Court File and Parties

Ontario Court of Justice

Date: 2016-09-22

Court File No.: Middlesex Centre 10193

Between:

Her Majesty the Queen

— and —

Kenneth Van-Eyk

Before: Justice A. Thomas McKay

Heard on: December 7, 2015 and August 16, 2016

Reasons for Judgment released on: September 22, 2016

Counsel:

• Ms. H. Palin — counsel for the Crown
• Mr. J. Melnick — counsel for the defendant Kenneth Van-Eyk

MCKAY J.:

INTRODUCTION

[1] On December 17, 2014, at approximately 7 p.m., a London Transit bus was stopped at a bus stop in the Northwest area of London. A vehicle collided with the rear bumper of the bus and then left the scene. There was no damage to the bus, but debris from damage to the front end of the vehicle was located behind the bus. A witness provided a description of the vehicle. A London police officer seized the debris found on the roadway behind the bus.

[2] Shortly after 9 p.m., a private citizen who lived in a rural area west of London phoned the police to advise that a suspicious car was parked in her private driveway. The caller described the driver of the vehicle as non-responsive and sitting in the vehicle. OPP officers attended at the location and found the vehicle parked in the laneway, approximately 150 metres from the public roadway. The vehicle had heavy front-end damage and the windshield was cracked. Mr. Van-Eyk was seated in the driver's seat and was non-responsive. Eventually, an officer broke the driver's side window in order to gain access to the interior of the vehicle to assess Mr. Van-Eyk's condition. An officer also contacted EMS to attend to medically assess and, if necessary, treat Mr. Van-Eyk.

[3] Officers found Mr. Van-Eyk to be incoherent. Initially, officers did not detect an odour of alcohol. Paramedics placed Mr. Van-Eyk in an ambulance to assess and treat him. The paramedics informed police that Mr. Van-Eyk had low blood sugar, and was being treated for that. The OPP officers were notified by London police that Mr. Van-Eyk's vehicle matched the description of the vehicle which was alleged to have collided with the rear bumper of the transit bus. Officers entered Mr. Van-Eyk's car and found an open container of beer. An officer entered the ambulance where Mr. Van-Eyk was being treated, and detected a strong odour of alcohol emanating from Mr. Van-Eyk, and noted that his eyes were red and glossy, and his speech was slurred. At that point, Mr. Van-Eyk was more responsive and was communicating with paramedics. The officer noted those symptoms, exited the ambulance and spoke with another officer. At 9:54 p.m., the officer returned to the ambulance and placed Mr. Van-Eyk under arrest for a drinking and driving offence.

[4] Officers of the London Police Service attended and indicated that some of the debris which was located behind the transit bus matched missing sections of the front end of Mr. Van-Eyk's vehicle. Ultimately, after being released from hospital, Mr. Van-Eyk gave a sample of his breath at 11:06 p.m., which resulted in a reading of 171 milligrams of alcohol per 100 millilitres of blood. A second suitable sample was received at 11:44 p.m., and resulted in a reading of 164 milligrams of alcohol in 100 millilitres of blood.

[5] Mr. Van-Eyk was ultimately charged with offences under section 253(1)(a) and 253(1)(b) of the Criminal Code; under the Liquor License Act for having open liquor in a motor vehicle; under section 199(1) of the Highway Traffic Act for failing to report an accident, and under section 200(1) of the Highway Traffic Act for leaving the scene of an accident.

[6] Mr. Van-Eyk filed an application alleging violations of the Charter of Rights. He alleges violations of section 10(b) in a number of respects. He alleges that the arrival of police in the private driveway to ascertain why he was in the laneway commenced an investigative detention. The allegation is that the police failed to promptly inform him upon detention that he had the right to retain and instruct counsel without delay, thereby violating his rights under section 10(b) of the Charter. In addition, the defence alleges a violation of section 10(b) upon Mr. Van-Eyk's arrest, allegedly because he was incapable of understanding the rights that were communicated to him at that point. Finally, it is alleged that Mr. Van-Eyk was not given sufficient privacy while being assessed in hospital to exercise his right to speak to counsel in private.

[7] In addition, he alleges that his section 8 Charter rights were breached by the police in two respects. First, police searched his car by looking for his identification. A short while later, an officer entered the car to determine whether the car's engine would start. Both actions violated his right to be free from unreasonable search, and lead to the discovery of the open alcohol in the vehicle. Secondly, he alleges a section 8 violation because of a failure to take the breath samples as soon as practicable.

EVIDENCE

Patrick Ryan

[8] Mr. Ryan works as a City of London Transit bus driver. He was working December 17, 2014. He stopped at a bus shelter on Lawson Road in the City of London. He heard an unidentified noise which sounded like a clunk, and the bus jolted back and forth as if he had been lightly rear-ended. He was about to close the doors to the bus when he was approached by a man who provided him with information including the license plate number of another vehicle. As a result of the conversation, he examined the rear of the bus he was driving. There was no damage to the bus but there was debris at the rear of the bus, including what appeared to be a partial headlight cover from another vehicle. There was also broken glass and what appeared to be antifreeze on the pavement behind the bus. He reported the incident to London Transit dispatch in order to have an inspector attend. The police also attended the scene approximately 15 minutes later. He provided police with the information which he had, including the license plate number provided by the other man. In cross-examination, he confirmed that he never saw the other vehicle which struck the bus. There was no damage to the bus.

Constable Michael Budzyn

[9] Constable Budzyn is a member of London Police Service and works in the uniform division. He was the investigating officer of the motor vehicle accident involving the bus. At 7:21 p.m., he was dispatched to the location of the bus regarding what he understood was a hit-and-run motor vehicle accident involving a transit bus. He arrived on scene at 7:31 p.m.. It was overcast, dark, with artificial lighting at the scene, and the roads were clear. He spoke with Mr. Ryan and examined the rear of the transit bus. The rear bumper of the bus had smudges in the dirt, but no damage to it. At the rear of the bus, he noted debris which appeared to be sections of a plastic grill and circular plastic pieces that appeared to be the type that surround the headlights on a motor vehicle. The section of the grill recovered was approximately three feet long. He recovered the items on the pavement directly behind the bus. There was a Volkswagen logo on the reverse side of the plastic piece, which contained a long series of letters and numbers on it which he recorded. He also noted a spilled fluid trail which he believed was anti-freeze that began at the rear of the bus and moved eastbound down the roadway. He followed it for a distance and it appeared to turn northbound on Wonderland Road, but he cannot be certain of that.

[10] At 9:41 p.m., he was notified that the OPP had located a Volkswagen motor vehicle which matched the plate number of interest to him in his motor vehicle accident investigation. He was advised that the vehicle had significant front end damage. He travelled to the location on Gainsborough Road west of the London city limits. He exited Gainsborough Road and travelled down a long driveway, locating a 2011 Volkswagen Jetta with the license plate number that matched his vehicle of interest. There was heavy damage to the front end of the Volkswagon car, and the hood was dented and bent in. Several OPP vehicles were on scene. He attended at the car with the piece of the plastic grill which he had located in the debris behind the City Transit bus. He held it up into the area of the damaged grill of the Volkswagen, and observed that it matched a missing section of the grill from the Volkswagen at the scene. He took a section of plastic recovered from behind the transit bus and held it up to a damaged area around the fog light of the Volkswagen, and observed that it fit the damaged area of the Volkswagen.

[11] In cross-examination, Constable Butts confirmed that he arrived at the location of the Volkswagen at 9:54 p.m.. He spoke with OPP officers on scene. An ambulance was on scene. He was aware that the OPP intended to impound the Volkswagen.

Constable Paul Mizzi

[12] Constable Mizzi is a member of the OPP. He was assigned general law enforcement duties on December 17, 2014. He became the investigating officer in this matter. That evening there was light snow and roads were wet. At 6 p.m., it was -2 degrees Celsius. Constable Mizzi was dispatched to the location on Gainsborough Road at 9:12 p.m.. It was a report of a suspicious motor vehicle with front end damage and a non-responsive male in the driver's seat of the vehicle. He arrived on scene at 9:17 p.m.. The car was located approximately 150 metres up the laneway from Gainsborough Road. It was a 2011 Volkswagen Jetta. The laneway is private property and is the entrance to a landscaping business. There is a residence further up the laneway, about 300 metres from the road.

[13] When he arrived on scene of the Volkswagen, he noted that there was a single occupant, a male who was passed out in the driver's seat. Two additional OPP officers arrived on scene almost immediately after him. They approached the vehicle and noted heavy front-end damage, including the hood, bumper, grill, lights and windshield. There were no tracks in the snow, leading him to conclude that the vehicle had been there for some time. The headlights on the vehicle were turned off. The male occupant, subsequently identified as Mr. Van-Eyk, was not wearing a seatbelt. Constable Loukes pounded on the driver's side window in an attempt to wake up Mr. Van-Eyk, who remained unresponsive. Eventually, Constable Loukes broke the driver's side window with his baton to gain entry to the vehicle. At that point, Mr. Van-Eyk began to wake up, but remained essentially incoherent, not responding to questions. At this point, Constable Mizzi was standing on the passenger side of the vehicle. He could not specifically recall where the vehicle keys were, but believed that they were in the ignition.

[14] Constable Mizzi heard Constable Huntley ask Mr. Van-Eyk if he had been drinking, Mr. Van-Eyk responded "yes". An ambulance arrived shortly after that. It was a windy, cold night and Constable Mizzi did not note the odour of alcohol on Mr. Van-Eyk. When police were initially speaking to Mr. Van-Eyk, both the driver's door and the front passenger's door to the Volkswagen were open. Mr. Van-Eyk was essentially incoherent. The paramedics placed Mr. Van-Eyk in the ambulance, and indicated that Mr. Van-Eyk had low blood sugar. Constable Mizzi was able to observe the paramedics treating Mr. Van-Eyk in the back of the ambulance. Constable Mizzi confirmed Mr. Van-Eyk's identity by viewing an Ontario driver's license. He could not recall how the license came into his possession.

[15] Constable Mizzi was informed that Mr. Van-Eyk's car matched the description of a car being sought by the London Police Service in a motor vehicle accident investigation. At some point, Constable Haidar advised him that he found an open can of beer in the front passenger area of the car. He and Constable Haidar searched the car and found a full can of beer in the front passenger area and a bottle of gin on the rear seat. Approximately 7/8 of the bottle of gin had been consumed. He relied upon his authority under the Liquor License Act to search the car.

[16] Constable Mizzi entered the ambulance to speak to Mr. Van-Eyk. When he did so, he noted a strong odour of alcohol coming from Mr. Van-Eyk and noted that his eyes were glossy and his speech was slurred. Mr. Van-Eyk was now more responsive and was communicating with the paramedics. Constable Mizzi spoke further with Constable Haidar, who indicated that the engine of the Volkswagen started. That, and the fact that the tires were intact, satisfied Constable Mizzi that the motor vehicle was operational.

[17] At 9:54 p.m., Constable Mizzi returned and entered the ambulance and arrested Mr. Van-Eyk for impaired driving. At 9:55 p.m., he read to Mr. Van-Eyk the right to counsel. When asked if he wanted to speak to counsel, Mr. Van-Eyk responded "no", but indicated that he understood the right. Constable Mizzi read the standard police caution to Mr. Van-Eyk, who indicated that he understood. At 9:56 p.m., he read the standard breath demand to Mr. Van-Eyk, who indicated that he was not driving. At that point, Mr. Van-Eyk was coherent and had his eyes open. Constable Mizzi described it as "basically a total of 180 degrees from when we were trying to wake him up". The paramedics made a decision to take Mr. Van-Eyk to the hospital, so Constable Mizzi travelled with them in the ambulance. They took a direct route to Victoria hospital and arrived at 10:10 p.m.. On the way, he attempted to ask Mr. Van-Eyk where he had been going. Mr. Van-Eyk still appeared confused, and was emitting a strong odour of alcohol, and responded by saying "home to home".

[18] After they arrived at hospital, there was a brief wait before Mr. Van-Eyk was placed in a bed. There were other patients on either side, with a curtain around Mr. Van-Eyk's bed for privacy. Constable Mizzi stayed near Mr. Van-Eyk. He spoke with Constable Haidar, who is a qualified breath technician, and provided Constable Haidar with his grounds for making the breath demand. He remained at the hospital until he heard the results of the first breath sample. At 11:11 p.m., he returned to the police detachment. At 11:24 p.m., he completed some documents related to his investigation. At 12:20 a.m. at the detachment, he served Mr. Van-Eyk with a summons for these offences.

[19] In cross-examination, Constable Mizzi testified that upon arriving at the scene, he considered that it could be a medical issue or a case of drinking and driving. He received the information that Mr. Van-Eyk's vehicle matched the vehicle being sought by London Police Service at about the time that Mr. Van-Eyk was entering the ambulance. The paramedics then injected Mr. Van-Eyk with a dose of sugar, and indicated that it would make Mr. Van-Eyk more able to talk. After receiving that injection, Mr. Van-Eyk's eyes opened and he became responsive to questions. The first time that he detected the odour of alcohol from Mr. Van-Eyk was when he entered the ambulance after searching the car and finding liquor. When he entered the ambulance, it was an enclosed space. Outside it was a cool and windy evening.

Tracie Conrad

[20] Ms. Conrad lives at the location where Mr. Van-Eyk's car was located. It is both a residence and a commercial space. The driveway to the residence is approximately one half kilometre in length from the roadway. On December 17, 2014, she left the residence to go to a restaurant shortly before 9 p.m.. It was cold, dark, with light snowfall that evening. Driving down her laneway, she drove past Mr. Van-Eyk's vehicle. She was initially not concerned because she has tenants on the property, and it is not unusual to see vehicles in the laneway. The headlights of the car were on and the car was running. The sole occupant of the car was sitting in the driver's seat. At that point she could simply tell that it was a male.

[21] Ms. Conrad went through the drive-through lane of the restaurant and returned to her home approximately 10 minutes later. Travelling up her laneway she noted the same vehicle parked in the same location. The vehicle still running, with the headlights on. Snow had fallen and filled in whatever tracks the vehicle had made, leading her to conclude that it had been there for some time. That made her nervous. She pulled in beside the vehicle and honked her horn. She rolled down her windows and yelled "hello". There was no response to that. At that point, she noted the front end damage to the vehicle and saw steam rising from the engine. She remained beside the vehicle and honked her horn in 30 second bursts. She could see that the occupant of the vehicle was simply passed out, slumping backwards, so she backed up approximately 20 feet behind the vehicle and then telephoned police. The police attended and spoke with her, and then suggested that she simply go.

[22] In cross-examination, she confirmed that in the statement that she provided to the police on December 22, 2014, she indicated that she believed that the vehicle was running. She was pretty certain that she said more than that to the officer, but the statement was provided by telephone. Accordingly, she did not see what the officer recorded in it. She also confirmed that in the statement to police, she did indicate that the headlights of the car were on.

Constable Allen Huntley

[23] Constable Huntley is a member of the OPP. At 9:12 p.m., he received information regarding a suspicious vehicle containing an unconscious male at an address on Gainsborough Road. A total of four OPP officers attended the scene, arriving at approximately the same time, 9:17 p.m.. The vehicle had damage to its front end and windshield. The vehicle was running, but the headlights were not on. The male, later identified as Mr. Van-Eyk, was in the driver's seat. When they were unable to awake Mr. Van-Eyk, another officer smashed the driver side window in order to gain access. Mr. Van-Eyk was awakened. In response to being asked whether he had consumed any alcohol that date, Mr. Van-Eyk responded "yes". He did not respond to questions about where he was travelling from.

[24] Constable Huntley initially thought that Mr. Van-Eyk might be a diabetic given how incoherent he was, and the fact that initially Constable Huntley did not smell alcohol from his position standing outside of the vehicle beside the driver's side door. The ambulance arrived at approximately 9:25 p.m.. Constable Huntley waited outside of the ambulance while Mr. Van-Eyk was being treated. Ultimately, Mr. Van-Eyk was taken to hospital in the ambulance. Constable Huntley followed the ambulance in his police car. Mr. Van-Eyk was placed in a bed in the emergency wing of the hospital and Constable Huntley and Constable Haidar remained in the area with Mr. Van-Eyk. Mr. Van-Eyk did not want medical assistance from the nurses. Mr. Van-Eyk was upset with the nurses and removed the neck support brace they had placed on him. His speech was slurred, his eyes were glossy, he was belligerent and in Constable Huntley's view, his behaviour and demeanour was consistent with that of an intoxicated person.

[25] Arrangements were made to facilitate contact between Mr. Van-Eyk and a lawyer. When the duty counsel lawyer called back, the call went to the nursing station. Constable Huntley took the portable phone from the nursing station to Mr. Van-Eyk's bed at 11:26 p.m.. He gave the phone to Mr. Van-Eyk, and then left the area, returning to the area of the nursing station. Constable Huntley had no specific recollection of whether Constable Haidar left the area with him. Constable Huntley was unable to hear any of the conversation between Mr. Van-Eyk and the lawyer. He observed that generally, the area of the emergency department that Mr. Van-Eyk was in has activity involving other patients, and can be very loud. He had no specific recollection of how loud it was at the point that Mr. Van-Eyk had the conversation with the lawyer. He was uncertain of how long the conversation lasted. He left the area of Mr. Van-Eyk's bed in order to give him privacy, and took up a position near the nursing station where he could still see the curtain surrounding Mr. Van-Eyk's bed. From that vantage point, he would have noticed if Mr. Van-Eyk had attempted to leave the area of his bed.

[26] Mr. Van-Eyk was discharged from hospital at 12:16 a.m.. Constable Huntley and Constable Haidar took Mr. Van-Eyk to the London OPP detachment, arriving at 12:23 a.m.

[27] In cross-examination, he confirmed that no other patients or hospital personnel interfered with the police officer's duties with respect to Mr. Van-Eyk. He had no recollection of Mr. Van-Eyk ever asking to speak to a lawyer after providing a breath sample. He was approximately 35 feet away from Mr. Van-Eyk while Mr. Van-Eyk was speaking with duty counsel. When police initially came into contact with Mr. Van-Eyk, he was incoherent, but by the end of their interaction with him, he was completely coherent. Mr. Van-Eyk was coherent when he asked to speak to duty counsel. The nurses wanted to take a blood sample from Mr. Van-Eyk for medical reasons, but Mr. Van-Eyk refused.

Constable Leo Loucks

[28] Constable Loucks was one of the officers who arrived at the scene where Mr. Van-Eyk's car was parked. The scope of damage to the front end of the vehicle indicated a substantial collision. Mr. Van-Eyk was the only occupant of the car, and the doors were locked. Officers pounded on the windows of the vehicle a number of times. They initially thought that it could be a medical situation, so an officer smashed the driver's side window to gain access. They shook Mr. Van-Eyk and yelled, asking whether he was okay. The second time that Mr. Van-Eyk was shaken, he moved. Constable Loucks observed two beer cans and an open bottle of liquor in the car. Initially, he did not smell alcohol.

[29] When the ambulance arrived on scene, paramedics moved Mr. Van-Eyk out of the vehicle onto a board. Because he did not initially smell alcohol, concerned about the possibility of a diabetic medical situation. He knew that the paramedics were initially concerned about blood sugar levels. Constable Loucks had no recollection of whether or not Mr. Van-Eyk's vehicle was running when they arrived. Constable Loucks contacted a tow truck and waited for his arrival. In cross-examination, he testified that he made his notes on scene, probably while waiting for the tow truck. He noticed the beer and liquor in the car as Mr. Van-Eyk was being removed from the vehicle.

Constable Emad Haidar

[30] Constable Haidar is a member of the OPP, and a qualified breath technician. He arrived on scene at the Gainsborough Road location at approximately 9:18 p.m.. Three other officers were already on scene. The driver's side window of the vehicle had already been smashed and two officers were speaking to Mr. Van-Eyk in his vehicle. He went to the front of the vehicle and shone his flashlight at the interior. Mr. Van-Eyk had a blank stare and appeared to be disconnected from what was happening. His eyes were glazed over and reddish. There was severe damage to the front end of the vehicle and the windshield was broken. He could not specifically recall whether the vehicle was running when they approached it.

[31] It was a cold winter night. Constable Haidar asked Constable Mizzi if he smelled alcohol. Because of the windy conditions, Constable Mizzi was unsure. Constable Haidar asked Mr. Van-Eyk if he hit someone or something. Mr. Van-Eyk responded by saying "I was just having fun". At this point, Constable Haidar was unsure whether it was a medical issue, or a drinking and driving situation. The ambulance arrived, and paramedics dealt with Mr. Van-Eyk, removing him from the vehicle. Constable Haidar entered the vehicle in order to look for a driver's license. Constable Mizzi then advised him that he already had Mr. Van-Eyk's driver's license. Constable Haidar then retrieved the keys to Mr. Van-Eyk's vehicle from the roof of the vehicle and started the engine to confirm that it was in running condition. While doing so, he noted two large 950 millilitre beer cans on the floor of the vehicle, one full, and one almost empty.

[32] Constable Haidar testified that his purpose in going into the car was to see if the engine would start. He did not see how the keys to the vehicle came to be placed upon roof. In order to start the engine, he leaned in the passenger side of the vehicle with one knee on the passenger seat and started the engine. The wheels to the car looked good, and the engine started, so the car was operational. He could not recall fluid leaking from the vehicle. After seeing the beer, he also noted a bottle of gin in the rear passenger side on the floor. The bottle was approximately three quarters empty. At that point, he was looking for more alcohol under his powers under the Liquor License Act because he had found the beer in the front of the vehicle. At the point that he was doing this, Mr. Van-Eyk was in the ambulance.

[33] Shortly after he found the alcohol, Constable Mizzi, who had entered the ambulance, exited the ambulance and advised him that Mr. Van-Eyk smelled of alcohol. Constable Haidar then went close to Mr. Van-Eyk's face, and smelled the odour of alcohol. Constable Mizzi advised him that he would be laying a charge of care and control under section 253 of the Criminal Code, and requested that he obtain a portable unit in order to conduct breath tests at the hospital. At 9:54 p.m., Constable Haidar left the scene in order to obtain the approved instrument. He arrived at the detachment at 10:12 p.m.. It took him approximately 10 minutes to retrieve what he needed. He then drove directly to Victoria Hospital, arriving at 10:28 p.m..

[34] Constable Haidar located Mr. Van-Eyk in the hospital and set up the approved instrument at 10:35 p.m.. He turned on the Intoxilyzer 8000C in order to get it up to temperature and run diagnostic checks. When the machine was ready, he inputted information related to Mr. Van-Eyk and began his first breath sample. He was ready to conduct the test at 10:59 p.m.. At 11 p.m., he read the secondary caution to Mr. Van-Eyk, who indicated that he understood. He also read the breath demand, which Mr. Van-Eyk indicated that he understood. In response to a question as to why there was any reason why he could not provide a breath sample, Mr. Van-Eyk indicated "no". Earlier, at the location of the arrest, he had been advised of the grounds for arrest and breath demand by Constable Mizzi. He was also advised that Constable Mizzi had provided Mr. Van-Eyk with his right to counsel. It is not his practice to advise someone of the right to counsel a second time.

[35] Constable Haidar attempted to take the first sample of breath. He noted that Mr. Van-Eyk's eyes were watery and bloodshot, that he was cooperative at times, but uncooperative at other times. Mr. Van-Eyk's speech was confused, alternating between being upset and being calm. Mr. Van-Eyk made three attempts, but did not provide a suitable sample. He was not providing enough air or not providing a good mouth seal. On the fourth attempt, at 11:06 p.m., a suitable sample was obtained. It indicated a blood-alcohol content of 171 milligrams of alcohol in 100 millilitres of blood. He advised Constable Mizzi of the result, and Constable Mizzi left the hospital. He reviewed the alcohol influence report with Mr. Van-Eyk at 11:19 p.m.. Mr. Van-Eyk answered the first question, but then indicated that he wanted to speak with a lawyer. Constable Haidar stopped questioning Mr. Van-Eyk, and telephoned duty counsel at 11:20 p.m..

[36] Duty counsel returned the call at 11:25 p.m.. Constable Haidar provided Mr. Van-Eyk with the phone, and closed the curtain around his bed. He then went and sat with Constable Huntley off to the side of the nurses desk approximately 15 metres from Mr. Van-Eyk's bed. He was unable to hear the conversation between Mr. Van-Eyk and duty counsel. The call lasted approximately two minutes. Mr. Van-Eyk indicated that he was finished. He did not recall any conversation with Mr. Van-Eyk regarding the call nor does he recall Mr. Van-Eyk raising any issue about the call, the level of privacy during the call, or a desire to speak with anyone else. If Mr. Van-Eyk had raised an issue, he would have made note of that.

[37] Constable Haidar then prepared to take the second breath sample, but then realized that he had not conducted the calibration check, diagnostic check and self-test to ensure that the instrument was working properly prior to taking the first sample. The machine had done its own diagnostic and calibration check prior to that sample. The machine was working properly internally, and that calibration check okay. He had forgotten to do his own checks because of the commotion of setting up the instrument, then being required to move the instrument, and then speaking with the doctor. He then aborted the instrument sequence, and conducted the checks between 11:30 p.m. and 11:32 p.m., all of which passed. He was satisfied that the instrument was in proper working order at 11:34 p.m.. He restarted the sequence to take the second sample. Mr. Van-Eyk made three unsuccessful attempts to provide a sample, and eventually at 11:44 p.m., on the fourth attempt, he provided a suitable sample. The result was a reading of 164 milligrams of alcohol in 100 millilitres of blood.

[38] Constable Haidar's opinion, the two tests were in good agreement, and the instrument was working properly. At 12:01 a.m., he advised Mr. Hayter that he was also being charged with the offence of driving with more than the allowable amount of alcohol in his bloodstream. Mr. Van-Eyk then used the washroom, and refused further medical treatment. They gathered Mr. Van-Eyk's belongings and at 12:16 a.m. left the hospital and went directly to the OPP detachment. Prior to Mr. Van-Eyk being released from the detachment, they served him with the certificate of a qualified breath technician. From his observations, Mr. Van-Eyk was clearly impaired, so Constable Haidar was unable to say whether or not Mr. Van-Eyk understood everything that transpired. However, Mr. Van-Eyk responded in ways that indicated that questions asked of him were understood, and instructions given to him were understood.

[39] In cross-examination, he indicated that he was halfway into entering the vehicle when Constable Mizzi said that he already had Mr. Van-Eyk's driver's license. At that point, he noticed the beer on the floor area in front of the front passenger seat. He entered the car to see if the engine would start because he was suspicious regarding an offence of drinking and driving. He simply started the engine to confirm that it would run, and turned it off. With respect to his failure to do a self-test of the approved instrument at the hospital prior to taking the first breath sample, he was ready to do that when hospital personnel requested that he move the instrument from the area where he was set up to another area nearby. For that reason, he forgot to do his diagnostic check before the first sample. When he realized that, he did all of the diagnostic checks prior to taking the second sample. His understanding was that Constable Mizzi had provided Mr. Van-Eyk with the right to counsel upon his arrest and, therefore he did not provide the right to counsel again before the breath tests.

[40] With respect to the unsuccessful attempts to provide a breath sample, Mr. Van-Eyk appeared to be inebriated, but Constable Haidar was confident that Mr. Van-Eyk knew what was expected of him. Giving a breath sample is a simple procedure.

Dustin Sutherland

[41] Mr. Sutherland is one of the paramedics who attended to Mr. Van-Eyk at the scene. When he arrived, officers were speaking to Mr. Van-Eyk, who was seated in the driver seat of the vehicle. There were no obvious traumatic injuries but Mr. Van-Eyk's response was poor when questioned regarding history as to the accident that his vehicle was involved in. In treating Mr. Van-Eyk, Mr. Sutherland and his partner determined that his blood sugar was low. They mobilized him and placed him in the ambulance. He was provided with dextrose, appeared confused about the events and was uncooperative with paramedics. Mr. Van-Eyk was transported to hospital.

Alexander Regan

[42] Mr. Reagan was the second paramedic who treated Mr. Van-Eyk. Mr. Van-Eyk's initial assessment indicated an altered mental status. Van-Eyk maintained that he was "fine". He was treated for low blood sugar and although blood sugar levels were returned to normal limits, the altered mental status continued.

Kenneth Van-Eyk

[43] Mr. Van-Eyk testified that he was at work on December 17, 2014. He left work early in the afternoon, sometime before 4 p.m., because he needed to arrange for supplies for a job the following week. His intention was to drive to a building supply store in Northwest London to obtain supplies. From there, his intention was to drive a short distance to the residence of a female friend in order to stay the night. For that reason, he intended to buy some beer. He was working at a location in the south end of London. He left that location and travelled northbound on Wonderland Road, stopping in the south end of London at a Beer Store briefly in order to purchase beer. He continued northbound on Wonderland Road, and stopped at a building supply outlet in North London. He parked his vehicle in the parking lot and went inside to arrange for the needed supplies.

[44] After being inside the store for approximately one half hour, Mr. Van-Eyk came outside and saw that someone had struck his vehicle. The vehicle was damaged and he was distraught and upset. His first thought was that he needed to get his vehicle to an auto body shop near his residence. He did not phone the police at that point because he knew he had 24 hours to report the accident. At that point, he was financially stressed. He was paying child support for seven children and the financial impact of that resulted in him residing with his parents. He left the building supply store and travelled west down Gainsborough Road. At one point when he was driving, the hood of his car flew open and struck the windshield, breaking it. He pulled over to the side of the road, parked and lowered the hood. The car then overheated, so he decided to pull into the driveway which was next to him because he did not feel that he could drive any further.

[45] He testified that he drove down the gravel driveway, feeling upset and depressed. At 5:15 p.m., he parked in the laneway. He considered calling his parents but he did not want them to worry, so he decided to stay in his car for the night. He was wearing heavy clothing and therefore knew that he would not freeze. His parents were expecting him to stay at his female friend's house in any event. He placed the keys to the vehicle on its roof, opened the trunk and removed the alcohol from the trunk in order to drink. He wanted to be parked a distance off the roadway because he intended to stay the night. He decided that he would call for a tow truck the next morning, because the car was no longer safe to drive. He did not plan to drive the car again until it was repaired.

[46] Mr. Van-Eyk agreed that he drove down Lawson Road after leaving the building supply store. He denied ever hitting the transit bus, or getting into any type of an accident on Lawson Road. After he parked his car in the laneway, he drank a significant amount of beer and the gin. He was upset about his financial situation and his life in general. His evidence is that he and reclined the seat and went to sleep. He does not recall police officers knocking on the window of his car. He does not recall the passenger side car window being broken. Does not recall police officers questioning him at the scene. He was aware that his driver's license was in the front pocket of his pants, but does not recall it being removed from that location. He did not recall being placed in the ambulance or being driven to the hospital. He does recall waking up in the hospital, and does not recall ever being advised of his right to counsel by police officers. He did not recall being questioned by medical staff in the hospital. He is not a diabetic, and does not recall telling anyone he was a diabetic.

[47] Mr. Van-Eyk maintains that at one point in the hospital, the police asked him for a blood sample and he refused, indicating that he wanted to speak to a lawyer. The police officer subsequently gave him the phone so that he could speak with a lawyer. He was uncertain of whether the police officer was listening, so his conversation with the lawyer was brief. He knew that there were people in the area of his hospital bed walking by. He indicated in a normal voice that he was finished his call, and the police officer opened the screen around his bed. He was unable to articulate what he wanted to say so he did not tell the police officer that he wanted privacy for the conversation.

[48] In cross-examination, he agreed that there was a building supply store near the location where he stopped to purchase beer. However, he did not enter it because he wanted to avoid traffic getting heavier on Wonderland Drive. When asked the address for the female friend he intended to stay with, he did not know the address but indicated that he knew the location. When questioned regarding his relationship with the female friend, he indicated that she was a woman who he only met once. She had invited him to stay over that evening but because of what happened, he did not stay over, and he never saw the woman again.

[49] He maintained that when he exited the building supply store and saw the damage to his car, he was very upset. There were no other cars around. Given the damage, he felt that it had to be a larger vehicle which struck his car, possibly a truck. He did not go into the store to ask if they had security video of the parking lot. He intended to do that following day. He could only think about getting the car home and speaking to his parents, because they had provided him with $15,000 to buy the car. He did not telephone the police after discovering the damage to his car because he had 24 hours to report an accident. He never did return to the store to ask if they had security video of the parking lot because he was charged with these offenses. He was no longer interested in getting the footage after he was charged. At that point, the last of his worries was the damage to his vehicle. He agreed that part of the lower grill of his vehicle was missing, but maintained that he did not see any debris on the ground in front of his car after he exited the store.

[50] Mr. Van-Eyk maintained that he drove away from the store and obeyed all traffic signals at intersections, operating the car in the normal fashion but at a lower rate of speed. He was confident at that point that the car was in a condition which would allow it to be driven. Once he had travelled down Gainsborough Road and got outside of the London city limits, he accelerated because the car had been fine up to that point. At that point, the hood then popped open, making contact with his windshield and breaking it. He was approximately a 25 to 30 minute drive from his home when that happened. He had a cell phone with him which was working and he confirmed that his parents have a car. However, he did not call his parents, the police or a tow truck. He simply sat at the side of the roadway and contemplated his life. He did not try to flag people down for help. When the engine overheated, he drove down the driveway and parked, intending to call a tow truck the following morning. He thought that the driveway led to a business. He agreed that at 5:15 p.m., the business could still be open, but he made a decision not to go there and ask for assistance. He could not recall whether it was snowing, but indicated that the temperature was -3, which was not overly cold.

[51] Ten to fifteen minutes after parking the car in the laneway, he began drinking beer and gin. He thought that it was going to be a long night sleeping in his car, so he might as well have a drink and contemplate life. He consumed alcohol while sitting in the driver's seat of the vehicle. At no point did he have the vehicle running to keep himself warm. He had placed the keys to the vehicle on the roof because he did not want them in his possession because he did not want something like these charges to occur. He agreed that if the vehicle was in such a condition that it could have been driven further that night, he would have driven it home.

[52] While at the hospital, he spoke to the hospital staff and at times was in and out of sleep. He did not always understand what the police were saying. He was unable to articulate his questions to the duty counsel lawyer. He is unable to recall his conversation with duty counsel. He was concerned about who was outside of the curtain around his bed and did not think that it was an adequate place in order to have a conversation with duty counsel. He did not say anything about those concerns to anyone. He was so confused that he was unable to articulate the questions that he wanted to ask duty counsel. He agreed that he was able to provide the breath samples. He maintained that he knew he had a right to speak with a lawyer, but the police never mentioned that to him. He agreed that he was able to refuse medical treatment and that he was able to ask to speak with a lawyer. He did not realize that breath tests could be done in the hospital and he thought he was in a police station. He was intoxicated at that point.

[53] When he parked the car in the laneway, he was distraught and not thinking straight. He simply wanted to put things behind him and deal with everything the next morning. He did not put any plan in place to get out of the laneway the following morning. It was his intention to make those arrangements the following morning. He had slept in his car before and the cold temperatures were not an issue. He had not consumed any alcohol prior to parking in the driveway. He agreed that it was snowing, dark and cold, but maintained that he was not worried that he would lose his car keys if he put them on the roof of his car.

POSITIONS OF THE PARTIES

The Crown

[54] Mr. Van-Eyk was found intoxicated in the driver seat of his vehicle. The presumption is available to the Crown, and Mr. Van-Eyk did not give evidence capable of rebutting the presumption. The only breach of the Charter involved the second entry by the police to Mr. Van-Eyk's car prior to his arrest. That resulted in the discovery of a third container of liquor. That evidence should not be excluded. The Crown has proven its case beyond a reasonable doubt.

The Defence

[55] The numerous breaches of Mr. Van-Eyk's Charter rights should result in exclusion of the evidence obtained from those breaches. Mr. Van-Eyk gave evidence is capable of rebutting the presumption which arises from him being located in the driver's seat, and his evidence should be accepted to establish he had abandoned any intention to drive the motor vehicle. Therefore, he was not in care or control of the motor vehicle when discovered by the police.

APPLICABLE LEGAL PRINCIPLES

Care and Control

[56] The Crown must prove all elements of any criminal offence beyond a reasonable doubt in order to obtain a conviction. With respect to the charges related to care or control, it is an offence to have care or control of the motor vehicle, whether it is in motion or not, while one's ability to operate the motor vehicle was impaired by alcohol, or where one has a concentration of alcohol in one's blood which exceeds 80 mg of alcohol in 100 mL blood.

[57] In cases related to care or control, the Crown can rely upon a presumption contained in section 258(1) of the Criminal Code. That presumption provides that where it is proved that an accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, the accused shall be deemed to have had the care or control of the motor vehicle, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle in motion. The accused may rebut this presumption by calling evidence that shows, on a balance of probabilities, that the accused did not occupy the driver's seat for the purpose of putting the vehicle in motion. If the presumption does not apply, or if the accused leads evidence which is capable of rebutting the presumption, then it is incumbent upon the Crown to prove beyond a reasonable doubt that the accused was in care or control of the vehicle.

[58] Care or control is not driving, nor is it attempted driving. To establish that an accused was in care or control, the Crown must show that the accused performed some act involving the vehicle or its fittings that could cause the vehicle to be set in motion or create some other danger. Even if an accused does not intend to set the vehicle in motion, where the accused has performed some act involving the use of the vehicle that could accidentally cause it to become dangerous through motion or other danger that will establish care or control.

[59] Appellate courts have emphasized that the act or conduct of the accused in relation to the vehicle must be such that there is a risk of danger arising from the accused's interaction with the motor vehicle. In order to establish care or control, the act or conduct of the accused in relation to the motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way.

[60] As indicated by the Ontario court of appeal in R. v. Smits, 2012 ONCA 524, at paragraphs 53 and 56:

"Courts have answered this question by recognizing that danger can come in many forms. It would appear that three risks of danger have been identified in the cases where the intoxicated individual uses a motor vehicle for a non-driving purpose:

i) The risk that the vehicle will unintentionally be set in motion: see R. v. Ford, [1982] 1 S.C.R. 231;

ii) The risk that through negligence a stationary or inoperable vehicle may endanger of the individual or others: see R.v. Vansickle [1990] O.J. No. 3235 (C.A.)

iii) The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired: see R. v. Pelletier (2000) 6 M.V.R. (4th) 152 (C.A.). …

In order to find care or control based on the change of mind ground, the Crown must prove that there was a risk that the respondent would have decided to drive while still impaired. The risk does not have to rise to the level of probability."

[61] In R. v. Boudreau, [2012] 3 S.C.R., the Supreme Court of Canada indicated the following at paragraph 9 of the decision:

"For the reasons that follow, I have concluded that "care or control", within the meaning of s. 253(1) of the Criminal Code, signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property."

[62] The court went on to say at paragraph 13:

"Impaired judgment is no stranger to the impaired driving, where both are induced by the consumption of alcohol or drugs. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of case."

Charter Issues

[63] Section 8 of the Charter provides that: "Everyone has the right to be secure against unreasonable search or seizure".

[64] An individual may consent to the search of a vehicle, but the consent must be both voluntary and informed. The visual inspection of the interior of the vehicle at a provincial check stop program is not a search, nor does the use of a flashlight for that inspection create a search (see R. v. Mellenthin, [1992] S.C.J. No. 100). Vehicles may be searched as an incident to arrest where police are attempting to achieve some valid purpose connected to the arrest. In R. v. Soal, [2005] O.J. No. 319 the court dealt with the issue of police entering a vehicle after finding the accused unconscious in his vehicle with the motor running. The summary conviction appeal court found that the officer was correct in entering the vehicle to check on the status of an unresponsive driver. Once detecting the odour of alcohol, the officer had grounds to arrest. The search was reasonable and was required given the exigent circumstances. Section 44.1 of the Liquor License Act provides authority to, without warrant, stop and detain a vehicle and to examine its contents if reasonable and probable grounds exist to believe the vehicle contains evidence of a contravention of the Act.

[65] Section 10 of the Charter provides that:

"10. Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor:

b) to retain and instruct counsel without delay and to be informed of that right: and

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful."

[66] With respect to section 10(b) of the Charter, the Supreme Court of Canada indicated in R. v. Suberu 2009 SCC 33, [2009] S.C.J. No. 33 at paragraph 40:

"The purpose of s. 10(b) is to ensure that individuals know their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel was meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination."

[67] Once engaged, s. 10(b) imposes both informational and implementation of duties on the police. The detainee must be informed of the right to retain and instruct counsel without delay. The police must provide the detainee with a reasonable opportunity to exercise the right. This obligation requires the police to refrain from eliciting incriminatory evidence from the detainee until the detainee has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so. The police duties arise at the outset of an investigative detention. Rights to counsel are subordinate to safety concerns of police and public.

[68] The right to consult counsel in conditions of privacy is a fundamental component of section 10(b). A court must examine all of the circumstances in assessing whether there has been a section 10(b) breach based upon an alleged absence of privacy (see R. v. Burley, [2004] O.J. No. 319 (C.A.)).

ANALYSIS

[69] Given that Mr. Van-Eyk testified, a W.D. analysis is the framework in which to evaluate the evidence. However, I will begin by commenting on issues related to Mr. Van-Eyk's evidence. His explanation of his movements prior to pulling into the driveway on Gainsborough Road is simply unbelievable. His evidence is contrived and tailored to suit his defence. His evidence related to how the damage was caused to his car makes no sense. He would have the Court believe that despite the significant damage to the front end of his vehicle, he did not observe any debris on the ground in front of the vehicle. He suggested that he was distraught over the damage to his car. However, he did not contact police nor did he attend the store to determine whether anyone had seen anything, or whether the store had video surveillance of the parking lot. His explanation that he intended to do so the next day, but then became disinterested in doing so because of the charges being laid is nonsensical.

[70] I accept the evidence of Constable Budzyn that the plastic pieces which he retrieved from behind the bus fit into the damaged grill and headlight area of Mr. Van-Eyk's car. Accordingly, the only logical inference which can be drawn is that Mr. Van-Eyk's vehicle collided with the bus shortly after 7 p.m., and then fled the scene.

[71] With respect to Mr. Van-Eyk's evidence related to what happened when he parked in the driveway, it again makes no sense that someone would decide at 5 p.m. on a wintery night that they should sleep in their car, despite the fact that he had a working cell phone with him, and could have easily made arrangements to be picked up. Alternatively, he could have flagged down another vehicle or attended at the end of the driveway to request assistance. His evidence as to how he came to be in the laneway and his decision to stay there overnight is simply unbelievable, and is rejected.

[72] Mr. Van-Eyk's evidence as to what transpired after the police arrived also has no basis for belief in its reliability. He was clearly heavily intoxicated at that point. By his own evidence, he does not recall the police arriving and interacting with him, nor does he remember the paramedics or the ride to the hospital. He was intoxicated to the point where he thought that he gave the breath test at the police station rather than the hospital. Notwithstanding that, he claims to recall the police did not provide him with his right to counsel and that he was dissatisfied with the privacy arrangements in which he ultimately spoke with duty counsel. His evidence is not reliable because of his level of intoxication, and is not credible because it is simply not believable.

[73] I find that the following is a timeline of the significant events related to this matter. Shortly after 7 p.m., Mr. Van-Eyk's car rear-ended a parked city transit bus, and fled the scene. Nothing in the evidence, including Mr. Van-Eyk's evidence, indicates that any other individual was driving his car at any point that day. I infer that he was the driver of the car when it struck the transit bus. Sometime after the collision, Mr. Van-Eyk drove westbound on Gainsborough Road, eventually stopping and parking in the private driveway where his vehicle was located by OPP officers. At approximately 9 p.m., Ms. Conrad left her residence and drove down the driveway, noting Mr. Van-Eyk's car parked on the side of the driveway. Approximately 10 minutes later, she returned and the vehicle was still there. It had been parked there for some period of time, given the fact that snow and fallen and filled in whatever tracks the vehicle had made. At 9:12 p.m., OPP officers were dispatched to the scene, arriving at approximately 9:17 p.m.. The officers interacted with Mr. Van-Eyk and the ambulance arrived at approximately 9:25 p.m.. Paramedics treated Mr. Van-Eyk. Police noted open liquor in Van-Eyk's car. Constable Mizzi became aware that Mr. Van-Eyk's car matched the car being sought by London Police Service in a motor vehicle accident investigation. When Mr. Van-Eyk became coherent enough to communicate with police officers, they noted an odour of alcohol and signs of impairment. At 9:54 p.m., Constable Mizzi arrested Mr. Van-Eyk for impaired driving. At 9:55 p.m., he provided Mr. Van-Eyk with the right to counsel and the standard police caution. At 9:56 p.m., he read the breath demand. Constable Haidar left the scene to attend at the detachment to pick up the portable Intoxilyzer device. The ambulance left the scene and travelled directly to Victoria Hospital, arriving at 10:10 p.m.. Mr. Van-Eyk interacted with hospital personnel upon his arrival at the hospital.

[74] Constable Haidar arrived with the Intoxilyzer at 10:28 p.m.. He was ready to conduct a breath test at 10:59 p.m.. After a number of attempts, a suitable sample was obtained at 11:06 p.m.. At approximately 11:19 p.m., after answering the first question on the alcohol influence report, Mr. Van-Eyk indicated that he wanted to speak with a lawyer. Constable Haidar telephoned duty counsel. Duty counsel called back at 11:25 p.m.. Constable Haidar provided Mr. Van-Eyk with the phone, closed the curtain around Mr. Van-Eyk's hospital bed, and left that immediate area. Mr. Van-Eyk spoke briefly with duty counsel. Constable Haidar prepared the Intoxilyzer for the second sample, and was satisfied that it was in proper working order at 11:34 p.m.. After several unsuccessful attempts to obtain a suitable sample, a second suitable sample was obtained at 11:44 p.m.. Subsequently, he advised Mr. Van-Eyk that he would be charged with the over 80 offence. Mr. Van-Eyk used the washroom, refused further medical treatment, and left the hospital with police officers at 12:16 a.m..

[75] With respect to the issue of whether the engine to Van-Eyk's vehicle was running, I make the following comments. Ms. Conrad testified that the headlights were on and the engine to Mr. Van-Eyk's vehicle was running when she left her residence and drove down her laneway. When she returned to the driveway, the engine was still running. In cross-examination, she agreed that the statement attributed to her by the police indicated that the headlights of the car were on, and she believed that the engine was running. She testified that she believed that she said more than that to the officer, but that the statement she provided was simply provided over the telephone and she did not see what the officer recorded the statement.

[76] Constable Huntley testified that upon his arrival, the engine was running, but the headlights were off. Neither Constable Haidar nor Constable Loucks had a recollection of whether or not the engine was running when officers arrived. Constable Haidar arrived approximately one minute behind the other officers, and upon his arrival, officers had already smashed the side window and were speaking with Mr. Van-Eyk. Constable Mizzi recalled that the headlights to the car were off. He did not have a specific recollection of it, but he believed that the keys were in the ignition.

[77] Given that four officers arrived on scene within one minute of each other, had to break in to Mr. Van-Eyk's car in order to ascertain his medical status and then make way for the paramedics, there was a lot happening initially. That may account for honest admission by some officers that they did not recall specifically whether the car was running or not. However, I accept the evidence of Ms. Conrad that the vehicle was running on both occasions when she passed it. Similarly, I accept the evidence of Constable Huntley that the vehicle was running when he arrived, and that the headlights were off.

Issues related to section 10(b) of the Charter

[78] The defence takes the position that the detention of Mr. Van-Eyk began when the police arrived at the scene of his motor vehicle in the private driveway. The position is that at the very least, at that point the police were investigating Mr. Van-Eyk for trespassing. Accordingly, he should have immediately been provided with his right to counsel. Police should have refrained from asking questions about his previous consumption of alcohol. Alternatively, when police learned that his vehicle matched the description of the vehicle being sought by London Police Service in connection with the motor vehicle accident investigation, he should have been advised of his right to counsel.

[79] The difficulty with that argument is that, when police arrived on scene, Mr. Van-Eyk was unconscious. The police did not know at that point whether this was a medical emergency, or something else. Exigent circumstances required the police to determine whether he was in medical distress. At that point, the right to counsel was subordinate to the obligation to ensure the safety of Mr. Van-Eyk by determining whether there was a medical issue. When Mr. Van-Eyk was awakened, he was incoherent. At that point, his medical status remained the paramount issue.

[80] After Mr. Van-Eyk received medical treatment in the ambulance and became coherent enough to interact meaningfully with the police, they noted the signs of impairment, arrested him, and provided him with the right to counsel and standard police caution. Mr. Van-Eyk indicated that he understood the right to counsel, and indicated that he did not wish to speak to a lawyer. He indicated that he understood the caution. He responded appropriately to police inquiries which were aimed at confirming his understanding of his right to counsel.

[81] With respect to the issue of privacy during his consultation with duty counsel, I find that given the circumstances at the time, the level of privacy afforded to him was adequate to allow him reasonable opportunity to consult with counsel. The officers provided him with the phone, drew the curtain closed around his bed, and moved far enough away from his bed that they could not hear the conversation. Given the circumstances in an emergency wing of the hospital, that was sufficient to provide him with a reasonable opportunity to consult counsel. Mr. Van-Eyk did not raise any concerns regarding privacy. In addition, I do not believe Mr. Van-Eyk's evidence that he believed that he could not speak with counsel in private. (see R. v. Cairns, [2004] O.J. No. 210 (C.A.))

[82] With respect to Mr. Van-Eyk's understanding of the information regarding right to counsel, I accept the evidence that the officers provided the right to counsel and caution, and made the breath demand. I accept the evidence that Mr. Van-Eyk's reaction to the information provided was responsive and that he indicated that he understood, and appeared to understand. I recognize that severe intoxication may constitute a circumstance that results in an accused not understanding his or her section 10(b) rights, but I find on the evidence in this case, Mr. Van-Eyk appeared to understand the information provided. His reaction did not require further inquiry on the part of police regarding his understanding of his rights.

Issues related to section 8 of the Charter

[83] The Crown takes the position that Constable Haidar entered Mr. Van-Eyk's vehicle to attempt to locate his identification. I find is the fact that the initial entry to the vehicle was for that purpose. That was a legitimate purpose, given the fact that at that point police might still be dealing with a medical emergency, and information as to who they were dealing with could have been important. The beer cans were seen in plain view by Constable Haidar. At that point, in my view, he was allowed to seize those items pursuant to his powers under the Liquor License Act.

[84] The Crown takes the position that the subsequent search which resulted in the seizure of the bottle of gin prior to Mr. Van-Eyk's arrest violated the Charter. Accepting that position, I conclude that the admission of that evidence is appropriate after conducting an analysis under section 24(2) of the Charter. In this quickly evolving situation which could have been a drinking and driving offence, or could have been a medical issue, the officer was acting in good faith, which mitigates the seriousness of the breach. The search resulted in the seizure of a third container of alcohol when two had already been seized. Society has a significant interest in adjudication of this case on the merits. Finally, I would add that if I am wrong in terms of admitting the evidence of the third container of alcohol, I note that the admission of that evidence does not add anything to the Crown's case on the merits. Mr. Van-Eyk has given evidence that he was drinking beer and gin in the car, and the evidence of seizing the bottle of gin adds nothing of significance to the Crown's case.

[85] The defence takes the position that section 8 was also violated because of the failure on the part of the police to take the breath sample as soon as practicable. The Crown is not required to account for every minute that an accused is in custody. The first breath sample was taken as soon as practical given how matters and folded at the scene and in the hospital. The second sample was delayed slightly Constable Haidar conducted additional tests of the instrument upon realizing that there was an issue in that regard. This happened within an environment of a busy emergency department of a large hospital. The delay was brief. Constable Haidar's actions were reasonable in the circumstances, and the second test was taken as soon as practicable.

[86] I find that the only breach of the Charter in this case involved the one acknowledged by the Crown, the search of the vehicle prior to arrest which resulted in the bottle of gin being located. As indicated, I would admit that evidence notwithstanding the breach.

The care or control issue

[87] The evidence is overwhelming that at the time police encountered him, Mr. Van-Eyk's ability to operate the motor vehicle was impaired by alcohol. Mr. Van-Eyk was found in the driver's seat of the vehicle. The presumption in section 258(1)(a) applies. The evidence of Mr. Van-Eyk is not capable of rebutting the presumption. Accordingly, he was in care or control of the car when the police came upon him. That is sufficient to result in a conviction.

[88] Although it is not necessary for the purpose of deciding this case to comment on the risk of danger analysis, I also note that, even if I had found that Mr. Van-Eyk successfully rebutted the presumption, there would still be a conviction entered based upon the risk that Mr. Van-Eyk would have changed his mind and driven the vehicle. The vehicle was driven by him to that location. His own evidence is that, had the vehicle been capable of being driven in his mind, he would have driven it home. Given his level of intoxication, and the resulting lack of judgment, there would been a significant risk that at some point, he would have decided to continue further in the vehicle.

CONCLUSIONS

[89] There will be a finding of guilt to the charge of care or control of a motor vehicle while impaired. Accordingly, the charge related to an elevated blood alcohol content is stayed. Counsel agreed that the evidence in this trial should apply to the trial of the charges under the Provincial Offences Act. There will be findings of guilt with respect to those offences as well.

Released: September 22, 2016

Signed: "Justice A. Thomas McKay"