R. v. Roberts

Citation: 2015 ONCJ 714

Court: Ontario Court of Justice

Date: December 10, 2015

Parties

Between:

Her Majesty the Queen

— AND —

Murray Scott Roberts

Before: Justice M. Greene

Reasons for Judgment released on: December 10, 2015

Counsel

For the Crown: K Erlick

For Mr. Roberts: N. Schachter and D. Perry

Background Information

[1] On December 21, 2012, Mr. Roberts was discovered by P.C. Paroussoudi on the side of the Gardiner expressway eastbound lanes just east of the South Kingsway exit. Mr. Roberts was asleep in the driver's seat of the motor vehicle and the engine of the vehicle was on. After some discussion with Mr. Roberts P.C. Paroussoudi formed the grounds to arrest Mr. Roberts with being in care or control of a motor vehicle while impaired by a drug. He was arrested and taken to the police station. His trial on this charge began on February 23, 2015 and ended on October 26, 2015 after a number of days of evidence and a number of adjournments.

[2] At trial the defence made a number of concessions including that at the time of P.C. Paroussoudi's arrival at Mr. Roberts' vehicle, Mr. Roberts' ability to operate a motor vehicle was impaired by drug. It was counsel's position at trial that the charge should be stayed because the police violated Mr. Roberts' rights as protected under sections 10(b) and 8 of Charter. He further argued that even if a stay of proceedings is not granted, the charge should be dismissed because the Crown has failed to prove that Mr. Roberts was in care or control or his motor vehicle.

Summary of Evidence

The Arrest

[3] At approximately 9:30 p.m. on December 21, 2012, P.C. Paroussoudi received a message from traffic services about a vehicle stopped on the Gardiner Expressway on the eastbound lanes. P.C. Paroussoudi drove to the area and located a vehicle pulled over on the shoulder, just east of the South Kingsway exit. This vehicle was mostly on the shoulder but the two driver's side wheels were positioned just over the white line which marked the left-hand border of the lane. P.C. Paroussoudi parked her vehicle in the left lane of live traffic for safety purposes and then walked over to Mr. Roberts' vehicle.

[4] P.C. Paroussoudi testified that as she approached the vehicle from the passenger side she noticed that the vehicle was running and that a male was sitting in the driver's seat with his window open. P.C. Paroussoudi tapped on the window in an attempt to get the attention of Mr. Roberts who appeared to be asleep in the car.

[5] According to P.C. Paroussoudi, Mr. Roberts, in response to the tap, put his hands up in the air as if to indicate that he was surrendering. P.C. Paroussoudi tapped on the window again. This time, Mr. Roberts started to move around a bit, as though he was trying to find a way to open the passenger window. P.C. Paroussoudi then walked over to the driver's side in order to speak to Mr. Roberts. By this point in time P.C. Paroussoudi suspected that Mr. Roberts was impaired.

[6] As P.C. Paroussoudi approached the driver's side of the vehicle she noticed that Mr. Roberts kept nodding down and his speech was hard to understand. His words were not slurred, but they were incoherent. P.C. Paroussoudi asked if Mr. Roberts had been drinking to which he replied that he had not. He then advised that he had just had an argument with his wife. Throughout this interaction, Mr. Roberts kept closing his eyes and his head kept falling down.

[7] P.C. Paroussoudi asked Mr. Roberts to turn off his vehicle but Mr. Roberts appeared to be having difficulty complying with this request. At this point in time, P.C. Paroussoudi formed the grounds to believe that Mr. Roberts' ability to operate a motor vehicle was impaired by a drug and advised him that he was under arrest. P.C. Paroussoudi did not think that Mr. Roberts was impaired by alcohol because she could not detect any odor of alcohol. When asked specifically what her grounds were for making the arrest, P.C. Paroussoudi referred to the following observations:

• He could not keep eyes open;
• His head kept falling forward;
• Incoherent speech;
• He had been asleep in a motor vehicle;
• When he was awoken he held hands up as if to indicate that he was surrendering; and
• No odor of alcohol emanating from Mr. Roberts' breath.

[8] As Mr. Roberts exited his vehicle, P.C. Paroussoudi noticed that he appeared to be in pain. At this point he advised the officer that he was taking medication for his pain. P.C. Paroussoudi also noticed that Mr. Roberts was having a difficult time standing up and she became worried that he was going to fall over. She eventually managed to lead him to her scout car and conduct a pat down search.

[9] Once in the cruiser, P.C. Paroussoudi advised Mr. Roberts of his right to counsel. Mr. Roberts responded that he did in fact want to speak to a lawyer. P.C. Paroussoudi then made the demand for Mr. Roberts to comply with the Drug Recognition test. She also asked if Mr. Roberts required any items from his vehicle. Mr. Roberts replied that he needed his cellular telephone. P.C. Paroussoudi then transported him to the police station.

[10] The in car camera in P.C. Paroussoudi's vehicle captured the above events as well as Mr. Roberts behaviour in the vehicle while being transported. Mr. Roberts can be seen in the video falling asleep in the back seat of the cruiser. After a short time, Mr. Roberts starts making what appears to be a moaning sound. When the officer asked Mr. Roberts what was wrong, he did not respond. Upon arriving at the station, Mr. Roberts can be seen waking up and then asking what city they were in. When the officer told Mr. Roberts that they were in Toronto, Mr. Roberts can be heard on the video saying "holy smokes this is way way far from where I..". The remainder of this sentence was inaudible.

[11] Mr. Roberts then asked if he could call his girlfriend. P.C. Paroussoudi advised Mr. Roberts that he can call his girlfriend after he has spoken to counsel.

[12] P.C. Paroussoudi testified that upon arriving at the station she drove into the sallyport and then called for assistance as she was worried that she would be unable to support Mr. Roberts if he collapsed. The booking video was played in court. On the video, P.C. Paroussoudi is seen standing by the door of her cruiser. Then P.C. Niziol comes into view and both officers help Mr. Roberts out of the vehicle. P.C. Niziol, who was the qualified drug recognition evaluator called in to examine Mr. Roberts, testified that Mr. Roberts' eyes were closed, that he needed the officer's support to walk and that he had a shuffle in this step. All this can be clearly seen in the booking video.

[13] In the booking area, the officers immediately grabbed a chair for Mr. Roberts to sit on. During the initial stages of the booking process Mr. Roberts can be seen on the booking video almost falling off his chair on at least four occasions. On all these occasions P.C. Niziol and P.C. Paroussoudi had to grab him to stop him from falling. The first time occurred at 10:12 p.m. On this occasion, Mr. Roberts leaned forward and appeared to be falling until the officers held him up. Then again at 10:13 p.m., Mr. Roberts appears to be leaning back on the chair and then it looks like he is about to fall over. Again the officers grab hold of him. Similar events can be seen on the booking video at 10:15 p.m. and at 10:17 p.m.

[14] As this is taking place, the booking officers tried to obtain some information from Mr. Roberts about his medical condition. Mr. Roberts appears to have a hard time answering the questions. Mr. Roberts can be seen on the video starting to answer the questions posed but rarely completed a full sentence. Instead, he repeated words or stopped talking before the thought was expressed. Finally at 10:22 p.m., Mr. Roberts appears to close his eyes and stops communicating. At this point Sgt. Shellew, the booking sergeant at the station, made the decision that Mr. Roberts needed immediate medical assistance and as a result an ambulance was called.

[15] Sgt. Shellew testified that he chose to forgo a drug recognition exam and send Mr. Roberts to the hospital instead because in his opinion Mr. Roberts was in distress and he was very concerned for his safety. Sgt. Shellew did not know what drugs Mr. Robert's had consumed and he looked to be at the extreme end of what is normally seen of individuals he had been exposed to at work. P.C. Niziol testified that in his opinion, a drug recognition evaluation could not be conducted on Mr. Roberts. It was his opinion that to do so would put Mr. Roberts' health at risk. P.C. Niziol further testified that while he did not complete the exam, it was his opinion that Mr. Roberts appeared to be "on the nod". As a qualified drug recognition evaluator, this is classic indicator that a narcotic had been taken.

[16] While waiting for the ambulance, P.C. Niziol attempted to have further discussion with Mr. Roberts by asking about his time in the armed forces and asking for his Service Number. Mr. Roberts had previously indicated that he had been in the armed forces. As an ex-military man himself, P.C. Niziol was worried that Mr. Roberts was a vet who needed help but was slipping through the cracks. P.C. Niziol testified that he wanted to learn more about Mr. Roberts so that he could help him.

[17] The booking room camera continued to capture all the interactions between Mr. Roberts and the police up to and including when the paramedics arrived. At times, on the video Mr. Roberts was unable to formulate words and would close his eyes. At other times he was able to answer questions. His condition appeared to worsen then improve at random. He appeared almost fine for a couple of seconds and then would become incomprehensible again.

[18] The ambulance attendants arrived at approximately 10:30 p.m. Upon their arrival, Mr. Roberts was seated and self-supporting. David Hissem, one of the paramedics on scene, testified that in his opinion Mr Robert's verbal responses were confused and his motor responses were reduced. The paramedics took Mr. Roberts to the hospital by ambulance and did not administer any drugs.

[19] P.C. Torrano, another officer from the station, rode in the ambulance with Mr. Roberts to the hospital while PC Paroussoudi followed in her own scout car. They arrived at the hospital at 10:55 p.m.

[20] According to the medical records filed, Mr. Roberts was seen by a triage nurse by 11:04 p.m., less than ten minutes after he arrived. Ms. Hissen, a nurse working on December 21, 2012 in the emergency room, testified that during triage the seriousness of Mr. Roberts' condition was assessed. On a scale of one to five, where five indicates that the patient's condition is least serious and a one indicates that the patient's condition is most serious, Mr. Roberts was rated as a two.

[21] According to the officers, after Mr. Roberts was triaged, he was placed in a curtained off room. They further testified that Mr. Roberts was in and out sleep and semi alert during this time.

[22] The medical records filed with the court reflect that Mr. Roberts was seen by nurses at 11:16 p.m. and 11:38 p.m. At 11:40 p.m., Ms. Hissen, took blood from Mr. Roberts. She testified that the blood was taken as per a medical directive. The notes also indicate that Mr. Roberts' speech was confused during this time.

[23] P.C. Paroussoudi and PC Torrano remained with Mr. Roberts while the blood was taken.

[24] At 1:00 a.m., a nurse entered the room and administered a drug called Narcan through an IV to Mr. Roberts. According to PC Paroussoudi, the nurse advised her that the drug they were administering would wake Mr. Roberts up. The nurse asked that the officers cuff Mr. Roberts to the bed because the drug sometimes caused people to wake up in a combative state. The medical records confirm that Mr. Roberts was given Narcan at 1:00 a.m.

[25] Dr. Mayers, a forensic toxicologist, testified at trial that Narcan is an antidote for opiates. The Narcan disrupts the opiate receptors and reveres the effects of the opiates. At 1:20 a.m. it was noted in the medical records that Mr. Roberts was restless, his eyes were still closed but he was now responding to questions.

[26] At 2:00 a.m., the nurse attended again and noted that Mr. Roberts woke up easily and had no complaints.

[27] According to P.C. Paroussoudi, who had remained in the room with Mr. Roberts, shortly after the drug was administered, Mr. Roberts opened his eyes and began to move around, yell, spit and sneeze. While he was awake and alert, he still was not answering any questions posed to him. Mr. Roberts was alert for approximately 20 minutes and then went back to sleep. P.C. Paroussoudi testified that she left the hospital at approximately 2:00 a.m. P.C. Pruong took over for her. It appears from all the evidence that by 2:45 a.m. Mr. Roberts was awake and responsive and able to telephone his girlfriend.

[28] Mr. Roberts was discharged from the hospital at 7:45 a.m. on December 22, 2012. He was released by the police on a promise to appear.

The Seizure of Mr. Roberts' Blood

[29] As noted above, Ms. Hissen drew blood from Mr. Roberts at 11:40 p.m. as per the medical directive. She could not recall how many vials of blood she drew but she knew that she took more than one vial of blood because different tests had to be conducted. Ms. Hissen testified that she only drew the amount of blood necessary for the medical purposes. She had no recollection of an officer asking her draw additional blood.

[30] P.C. Paroussoudi also testified that Ms. Hissen took the blood from Mr. Roberts. She denied making any request for the blood to be taken. Once it was taken, however, she did follow Ms. Hissen as she took the blood to the laboratory. P.C. Paroussoudi then asked the lab technician if there was an extra vial of blood and if so, could she place a seal on the extra vial of blood. According to P.C. Paroussoudi, after checking what tests were ordered the technician advised that there was an extra vial and handed it over to P.C. Paroussoudi. P.C. Paroussoudi sealed the vial and then returned it to the lab technician. Sometime later, P.C. Paroussoudi prepared an information to obtain (ITO) a warrant to seize both Mr. Robert's blood and his medical records. This warrant was granted and executed on January 15, 2013.

[31] Ms. Medved, the lab technician who seized Mr. Roberts' blood on December 21, 2012, testified that she received the blood on that morning from a female officer who was accompanied by a nurse. Ms. Medved candidly testified that she could not recall all the details of receiving the samples because as the hospital lab technician she receives many samples every night. It was difficult to recall the specifics of any one interaction. Ms. Medved did recall, however, that the female officer did ask her to seal and put aside any extra blood. She further confirmed that the seal was placed on the blood.

[32] At trial, Mr. Roberts testified that he never consented to the medical staff taking his blood nor did he consent for the officers to seize any of his blood.

[33] Dr. Mayers analyzed the blood that had been taken by the hospital on December 21, 2012 and seized by the police on January 15, 2013. He found the following drugs in the sample:

• Oxycodone .18 mg per litre
• Morphine at 120 ng per ml
• Dextromethorphan at .24 mg per litre
• Alprazolam at 92 ng per ml

[34] Dr. Mayers could not indicate how much of any of the above drugs were in Mr. Roberts' system at the time of driving or when he was in the driver's seat of the motor vehicle. Dr. Mayers explained that, unlike alcohol, drugs do not have a simple absorption and elimination rate. Dr. Mayers did testify, however that many of the drugs found in Mr. Roberts' blood were above the therapeutic level. In relation to the oxycodone, the amount found in Mr. Roberts would have been enough to possibly kill someone who had not developed a tolerance to the drug. Oxycodone is a pain killer that can make people drowsy.

[35] In relation to the Morphine, the amount found in Mr. Roberts' blood could depress the Central Nervous System and make users drowsy, lethargic and confused. Alprazolam was also found in larger amounts in Mr. Roberts' body. This drug acts to depress the nervous system and can make users loose muscle control, suffer from lethargy and in some cases place a user in a coma. The exact impact of the drugs on any given person is largely dependent on whether they are frequent users of the drug and have developed a tolerance.

[36] When asked about the combined impact of these drugs, Dr. Mayers testified that it could intensify the depression of the Central Nervous System. Combined these drugs can cause confusion, lethargy and drowsiness.

Dissemination of Mr. Roberts' Personal Medical Information

[37] As noted above P.C. Torrano was one of the officers present with Mr. Roberts at the hospital. According to P.C. Torrano, at 4:42 a.m., Dr. Liu entered Mr. Roberts' curtained off room and spoke to Mr. Roberts about his condition. P.C. Torrano remained in the room and heard the entire conversation between Mr. Roberts and his doctor. This included the results of all the blood and urine tests. When the conversation ended, P.C. Toranno then asked the doctor himself for the results of the tests. Dr. Liu complied and advised P.C. Torrano of the results of Mr. Roberts' medical tests. When asked why he asked the doctor for the results, PC Torrano responded "just out of curiosity".

[38] At 4:48 a.m., just minutes after the doctor revealed the results of the tests, PC Torrano telephoned Sgt. Shellew. When asked about the content of this conversation P.C. Toranno testified that he could not recall if he told Sgt. Shellew the results of the tests.

[39] At 6:22 a.m., PC Torrano had a second conversation with Dr. Liu where the doctor revealed even more information about Mr. Roberts' condition. PC Torrano could not recall if he asked for the information or if the doctor volunteered it. At 6:25 a.m., PC Torrano again telephoned the station and spoke to a supervising officer. Again, P.C. Torrano could not recall the purpose of this call.

[40] Mr. Roberts testified that at no point in time did he want his private medical information revealed to any officer nor did he ever consent to the information being shared with the officers. Had he been given the choice, he would not have wanted the officers present when he spoke to his doctor about his medical situation.

Defence Evidence

[41] At trial Mr. Roberts testified about his complex medical situation including the unfortunate reality that Mr. Roberts lives a life of constant physical pain arising from numerous injuries suffered while fighting for this country. Mr. Roberts' pain was visible during every single day of this trial.

[42] Mr. Roberts also testified about the lack of support from veteran affairs after he was medically discharged from the armed forces and the difficulty that he had finding a family doctor. Eventually, Mr. Roberts turned to street drugs.

[43] Fortunately, Mr. Roberts eventually was able to successfully turn away from street drugs and found a doctor who was able to arrange for Mr. Roberts to have surgery on his back. Two operations later, Mr. Roberts was still in tremendous pain, but at least he could walk. By 2012, Mr. Roberts was under the care of a family doctor, a pain specialist, a psychologist and psychiatrist for his PTSD and depression, and a surgeon.

[44] Mr. Roberts testified that in December of 2012 he was on a number of medications for both his mental health issues and his physical health issues. His pain medication included Statex and Hydromorphone. He had both fast acting and slower acting pain medication.

[45] According to Mr. Roberts, on December 20, 2012, he was in a motor vehicle accident which compounded his already existing injuries. Mr. Roberts, who has a profound distrust of medical practitioners, did not seek medical attention after this accident. His car was towed away and a rental car was secured for him.

[46] The next day, Mr. Roberts woke up and took his pain mediation and his antidepressant. He also took some other medication for his stomach. For his pain, Mr. Roberts took Hydromophone, Hydromophone Compten and Statex. At 5:30 p.m., Mr. Roberts took another Statex and a gavapentan pill. He then left his residence in Barrie at 7:45 p.m. and drove to Toronto.

[47] Mr. Roberts testified that he decided to drive to Toronto at 7:45 p.m., because after having a fight with his common-law wife, Ms. Carty, over gifts for her grandchild, he decided that he wanted to buy a Christmas gift for one of her grandchildren. His intention was to drive to the Hudson's Bay Centre at Yonge and Bloor. He hoped to purchase a playstation gift.

[48] According to Mr. Roberts, upon reaching Yonge Street, he started to feel pain in his lower back, neck and right knee. Mr. Roberts explained that he had experienced this before and knew that it was safer not to panic. Instead, he started to look for a way to turn around and return home. He started driving around looking for a way to reach the 400 highway.

[49] Mr. Roberts testified that as he drove the pain became worse until he decided that it was no longer safe for him to drive. By this time, he had somehow managed to get onto the Gardiner expressway. Instead of driving to the next exit, Mr. Roberts pulled over to the side of the expressway.

[50] Once he pulled over, he put on the parking break and his emergency lights but kept the vehicle running for the heat. He then took some pain medication and sent a text message to Ms. Carty asking her to pick him up. Mr. Roberts could not tell Ms. Carty where he was because he was not sure of his exact location. He knew he was on the Gardiner expressway, near the Air Canada Centre. Mr. Roberts was in fact on the eastbound lanes of the Gardiner Expressway near the South Kingsway. When asked how he got to this location, Mr. Roberts only responded that he was lost.

[51] Mr. Roberts testified that he sent the text message to Ms. Carty at 8:45 p.m. Ms. Carty responded that she would come and pick him up. As Mr. Roberts could not tell her where he was located, they agreed that he would call or text her back once he figured out his exact location. After this communication, Mr. Roberts took more medication for his pain. As he was no longer intending to drive, he felt it was safe to do so. Mr. Roberts is aware that his medication can affect his movements and his speech.

[52] According to Mr. Roberts, he remained in his vehicle trying to figure out a way to determine where he was. The police arrived approximately 35 to 40 minutes after he had pulled over. During this time, despite having a cellular telephone with internet access and a map function on it, Mr. Roberts made no attempt to use these tools to help him determine his location. He also made no further calls to Ms. Carty. Instead he just remained in his vehicle waiting for the medication to start working.

[53] Ms. Carty, Mr. Robert's spouse, also testified at trial. She testified that Mr. Roberts left the residence on Dec 21, 2012 to go shopping. The next communication she had with him was at approximately 11:00 p.m. or 12:00 a.m. when she received a text from him stating that he was hurt and on the side of the expressway and needed her to come pick him up. Ms. Carty then took steps to retrieve her other car and waited for Mr. Roberts to call back with his location. She fell asleep waiting for this call.

[54] According to Mr. Roberts, when P.C. Paroussoudi arrived, the pain medication was just starting to work but he was still in pain. While he acknowledged that he was somewhat confused from the medication, the reason he could not open his windows was because the vehicle he was driving was a rental car and he did not know where all the controls were.

Issues Raised in the Case at Bar

[55] At trial the following issues were raised:

A) Were Mr. Roberts' rights as guaranteed by section 10(b) of the Charter violated?

B) Were Mr. Roberts' rights as guaranteed by s. 8 of the Charter violated when the officers sealed his blood at the hospital and when the officers obtained information about Mr. Roberts' medical condition without his consent and without a warrant?

C) Should there be a stay of proceedings for these Charter violations?

D) If the proceedings are not stayed, has the Crown proven beyond a reasonable doubt that Mr. Roberts was in care and control of a motor vehicle?

A) Section 10(b) of the Charter

[56] In the case at bar, Mr. Roberts was advised of his right to speak to a lawyer immediately upon his detention and then again at the police station. Mr. Roberts clearly indicated on both occasions that he wanted to speak to a lawyer. Nonetheless, throughout the entire ten hours that he remained in police custody, Mr Roberts was never afforded the opportunity to consult with counsel. In light of this fact, counsel for Mr. Roberts argued that Mr. Roberts 10(b) rights were violated.

[57] Crown counsel conceded that Mr. Roberts 10(b) rights were violated. She argued, however, that the violation only started at the point where Mr. Roberts was medically fit to safely consult with counsel in private. The Crown argued that the police properly chose to forgo access to counsel at the police station given the medical concerns at hand. She agreed, however, that later that morning, once Mr. Roberts was feeling a little better and was more coherent, he should have been given the opportunity to speak to counsel.

General Legal Principles

[58] Section 10(b) of the Charter states that anyone, upon arrest or detention, has the right to retain and instruct counsel without delay (R. v. Taylor, 2014 SCC 50, [2014] S.C.J. No. 50). The purpose of section 10(b) of the Charter is to provide a detainee with an opportunity to obtain legal advice relevant to his/her legal situation and to have sufficient information to make an informed decision about how to exercise his/her rights and about whether or not to cooperate with the police (see R. v. Sinclair 2010 SCC 35, [2010] 2 S.C.R. 310 and R. v. Manninen, [1987] 1 S.C.R. 1233).

[59] Section 10(b) includes both an informational and implementational component. The informational component includes advising a detainee of the right to speak to counsel and the scope of this right, including that a free legal aid lawyer can be provided. The detainee must be advised of this right immediately upon detention or arrest (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460). The implementational component requires officers to assist the detainee in accessing counsel and to be afforded an opportunity to consult with counsel in private (R. v. Manninen, supra). Where consultation with counsel cannot be done immediately, the police must hold off questioning until the detainee has had a chance to exercise this right (R. v. Brydges (1990), 53 C.C.C. (3d) 330 (SCC) and R. v. Prosper, [1994] 3 S.C.R. 236).

[60] Where there is a delay is allowing a detainee access to counsel, the burden lies with the Crown to show that the delay was reasonable in the circumstances (R. v. Taylor, supra at para 24). Such circumstances can include where the detainee's medical situation makes it impossible to consult with counsel. The Supreme Court of Canada in R. v. Taylor, supra, stated at para 31:

There may well be circumstances when it will not be possible to facilitate private access to a lawyer for a detained person receiving emergency medical treatment. As this Court noted in Bartle, a police officer's implementational duties under s.10(b) are necessarily limited in urgent or dangerous circumstances But those attenuating circumstances are not engaged in this case. As the trial judge found, the paramedic "did not feel there was anything wrong with the accused", but took Mr. Taylor to the hospital only "out of an abundance of caution, and in accordance with normal practice." And once at the hospital, it was 20 to 30 minutes before the hospital took any blood from Mr. Taylor, more than enough time for the police to make inquiries as to whether a phone was available or a phone call medically feasible.

[61] The court went on to note at paragraph 33:

Not everything that happens in an emergency ward is necessarily a medical emergency of such proportions that communication between a lawyer and an accused is not reasonably possible. Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.

Application to the Facts in This Case

[62] According to every officer who had contact with Mr. Roberts at the police station, Mr. Roberts was unsteady and for the most part incoherent. They were all of the view that his medical condition was serious and that immediate medical attention was required—so much so, that they decided not to complete the drug recognition evaluation. The officers were also of the view that given how unsteady Mr. Roberts was, it was unsafe to put him in the phone booth by himself. For these reasons, Mr. Roberts was not afforded an opportunity to speak with counsel at the station. Mr. Roberts testified that he was not that confused, incoherent or unsteady on his feet. He was feeling the effects of his medication but it was his opinion that he could have safely sat in the phone booth and conversed with counsel.

[63] The booking video, in my view, confirms the officers' evidence about Mr. Roberts' physical and mental state and runs contrary to Mr. Roberts' own opinion about his mental and physical state. Mr. Roberts can be seen on the video having a difficult time remaining on his chair. He was incapable of answering many of the questions posed, not because, as Mr. Roberts testified, he was actively choosing not to share personal information, but because he could not formulate a full sentence. A number of times on the video Mr. Roberts can be seen starting a sentence and then not finishing it, or starting to speak but repeating the same word over and over. In my view it was obvious that Mr. Roberts was having difficulty speaking and holding up his body in the chair.

[64] Moreover, Mr. Hissem, the paramedic, also testified that in his opinion it was not safe to leave Mr. Roberts alone in the phone booth.

[65] When I consider all the evidence, I completely accept that the officers evidence that it was not safe to put Mr. Roberts alone in the phone booth to speak with counsel. I appreciate that Mr. Roberts expressed a contrary view in his evidence, but in my view this aspect of his evidence is unreliable and inconsistent with the other objective evidence on this point. In light of this finding of fact, I agree with Crown counsel that this is one of those rare situations were the officers were permitted to delay access to counsel until it was safe to do so.

[66] As noted above, there were times when Mr. Roberts seemed a bit more coherent and steady. Mr. Roberts' condition seemed to vary over time, but this in my view does not alter my decision. Given how quickly Mr. Roberts' level of coherence and stability changed, the officers could not be satisfied that even during his better moments that he would remain that way for long.

[67] In my view, this case is dramatically different from the case of R. v. Taylor, supra. In that case, Mr. Taylor was not unwell. He had been cleared medically by the paramedics and was only taken to the hospital out of an abundance of caution. Moreover, he was seated in the waiting room of the hospital for half an hour during which he could easily have consulted with counsel. Yet during all this time the officers never turned their mind to accessing counsel. In the case at bar, Mr. Roberts was very unwell and the officers reasonably concluded that it was unsafe to leave Mr. Roberts unattended. To that end, I note that upon arriving at the hospital, Mr. Roberts was considered to be a very high priority; he was seen by a triage nurse in less than 10 minutes of his arrival at hospital; he was put in a room quickly; and seen by a nurse two more times over the next 40 minutes.

[68] I also appreciate that officer Torrano, a relatively new officer who only became involved in this case once Mr. Roberts was being transported in ambulance to hospital, testified that he would have allowed Mr. Roberts access to counsel at the station. I note, however, that he did not have the same opportunity to view just how unsteady Mr. Roberts was. I further note that P.C. Torrano also testified that if possible he would have allowed Mr. Roberts access to counsel from the ambulance had he known that Mr. Roberts had not yet spoken to counsel. He failed to indicate, however, how private communications could have been accommodated from inside the ambulance. I place no weight on P.C. Toranno's evidence on this point. It is completely unrealistic and failed to take into account Mr. Roberts medical condition.

[69] One further point I need to address is the officers' evidence that they were justified in not allowing Mr. Roberts access to counsel because Mr. Roberts was too confused to even be able to understand any advice he received from counsel. In my view, this is not a basis to deny access to counsel. It may be a basis to avoid obtaining a statement from a detainee or trying to get their consent, but it is not a basis to delay or forgo access to counsel.

[70] Having concluded that the officers acted properly in delaying access to counsel at the station the issue that must be considered next is at what point should the police have given Mr. Roberts access to counsel?

[71] Mr. Roberts arrived at hospital at 10:55 p.m. on December 21, 2012. At that time he was noted by nursing staff and the officers as being confused and drowsy. He was also hooked up to a number of different machines. At 1:00 a.m. Mr. Roberts was given a drug called Narcan. This drug is specifically used to counteract the effects of opiates. At 1:30 a.m., the nursing notes still seem to indicate that Mr. Roberts was drowsy but he was starting to rouse. In my view, during these initial hours at the hospital, Mr. Roberts was still in no position to speak to counsel in private. He was drowsy, at times incoherent and hooked up to an IV. It is completely reasonable and constitutional for the officers to delay access to counsel until Mr. Roberts was medically cleared enough to consult with counsel in private, keeping in mind, however, their obligation to hold off attempting to elicit any information from Mr. Roberts until he had a chance to consult with counsel.

[72] It does appear, however, from all the evidence that by 2:30 a.m. Mr. Roberts was well enough to speak to counsel in private. Nonetheless this was not done. In fact, P.C. Torrano who was with Mr. Roberts during this time had not even been informed that Mr. Roberts had not yet had access to counsel so therefore no steps were taken to address the issue of access to counsel. It is clear that once the medical and safety issues were resolved the officers ought to have taken steps to facilitate Mr. Roberts' consultation with counsel. In R. v. Taylor, the Supreme Court of Canada stated at para 34:

An individual who enters a hospital to receive medical treatment is not in a Charter-free zone. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s.10(b) to take steps to ascertain whether private access to a phone is in fact available, given the circumstances. Since most hospitals have phones, it is not a question simply of whether the individual is in the emergency room, it is whether the Crown has demonstrated that the circumstances are such that a private phone conversation is not reasonably feasible.

[73] In the case at bar, it was not reasonably feasible to allow Mr. Roberts access to counsel during the early stages of his admission at hospital given his medical condition. Once, however, the Narcan had taken effect, it is clear that Mr. Roberts was well enough to consult with counsel and at that point in time the officers should have made inquiries about access to a private phone. I therefore find that Mr. Roberts' rights as guaranteed by section 10(b) of the Charter were violated.

B) Section 8 of the Charter

[74] The defendant alleges two section 8 breaches:

a) That the blood taken at the hospital was taken in violation of Mr. Roberts' section 8 rights; and,

b) That the officers' violated Mr. Roberts' section 8 right when they remained present during private conversations between Mr. Roberts and his doctor and when they questioned Mr. Roberts' doctor about Mr. Roberts' medical condition.

a) The Seized Blood

[75] It is alleged by Mr. Roberts that the police actively instructed medical staff to secure the blood that P.C. Paroussoudi sealed at the hospital. In my view, there is no evidence to support this argument. At trial, P.C. Paroussoudi testified that she did not ask any medical practitioner to take blood for police purposes. This evidence is corroborated by Ms. Hissen, the nurse on staff that night, who testified that she took blood at 11:40 p.m. from Mr. Roberts in accordance with medical directives. I completely accept Ms. Hissen's evidence and P.C. Paroussoudi's evidence on this point. I found both these witnesses to be credible and reliable and their evidence served to corroborate the other.

[76] P.C. Paroussoudi did admit that she went with Ms. Hissen to the lab and asked the technician if there was any extra blood and if so, if she could put a seal on it. This evidence was largely corroborated by Ms. Medved. P.C. Paroussoudi put a seal on a vial of extra blood and left it at the hospital. The blood did not come into police custody until a warrant was executed for the blood on January 15, 2013. Counsel for Mr. Roberts takes no issue with the search warrant. In fact, the ITO was never even presented to the court. Instead, counsel argued that despite the clear evidence that the blood was taken as a result of a medical directive and that Ms. Medved was only asked to seal and preserve the extra blood, that the blood was unlawfully seized.

[77] In making this argument, counsel largely focused on inconsistencies within Ms. Medved's evidence and inconsistencies between Ms. Medved's evidence and the evidence of P.C. Paroussoudi. I agree that Ms. Medved's recollection of the events on Dec 21, 2012 were somewhat hazy. This is not surprising given that she testified over two years after the event and works in a very busy hospital lab. In fact, Ms. Medved was candid with the court that she had a poor recollection of all the details. While P.C. Paroussoudi and Ms. Medved's evidence may have differed on some of the finer details about what was done by Ms. Medved with the blood, nothing in her evidence contradicted P.C. Paroussoudi's evidence that she only asked the lab to seal blood that was not required for medical purposes. As noted above, I found P.C. Paroussoudi to be a credible and reliable witness. I accept her evidence that she only asked to place a police seal on any extra blood that the hospital and doctors did not need to treat Mr. Roberts.

[78] In light of this I find as a fact that the blood taken from Mr. Roberts was taken as part of a medical directive and that no additional blood was taken at the request of the police.

[79] In R. v. Dyment [1988] 2 S.C.J. No. 82, a doctor seized blood from Mr. Dyment without his consent (or objection). The doctor then spoke to the investigating officer and handed over the blood he seized from Mr. Dyment. The Supreme Court of Canada concluded that this conducted violated Mr. Dyment's rights under s.8 because the doctor had no authority to hand the blood over to the officer. In so doing the Court stated at paragraph 34 "…Given the danger to individual privacy of an easy flow of information from hospitals and others, the taking by the police of a blood sample from a doctor who has obtained it for medical purposes cannot be viewed as anything but unreasonable in the absence of compelling circumstances of pressing necessity…"

[80] The case of R. v. Dyment, supra, differs from the case at bar in some key respects. The most fundamental distinction is that, in the case at bar, the blood never left the hospital and was not handed over to the police. Instead, the hospital allowed a seal to be placed on the extra blood that was no longer required. This blood was retained by the hospital and only provided to the police in accordance with a search warrant.

[81] In R. v Lachapelle 2007 ONCA 655, [2007] O.J. No. 3613 (Leave to the SCC denied [2007] S.C.C.A. 584), hospital staff took blood samples from Mr. Lachapelle for medical purposes only. Like in the case at bar, the officers placed a seal on what was considered to be an extra vial of blood. Two days later the officers obtained a search warrant and seized this vial of blood. The appellate court held that the seizure of the blood did not violate section 8 of the charter. Justice Rosenberg stated at paragraph 40:

The trial judge found that hospital personnel took blood samples only for medical reasons. There is absolutely no evidence that the physician who ordered that the blood samples be taken or that the nurse who took them were acting as agents of the state or that they took the samples with the intention of sharing the blood or the results of any analysis with the police. Accordingly, s.8 of the Charter was not engaged. See R. v. Dersch (1993), 85 C.C.C. (3d) 1 (S.C.C.) at 12-3.

[82] Moreover, in R. v. Lachappelle, supra, the court further held that placing seals on the vials of blood as a means to secure the blood until a warrant could be obtained, even where, but for the seals the blood would have otherwise been destroyed, did not amount to an unreasonable seizure (see also R. v. Gettins [2003] O.J. No. 4758 (CA)). In my view the facts in the case at bar are very similar to the facts in R. v. Lachapelle, supra. The blood drawn from Mr. Roberts was for medical purposes only and the police seal was only placed on blood that the hospital no longer required for medical purposes. In light of the rulings in R. v. Lachapelle, supra and R. v. Gettins, supra, I find that the taking of the blood by the nurse and the placing of the CFS seal on the blood by P.C. Paroussoudi did not violate Mr. Roberts' rights as guaranteed by section 8 of the charter.

b) The Medical Information Obtained by PC Torrano

[83] P.C. Torrano testified that he rode with Mr. Roberts in the ambulance and then remained with Mr. Roberts at the hospital until well after 6:30 a.m. P.C. Torrano was in the cordoned off room with Mr. Roberts when the nurse came in to assess him and was also in the room when the doctor was present.

[84] According to P.C. Torrano, at 4:42 a.m., Dr. Liu returned to the room and spoke to Mr. Roberts about his condition. By this point in time, Mr. Roberts was alert and able to effectively communicate. P.C. Torrano remained present during this conversation and heard the entire content of the discussion. When asked why he stayed, PC. Torrano's sole comment was that Mr. Roberts was still in custody and "no one asked him to leave". I note that by this point in time, Mr. Roberts ought to have been given access to counsel but had not. It is not a leap to think that had Mr. Roberts spoken to counsel by this point in time, he may have asked for a private word with his doctor. In fact, Mr. Roberts testified to this fact and I accept his evidence on this point.

[85] P.C. Torrano then asked Dr. Liu specific questions about Mr. Roberts' condition including the results of the blood and urine tests. Unfortunately, the doctor chose to share this very private information with P.C. Torrano. When questioned about his motives for asking Dr. Liu for the results P.C. Torrano responded that it was "just out of curiosity". Moments later, at 4:49 a.m., however, P.C. Torrano telephoned Sgt. Shellew. At trial P.C. Torrano testified that he could not recall why he telephoned Sgt. Shellew nor could he recall if he told this supervising officer the contents of his discussion with the doctor. He denied that the purpose of the telephone conversation was to relate the medical information received from Dr. Liu.

[86] At 6:22 a.m., PC Torrano had a second conversation with Dr. Liu about Mr. Roberts' condition. At 6:25 a.m., PC Torrano telephoned Sgt. Kemp. P.C. Torrano again denied that the purpose of the call was to relate the information he received from the doctor. He also denied that his purpose in questioning the doctor was to further the criminal investigation.

[87] Counsel for Mr. Roberts urged me to reject P.C. Torrano's evidence that he only questioned the doctor out of curiosity. It was counsel's position that P.C. Torrrano was attempting to gather information in furtherance of the investigation. I have no difficulty agreeing with counsel on this point. I reject P.C. Torrano's evidence that he was not attempting to further the investigation when he eavesdropped on the doctor's conversation with Mr. Roberts and when he posed questions to the doctor about Mr. Roberts' condition. In my view, it defies common sense that he did so "only out of curiosity". Moreover, I reject P.C. Torrano's evidence that the calls to his supervising officers at 4:48 a.m. and at 6:25 a.m. were not for the purpose of relaying the illegally obtained medical information. P.C. Torrano spoke to the doctor on two occasions. After both conversations he immediately called his supervising officer. The only logical explanation for this is that he was relating to the supervising officer the information he received about Mr. Roberts' medical condition.

[88] Crown counsel, while urging me to accept P.C. Torrano's evidence, nonetheless conceded the section 8 breach. Regardless of P.C. Torrano's motives, his actions in remaining present for the medical discussion and in posing questions to Mr. Roberts' doctor without a warrant are in direct contravention of section 8 of the Charter. Mr. Roberts has a high privacy interest in his medical information. It is expected that the medical information will be kept confidential. In seeking out the private medical information relating to Mr. Roberts the police clearly violated his section 8 rights.

C) Stay of Proceedings

[89] Counsel for Mr. Roberts advised the court that he was not seeking a remedy under section 24(2) of the Charter. He indicated that such a remedy would not assist his client in any meaningful way given the admission that Mr. Roberts ability to operate a motor vehicle was impaired by drug at 9:30 p.m. when P.C. Paroussoudi found Mr. Roberts in the driver's seat of his vehicle. Therefore no submissions were made by either party in relation to whether or not the evidence should be excluded. Instead counsel argued that a stay of proceedings was the appropriate remedy.

[90] The test for a stay of proceedings was clearly summarized by the Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 (CA) at paragraph 57:

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:

(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

(ii) no other remedy is reasonably capable of removing that prejudice.

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider—the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

[91] The court went on to state that where the residual category is being relied upon, the focus is on the integrity of the justice system. The residual category, however, is not a means for courts to address all on going systemic problems. Instead, the court must "consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against the accused outweigh the interest in having the case decided on the merits?"

[92] In the case at bar there is no suggestion that trial fairness has been impacted by the Charter breaches. As such, it is clear that the breaches fall within the residual category of cases that may attract a stay of proceedings. As noted above, when dealing with the residual category, a stay of proceedings will only be appropriate where "the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice" (See also R. v. Reagan 2002 SCC 12, [2002] 1 S.C.R. 297), or to put in other words, where the advantage of staying the charges against the accused outweighs the interest in having the case decided on the merits. Moreover, a stay of proceeding is generally reserved for only the clearest of cases where no other remedy will suffice.

[93] In determining the appropriateness of a stay of proceedings, it is first helpful to understand the seriousness of the Charter breaches and the impact the breaches had on Mr. Roberts and on the justice system as a whole. In R. v. Taylor, supra, the Supreme Court of Canada highlighted the fact that emergency rooms are not Charter free zones and detainees ought not be in the position where they are choosing between their charter rights and their medical care. For these reasons, the court concluded that the failure to give Mr. Taylor access to counsel at the hospital was very serious and had a significant impact on Mr. Taylor's charter rights. This conclusion was reached because the Court held that had Mr. Taylor spoken to counsel he may have chosen to refuse the taking of his blood for medical purposes.

[94] In the case at bar, I have found that the officers could not reasonably have facilitated access to counsel before 2:45 a.m., long after the blood used in the case at bar had been drawn by the medical staff, in that respect this case differs from that of R. v. Taylor. I am mindful, however, that while the officers justifiably delayed accessed to counsel in the case at bar, they had a corresponding obligation to hold off questioning or taking steps that would require Mr. Roberts cooperation in the investigation. The argument that could be made is that this hold off obligation precludes the use of blood taken by medical staff. In my view, this argument is not particularly compelling. Firstly, the blood was taken by a non-state agent. Secondly, this is not a case where medical attention was clearly unnecessary as in the case of R. v. Taylor. Mr. Roberts was not brought to the emergency room out of an abundance of caution. He was taken to hospital because everyone was very concerned about his medical state and required medical attention. Thirdly, a warrant was obtained to seize this blood from the hospital and counsel took no issue with the validity of this warrant and finally, counsel does not want this remedy. Counsel was very clear that exclusion of the blood as a remedy does not assist his client. Despite these limitations in this argument, I do nonetheless appreciate the catch 22 that Mr. Roberts was in. Whenever possible, detainees requiring medical attention while in police custody should appreciate the investigative implications of agreeing to medical care.

[95] The conduct that is most egregious in the case at bar, is that of P.C. Torrano in eavesdropping on two private conversations between Mr. Roberts and his doctor and in actively questioning Dr. Liu about Mr. Roberts condition. There can be no doubt that this is a very serious charter breach and that it had a substantial impact on Mr. Roberts' privacy rights. Medical information is highly personal and as such there is a high expectation of privacy in this information. In many cases, had this information been used to the further the investigation, there would be a strong basis to the stay the proceedings. In the case at bar, however, it appears that all other officers, even those who knew the medical information that P.C. Torrano unlawfully obtained, did not rely on this information to further the investigation. There is no evidence that this illegally obtained information made its way into the ITO used to obtain the warrant, there is no evidence any officer used this information for other investigative purposes and the Crown did not rely on this information to prove her case. Instead, a lawful warrant was obtained for the medical records and it was the medical records, not the conversations between Dr. Liu and Mr. Roberts and Dr. Liu and P.C. Torrano what were used in evidence. None of these facts excuse P.C. Torrano's conduct. It does however establish that there is no systemic issue at play. P.C. Torrano stood alone in violating Mr. Roberts' section 8 rights.

[96] Another factor this court must consider is that the section 10(b) breach clearly contributed to the section 8 breach. Had Mr. Roberts been afforded an opportunity to speak to counsel at 2:45 a.m., he would have known that he had a right to keep his medical situation private. According to Mr. Roberts, had he known he had the choice he would have refused to discuss the results of his medical tests in front of the officers.

[97] I am mindful that the charter breaches in the case at bar, in particular the section 8 breach are not mere technical breaches. Nonetheless when I consider the nature of the breaches, the clear words of the Supreme Court of Canada that emergency wards are not charter free zones, the strong privacy interests in one's bodily fluids and medical information, the intention of the officers and the nature of the offence, I am not satisfied that a stay of proceedings is the appropriate remedy. This is not a case where the continued prosecution of Mr. Roberts would offend society's sense of justice. This is not a case where an ongoing systemic issue exists and it is not the clearest of cases where the only appropriate remedy is a stay of proceedings. I therefor will not stay the charges.

D) Was Mr. Roberts in Care or Control of His Motor Vehicle?

[98] As previously noted, counsel for Mr. Roberts conceded that Mr. Roberts' ability to operate a motor vehicle was impaired by drug at the operative time. Moreover, in his own evidence, Mr. Roberts conceded that he had taken more than one dosage of his pain medication while in his motor vehicle and that this pain medication has impacted both his speech and motor skills in the past. The only issue is whether the Crown has proven that Mr. Roberts was in care and control of the motor vehicle when PC Paroussoudi arrived and found him in the driver's seat of his vehicle.

[99] Pursuant to section 258(1)(a) of the Criminal Code, any person who occupies the driver's seat of a motor vehicle is presumed to be in care and control of that motor vehicle. The defendant may rebut this presumption by establishing on a balance of probabilities that he did not occupy the driver's seat for the purpose of putting the vehicle in motion (R. v. Whyte, [1988] S.C.J. No. 63).

[100] If the defendant is able to rebut the above mentioned presumption, the court must then assess whether the Crown has otherwise proven that the defendant was in fact in care or control of the motor vehicle. To that end, the court must consider whether there is a realistic risk of danger in relation to the motor vehicle and the defendant's control over it.

[101] In the case at bar the presumption is at play because Mr. Roberts was found in the driver's seat of his motor vehicle with the engine running. Counsel for Mr. Roberts argued that the defendant has successfully rebutted the presumption though his own evidence and through Ms. Carty's evidence. Crown counsel argued that both Mr. Robert's evidence and Ms. Carty's evidence should be rejected and as such the presumption remains.

[102] In urging me to reject Mr. Roberts' evidence, the Crown argued that Mr. Roberts was inconsistent on a number of issues. The first inconsistency relied upon by the Crown relates to alleged inconsistencies between Mr. Roberts' evidence at trial about what medication he was taking and the information Mr. Roberts provided to the police about his medication back on December 21, 2012. It is clear that Mr. Roberts was not forthright with the officers on December 21, 2012 about what medication he had taken. He explained at trial that he understated his medication because he did not want to cooperate with the police, a choice he was entitled to make. Given his poor medical condition, his explanation for the inconsistency and the fact that Mr. Roberts had not yet spoken to counsel at this point in time, these inconsistencies do not provide me with a basis to reject Mr. Roberts' evidence.

[103] The Crown also argued that Mr. Roberts was, by his own admission, misleading to police and others about the state of his relationship with Ms. Carty. Again, I place no weight on this inconsistency. Mr. Roberts is a private person and due to his past experiences does not trust people. His choice to understate his relationship does not impact my assessment on whether Mr. Roberts was forthright with the court nor does it lead me to conclude that he was unreliable at trial.

[104] Crown counsel argued that Mr. Roberts' assertion that he did not want the officers to know about his medical condition is not a reliable or credible assertion given the fact that Mr. Roberts voluntarily told the police some of the results of the medical tests. The only result Mr. Roberts told the police was that he had no alcohol in his system. Given the reasons for his arrest, it is understandable that despite wanting privacy over his medical situation he would share this exculpatory finding with the police. This does not give me a basis to reject Mr. Roberts' evidence.

[105] Mr. Roberts also testified at trial about the phone booth at the police station. He testified that he had a clear recollection of what it looked like and was confident that he could have safely used the phone booth while under arrest on December 21, 2012. A close review of the booking tape establishes that Mr. Roberts never was provided a full view of the phone booth. He was seated at the booking area the entire time. He never went further into the station. In my view, this inconsistency is likely caused by the fact that Mr. Roberts was under the effects of medication that was clearly causing him to become confused. I agree with the Crown that much of Mr. Roberts evidence about what took place at the station is unreliable.

[106] Despite these comments, I do reject Mr. Roberts' evidence about how he came to be pulled over on the Gardiner Expressway and that he had no intention of driving again that night. In my view, his version of events about why he came to Toronto and how he ended up pulled over on the Gardiner expressway is so implausible and contrary to common sense that it is just not credible.

Mr. Roberts' Reason for Travelling to Toronto

[107] Mr. Roberts testified that he drove to Toronto at 7:45 p.m. on December 21, 2012 because he wanted to purchase a Play station 2 or 3 for Ms. Carty's grandchild. He testified that he chose to drive from Barrie to Toronto at 7:45 p.m. because even though there is a Hudson's Bay Centre in Barrie, he thought the Bay in Toronto would have better toys. Barrie is substantially smaller than Toronto but there is nothing unique or rare about Play stations that would reasonably lead anyone to conclude that it could only be purchased in Toronto, especially when they were not even leaving Barrie until 7:45 p.m. to make the purchase.

[108] I further note that it was 7:45 p.m. when Mr. Roberts left Barrie. This meant that the absolute earliest he could have arrived at the Hudson's Bay Centre located at Yonge and Bloor was 8:45 p.m. When asked about the fact that the store might have been closed by 8:45 p.m., Mr. Roberts testified that he thought the store might have extended Christmas hours. He did not confirm this before leaving Barrie. It is completely unbelievable that someone would drive all the way to Toronto from Barrie, especially someone in constant pain as Mr. Roberts is, without first confirming that the store would be open.

[109] Moreover, Mr. Roberts had been in a car accident just the day before where he suffered injuries that according to him compounded the pain he was already in from his pre-existing injuries. Given his obvious pain and his recent injuries, it makes it even less likely that he would travel all the way to Toronto to travel to a store that might not have even been open, to purchase a toy that he could most likely have obtained in Barrie.

Mr. Roberts' Explanation for How He Ended Up on the Gardiner Expressway

[110] Mr. Roberts testified that while on Yonge Street, near Bloor, he started to feel pain and decided to head home. He could not find a place to turn around and somehow ended up driving all the way south to the Gardiner expressway. Mr. Roberts testified that he was looking for a way to reach the 400 highway which is west of Yonge Street, yet he somehow ended up on the eastbound lanes of the Gardiner near the South Kingway exit. Mr. Robert's explanation for how he ended up in this location does not make sense. I appreciate that on his evidence he was lost and in pain, but the place and direction of where he pulled over is so far away from where he started that his evidence that his starting point was near the Hudson's Bay Centre cannot be believed.

[111] It equally makes no sense that Mr. Roberts would actively choose to pull over on a busy expressway instead of a side street. If Mr. Roberts really lost his way while on Yonge Street he clearly travelled a long distance before deciding to pull over. In light of this, it makes no sense that he pulled over on the Gardiner instead of on a side street near an exit where it is far safer to pull over.

[112] Moreover, on Mr. Roberts' version of events, he wanted to have Ms. Carty pick him up. He therefore needed to know his exact location. Since, on his version of events, he was clearly capable of driving for quite a distance it makes even less sense that he did not take an exit and pull over on a side street so he could give Ms. Carty at least a street name.

[113] It seems equally unlikely that Mr. Roberts would sit in his vehicle for over half an hour trying to find some way to determine his location yet he did not use the map feature on his cellular telephone, a feature that Mr. Roberts confirmed at trial he had.

[114] In my view all these factors lead me to conclude that Mr. Roberts' evidence cannot be true and I reject his evidence. In addition to these factors, it is my view that the Crown theory that Mr. Roberts was impaired while he was driving is far more consistent with the evidence. It explains how Mr. Roberts ended up in a location so far from where he claimed he was going. It explains why he was asleep and confused in his vehicle. It explains why Mr. Roberts was so confused at trial about where he even pulled over and it explains why Mr. Roberts seemed surprised that he was in Toronto when the police relayed this information to him in the police car.

[115] Defence counsel argued that despite any misgivings I may have about Mr. Roberts' evidence, I should nonetheless accept his evidence because it is corroborated by Ms. Carty. Respectfully, I disagree. Firstly, in my view, Mr. Carty was not a credible witness. Throughout her evidence she seemed to be trying to protect Mr. Roberts and would only offer information that had the potential of placing Mr. Roberts in a bad light when pushed into a corner. For example, Mr. Roberts testified about being in a car accident the day before his arrest while driving Ms. Carty's vehicle. When Ms. Carty was questioned about this vehicle, she was quite evasive. Instead of just advising the court that her second car was unavailable because Mr. Roberts had been in an accident in this vehicle the day before, she first merely stated that this vehicle was "not in use". She then, when confronted, admitted it had been in an accident and when pressed further she finally admitted that Mr. Roberts was driving when the accident took place.

[116] Secondly, Ms. Carty was unclear about what date Mr. Roberts called her from the side of the road. At one point she conceded that the text/call she received could have been from the night of the car accident. Then later in her evidence she denied that this was possible.

[117] Thirdly, Ms. Carty testified that the text came in from Mr. Roberts at 11:00 p.m. or midnight. She knew this to be the approximate time because she had already gone to sleep. Yet by 11:00 p.m., Mr. Roberts was in police custody. The text could not have been sent at 11:00 p.m.

[118] Finally, it is just not believable that having received a text/call from a loved one in the middle night stating that he was hurt, stranded on the highway, in the middle of winter without any idea where exactly he was, that Ms. Carty would, when no return call came, just go back to sleep.

[119] When I consider all the defence evidence, I am unable to accept Mr. Roberts' evidence that he only took his medication after he pulled over, that when he pulled over he had no further intention to drive and that he was not in the driver's seat for the purpose of setting the vehicle in motion. In my view, Mr. Roberts has not successfully rebutted the presumption.

[120] Even in Mr. Robert's had rebutted the presumption, in my view he would still be guilty of the offence before the court. I agree with the Crown that there was a real risk that even if Mr. Roberts' version of events is true, he would after being unable to establish his location, get tired of waiting for Ms. Carty and decide to drive himself back to Barrie. This is especially likely in light of the fact that it is hard to understand how Mr. Roberts was going to identify his location. He had been on the side of the road for over 30 minutes when the police arrived and he was no closer to identifying his location. Moreover, Mr. Roberts was very clear that he was not going to call the police or the paramedics for help. Given how loose the plan was with Ms. Carty and the fact that if true, he only pulled over because of the pain and was waiting for his pain medication to kick in, it is very likely that Mr. Roberts would have changed his mind and decided to drive back to Barrie once the pain subsided.

[121] I therefore find Mr. Roberts guilty of the offence of being in care and control of a motor vehicle while he was impaired by drug.

Released: December 10, 2015

Signed: Justice Mara Greene