Court File and Parties

Ontario Court of Justice

Date: 2019-05-08

Court File No.: Toronto 4817 998 16-15000958

Between:

Her Majesty the Queen

— and —

Meshack Arnold Rabarison

Before: Justice H. Borenstein

Heard on: March 25, 26, 27, 28, 29, April 2, 17 and May 2, 2019

Reasons for Judgment released on: May 8, 2019

Counsel:

• Ms. Vivian Gallegos, counsel for the Crown
• Mr. Michael Hayworth, Counsel for the accused Meshack Arnold Rabarison

BORENSTEIN J.:

[1] Charge and Overview

Meshack Rabarison is charged with one count of impaired care or control. The evidence of impairment relied upon by the Crown comes from a toxicologist's report which depends upon the results of blood taken from the accused at the hospital without his consent. The defence seeks to exclude the blood results from this trial on the basis of numerous alleged Charter breaches. If successful, the Crown would have no case.

[2] Factual Background

By way of brief outline, Rabarison was in the driver's seat of his car which was parked in front of his house at about 7:45 in the morning. A woman walking her dog saw him slumped over the steering wheel. The engine was running. When she walked by again, 20 minutes later, he was in the same position. She knocked on his window to try to wake him but he was unresponsive. She was concerned for his safety and called 911. Paramedic Alkis and P.C. Huynh attended almost immediately, arriving around 8:18 a.m.

[3] Initial Assessment

Alkis opened the driver's door and tried to wake Rabarison. She had to physically lift his head off the steering wheel to wake him. He was disoriented and confused. He had obvious injuries to his face. There was a cut and blood coming from the left side of his lip, blood from both nostrils and his left eye was bloodshot.

[4] Removal from Vehicle

She asked him to get out of the car so she could check his vital signs. He refused, and became agitated and belligerent. She turned off the engine and handed the keys to P.C. Huynh who was on scene, but stayed behind Alkis while she was tending to the accused. Huynh testified that he told the accused that if he did not exit the car, he would arrest him and take him to the hospital. That caused the accused to get out. Once the accused was out of the car, Huynh noted indicia of impairment. The accused said he lived in the house in front of where his car was parked, and wanted to go home. The accused was given a chair to sit down upon, on the front lawn. His identification was found in the car, as was a used syringe which was on the floor, on the front passenger seat. Huynh and Alkis wondered whether the accused was in a diabetically induced state. The accused said he was not diabetic. When they knocked on the front door, the accused's mother answered and confirmed that the accused was not diabetic. P.C. Huynh now had grounds to believe the accused was impaired by drugs or alcohol. Those grounds are objectively reasonable.

[5] Grounds for Arrest

I note that Huynh also testified that he had grounds for arresting the accused for an impaired offence before he ordered him out of the car.

[6] Arrest and Transport to Hospital

Huynh arrested Rabarison for impaired care or control at 8:36 a.m. and handcuffed him. The accused became more belligerent and physically aggressive with EMS and police. Alkis wanted him on the stretcher to be assessed. The handcuffs were removed and he was placed on the stretcher, but he was swinging his arms and was belligerent and aggressive. As a result, one and then both of his hands were handcuffed to the stretcher. The police wanted the accused's mother to come to the hospital with them but she declined.

[7] Arrival at Hospital and Right to Counsel

Rabarison was taken to the Michael Garron Hospital emergency room, arriving at 8:44 a.m. He was directed to the "resusc" room, which is short for the resuscitation room. That room is reserved for people who are potentially in the most urgent need of assessment. At 8:53 a.m., P.C. Huynh re-advised Rabarison of the reasons for arrest. At 8:54 a.m., about 35 minutes after ordering him from the car, he read him his right to counsel and caution for the first time. Huynh testified that this was the first time he felt the accused was quiet enough to hear or listen to him. Huynh testified that the accused did not reply to his question whether he understood the rights and caution, or wished to call a lawyer.

[8] Medical Assessment and Blood Tests

The accused remained aggressive and belligerent. Blood tests were ordered by the nurses at 9:00 a.m., pursuant to hospital directives in this type of situation. The doctors and nurses testified that they were concerned about Rabarison's mental state. Dr. Stefnacki testified that given the accused's bizarre and unexplained behavior, she thought his condition could be life-threatening. She ordered blood and urine tests, a CT scan and sedated him. He was sedated around 9:30 a.m. His blood was drawn sometime between 9:30 a.m. and 9:45 a.m., and again at 10:15 a.m.

[9] Search and Second Arrest

At the direction of medical staff, Rabarison was placed in four-point restraints by hospital security, as the doctor and nurses were concerned for their own safety. Rabarison's pants had to be cut off. A search of his pants revealed two baggies containing a white powder. At 9:41 a.m., Huynh arrested Rabarison for possession of a controlled substance and at 9:42 a.m., again gave him his right to counsel. In response to whether he understood and wished to call counsel, he replied: "I don't care, I don't care". He had already been sedated by then.

[10] Police Conduct at Hospital

Police officers stayed with the accused throughout his time at the hospital, but had little to no interaction with medical personnel other than incidental contact. However, Huynh did ask a nurse to take an extra vial of blood for the police but she refused, saying that is not the hospital's practice. Huynh wanted that taken so that he could later apply for a Judicial Order.

[11] Release and Charging

The accused was released from the hospital around 5:18 p.m. He was taken to 54 division, where he was formally charged and immediately released on a Promise to Appear at 5:36 p.m., nine hours after he was arrested.

[12] Blood Evidence Obtained

On June 16th, police obtained a Production Order, pursuant to s. 487.01 of the Criminal Code, requiring the hospital to turn over the records of the accused's blood and urine tests. They were produced and entered as business records at this trial. The results revealed the equivalent of a B.A.C. of 219 milligrams of alcohol in 100 millilitres of blood. A toxicology report was also admitted as an exhibit at this trial, which revealed a B.A.C. range of 219-230 at the time of care or control and that, at that level, the accused ability to operate or have care or control of a vehicle would be impaired.

[13] Evidence at Trial

Most of this evidence is uncontested. I heard from numerous officers and hospital staff. The accused testified on the voir dire. The accused testified and conceded almost everything I have just referred to, to the best of his memory. However, he testified that he repeatedly asked to speak to his lawyer, Ms. Roots Ghadia, but his requests were being ignored. P.C. Huynh could not firmly dispute that. I will refer to further evidence as needed, as it relates to the issues to be decided.

[14] Issues Raised

The only issues raised by the defence are Charter issues. Everything else is conceded.

[15] Defence Submissions

The accused submits that there were numerous Charter breaches.

[16] Defence Arguments - Detailed

He submits that ordering him out of the car to be assessed under threat of arrest was an unlawful and arbitrary detention, and that everything that followed thereafter flowed from that unlawful act. He submits he has a right to refuse treatment, however ill advised, and it was an unlawful exercise of police powers to order him out of the car. Once he exited the car, he submits that a cascading series of events and breaches of the Charter resulted, which included (in addition to potentially saving his life) that grounds for his arrest were obtained, the arrest made, the accused was handcuffed, taken to the hospital against his will, subjected to medical tests, including the taking of blood without his consent, the Production Order and, finally, evidence of this charge. He was detained for nine hours. He submits there were two violations of the right to counsel. First, by delaying informing the accused of his right to counsel until 8:54 a.m., when he was at the hospital. And second, by ignoring the accused's repeated requests to call counsel.

[17] Alternative Defence Argument

In the alternative, he submits that if the police had the power to do what they did, it was solely for medical purposes and the state ought not to be able to get the results of the medical tests for use in a prosecution.

[18] Further Defence Argument

He further submits that Huynh's conduct in not issuing a breath or blood demand and simply reverting to a Production Order was itself contrary to the statute.

[19] Crown Submissions

The Crown submits that the police were duty bound to assist the accused and their conduct was a legitimate exercise of police powers. Further, the medical tests were taken by the hospital and not at the direction of the police. Finally, a judicial Production Order was granted for the evidence used in this case. The police were not required to issue breath or blood demands. With respect to the right to counsel, it was reasonable to delay advising the accused of his right to counsel in the unique circumstances of this case. Second, the Crown submits I should reject the accused's evidence that he repeatedly asked for counsel.

[20] Section 24(2) Analysis

Finally, there is section 24(2).

[21] Key Factual Disputes

The only significant factual disputes of consequence is why the officer ordered the accused from the car, and whether the accused asked to speak to counsel. Turning to these issues.

Reason for Ordering Rabarison Out of the Car

[22] Contradictory Evidence

P.C. Huynh gave contradictory evidence about why he ordered Rabarison out of the car and when he had grounds for arrest.

[23] Finding on Reason for Order

I find he ordered the accused out of the car under threat of arrest in order to ensure the accused's safety. He was not arresting or investigatively detaining him for an impaired offence when he ordered him from the car.

[24] Analysis of Officer's Evidence

P.C. Huynh had only been an officer for five months at the time of this incident and this was likely his first impaired case. His memory was vague. He was confused and inconsistent about whether he had grounds to arrest the accused before he ordered him out of the car. He testified initially that he had grounds to arrest Rabarison for impaired care or control prior to ordering him out of the car. However, when cross-examined on his notes which indicated that he told the accused to get out of the car to be checked by EMS and that if everything was fine he could go home, he agreed that he acquired the grounds for believing Rabarison's ability was impaired only after he got out of the car. Then when asked what offence he was threatening to arrest the accused for, he reverted and said impaired care or control. Based on his evidence, he did not subjectively believe or even suspect that the accused had committed any offence prior to ordering him out of the car.

[25] Interpretation of Evidence

The most reasonable interpretation of his evidence is that he ordered the accused out of the car to be checked out by EMS or he would be arrested and taken to the hospital.

Was this Lawful?

[26] Safety Concerns Justified

Huynh's concern for the accused's safety was amply justified. Finding someone asleep and slumped over the wheel of a running car, and who remains in that state for at least twenty minutes raises significant safety concerns for the accused and the public. Those concerns increase when he is unable to be woken. The blood all over his face adds to the concern, as does his inexplicable belligerence even while in the car. All the professionals who dealt with him came to the conclusion that his condition was potentially life threatening, and that view was unchallenged and objectively reasonable.

[27] Paramedic's Assessment

Paramedic Alkis testified that the call came as patient's life status "questionable", meaning it was uncertain if he was even alive. Once she lifted his head, he was very disoriented and confused and agitated, and not verbalizing correctly. He had tiny drops of blood coming from his nostrils and a fresh contusion on his face, which was worsening as she remained with him. She saw a syringe on the floor of the car and thought he might be diabetic. She needed to assess him. She could not ethically leave him unattended. P.C. Huynh saw all of that.

[28] Corroborative Evidence

Further, the events that occurred outside the car at the scene and later at the hospital, corroborate the decision that he needed to be medically assessed and support Huynh's decision ordering him out of the car. I refer to the events outside the car and at the hospital, not as an ex-post facto justification for earlier decisions, but, as corroborative of them.

[29] Waterfield Test Application

The decision to order him out of the car was justified under the Waterfield test.

[30] Waterfield Test - Two Questions

The test requires a Court to ask two questions:

(1) Does the police conduct in question fall within the general scope of any duty imposed on the officer by statute or common law?

(2) If so, in the circumstances of this case, did the execution of the police conduct in question involve a justifiable use of the powers associated with the engaged statutory or common law duty?

[31] Waterfield Test - Court of Appeal Guidance

In the 2015 OCA decision of Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, the Court of Appeal considered the Waterfield test. In addition to restating that police powers are not as broad as their duties, the Court held:

[48] The Waterfield test involves a careful balancing of competing interests. On one side of the scale is the state's interest in effective policing, including keeping the peace and crime prevention. On the other side is a consideration of the liberty interests of citizens, such as Mr. Figueiras, affected by the power that police exercise (or purport to exercise).

The court continued:

[50] Over time, the Supreme Court has modified the Waterfield test to emphasize the importance of Charter-protected rights. For example, the Waterfield test was summarized in Mann, at para. 26, as follows:

At the first stage of the Waterfield test, police powers are recognized as deriving from the nature and scope of police duties, including, at common law, "the preservation of the peace, the prevention of crime, and the protection of life and property" (Dedman, supra, at p. 32). The second stage of the test requires a balance between the competing interests of the police duty and of the liberty interests at stake. This aspect of the test requires a consideration of whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals. (Cloutier, supra, at pp. 181-82)

The reasonable necessity or justification of the police conduct in the specific circumstances is highlighted at this stage. Specifically, in Dedman, supra, at p. 35, Le Dain J. provided that the necessity and reasonableness for the interference with liberty was to be assessed with regard to the nature of the liberty interfered with and the importance of the public purpose served.

[32] Police Duties

There is a common law duty of officers to preserve the peace, prevent crime and to protect life and property. Further, the first three police duties prescribed by section 42(1) of the Police Services Act, of Ontario are:

(a) preserving the peace;

(b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;

(c) assisting victims of crime.

[33] Application of Waterfield Test

Turning then to the application of the Waterfield test, the police concern that Rabarison's health and safety required that he be assessed is squarely within the police duty to preserve life and assist victims, including potential victims of crime.

[34] Justifiable Exercise of Police Powers

In my view, ordering someone in Mr. Rabarison's state out of a car to be assessed medically was a rational and entirely reasonable and justified exercise of police powers to protect life. They had the authority to remove him from the car if he did not go voluntarily. By all accounts, his condition appeared life threatening. He was bloodied. The police initially told him that if he was cleared medically, he could go home. They were not then pursuing a criminal investigation.

[35] Consequences of Inaction

One can well imagine the consequences of not doing anything and allowing someone in the accused's condition to remain on his own in a car. What if he died? Or drove? The police did not then know if he was a victim of a crime. Would the police be acting reasonably by walking away from a bloodied man or woman in a car simply because he or she told them to without knowing more, including whether she was a victim of crime and in distress?

[36] Proportionality of Response

The state was not forcing treatment on Rabarison. It was trying to ensure his safety by attempting to persuade him to be seen by EMS and, when that did not work, ordering him to exit the car to be seen by EMS who were present. That was justified and given his refusal, threatening to arrest him and take him to the hospital to be assessed is less severe than, for example, forcibly removing him from the car. It was, in my view, a reasonable and responsible exercise of police powers once persuasion alone failed. And it was only once he was out of the car that the grounds for arrest were formed almost incidentally.

Reasonable and Probable Grounds

[37] Grounds Not Challenged

I turn now to reasonable grounds, only briefly as the grounds are not challenged. The argument is that the grounds were acquired only after ordering Rabarison out of the car, which I have already found was lawful. Nonetheless, the indicia that formed the grounds has some relevance to the issue of the delay in the right to counsel.

[38] Indicia of Impairment

Once ordered out of the car, Huynh observed the accused to be unsteady on his feet. He needed help to walk steadily and to sit. He was disoriented and unable to verbalize well. There was a strong odour of alcohol coming from the car. There was an empty syringe on the floor, in the front of the car he was in. He was inexplicably belligerent, even as they tried to reassure him.

[39] Grounds Established

Once the issue of a diabetic reaction was ruled out, the indicia described amounted to ample and objectively, reasonable grounds to believe the accused was impaired by drugs or alcohol. So there were grounds for an arrest. But there was also a real concern that his health was in serious jeopardy.

[40] Medical Concerns

Once Alkis ruled out diabetes, she was concerned that there might be something medically wrong with the accused internally – perhaps a head injury – due to his behavior in light of the relatively minor facial injuries. He began accusing people of treating him this way due to his race. She and Huynh were trying to convince him to go to the hospital for his own safety, to continue the assessment. She testified she could not ethically leave someone with such a decreased level of awareness unattended medically. She decided he needed to be handcuffed for his own safety. She thought he should be apprehended under the Mental Health Act if he did not voluntarily go to the hospital. She thought he had been arrested under the MHA. They asked his mother to come to the hospital but she refused.

[41] Summary of Motivation

To recapitulate at this point, P.C. Huynh was motivated by a reasonable, legitimate and compassionate concern for the accused's wellbeing when he ordered him out of the car. And it was only when Rabarison exited the car that Huynh acquired the grounds for arresting him for a criminal offence.

Right to Counsel

Delay

[42] Supreme Court Guidance on Immediacy

In Suberu, (para 42), the Supreme Court held that:

To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[43] Delay in This Case

The accused was detained when he was ordered out of the car, shortly after 8:18 a.m. As events unfolded, grounds for arrest were formed and he was arrested at 8:36 a.m. The accused was handcuffed behind his back on arrest and then to the stretcher. He was aggressive and belligerent on scene, and in the ambulance, and at the hospital. They arrived at the hospital at 8:44 a.m. His behavior continued. He was placed in the resusc room. Hospital staff were concerned and directed that he be put in restraints, and blood and urine be taken and various tests be done. They had to cut off his clothes. He was not informed of his right to retain and instruct counsel until 8:54 at the hospital.

[44] Finding on Delay

I accept Huynh's evidence that some delay was necessary as a result of the frenetic events at the scene; namely, the accused yelling, swinging his arms his inexplicable aggression and belligerence following his arrest. I accept that, due to the accused's behavior following his arrest at 8:36 a.m., 8:54 a.m. was the first opportunity Huynh had to advise the accused of his right to counsel in circumstances where he thought the accused would actually hear what he was saying. To require him to inform of his right to counsel earlier would elevate form over function. It would not be heard and would be meaningless. This delay, while lengthy, was necessary both for safety and to ensure the accused was in a position to hear what was being said. However, between his removal from the car at 8:18 and his arrest at 8:36, he was detained and should have been advised of his right to counsel. I do not accept that there was no opportunity then to advise him of his right to counsel in that period. He was seated. He had agreed to have his blood sugar and heart rate checked. He could have, and should have been advised of his right to counsel. There was a breach in that period of time from 8:18 a.m. until his arrest at 8:36 a.m.

Request to Contact Counsel

[45] Onus on Accused

Turning to the major issue in contention: Did the accused ask to speak to his counsel and was his request ignored? The accused has the onus of establishing this on a balance of probabilities.

[46] Evidence Review

A review of the evidence of the accused and P.C. Huynh on this point is necessary. I begin with the accused.

[47] Accused's Testimony - Background

The accused testified that he had a vivid memory of events but, as became obvious in cross-examination that was a significant overstatement. He testified that he was drinking heavily the night before and got into a fight. He did not want to "freak" his mother out so he slept in the car, in front of his house. He did not want anything to do with anyone.

[48] Accused's Testimony - Events

He was woken by EMS. He was soon told to get out of the car to be checked by EMS. He refused. He was told again to get out or he would be arrested. Reluctantly, he got out of the car. He was then seated on his lawn, and then arrested and handcuffed. He became belligerent and aggressive, saying this was all "bullshit". He wanted to speak to his lawyer. He knew from prior dealings with the police to ask for his lawyer. His request was ignored. He was handcuffed and taken to the stretcher. He remained belligerent and was taken to the hospital. He remained aggressive at the hospital and again, asked to speak to his lawyer but did not think he received a reply. Eventually, he stopped asking for a lawyer.

[49] Accused's Cross-Examination - Injuries

In cross-examination, he was asked if he knew he was injured. He replied that - when you get into a fight, you don't know the extent of your injuries but he felt okay and did not think he needed medical attention. He has his own doctor whom he trusts. He agreed that he was agitated.

[50] Accused's Cross-Examination - Medical Events

He did not recall being arrested for drug possession at the hospital, or given his right to counsel there. I note that would have been around the time he was sedated. As for whether he was told the reasons for his arrest, he remembered being told that he would be arrested if he did not see EMS. He testified that he may have been given his right to counsel at roadside, however I note that P.C. Huynh testified that he did not inform the accused of his right to counsel at roadside.

[51] Accused's Cross-Examination - Recollection

He did not remember being asked about syringes or whether he was diabetic, but testified he probably was asked. He did not remember asking the police to take photos of his face, but said he probably did. He did not think the police caused his injuries.

[52] Accused's Cross-Examination - Hospital

When asked if he was more comfortable by the time he was taken to 54 division, he agreed that he felt better by then.

[53] P.C. Huynh's Testimony - In-Chief and Cross

Turning to P.C. Huynh's evidence. In-chief, he testified that he asked the accused to get out of the car and the accused agreed. In cross-examination, he confirmed that he threatened to arrest him if he did not get out of the car. I have already alluded to contradictions in his evidence about when he had grounds to arrest the accused. So P.C. Huynh's evidence is not without its own significant reliability concerns.

[54] P.C. Huynh's Testimony - Scene and Hospital

Huynh testified that while the accused was seated on a chair on the lawn, he arrested him for impaired care or control because he refused to be seen by EMS. He testified that he cuffed him behind his back and then to the stretcher. He testified that the accused was loud and belligerent, but gave no evidence about what the accused said. He testified that while in the ambulance, he continued yelling and saying "a lot of things" and would not listen. He was then placed in restraints. The accused began to relax at the hospital. Huynh did not know if he had been sedated by that point. At 8:54 a.m., P.C. Huynh believed that was the first time the accused was sufficiently quiet such that he could hear and understand the right to counsel. So Huynh again told him he was under arrest for impaired care or control, and read him his right to counsel. When asked if he understood and wished to call a lawyer, he replied "I don't care" to each question. I find it likely that he had just been sedated at that point. In cross-examination, Huynh confirmed the obvious; that the accused did not want to be seen or treated by EMS and did not want to go to the hospital. P.C. Huynh testified that he did not recall the accused yelling for a lawyer at the scene, but conceded it was possible because he may not have heard it in the pandemonium or because he was busy doing other things.

[55] P.C. Huynh's Testimony - Drug Possession Arrest

While at the hospital, Huynh received word that another officer found a second syringe in the car. Huynh searched the accused's pockets and found a white substance that appeared to be drugs. At 9:42 a.m., he arrested Rabarison for possession of a controlled substance and read him his right to counsel. In response to whether he understood, he replied "I don't care" and in response to whether he wished to call a lawyer, he said "I don't care." By that time, he had already been sedated and blood had been taken from him.

[56] Other Police Witnesses

The other police witnesses were asked if they recalled the accused asking for a lawyer and did not; but I put no weight on their evidence as they were incidental officers with vague recollections. P.C. Sirbos did not recall having any conversations with the accused on scene. He did not recall the accused being arrested and did not recall what interactions Huynh had with the accused. He did not recall the accused asking for a lawyer. He does recall Huynh arresting the accused at the hospital and giving him his right to counsel, but did not recall his reply. P.C. Papatheodorou arrived at the hospital to transport the accused to 54 division. He had no discussion with the accused about counsel. Neither did P.C. El Halibi, who arrived at the hospital to replace Huynh.

Findings

[57] Credibility Assessment - Accused

In my view, while the accused's behavior that night was belligerent and aggressive, as a witness, I found him largely truthful. He seemed to think about his answers carefully; he conceded matters that did not put him in a positive light; he identified that which he could not remember; and he agreed with most of the Crown's evidence. He was somewhat unreliable with respect to some matters as evidenced by his admissions as to what he could not recall but he, otherwise, presented as an honest witness.

[58] Finding on Request for Counsel

So to reject his evidence with respect to repeatedly requesting counsel, I am left to find he was an honest witness, except on this issue and there is no basis to do so. The reliability concerns I have do not extend to his evidence that he requested counsel at least once, and possibly twice. On this critical issue, he was certain that he had been asking for his counsel; more certain than P.C. Huynh was that he did not.

[59] Credibility Assessment - P.C. Huynh

Huynh's evidence was vague and confused in certain important respects, as I have already indicated. Did he have grounds to arrest the accused for impaired care or control before the accused exited the car or did he not? He said both and, when that was probed, his answers not only changed, they remained confused and contradictory. With respect to whether the accused asked for counsel, he said he did not. He then said he did not recall, and then said it was possible and he missed it in the frenzied scene that existed. He was an honest witness but, his evidence causes reliability concerns. The Crown asks: Why would Huynh, who was so genuinely concerned for the accused's wellbeing, ignore his request to speak to counsel? But as the defence points out, this was his first impaired case; he never made a blood demand and was materially contradictory in his evidence. Further, the accused demanding to speak to his lawyer is consistent with the belligerent way he was behaving that night, at least until he was sedated. So there are circumstances both ways but, in the end, I tip the balance slightly toward the accused on this point in light of what I perceive to be his honest answers and the vague, contradictory evidence in response.

[60] Finding on Request for Counsel - Balance of Probabilities

I find he has met his onus and has established on the balance of probabilities that at roadside, he asked to speak to counsel and his request was ignored. He may have asked a second time but that is not clear. What is established is that after his initial request was ignored, he gave up and was eventually sedated.

Section 24(2)

[61] Nexus Between Breach and Evidence

There is a significant contextual and temporal connection between the breach of Rabarison's right to counsel and the taking of the blood at the hospital. While the blood was taken by hospital staff for medical purposes, and only obtained by the police pursuant to a Production Order, the denial of the right to counsel may have impacted the events at the hospital and the taking of the blood. That is enough of a nexus that the admissibility of the results of the blood ought to be determined in accordance with s. 24(2) of the Charter. (See R v. Pino.)

[62] Purpose of Section 24(2)

In considering whether to exclude evidence under s. 24(2), it is important to remember the purpose of s. 24(2).

[63] Purpose of Exclusion

As Paciocco and Stuesser write in the "Law of Evidence" write (p. 631):

[T]he purpose of section 24(2) exclusion is to protect the integrity of, and promote public confidence in the justice system. Section 24(2) is concerned with the damage that admitting unconstitutionally obtained evidence could do to the repute of the administration of justice, "by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from that unlawful conduct." Exclusionary decisions are therefore prospective in that they are meant to avoid the further damage that admission would cause. Evidence is not excluded to punish the police or to compensate the accused. Indeed, it is not excluded to deter improper police conduct; deterrence, if it occurs, is a happy side consequence, not a goal to be achieved when deciding whether to exclude.

[64] Grant Factors

Turning to the three Grant factors.

Seriousness of the Charter-infringing Conduct

[65] Range of Conduct

There is a range of conduct that could amount to a breach of the Charter from deliberate and egregious at one end to merely technical or done in good faith at the other. Were there extenuating circumstances at play?

[66] Delay in Right to Counsel - Mitigation

There are two aspects of the breach of the right to counsel in this case. The delay advising Rabarison of his right to counsel on detention, and the failure to facilitate his request to contact counsel. P.C. Huynh ought to have advised the accused of his right to counsel when he detained him initially. I do note that prior to arresting him, and while Rabarison was indeed detained, Huynh was pre-occupied with trying to determine whether the accused was in medical crisis. That mitigates the seriousness of the Charter-infringing conduct.

[67] Failure to Facilitate Request - Unintentional

Turning to the failure to implement the accused's desire to speak to counsel upon arrest. While the accused has met his onus, I also accept that the conduct of P.C. Huynh was unintentional and inadvertent. Due to the chaotic events on scene following the arrest, caused by the accused's belligerence and aggression, Huynh honestly did not hear the accused ask for counsel among the yelling. Huynh was also actively trying to provide assistance to someone in apparent need, who was being extremely difficult and seemed to be in medical distress. This was not a deliberate attempt to ignore or circumvent the right to counsel. It was not an officer who was unaware of his Charter obligations. It was an officer dealing with an accused who was yelling, belligerent, in medical distress and was trying to have him assessed medically. It was in that context that he did not hear the accused ask for his lawyer. There is no need for the Court to distance itself from this type of police conduct. This Charter-infringing conduct was not serious.

[68] Seriousness Finding

The seriousness of the Charter-infringing conduct that occurred is low and favours admission of the evidence.

[69] Unlawful Request for Extra Blood

I add that Huynh's request to hospital staff to take an extra vial of blood, if successful, would have been unlawful and a further and serious breach of the Charter. Fortunately, that did not occur due to the hospital staff's refusal.

The Impact upon Rabarison's Charter-protected Interests

[70] Impact Analysis and Taylor Application

I turn now to the impact of the breach upon Rabarison's Charter-protected interests. This is a bit of a speculative exercise in this case. The blood was taken at the direction of hospital staff for medical purposes. The accused was clear that he did not want medical assistance. He has that right and he was actively trying to assert his right. The medical professionals felt he was not competent to make such decisions. As Dr. Stefnacki testified, hospital staff presume that a sane, competent person would want treatment to save their lives unless told otherwise by a competent person. They were not prepared to accept the accused's assertions or protestations, believing he was not in a competent state of mind. Shortly thereafter, he was sedated and his blood was drawn. Access to counsel could have assisted him in asserting his right. It is also possible however that his communications with counsel would have been meaningless or limited due to his state at the time. The latter scenario is more speculative in my view. Put simply, Rabarison did not want treatment and did not want to go to the hospital. His request for counsel was not facilitated. Thereafter, he was sedated and blood was taken, and other measures taken without his consent. While there is no guarantee his request to consult counsel would have changed the course of events, it well might have. It is my view there was a significant impact on his Charter-protected interests in this case. Unlike to Culotta, 2018 ONCA 665 case, in this case, we have an accused who has asserted his desire to speak with counsel, and we have a pretty good idea of what he would have done had he been told of his right to refuse treatment. Moreover, the Supreme Court of Canada's decision on R. v. Taylor, 2014 SCC 50 at para 40-41, is helpful. Taylor was arrested for impaired operation. He was injured and asked for counsel but his request was never facilitated. He was taken to the hospital where blood was taken for medical purposes. The police asked and obtained further blood samples be taken for investigative purposes as well. The trial judge excluded the blood for samples taken by the police for investigative purposes, but admitted, as evidence, the toxicological analysis of the blood taken for medical purposes. The Supreme Court held that all the results should have been excluded, writing:

Moreover, the impact of the breach on Mr. Taylor's Charter-protected interests was serious. Arrested individuals in need of medical care who have requested access to counsel should not be confronted with a Hobson's choice between a frank and open discussion with medical professionals about their medical circumstances and treatment, and exercising their constitutional right to silence. The police placed Mr. Taylor's medical interests in direct tension with his constitutional rights. His legal vulnerability was significant, and, correspondingly, so was his need for his requested assistance from counsel.

[41] There is no need to speculate about the advice Mr. Taylor might have received had he been given access to counsel as he requested, such as whether he would have refused to consent to the taking of any blood samples for medical purposes. It is clear that the denial of the requested access had the effect of depriving him of the opportunity to make an informed decision about whether to consent to the routine medical treatment that had the potential to create — and in fact ultimately did create — incriminating evidence that would be used against him at trial. The impact of the breach on Mr. Taylor's s. 10(b) rights was exacerbated when Mr. Taylor was placed in the unnecessarily vulnerable position of having to choose between his medical interests and his constitutional ones, without the benefit of the requested advice from counsel. Mr. Taylor's blood samples, taken in direct violation of his right to counsel under s. 10(b), significantly compromised his autonomy, dignity, and bodily integrity. This supports the exclusion of this evidence. As this Court said in Grant, "it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's . . . bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability" (para. 111).

This factor strongly favours exclusion.

Societal Interest

[71] Reliability and Merits

Finally, there is a strong societal interest in ensuring that those charged with criminal offences have their guilt or innocence determined on the merits. Breaches which undermine the reliability of the evidence adduced are more likely to be excluded under this consideration. There is no suggestion that the breath results obtained were unreliable. This consideration militates toward admitting the evidence.

[72] Balancing and Conclusion

In the end, balancing what occurred this day, with the purpose of the provisions of the Charter and the Grant analysis, while close, in my view, the balance tips towards excluding the evidence. In the long term, denying someone access to counsel who is seeking counsel and is in a vulnerable position and who end up spending nine hours in the hospital and evidence is obtained in circumstances where he sought to refuse and asserted his right to refuse, tips the balance in favour of excluding the evidence.

Released: May 8, 2019

Signed: "Justice Borenstein"