Court File and Parties

Court File No.: 12-07542 Central East Region-Newmarket Date: 2015-03-10 Ontario Court of Justice

Between: Her Majesty the Queen — And — Skye Kidder

Before: Justice Peter C. West

Evidence heard: October 27, 2014 and February 25, 2015 Oral Submissions heard: February 25, 2015 Reasons for Judgment Released: March 10, 2015

Counsel:

• Mr. S. Childs and Mr. J. Costain for the Crown
• Mr. T. Chan for the accused, Skye Kidder

WEST J.:

Introduction

[1] Ms. Kidder was charged that, on August 31, 2012, in the Town of Richmond Hill, while her ability was impaired by alcohol, did operate a motor vehicle, contrary to s. 253(1)(a) of the Criminal Code and further, on the same date, having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 mg of alcohol in 100 ml of blood, did operate a motor vehicle, contrary to s. 253(1)(b) of the Criminal Code.

[2] A trial was commenced on October 27, 2014 and the Crown called three witnesses, Mr. Rory Laing, a civilian witness; P.C. Ray Katoch, the investigating officer and P.C. Eugene Johnson, the qualified breath technician. The defence brought a Charter application alleging a breach of s. 10(b) and it was agreed by both counsel the trial could proceed as a blended hearing. Mr. Chan called Ms. Kidder on the voir dire dealing with the Charter breach relating to s. 10(b).

[3] At the conclusion of the evidence, both Crown and defence made oral submissions, having filed casebooks relating to the Charter issue. During argument, Mr. Costain conceded the Crown had not proven the impaired operation charge and requested that charge be dismissed. Mr. Chan advised there was only one issue on the Charter application; namely, whether Ms. Kidder's right to counsel was breached as she was not afforded the opportunity to instruct counsel in private. It was his position if there was a breach of the right to counsel the breath readings should be excluded pursuant to s. 24(2) of the Charter.

[4] It was Mr. Chan's alternative argument if there was no breach or the breath samples were not excluded pursuant to R. v. Grant, 2009 SCC 32, the first breath sample was obtained by police after two hours had passed, contrary to s. 258(1)(c)(ii), and as such the breath samples are not admissible.

[5] It is the Crown's position the implementation of the right to counsel was provided to Ms. Kidder in private and there was no violation or breach of her Charter rights under s. 10(b). The Crown further argues the first breath sample was taken within two hours of the time of driving in compliance with s. 258(1)(c)(ii) and therefore the breath samples are admissible.

Factual Background

(a) Evidence of Rory Laing

[6] On August 31, 2012, Rory Laing had finished working at the restaurant he worked at around 2:30 to 3:00 a.m. He went to a 24-hour restaurant on Yonge Street with some friends to get something to eat. He left this restaurant at approximately 4:15 to 4:30 a.m. His wife was with him in his car. He went north on Yonge Street to 407 Highway, arriving there within a few minutes. He went westbound on 407 Highway and observed a small car swerving within its lane. This car was driving in the second lane from the left. He was travelling about 110 to 120 km/hour. He observed the small car veer to the left and then abruptly strike the guard rail, which caused the car to spin 360 degrees striking both the front and rear of the car on the guard rail until it came to a stop.

[7] Mr. Laing pulled his car to the right shoulder, directly parallel to the small car. As he pulled over he called 911. Mr. Laing then approached the car and observed Ms. Kidder sitting in the driver's seat with her seatbelt on. As soon as he approached the car a police car pulled up and the officer took over. As he was checking on the driver he observed her right knee was cut and bleeding. The driver's door of the car was open.

[8] In cross-examination, Mr. Laing testified he remembered checking his clock in his car and seeing a digital display of 4:39 and 4:40. When he was asked whether the time could be off as much as ten minutes, Mr. Laing testified, "I remember seeing the clock at, like, four thirty-nine, four forty." He agreed he only observed the small car's manner of driving for a minute or two before the collision with the guard rail.

(b) Evidence of P.C. Ray Katoch

[9] P.C. Katoch has been employed by the Ontario Provincial Police for the past six years. On August 31, 2012 he was on general patrol on Highway 407 and received a radio call at 4:39 a.m. The dispatcher advised there was a single car collision on 407 westbound at Yonge Street with possible injury to the driver. The officer was on 407 eastbound at Keele Street in Vaughan when he received the call. He arrived on scene at 4:43 a.m. There was no traffic when he arrived on scene. At this location there are five lanes of traffic and the car involved in the collision was stopped in the middle or third lane, facing south towards the guard rail. He observed tire marks from lane two from the guard rail, going towards the guard rail and then spinning around on the highway in a 360 degree spin and ending where the vehicle was stopped.

[10] The driver, Ms. Kidder, was sitting in the driver's seat. Her leg was bleeding and she had scratches on her face from the airbag, which had deployed. He was of the view Ms. Kidder was in a state of shock from the accident. He observed a number of indicia of impairment, which he testified could also have been as a result of the accident. As he spoke to Ms. Kidder, he detected an odour of alcohol coming from her breath.

[11] At 5:02 a.m., after speaking briefly to Mr. Laing and based on his observations, P.C. Katoch formed reasonable and probable grounds to believe Ms. Kidder's ability to operate her motor vehicle was impaired as a result of the consumption of alcohol. Ms. Kidder was sitting in the rear of the police cruiser. At 5:03 a.m., P.C. Katoch read Ms. Kidder her right to counsel. Mr. Chan advised the wording of the right to counsel was not in issue. In response to whether Ms. Kidder wished to contact a lawyer or duty counsel she said, "Perhaps."

[12] The officer then read Ms. Kidder a caution which she indicated she understood. When asked if she wanted to say anything in answer to the charge she said, "No." The officer then read the breath demand and Ms. Kidder said she understood. Sgt. Bret Pincoe arrived on scene to look after impounding and towing of the vehicle.

[13] Ms. Kidder had been placed on a stretcher by EMS and put in an ambulance. P.C. Katoch followed the ambulance to the hospital. When he arrived at the hospital at 5:32 a.m., Ms. Kidder was in a hallway in the emergency department waiting for a room to become available. P.C. Katoch asked Ms. Kidder again if she wished to speak to a lawyer and she responded "Later." At 5:50 a.m., when Ms. Kidder was in an emergency room, P.C. Katoch asked her again if she wanted to speak to duty counsel. She responded, "First, I want the doctor to see me. Later, maybe."

[14] The doctor came at that time and was finished with Ms. Kidder at 5:59 a.m. The officer asked her again if she wished to speak to duty counsel and she responded, "Yes please, if possible." As a result of her request P.C. Katoch put a call into duty counsel at 6:03 a.m. Mr. Mike Robert, a duty counsel, called back at 6:10 a.m. P.C. Katoch had called on Sgt. Pincoe's OPP cell phone.

[15] P.C. Katoch testified the room where Ms. Kidder was on a gurney had three walls, the back and two sides, and there was a curtain at the front for privacy. At 6:12 a.m., P.C. Katoch went into the emergency room, handed Ms. Kidder the cell phone and advised her duty counsel was on the phone. He then left the room, closed the curtain and moved some distance to the nurse's station in order to allow Ms. Kidder to speak to duty counsel in private. He testified he was about 20 feet from Ms. Kidder. P.C. Katoch testified he could not hear her conversation with duty counsel because of the noise in the emergency department. At 6:17 a.m., P.C. Katoch had noted Ms. Kidder finished her call with duty counsel and he turned her over to the breath technician, P.C. Eugene Johnson. P.C. Katoch did not have any notes of how he knew Ms. Kidder had finished her call with duty counsel when he re-entered the room. The cell phone was a flip phone, it was closed and by her side.

[16] When P.C. Katoch entered the room he asked Ms. Kidder if she was able to speak to duty counsel and she responded, "Yes." P.C. Katoch moved out of the room and began writing up his notes as P.C. Johnson was conducting the Intoxilyzer tests. Prior to turning Ms. Kidder over, he had conversation with P.C. Johnson about his grounds for the arrest.

[17] At 7:05 a.m., Ms. Kidder was turned back over to P.C. Katoch. He also received a Certificate of a Qualified Breath Technician from P.C. Johnson. He photocopied this document, compared the copy with the original and found them to be identical. At 7:11 a.m., he served the copy on Ms. Kidder and kept the original with his file. The certificate was entered as Exhibit 1 on the trial, subject to argument. At 7:15 a.m., Ms. Kidder was released on a Form 9, appearance notice.

[18] In cross-examination, P.C. Katoch testified he interviewed the witness later that same day. Mr. Laing told him the accident occurred at 4:39 a.m. and this is reflected in Mr. Laing's statement. P.C. Katoch testified the dispatch call would have a high priority because of the possibility of personal injury and consequently, it would be broadcast within a few seconds of the 911 call being received. P.C. Katoch did not record in his notes the time of the accident but it is at the beginning of Mr. Laing's statement.

[19] P.C. Katoch agreed Ms. Kidder appeared to be in shock when he first dealt with her and his observations respecting indicia of impairment might also be explained by her being involved in a serious collision. The officer described the different types of cubicles in the emergency area. All have curtains at the end to provide privacy when a patient is meeting with a doctor or nurse. Ms. Kidder was never handcuffed by the officer.

[20] P.C. Katoch asked Ms. Kidder four times if she wanted to speak to duty counsel. When she said she wanted to, he contacted the duty counsel telephone number using his sergeant's cell phone.

[21] P.C. Katoch testified he knew it was important to give a suspect privacy when speaking to a lawyer. He made sure no one was around the cubicle she was in. He testified he spoke to the nurses when the call came in from duty counsel and asked if Ms. Kidder could be left unattended to speak to duty counsel in private. The nurses did not raise any concerns. He made sure no one was standing just outside the curtain. He stood about 20 feet away and could clearly see the room Ms. Kidder was in. P.C. Katoch testified he told the duty counsel when he called back that Ms. Kidder was in a hospital emergency room. The duty counsel told the officer to make sure no one was around the room she was in.

[22] P.C. Katoch did not speak to hospital staff to see if there was a room with four walls and a door because in his mind this cubicle with three walls and a curtain could provide Ms. Kidder privacy.

[23] P.C. Katoch agreed he went back into the cubicle at 6:17 a.m. He opened the curtain. P.C. Katoch testified he asked if he could come in and Ms. Kidder said, "Yes." It was P.C. Katoch's evidence he did not walk into the emergency room before asking for permission. This was not in his notes but he remembered asking for permission to enter the cubicle. He saw the phone closed and concluded she was done with duty counsel. The phone was beside Ms. Kidder on the bed after he opened the curtain and walked in.

[24] P.C. Katoch testified the nursing station is very long and is a rectangle shape. He was standing at one end, about 20 feet away from Ms. Kidder. He testified it was his duty to give privacy to Ms. Kidder when she was speaking to a lawyer. Where he was standing he could not hear anything. There was noise from computers and machines beeping and there were nurses shouting to each other. His radio was going on at different times. P.C. Katoch maintained it was his duty to ensure Ms. Kidder had privacy in her call with a lawyer so he made sure he was far enough away that he could not hear what she was saying. He was about 20 feet away from Ms. Kidder and he believed he was this distance as he could not hear her.

[25] When he approached her bed to retrieve the cell phone he asked Ms. Kidder if she had finished with duty counsel and she said, "Yes." P.C. Johnson was there and P.C. Katoch introduced her to him and left. Mr. Chan suggested to P.C. Katoch he was standing just outside the curtain so he could listen in on Ms. Kidder's call with duty counsel, which P.C. Katoch denied.

[26] P.C. Katoch denied that Ms. Kidder handed him back the phone when he entered the cubicle. When he opened the curtain and walked in, Ms. Kidder had already completed her call with duty counsel.

(c) Evidence of P.C. Eugene Johnson

[27] P.C. Johnson was designated as a qualified breath technician in 2010. He was notified to assist P.C. Katoch by doing a breath test with a suspect at the York Central Hospital in the City of Toronto, Finch Avenue and 400 Highway, at 5:05 a.m. He left the station with the approved instrument, an Intoxilyzer 8000C, at 5:25 a.m. and arrived at the hospital at 5:55 a.m.

[28] He met P.C. Katoch in the emergency department and was provided P.C. Katoch's grounds for the arrest. He noted the time of the offence as 4:39 a.m. After arriving at the station he began to immediately set up the instrument for use. He changed the alcohol standard. He had the instrument warm the alcohol standard to 34 degrees Celsius. After it had reached this temperature he began to conduct diagnostic and calibration tests to determine if the instrument was working properly. The machine was ready to receive the first sample at 6:21 a.m. He explained how to provide a sample into the instrument to Ms. Kidder. The first sample was received by the instrument at 6:31 a.m. and it was a suitable sample with a blood/alcohol reading of 149 mg of alcohol in 100 ml of blood. The second sample was obtained from Ms. Kidder at 6:53 a.m. and provided a blood/alcohol reading of 148 mg of alcohol in 100 ml of blood.

[29] During P.C. Johnson's conversation with Ms. Kidder, she did not request to speak to duty counsel or a lawyer. P.C. Johnson did not recall if P.C. Katoch was inside or outside the cubicle when Ms. Kidder provided her breath samples. Ms. Kidder was returned to P.C. Katoch at 7:05 a.m. P.C. Johnson identified Exhibit 1 as the certificate, which he provided to P.C. Katoch to be served on Ms. Kidder.

[30] In cross-examination, P.C. Johnson testified P.C. Katoch provided him with the time of 4:39 a.m. as the time of the accident. P.C. Johnson had no idea what time the 911 call was made. P.C. Johnson was in Ms. Kidder's emergency room before she was turned over to him and started to set up and prepare the Intoxilyzer 8000C. He was told by P.C. Katoch after he arrived at the hospital that Ms. Kidder wanted to speak to duty counsel.

[31] The diagnostic check was done at 6:17 a.m. The alcohol standard solution had already been changed and was heating up prior to the diagnostic check. P.C. Johnson testified he was probably inside Ms. Kidder's cubicle as the solution was warming up unless she was talking to her lawyer, in which case he had no choice but to step outside her cubicle. He thought he was close to her room and he thought P.C. Katoch was with him. It was quite likely this was when he received P.C. Katoch's grounds. They were very likely just outside the cubicle and he agreed with Mr. Chan's suggestion they were probably five to 10 feet away.

[32] P.C. Johnson did not recall who went back into the cubicle first. It was P.C. Johnson's understanding Ms. Kidder was talking to a duty counsel when he was outside her room. He did not think he heard her voice but if he did he would not have paid attention as it would be "immoral for [him] to eavesdrop on her confidential conversation." It was P.C. Johnson's evidence the police always offer privacy when a prisoner speaks with a lawyer. He testified it is very, very difficult in a hospital to find a private room that is available for an accused to speak to a lawyer in private.

[33] P.C. Johnson testified he did not really remember which hospital they were at, whether it was York-Finch hospital or a hospital in York Region. He wrote York-Finch in his notes so it must have been that hospital in Toronto.

[34] When P.C. Johnson first arrived he read Ms. Kidder the breath demand he reads as the breath technician and she told him she would rather wait until she spoke to legal counsel. This was before she had spoken to duty counsel when P.C. Johnson had first arrived at the hospital. He read the breath demand then because he knew he was fighting time constraints.

[35] P.C. Johnson testified while he and P.C. Katoch were waiting outside the cubicle for Ms. Kidder to speak to duty counsel it was quiet in the emergency ward.

[36] In re-examination, P.C. Johnson testified he stayed in Ms. Kidder's room setting up the instrument until she was about to talk to the lawyer, at which point he stepped outside. Ms. Kidder spoke on the sergeant's cell phone. He could not hear what Ms. Kidder was saying when she was talking to duty counsel. When he was standing outside the room he could still see the room but he could not hear her conversation. He cannot be a hundred percent certain if he was standing with P.C. Katoch.

(d) Evidence of Skye Kidder

[37] Ms. Kidder testified after the accident she got out of her car before the police arrived. After the officer arrived and spoke to her, she was placed into the rear of the police cruiser. After the ambulance arrived she was placed on a gurney, put into the ambulance and driven to the hospital. She was taken to the Humber River Regional Hospital. She had an invoice for the ambulance ride to Humber River Regional Hospital.

[38] She was put in an emergency room that had one solid wall; the back one and the rest were curtains. She changed this evidence later and testified the emergency room had two solid walls and two curtains, one separated another emergency room and the other curtain was across the entrance to the corridor. She drew a diagram, which depicted the room, Exhibit 2.

[39] Shortly after she arrived in the hospital there was an officer in her room setting up a machine. She was not handcuffed and was lying on a gurney. An officer came into the room and handed her a cell phone and told her duty counsel was on the line to speak to her. Both officers left the room and went outside the curtain area while she was talking on the phone to duty counsel. The curtain was shut by the officer. Ms. Kidder testified she continued to speak to the duty counsel.

[40] Ms. Kidder believed she heard the officers talking just outside the emergency room she was in. She did not feel a hundred percent comfortable talking on the phone. She could not physically see them as they were on the other side of the curtain. She believed they were five or six steps away. She felt like she did not have privacy and could not fully speak to the lawyer and say all the things she wanted to say to the lawyer.

[41] After about five minutes the arresting officer walked back into the room and she said goodbye to the duty counsel and hung up the phone by pushing a button. She did not hear the officer say anything before he opened the curtain.

[42] Ms. Kidder testified she did not want to speak in front of the police to the duty counsel. She was just really scared about the whole process and did not know she could ask for more privacy. She did not say anything to the officers about this. She did not believe she had the right to say that to the officers.

[43] Ms. Kidder testified the first attempt did not go well as she was having chest pains. The arresting officer told her if she did not do it properly she would go to jail. This was not put to either P.C. Katoch or P.C. Johnson in cross-examination. P.C. Johnson testified the first breath by Ms. Kidder was at 6:31 a.m. and this was a suitable sample, which provided a reading in excess of 80 mg of alcohol in 100 ml of blood. P.C. Johnson did not describe Ms. Kidder as complaining of chest pains when she provided the two samples of her breach into the Intoxilyzer 8000C. P.C. Katoch testified he left the emergency room to write up his notes after he turned Ms. Kidder over to P.C. Johnson.

[44] In cross-examination, Ms. Kidder testified she could not recall if she could see other people through the curtain or whether there was any clearance at the bottom of the curtain or whether she could see the officers' legs and boots. She testified if she had seen the officers' boots she believed she would have distinctly remembered that.

[45] She testified on the way to the hospital she was crying and upset but when she got to the hospital she was coherent and very aware of everything going on around her. She testified at the accident she got out of her car before the police arrived and she spoke to the tow truck driver who was there.

[46] Ms. Kidder believed she was on the phone with duty counsel for five or six minutes. When she was speaking to duty counsel she was speaking in her normal voice. She was trying to be quiet. Ms. Kidder testified she knew she was speaking to duty counsel to obtain legal advice. When asked if she knew she could ask the duty counsel advice concerning the issue of privacy she responded, "At the time, based on the emotion and what had just happened to me, it's really – I wasn't even thinking is my privacy being violated." She agreed she knew she had the right to speak to a lawyer.

[47] Ms. Kidder did not recall P.C. Katoch asking her in the hallway at the hospital if she wanted to speak to a lawyer or duty counsel. She did not recall P.C. Katoch asking her if she wanted to speak to duty counsel when she was moved into the emergency room. She did not recall telling P.C. Katoch she wanted to speak to the doctor first. She did not recall P.C. Katoch asking her, after the doctor left her room, if she wanted to speak to duty counsel. All she vividly remembers is P.C. Katoch coming into the emergency room and handing her a cell phone and telling her duty counsel was on the phone. Ms. Kidder did not recall any of the time periods Mr. Costain put to her respecting P.C. Katoch asking if she wanted to speak to duty counsel.

[48] Ms. Kidder testified she did not have any particular reason for why she did not say to the officer when he opened the curtain that she was still on the phone and for the officer to leave. She had no difficulty understanding what duty counsel was saying to her.

[49] She agreed in cross-examination that sound seemed to travel quite well in the emergency department. The bed she was on was about five feet from the curtain. When the Crown put to Ms. Kidder the officers could have been 10, 15 or 20 feet from the curtain because she could not see them, she maintained, "The only thing I'm positive about that night is that I believe that they were outside of the curtained area at the distance I've let you know based on the level of their voices and how I felt and – that's it."

Analysis

(a) Charter issue, s. 10(b)

[50] As indicated above, the Charter application is restricted to whether Ms. Kidder was afforded privacy in her telephone call to duty counsel while she was in an emergency cubicle at York-Finch Hospital. If her s. 10(b) rights were breached, the next issue is whether the breath readings should be excluded under s. 24(2).

[51] In R. v. Playford, at para. 38, Goodman J.A. held:

An accused who believes that his conversation will be overheard by the police will of course be substantially prejudiced in making use of his right to retain and instruct counsel. That does not mean, of course, that every accused who has such belief no matter how unreasonable, can assert that his right to retain and instruct counsel has been infringed. Where the circumstances are such that an accused would reasonably believe that his conversation to retain or instruct counsel could be overheard by police, it cannot be said that his right to privacy has not been infringed unless it can be shown that he was in fact able to retain and instruct counsel privately.

[52] The issue of adequate privacy in a hospital was first considered by O'Connor J. in R. v. Turriff, [1998] O.J. No. 4818 (Ont. S.C.). The facts in Turriff were that the police arrested the accused for impaired operation causing bodily harm after he was involved in a head on collision. The accused indicated he wanted to speak to a lawyer after he was given his right to counsel. After arriving at the hospital the investigating officer called duty counsel and when duty counsel called back, the officer wheeled Mr. Turriff's bed from the treatment room to where a phone was located in a hallway. Mr. Turriff spoke to duty counsel on this phone for about nine minutes. The two officers moved approximately 30 feet from Mr. Turriff's location. At no time did Mr. Turriff indicate to the officers his privacy during his call with duty counsel had been violated. O'Connor J. found:

The issue is not the distance involved. It is whether Mr. Turriff was afforded his Charter right to a reasonable opportunity to consult with counsel, which means consultation in private. The courts must consider the necessary factual context in deciding whether the state has infringed upon a detainee's right to counsel. There are no hard and fast rules that apply in all cases. Here, I accept the evidence of P.C. Glennie and Const. Brazier, the latter notwithstanding his considerable inaccuracy about his distance from Mr. Turriff, that they could not hear Mr. Turriff's conversation with duty counsel. In the circumstances in which the police found themselves, and understanding their obligations under s. 10(b) of the Charter, they afforded Mr. Turriff the best accommodation possible. I find Mr. Turriff has not proven on a balance of probabilities his s. 10(b) Charter rights were infringed by the police because of the manner in which they permitted him contact with duty counsel.

[53] The Ontario Court of Appeal upheld O'Connor J.'s finding that Mr. Turriff's Charter rights had not been breached in R. v. Turriff, [2000] O.J. No. 1522. In a subsequent case, R. v. Burley, the Ontario Court of Appeal held the "individual factual context must be considered in each case." In Burley the court dealt with whether "a degree of diligence on the part of an accused should be expected in relation to consulting counsel." In answering this question McMurtry C.J.O., for the Court, referred to Bartle v. The Queen, where the Supreme Court decided that the accused's s. 10(b) rights had been infringed when he was not advised of the availability of legal aid duty counsel. In Bartle, Lamer C.J.C. held, at para. 18:

Importantly, the right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended.

[54] McMurtry C.J.O. also made reference to R. v. Richfield, where Weiler J.A. stated at para. 7:

Whether legal advice has been sought diligently by the detained person depends on the context of the situation.

[55] In Burley, the Ontario Court of Appeal held in determining whether there has been a s. 10(b) breach, the court must examine the totality of the circumstances (see para. 24). In this case the accused was placed in a room with either no door or the door was left open to speak to duty counsel. The officer left the accused in the room by himself and stood approximately 20 feet away down a hallway. The officer testified he had a sightline of the doorway of the room but could not hear or see the accused. The accused spoke to the duty counsel for five or six minutes. At no time did the accused tell the officer he was concerned about his privacy. The accused did not ask for the door to be closed, nor did he request an opportunity to make a second call to counsel. The trial judge had found a breach of the accused's s. 10(b) rights as the accused was not able to retain and instruct counsel in private and pursuant to s. 24(2) he excluded all evidence obtained by the police after the breach, including the breath readings, which resulted in an acquittal of all charges. The Court of Appeal allowed the Crown appeal and ordered a new trial.

[56] McMurtry C.J.O., cited R. v. Cairns, at para. 10 with approval:

It is the appellant who bears the burden of establishing, on the balance of probabilities, that her Charter right has been violated. In cases where there is no actual invasion of privacy, there may still be a breach of s. 10(b) where the accused establishes that he or she believed that he or she could not retain and instruct counsel in private and further, that such a belief was reasonably held in the circumstances.

[57] In the case at bar, considering the totality of the evidence, I find Ms. Kidder has not proven a breach of her s. 10(b) rights on a balance of probabilities.

[58] Ms. Kidder testified she was coherent and very aware of everything going on when she was at the hospital. However, she could not recall if the hospital staff gave her any medication. She could not recall if the cell phone was a flip phone or not. She had no recollection of P.C. Katoch reading her the right to counsel in the police cruiser after her arrest. She did not recall P.C. Katoch asking her if she wanted to speak to a lawyer when she was in the hallway of the emergency department waiting for a room. She did not recall being in the hallway when she first arrived at the hospital by ambulance. According to P.C. Katoch's notes, Ms. Kidder was in the hallway for about 18 minutes before being moved into a room. She did not recall P.C. Katoch asking her if she wanted to speak to a lawyer when she was first put into the emergency room and she did not recall telling the officer she wanted to speak to the doctor first before talking to a lawyer. She did not recall P.C. Katoch asking her, after she was examined by the doctor if she wanted to speak to a lawyer. Finally, she did not recall ever asking to speak to a lawyer at any point when she was at the hospital.

[59] It is my view Ms. Kidder's initial comment about being aware of everything that was happening in the hospital was inaccurate given her lack of recall respecting P.C. Katoch's persistence in repeatedly asking her if she wanted to speak to duty counsel. This lack of recall must be compared to the level of detail Ms. Kidder gave concerning her feelings about not being able to speak to the duty counsel in private:

"I felt like I didn't have privacy and I couldn't say all the things I wanted to say to the lawyer."

"I didn't feel comfortable."

"I didn't want to speak to lawyer in front of officers."

"The whole time I was scared, I didn't say anything to the officers."

"I wasn't comfortable whatsoever when speaking to the duty counsel"

"I was afraid to talk to lawyer…"

"My privacy was being violated"

[60] The high degree of detail concerning her feelings about the lack of privacy leads me to believe Ms. Kidder was significantly coached on this area of her evidence. Her lack of detail concerning the officer repeatedly asking if she wanted to speak duty counsel provides credence and weight to this conclusion. If speaking to duty counsel in private was so important to her, it is my view she would have a better memory concerning the officer asking her if she wanted to exercise her right to counsel. Ms. Kidder's response to the Crown's question of whether she knew she could raise her concerns about privacy to duty counsel, "At the time, based on the emotion and what had just happened to me, it's really – I wasn't even thinking is my privacy being violated" clearly demonstrates this was not something she was thinking about during the call. It is my view Ms. Kidder's concerns of her privacy being violated are an after-the-fact justification. This is one of the inconsistencies in her evidence which leads me to not accept her evidence.

[61] Ms. Kidder testified she got out of her car right after the accident and was outside when the officer arrived on scene. This evidence is completely inconsistent with the evidence of Mr. Laing who testified he went to Ms. Kidder's car and spoke to her to see if she was alright after the collision. She was still sitting in the driver's seat, her knee was cut and the airbag was deployed. As Mr. Laing was checking on Ms. Kidder the investigating officer, P.C. Katoch arrived on scene and took over. Ms. Kidder, according to Mr. Laing and P.C. Katoch, was still sitting in the driver's seat. I accept the evidence of Mr. Laing and P.C. Katoch over that of Ms. Kidder. In my view, this is an important discrepancy and further demonstrates the effect the collision had on Ms. Kidder's memory and perception.

[62] Ms. Kidder testified she believed the two officers, P.C. Katoch and P.C. Johnson, were standing directly outside the curtain while she was talking to duty counsel. She believed this even though the curtain was shut and she could not see the officers because they were on the other side of the curtain. Later in her evidence in-chief she testified she believed they were five or six steps from the curtain. In cross-examination she testified the only thing she was positive about was the officers were right outside the curtain area. It was the level of the officers' voices when they were talking to each other, the loudness of their voices, which caused her to believe this.

[63] It is my view her evidence concerning her belief the officers were standing right outside the curtain is internally inconsistent. At one point in her examination in-chief she testified she believed the officers were five or six steps away from the curtain. Later she testified she firmly believed they were right outside the curtain. I do not accept Ms. Kidder's evidence on this and I find her belief was not a reasonable belief in the circumstances.

[64] Ms. Kidder testified she could hear the duty counsel and had no difficulty understanding what the duty counsel was saying to her. There is no evidence Ms. Kidder complained to the duty counsel about her concern respecting the issue of privacy. She did not complain to the officers when they returned to the room about her concern the officers were "violating" her privacy. She did not say to P.C. Katoch when he opened the curtain she was not finished speaking to duty counsel. She did not ask to call duty counsel again because she had further questions to ask or that she hung up early because P.C. Katoch re-entered the room. It is my view Ms. Kidder would have said something to the officer about her concerns relating to a lack of privacy if she truly felt the way she described in her testimony. Her lack of contemporaneous complaint contradicts Ms. Kidder's testimony that her conversation with duty counsel was constrained by her subjective concern about privacy. On Ms. Kidder's evidence she said goodbye to the duty counsel and pushed the button to end the call as soon as the curtain began to open. I find P.C. Katoch would have seen Ms. Kidder was no longer talking on the phone when he opened the curtain. I accept P.C. Katoch's evidence that he asked Ms. Kidder if she had spoken to duty counsel and Ms. Kidder responded, "Yes."

[65] P.C. Katoch did everything he possibly could to implement Ms. Kidder's s. 10(b) rights. He asked her on four occasions if she wanted to speak to duty counsel. As soon as she indicated a positive response he immediately contacted duty counsel. When duty counsel called back he brought her the cell phone and gave it to her, advising her duty counsel was on the line. Both he and P.C. Johnson immediately exited the emergency room and P.C. Katoch closed the curtain. His actions were completely inconsistent with an officer who intended to eavesdrop on an accused's private conversation with counsel.

[66] I accept the evidence of the officers that they moved to a location where they could watch the curtain to ensure Ms. Kidder did not try to leave the hospital and where they could not overhear her conversation with duty counsel. Both officers testified they could not hear Ms. Kidder speaking. There was some discrepancy between the two officers as to the exact distance they were from the curtain. I find this does not adversely affect the officer's credibility. In Turriff, a similar, more significant discrepancy existed; however, O'Connor J. held the distance the officers were away from where Mr. Turriff was on the phone speaking to duty counsel was not the issue. I agree. The issue is whether Ms. Kidder was afforded her Charter right to a reasonable opportunity to consult with counsel, which means consultation in private.

[67] Mr. Chan argued the fact P.C. Katoch was mistaken about the hospital Ms. Kidder was taken to, the York-Finch Hospital in Toronto as opposed to York Central Hospital in Richmond Hill, should cause the court to have significant concerns about the reliability and credibility of P.C. Katoch's evidence. It is my view this is not a significant discrepancy. The trial in this matter took place more than two years after the offence date. P.C. Johnson testified he was directed to attend York-Finch Hospital in Toronto to administer the breath tests to Ms. Kidder. His description of the hallway and nurses station was very similar to the hallway and nurses station described by P.C. Katoch. It is my view P.C. Katoch is just mistaken and this mistake in no way affected the steps he took to implement Ms. Kidder's s. 10(b) Charter rights.

[68] I accept the evidence of P.C. Katoch and P.C. Johnson that they knew the importance of Ms. Kidder being able to speak to counsel in private. I find they moved to a location which afforded Ms. Kidder the opportunity to speak to duty counsel in private. The curtain was closed by P.C. Katoch. In the circumstances in which the officers found themselves, and understanding their obligations under s. 10(b) of the Charter, I find they afforded Ms. Kidder the best accommodation possible to speak to duty counsel in private.

[69] On the totality of the evidence I find Ms. Kidder's subjective belief was not reasonable. Further, as reflected by Kenkel J. in R. v. Peyton, [2007] O.J. No. 3723 (OCJ), at para. 20, "the fact he sought no assistance from counsel or the police shows any subjective concern did not interfere with the exercise of his right to counsel." I make the same finding in this case.

[70] I find Ms. Kidder has not proven on a balance of probabilities her s. 10(b) Charter rights were infringed by the police because of the manner in which they permitted her contact with duty counsel. Consequently, the Charter application is dismissed.

(b) Was the first breath sample obtained by the police after two hours had elapsed from the time of driving, contrary to s. 258(1)(c)(ii)?

[71] Mr. Laing testified the accident occurred at 4:39 to 4:40 a.m., as this is what he saw on the digital display on his car's dashboard when the small car struck the centre median. He testified he immediately pulled over to the side of the road and called 911. This is the time he told the police the accident occurred when he provided his statement.

[72] P.C. Katoch testified he spoke to Mr. Laing briefly at the scene and obtained his particulars to be able to contact him later that same day after dealing with Ms. Kidder. It was P.C. Katoch's evidence he interviewed Mr. Laing approximately five or six hours after he arrived at the scene of the accident. The dispatch call, which was high priority because of the possibility of this being a personal injury motor vehicle collision, was made at 4:39 a.m. The evidence disclosed that dispatch would have immediately announced over the police radio the motor vehicle collision with possible personal injuries as this was a high priority matter.

[73] The first breath sample was accepted by the Intoxilyzer 8000C at 6:31 a.m., which is eight minutes before the two hour time limitation. Mr. Chan argues there was no evidence concerning any synchronization of Mr. Laing's digital clock in his car and the dispatch time and the time generated by the Intoxilyzer 8000C. As I indicated to Mr. Chan during argument, the issue is whether on the totality of the evidence a reasonable inference can be drawn as to when the accident occurred. Based on the totality of the evidence I find there is a very reasonable inference the accident occurred at 4:39 a.m. The first breath test is completed at 6:31 a.m. I find the first breath test was completed prior to the expiration of the two hour limitation. Consequently, based on the totality of the evidence, s. 258(1)(c)(ii) has been complied with and the breath samples and readings obtained by P.C. Johnson are admissible as evidence. The two readings are 149 mg of alcohol in 100 ml of blood and 148 mg of alcohol in 100 ml of blood. The charge of over 80 has therefore been proved beyond a reasonable doubt.

[74] I raised with counsel a further basis for the Crown establishing the first breath sample was completed within two hours of the driving; namely, the fact that Ms. Kidder was in care or control of her motor vehicle at the time P.C. Katoch arrived on scene and she was still seated in the driver's seat. In R. v. Plank, the Ontario Court of Appeal held that the offence of care or control of a motor vehicle was an included offence of operating a motor vehicle. Section 258(1)(a) provides:

258(1) In any proceedings under 255(1) in respect of an offence committed under section 253 or 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle…, the accused shall be deemed to have had the care or control of the vehicle… unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle… in motion…

[75] Where an accused is found in the driver's seat, the accused must establish, on a balance of probabilities, that he or she did not occupy the driver's seat for the purpose of setting the vehicle in motion. Ms. Kidder did not seek to rebut the statutory presumption of care or control.

[76] The Ontario Court of Appeal held in R. v. Hatfield, and R. v. Miller, [2004] O.J. No. 1464 (C.A.), that in order to rebut the presumption of care or control, an accused person must show the occupancy of the driver's seat began without the purpose of setting the vehicle in motion.

[77] All of the evidence in this case indicates Ms. Kidder's occupancy of the driver's seat began for the purpose of driving. Clearly, she intended to drive from the point she entered the vehicle and drove it until she lost control of her car on Highway 407 and came into collision with the centre median. At no point did she relinquish control; the engine was still running, she was still wearing her seat belt and she had not exited the car when Mr. Laing arrived on scene. Further, it was Mr. Laing's evidence while he was checking to see if Ms. Kidder was okay P.C. Katoch arrived and came to Ms. Kidder's car. Both Mr. Laing and P.C. Katoch testified Ms. Kidder was still sitting in the driver's seat. I accept the evidence of Mr. Laing and P.C. Katoch on this issue. I do not accept Ms. Kidder's evidence she had exited her car before the officer arrived or that she was talking outside of her car to the tow truck operator.

[78] Consequently, the first breath sample is analyzed by the approved instrument approximately 12 minutes before the expiration of the two hour limitation as required by s. 258(1)(c)(ii). On this basis the Crown has proven the charge of over 80 beyond a reasonable doubt.

Released: March 10, 2015

Signed: "Justice Peter C. West"