Court File and Parties

Ontario Court of Justice

Date: 2016-01-22

Court File No.: Halton 13-1255

Between:

Her Majesty the Queen

— AND —

Jan Kucerak

Before: Justice L.M. Baldwin

Trial Proceedings Heard on: April 27, 2015 and August 10, 2015

(Section 11(b) Charter Application was dismissed on April 20, 2015)

Rulings on Charter Applications and Trial-at-Large released on: January 22, 2016

Counsel:

• S. Bradley — counsel for the Crown
• R. Napal — counsel for the defendant Jan Kucerak

BALDWIN J.:

Charges and Overview

[1] Jan Kucerak is charged with Impaired Driving and Over 80 on April 23rd, 2013, at the City of Burlington.

[2] There were three witnesses for the Crown at trial: the civilian witness who observed the accident; the investigating officer; the qualified breath technician.

[3] There was no evidence called by the defence.

Charter Applications

[4] Section 7 – (2 parts) not medically cleared to provide a breath sample; no video of testing in the hospital setting; sections 8, 9, 10(a) and 10(b) – (3 parts) not medically fit to understand and exercise rights to counsel; lack of privacy; did not exercise counsel of choice.

[5] Identity and jurisdiction were admitted.

Undisputed Facts

[6] Halton Regional Police Officer, Tyrone Garner, was dispatched to the scene of a single motor vehicle collision on April 23rd, 2013, at 8:40 p.m.

[7] He arrived on scene on Fairview Street just east of Brant Street in Burlington at 8:41 p.m.

[8] The accident had been witnessed by Joann Bullock who was driving down Fairview Street. She described the roads as being dry and the traffic as being very light. It was approximately 8:30 p.m.

[9] Ms. Bullock was driving in the middle lane of three lanes when she observed the BMW driven by the accused come from behind her into her lane and 'drifted' in front of her. She had to swerve into another lane so he did not hit her. He did not signal a lane change.

[10] She observed the car driven by the accused to "smoothly just drift back into the left lane and then right up the pole…straight into the median with the lights and the sign." (Transcript April 27, 2015 p. 11)

[11] The BMW went straight up to the top of the pole. The vehicle turned and 'scratched' the median and then landed on its roof. The BMW landed upside down into oncoming traffic.

[12] In cross-examination Ms. Bullock agreed that the BMW flipped over two and possibly three times.

[13] Ms. Bullock stopped her vehicle and went right over to the BMW. The accused was out of his car in a matter of seconds.

[14] She asked the accused if he was okay. She asked him to stay seated. He was holding his head. Other vehicles had stopped and people were already calling 911.

[15] She did not get close enough to the accused to determine if he smelled of any alcohol. She did see some blood on his head. She described him as being "disoriented" and "staggering a little bit." (pp. 15, 16)

[16] When Officer Garner arrived, the BMW was facing southbound in the eastbound lanes on Fairview Street. The vehicle was on its wheels with significant damage to the roof.

[17] The light standard was dislodged and it was on the roadway blocking one eastbound lane and westbound lanes as well.

[18] Within seconds he had contact with the accused.

[19] The accused was "disoriented". The accused told the officer he wasn't quite sure what happened. (p. 22)

[20] The accused struggled a little bit with his balance.

[21] Officer Garner had heard that the BMW had rolled two or three times, so he initially figured that the balance issue was due to the accident.

[22] Officer Garner observed that the accused had a cut on his head and he was bleeding.

[23] The EMS arrived 20 minutes later.

[24] The accused stumbled when walking to the ambulance. Officer Garner had to physically help the accused walk to the back of the ambulance.

[25] Officer Garner followed the ambulance to Joseph Brant Hospital. They left the scene at 9:15 p.m. and arrived at 9:20 p.m.

At the Hospital

[26] Officer Garner met the accused in the hallway as he was being wheeled in by the paramedics on a stretcher with a neck brace on.

[27] Again Officer Garner asked the accused what happened.

[28] The accused advised he had no recollection of what had happened.

[29] Being indoors now, Officer Garner could smell an odour of alcohol emanating from the accused's breath.

[30] Officer Garner also noticed that the accused's eyes were glossy and red.

[31] Officer Garner noticed a purplish ring around the inner part of his lips both top and bottom.

[32] Officer Garner asked the accused if he had been drinking that night.

[33] The accused stated that he had met his lawyer at a pub in Oakville to discuss legal/family matters and had two glasses of wine and had eaten a lot as well. (p. 24)

[34] Officer Garner testified that after hearing from the accused that he had consumed wine, he took the red ring around the accused's lips to be corroborative of the consumption of red wine.

[35] At 9:36 p.m., Officer Garner testified that he formed the opinion that the accused's ability to drive a motor vehicle was impaired by alcohol and arrested the accused accordingly.

[36] Officer Garner testified that his opinion was based on:

(1) the unexplained single motor vehicle collision;

(2) the odour of alcohol emanating from his breath;

(3) the bloodshot, red, glossy eyes;

(4) the unsteadiness on his feet;

(5) the admission of consuming alcohol.

[37] Officer Garner testified that he initially had attributed the unsteadiness at the scene to the severe car accident. He agreed in his evidence that the stumbling could have been due to the severe accident.

[38] He arrested the accused for impaired driving and the accused said he understood.

[39] At 9:37 p.m. he read the accused the standard right to counsel:

It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?

Yes, I do.

You have the right to telephone any lawyer you wish. Do you understand?

Yes, I do.

You also have the right to free advice from a Legal Aid lawyer. Do you understand?

Yes.

If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. Do you understand?

Yes

Here's a 1-800 number, 1-800-265-0451, it's a toll free number that will put you in contact with a Legal Aid Lawyer duty counsel for free legal advice right now. Do you understand?

I do.

Do you wish to call a lawyer now?

I would love to.

[40] At 9:44 p.m. Officer Garner read a breath sample demand and asked the accused if he understood. The response was, "Yes, I do."

[41] Officer Garner then read the standard caution to the accused and asked him if he understood. The response was, "Yes."

[42] At 9:41 p.m., the accused provided the contact information for his lawyer, Mr. LaFramboise. (pp. 28, 29)

[43] Officer Garner called the number and received an automated message that the lawyer's mailbox was full.

[44] Officer Garner advised the accused that he could not get a hold of his lawyer and asked the accused if he wished him to contact duty counsel. The accused agreed.

[45] Officer Garner testified that the accused did not give the name of any other lawyer for him to contact.

[46] Officer Garner placed a call to duty counsel at 10:17 p.m. using the Telus cell phone that comes with the cruiser.

[47] He called duty counsel again at 10:40 p.m. because they had not called back.

[48] At 10:46 p.m. he received a call back from duty counsel (Katherine Jones) on his personal cell phone. He had decided to use his personal cell phone because sometimes the Telus phones have issues with reception at Joseph Brant Hospital and he did not know if that was the reason for the delayed response.

[49] Officer Garner testified that he does not normally use his personal cell phone for accused persons to access counsel. He did that in this case because he wanted to make sure that the accused spoke to a lawyer before he proceeded. (p. 31)

[50] At this time the accused was in the trauma room of the hospital still on a stretcher with a neck brace on.

[51] Officer Garner gave the accused his cell phone and left the trauma room (so he could not hear the accused speaking on the phone).

[52] Officer Garner believes that there were two or three other patients in the trauma room at the time.

[53] Officer Garner went back into the trauma room at 10:53 p.m. after learning that the call was over.

[54] The accused returned the cell phone. He did not express any dissatisfaction with speaking to duty counsel. He did not ask to speak to duty counsel again or ask to speak to any other lawyer.

[55] At 11:10 p.m., Officer Radley, the breath technician, arrived and the accused was turned over to his custody in the trauma room.

[56] Officer Garner received custody of the accused back after breath testing at 11:47 p.m.

[57] At 12:28 p.m. the accused was cleared by Dr. Stempien at Joseph Brant Hospital.

[58] The accused was released on a promise to appear at 12:48 a.m. and served with the standard documents. Exhibit "A" is the Certificate of a Qualified Technician with the breath results obtained in this case.

[59] In cross-examination, Officer Garner agreed that it was a very serious accident and that the BMW was extremely damaged as a result. He agreed that it was a surprise that the accused actually survived it.

[60] At the scene, Officer Garner noted that he smelled a faint odour of alcohol, but he and the accused were outside in the open air. At the hospital he noted that the smell of alcohol was 'strong' and he noted the bloodshot eyes.

Q. You can't really put as one of the indicia of impairment the fact that he's unsteady on his feet because it's ambiguous because his stumbling could be attributed – and you've said it in your evidence – to either the accident, but it could also be attributed to drinking, correct?

A. Correct.

Q. So really the only two indicia is the odour of alcohol and the bloodshot eyes and your - perhaps we can use the word your suspicion that perhaps alcohol was involved in the accident, is that correct?

A. I'd say it's a combination of everything, also with my years of experience as well.

Q. Yes, sure. So really would it be fair to say that at the time or just prior to you arresting Mr. Kucerak, you had a suspicion that he….was impaired?

A. Yes.

Q. Is that right?

A. Yes. (pp. 40, 41, 70)

[61] Officer Garner agreed that Mr. Kucerak told him that he had been drinking with Doug LaFramboise, his lawyer, earlier that evening talking about a divorce. (p. 41)

[62] Officer Garner recorded in his notes: "Jan advised me had met with his lawyer, Douglas LaFramboise, at a pub in Oakville before the accident, in the process of a divorce with his wife."

[63] Officer Garner did not inquire if Mr. LaFramboise was a family and/or criminal lawyer. He did not advise Mr. Kucerak that he should be speaking to a criminal lawyer. (p. 42)

[64] After Mr. Kucerak had been read his rights to counsel, he wished to speak to a lawyer and that was the lawyer he wanted to contact. (p. 42)

[65] Officer Garner testified that at the hospital Mr. Kucerak was able to have a full conversation with him. He told the officer that he was out drinking, he recalled drinking at a pub with his lawyer and over a divorce, so his memory was coming back to him.

[66] Counsel asked why the Officer did not consult with the attending physician to get an opinion as to whether Mr. Kucerak was in a fit state to comprehend what was being asked of him:

I felt at the time that Mr. Kucerak was fit to understand my questions. The hospital has protocol. If you've ever been to Joseph Brant Hospital…it's a very busy hospital…just because Mr. Kucerak was placed in the trauma room does not mean he suffered severe trauma…there's a lack of beds, people are in hallways, so they put him in a trauma room…Do I feel he was fit to answer my questions? Yes. I do. (p. 45)

[67] Officer Garner testified that no physicians were just milling about in the Emergency Department. There was maybe one emergency doctor-on-duty and he was assisting other patients. The police cannot just go run up to the doctor when he is dealing with other patients.

[68] Officer Garner testified that the police do not have much authority in the hospital. They do not decide when a patient is seen by a doctor or a nurse. They also cannot be moving patients out of their assigned place in the hospital.

[69] Officer Garner repeated that at the scene of the accident Mr. Kucerak appeared dazed which is natural. When he spoke to Mr. Kucerak at the hospital "he seemed to understand just fine." (p. 49)

[70] With respect to the privacy issue and the conversation with duty counsel, Officer Garner agreed that it was not private because of the two or three other patients in the trauma room. He testified that the police did the best that they could under the circumstances presented to them in the hospital.

[71] "Given the situation, we have to deal with what we're given. Obviously he's on a stretcher, a gurney, he's in a neck brace, he's on a backboard, there (are) no private rooms available, but I was not – and there's no police in the room. There were two or three other parties in the room. We try to facilitate it as best we can (so) they (are) able to speak to their counsel in private, but you have to deal with the circumstances sometimes." (pp. 51, 54)

[72] Officer Garner testified that when Mr. Kucerak spoke to duty counsel, he personally was outside of the room, in the hallway behind two closed doors. (p. 55)

[73] In re-examination, Officer Garner testified that Mr. Kucerak was attached to a pulse monitor in the trauma room. He repeated that the police cannot unplug medical equipment and move patients about in the hospital.

[74] Officer Garner testified that Mr. Kucerak made no complaints about not being in a fully private room.

[75] Officer Garner was asked if he only had a suspicion before he arrested Mr. Kucerak for impaired operation.

[76] Officer Garner summarized his factors again and testified that at first he had a suspicion, but then he formed the opinion that Mr. Kucerak's ability to drive a motor vehicle was impaired by alcohol.

Charter Application #1 – Section 8

Applicant's Position

[77] The Applicant submits that there were no reasonable and probable grounds for the arrest. The Applicant submits that Officer Garner's factors were weak and amounted to a suspicion only that the Applicant's ability to operate a motor vehicle was impaired by alcohol before he arrested him at the hospital.

[78] The Applicant relies upon the answers elicited in cross-examination in support of his position that the officer only had a suspicion prior to the arrest.

[79] The Applicant submits that the stumbling and disorientation at the scene are ambiguous as the officer "fairly" testified that those indicia could also be attributable to the accident.

[80] It is submitted that all that is left is the odour of alcohol on the Applicant's breath; the bloodshot eyes; the red ring around the mouth; an admission to drinking wine.

[81] The Applicant relies primarily on the case of R. v. Gahasan, 2014 ONCJ 688 at paragraphs 18, 26 and 27, a decision of Justice Schreck, in support of his submission.

Respondent's Position

[82] The Crown submits that they have met their onus of establishing reasonable and probable grounds for the arrest in this case on a balance of probabilities.

[83] The threshold for reasonable and probable grounds is "reasonably-based probability," which is something less than a prima facie case: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) at paragraph 17. The test is not an overly onerous one: R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490 (C.A.) at paragraph 10.

[84] The fact that a collision (unexplained or otherwise) occurred may lead an officer to form reasonable and probable grounds, even though reasonable and probable grounds would not be established in the absence of a collision: R. v. Rhyason, 2005 ABQB 988, [2005] A.J. No. 1826 (Q.B.), aff'd 2006 ABCA 367, [2006] A.J. No. 1498 (C.A.) at paragraphs 26, 36–37, aff'd 2007 SCC 39, 221 C.C.C. (3d) 1 (S.C.C.) at paragraphs 18–20; R. v. Garrett, [2000] O.J. No. 1620 (S.C.J.) at paragraph 42–44; R. v. Plater, [2005] O.J. No. 6045 (S.C.J.) at paragraph 41–46; R. v. Kippax, [2009] O.J. No. 1745 (S.C.J.) at paragraph 106–111, S.C.C.A. No. 92.

[85] The Respondent submits that Officer Garner testified in a clear and cogent manner when laying out his grounds. He did not attempt to exaggerate his evidence and made proper concessions during cross-examination making his evidence exceedingly credible. Officer Garner laid out the following factors that together allowed him to form the opinion that the ability of the Applicant to operate a motor vehicle was impaired by alcohol:

(1) the Applicant was involved in an unexplained motor vehicle collision;

(2) the Applicant was disoriented;

(3) the Applicant stumbled when walking to the ambulance;

(4) the odour of alcohol on his breath;

(5) the red ring around his mouth consistent with the consumption of red wine;

(6) the Applicant's admission that he had consumed alcohol (wine);

(7) the Applicant's red and glossy eyes.

[86] The Respondent submits that all of the above formed a constellation of objectively discernable facts that allowed the officer to form the opinion that the Applicant was impaired by alcohol. With regards to the observations of disorientation and balance, Officer Garner testified that he initially attributed these to the fact of the collision. However, he testified that once he observed other symptoms and had an admission of consumption at the hospital, he factored in the disorientation and unsteadiness when he formed his grounds.

[87] It is submitted that Officer Garner testified in examination in-Chief that he had formed his grounds with regards to impairment to operate a motor vehicle and he clarified in re-examination that not only did he have a suspicion, but he also had grounds to believe the Applicant was impaired.

Decision

[88] I agree with the Respondent Crown. I am satisfied that Officer Garner had a subjective belief in impairment and I find that it was objectively sound.

[89] The factors considered in this case are significant:

(1) This was not a minor accident. This was a severe single motor vehicle accident for which there is no explanation. The roads were dry, the traffic was light. The Applicant drifted out of his lane in front of another car which almost caused that driver to smash into him. Then the Applicant drifted into another lane, drove straight up a pole, crashed down onto oncoming traffic roof down and flipped the vehicle two or three times. After this spectacular accident, the Applicant advised the Officer at the scene that he had no idea what happened. At the hospital the Applicant advised the Officer that he could not remember what happened;

(2) The Applicant was extremely disoriented at the scene. He could not tell the Officer at the scene where he lived or really give him any information at all. On its own, and if it were combined with other weak factors, this indicia of impairment would not be sufficient, but it does not stand on its own and the other factors are strong;

(3) The Applicant stumbled when walking to the ambulance. The evidence was that the Officer had to physically assist the Applicant to walk to the ambulance which arrived 20 minutes after the collision. Again, on its own and if it were combined with other weak factors, this indicia of impairment would not be sufficient, but it does not stand on its own and the other factors are strong;

(4) The odour of alcohol on his breath was faint at the scene in the open night air - it was strong at the hospital;

(5) The Applicant admitted that he had consumed alcohol, specifically wine, at a bar in Oakville with his lawyer Douglas LaFramboise before the accident;

(6) The red ring around his mouth was consistent with the consumption of a lot of red wine;

(7) The Applicant had red and glossy eyes.

[90] I am satisfied that based on the whole of his testimony, Officer Garner formed reasonable and probable grounds at 9:36 p.m. before he arrested the Applicant for impaired driving and demanded samples of his breath.

[91] It appeared that the Officer was confused when he used the word 'suspicion' during cross-examination. I attribute that to him being questioned about what he initially thought at the scene and then what he eventually thought at the hospital.

[92] I am satisfied that he was not sure of the Applicant's condition at the scene. At the hospital, he had much more information and put it all together to reach his opinion that the Applicant was impaired by alcohol. Officer Garner did not rush in forming his opinion. He made careful and thoughtful observations and inquiries and formed proper legal grounds for the arrest and the breath demand.

[93] The s. 8 Charter Application is dismissed.

[94] The s. 9 Charter Application is predicated on a breach of s. 8. Accordingly the s. 9 Charter Application is dismissed.

Charter Applications Pursuant to s. 7, s. 10(a) and s. 10(b) – Part One

Applicant's Medical Fitness to Comprehend the Reason for the Arrest and his Right to Counsel was not Properly Handled by the Police

[95] The Applicant submits that the police had a duty in the circumstances of this case to have consulted with the attending doctor at the hospital to determine if he was physically and mentally fit to be able to accurately understand questions put to him and to accurately answer them.

[96] The Applicant submits that on Officer Garner's own evidence, he was dazed and disoriented after the collision at the scene. The Applicant submits that this triggered an obligation on the Officer to make medical inquiries as to his competence to participate in the investigation once they arrived at the hospital.

Respondent's Position

[97] The Respondent submits that there needs to be something in the evidence that puts the police on notice that the individual before them had some trouble understanding what is going on.

[98] The Respondent submits that according to the undisputed evidence of Officer Garner, Mr. Kucerak gave clear and meaningful responses to questions asked at the hospital.

[99] There was nothing in the evidence of Officer Garner or Officer Radley that would indicate that Mr. Kucerak had difficulty understanding any of the questions asked of him or with respect to exercising his right to consult counsel.

Decision

[100] I agree with the Respondent Crown.

[101] There was nothing in the evidence that raised an issue of Mr. Kucerak's inability to understand once at the hospital.

[102] During the course of the arrest, rights to counsel, breath demand and caution, Mr. Kucerak stated eight different times that he understood what was just read to him by Officer Garner.

[103] At the outset of the breath testing, Officer Radley went through rights to counsel, the breath demand and cautions again. In every instance Mr. Kucerak indicated that he understood.

[104] Mr. Kucerak did exercise his right to consult counsel and spoke to duty counsel with no issue, complaint or expression of confusion.

[105] Mr. Kucerak had no difficulty in complying with the breath demand and provided two suitable samples of his breath.

[106] The onus of these three related Charter Applications is on the Applicant on a balance of probabilities.

[107] There was no evidence from the Applicant on these Applications as to what his subjective belief was during this investigation, nor was any medical evidence of his condition tendered.

[108] I am satisfied, based on all of the evidence, that Officer Garner came to a reasonable conclusion that Mr. Kucerak was fit to understand his questions and what was put to him.

[109] Accordingly, these 3 Charter Applications are dismissed.

Charter Application s. 10(b) – Part Two

Alleged Breach to Consult Counsel of Choice due to a Failure of the Police to Explain that he was Entitled to Choose a 'Criminal Lawyer' of his Choice

[110] The Applicant submits that he did not speak to his counsel of choice, Mr. Douglas LaFramboise, because he could not get hold of him.

[111] The Applicant submits that that Doug LaFramboise was not an experienced or practiced criminal lawyer who could give proper legal advice in this case. (Transcript of submissions dated August 10, 2015, p. 20)

[112] The Applicant submits that there was a duty on the police to explain to the Applicant that he was entitled to choose a "criminal lawyer" of his choice.

[113] It is submitted that when he could not get in contact with Mr. LaFramboise, the Applicant was not asked if there was another lawyer he wished to contact.

[114] It was submitted that duty counsel was 'pushed' on the Applicant when he could not get in contact with Mr. LaFramboise.

[115] It is also submitted that the officer had an onus to ensure that Mr. Kucerak was satisfied with the advice he received from duty counsel. (Transcript of submissions, p. 22)

Respondent's Position

[116] The Respondent submits that Mr. Kucerak was clearly told when given his rights to counsel by Officer Garner that he had the right to telephone any lawyer he wished. He was asked if he understood that right and he responded, "Yes, I do".

[117] This same standard part of the rights to counsel was repeated by Officer Radley before breath testing. Mr. Kucerak was asked if he understood and he replied, "I do".

[118] The Respondent submits that there is nothing in the evidence of either officer to suggest that Mr. Kucerak did not understand that he had the right to telephone any counsel he wished.

[119] Mr. Kucerak asked to speak to his lawyer, Mr. LaFramboise. The officer called that number and could not leave a message because the message box was full.

[120] It is submitted that there is nothing in the evidence of the two officers to suggest that duty counsel was pushed on the Applicant.

Decision

[121] Again, I agree with position of the Respondent.

[122] There is no duty on police officers to add to the rights to counsel their advice that it should be a criminal lawyer that is called. There is no authority for this submission made to this court anywhere, which is not surprising.

[123] The Applicant was given the right to call any lawyer he wished. He understood that right. The police reasonably tried to facilitate that choice.

[124] When Mr. LaFramboise could not be reached, the Applicant chose to speak to duty counsel.

[125] The Applicant never asked to speak to another lawyer or another duty counsel.

[126] The Applicant made no complaints about speaking to duty counsel.

[127] There is no requirement for the police to inquire as to whether a detained person has been satisfied with the advice they have received from counsel. I have written in judgments before that it is dangerous territory for the police to tread into areas covered by solicitor/client privilege. The onus to make a complaint about advice received rests with the Applicant, not upon the police. The onus in this regard is on the detainee to be diligent with respect to accessing counsel of their choice. (Reference R. v. Van Binnendyk, [2007] ONCA 537, paras. 11 and 13)

[128] Further, there is no requirement that the police have to keep repeating that a detainee can call any lawyer they wish. Once that has been conveyed and understood, that part of the rights to counsel has been complied with.

[129] Accordingly, the Applicant has not met his onus of proof on this part of the s. 10(b) Application and it is dismissed.

Charter Application s. 10(b) – Part 3 – Lack of Privacy

[130] The Applicant submits that because there were two or three other patients in the trauma room when Mr. Kucerak spoke to duty counsel, he was denied his right to speak to counsel in private.

[131] The Applicant relied on R. v. Banks, 2009 ONCJ 604 and R. v. MacKinnon, [2013] NSSC 356 in support of his position that the police have an obligation to ensure that calls with counsel are held in private.

[132] The Applicant submits that the Court does not need evidence of Mr. Kucerak's subjective belief that he was inhibited from speaking to counsel because it is a fact that there were other people in the trauma room at the time.

[133] The Applicant submits that the officer should have had Mr. Kucerak moved to a private room before he was given the phone to speak with duty counsel.

Respondent's Position

[134] The Respondent submits that there is an onus on the Applicant to establish that he had a reasonable belief that his discussions could be overheard by the police and/or he felt inhibited speaking to counsel because there were other patients in the trauma room.

[135] The Respondent agrees that the hospital setting is not ideal with respect to facilitating privacy. It is submitted that in these circumstances, Officer Garner did the best he could; in fact, he went over and beyond, by giving the Applicant his own personal cell phone to speak to duty counsel.

[136] Officer Garner testified that there were no private rooms available, and it would not have been possible to move the Applicant into one even if there was because the Applicant was hooked up to medical devices at the time.

[137] Officer Garner left the room after handing over his personal cell phone. He did not hear the conversation Mr. Kucerak had with duty counsel. There were no other police officers in the room or in a position to overhear the conversation.

[138] The Respondent relies on 3 cases that deal with the issue of privacy when the detainee is in hospital: R. v. Turriff, [1998] O.J. No. 4818, a decision of O'Connor J. (Ontario Court of Justice (General Division) Milton, Ontario); R. v. Ahmed, [2011] O.J. No. 6456, a decision of R. Kelly J, OCJ in Brampton; R. v. Kanuga, [2014] O.J. No. 6099, a decision released on December 15, 2014, in Burlington, also concerning breath testing conducted at Joseph Brant Hospital.

[139] After a thorough review of all the cases, the Respondent submits that the Applicant got the best possible privacy in the circumstances that were presented to the police officer.

Decision

[140] Again, I agree with the Respondent Crown.

[141] In the case of R. v. Turriff (supra), the accused collided with another vehicle and, based on observations at the scene, was charged with three counts of impaired driving causing bodily harm. Mr. Turriff sustained a cut lip, a broken arm, sore ankles and general bruising.

[142] He was taken to hospital by police and breath testing was conducted there.

[143] Before the tests, Mr. Turriff exercised his right to speak to duty counsel. The police wheeled Mr. Turriff's bed from his treatment room to a telephone in the hallway where he spoke to duty counsel for nine minutes. The two officers involved in the investigation moved themselves down the hallway and testified that they did not overhear the conversation.

[144] Mr. Turriff submitted that his s. 10(b) right to counsel was violated because he was not afforded privacy to exercise it. He said the officers were nearby, medical staff and others made use of the hall and passed close by him during the call.

[145] After he spoke to duty counsel, Mr. Turriff claimed that he was not allowed privacy and asked to contact counsel again. The police refused the request as they interpreted that as a delay tactic in all the circumstances. Mr. Turriff did not complain about the advice he had received from counsel.

[146] Justice O'Connor stated that, in determining if Mr. Turriff had been given a reasonable opportunity to consult with counsel in private, the Court 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. Justice O'Connor found that the police afforded Mr. Turriff the best accommodation possible in speaking to counsel in private and he dismissed the s. 10(b) Application.

[147] In another case involving a collision and breath testing taken at the hospital, R. v. Ahmad (supra), police told Mr. Ahmad that he had the right to have a conversation in private with a lawyer and Mr. Ahmad said he understood. Mr. Ahmad spoke with duty counsel in his hospital room behind a closed door. The police remained outside the room and could not hear any of the conversation. There was no evidence that Mr. Ahmad thought that the police could overhear him.

[148] A doctor and some nurses entered the room despite an officer telling them that Mr. Ahmad was on the phone with counsel. A doctor left the room but a nurse stayed to collect blood. The police had no control over Mr. Ahmad's medical care.

[149] There was no evidence that the presence of the medical personnel in the room interfered with Mr. Ahmad's ability to consult with counsel in private or that he believed he could not have a private conversation with counsel.

[150] Justice Kelly found that the police acted reasonably and afforded Mr. Ahmad the privacy that the circumstances permitted. He was not satisfied that the presence of the police officers outside the room or hospital staff in the room constituted an actual invasion of privacy that interfered with Mr. Ahmad's exercise of his right to counsel or that he reasonably believed he could not consult counsel in private.

[151] In R. v. Kanuga (supra), I dismissed a s. 10(b) Application alleging that Mr. Kanuga's right to consult with counsel in privacy was violated. In that case Mr. Kanuga was in a private room at Joseph Brant Hospital where he spoke to counsel. The police were down the hall and did not hear his conversation.

[152] Mr. Kanuga testified on the Charter voir dire and stated that he believed that the door to the room was ajar and that a nurse may have come into the room during his call. He made no complaint about this at the hospital, nor did he complain about his call with counsel.

[153] I also reference the case of R. v. Burley, [2004] O.J. No. 319, a decision of the OCA which was factually similar. Burley was involved in a car accident and taken to the hospital for his injuries and then charged. He was given time to consult with a lawyer before breath samples were taken. The Applicant was found to have a subjective but unreasonable belief that the call was not in private. No complaint was made about a lack of privacy. There was no due diligence on the part of the Applicant in exercising his right to counsel in that regard. The s. 10(b) Charter Application was dismissed.

[154] I note that in both of the cases referred to by counsel for the Applicant in this case, R. v. Banks (supra) and R. v. MacKinnon (supra), the Applicants all provided evidence on the voir dire that they had a subjective belief that the police could overhear their call to counsel. Both cases involved calls to counsel made from police stations, not hospitals. Accordingly, these cases are different from the circumstances of the case before this Court and they are not of assistance except for the statement of general principles.

[155] Accordingly, the Applicant has not met his onus of proof on a balance of probabilities on this part of the s. 10(b) Application and it is dismissed.

Charter Application Pursuant to Section 7 – No Videotaping of the Breath Testing at the Hospital

[156] It is submitted that by using the Intoxilizer 8000C procedure at the hospital as opposed to obtaining a blood warrant, the Applicant was denied any guarantee of reliability in relation to the administering of the caution and demand as well as compliance with the proper procedures for the operation of the Intoxilizer 8000C as these procedures were not the subject of video recording. It is submitted that the lack of a video of the breath testing breached the Applicant's section 7 Charter right to fundamental justice.

Respondent's Position

[157] The Respondent notes that there is no case law that supports the Applicant's position.

[158] The Respondent submits that for many years, people have been convicted in these circumstances without videotaped evidence. There was nothing more the officers could have done in the circumstances.

[159] The Respondent submits that both officers took careful notes, Officer Radley testified specifically that he made an extra effort to record his notes knowing that the breath testing was not being video-taped.

Decision

[160] I agree with the Respondent's position.

[161] There is no requirement for breath testing performed in a hospital to be videotaped. To suggest otherwise is not only impractical, it would potentially introduce other concerns regarding a patient/accused's medical privacy.

[162] Both officers took good notes and the Intoxilyzer 8000C Test Records were filed as an Exhibit.

[163] Accordingly, this part of the s. 7 Charter Application is dismissed.

[164] Because I have dismissed all eight of the Charter Applications, it is not necessary for me to engage in an analysis under s. 24(2) of the Charter.

[165] The three lettered Exhibits (Certificate of the Qualified Breath Technician and Breath Sample readings; the Intoxilizer Test Record; the Report of Dr. Robert Langille, Forensic Toxicologist) are now marked as trial Exhibits 1, 2 and 3 accordingly.

Decision on Trial-at-Large

[166] At 11:20 p.m. on the 24th day of April, 2013, Officer Radley completed taking the first sample of Mr. Kucerak's breath which registered a reading of 230 milligrams of alcohol in 100 millilitres of blood.

[167] At 11:46 p.m. on the 24th of April, 2013, Officer Radley commenced the taking of the second sample of Mr. Kucerak's breath which registered a reading of 225 milligrams of alcohol in 100 millilitres of blood.

[168] Dr. Langille was advised that an incident occurred at or between approximately 8:30 p.m. and 8:40 p.m.

[169] He was advised that the Intoxilyzer 8000C results of 230 and 225 milligrams of alcohol in 100 millilitres of blood were obtained at approximately 11:20 p.m. and 11:46 p.m.

[170] Dr. Langille states in his letter of opinion that the projected blood alcohol concentration at or between approximately 8:30 p.m. and 8:40 p.m., is 230 to 285 milligrams of alcohol in 100 millilitres of blood.

[171] Dr. Langille states that this projected range is independent of the gender, height, weight and age of the individual, but is dependent on the following additional factors:

(1) a rate of elimination of alcohol from the blood ranging from 10 and 20 milligrams of alcohol in 100 millilitres of blood per hour;

(2) allowance for a plateau of up to two hours;

(3) no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident;

(4) no consumption of alcoholic beverages after the incident and before the breath tests.

[172] It is Dr. Langille's scientific opinion that an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range.

[173] Further, a review of the Intoxilizer 8000C Test Records indicates that the calibration of the instrument was checked and that it appears to have been in proper working order. It is his experience that when a qualified technician operates the instrument properly, it provides reliable readings of the BAC at the time of testing.

[174] Based on the unexplained severe collision in this case, and the BAC readings at the time of this collision, I am satisfied beyond a reasonable doubt that Mr. Kucerak's ability to operate a motor vehicle was impaired by alcohol.

[175] A finding of guilt is registered on count #1, the Impaired Driving count.

[176] A finding of guilt is made out on count #2, the Over 80, and that charge is stayed.

Released: January 22, 2016

Signed: "Justice Lesley M. Baldwin"

Footnotes

[1] Every case turns on its own facts. In this case Justice Schreck found that grounds stated in court by the arresting officer did not match what the breath technician was given. That is not the fact situation in this case.

[2] The evidence from Officer Garner was that EMS put persons involved in collisions on back boards with a neck brace as a precaution until they are examined at hospital. The evidence was that Mr. Kucerak was seen at 12:23 p.m. by Dr. Stempien for 5 minutes. Then he was released from hospital.

It is reasonable to infer that the Applicant sustained no significant injury.

[3] There was no evidence about what kind of lawyer Mr. LaFramboise is, other than Mr. Kucerak telling Officer Garner that he was drinking with his lawyer that evening at a pub in Oakville and talking about his divorce.