ONTARIO COURT OF JUSTICE

CITATION: R. v. Sillars, 2019 ONCJ 57

DATE: 2019 02 01

COURT FILE No.: Central East Region: Oshawa Courthouse 18-00265-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DAVID SILLARS

Before Justice Peter C. West

Heard on October 17, 18, 22, 23, 24, and 26, 2018 November 1, 2, 5, and 6, 2018 Oral Submissions heard on November 19, and 26, 2018; Reasons for Judgment released on February 1, 2019

Mr. F. Giordano................................................................ counsel for the Crown Mr. J. Rosenthal, Mr. Wm. Thompson..... counsel for the defendant David Sillars

WEST J.:

[1] On April 7, 2017, at 6:58 pm, David Sillars provided a breath sample into an approved screening device and registered a fail. He was a patient in the Emergency Department at South Muskoka Memorial Hospital (SMMH) in Bracebridge, as a result of a canoe capsizing on the Muskoka River. As a result of the ASD fail he was arrested for operating a vessel with more than 80 mg of alcohol in 100 mL of blood and impaired operation of a vessel. He was read his right to counsel by Sgt. Allison and a caution. When the 1-800 number was called a duty counsel answered immediately and Sgt. Allison decided to allow Mr. Sillars to speak to duty counsel before he read the formal breath demand pursuant to s. 254(3) of the Criminal Code. After Mr. Sillars was finished speaking to duty counsel, Sgt. Allison read the breath demand at 7:15 pm. The Intoxilyzer 8000C was brought from the OPP detachment and was ready to receive breath samples around 7:43 pm after the diagnostic test, calibration test and self-test were completed. At 7:44 pm, Sgt. Allison re-read the breath demand to Mr. Sillars. He did not read a secondary caution to Mr. Sillars prior to receiving the first breath sample into the approved instrument.

[2] Prior to the first breath test Mr. Sillars became upset and loud and said three sentences to Sgt. Allison. Mr. Sillars then provided the first breath sample just prior to 7:47 pm, which registered a reading of 97 mg of alcohol in 100 mL of blood. Sgt. Allison spoke to Mr. Sillars between the two breath tests and asked a series of questions and Mr. Sillars provided answers to these questions. Sgt. Allison recorded the questions and answers on the Alcohol Influence Report (AIR). Some of the questions were pre-printed on the AIR and Sgt. Allison testified he recorded the answers verbatim. Sgt. Allison agreed other questions and answers were not verbatim but were the gist of what was said. Sgt. Allison agreed in cross-examination that he did not write down every question and answer or the entirety of the conversation.

[3] Normally the breath tests would be conducted at the OPP detachment where the breath room was equipped with audio/video recording equipment and the entire interaction between the qualified breath technician and the person providing breath samples would be recorded. These breath tests and the interaction between Sgt. Allison and Mr. Sillars took place in Trauma Room 2 in the Emergency of SMMH. There was no recording equipment at the hospital and Sgt. Allison testified the OPP did not have any portable recording equipment to bring to the hospital. The evidence disclosed that Bracebridge OPP, as a result of this case, now has a portable camera for use in this type of situation.

[4] The defence are challenging the voluntariness of the utterances made by Mr. Sillars and the answers given by Mr. Sillars to questions posed by Sgt. Allison between the two breath tests in Trauma Room 2. The onus is on the Crown to prove voluntariness beyond a reasonable doubt. It was agreed by all counsel that a separate voir dire would occur during the evidence of Sgt. Allison to focus the examination in-chief and cross-examination respecting Mr. Sillars’ statements made to Sgt. Allison. It was agreed by counsel that any other police officer who had contact with Mr. Sillars would be questioned on the issue of voluntariness during their evidence as part of the blended hearing dealing with the many Charter applications alleging Charter breaches.

[5] The defence submitted Sgt. Allison should have read Mr. Sillars a secondary caution before questioning him during the breath tests as Mr. Sillars might very well have believed he was required to answer Sgt. Allison’s questions because they were part of the compulsory breath testing. Mr. Rosenthal pointed to Sgt. Allison’s evidence that after re-reading the breath demand he advised Mr. Sillars is was an offence to refuse to provide a breath sample. The defence pointed out Sgt. Allison did not record any response from Mr. Sillars as to whether he understood the first caution he was read. The defence also reiterated the difficulties demonstrated in Sgt. Allison’s problematic note-taking and argued Sgt. Allison’s credibility and reliability was a factor in deciding whether Mr. Sillars’ statements/utterances were voluntary.

[6] The Crown submitted the leading case addressing the issue of voluntariness is R. v. Oickle:[^1] were the statements/utterances made by Mr. Sillars the product of an operating mind, were the statements made by Mr. Sillars made freely and voluntarily. The Crown argued every case turns on its own unique facts and the circumstances surrounding the facts in this case demonstrate any statements made by Mr. Sillars to Sgt. Allison were made freely and voluntarily and were the product of an operating mind. Mr. Sillars was read a caution, the wording was clear, he spoke to duty counsel and received legal advice. Further, Mr. Sillars provided very similar statements to other police officers prior to his being detained where the defence conceded the statements were made voluntary.

The Law Respecting Voluntariness

[7] The onus to prove Mr. Sillars’ statements to Sgt. Allison is on the Crown and the voluntariness must be proved beyond a reasonable doubt. "Voluntary" means the defendant made a free choice to speak, rather than having his/her will overborne by threats or promises, oppressive circumstances or a lack of an operating mind. "Voluntary" can also mean the absence of police trickery that unfairly denies the defendant his or her right to silence or which is of such a nature that it would shock the community.[^2]

[8] With respect to the potential influence of threats or promises, the concern is that these could create a hope in a defendant that there would be some advantage gained by making a statement.[^3] However, not every promise vitiates voluntariness: as the Supreme Court has instructed, the existence of a quid pro quo is the most important consideration.[^4]

[9] Mr. Rosenthal provided a number of cases in which statements by a defendant to a breath technician have been ruled inadmissible when obtained in the shadow of an approved instrument breath testing procedure on voluntariness grounds. Justice Hill in R. v. Pomeroy,[^5] summarized the concern expressed in these cases as follows:

It is said, whether in terms of oppression or compulsion, the exercise of the right to choose freely whether to speak or not is, unintentionally or by design, easily confused or overborn by the co-existing compulsion to provide breath samples thereby rendering the utterances involuntary in the absence of a timely caution.

[10] These cases seem to suggest that the breath technician before eliciting statements from a defendant is obliged to re-caution or provide a secondary caution. However, while this concern must be something to consider when determining whether the Crown has established voluntariness, it would be incorrect to read these cases as establishing categorical rules that must be rigidly applied. This was addressed by the Supreme Court in Oickle:[^6]

... The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

[11] Timms J. in R. v. Kruszewski,[^7] held there was no hard and fast rule requiring the breath technician to re-caution or provide a secondary caution to a subject:

…There is no absolute requirement that breath technicians re-caution accused persons prior to asking the questions in the Alcohol Influence Report. However, failure to do so may well result in an adverse finding and the exclusion of the answers thereto.

[12] Consequently, this issue must be determined on a case-by-case basis having regard to the circumstances of each case, such that a finding of involuntariness does not automatically arise from a failure to re-caution by the breath technician.

Analysis

[13] Every police officer who dealt with Mr. Sillars testified they did not threaten him or offer him inducements or promises to provide a statement. On the evidence led by the Crown it is clear when Mr. Sillars was found wandering on the Hwy 117 ramp to Hwy 11 the officers who found him were only concerned about getting him medical treatment to address what they believed was hypothermia. PC Maki spoke to Mr. Sillars after he was assisted by the medical staff in the Emergency and it was conceded by the defence PC Maki did not threaten, induce or promise anything to Mr. Sillars. His brief interaction with Mr. Sillars did not create any atmosphere of oppression. Mr. Sillars’ was not under detention when he was spoken to by PC Maki. Further, PC Baril was present when Mr. Sillars spoke to Ms. Hooper and overheard and noted what Mr. Sillars said to Ms. Hooper. He did not ask any questions and did not say anything to Mr. Sillars that could be viewed as a threat, inducement or promise. These statements/utterances by Mr. Sillars were conceded by the defence to be voluntary. The comments made in the ambulance that were noted by the paramedic, Cameron Perkins, were conceded to have made voluntarily by Mr. Sillars.

[14] The defence are not alleging that Sgt. Allison made any threats, inducements or promises to Mr. Sillars to get him to answer the questions asked by Sgt. Allison. Further, Sgt. Allison on the evidence did not engage in any trickery to get Mr. Sillars to make statements contrary to his interest. The defence did not suggest Sgt. Allison created an atmosphere of oppression when he was conducting the breath tests. In fact, the only evidence as to the nature of the interactions between Sgt. Allison and Mr. Sillars came from Sgt. Allison, in both his evidence in-chief and in cross-examination that he and Mr. Sillars were cordial and polite with each other. There was no animosity or anger displayed by either Sgt. Allison towards Mr. Sillars or vice versa. I have already drawn the reasonable inference based on the evidence concerning Mr. Sillars and Sgt. Allison’s interactions that they were not at odds with each other, they were non-confrontational and that they got along with each other despite the difficult circumstances.

[15] I accept Sgt. Allison’s evidence he read Mr. Sillars the standard caution from the pre-printed card he carried:

You are charged with impaired operation of a vessel and operating a vessel with over 80 milligrams of alcohol. You are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. Do you understand?

[16] Sgt. Allison did not note and does not recall Mr. Sillars’ response to whether he understood the caution. I agree with the Crown’s submissions concerning the wording of the standard police caution being clear and easily understood. I have no doubt Mr. Sillars understood from the caution Sgt. Allison read that he was under no compulsion to answer questions or say anything to the police but if he did it may be given in evidence. There was no evidence before me that Mr. Sillars was confused or under the mistaken belief he was required to answer the questions put to him by Sgt. Allison because they were part of the breath tests. Mr. Sillars did not testify on the voir dire, which was his right, however, I do not know what was going through his mind when Sgt. Allison was asking him questions. Mr. Sillars certainly appeared to understand Sgt. Allison’s directions concerning his providing a breath sample into the ASD and into the approved instrument. There was nothing in the evidence to suggest Mr. Sillars had any language, capacity or comprehension difficulties that would have prevented him from understanding the caution.

[17] The questions themselves also reflect that Sgt. Allison was not creating an atmosphere of oppression during the questioning or that he was overbearing Mr. Sillars’ will.

[18] On the fourth page of the Alcohol Influence Report (AIR) there is a heading: Remarks and Notes. The first eight lines of writing by Sgt. Allison were redacted on agreement by counsel and I do not know what was written there concerning Mr. Sillars. Following those eight line there are three sentences said by Mr. Sillars:

Couldn’t get to the bucket. We went against the yellow barrier. He leaned over and it flipped.

[19] The AIR then indicated Mr. Sillars was talking loudly when he said these three sentences and began to cry. PC Baril entered Trauma Room 2 and indicated Mr. Sillars had to keep it down as his voice could be heard in the general area of the Emergency. Mr. Sillars calmed down and provided the first breath sample, which was received into the Intoxilyzer 8000C. Sgt. Allison wrote in the AIR “Good blow” after these three sentences, which leads to the reasonable inference the three sentences were said just before Mr. Sillars provided his first breath sample. The result of the first breath sample was 97 mg of alcohol in 100 mL of blood.

[20] It was argued by the defence there were two versions provided by Sgt. Allison in his evidence respecting these three sentences said by Mr. Sillars. In chief Sgt. Allison seemed to suggest these three sentences, “Couldn’t get to the bucket. We went against the yellow barrier. He leaned over and it flipped,” were in response to the question in the pre-printed portion of the AIR, “Where were you going?” However, in cross-examination Sgt. Allison testified he was incorrect earlier as these three sentences were said by Mr. Sillars without his being asked any question by Sgt. Allison before the first sample of breath was received into the approved instrument. In examining the totality of evidence on this issue I accept Sgt. Allison’s evidence these three sentences were said by Mr. Sillars prior to the first breath sample provided by Mr. Sillars. This accords with common sense and logic having regard to two pieces of evidence. First, Sgt. Allison noted Mr. Sillars became loud and began to cry when he said these three sentences and PC Baril stepped into Trauma Room 2 to advise Mr. Sillars that he could be heard outside. This was confirmed by PC Baril in his evidence. Second, right after Mr. Sillars calmed down Sgt. Allison noted, “Good blow,” which clearly refers to the first attempt by Mr. Sillars to provide a suitable sample of his breath, which he did by providing a “good blow.” Further the times indicated the other portions of Mr. Sillars’ statements/utterances were made between the first and second breath samples.

[21] Mr. Rosenthal submitted Sgt. Allison re-read the breath demand and then advised Mr. Sillars it was an offence to refuse to provide the breath samples. It is my view this comment by Sgt. Allison would not have caused Mr. Sillars to have the mistaken belief he had to answer Sgt. Allison’s questions. In fact, Mr. Sillars had initially been hesitant in providing a breath sample into the ASD and said to Sgt. Allison, “Won’t this get me in trouble?” and Sgt. Allison advised him very clearly the ASD demand was a lawful demand and to refuse to provide a sample of breath was an offence. Further, the breath demand pursuant to s. 254(3) is very clear what it required Mr. Sillars to do:

I demand that you provide suitable samples of your breath into an approved instrument to enable an analysis to be made to determine the concentration, if any, of alcohol in your blood and that you accompany me for this purpose. Do you understand?”

The breath demand says nothing about Mr. Sillars being required to answer questions asked by Sgt. Allison. In my view the plain and ordinary meaning of the words in the standard breath demand are very clear.

[22] Sgt. Allison provided an explanation for why he did not read a secondary caution or re-caution to Mr. Sillars before the breath tests. In the circumstances of this case he was the officer who arrested Mr. Sillars and he was the officer who was the qualified breath technician and in those circumstances he did not believe it was necessary to read a secondary caution or re-caution Mr. Sillars. Further, the defence conceded that no other officer who had contact with Mr. Sillars had threatened, promised or induced Mr. Sillars. There was no need for Sgt. Allison to say if any other officer had threatened, promised or induced Mr. Sillars he was not to be influenced by that because it was conceded it had not occurred.

[23] In my view a significant circumstance to consider in deciding whether the statements made by Mr. Sillars were voluntary was that before the breath samples were taken Mr. Sillars spoke to duty counsel and was provided legal advice concerning the charges he was facing. There are regular protocols and procedures used by the police when they are obtaining breath samples from a person charged with over 80 and impaired operation that duty counsel or a private lawyer would provide advice in respect of. It is my view these procedures would not change having regard to whether the police were investigating the operation of a vessel or a motor vehicle.

[24] A further circumstance in this case was that Mr. Sillars provided very similar information to other persons in authority prior to his arrest and detention and subsequent to being charged with over 80 and impaired operation of a vessel causing death when he was overheard by PC Baril speaking to Ms. Hooper. Here are the statements or utterances by Mr. Sillars conceded by the defence to be voluntary.

1. Statements to MacDonald and Coles by David Sillars

When the officers first approached Mr. Sillars he said he needed help that someone was still in the water. He told the officers he was in a canoe with a friend’s son and they went down the river to get a blue bucket. It was learned the son’s name was Thomas and he was a young boy, eight years old. Mr. Sillars told the officers Thomas was wearing a life jacket. Mr. Sillars said he tried to get to Thomas but he was floating away. He told the officers they were down the river by the yellow markers.

2. Statements to Cameron Perkins EMS paramedic

In the ambulance, Cameron Perkins, one of the paramedics testified he understood from Mr. Sillars that he had been in a canoe on the river, it had flipped and he was able to get to shore but the other occupant of the canoe was not.

3. Statements to PC Maki

PC Maki could not recall the exact questions he asked but he was basically asking what had happened. Mr. Sillars said he was paddling a canoe to get a blue barrel that he had seen. He said “it was stupid, it was stupid” that he took Thomas, a child with him, to get the blue barrel and that the canoe flipped over. He indicated he was able to swim to the shore but Thomas wasn’t able to. PC Maki remembered Mr. Sillars indicating that Thomas was yelling for help but he couldn’t help him and that he saw Thomas get taken further down the stream. Mr. Sillars told PC Maki he believed he may have blacked out. He didn’t know how long he was in the water or how long he was out of the water.

4. Statements by Sillars to Ms. Hooper overheard by PC Baril

PC Baril spoke to Ms. Hooper before they both entered the hospital room Mr. Sillars was in. They hugged and Ms. Hooper said to Mr. Sillars, “My baby is dead.” Mr. Sillars responded, “I tried to get to him. The canoe tipped. I couldn’t see him anymore. I don’t remember anything else. I remember being at the hospital and that’s it.” They were sitting together on the bed Mr. Sillars was in, crying and holding onto each other. At one point Mr. Sillars said, “Turned the canoe sideways and it flipped.” Later Mr. Sillars said “He (referring to Thomas) reached over and the canoe flipped.”

[25] As can be seen Mr. Sillars’ statements/utterances to Sgt. Allison were really just an elaboration of what he had already told other police officers, the EMS paramedic and Ms. Hooper, overheard by PC Baril. It is my view this is an important circumstance in deciding whether Mr. Sillars’ statements were voluntary or whether he felt coerced into making them because they were asked by Sgt. Allison between the two breath tests. As I have found the first three sentences were said by Mr. Sillars before any breath samples were provided and without Mr. Sillars being asked a question. What he said was said spontaneously and in my view was said voluntarily and Mr. Sillars chose to speak freely.

[26] Sgt. Allison set up the Intoxilyzer 8000C from the time it arrived at the hospital at 7:20 pm until 7:43 pm when it was ready to receive the first sample of Mr. Sillars’ breath. This was done in the presence of Mr. Sillars in Trauma Room 2.

[27] The Alcohol Influence Report was marked as Exhibit 1 on the voir dire. It has a series of pre-printed questions, which Sgt. Allison indicated he asked and he noted Mr. Sillars’ answers. There were a number of questions that Sgt. Allison did not ask because in his view they were not applicable and N/A was ticked off. A number of the questions and answers dealing with personal matters and medical issues pertaining to Mr. Sillars were redacted on the AIR on agreement by counsel. The pre-printed questions were asked after the first breath sample was received by the instrument and before the second breath sample was obtained. There were:

Q: “Were you operating a vessel?” A: “yes”? “It was a canoe.”

Q: “Who else was in the vessel?” A: “Just Tom.”

Q: “Where were you going?” A: “To get the blue barrel.”

Q: “Where did you start from?” A: “The cottage.”

Q: “Have you been drinking alcohol?” A: “Yes.”

Q; “What quantity?” A: “Two.”

Q: “And what type of alcoholic beverage have you been drinking?” A: “Coolers. I don’t drink beer.”

Q: “Where were you drinking alcohol?” A: “The cottage on the river, which was 200 metres from the locks.”

Q: “Were you drinking at a liquor licence establishment?” A: “No.”

[28] Mr. Sillars asked again about Thomas and Sgt. Allison advised him that Thomas went over the falls and had died as a result. Mr. Sillars wanted to speak to Jessica Hooper but Sgt. Allison was told him this was not an appropriate time to allow him contact with Ms. Hooper. This request by Mr. Sillars to see Ms. Hooper was also noted in the nurses’ notes by the night nurse sometime after 7:30 pm and noted OPP denied Mr. Sillars’ request (Exhibit 13, p. 23).

[29] Sgt. Allison then noted below the note that Mr. Sillars asked about Tom on page 4 of the AIR the following question and Mr. Sillars’ answer:

Q: “How long were you in the water before you flipped?” A: “10 minutes. He called for me. The current was so fast and powerful. By the time I hauled myself out and ran to the highway, it was 20 minutes.”

19:54 “There was a long branch. I had no lifejacket. I stripped my boots and my jacket. I think he went under the yellow barrier. I said fuck this. The current is so great. We tried to go back. We were sideways. He leaned and we tipped. I tried to get canoe upright but it kept filling with water. I tried, I tried, I tried. I almost gave up and went under. It was that close. I had my jacket and boots on. I should know better. I thought to swim after him but he had a lifejacket, so I went to call 911. Oh, fuck,”

20:09. “It’s my fault.”

[30] At this point Sgt. Allison testified it was almost time for the second breath test to be taken. Mr. Sillars advised he really had to urinate and the nurse came and assisted him using the bottle while he lay in his bed. The nurses’ note indicated he urinated at 8:10 pm. The second breath test was commenced at 10:12 pm. When Sgt. Allison said, “Blow in there” referring to the mouthpiece, Mr. Sillars said in a joking fashion, “That’s what she said.” Sgt. Allison testified Mr. Sillars had been upset for most of the conversation but made this joke when Sgt. Allison said to blow into the mouthpiece. I do not take anything from Mr. Sillars comment other than his comment to Sgt. Allison was likely a release of tension. The result of the second breath test was 100 mg of alcohol in 100mL of blood.

[31] The above statement by Mr. Sillars was not recorded verbatim, rather, Sgt. Allison testified he wrote down as close as he could to verbatim but it was not completely verbatim.

[32] At one point the defence seemed to be arguing they were challenging the voluntariness because Sgt. Allison did not record the statement or write it down verbatim. This argument was not really made during oral submissions. The defence did not provide any written submissions respecting the admissibility of Mr. Sillars’ statements to Sgt. Allison but made oral submissions based on the line of cases discussed above. In my view the comments by Justice Nordheimer in R. v. Culotta,[^8] provides the answer respecting the lack of audio or video recording:

I also reject the appellant's suggestion that the voluntariness of her statement is, in some fashion, suspect because it was not audio or video recorded. The suggestion that this ought to have happened in this case ignores the reality of the location where the statement was taken -- a hospital emergency department. It is unrealistic to expect audio or video recordings to be made in that context. Reducing the statement to writing, and having it reviewed and acknowledged by the appellant, was the realistic and appropriate way to record her statement. I would add, on this point that non-recorded interrogations are not inherently suspect: Oickle, at para. 46.

[33] I do not believe Sgt. Allison had Mr. Sillars read over what he had written on his AIR, however, it is my view this is not fatal to a determination that his statements/utterances were voluntary. I discussed in my judgment addressing the Charter applications the concerns surrounding Sgt. Allison’s problematic note-taking particularly concerning the right to counsel. It is my view when Sgt. Allison was making notes in the pre-printed Alcohol Influence Report his note-taking was of a much greater quality and detail.

[34] It is my view on the totality of the evidence and for the reasons indicated above that the Crown has satisfied me beyond a reasonable doubt that Mr. Sillars statements/utterances to Sgt. Allison just before the first breath sample was provided and between the first and second breath samples were voluntary and made with an operating mind. I find he was not coerced or compelled and he made these statements freely and voluntarily. The breath demand only indicated it was compulsory to provide breath samples into an approved instrument.

Released: February 1, 2019

Signed: Justice Peter C. West

[^1]: R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38. [^2]: See R. v. Oickle, supra, and R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500. [^3]: Ibid. at para. 49. [^4]: Ibid. at paras. 51 & 57. [^5]: R. v. Pomeroy, [2004] O.J. No. 5940 (Hill J. SCJ). [^6]: R. v. Oickle, supra, at para. 47. [^7]: R. v. Kruszewski, [2004] O.J. No. 3857 (Timms J., SCJ), at para. 53. This was cited with approval by Hill J. in R. v. Pomeroy, supra, at para. 29. [^8]: R. v. Culotta, 2018 ONCA 665, [2018] O.J. No. 3946 (C.A.), at para. 23.