton did not intentionally or blatantly disregard Mr. Casselman's rights. Cst Clayton displayed credible concern for ensuring that Mr. Casselman would enjoy his rights, including his right to privacy when the paramedics came, and his entitlement to get medical attention as a priority. I also accept Cst. Clayton's testimony that he would hope that Mr. Casselman would call a lawyer, as this is his right. I think Cst. Clayton wanted to comply with the Charter. Still, I am shocked by Cst. Clayton's ignorance of what the Charter requires and what its relevant rules mean, an ignorance so deep that in my view the Charter violation was blameworthy.

[47] First, this is not a case where Cst. Clayton had honestly applied a coherent legal theory that his duty to refrain from using Mr. Casselman as a source of evidence did not apply. It is a case where he was entirely unaware that this duty even existed. He believed that after the rights to counsel and caution have been read to a detained person, and before they are given an opportunity to call counsel, the Charter permits officers to continue to ask questions. In his view, the relevant Charter right of the accused is his right to refuse to answer if he wished. The law to the contrary is longstanding, trite and straightforward. It is remarkable that this officer did not know it.

[48] Second, it is evident to me that Cst. Clayton does not understand what the waiver of a Charter right entails, and he does not appreciate its legal significance. When asked questions relevant to waiver, even in plain language, he answered as though the only issue was comprehension of the Charter warning. When asked if Mr. Casselman's was unequivocal about seeing a lawyer he said "No, like I said. My perception was he understood his rights…." When asked if it was his understanding that a waiver has to be clear, unequivocal and informed he paused and shrugged and said "I will say yes." Obviously courts have to be reasonable and look at substance and not form. No-one can reasonably expect officers to quote legal standards verbatim. It is obvious to me, however, that Cst. Clayton was not halted by the legal formula. He simply did not know, even in broad strokes, what a waiver is. He was completely unequipped in dealing with Mr. Casselman to come to a reasonable conclusion about whether he had made a legally sufficient waiver of his constitutional rights. Indeed, he did not merely misjudge whether there was a waiver in this case. I am persuaded that he was not even thinking of waiver. The concept had no significance to him at the time because he felt he could continue to ask questions in any event, and he testified that he was going to bring Mr. Casselman to the phones when he got to the station.

[49] Finally, I was troubled by Cst. Clayton's conception of the related right to silence. He testified that his view is that anyone who invokes their constitutional right to silence does so because they know they have been caught, and he characterized Mr. Casselman as being uncooperative when he chose not to speak. While the Charter does not mandate police attitudes about Charter rights, this unhealthy misperception of why someone might wish to enjoy their constitutional right to silence and his belief that anyone who remains silent is being uncooperative contributed to what happened here. Cst. Clayton testified that he chose to continue questioning Mr. Casselman, even after he was given his right to counsel and said he was not saying anything, to see whether Mr. Casselman was going to become truthful.

[50] Cst. Clayton's troubling lack of understanding may be the result of poor police training. He testified that the only instruction he had received on these issues was at his initial police training program four years ago, and he could not say how much time was spent on these issues. Regardless of the source of the problem, Cst. Clayton's confusion is deeply problematic. The Charter cannot be respected if officers do not understand its basic requirements. I would characterize Cst. Clayton's blameworthiness as unintentional, honest, yet inexcusable ignorance.

[51] The seriousness of the breach is also highlighted by the degree of departure from Charter standards. No sooner had the duty to delay using Mr. Casselman as a source of information arose that extensive questioning began. The Crown urges, to the contrary, that had Cst. Clayton simply held off on the arrest, he could have done all that he did with the approval of the Charter authorities. There is therefore no gulf, he urges, between this investigation and an appropriate one. All that interceded was the misstep of a premature arrest. This looks at things, in my view, from the wrong angle. This officer's misstep resulted in a handcuffed man being questioned immediately after being told he had the right to counsel but before he could exercise it, something far removed from what the Charter promises.

[52] As for extenuating circumstances, there are none. I find the breach of Mr. Casselman's rights to be very serious.

[53] With respect to the second factor, the Supreme Court of Canada in R. v. Grant noted that the impact of the breach has to be determined by examining the degree of intrusion into the Charter protected interests of the accused. Generally, Mr. Casselman, was questioned before he had a chance to get advice on his rights and obligations. His ability to enjoy the comfort of legal advice before being put in that position was intruded upon. Ms. Daley described Cst. Clayton as being "brusk" and I have no doubt he was, but I have no evidence that Cst. Clayton was bullying or inappropriate. The intrusion of the investigative technique itself, the act of being questioned per se, was not overly-intrusive. Simply put, Mr. Casselman experienced questioning without the benefit of appropriate advice.

[54] This is not, however, the end of it. Grant makes clear that the degree of intrusion is measured not only by the conduct of the officers but also by the nature of the evidence secured. Where the violation of a protection against self-conscription produces statements, for example, the impact on the Charter protected interests is generally great, and they are prima facie inadmissible: at para. 92. This is because the violation will have compromised the right to silence of suspects, which is of fundamental importance in preserving liberty. As a result of the Charter breach Mr. Casselman made statements without the benefit of legal advice about how best to exercise his right to silence. The breach was therefore seriously intrusive of his right to silence even though he was aware of that right from the soft caution he had received. There is a difference between receiving information from the police and receiving advice from a lawyer. It is noteworthy that after Mr. Casselman spoke to counsel he assiduously invoked his right to silence in the face of all questions.

[55] The impact of the breach was much less significant, in my view, with respect to the smell of alcohol. Odour, is not per se self-incriminating, and is not made self-incriminating simply because it is detected during police questioning. There is a world of difference between detecting an unpreventable odour and causing someone to create new self-incriminating evidence by answering questions relevant to their conduct. Further diminishing the intrusion is the fact that the odour of alcohol would have been discovered even without the inappropriate questioning. Clear "discoverability" of this kind is a factor that lessens intrusiveness: R. v. Nolet 2010 SCC 24 at para. 54. I am confident that the odour of alcohol would clearly have been detected, even without the Charter breach. I say this mindful that neither Ms. Haffner nor Ms. Daley noted the smell of alcohol when speaking to Mr. Casselman in Ms. Daley's kitchen. Mr. Casselman was properly under arrest at the time of the breach and was going to be processed. I accept Cst. Clayton's evidence that he was not going to be released but taken to the station. This would involve experienced police officers interacting with him in close quarters. As things in fact occurred, by the time the warm police vehicle arrived at the sally port, Cst. Clayton could smell the alcohol when he went to remove Mr. Casselman from the car. Cst. Lachance also said it was apparent throughout his dealings with Mr. Casselman in the breath-room. The Charter violation was not intrusive in leading to the discovery of the odour of alcohol.

[56] The intrusiveness of the breach in securing the breath samples themselves is more complex. While such samples are secured by conscripting the accused to produce evidence against himself, there is a recognized difference between the highly intrusive act of compelling the creation of evidence though the generation of statements, and capturing breath for analysis. Meanwhile, the act of requiring someone to blow into a machine has been recognized as "relatively non-intrusive." I agree with the decision in R. v. Ah-Yeung 2010 ONSC 2292 at para. 61, that this does not paint the whole picture. When someone is arrested in order to permit samples to be obtained the intrusion into their liberty can be significant. In this case, however, Mr. Casselman was already under lawful arrest for failing to remain. His liberty was suspended and he was going to be taken to the station regardless of the breach.

[57] The issue of discoverability arises here as well. The Crown contends that the police would have had objective grounds to make the Alcohol Screening Device demand even without the Charter breach. I agree. Cst. MacLaurin provided Cst. Clayton with information that Mr. Casselman had been driving the suspect vehicle, and Cst. Clayton smelled his breath alcohol at the sally port, well within the time needed to make a roadside screening device demand. In law, the smell of breath alcohol on a driver can objectively support such a demand. The closer question, however, is whether it is clear that an Alcohol Screening Demand would in fact have been made without the Charter breach, leading in turn to the evidential breath sample. In my view Cst. Clayton's evidence does not permit such a finding. His answers as to when he formed the grounds for the demand were confused, leaving serious doubt about whether he would subjectively have formed the grounds and made the demand on the basis of smell and driving alone. At times he said he had such reasonable suspicion when he smelled the alcohol. His notes, however, record Mr. Casselman's admission that he was the sole driver that evening, and then note that "At this point I had reasonable suspicion." At the end of his cross-examination he seemed to adopt that position but when confronted earlier with the challenge that he had not formed his grounds until this admission was made, he explained that his reference to "At this point" was "just how he worded it." I have difficulty with this. The only reason to include the temporal detail - "at this point" - is to record when the event arose. My concern that it took the admission before Cst. Clayton felt he had the grounds is not allayed by the fact that the reasonable suspicion he recorded as having was that Mr. Casselman was impaired as opposed to having alcohol in his body. The context makes clear he was referring to the grounds for the roadside demand and he either misspoke when describing what he had reasonably to suspect, or he does not understand the legal trigger for a roadside test. In either event this is not a clear case where the impact of the breach should be mitigated because of inevitable discoverability; I have no confidence a screening demand would have been made without the admissions made by Mr. Casselman.

[58] The effect on Mr. Casselman's Charter protected interests in securing his breath samples was that as a result of the constitutional violation he was subjected to the indignity of having to participate in the investigation against him by having to engage in a relatively non-intrusive process that may not have occurred had his Charter rights not been violated.

[59] The last Grant factor to be considered is the impact of exclusion on the repute of the administration of justice. This is a cogent and appropriate consideration given that the ultimate question under section 24(2) is whether, given the long-term interests of the administration of justice, the reputation of the administration of justice would be brought into disrepute by admission. It stands to reason that the more important the evidence is, the less likely such disrepute is to occur where a court decides it is simply too costly to society's interests to exclude the evidence in order to avoid condoning the Charter breach or denigrating the Charter right in question. In judging the importance of the evidence, Courts focus on its reliability and its importance to the Crown's case. The nature of the offence is also to be considered, since the societal interest in adjudicating a case on its merits increases with the seriousness of the allegation (R. v. Johnson 2013 ONCA 177 at para. 31). The majority of the Supreme Court of Canada in Grant, supra at paras. 81, 83-84 (and see R. v. Vu 2013 SCC 60 at para. 73) directed courts, however, to recognize that this cuts both ways. The more serious the charge, the greater the interest the accused has in the enjoyment of his Charter rights because the stakes are higher. Analytically, since the impact of excluding the targeted evidence varies with the kind of proof in question, I will consider the impact of exclusion while balancing the pro-exclusionary factors, proof by proof.

[60] I will begin with the statements. I am referring to those that Cst. Clayton testified were made after he had given Mr. Casselman his right to counsel, but not those he said before, including Mr. Casselman's first admission of driving and his initial claim that he had hit a deer. In taking this position I am rejecting Mr. Russomanno's contention that all of the statements occurred after the arrest, a claim based on the apparent chronology in Cst. Clayton's notes. The meticulous Ms. Daley testified that Cst. Clayton spoke to Mr. Casselman before going over and looking at the vehicle, and then coming back and arresting him. This confirms the testimony Cst. Clayton gave before me about having a pre-arrest conversation.

[61] I am persuaded that the admission of the post-arrest statements made by Mr. Casselman at Forest Green Crescent would bring the administration of justice into disrepute, and I am therefore excluding them from evidence. The decision by Cst. Clayton to question Mr. Casselman was significantly blameworthy and a sharp departure from what the Charter expected. While the process of questioning itself was not oppressive in any way, it was deeply intrusive of Mr. Casselman's Charter protected interests to be put in a position to respond to questions without the benefit of legal advice. As indicated, statements are prima facie inadmissible. This prima facie position is not overcome in the circumstances of this case. In making this determination I recognize that the statements that the Crown seeks to rely upon for their truth are reliable, and it is reliable evidence that Mr. Casselman falsely claimed while answering questions that he hit a deer. I am also mindful that while the impugned statements are not essential to any of the charges, the exclusion of the admission of alcohol consumption does have a domino effect on the breath readings, a point I will return to below. Still, it is my view that given the seriousness of the breach and its impact on the Charter protected rights of the accused, the long-range interests of the administration of justice and hence its repute are better served by exclusion, even in this serious prosecution.

[62] I am going to admit the evidence that Cst. Clayton smelled alcohol on Mr. Casselman's breath, even though this evidence is of modest value to the Crown given Cst. Lachance's uncontested evidence that he too smelled breath alcohol. While it was during a serious Charter breach that this odour was first noticed, this non-conscriptive information was not targeted and was discovered incidentally, something that inevitably would have occurred. The seriousness of the violation can be addressed sufficiently to protect the repute of the administration of justice by excluding the evidence that depended on the breach for its discovery.

[63] Finally, I am going to exclude the evidential breath readings. While the process of securing breath samples is relatively non-intrusive, Mr. Casselman has established on the balance of probabilities that they would not have been secured from him had it not been for the Charter breach. I can have no confidence on the state of the evidence that Cst. Clayton, who had charge of processing Mr. Casselman, would have made a roadside demand on the basis of smell alone, even though this furnished him with objective grounds to do so. Factually, I am satisfied that the unconstitutional questioning in this case produced answers which provided the foundation relied upon for the successive demands, and with those answers gone, the demands themselves must be judged to have been illegal and unconstitutional. More importantly, the breach that led to the demands that led to the samples was a cogent example of inexcusable ignorance, resting at the serious end of the blameworthiness spectrum. I understand that the breath samples furnish evidence helpful in the impairment allegation in Count 4 and essential to Count 1, and they are reliable evidence as interpreted by the expert testimony of Mr. Palmentier but it is my view that to admit this evidence, factually obtained only because of this serious breach I have identified, would bring the administration of justice into disrepute, even on charges as grave as those faced by Mr. Casselman.

B. The Charges

[64] It is convenient to consider the charges out of sequence to facilitate analysis, based on the evidence I have admitted and do accept.

Count 1 – s.255(2.1)

[65] This charge alleges that Mr. Casselman had more than the legal limit of alcohol in his body when he caused the accident. Since I have excluded the evidential breath samples I must find Mr. Casselman not guilty on this offence, even without considering further the issue of possible post-offence drinking.

Count 3 – s.252(1.2)

[66] Mr. Casselman is charged with failing to stop his vehicle and give his name and address, with intent to escape civil or criminal liability, after being involved in a motor vehicle accident on the 8th Line Road that caused bodily harm to Derek Smith, contrary to section 252(1.2) of the Criminal Code of Canada. He pled not guilty to this offence, but guilty to the included offence of failing to remain at the scene of the accident, simpliciter, contrary to section 252(1). That is a formal admission by Mr. Casselman of all of the elements of section 252(1.2), with the exception of his knowledge that he caused bodily harm to another person, which he denies. Knowledge is therefore the only element that requires close examination.

[67] The Crown can satisfy this "knowledge requirement" either by establishing actual subjective knowledge or wilful blindness. Wilful blindness is treated as the equivalent of knowledge and exists where the accused person actually suspects that a fact is likely true, yet makes the wilful choice not to inquire out of a desire to be able to maintain ignorance: R. v. Briscoe 2010 SCC 13 at paras. 21-24.

[68] I will begin with the most obvious proposition. In my view Mr. Casselman's plea to the included offence of failing to remain contrary to section 252(1) is, in context, an effective admission that he knew he had collided with a vehicle, in this case a snowmobile. Since the factual foundation for that plea was not expressed, however, I will explain why the evidence before me leaves no doubt that even if Mr. Casselman did not see Mr. Smith's snowmobile when he first crested the hill, he saw it and recognized it before the collision. I make this confident finding in part because I accept the evidence of Mr. Griffith and Ms. Rowe-Pommainville that they heard tires squealing before the collision. I agree with defence counsel's submission that Mr. Casselman clearly put on his brakes. He would not have done this had he not seen the snowmobile he was about to hit, jutting out into the roadway.

[69] Even if Mr. Casselman had but a fleeting view of the object in front of him as he was braking, that object would easily have been recognizable as a snowmobile before impact. While he may not have noted the lights and reflectors when he crested the hill, he could not have missed them as he was riding up into the machine.

[70] Meanwhile the collision itself was a heavy one, doing substantial damage to Mr. Casselman's vehicle and then driving the snowmobile metres down the road in front of him. Moreover, I have no doubt that Mr. Casselman would also have seen Ms. Burgess's snowmobile as he approached the collision site. It was on the west side of the road with its lights facing him while she waited for Mr. Smith to reposition his machine. Even if his view of Mr. Smith's machine was too transient to register initially, the weight of the collision and the presence of another snowmobile across the street would have made it obvious to him that he had struck a snowmobile.

[71] Did he know or subjectively suspect that another individual had been injured in the collision? I appreciate that Mr. Smith was behind the front end of the snowmobile at the time, aligning its ski and this could have obscured Mr. Casselman's line of sight to Mr. Smith. It is clear from the evidence, however, even without the assistance of an accident re-constructionist, that when the snowmobile was struck Mr. Smith was vaulted onto the windshield. This is obvious from the collapsed passenger side windshield of Mr. Casselman's vehicle. It was depressed and displaced with force by a large object. This object could not have been the snowmobile. Indeed, part of the snowmobile helmet Mr. Smith was wearing was found inside Mr. Casselman's vehicle. Mr. Smith was not knocked away by the collision. He clearly flew onto the car and may have been carried forward on the car or vaulted forward since he was found metres north of the collision on the roadway. Even though this process doubtlessly took milliseconds, I have no doubt it would have been obvious to Mr. Casselman that after he hit the snowmobile something large flew into his windshield.

[72] Immediately after the collision Mr. Casselman's vehicle ended up stuck on the opposite side of the road. I have no doubt he would have made a quick appraisal of the condition of his vehicle at the time – the condition of the front windshield could not have been missed, nor could the implications of that damage.

[73] I also accept the evidence of Mr. Griffith that as Mr. Casselman was revving his engine to remove his vehicle Mr. Griffith was running towards it to get its licence number. It can be inferred that Mr. Griffith was running on or along the road; when he left his snowmobile to give chase his snowmobile was at 8th Line Road. Mr. Griffith would have had the beam of Ms. Burgess's headlight behind him. When Mr. Casselman freed his vehicle and backed up I therefore have no doubt he would have seen Mr. Griffith running towards him, as well as the two intact snowmobiles.

[74] On these facts and beginning with the lesser, wilful blindness, it is impossible to believe that Mr. Casselman did not subjectively suspected that he likely injured the occupant or occupants of the snowmobile he knew he had struck. The circumstances, including the force of the impact, belie any other conclusion. His immediate and desperate flight bears witness to the fact if he did not have actual knowledge that someone had been injured in the collision, he did not want to know so that he could deny knowledge should he be apprehended. The Crown has clearly and easily proved wilful blindness. Indeed, I have no reasonable doubt on these same facts that Mr. Casselman actually knew another person was involved and injured in the accident.

[75] I am therefore finding Mr. Casselman guilty of Count 3, as charged.

Count 4 – s.255(2)

[76] There are two contentious issues relating to this charge. To succeed the Crown must prove that Mr. Casselman was impaired by alcohol, and that his impaired operation of the motor vehicle caused bodily harm to Derek Smith. The placed to begin this analysis is with the collision.

[77] I have no doubt that the collision could have been avoided by Mr. Casselman. I make this finding notwithstanding that no accident reconstruction evidence was presented, and I have no baseline for braking, field of view and reaction times, and am left with no way to determine the speed Mr. Casselman was travelling. In my view the objective facts and ordinary human experience support a finding without expert evidence that the collision could have been avoided by Mr. Casselman and indeed that his manner of driving was a significant cause of the collision.

[78] First, the accident occurred on a straight stretch of road. There is a slight knoll on the hill that Mr. Casselman was descending as he approached the accident scene. The evidence before me is that this knoll is 300-400 metres from the groomed snowmobile trail where the collision occurred. This is three to four football fields, 1/3 of a kilometre or more. He had an ample line of vision to the stopped snow mobile, jutting onto the roadway from the time he started his descent.

[79] In the absence of vehicle lights, the area where the accident occurred is pitch-black. I have no doubt, however, that Mr. Smith's snowmobile would have been visible as Mr. Casselman approached it. Mr. Smith's snowmobile was running and its lights were on. While Mr. Smith's tail lights were angled away from Mr. Casselman and therefore not visible, his headlight was angled such that Mr. Casselman would have had more than a side view. I accept that the headlights were pointed somewhat downward as the front end was on the downslope towards the ditch. The downward angle should not be exaggerated. This case was prosecuted on the agreement that the rear end of Mr. Smith's snowmobile protruded onto the roadway. A general impression of the scale of the distance from the roadway to ditch, and of the length of the snowmobile, can be gathered from exhibit 3. Notwithstanding Mr. Griffith's evidence, had the rear end of the snowmobile been on the paved portion of the roadway, the front end would not have been significantly into the ditch. Moreover, even allowing for some tilt the snowmobile headlight would have been illuminating the area in front of it and that illuminated area would have been visible as Mr. Casselman approached. Then there is Ms. Burgess's snowmobile. It was angled towards the path that Mr. Smith's snowmobile was adjacent to. Those lights clearly illuminated Mr. Smith's snowmobile since both Ms. Burgess and Mr. Griffith could see what Mr. Smith was doing, in Mr. Griffith's case from 100 feet down the path. As I have indicated, a driver proceeding from Mr. Casselman's angle certainly would have seen Ms. Burgess's headlight at the side of the road and should therefore have been attending carefully to what was happening ahead.

[80] I accept that Mr. Smith was bent over behind the snowmobile and that the reflectors on his clothing may not have been evident to an approaching car. The snowmobile did have reflectors, however. I am satisfied that approaching headlights would have produced reflection, notwithstanding the modest angle of the snowmobile. In the conditions at the time I have no doubt that a driver approaching northbound should have been able to see the snowmobile and identify it as a snowmobile in ample time. Mr. Casselman either did not see what was readily available to be seen, or he saw it and did not react until too late.

[81] The fact that the collision occurred also affirms that Mr. Casselman did not move the path of his vehicle materially, even after he braked. I accept the evidence of Ms. Burgess that the passenger side headlight of Mr. Casselman's car was inside the white line, meaning the car was within its lane as it approached. It had to be in the same basic position when it struck the snowmobile for, as indicated, that snowmobile must have been only partially onto the roadway at the time of the collision given that its front end was starting to angle down. Only the most minor of adjustments to the left by Mr. Casselman would have avoided the collision but this did not happen.

[82] Finally, it is evident from the photographic evidence that the road conditions were bare, with minor snow cover. Brakes were heard before the accident. It is obvious that the tires were able to grab the road immediately before the collision. There is therefore no basis for concern that road conditions caused the accident.

[83] I am therefore persuaded that this accident was entirely avoidable, that Mr. Casselman should have been able to see the snowmobile, easily slow down and then move the few feet to his left onto the wide open roadway to miss the stationary snowmobile, but he did not. I am satisfied beyond any doubt that Mr. Casselman's manner of driving was a significant contributing cause of the collision. The issues before me, however, are not that simple. They are whether Mr. Casselman was impaired and, if so, whether his impairment was a significant contributing cause of the collision.

[84] The Crown urges me to infer that since Mr. Casselman's failed to avoid an avoidable accident he must have been impaired. The defence objects that this would be to reason backwards from unexplained accident to an accident explained by impairment. I agree with the defence that no such short-cut is available; an avoidable unexplained collision is not proof of impairment on its own. The unexplained collision in this case can, however, serve two evidentiary functions. First, it is circumstantial evidence of impairment, reflecting as it does a number of possible indicia of impairment. Mr. Palmentier provided expert evidence supporting this. Alcohol, he said, can impair attention or focus, delay reaction times, affect appropriate decision-making, and distort judgment of speed and judgment of distance. Certainly inattention, poor reaction time and poor decision-making contributed to this accident and inability to estimate speed or distance may have. This accident provides important circumstantial indicia of impairment. The second way this avoidable accident is of evidentiary significance is in supporting causation. Given that the ordinary faculties of a driver required to avoid such an accident were clearly not operating effectively in this case, if there is sufficient evidence that Mr. Casselman was impaired by alcohol then the fashion in which the accident happened can supply cogent evidence that this alcohol impairment caused the accident and the attendant injuries to Mr. Smith. So what then of the rest of the evidence? Does it make out that impairment along with this avoidable accident?

[85] First, there can be no question that Mr. Casselman had alcohol in his body, even without the benefit of the blood alcohol readings. His breath smelled of alcohol according to both Cst. Clayton and Cst. Lachance. Common sense recognizes this as evidence of alcohol consumption, but in this case Mr. Palmentier explained that this means either recent consumption or that alcohol is being introduced into the lungs through blood alcohol.

[86] Mr. Casselman's actions immediately after the accident are also circumstantially consistent with impairment. He fled the scene knowing he had injured someone, in the most desperate of circumstances, at high speed in a vehicle that could not be operated safely. He raced away without a front right tire in a screaming car with a collapsed windshield, spewing smoke and spitting sparks.

[87] The Crown wants me to use this as "after the fact conduct" supporting an inference that Mr. Casselman fled because he knew he was impaired. I cannot do that, even though there is no question that he fled because of a consciousness of guilt, and even though there is no question that it was consciousness of guilt that caused him to try to hide in a side street, and to arrange the removal of his vehicle, and to lie about hitting a deer and then to ask for the police not to be called to avoid "a world of trouble." The problem with treating this as evidence of impairment is that Mr. Casselman had many reasons to flee, from his involvement in an avoidable accident where someone was hurt, to his lack of insurance, to possible fear that he could be over the legal limit even if not impaired, and to the probationary obligation to keep the peace that he clearly breached. I cannot infer, on these facts, that the precise guilt he was feeling was because he believed he was driving while impaired. What I can infer, however, is that the decision to flee given the condition of the car and the near impossibility of success showed poor judgment, and poor judgment can be caused by impairment. His flight, too, is therefore a modest but material indicium of potential impairment.

[88] Then there was the second avoidable collision with the snowbank on Forest Green Crescent. Mr. Casselman came upon a U-Haul truck parked on the side of the road, and even though there was ample room to move around it to the left, he engaged in the last minute, desperate act of banking his car in a snowbank, to the inside or right of the truck that was already parked on the right side of the road.

[89] I am aware that Mr. Casselman had been in a serious collision within the past fifteen minutes or so and had blood on his face in the mouth area. The defence says this may have affected his driving ability on Forest Green Crescent. I have no evidence, however, that Mr. Casselman received a material injury that could account for this driving and I cannot infer one on the evidence before me. Mr. Casselman was clearly not stunned from the collision given the hastiness and immediacy of his flight. Ms. Daley did not notice any facial or head injury but was concerned enough about him to attend to his hand, which had minor cuts. Mr. Casselman did not arrange for medical care after consulting paramedics. And while Cst. Lachance did note dried blood on his mouth, he observed that Mr. Casselman had no facial injuries. On the evidence before me, the blood on Mr. Casselman's hands account for the blood on his face.

[90] I am also aware that Mr. Casselman was driving a car with three functioning tires, and that it's steering would not have been responsive, another "innocent" explanation suggested by the defence for this second collision. I have the benefit, however, of Mr. Casselman's own account of what occurred that he shared with Ms. Haffner. He said he came down the road to turn around and looked up and saw the U-Haul and it scared him and he swerved so he would not hit it. It is clear from his own words that Mr. Casselman was not watching the roadway with care or failed to see what was obvious to see. No-one else had difficulty seeing the truck or avoiding it on the wide roadway. I agree that the vehicle was not safe to drive but this cannot take full measure of the blame for the near-collision or his irrational strategy for avoiding it. Indeed, even though he was obviously aware that the vehicle he was driving was crippled and difficult to operate, something that in a sober person would command increased attention, Mr. Casselman could not maintain his attention on the roadway. Moreover, the way the accident occurred also cast Mr. Casselman's judgment and reaction time into question. During the relevant period Mr. Casselman did not have only one avoidable accident consistent with impairment; he had two, including the evidently forceful collision of his car with a snowbank.

[91] When Mr. Casselman sought help, he was described by the Haffner's and Ms. Daley as confused. He could not seem to understand that the Haffner's did not have a phone, or why not, even though it was obvious they had yet to move into their home. He then went to the front door of the Haffner's house, to the right, after being motioned and told to go left. He seemed unable to dial the phone when given a chance, and seemed confused in speaking to Ms. Daley in his comments about trying to arrange a tow from Winchester. I have no doubt that Mr. Casselman was in a panic, but his persistent confusion over simple matters is an indication of possible impairment, particularly in the absence of a real foundation for a head injury.

[92] Cst. Lachance noted not only the odour of alcohol on Mr. Casselman's breathe, but also that Mr. Casselman's face was red. He also made close examination of Mr. Casselman's eyes, which were bloodshot, with dilated pupils. Cst. Lachance rated his speech as fair rather than good because of a possible slight slur, which he agreed may have been the effects of an accent.

[93] In sum, the case for impairment is that Mr. Casselman, who had clearly consumed alcohol, caused an entirely avoidable accident on 8th Line Road because of obvious inattention and poor reaction; showed exceedingly poor judgment by fleeing a serious collision and in a crippled vehicle; caused a second entirely avoidable collision on Forest Green Crescent; had difficulty understanding clear information or dialling a phone, and had a flushed face and red and bloodshot eyes.

[94] There is also evidence to the contrary. No-one, other than Mr. Haffner who assumed so, formed the opinion from his physical presentation that Mr. Casselman was impaired by alcohol. No-one other than Cst. Lachance observed slurring, and Mr. Casselman's balance was fine and he was able to carry on coherently in his exchanges with the police.

[95] Significantly, Mr. Palmentier gave evidence that someone can be impaired without displaying what I will call physical performance symptoms. He explained that some individuals have a tolerance that can mask the impairing effects of alcohol on their speech, balance and ability to walk. What cannot be masked are the physiological signs such as bloodshot eyes and flushed face, and the mental impairment that alcohol causes, such as reaction time, judgment and decision-making. It is noteworthy, in my view, that what is weak in Mr. Casselman's case are the things that alcohol tolerance can mask, but what is not weak are a collage of the indicators of impairment that cannot be masked.

[96] Clearly Mr. Casselman was not obviously impaired. Someone is impaired according to law, however, if it is proved beyond a reasonable doubt that their ability to operate a motor vehicle is impaired to any degree "ranging from slight to great": R. v. Stellato. In spite of the evidence to the contrary and in spite of the absence of clear physical signs, I am persuaded beyond a reasonable doubt that Mr. Casselman's ability to operate a motor vehicle was impaired by alcohol. Taking all of the facts together and in context, I can come to no other reasonable conclusion.

[97] What then of causation? In law, did Mr. Casselman's impairment cause the collision with the snowmobile and hence the bodily harm that Mr. Smith sustained? Two components must each be satisfied before criminal causal responsibility can be found as a matter of law, namely factual causation and legal causation.

[98] Factual causation can exist if the material conduct is not the sole or even predominant cause of the material consequence. It can be supplied by a "but-for" connection between the material act and the consequence, and it is a "but-for" question that is normally asked: R. v. Maybin 2012 SCC 24 at para. 15. But not even a "but-for" connection is invariably required: R. v. Smithers. Factual causation will also be found if the material conduct, in this case impaired driving, was a significant cause, or a contributing and non de minimis cause, of the material consequence, namely the collision that injured Mr. Smith: R. v. Nette 2001 SCC 78 at paras 70-71. On the facts before me I am persuaded beyond a reasonable doubt that the alcohol consumption that dulled and impaired Mr. Casselman's ability while driving to observe and avoid Mr. Smith's snowmobile was a significant contributing cause of the collision and hence of the serious bodily harm that Mr. Smith sustained. Indeed, I am persuaded in this case that a "but-for" connection exists; had Mr. Casselman not impaired his acuity, judgment and reflexes with alcohol when driving, this accident would not have happened.

[99] Legal causation, the second causation component, is concerned not with the mechanical cause of the material consequence but with imputable fault or blame, in other words, with whether the accused should be held responsible for the consequences that occurred: R. v. Maybin at para. 16.

[100] Mr. Russomanno argues that legal causation should not be found in this case because Mr. Smith's failure to turn the snowmobile safely by entering the roadway on an angle knowing the snowmobile could not turn on pavement and thereby causing the snowmobile to intrude upon the driving lane of the roadway was an "intervening act" that broke the chain of causation between Mr. Casselman's impaired driving and Mr. Smith's injury. I have always understood an intervening act to be one that intervenes or interrupts the natural progress between the criminal act of the accused and its alleged outcome such that it overtakes in significance the criminal act of the accused in determining the ultimate consequence. This notion appears to find support in R. v. Maybin para 23, where the Supreme Court of Canada refers to an "intervening act" as a "new event." It strikes me as curious to treat Mr. Smith's conduct relating to the accident as an intervening or new event when the material inquiry is about the cause of the collision between Mr. Casselman's car and Mr. Smith. Conceiving things in this way seems to be an indirect opportunity to rely in substance on contributory negligence, even though authorities have long made plain that contributory negligence does not break the chain of factual causation: R. v. Nette, supra; R. v. Menezes (2002).

[101] Yet I agree with Mr. Russomanno that R. v. Trakas [2008] O.J. No. 2008 (Ont.C.A.) does treat the actions of the police officer who was struck by the accused's car as giving rise to intervening act issues in a case where the causation question was whether the accused's manner of driving caused the officer's death. I will therefore entertain Mr. Russomanno's argument, applying the standards of intervening act identified by the Supreme Court of Canada in R. v. Maybin, supra. In Maybin, supra at paras. 30-44 the Supreme Court of Canada agreed with the Ontario Court of Appeal that reasonable foreseeability is relevant in assessing legal causation and intervening acts, but the Supreme Court of Canada disagreed with the suggestion that reasonable foreseeability is determinative. The Court noted at para. 28 that while reasonable foreseeability is "a helpful tool" neither an unforeseeable intervening act nor an independent act is necessarily a sufficient condition to break the chain of causation" [and] "the fact that the intervening act was reasonably foreseeable, or was not an independent act, is not necessarily a sufficient condition to establish legal causation." The ultimate question as I interpret Maybin is whether the accused's unlawful act was still a significant contributing cause, such that the accused should be legally responsible for the conduct of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent": at para. 29.

[102] With respect to using foreseeability as an analytical tool to help in that determination the Court explained at paras 32-34, 37, that the precise details of the event do not have to be objectively foreseeable. Instead, the general nature of the intervening event should be foreseeable, bearing in mind that there must be some specificity about the nature of the contemplated event. Applied in Maybin, supra it was enough to maintain legal causation that it was foreseeable that the assault on the victim could provoke others to become inspired to assault the victim; it was not necessary to foresee that a bouncer might assault the unconscious victim.

[103] In my view, for foreseeability to support a finding of legal causation it was not necessary to reasonably anticipate that a snowmobile could be protruding onto the roadway because a turn was missed by its operator, who would be standing behind it. It is enough if it was foreseeable that there could be a stationary occupied vehicle protruding onto the side of the roadway. This, of course, is a common and entirely foreseeable occurrence. The presence of the stationary snowmobile protruding onto the road and its operator, if it was an intervening act at all, is therefore not the kind of intervening act that breaks a chain of causation. Nor can I find any other basis for exonerating Mr. Casselman from legal responsibility for his conduct; nothing occurred to leave him a moral innocent with respect to Mr. Smith's injuries.

[104] Applying first principles with the aid of the analytical tool of foreseeability, I am therefore satisfied beyond a reasonable doubt that Mr. Casselman's moral responsibility for the injuries to Mr. Smith is in no way alleviated because of how Mr. Smith's snowmobile ended upon the roadway or for any other reason. Even after Mr. Smith's failure to make the turn safely has been considered, Mr. Casselman's impaired driving was still a significant contributing cause of Mr. Smith's injuries, such that Mr. Casselman should be held legally responsible for the result. I am therefore finding Mr. Casselman guilty of Count 4.

Count 2 – s.249(3)

[105] I am also finding Mr. Casselman guilty of dangerous driving causing bodily harm, contrary to section 249(3). I have described Mr. Casselman's manner of driving as he approached Metcalfe Ontario. While impaired, he drove inattentively a few hundred yards and failed to avoid an obvious obstruction when there were clearly vehicles ahead. While doing this he was operating a motor vehicle with a single headlight. His driving was dangerous to the public having regard to all of the circumstances including the nature, condition and use of the place at which his motor vehicle was being operated, and it was this dangerous driving that caused Mr. Smith's injuries.

Count 6 – s.129(a)

[106] The Crown theory supporting this charge is based on Mr. Casselman's proven lie to Cst. Clayton, in which Mr. Casselman told Cst. Clayton he had struck a deer. This lie does indeed satisfy the requirements of this offence.

[107] During argument the Crown conceded that if I exclude from evidence the statements Mr. Casselman made while being questioned unconstitutionally, I should acquit him of this offence. In fact Mr. Casselman told this lie to Cst. Clayton twice, once after the breach and once before it occurred. Evidence of the first lie, which I accept beyond a reasonable doubt, has not been excluded and cannot be according to law. The evidence before me makes out the offence.

[108] This raises the question of whether I can or should convict Mr. Casselman on a different theory than the one expressed by the Crown. The Ontario Court of Appeal decision in R. v. Pendleton [1982] O.J. No. 132 (C.A.) was once understood to hold the Crown to its theory even where guilt of the offence charged is proved on another basis arising out of the same transaction. If that is what Pendleton meant the law has changed. In R. v. Khwaja 2010 ONCA 862 at para. 150, an Ontario Court of Appeal decision affirmed in the result by the Supreme Court of Canada 2012 SCC 69, the Court rejected the principle that "the Crown cannot seek and obtain a conviction based on a different basis than it presented its case to the court," citing R. v. Drolet, affirmed . The Court also approved of R. v. Pinceman 2004 SKCA 33 which held, at para 35 that the law in R. v. Pendelton did not survive R. v. Drolet. Then there is the decision in R. v. Groot, affirmed , holding the Crown theory does not limit the avenue of conviction the way particulars furnished in the charge would do. In my view, if the evidence before the court proves a pleaded charge beyond a reasonable doubt, the trial judge is obliged to convict on that charge even if the Crown has focused on a different theory of guilt, so long as fair notice has been provided to the defence.

[109] In this case there is no unfair notice issue, nor any other form of prejudice to the defence. It was surprised to hear the Crown particularize its offence in argument as it did, and Mr. Russomanno addressed the possibility of a conviction on the pre-breach statements in argument despite the Crown's limited theory. In the circumstances I must act on the proved evidence. I am therefore finding Mr. Casselman guilty of obstruction of justice contrary to section 129(a), as charged.

Count 5 – s.733.1

[110] Mr. Casselman admits that he was on probation and has pled guilty to this offence on the basis that his decision to leave the scene of the accident was a violation of his probationary obligation to keep the peace and being of good behaviour. The facts I have found support a finding of guilt on that basis. This finding of guilt is also supported on the basis of the other offences I have found Mr. Casselman to have committed. Little he did that evening amounts to keeping the peace and being of good behaviour.

IV. Findings

[111] I am therefore finding Mr. Casselman to be guilty of the charges in counts 2, 3, 4, 5 and 6, but not guilty of the charge in count 1. Counts 2 and 4 are predicated on the same factual foundation, and the Crown will therefore have to elect the count on which they wish Mr. Casselman to be sentenced. The other count will be stayed.

Released: January 29, 2014

The Honourable Justice David M. Paciocco