ONTARIO COURT OF JUSTICE

CITATION: R. v. Sillars, 2019 ONCJ 58

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

Evidence 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.:

Introduction

[1] David Sillars is charged with impaired operation of a vessel causing death; operating a vessel with over 80 mg alcohol/100ml blood causing death; dangerous operation of a vessel causing death and criminal negligence causing death. He seeks exclusion of breath tests results, blood sample analysis, and statements to the police on the grounds his Charter rights were violated and the admission would bring the administration of justice into disrepute.

[2] These are my reasons respecting the defence Charter applications. It was agreed by both parties that the evidence respecting the Charter applications respecting the admissibility of the breath test results and the blood sample analysis should be by way of a blended hearing. With respect to whether Mr. Sillars’ statements to Sgt. Allison during the breath sample tests were voluntary it was agreed this application would be by way of a separate voir dire during Sgt. Allison’s evidence, however, the evidence of other officers who had dealings with the defendant could be addressed during their evidence on the trial proper.

[3] Finally, although a separate Garofoli application was not brought by the defence, the issue of the “facial” validity of the warrant and Information to Obtain sworn by Constable MacDonald of the OPP, to seize David Sillars’ hospital records and a sealed blood vial, which were located at the South Muskoka Memorial Hospital, was raised in the Application, Form 1 providing notice under Rule 2.2 Criminal Rules of the Ontario Court of Justice. The evidence relating to this application was agreed, by the parties, to be heard in the same blended hearing.

[4] Before addressing the various Charter applications by the defence I will first set out the basic facts.

Factual Background

[5] On April 7, 2017, David Sillars was spending time at a friend’s cottage on the Muskoka River in Bracebridge, Ontario. He was at the cottage around 12:30 pm with his friend Jack Kapel relaxing. A friend of Mr. Kapel’s, Michael White, who lived on the river, dropped by for a beer.

[6] Sometime later Mr. Sillars’ girlfriend, Jessica Hooper, arrived at the cottage with her two sons, aged eight and six years of age.

[7] As observed by Mr. Kapel and another friend, Michael White, Mr. Sillars consumed at least one cooler while he was at the cottage and Mr. Sillars was also observed by Mr. Kapel to smoke a marihuana cigarette before anyone else arrived.

[8] At some point in late afternoon, Mr. Sillars went down the Muskoka River in a canoe with Ms. Hooper’s son, Thomas, aged eight.

[9] The cottage where Mr. Sillars was staying was just east of the Highway 11 Bridge, which goes over the Muskoka River in Bracebridge. High Falls is a short distance west of the Highway 11 Bridge. There is a yellow floating barrier of buoys stretching across the Muskoka River, just before High Falls, floating on the water and warning of the danger associated with the water falls. The markers have written on them “Dam Ahead – Keep Away.” The markers are there as a warning to boaters to keep away and to catch debris before it clogs up the dam. High Falls can be seen before arriving at this barrier.

[10] The evidence disclosed that the Muskoka River was swollen and very high because of the spring run-off from the winter. The air temperature was 4 or 5 degrees Celsius. The water temperature was described as extremely cold. There was snow and ice still melting on the land around the Muskoka River. The current was described as extremely fast moving having regard to the water level and the spring run-off. Witnesses described its current as being very strong and one could see swirls of water, which indicated the strength and speed of the current. High Falls was quite turbulent and rocks, which would normally be exposed in later months were not visible because of the increased quantity of water going over the falls. In two of the photographs, Exhibit 8D and 16-12, taken April 8, 2017, pieces of ice can be seen floating in the Muskoka River below the High Falls. Exhibits 1A and B show the Muskoka River overflowing its normal high water mark by Mr. Kapel’s cottage, where Mr. Sillars out from in the canoe.

[11] At 5:29 pm, dispatch reported to OPP officers patrolling in the area that a man believed to be intoxicated was stumbling around in the live onramp from Highway 117 on to the northbound lanes of Highway 11.

[12] Constables MacDonald and Coles were very close to where the man was stumbling and staggering and they arrived at that location within 30 seconds. It was quickly determined by these officers that Mr. Sillars was suffering from hypothermia, as he was completely wet, shivering and barely able to talk. EMS was called and the officers attempted to warm him up in the back of their police SUV cruiser.

[13] Mr. Sillars said his friend’s son had been with him in a canoe and they were on the river going to get a blue bucket. He indicated the canoe had tipped or capsized. He did not know where the son was but he was wearing a lifejacket. Constable MacDonald got on his radio and requested other units attend to look for the son.

[14] It was learned the son’s name was Thomas and he was a young boy. 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. The defence agreed Mr. Sillars’ utterances to Constables MacDonald and Coles at the roadside and in the police cruiser before his care was transferred to the paramedics were voluntary.

[15] Throughout his dealings with Mr. Sillars at the roadside, Constable MacDonald testified he was only concerned about Mr. Sillars’ well-being and had no intention to investigate him for any criminal offences. There was no plan to go with the ambulance when it arrived to keep watch over Mr. Sillars.

[16] Once the ambulance arrived Mr. Sillars was placed on a stretcher and his wet clothes were removed and he was wrapped in blankets. The paramedics left with Mr. Sillars for South Muskoka Memorial Hospital. No police officer went in the ambulance or followed the ambulance to the hospital.

[17] 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. The ambulance arrived at the hospital at 5:51:49 pm and care was transferred to the Emergency staff at 5:54 pm. Again, the defence agreed any utterances by Mr. Sillars made to Cameron Perkins were voluntary.

[18] After Mr. Sillars left in the ambulance Constable MacDonald requested an officer attend the hospital to try to get further information about the young boy, Thomas. PC Maki was assigned this task.

[19] Thomas was located by police officers down river from High Falls around 5:46 pm by PCs Woods and Reading. PC Reading went into the river to retrieve Thomas, who was vital signs absent when she got him to the shore. CPR was commenced by PC Woods and at 5:52 pm Thomas was transferred into an ambulance, CPR was continued by paramedics and he was brought to South Muskoka Memorial Hospital (SMMH), arriving around 6:15 pm.

[20] Sgt. Allison, who had been on scene by the river, returned to the detachment at 6:08 pm, to check on the two officers who had entered the river to rescue Thomas. He received information while at the detachment that Mr. Sillars had been consuming alcohol at the cottage he was at, prior to getting in the canoe with Thomas. Sgt. Allison also testified he telephoned Constable MacDonald at the hospital, who advised him Mr. Sillars said he consumed two coolers and this had been confirmed by Thomas’ mother, Jessica Hooper. As a result of this information he brought an approved screening device, a Drager Alcotest 6810 and a blood kit with him when he returned to the hospital.

[21] The hospital chart indicated care for Mr. Sillars was transferred from EMS to the hospital at 5:50 pm. Dr. Kents was the emergency room doctor and Vicki Smith was the nurse who filled out the nurses notes relating to Mr. Sillars’ care. Dr. Kents estimated she spent about 15 minutes assessing Mr. Sillars shortly after he was put into Trauma Room 2. She described Mr. Sillars as suffering the effects of hypothermia, he was conscious but was uncooperative, agitated and swearing. She observed a strong odour of alcohol coming from his breath and noted, in her writing, on the hospital chart Mr. Sillars, “smells of alcohol.” Dr. Kents gave instructions to the nurse to get Mr. Sillars warm (his temperature in the ambulance was 31 degrees Celsius and when first in hospital, 33.5 degrees Celsius, both of which were hypothermic temperatures).

[22] Constable MacDonald arrived at the hospital at 6:13 pm. When he got to the emergency area he spoke to PC Rickaby who provided him with Mr. Sillars’ and Thomas’ names. Constables MacDonald and Coles did not go into the trauma room where Mr. Sillars was being treated by medical staff as Constable MacDonald learned Thomas’ mother, Jessica Hooper, was in a quiet room down the hall from the emergency area with PC Van Norman. He attended with PC Coles and conducted an interview with her. Constables MacDonald and Coles did not note the time they entered the quiet room to interview Jessica Hooper or how long they were conducting the interview. Constable Coles was writing what Ms. Hooper was saying in his notebook. He described her statement about what happened as being detailed.

[23] At 6:30 pm the nurses’ note indicated an OPP officer went into Trauma Room 2 and spoke to Mr. Sillars. (See Exhibit 13, page 23.) PC Maki testified he was the first police officer in the hospital. He did not note the time he arrived at the hospital but Mr. Sillars was already there. He was unable to speak with Mr. Sillars for some period of time because the hospital staff were treating and providing care to him, so he “stood by.” He described the hospital emergency area being in a state of “controlled chaos.” In fact, all of the witnesses who were present in the Emergency Department described this area to be chaotic and highly emotional, especially after Thomas arrived.

[24] PC Maki spoke to Mr. Sillars to get further information concerning what happened once Mr. Sillars was sufficiently warmed up and was able to speak and communicate. 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. The defence agreed Mr. Sillars utterances to PC Maki were voluntary.

[25] PC Maki did not note the time he arrived at the hospital. It could have been 10 to 15 minutes after he arrived that he was able to speak to Mr. Sillars but he did not know the time when he began to speak to Mr. Sillars. It is my view PC Maki was the OPP officer reflected in the nurses’ notes who went into Trauma Room 2 and spoke with Mr. Sillars at 6:30 pm.

[26] Dr. Kents testified she ordered a trauma blood panel to be drawn from Mr. Sillars after completing her assessment of him. The hospital records, computer printout from the laboratory, showed Dr. Kents order was made at 6:35 pm, although this was also reflected in the nurses’ notes as occurring at 6:30 pm. (See Exhibit 13, page 23.)

[27] At 6:38 pm, Sgt. Allison testified he returned to SMMH to investigate Mr. Sillars respecting possible impaired operation of a vessel. This time was noted on his Alcohol Influence Report.

[28] At some point when Constables MacDonald and Coles were interviewing Jessica Hooper, Sgt. Allison interrupted the interview and asked to speak to both officers. None of the three officers noted the time this meeting and discussion took place. Constable MacDonald told Sgt. Allison that Ms. Hooper told him Mr. Sillars had two coolers at the cottage. Constable MacDonald also had a note that Sgt. Allison “advised of the consumption of alcohol by Sillars.” He believed Sgt. Allison was telling them he had learned this information earlier. Constable MacDonald recalled advising Sgt. Allison of the information they had learned from Ms. Hooper, including the information Mr. Sillars and Thomas had set out in the canoe to go to the barrier at 4:45 pm.

[29] The evidence also disclosed that Sgt. Allison asked Constable Coles to go to his police car and retrieve the OPP Blackberry, which PC Coles did. There were no times noted in either Sgt. Allison’s or PC Coles’ notes to indicate when this occurred. PC Coles got the cell phone and brought it back and gave it to Sgt. Allison. PC MacDonald testified he was unaware and was not involved in Sgt. Allison’s request of PC Coles.

[30] At 6:45 pm, either the nurse, Vicki Smith or the technician drew blood from Mr. Sillars as per Dr. Kents’ order for a trauma blood panel. This is reflected in the nurses’ notes, Exhibit 13. Sgt. Allison testified he was outside trauma room 2 when hospital staff came out of Mr. Sillars’ room with a cart and blood vials on it. He believed blood had been drawn by the hospital from Mr. Sillars, although he did not see the blood being drawn. Vicki Smith testified the OPP entered Trauma Room 2 at 6:50 pm, which was after the blood was drawn from Mr. Sillars at 6:45 pm. Further, around the same time a urine sample was obtained from Mr. Sillars (Hospital records indicate 6:41 pm), which was sent to the lab for a drug screen analysis by order of Dr. Kents.

[31] At 6:48 pm, Sgt. Allison did a self-test with the ASD he brought to the hospital to determine if it was in proper working order. His sample of breath registered a zero and he believed it was working properly. No one asked where Sgt. Allison did the self-test with the ASD. On the evidence it is my view this occurred in the general area of the emergency. Sgt. Allison entered Trauma Room 2 to speak to Mr. Sillars.

[32] The nurses’ note indicated “OPP in to speak to pt,” Mr. Sillars, at 6:50 pm. When Sgt. Allison entered the room he did not explain to Mr. Sillars why he was there or what he was investigating. When he first entered the room he could not smell any odour of alcohol, so he asked Mr. Sillars to blow across his face. When Mr. Sillars did this Sgt. Allison observed there was a slight odour of alcohol on Mr. Sillars’ breath. Sgt. Allison did not tell Mr. Sillars why he asked him to do this. He then asked Mr. Sillars if he had anything to drink and Mr. Sillars responded, “Two coolers.” Sgt. Allison did not advise Mr. Sillars of his right to counsel before asking him to blow across his face or asking what he had to drink. At some point Sgt. Allison testified he said to Mr. Sillars, “We’re the police. We have to do our job here.” He testified he said this to Mr. Sillars at the same time he asked Mr. Sillars to blow across his face.

[33] As a result of smelling the slight odour of alcohol and Mr. Sillars’ admission that he had two coolers, Sgt Allison testified he formed a reasonable suspicion Mr. Sillars had alcohol in his body within three hours of operating a vessel and he made a demand that Mr. Sillars provide a sample of his breath into an approved screening device. Sgt. Allison had noted the ASD demand was made at 6:50 am. Sgt. Sillars read the approved screening device demand to Mr. Sillars from a pre-printed card:

I demand that you provide a sample of your breath into an approved screening device to enable a proper analysis of your breath to be made, and that you accompany me for this purpose of taking a sample. Do you understand?

[34] Mr. Sillars responded, “Just wait.” Then he said, “I’m cold” and “Won’t this get me in trouble?” Sgt. Allison believed Mr. Sillars was concerned about giving a sample. He advised Mr. Sillars it was a legal demand and explained the consequences for failing to provide a sample of his breath.

[35] Constable MacDonald testified he and PC Coles were standing outside in the general part of the emergency area, outside Trauma Room 2 when Sgt. Allison came out of Trauma Room 2 and asked them to attend at the lab to see if there was any extra blood that could be sealed, as Mr. Sillars was not being cooperative respecting his providing a breath sample pursuant to the ASD demand. Neither Constables MacDonald nor Coles made a note of the time this request was made by Sgt. Allison.

[36] In cross-examination Sgt. Allison testified when he was at the detachment and was on the phone with Constable MacDonald he talked to him about the possibility of sealing blood taken by the hospital. Sgt. Allison also testified in both chief and cross-examination about asking Constable MacDonald to seal blood after demanding Mr. Sillars provide a breath sample into an approved screening device and Mr. Sillars was being uncooperative. This occurred just outside Trauma Room 2 in the emergency general area. Once again, none of the officers had a note as to when this conversation took place at the hospital. I will deal further with this issue when I am dealing with this aspect of the defence Charter application.

[37] Constable MacDonald went with Constable Coles to the lab and spoke with the technician, Gisela McPherson. He asked her if blood had been drawn from Mr. Sillars and if so, was there an extra vial of blood that the hospital was not using. If there was he wanted to put a CFS seal over the top of it. Ms. McPherson told Constable MacDonald there was a vial that was not needed and provided it to him. He placed a CFS seal, CFS# 2F57321, over the top of the vial the blood was in. Constable MacDonald identified the vial of blood as being from Mr. Sillars because it had a hospital label on it that said “David Sillars.” Constable MacDonald told Ms. McPherson if the hospital needed the blood for their purposes, it was their blood and they should remove the seal and use it. Constable MacDonald told her there was no obligation to save it for the police. He placed the seal on the vial of blood and Ms. McPherson put it in the fridge in a box the hospital had, which said, “Save for police.”

[38] At 6:57 pm, Mr. Sillars provided a breath sample into the ASD and it registered a “Fail.” The defence advised there would be no challenge to whether the ASD was working properly. After registering a “Fail,” at 6:58 pm, Sgt. Allison advised Mr. Sillars he was arresting him for impaired operation of a vessel and operating a vessel with over 80 mg of alcohol in his body. Sgt. Allison testified as an experienced qualified breath technician for 29 years he knew the “Fail” on the ASD meant Mr. Sillars BAC was 100 mg of alcohol/100 ml of blood or more. He also knew anyone with a BAC of 100 mg of alcohol/100 ml of blood or higher, their ability to operate a vessel was impaired.

[39] After arresting Mr. Sillars he read him a caution from the pre-printed card he had:

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?

[40] Sgt. Allison also read Mr. Sillars his right to counsel from the pre-printed card he had:

I am arresting you for impaired operation of a vessel and operating a vessel with over 80 milligrams of alcohol. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged for an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a number that will put you in contact with legal aid duty counsel for free legal advice right now. Do you understand?

[41] Mr. Sillars responded, “I don’t have a lawyer.” Sgt. Allison then told him, “We can find a lawyer for you. If you have a name of a lawyer, I can even get a phonebook that’s at the detachment. We have lots of officers. We can go get that phonebook. We can look up your lawyer’s name in the phonebook and we can get his number.” Mr. Sillars again indicated he did not have a lawyer. Sgt. Allison said to him, “You know what, we have free legal advice for you and that’s what this number is for, and we can put you in contact with a free lawyer and free counsel.” Sgt. Allison testified Mr. Sillars opted for counsel, the free duty counsel and the 1-800 number.

[42] Sgt. Allison asked PC Maki to dial the 1-800 number on the OPP Blackberry because Sgt. Allison had to call to make arrangements for the Intoxilyzer 8000C to be brought to the detachment. Also, he did not have his glasses and the numbers were small on the Blackberry. When PC Maki made the call to duty counsel someone answered immediately, which was unusual. He gave the phone back to Sgt. Allison. Sgt. Allison then provided the phone to Mr. Sillars and he and PC Maki left Trauma Room 2 to give Mr. Sillars privacy in his phone call. This was done at 7:03 pm. Sgt. Allison agreed when he provided the Blackberry to Mr. Sillars, he had not read Mr. Sillars the breath demand for the approved instrument.

[43] At 7:06 pm, Sgt. Allison was outside Trauma Room 2 when he was advised that Thomas had been pronounced deceased. Sgt. Allison made the decision to interrupt Mr. Sillars’ conversation with duty counsel to advise Mr. Sillars and the duty counsel of the change in circumstances and that Mr. Sillars would now be facing a charge of impaired operation cause death. He told Mr. Sillars of the elevation of the charge and he then spoke to duty counsel to advise him of the change in Mr. Sillars’ jeopardy and the elevation of the charge. Sgt. Allison then gave the Blackberry back to Mr. Sillars and exited the room to provide Mr. Sillars with privacy.

[44] Duty Counsel, Peter Gakiri, provided an affidavit, Exhibit 27, where he indicated the phone call from Bracebridge OPP was received at 7:04 pm and he began speaking to David Sillars at 7:07 pm. The call with Mr. Sillars ended at 7:12 pm. That was the full extent of his affidavit. Sgt. Allison noted he became aware Mr. Sillars was off the phone with duty counsel at 7:15 pm.

[45] At 7:15 pm, Sgt. Sillars entered Trauma Room 2 and read Mr. Sillars the demand for breath samples into an approved instrument. He agreed he did not caution or read a further right to counsel to Mr. Sillars after reading the breath demand.

[46] At 6:59 or 7:00 pm, Sgt. Allison had called the detachment and spoke to PC Adrian Woods and requested he pack up and bring the Intoxilyzer 8000C to the hospital. PC Woods asked PC Rickaby, a qualified breath technician, to assist in packing up the Intoxilyzer 8000C. He arrived at the hospital around 7:10 pm and Sgt. Allison received the Intoxilyzer 8000C in Trauma Room 2 at 7:20 pm.

[47] After the Intoxilyzer 8000C arrived at the hospital Sgt. Allison began to set it up at 7:22 pm. He performed the necessary diagnostic and calibration tests and self-test, which were completed at 7:42 pm. The defence agreed they had no issues with the working of the Intoxilyzer 8000C.

[48] At 7:34 pm, while Sgt. Allison was setting up the Intoxilyzer, Dr. Kents came into Trauma Room 2 to examine Mr. Sillars and she advised Sgt. Allison that Mr. Sillars was being kept overnight because of his medical condition.

[49] At 7:44 pm, Sgt. Allison re-read Mr. Sillars the breath demand and Mr. Sillars indicated he understood but he once again became “boisterous.” Mr. Sillars asked, “What’s going to happen to me.” Sgt. Allison responded he didn’t know, he had to do his job but he did not know what would happen to him. PC Baril testified he came into Trauma Room 2 because of Mr. Sillars becoming loud. Sgt. Allison explained the consequences for failing to provide a sample. Mr. Sillars asked how Thomas was doing and Sgt. Allison advised again that Thomas was deceased. Mr. Sillars asked to speak to Ms. Hooper and Sgt. Allison advised it was not the appropriate time for him to speak to Ms. Hooper.

[50] Just before 7:47 pm, Mr. Sillars provided a good sample of his breath into the approved instrument and once the testing was completed a reading of 97 mg of alcohol in 100 ml of blood was registered.

[51] Between the first breath test and the second breath test Sgt. Allison asked a series of questions of Mr. Sillars and Mr. Sillars made certain responses, which Sgt. Allison recorded in the Alcohol Influence Report. The defence is challenging the admissibility of Mr. Sillars’ statements on the issue of voluntariness. I will address the arguments of counsel respecting this issue in a separate ruling.

[52] At 8:12 pm, Mr. Sillars provided a further good sample of his breath directly into the approved instrument, which resulted in a reading of 100 mg of alcohol in 100 ml of blood. He also put a late entry into his notebook reflecting Mr. Sillars had to urinate just prior to providing the second sample. The nurses’ notes, Exhibit 13, at page 24, confirms Mr. Sillars urinated at 8:10 pm and the nurse assisted with this.

[53] After the two breath tests were completed, Sgt. Allison advised Mr. Sillars he blew over 80 mg and he was being charged with impaired operation of a vessel cause death and operating a vessel with over 80 mg. The nurse came in and asked if Mr. Sillars could be moved to another room to free up the emergency trauma room 2. Sgt. Allison indicated this was not a problem as he was finished with Mr. Sillars other than getting his release papers together.

[54] PC Baril accompanied Mr. Sillars to the x-ray department. The nurses’ note, Exhibit 13, page 23, indicates Mr. Sillars went to x-ray at 8:40 pm and was returned at 9:00 pm. An OPP officer remained outside the door.

[55] Sgt. Allison also made arrangements for Mr. Sillars to see Ms. Hooper. PC Baril was instructed to be present as it was unknown how Ms. Hooper might react to Mr. Sillars. The nurses’ notes Exhibit 13, at page 21 indicated at 10:15 pm, “mother of child in to see pt, visit supervised by OPP, pt tearful, not acute distress.” 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.” PC Baril testified these utterances by Mr. Sillars were made prior to 8:46 pm when PC Baril left to go back to the detachment. The defence conceded these utterances by Mr. Sillars made in the presence of PC Baril to Ms. Hooper were made voluntarily.

[56] Despite Dr. Kents wanting to keep Mr. Sillars overnight for observation and ordering a further series of blood tests to be done in the morning to check his different levels to ensure everything was back to normal, Mr. Sillars was made aware of the risks of leaving the hospital early and signed himself out of SMMH at 11:34 pm. He left the hospital with Ms. Hooper.

[57] On July 28, 2017, Constable MacDonald attended at South Muskoka Memorial Hospital and executed a search warrant. The items seized included David Sillars’ hospital records, which included a toxicological analysis of David Sillars’ blood, which showed it contained 30 millimoles/L of ethanol. This information was analyzed and used as the foundation by Mr. Palmentier, the CFS toxicologist, to convert the BAC of Mr. Sillars to mg of alcohol per 100 ml of blood. In addition, the search warrant referred to the vial of blood sealed by Constable MacDonald sometime after the time the blood was drawn by hospital staff.

[58] The defence brought a number of Charter applications alleging violations of Mr. Sillars’ Charter rights and sought the exclusion pursuant to s. 24(2) of:

1. Mr. Sillars’ breath sample results from Intoxilyzer 8000C;

2. The hospital’s blood alcohol toxicology result contained in Mr. Sillars’ SMMH hospital records and

3. The vial of blood drawn by Gisela McPherson while Mr. Sillars was a patient in the Emergency at SMMH.

4. If that evidence was excluded pursuant to s. 24(2) the analysis and reports prepared by Ms. Amanda Lowe, CFS Forensic Toxicologist, concurred in by Mr. Jean-Paul Palmentier, CFS Forensic Toxicologist, projecting Mr. Sillars’ BAC to a time between 4:45 and 5:29 pm should also be excluded.

5. The defence also sought the exclusion of any statements made by Mr. Sillars between his two breath tests, which I will be addressing in a separate judgment.

[59] The Charter applications brought by the defence can be summarized as follows:

(a) The defence submitted Mr. Sillars was detained within the meaning of s. 9 and 10 of the Charter when Sgt. Allison requested Mr. Sillars to blow across his face and asked what he had to drink. Sgt. Allison had an obligation pursuant to s. 10(a) to advise Mr. Sillars he was conducting a police investigation into impaired operation of a vessel. (R. v. Grant[^1]) The defence further submitted R. v. Orbanski[^2] and R. v. Thomsen[^3] do not have application as the detention was not by the roadside or in the case of a vessel, on a waterway. Therefore the applicable law was R. v. Suberu,[^4] where the police duty to inform an individual of their s. 10(b) rights is triggered at the outset of an investigative detention. The defence also submitted the request for Mr. Sillars to blow across Sgt. Allison’s face was a breach of s. 8 of the Charter;

Note: The defence also argued in the alternative that the s. 10(b) exemption pursuant to Thomsen, supra, and R. v. Seo, 1986 109 (ON CA), [1986] O.J. No. 178, did not apply to police investigations involving canoes. In my view, this argument is for all intents and purposes identical to the defence argument in (a).

(b) The ASD demand was not lawful because it was not made forthwith;

(c) Mr. Sillars was arrested after the ASD “Fail” for the wrong offence and not properly advised of the reason for his arrest;

(d) Mr. Sillars’ s. 10(b) right to consult with counsel of choice was infringed;

(e) Mr. Sillars’ s. 10(b) right to counsel was breached because he was not given a further opportunity to consult with counsel after Sgt. Allison made the breath demand pursuant to s. 254(3)(a)(i) after he spoke to duty counsel;

(f) The medical staff who drew samples of blood from Mr. Sillars in Trauma Room 2 were co-opted by police and therefore Mr. Sillars’ s. 8 Charter rights were infringed.

(g) Further, the defence submitted the ethanol analysis ordered by the emergency room doctor, Dr. Kents, is best explained as an effort by the doctor to assist the police investigation;

(h) The defence also challenged the facial validity of the warrant to seize hospital records and the sealed blood sample from South Muskoka Memorial Hospital. First, the defence submitted there was an absence of grounds to authorize the seizure of the Applicant’s medical records. Second, if the breath samples and readings obtained from Mr. Sillars are excluded as a result of some or all of the alleged Charter breaches, there would have been insufficient evidence before the issuing justice to issue the warrant.

[60] It was the defence position during oral submissions that Sgt. Allison intentionally and deliberately breached Mr. Sillars’ constitutional rights and then lied about his conduct when he testified on this application. It was the contention of the defence that the pattern of deliberate Charter breaches by Sgt. Allison led to the conclusion that the admission of Mr. Sillars’ breath samples and readings would bring the administration of justice into disrepute.

[61] The defence focused their submissions, in large part, on Sgt. Allison’s lack of reliability and credibility as being the “critical witness” on the numerous alleged Charter violations. The defence prepared an Appendix “A,” which they maintained demonstrated numerous instances where Sgt. Allison’s evidence was internally inconsistent or where his evidence changed during cross-examination. The defence alleged Sgt. Allison engaged in “slipshod note-taking practices, losing or destroying” a scratchpad where he noted times and the steps he took.

[62] Finally, the defence alleged Sgt. Allison “committed multiple breaches” of my order excluding witnesses and prohibiting communication between them about their evidence. It is the defence position this circumstance weighs heavily against Sgt. Allison’s overall credibility.

[63] The Crown submitted there were no Charter breaches of Mr. Sillars’ constitutional rights, all of the evidence was obtained in compliance with the Charter and even if there were infringements of Mr. Sillars’ rights, the defence has failed to establish that the admission of the impugned evidence would bring the administration of justice into disrepute.

Analysis

[64] Prior to analyzing the Charter arguments raised by the defence, I want to first address the extent to which I find Sgt. Allison’s breach of the witness exclusion order impacted his evidence. I will then discuss generally my assessment of the evidence of Sgt. Allison. After which I will determine a timeline, based on the totality of the evidence, as to what occurred from the time Mr. Sillars was found on Highway 11 until he was charged with impaired operation of a vessel causing death and operating a vessel with a BAC over 80 mg/100 ml blood. After this I intend to address and analyze each of the Charter arguments raised by the defence.

Sgt. Allison’s Breach of the Order Excluding Witnesses and Its Impact

[65] Mr. Rosenthal in his oral and written submissions elevated Sgt. Allison’s discussion outside the courtroom with Constable MacDonald and Sgt. Edey on November 1, 2018, exceedingly higher in my view than was justified considering the totality of the evidence and the circumstances in which the discussions occurred.

[66] An order excluding witnesses is often made at the beginning of a trial to ensure that a witness’ evidence is not influenced or tainted by the evidence of another witness they might hear if they were in the courtroom when the witness testified or if the earlier witness advised the witness the evidence they gave during their testimony. The concern is with witnesses colluding or attempting to provide consistent testimony by discussing or hearing another witness’ evidence.

[67] Apparently Sgt. Allison was overheard talking to Constable MacDonald, who had completed giving his evidence on this trial and Sgt. Edey, the scenes of crime officer who took photographs the day after the incident of the Muskoka River and High Falls as well as items of clothing seized by the police, in a room outside the courtroom with the door open, such that their conversation could be heard. This conversation occurred on November 1, 2018.

[68] All three officers admitted the main discussion was concerning the issue of whether a canoe was included in the definition of vessel. This issue was a central question to be decided in this case by the court. The evidence of each of these three officers who were having this discussion played no part whatsoever in the determination of this question. I find this part of their discussion did not breach my order excluding witnesses in any manner.

[69] Another discussion referred to by Constable MacDonald and Sgt. Edey from November 1, 2018, was Sgt. Allison complaining that Mr. Rosenthal was going over the same areas he had been cross-examined about on October 26, 2018. He expressed his frustration in having to answer the same questions over and over again. Sgt. Allison admitted he had similarly complained to PC MacDonald about Mr. Rosenthal’s cross-examination on Sunday, October 28, 2018, when he referred to counsel as “an angry little man.” Constable MacDonald testified he had responded to Sgt. Allison that “you (referring to Mr. Rosenthal) presented yourself very angry in the courtroom because you were scared shitless the father was going to kill you outside the court.” I do not agree with the defence submission that this discussion was in breach of my court order. Sgt. Allison did not discuss any of the specifics of his cross-examination by Mr. Rosenthal, rather, he was expressing his frustration with the manner of Mr. Rosenthal’s cross-examination, which was in a number of areas repetitive. PC MacDonald had completed his evidence sometime prior to Sgt. Allison’s complaint and I accept his evidence that he did not discuss any of the specifics of the evidence he had provided in his testimony.

[70] Mr. Rosenthal testified Constable MacDonald and Sgt. Edey were reluctant to provide information about what Sgt. Allison had talked about on November 1, 2018, in this room outside the courtroom. I do not agree with his characterization of their evidence. Sgt. Edey and Constable MacDonald were both, in my view, forthcoming and candid concerning the content of the discussion they had with Sgt. Allison concerning whether a canoe was a vessel and listening to his complaints concerning the manner of defence counsel’s cross-examination.

[71] What raised some concern was Sgt. Allison’s reference to his discussion with Constable MacDonald on the issue of where he and Constable MacDonald had conversations in the hospital concerning Mr. Sillars. Constable MacDonald’s evidence was clear during his testimony on October 22, 2018, on this issue. On April 7, 2017, sometime after he and Constable Coles had been involved in conducting a detailed interview with Jessica Hooper in the quiet room at SMMH, which is down the main floor hallway from the emergency general area, Sgt. Allison came to this room and pulled both officers from the interview to discuss information concerning Mr. Sillars and whether he had consumed alcohol before taking the canoe with Thomas onto the Muskoka River. Sgt. Allison in his evidence on October 26, 2018, did not recall going to the quiet room after he arrived back at SMMH from the detachment. It was Sgt. Allison’s recollection they had conversation in the emergency general area outside Trauma Room 2 where Mr. Sillars was, however, he testified he could not disagree with defence counsel’s suggestion he had gone to the quiet room and spoken to Constables MacDonald and Coles there and learned information they had obtained from Ms. Hooper concerning what happened. This evidence of Sgt. Allison occurred prior to any discussion he had with Constable MacDonald. Sgt. Edey recalled hearing bits and pieces of Sgt. Allison speaking to Constable MacDonald and asking about where the trauma room was in relation to the quiet room but it did not involve her so she did not pay attention. I find Sgt. Edey was not part of this conversation, which was between Sgt. Allison and Constable MacDonald. This was said when Sgt. Allison was complaining about the cross-examination and his frustration over being asked the same questions repeatedly.

[72] I find, based on the totality of the evidence on this issue that the conversation between Sgt. Allison and Constable MacDonald concerning this issue likely occurred on both days, Sunday, October 28, 2018 in the Sergeant’s office in Bracebridge detachment and November 1, 2018 in the room outside the courtroom, it was brief and I find Sgt. Allison most likely made these comments and had this discussion during the time he was complaining about the defence cross-examination. What is clear in my view is Sgt. Allison’s evidence on this issue did not change from October 26, 2018 and November 1, 2018 in that he maintained on both dates he did not recall going to the quiet room but would not disagree with Constables MacDonald’s and Coles’ evidence he did speak to them outside the quiet room. I also take into account the fact the discussion between Sgt. Allison and Constable MacDonald and Sgt. Edey, took place in a room outside the courtroom with the door open to the public corridor where it was overheard by one of the defence counsel. This circumstance I find informs the underlying intent of the discussion, which in my view was not an attempt to influence testimony or taint it.

[73] The final breach of the order excluding witnesses submitted by the defence related to Sgt. Allison telling Constable MacDonald and Sgt. Edey when he had completed his evidence and was exiting the courtroom that he was one step away from contempt and had been reamed out by the judge for discussions he had that day but he can’t discuss it further. In my view this was not a breach of my order excluding witnesses, rather, it passed information on to future witnesses of the importance and seriousness of complying with such an order.

[74] The caselaw dealing with witnesses breaching an order excluding witnesses is not particularly plentiful. Three cases I found are R. v. Dobberthein[^5], R. v. Buric[^6] and R. v. Singh.[^7] In Dobberthein, the Supreme Court majority relied on an old line of English cases, which held the Court should not reject a witness’ evidence for breaching an order excluding witnesses. Clearly it is for the trier of fact to consider what weight should be given to the witness’ breach in the assessment of the witness’s reliability. I do not agree with defence counsel’s submission that Sgt. Allison committed “multiple breaches” of the order excluding witnesses. Further, I do not agree with the defence submission that Sgt. Allison’s conduct “weighs against his overall credibility.” This quote was from Justice Edwards’ decision in Davies v. Corp. of the Municipality of Clarington.[^8] The conduct engaged in by the witness in Davies was exceedingly more egregious and serious than Sgt. Allison and there was also evidence provided of the witness’ criminal record for dishonesty, which Justice Edwards referred to in making the above-noted finding.

[75] I will certainly take this incident into account when I am assessing Sgt. Allison’s evidence, however, in my view his discussion with Constable MacDonald, on the one issue I believe he breached to some extent my order, was minor. I find it did not impact Constable MacDonald’s evidence, which he had already given nor did the conversation cause Sgt. Allison to change his own evidence.

The Defence Attack on the Evidence of Sgt. Allison

[76] The defence brought to bear a forceful, vigorous and relentless attack on Sgt. Allison’s credibility. It was Mr. Rosenthal’s position that this officer intentionally violated Mr. Sillars’ Charter rights in order to obtain evidence against him and then lied about his conduct in court. He submitted the Charter violations are all inextricably linked to the testimony of Sgt. Allison and his lack of credibility.

[77] I reject this submission. I saw no indication during Sgt. Allison’s testimony that he was out to get Mr. Sillars. None of the steps taken by Sgt. Allison during his investigation of Mr. Sillars at the hospital demonstrated he intentionally violated Mr. Sillars’ Charter rights. In my view this allegation of his intentionally breaching and ignoring Charter rights for the purpose of obtaining evidence against Mr. Sillars is not supported by the evidence. Sgt. Allison, in my assessment, provided his evidence in an even-handed manner and often agreed with suggestions made by counsel. To provide only one example of this, it was suggested to Sgt. Allison he was returning to the hospital “specifically to develop grounds?” He replied, “I wouldn’t have stated it that way but to continue the investigation into possible impaired operation.” When he was referred to his Alcohol Influence Report where he noted “Attend to assist and develop grounds,” he agreed he attended to develop grounds otherwise he would not have brought with him the ASD or the blood test. This was cited by the defence in their Appendix as an inconsistency in Sgt. Allison’s evidence, in my view it was a question of semantics.

[78] A great deal was made of Sgt. Allison’s note-taking in his police issued notebook and his notes as the qualified breath technician contained in the Alcohol Influence Report. When his notes were qualified by the Crown, Mr. Rosenthal first confirmed he had all the pages of Sgt. Allison’s police issued notebook then asked, “Okay, and these are the only notes, other than the Alcohol Influence Report, that you ever made in relation to this case?” Sgt. Allison answered “Yes, yes, absolutely.”

[79] Later in cross-examination, Sgt. Allison was asked if he kept any rough or scratch notes when he was at the hospital and he indicated he had. When he was asked to provide this scrap sheet of paper Sgt. Allison indicated it had been misplaced as he did not have it. Mr. Rosenthal produced a number of pages from Ontario Provincial Police Orders, 2.50: Member Note Taking, page 3 or 5, makes reference to an officer making original investigative notes in other than their “Daily Journal,” e.g. loose-leaf paper, envelope, dash pad, the uniform member shall transcribe such notes verbatim into the “Daily Journal”, record date and time verbatim notes were transcribed and initial and retain the original investigative notes. I was not provided what the consequences might be for failure to comply with this order respecting note-taking. The defence submitted that Sgt. Allison lied to the court when he testified his only two forms of note-taking were his police issue notebook and his Alcohol Influence Report. When this was suggested to him Sgt. Allison testified he had forgotten he had written down rough notes with times and some details and would not have considered them to be notes. I accept Sgt. Allison’s evidence on this issue, particularly having regard to what I have already referred to as the hectic, frantic and chaotic circumstances in the emergency area at SMMH. This view of the chaotic, frantic environment in the emergency department is supported by the failure of the other OPP officers to record the times they performed their duties at the hospital. Sgt. Allison testified he recorded the times in his notes from this scrap sheet of paper. I accept his evidence on this issue having regard to the fact in many instances his times correspond with and are corroborated by the nurses’ notes as to when events took place.

[80] The whole sequence of events that occurred prior to Sgt. Allison attending the hospital, including the police finding Mr. Sillars suffering from hypothermia on Highway 11, the search and retrieval of Thomas Rancourt from the Muskoka River, as well as the upset and distress experienced by the officers involving in those life-saving measures can only be described as not the run of the mill ordinary or typical police investigation, together with everything that occurred at the hospital. These circumstances and the context of what was occurring certainly impacted and caused police officers to not perform their duties involving note-taking, perfectly. It is also my view these circumstances were not conducive to careful note-taking on the part of the officers involved. The officers were not at the detachment where they would have access to offices where their notes could be written up without the commotion and distractions that clearly existed at SMMH. Further, as the qualified breath technician, Sgt. Allison’s involvement in the breath room if the matter had been investigated at the detachment would have been recorded on video-tape, however, this was not available given Mr. Sillars was being treated in hospital.

[81] It is my view from the totality of the evidence of the police officers at the hospital and the medical staff that during the early evening hours of April 7, 2017, the emergency area was completely hectic, frantic and chaotic. This was not a regular occurrence for SMMH’s emergency department. In addition to dealing with Mr. Sillars and Thomas Rancourt, the emergency department had an additional patient in one of the other trauma rooms who was under arrest and police guard, who was handcuffed to a gurney because he was violent, swearing loudly and at times out of control. As a result the timing of when certain events took place in the hospital, to some extent, is difficult to pin down as most of the police officers involved did not note times in their notebooks as to when they did the tasks they performed. In my view this circumstance, while not a best practice for police officers was certainly understandable and explainable and not deliberate. I will deal more specifically with this issue later in my reasons.

[82] While these circumstances provide a backdrop and context explaining why the note-taking of all of the officers involved in this investigation was not done with the usual diligence and professionalism expected, it does not justify or excuse what Mr. Giordano described during submissions as “sloppy” note-taking.

[83] Much was made of Sgt. Allison’s evidence respecting his attempting to do his best in terms of writing up his notes contemporaneously as possible. Considering the circumstances it would be extremely difficult for any of the police officers to be writing down notes at the exact time events unfolded. It is in these types of circumstances that police officers do not note everything that they recall happening. The issue as to what can be made of an officer’s failure to record everything that he or she is testifying about has been the subject of a number of summary conviction appeal decisions. As Justice Durno in R. v. Brown,[^9] held: “While some cases appear to hold that the failure to record the evidence in notebooks or elsewhere is fatal to the evidence being found credible and reliable, being acted upon, I am not aware of any binding appellate authority to that effect.”[^10]

[84] Justice Durno continued:

22 With respect to those who hold a different view, the absence of notebook entries should not result in the automatic rejection of the evidence. A blanket, "if it is not in the memo book" it is either inadmissible or not worthy of belief goes too far.¹ No doubt, it is a significant factor to be assessed on a case-by-case basis by the trial judge in light of the explanation for the omission, the significance of the omission and other evidence. While officers' notebook entries are now part of disclosure, to suggest that there is now a constitutional obligation on officers to include each and every piece of information that they will testify to in examination-in-chief and cross-examination is to put a mandate on the police that is not supported by any binding authority. It would also remove any consideration for the officer's independent recollection of the events. If that were the law, if an officer testified to events that were not noted in his or her notebook but were of assistance to an accused in his or her Charter application or trial defence, would that mean it would have to be ignored?

Footnote 1 above: The appellant relied on the judgments in R. v. Tait, [2012] O.J. No. 524, 2012 CarswellOnt 1325 and R. v. Odgers, 2009 ONCJ 287, [2009] O.J. No. 2592, 2009 CarswellOnt 2648. To the extent that those judgments hold or imply that the absence of a notebook entry precludes reliance on the evidence or that there is a duty on police officers to include all evidence in their notebooks, I respectfully disagree.

25 I addressed the issue of officers' notebooks in R. v. Machado (2010), 2010 ONSC 277, 92 M.V.R. (5th) 58 as follows:

121 While officers' notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook to comply with the Crown's disclosure obligation. While some ... have attempted to elevate the judgment in R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) to a statement that if an event or observation is not in the notes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations that are not noted have been accepted: R. v. Thompson (2000), 2001 CanLII 24186 (ON CA), 151 C.C.C. (3d) 339 (Ont. C.A.); R. v. Bennett [2005] O.J. No. 4035 (S.C.J.).

122 I agree with the following comments of Garton J. in R. v. Antoniak, [2007] O.J. No. 4816:

24. It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation. The notes would become the evidence.

25. The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis.

[85] I agree with and adopt the comments of Justices Durno and Garton, however, where a police officer does not make a note respecting a particular step in the sequence of events or an utterance by a suspect or witness this may be a significant factor in assessing the witness’ evidence in light of the explanation for the omission, the significance of the omission and in light of other witness’ evidence. I do agree this is something that must be determined by the trier of fact on a case-by-case basis.

[86] The defence in their submissions, both oral and written, respecting the evidence of Sgt. Allison took the position if something was in Sgt. Allison’s notebook that was not supported by another witness’ evidence, Sgt. Allison was lying. If something was in Sgt. Allison’s notebook and another witness did not recall any interaction with Sgt. Allison on that particular point, once again Sgt. Allison was lying. I do not agree with that characterization, as it runs contrary to the cases I have referred to above.

[87] I intend to address many of the inconsistencies in Sgt. Allison’s evidence alleged by the defence, which are set out in Appendix “A” to their written factum, during my analysis of what the defence has submitted are Charter violations by Sgt. Allison.

[88] During the vigorous cross-examination that continued over two days, I did not observe Sgt. Allison to become combative or evasive in his answering of questions. There were occasions, which I will discuss more fully later, where I believe Sgt. Allison was flustered and became confused in his recollections because of the deficiency demonstrated in the completeness of his note-taking. As I indicated above there were a number of occasions where the suggestions put to Sgt. Allison by the defence were conceded to or he indicated he could not disagree. On other occasions where he resisted the defence suggestions put to him it is my view he did not become inflexible or unreasonable. Even where the suggestion put to Sgt. Allison was what I would describe as utterly insignificant or inconsequential, Sgt. Allison did not lose his cool or get upset. e.g., there was much made of the perceived discrepancy in times between his notes and the Alcohol Influence Report respecting when Mr. Sillars blew into the ASD, the “fail” registered and Mr. Sillars’ arrest. In his notebook Sgt. Allison noted: “6:57: David Sillars provided suitable sample, registered a fail.” In the Alcohol Influence Report he noted the ASD fail occurred at 6:58. Similarly, the times for the right to counsel there was a minute’s difference, 6:58 as opposed to 6:59. In my view there was no discrepancy between these two notes and this was an example of the defence focussing on minutiae that had no significance to my assessment of Sgt. Allison’s credibility.

[89] Having considered Sgt. Allison’s evidence in light of the evidence as a whole, I find he did not deliberately or intentionally violate Mr. Sillars’ Charter rights and that he testified truthfully concerning his involvement with Mr. Sillars at the hospital. I agree with the Crown’s characterization of Sgt Allison’s note-taking as being more sloppy than malicious and more hapless than mean-spirited and deliberate. There are, as I will discuss later in my reasons, concerns raised with respect to the reliability of his evidence as a result of his deficient note-taking that I will address during my analysis of the Charter applications.

Timeline

[90] One of the difficulties in determining an accurate timeline is that for the most part the other OPP officers in attendance at the hospital did not record the times when they were doing things at the hospital. On the totality of the evidence it is my view this incident was completely outside the usual experience of the officers on duty who responded to the initial emergency of a canoe capsizing and throwing two individuals into the freezing waters of the Muskoka River, just above High Falls. The impact on the police officers involved in the search for Thomas Rancourt and the discovery, retrieval and life-saving attempts, both at the scene and in the hospital, were very upsetting and traumatic.

[91] A further factor I have considered is the number of different clocks or watches or devices that keep time that the different participants used to write down the times they noted, when and if they did, and the fact that none of these time pieces were synchronized in anyway. Consequently, the times may be out of synch by a minute or two or three. This was true for the differences in the hospital times from Mr. Sillars’ medical records.

[92] I should also note that I have put times in the 12 hour clock, with am or pm as necessary and have not used the 24 hour clock, generally used by the police. The hospital staff used both the 12 hour clock and 24 hour clock to express the times certain tasks were done.

[93] I should also note that in determining when different events took place I can accept all, some or none of a witness’ evidence. Of particular assistance in determining the timing of certain events that occurred in the hospital are the nurses’ notes contained in Exhibit 13, where Nurse Smith and the nurse who replaced Nurse Smith, as part of their regular duties noted specific times as to when specific events occurred. I found these entries helpful in comparing them to the evidence of the various OPP officers involved at the hospital.

[94] David Sillars set out in a canoe with eight year old Thomas Rancourt at 4:45 pm. This time was provided by Ms. Hooper to police during her interview at SMMH. Ms. Hooper did not testify so this time is not in the evidence to be considered on the trial, however, it is a piece of information used by the officers involved in the investigation respecting the formation of their grounds.

[95] There was no time provided as to when the canoe capsized or flipped by the barrier of buoys just before High Falls, which upended and threw Mr. Sillars and Thomas Rancourt into the river.

[96] David Sillars told police in what are agreed to be voluntary utterances after the canoe flipped and Thomas remained in the river. Mr. Sillars swam to shore and ended up on the on-ramp from Highway 117 to Highway 11. At 5:29 or 5:30 pm he was located, suffering from hypothermia, put into the rear of a police SUV to get warm. It was learned he had been in a canoe that had capsized in the river and a young boy, wearing a lifejacket was still in the water. A great many officers responded to look for this young boy. The scene as described by the officers was frenzied and frantic as officers searched below High Falls and around the river. One can only imagine how tense and stressful the period was leading up to Thomas’ discovery below High Falls down river. He was not found until 5:46 pm with vital signs absent and CPR was commenced by the officers at that location. The emotion and helplessness experienced by the officers present was described as being profound and intense. An ambulance arrived on scene at 5:52 pm and took Thomas to SMMH, arriving around 6:15 pm. PC Baril, who assisted PC Woods at the scene with CPR, attended the hospital in the back of the ambulance with Thomas. He did not note the time the ambulance arrived at the hospital. None of the EMS paramedics involved with the transport of Thomas to SMMH were called as witnesses.

[97] Mr. Sillars arrived at SMMH by ambulance at 5:51 pm and care was transferred to the hospital at 5:54 pm from EMS. All of the police officers involved at the scene indicated at this point in time there was no thought of a criminal investigation, there was only concern for Mr. Sillars’ medical condition, which the officers immediately recognized as hypothermia. No police officer attended with Mr. Sillars in the back of the ambulance or followed the ambulance to the hospital.

[98] P.C. Maki believed he was the first officer at the hospital. He had been tasked by either Sgt. Allison or Constable MacDonald, or both, to obtain information about what had happened, why the canoe had capsized. He did not note the time of his arrival. He testified he could not speak to Mr. Sillars when he first arrived because Mr. Sillars was receiving medical treatment from the medical staff at the hospital. He did not direct the hospital staff to do anything and stood by until there was an appropriate time to speak to Mr. Sillars. Dr. Kents described Mr. Sillars as confused, agitated and upset, swearing and shouting when he first arrived at the hospital. She was with him initially for about 15 minutes and later she was in and out. Vicki Smith, the ER nurse assigned to Mr. Sillars until 7:30 pm when she was relieved by the night ER nurse, described Mr. Sillars as having difficulty speaking because he was shivering so violently. The medical staff put a “Bair Hugger” on him to warm his body, an IV with warm fluids and warm blankets wrapped around him to warm his body.

[99] Vicki Smith testified the Trauma Panel ordered by Dr. Kents was not ordered until sometime after Mr. Sillars arrived at the hospital because the young boy was brought in and a “code” had to be run in Trauma Room 1 and Dr. Kents was dealing with that situation.

[100] Up to this point in time there are no notes, either hospital or police to indicate when events took place. The nurses’ notes indicate at 6:30 pm the OPP were in Mr. Sillars room. Based on the totality of the evidence surrounding what was happening in the hospital in terms of medical treatment and care, I find it was PC Maki who entered Mr. Sillars room at 6:30 pm to obtain further information as to what happened that caused the canoe to capsize. Vicki Smith testified she was with Mr. Sillars for the entire time after she was assigned to provide his medical care and treatment. The note immediately after the note indicating “OPP in with pt.,” also at 6:30 pm was Dr. Kents ordering the trauma blood panel for Mr. Sillars. Vicki Smith testified Dr. Kents stuck her head in Trauma Room 2 and verbally ordered the Trauma blood panel.

[101] I accept PC Maki’s evidence that he was not investigating any criminal offence when he asked questions of Mr. Sillars. Mr. Sillars in my view was not detained by police at this point in time.

[102] Sgt. Allison returned to the detachment at 6:08 pm to make sure PCs Reading and Woods were properly looked after because they had been in the river during the retrieval of Thomas Rancourt. He believed PC Reading was suffering the effects of hypothermia and told her to take a hot shower and to then go home to rest, as she was exhausted and quite emotional and stressed out because of her involvement in retrieving Thomas. PC Woods also was directed to take a hot shower but he testified he was okay to stay at the detachment in the event he was needed. PC Woods was only in the water from the waist down holding the rope tied around PC Reading who swam out to where Thomas was in the river.

[103] While at the detachment Sgt. Allison testified he became aware from a police officer, he thought it might have been PC Wadia but was unsure, that the owner of the cottage had indicated David Sillars had been consuming alcohol that day.

[104] Sgt. Allison referred in his evidence to a phone call he had with PC MacDonald, who was at the hospital, while Sgt. Allison was at the detachment. No time was noted when this call took place. Sgt. Allison recalled PC MacDonald advising him Mr. Sillars told PC MacDonald he had two coolers and that Jessica Hooper had confirmed Mr. Sillars had two coolers at the cottage. PC MacDonald testified he did not recall speaking to Sgt. Allison by telephone when he was at the hospital and Sgt. Allison was at the detachment. Finally, Sgt. Allison recalled in this telephone conversation mentioning to PC MacDonald they might have to seal blood if it was taken by the hospital staff.

[105] PC Rickaby was at the SMMH from 8:30 am respecting another individual who was in custody under the Mental Health Act and was suffering from mental health issues. This individual was handcuffed to a gurney in an emergency room because he was violent and PC Rickaby was instructed to guard him. After 5:30 pm he heard on his radio that officers were responding to two individuals who had ended up in the Muskoka River and he advised hospital staff there may be two casualties coming by ambulance with cold water injuries. He called PC MacDonald and asked if there was anything he could assist with at the hospital, as he was there and he was asked by PC MacDonald to get information from the male party being brought to hospital by ambulance as to what had happened. However, when the individual, who he later learned was David Sillars, arrived at the hospital, PC Rickaby was not able to speak to Mr. Sillars as he was in rough shape and in dire need of medical treatment. No opportunity ever occurred for PC Rickaby to speak to Mr. Sillars before he left the hospital just after 6 pm when he was relieved by PC Gilbert, who took over security of the person he was watching. He had no contact with Mr. Sillars.

[106] PC Rickaby also spoke to Jessica Hooper, who arrived at the hospital and he obtained the names of the two individuals involved, David Sillars and her son, Thomas Rancourt. She had been brought to SMMH by PCs Hallet and Van Norman. He also spoke to PC Wadia who was transporting Jack Kapel, who owned the cottage from where the canoe had left. PC Wadia told PC Rickaby that Mr. Kapel told him Mr. Sillars was consuming alcohol at the cottage that day. PC Wadia noted he spoke to PC Rickaby at 6:26 pm. Shortly before he left the hospital PC Rickaby observed PC Maki standing in the general area of the emergency room outside Mr. Sillars’ room and he told PC Maki about the information PC Wadia received from Mr. Kapel that Mr. Sillars had been consuming alcohol before canoeing. PC Rickaby noted he left the hospital at 6:40 pm.

[107] In cross-examination Sgt. Allison was questioned about his evidence that he had learned from some officer, possibly PC Wadia, who advised the owner of the cottage had indicated Mr. Sillars had consumed alcohol before going out in the canoe. What is significant is this is what in fact was told to PC Wadia by Mr. Kapel and PC Wadia told PC Rickaby, and PC Rickaby told PC Maki who ultimately spoke with Sgt. Allison. It is my view there was so much going on that any one of those officers could have passed this information onto Sgt. Allison. Sgt. Allison had a recollection that an officer from the day shift who was leaving work passed this information onto him but he did not note it as he was dealing with PCs Reading and Woods. I find there is a reasonable inference that Sgt. Allison learned this information when he was at the detachment before he returned to the hospital or as he arrived at the hospital. The defence cited this as another example where Sgt. Allison was not telling the truth, however, as indicated above, it is my view there is a reasonable inference one of the officers noted above did advise Sgt. Allison of the information from Mr. Kapel. Sgt. Allison’s evidence on this issue was he thought he received the information from PC Wadia but was not sure as he did not note it, and that some officer at the detachment advised him of this information. I find there was no inconsistency in his evidence on this issue and it is clear this information had been conveyed to at least three police officers and ultimately conveyed to Sgt. Allison.

[108] PCs MacDonald and Coles arrived at the hospital between 6:10 and 6:13 pm. It is my understanding from their evidence they became aware that Jessica Hooper, Thomas’ mother, was in the quiet room at SMMH with PC Van Norman and they attended there to interview her. Again, other than the arrival time and when they left the hospital there are no times noted in either officer’s notebook. Constable MacDonald had no explanation other than it was so hectic and chaotic at the hospital he did not address his mind to entering the times things were occurring. Constable Coles testified his watch band had broken previously and he was not wearing a watch on his arm as a result and was using the clock in his police cruiser for times. The statement provided by Ms. Hooper was described, in answer to a question in cross-examination, as being detailed, which would obviously have taken some period of time.

[109] Sgt. Allison testified he returned to the hospital at 6:38 pm. PC Rickaby could very well have told Sgt. Allison what he had been told by PC Wadia as this was just before the time PC Rickaby left the hospital at 6:40 pm. Further, Sgt. Allison had requested PC Maki to speak to Mr. Sillars to determine what had happened with respect to the canoe capsizing and he could very well have told Sgt. Allison this information when Sgt. Allison arrived at the hospital. No one asked either PC Rickaby or PC Maki if this was information that was provided by them to Sgt. Allison. Again, as I have already indicated this incident created a traumatic, emotional and hectic set of circumstances for the police officers involved and a great deal of information was being obtained and shared by a number of different officers.

[110] The defence have attempted to put Sgt. Allison directly into Trauma Room 2 immediately upon his arrival at the hospital, however, it is my view when one examines the totality of the evidence concerning the period of time between 6:38 and 6:50 pm, there are events and conversations that would have required Sgt. Allison’s attention prior to his speaking to David Sillars. I will address this specific timing issue when I deal with the Charter application respecting whether the ASD demand was made forthwith.

[111] Both PCs MacDonald and Coles were in the quiet room when according to both officers, Sgt. Allison knocked on the door. Based on the evidence of PCs MacDonald and Coles there very well could have been two occasions this occurred where Sgt. Allison interrupted Ms. Hooper’s interview. The first time would be when Sgt. Allison requested PC Coles to retrieve the OPP Blackberry used where detained individuals had expressed a desire to call a lawyer or duty counsel. On the evidence here I find Sgt. Allison was ensuring he had the OPP Blackberry prior to commencing his investigation into whether grounds existed to make an ASD demand.

[112] The second occasion would be when both of these officers indicated Sgt. Allison called them out into the hallway outside the quiet room and they told him the information provided by Ms. Hooper during the interview, including her saying Mr. Sillars had 2 coolers and had left the cottage in the canoe at 4:45 pm. Constable MacDonald had no recollection of PC Coles being requested to retrieve the OPP Blackberry for Sgt. Allison. I find on the totality of the evidence that these interruptions occurred prior to Sgt. Allison entering Trauma Room 2 to speak to Mr. Sillars.

[113] I accept the evidence of both PCs MacDonald and Coles, who I found to be credible and reliable witnesses. Their evidence was balanced and precise, although they both neglected to put the times when things they were involved with occurred into their notebooks. In my view in a perfect world or different circumstances they would have noted times in their notes when things occurred but the circumstances were not conducive to perfection in note-taking by the officers involved in this investigation.

[114] The nurses’ notes, Exhibit 13, page 23, written by Vicki Smith, indicated at 6:45 pm the labs (blood) were drawn and sent to the lab and urine was sent for a drug screen at the same time. There is also reference to Mr. Sillars asking frequently about the eight year old boy. It was not until 6:50 pm that “OPP in to speak with pt” (Mr. Sillars). I find this was the time Sgt. Allison first entered Trauma Room 2 to investigate whether there were grounds to suspect Mr. Sillars had alcohol in his body in order to demand a breath sample into an ASD or whether Mr. Sillars’ ability to operate a vessel was impaired by alcohol. It is important to note Vicki Smith’s evidence that she was with Mr. Sillars until she was relieved by the night shift ER nurse at 7:30 pm. She was making notes as they were happening and she was noting the occasions the OPP were interacting with her patient, Mr. Sillars. I find Ms. Smith was a credible and reliable witness, who was clear in her evidence and that she had no agenda. Her concern was the well-being of Mr. Sillars, who was her only responsibility.

[115] In my view there is a reasonable inference on the evidence that Sgt. Allison spoke to the officers at the hospital who were speaking to witnesses or had spoken to Mr. Sillars to obtain information that would assist him in developing his grounds, which he testified was his reason for returning to the hospital. It does not accord with common sense or logic that he would attend Mr. Sillars room immediately upon arriving at the hospital. He had requested PC Maki to speak to Mr. Sillars to obtain information about what had happened. It accords with common sense that Sgt. Allison would have spoken to PC Maki before first speaking to Mr. Sillars. He also knew officers were speaking to Ms. Hooper, Thomas’ mother, and another officer, he believed it was PC Wadia, had spoken to the owner of the cottage. Further, it is my view Sgt. Allison needed the time the canoe first entered the water, which was provided to PCs MacDonald and Coles by Ms. Hooper as being 4:45 pm, before he spoke to Mr. Sillars in order to comply with s. 254(2) if he formed a reasonable suspicion Mr. Sillars had alcohol in his body within the preceding three hours. This time was noted in Sgt. Allison’s notes and he could only have received it from Constables MacDonald and Coles, who obtained it from Ms. Hooper.

[116] Sgt. Allison also did a self-test into the ASD to ensure it was working properly at 6:48 pm. I find there is a reasonable inference that he did this outside the room where Mr. Sillars was, which would have put him in a position to see the lab technician leaving Trauma Room 2 with a trolley and vials of blood to go to the hospital’s laboratory for testing, as he testified. I find Sgt. Allison was attempting to put everything in place to make an ASD demand so there would be no delays if he formed a reasonable suspicion Mr. Sillars had alcohol in his body within three hours of operating a vessel.

[117] At 6:50 pm, after speaking to the officers in the hospital to gather information and after doing the self-test on the ASD, I find Sgt. Allison entered Trauma Room 2 where Mr. Sillars was for the first time. When Sgt. Allison entered the room he agreed he did not explain to Mr. Sillars why he was there or what he was investigating. He asked Mr. Sillars to blow across his face and as a result detected a slight odour of alcohol on Mr. Sillars breath. In my view this was another example of Sgt. Allison being fair in his evidence, as he could have easily said the odour was strong. Sgt. Allison did not tell Mr. Sillars why he asked him to do this. He then asked if he had anything to drink and Mr. Sillars said two coolers. Sgt. Allison agreed he did not advise Mr. Sillars of his right to counsel before asking him to blow across his face or asking what he had to drink.

[118] As a result of smelling the slight odour of alcohol and Mr. Sillars’ admission that he had two coolers, Sgt Allison formed a reasonable suspicion Mr. Sillars had alcohol in his body within three hours of operating a vessel and he made a demand that Mr. Sillars provide a sample of his breath into an approved screening device. He read the demand from a card he had. Sgt. Allison noted the ASD demand was made at 6:50 am. In my view the timing of the two questions and the forming of a reasonable suspicion would have taken less than a minute and conforms with the time Sgt. Allison indicated in his notebook. Sgt. Allison agreed with the defence suggestion the request to blow across his face and whether he had anything to drink would have taken 15 seconds.

[119] Mr. Sillars responded, “Just wait.” Then he said, “I’m cold” and “Won’t this get me in trouble?” Sgt. Allison believed Mr. Sillars was concerned about giving a sample. He advised Mr. Sillars it was a legal demand and explained the consequences for failing to provide a sample of his breath.

[120] I find Sgt. Allison saw PCs MacDonald and Coles in the general area of the emergency area and stepped out briefly when Mr. Sillars became somewhat uncooperative about complying with the ASD demand and instructed them to see whether there was any extra blood not needed that could be sealed by police in the hospital’s lab. This is consistent with the evidence of PCs MacDonald and Coles.

[121] Mr. Sillars never refused to provide a sample of breath into the ASD and ultimately provided a suitable sample into the ASD at 6:57 pm. After the ASD processed the breath sample it registered a “Fail.” Sgt. Allison testified when an ASD registered a “Fail” this signified that the BAC was 100 mg or higher of alcohol in 100 mL of blood. At 6:59 pm, Mr. Sillars was arrested for impaired operation of a vessel and operating a vessel with a BAC of more than 80 mg.

[122] It was at this point that Sgt. Allison’s notes become somewhat problematic. His first note after the arrest of Mr. Sillars is that he read Mr. Sillars a caution from a card he carried, wherein he read:

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?

[123] He did not note a response. He also testified he read Mr. Sillars his right to counsel from the same card:

I am arresting you for impaired operation of a vessel and operating a vessel with over 80 milligrams of alcohol. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged for an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a number that will put you in contact with legal aid duty counsel for free legal advice right now. Do you understand?

[124] It was Sgt. Allison’s testimony in-chief that after he told Mr. Sillars he was arresting him for the offences of impaired operation of a vessel and operating a vessel with a BAC over 80 mg, Mr. Sillars asked him, “Do I need a lawyer?” Right after Mr. Sillars said that Sgt. Allison read him the right to counsel verbatim from the card he carried. He also explained to Mr. Sillars, “We can find a lawyer for you. If you have a name of a lawyer, I can even get a phonebook that’s at the detachment. We have lots of officers. We can go get the phonebook. We can look up your lawyer’s name in the phonebook and we can get his number.” Mr. Sillars said he didn’t have a lawyer and Sgt. Allison then said, “But you know what, we have free legal advice for you and that’s what this number is for, and we can put you in contact with a free lawyer and free counsel.” .Sgt. Allison testified Mr. Sillars opted for duty counsel, the free legal advice and the 1-800 number.

[125] PC Maki was in the room around the time of the right to counsel, although he was not paying attention to what was being said. PC Maki did not note the time. Sgt. Allison gave PC Maki the OPP Blackberry and asked him to call duty counsel for Mr. Sillars. Sgt. Allison then used his personal cell phone to call the detachment to get PC Woods to bring the Intoxilyzer 8000C to the hospital for the breath tests. Sgt. Allison testified he did this because he did not have his glasses and could not see the small numbers on the OPP Blackberry and he also had to make arrangements to have an officer bring the Intoxilyzer 8000C to the hospital. While he was speaking with PC Woods, PC Maki was handing him back the OPP Blackberry indicating duty counsel was on the phone.

[126] Sgt. Allison expressed being surprised when duty counsel answered right away, usually his experience was he had to leave a message and sometime later duty counsel would call back. Sgt. Allison testified there was a lot going on and he had not finished doing everything with Mr. Sillars. He had not read the formal breath demand to Mr. Sillars when duty counsel answered the call made by PC Maki. He decided to complete Mr. Sillars’ call with duty counsel and read the breath demand afterwards.

[127] Sgt. Allison called the detachment at 7:00 pm, to direct PC Woods to pack up the Intoxilyzer 8000C and bring it to the hospital. PC Woods confirmed he was contacted by Sgt. Allison around that time, he noted 6:59 pm, to bring the Intoxilyzer 8000C to the hospital. PC Rickaby, a qualified breath tech, assisted PC Woods pack up the Intoxilyzer 8000C before he left the detachment to go home.

[128] It was Sgt. Allison’s evidence that he handed the phone to Mr. Sillars at 7:03 pm, and advised him duty counsel was on the phone to speak to him. An affidavit was provided by Peter Gakiri, duty counsel, who spoke to Mr. Sillars. He indicated he was called at 7:04 pm and Mr. Sillars began speaking to him at 7:07 pm and the call ended at 7:12 pm.

[129] PC Maki testified when duty counsel answered right away when he dialed the 1-800 number, he immediately handed the phone back to Sgt. Allison as he had not had any involvement in the ASD demand and breath sample received or the “Fail.” Sgt. Allison did not recall speaking to the duty counsel himself yet he knew the duty counsel was a man. Usually the officer who calls duty counsel provides the individual’s name, the charges, what has occurred before giving the phone to the person detained to speak to duty counsel. This would certainly explain the delay in handing the phone to Mr. Sillars, as from the evidence Sgt. Allison and PC Maki were in Trauma Room 2 with Mr. Sillars when all of this occurred. Sgt. Allison agreed with the suggestion that he provided the duty counsel the details of Mr. Sillars’ arrest and the reason for it. After giving Mr. Sillars the phone the two officers exited Trauma Room 2 to provide Mr. Sillars with privacy.

[130] Sgt. Allison became aware at 7:06 pm that Thomas Rancourt had been pronounced deceased by the doctor. Mr. Sillars was still on the phone with duty counsel. Sgt. Allison made a decision to advise Mr. Sillars of the change in the charge and his increased jeopardy, so he entered Trauma Room 2 and advised Mr. Sillars of the change and spoke to the duty counsel and advised him. After advising of the change in charge and jeopardy, Sgt. Allison left the room to give Mr. Sillars privacy. A further nurses’ note indicates at 7:05 pm the OPP were in Mr. Sillars’ room speaking to him. Taking all of these times into consideration, recognizing there may be minor differences in the actual times between the different clocks used, it is my view, these entries support Sgt. Allison’s notes as to his getting PC Maki to call duty counsel, speaking to duty counsel to advise of the circumstances of Mr. Sillars’ arrest and interrupting the duty counsel call to advise of the change in charges and jeopardy facing Mr. Sillars because of Thomas Rancourt’s death.

[131] The call to duty counsel, according to Peter Gakiri, ended at 7:12 pm. Sgt. Allison’s note indicated he became aware of the call ending at 7:15 pm. As I explained earlier, this could be because 7:15 pm was when Sgt. Allison first saw Mr. Sillars was no longer on the phone. In my view the difference in times is not significant. When Sgt. Allison returned to Trauma Room 2 he asked if Mr. Sillars was okay with his conversation with duty counsel. Mr. Sillars did not indicate anything in the negative but Sgt. Allison does not recall exactly what Mr. Sillars said and did not note it. If Mr. Sillars had indicated any concerns about his call with duty counsel Sgt. Allison testified he would have called any other lawyer for Mr. Sillars.

[132] At 7:15 pm, Sgt. Sillars read Mr. Sillars the formal breath demand, which he had been interrupted in reading as a result of duty counsel answering the call immediately:

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?”

[133] Sgt. Allison testified it was his protocol to explain this to Mr. Sillars as well. He told Mr. Sillars, “This is a legal demand. You’re going to blow into an instrument, a very accurate instrument, and you have to provide at least two samples of breath into this instrument. So we’re going to go through that procedure now.”

[134] Sgt. Allison testified Mr. Sillars appeared to understand what he was required to do. Shortly after this was done PC Woods brought the Intoxilyzer 8000C into Trauma Room 2 at 7:20 pm. Sgt. Allison began setting up the Intoxilyzer 8000C and the defence conceded it was working properly. The nurses’ notes also indicate at 7:20 pm, OPP were in Mr. Sillars’ room.

[135] At 7:30 pm, the nurses’ notes indicate Mr. Sillars was asking to see Thomas’ mother but this was denied by the OPP as they were still in his room and Mr. Sillars still had to provide samples of his breath. This accords with Sgt. Allison’s notes where he indicated Ms. Hooper was not permitted to speak with Mr. Sillars as the police were still involved in obtaining breath samples from Mr. Sillars.

[136] Dr. Kents testified she entered Trauma Room 2 at 7:34 pm, and advised that Mr. Sillars needed to be kept overnight. She did a further cursory examination of Mr. Sillars. Dr. Kents also testified she had ordered a further series of blood tests to check Mr. Sillars’ levels before releasing him the next morning to ensure there were no further complications from the hypothermia.

[137] The Intoxilyzer 8000C was ready at 7:44 pm and Sgt. Allison re-read the breath demand and at 7:47 pm Mr. Sillars provided a suitable sample of breath with a breath reading of 97 mg.

[138] Between the two breath tests Sgt. Allison asked a series of questions and received answers from Mr. Sillars, which he testified he recorded as best as he was able on the Alcohol Influence Report (AIR). The admissibility of those utterances by Mr. Sillars will be determined later.

[139] At 8:12 pm, Mr. Sillars provided a good sample of his breath directly into the approved instrument, which resulted in a reading of 100 mg of alcohol in 100 mL of blood. Sgt. Allison also put a late entry into his notebook reflecting Mr. Sillars had to urinate just prior to providing the second sample but did not record a time. The nurses’ notes in Exhibit 13, at page 24 confirmed Mr. Sillars urinated at 8:10 pm and the nurse assisted with this.

[140] I will deal with the timeline respecting the sealing of blood by the OPP on April 7, 2017 and the execution of the warrant to seize the sealed blood and the hospital records, including any toxicology reports, when I deal with the defence Charter applications on those issues.

[141] I have referred to other police officers who were involved in the investigation of Mr. Sillars and I will deal more particularly with their evidence when I deal with the various Charter arguments put forward by the defence.

Analysis

1. Do Thomsen, Seo and Orbanski apply to a factual circumstances where an individual is in the hospital when the police are conducting an investigation into operation over 80 or impaired operation or does Suberu apply to require the police to advise the individual of his right to counsel before asking any questions?

[142] The defence submitted Mr. Sillars was detained within the meaning of s. 9 and 10 of the Charter when Sgt. Allison first entered Trauma Room 2 and directed him to blow across his face. It is the defence position Sgt. Allison should have first advised Mr. Sillars he was being investigated for operating the canoe while he had consumed alcohol. According to the defence, Sgt. Allison should also have advised Mr. Sillars he was free to refuse what Sgt. Allison asked him to do and that he did not have to answer the questions asked by the police. Further, the defence submitted because Mr. Sillars was detained Sgt. Allison was required to advise Mr. Sillars of his right to counsel pursuant to R. v. Suberu.[^11]

[143] The Crown argued Mr. Sillars was not detained as a result of Sgt. Allison’s questions at the hospital bedside. Mr. Sillars was not charged, arrested or physically or psychologically detained in any way. His movements were not directed, constricted, guided or confined in any way by the police. If Mr. Sillars was detained, the Crown submitted it was a brief suspension of his right to counsel as permitted and as directed towards the purposes considered by R. v. Orbanski,[^12] supra. The Crown argued the sobriety investigation conducted by Sgt. Allison was focused, brief, at the site of the detention, with no danger to the detainee and with minimal inconvenience to the detainee as identified in R. v. Smith.[^13]

Was David Sillars detained when Sgt. Allison requested he blow across Sgt. Allison’s face and then asked if he had been drinking? Was the request by Sgt. Allison for Mr. Sillars to blow across his face a s. 8 “search?”

[144] It is important to note that in R. v. Suberu,[^14] at para. 3, McLachlin C.J. and Charron J., for the majority, held:

However, as this Court held in Mann, not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual's right to counsel under s. 10(b). As Iacobucci J. aptly observed, "[t]he person who is stopped will in all cases be 'detained' in the sense of 'delayed', or 'kept waiting'. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint" (para. 19).

[145] It is important to understand the sequence of events that occurred before Sgt. Allison attended at the hospital to continue the investigation of the capsizing of the canoe Mr. Sillars and Thomas Rancourt had been in and to determine if any grounds existed where certain demands or arrests might be made. When Mr. Sillars was discovered on Highway 11 it was quickly determined he was suffering from hypothermia, which is a serious medical condition that requires immediate medical care and treatment. He was not arrested and he was not investigated in the parking lot beside High Falls where he was driven by Constables MacDonald and Coles. The concern was for his receiving immediate medical treatment. No police officer accompanied him to the hospital in the ambulance.

[146] Certainly the police had a duty to investigate this incident as a canoe had capsized and an eight year old boy was still missing and was actively being searched for by numerous police officers. Sgt. Allison was entitled, as was Constable MacDonald, to detail officers to attend the hospital and at an appropriate time for those officers to speak to Mr. Sillars to obtain more details as to what had happened. In my view the police officers were entitled to ask questions of Mr. Sillars or anyone else with knowledge of the events leading up to the decision to take the canoe out onto the Muskoka River and there was no obligation at that point in time to inform any of those individuals the officers spoke to of their Charter rights.[^15] Justice Nordheimer in the recent case of R. v. Culotta[^16] cites with approval the comments of McLachlin C.J.C. and Charron J. in R. v. Grant,[^17] which in my view applies to these early investigative steps:

In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.

[147] In Culotta, the police were investigating a boating accident on Lake Muskoka, where a motor boat with five women on board struck a rock outcropping. There were rescued and brought to a marina where ambulances were waiting. All of the women were injured, two of them seriously. The three least-injured women, including Ms. Culotta were placed in the same ambulance. The investigating officer went into the back of this ambulance where the three women were seeking shelter from the rain and received medical treatment from the paramedics. When the investigating officer was in the ambulance he detected the odour of alcohol. He asked who was driving the boat when it crashed. One of the women said it was Ms. Culotta and Ms. Culotta then said she had been driving the boat. The officer then asked if Ms. Culotta had been drinking and she admitted consuming alcohol and provided some detail. Justice Nordheimer agreed with the trial judge the statements of Ms. Culotta were voluntary. He did not agree with the appellant’s submission Ms. Culotta was detained in the ambulance, prior to the arrest as she was there not through the actions of the police but to receive medical treatment, relying on R. v. LaChappelle.[^18] He further held:

Further, at the time that Officer Tunney entered the ambulance, he did not know if any criminal offence had been committed. He was just beginning his investigation into the conduct surrounding the collision of the boat on the rocks. In embarking on that investigation, Officer Tunney was entitled to interview the persons involved and to ask them questions. There was no reason, at that point in time, for Officer Tunney to inform any of the individuals with whom he spoke of their Charter rights.[^19]

[148] There are many similarities between the facts in Culotta and the case at bar. Mr. Sillars was brought to hospital by ambulance and was not under arrest. When Mr. Sillars was placed in Trauma Room 2 he was receiving medical treatment to rectify and reverse his hypothermia. He was not detained by the police either in the ambulance or when he was first placed in Trauma Room 2. As I have already indicated it is my view when PC Maki was asking Mr. Sillars questions about what happened, Mr. Sillars was not detained. For the reasons which follow, I find Mr. Sillars was not detained until the ASD demand was made by Sgt. Allison having regard to the Ontario Court of Appeal decision in R. v. McMillan.[^20]

[149] Sgt. Allison testified he had received information when he was at the detachment from someone that David Sillars had been consuming alcohol that day at the cottage he was at. He agreed it was his intention to attend the hospital to assist in the investigation of the incident and to determine whether grounds existed respecting Mr. Sillars operation of the canoe earlier that day. Just after Sgt. Allison made the request for Mr. Sillars to blow across his face and asked if Mr. Sillars had anything to drink he told Mr. Sillars, “We’re the police. We have to do our job here.” After this comment Sgt. Allison read Mr. Sillars the ASD demand from his card (set out above) because the slight odour of alcohol he detected and the admission by Mr. Sillars of consuming “two coolers,” provided a reasonable suspicion Mr. Sillars had alcohol in his body within the preceding three hours. Upon reading the ASD demand Mr. Sillars asked Sgt Allison to “Just wait, I’m cold” and “Won’t this get me into trouble.”

[150] Sgt. Allison agreed with defence counsel that his request and question to Mr. Sillars would have only taken 15 seconds, so the sobriety testing was clearly focussed, brief and directed towards the purpose considered appropriate by Orbanski, supra.

[151] It is important to note that s. 254(2), which the Supreme Court in Thomsen and Orbanski recognized was an effective screening measure for the police to seek out and identify individuals who had blood alcohol concentrations greater than 80 mg of alcohol in 100 mL of blood is not restricted to only applying to motor vehicles as the defence seems to suggest in their alternative argument.[^21] Section 254(2) provides where a peace officer has a reasonable suspicion a person has alcohol in their body and that person has operated within the preceding three hours a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had care or control of a motor vehicle, vessel, an aircraft or railway equipment, the peace officer may, by demand, require the person to provide a sample of their breath into an approved screening device. There is no distinction drawn by the section as to the method of conveyance a person is operating.

[152] The fact Mr. Sillars was in a canoe rather than a motor vehicle does not change the purpose for the brief suspension of the right to counsel approved of in Orbanski. Mr. Sillars had been involved in a serious and extremely tragic circumstance involving his operation of a canoe on a river during the spring runoff when the river levels were elevated and the current was stronger and faster than normal and the request and question asked by Sgt. Allison of Mr. Sillars was done for the specific and valid purpose of assessing whether Mr. Sillars had alcohol in his body when he operated the canoe and in assessing Mr. Sillars’ sobriety. The evidence gathered could not be used as evidence at Mr. Sillars’ trial to provide proof of impairment or alcohol consumption. As indicated by Paciocco J. in R. v. Roberts[^22], at para. 82:

Lawfully obtained evidence conscripted from a detainee through roadside sobriety testing is admissible to establish grounds for an arrest or detention, but such evidence is not admissible as proof of actual alcohol consumption or impairment.

[153] Further, in Roberts, Justice Paciocco described a number of examples of sobriety testing contemplated by Orbanski and R. v. Milne[^23]:

To be clear, sobriety testing is not confined to the physical co-ordination tests prescribed by regulation as contemplated by s. 254(2)(a) of the Criminal Code. Sobriety testing can include questions asked about alcohol consumption (Orbanski); directions to detainees to perform physical challenges not provided for in s. 254(2)(a) such as informal co-ordination tests (Milne) or directions to exit a motor vehicle (Visser; and R. v. Iannotta, [2009] O.J. No. 5181 (S.C.)); or directions to blow into the face of an officer (R. v. Weintz, 2008 BCCA 233, 256 B.C.A.C. 197, leave to appeal refused, [2008] S.C.C.A. No. 362).[^24]

[154] I find Mr. Sillars was not detained when he blew across Sgt. Allison’s face and answered how much he had to drink. Mr. Sillars had been brought to the hospital because of a serious medical condition, hypothermia, as described by Dr. Kents in her evidence. He was not under arrest. The police did not interfere in any way with Mr. Sillars’ medical treatment, which I find based on all of the evidence from the medical staff and police officers involved. In my view this was one of those interactions between the police and members of the public, “even for investigative purposes,” that did not constitute a detention for Charter purposes (see Suberu, supra, and Grant, supra).

[155] Further, in my view on the totality of the evidence it cannot be said Sgt. Allison’s brief interaction upon entering Trauma Room 2 involved any significant psychological restraint. I find the officer's actions and the nature of his request and question would not cause any reasonable person in Mr. Sillars’ particular position to believe that he had no meaningful choice but to comply or cooperate with a police request or direction as alleged by the defence. Further, I have no evidence whether Mr. Sillars felt psychologically detained by Sgt. Allison coming into Trauma Room 2 and making the request and asking the question, as he chose not to testify on the voir dire respecting the Charter application “blended hearing,” which is his right. I do not agree with the defence assertion that “courts have generally agreed that police directions to blow into the face of an officer engages s. 8 of the Charter, although they have divided over whether this form of olfactory search is implicitly authorized by law during roadside stops as a form of field sobriety test.” I adopt Justice Paciocco’s comments noted above respecting how the Ontario Court of Appeal views sobriety testing. Mr. Sillars was not physically restrained by Sgt. Allison and was under no legal obligation to comply with Sgt. Allison’s request.

[156] I further find on the evidence that Mr. Sillars was fully aware of the reasons for the police interaction with him. I find Mr. Sillars was initially aware of the police concern for his well-being, finding him on Highway 11 and then bringing him into the back seat of the police SUV to warm him up, calling an ambulance to take him to the hospital for medical treatment. He was also aware of their concern with finding out what happened with the canoe and where Thomas Rancourt was in the river. Finally, I find he was aware by the very request and question asked by Sgt. Allison that the police were concerned about his consumption of alcohol while he was operating the canoe. In my view this is a reasonable inference to be drawn from the evidence. Mr. Sillars’ awareness of what Sgt. Allison was investigating when he asked Mr. Sillars to blow across Sgt. Allison’s face and how much he had to drink is reflected by Mr. Sillars” comment, “Won’t this get me in trouble?” which clearly demonstrated Mr. Sillars’ understanding and awareness of the police investigation.

[157] If Sgt. Allison’s request and question of Mr. Sillars, which took 15 seconds, was a detention for Charter purposes, it is my view this brief suspension of Mr. Sillars’ s. 10(b) Charter rights was permitted pursuant to Thomsen, supra, and Orbanski, supra. The Supreme Court in Orbanski recognized that a temporary suspension of the right to counsel is a necessary implication of the legislative scheme under s. 254(2) of the Criminal Code. Further, the Ontario Highway Traffic Act under s. 48(2) addresses driver’s license suspensions after an operator of a vessel on a waterway, after providing a sample of breath, registers a “Warn” on the ASD (see Orbanski, at paras. 43 and 44).[^25] The fact Mr. Sillars was operating a vessel or canoe does not alter the determination by the Supreme Court in Orbanski. In the circumstances of this case, it is my view the request and question by Sgt. Allison were minimally intrusive and fell within the temporary suspension of s. 10(b), as recognized in Orbanski, albeit in respect of an individual who was operating a canoe or vessel after consuming alcohol.

[158] I find Mr. Sillars was not detained until after Sgt. Allison formed the reasonable suspicion Mr. Sillars had alcohol in his body and was operating a vessel in the preceding three hours and he made the demand pursuant to s. 254(2). There was no detention until the ASD demand was made by Sgt. Allison, as found by the Court of Appeal in R. v. MacMillan.[^26] MacMillan was a case involving impaired operation of a vessel causing death. Justice Rosenberg found there was no detention until the ASD demand was made as Ms. MacMillan was “not physically restrained nor under any legal obligation to comply with a restrictive demand or direction,”[^27] citing Suberu. Until the demand was made there was no psychological detention. Justice Rosenberg did find a breach of ss. 9 and 10(b) because the officer who made the ASD demand did not immediately have Ms. MacMillan provide a sample of her breath into the ASD as she had fainted in the ambulance, became very upset and began to cry. The police officer wanted to determine whether Ms. MacMillan was medically able to provide a sample of breath so he decided to wait until she was seen by the emergency doctor. As a result there was almost an hour delay from the ASD demand until Ms. MacMillan provided a suitable sample, which registered a fail. Justice Rosenberg found the trial judge made a number of errors in his analysis under s. 24(2) and held the breath readings should not have been excluded and a new trial was ordered.[^28]

[159] Sgt. Allison took no action that could reasonably be interpreted as detaining Mr. Sillars or otherwise limiting or directing or curtailing his movements prior to making this demand. After Mr. Sillars’ failure of the ASD, he was arrested and detained by Sgt. Allison. I find Mr. Sillars was immediately advised of the reason for his arrest and the charges he was arrested for (impaired operation of a vessel and operating a vessel with a BAC over 80 mg/100 mL blood) and he was provided his right to counsel. I do not agree with Mr. Rosenthal’s submission that Mr. Sillars was detained as soon as Sgt. Allison requested he blow across his face, as this submission does not accord with R. v. McMillan, supra.

[160] The defence argued that Orbanski cannot apply to Mr. Sillars’ circumstances for “the main reason that this is a hospital detention. Orbanski involved a roadside detention.” The fact Mr. Sillars was in a hospital emergency room and that the request and question occurred at his bedside in my view does not preclude the application of the screening measures and the temporary suspension of the right to counsel approved of by the Supreme Court in Thomsen and Orbanski. The Crown submitted the officers who first encountered Mr. Sillars on Highway 11 could have delayed allowing Mr. Sillars to go to hospital if they had learned he had consumed alcohol prior to taking a child canoeing in the Muskoka River and as a result of the condition of the river the canoe capsized and the child’s whereabouts were presumed to be still in the river, those officers could have requested Mr. Sillars to blow across their faces and asked whether he had consumed any alcohol prior to canoeing on the river. They did not do this, rather, they immediately called for an ambulance to deal with what they believed was a serious medical condition, hypothermia. If they had determined there was a reasonable suspicion that Mr. Sillars had alcohol in his body within three hours of operating the canoe, they would have been required to administer the ASD test “forthwith.” The officers decided to have EMS transport Mr. Sillars to the hospital to receive medical treatment for his medical emergency and they therefore delayed investigating the incident involving Mr. Sillars. They had received some information about a young child still being in the river and other officers were commencing that search. As Justice Charron indicated in Orbanski, at para. 52:

… In my view, it logically follows from Thomsen that a limit on the right to counsel is also prescribed during the roadside screening techniques utilized in these cases. If a limit on the right to counsel is prescribed during compliance with a s. 254(2) demand for a sample for analysis in the roadside screening device, then the limit must necessarily be prescribed during the screening measures preceding the demand, conducted with the very objective of determining whether there is a reasonable suspicion justifying the demand. Similarly, the limit must necessarily be prescribed during the screening measure that is the functional equivalent to the roadside screening device, namely, a technique conducted with the very objective of determining whether there are reasonable and probable grounds justifying a s. 254(3) demand for a breath or blood sample.

[161] Similar circumstances frequently occur in impaired operation of a motor vehicle cases where the suspect is injured as a result of an accident and the police arrange for the driver to be transported to hospital where police officers may have to wait while the driver receives medical treatment and at an appropriate time continue their investigation by asking “sobriety” questions of the person who is now in a hospital bed. Where the person being investigated has not been arrested by police prior to being brought to the hospital by EMS, these cases recognize police officers can ask questions to determine whether there are grounds to arrest for impaired operation and make a breath demand or whether there is a reasonable suspicion the driver had alcohol in his body and if so, make an ASD demand. The fact they are now in a hospital setting does not mean the screening measures approved by Thomsen and Orbanski are no longer applicable.

[162] Police forces utilize marine units to patrol the waterways to ensure that the Small Vessel Regulations under the Canada Shipping Act, 2001 are being complied with. In the course of enforcing these laws if a police officer becomes aware the operator has consumed alcohol prior to operating the vessel it is my view similar “roadside” or “riverside” or “lakeside” screening measures or techniques would apply that would enable the officer to determine if a reasonable suspicion exists to justify the demand under s. 254(2). If the police officer made observations of various indicia of impairment and as a result formed reasonable and probable grounds the individual’s ability to operate the vessel was impaired, then, similarly, the operator could be arrested for impaired operation and after the right to counsel and caution had been given, the police officer would make a breath demand pursuant to s. 254(3). Further, the police will be called upon to investigate incidents involving collisions involving motor boats or other vessels or incidents involving the capsizing of canoes where injury or death ensue. Again, during investigations police may form grounds for making an ASD demand or for arresting an individual for impaired operation and providing Charter rights and a breath demand.

[163] It is my view the concerns expressed in paragraphs 24 to 28 of Orbanski are equally applicable to the dangers associated with persons who operate a vessel while under the influence of alcohol or other illicit substances to themselves, the passengers in their vessel or other vessels travelling on the waterway. There can be no doubt, as I expressed in my earlier ruling finding a canoe is a “vessel” under the Criminal Code, operating a canoe while impaired or with alcohol in their body is an activity that is inherently dangerous.

…As I indicated earlier, any kind of activity involving the use of a vessel, including those propelled exclusively by muscular power, is inherently dangerous given the activity is on water, where the depth of the water is usually greater than a person’s height and the proficiency of members of the public respecting their ability to swim is considerably varied. This is one of the reasons underlying the safety regulations respecting personal flotation devices (PDF) or life jackets and the requirement for all persons in a vessel, of any type, to be either wearing or have available a PFD in the vessel. The water in Canadian lakes and rivers and seas can be slow moving or fast moving, with rapids, waterfalls, obstacles and barriers, and the water can be extremely cold at all times depending on the location of the lake or river or territorial waterway or just during the spring and fall months before the weather warms the water. The combination of alcohol or marihuana or other illicit substances with activities on the water can only increase that inherent danger.[^29]

[164] In R. v. MacMillan,[^30] the Ontario Court of Appeal held an individual in these circumstances was not detained until after the police officer formed the reasonable suspicion the operator of the motor vehicle or vessel had alcohol in their body within the preceding three hours and made an ASD demand for a sample of their breath. The operator’s right to counsel was temporarily suspended until the ASD provided a result. If the ASD registered a “Fail” then the officer must advise the person what offence or offences they are being arrested for and their right to counsel, caution and the breath demand pursuant to s. 254(3).

[165] Consequently, I find Mr. Sillars’ ss. 9, 10(a) and 10(b) Charter rights were not infringed by Sgt. Allison. Further, the request for Mr. Sillars to blow across Sgt. Allison’s face was to determine whether grounds existed to reasonably suspect Mr. Sillars had alcohol in his body. Sgt. Allison had been provided information by other officers (PCs Wadia, Rickaby or Maki) that had been learned from the owner of the cottage that Mr. Sillars had been consuming alcohol at the cottage before he went canoeing. Further, he learned from PCs MacDonald and Coles outside the quiet room that Ms. Hooper had indicated Mr. Sillars had consumed two coolers when she was at the cottage. Determining if there was an odour of alcohol on Mr. Sillars’ breath was permissible for the purpose of determining whether there was a reasonable suspicion Mr. Sillars had alcohol in his body, as was Sgt. Allison asking what Mr. Sillars had to drink. The information obtained could be used by Sgt. Allison in determining if there was a reasonable suspicion that Mr. Sillars had alcohol in his body when he operated the canoe within the preceding three hours. In R. v. Brode,[^31] the Ontario Court of Appeal held that if an officer directs a motorist to get out of their vehicle as a sobriety test, the observations cannot be admitted at trial to prove impairment and only relate to the officer determining grounds. If an officer directs a motorist to get out of the car not as a sobriety test, but to facilitate further investigation, including gathering other information about sobriety through questioning once the driver is outside of the car, the observations made of the motorist while exiting the car are admissible at trial to prove impairment.[^32] Here, Sgt. Allison’s observation of a slight odour of alcohol and Mr. Sillar’s admission of consumption could only be used for grounds and could not be used to prove consumption given the two questions were asked to determine if there was a reasonable suspicion.[^33]

[166] Additionally, the defence argued Sgt. Allison’s request to Mr. Sillars to blow across his face was a s. 8 search, relying on R. v. Wills.[^34] As I have indicated above, Sgt. Allison had received information that Mr. Sillars had consumed alcohol prior to his operating the canoe in the Muskoka River and in my view his request for Mr. Sillars to blow across his face was solely for the purpose of determining whether there was a reasonable suspicion Mr. Sillars had alcohol in his body – to confirm the information he had received was permitted. He also asked Mr. Sillars if he had anything to drink, to which Mr. Sillars responded, “Two coolers.” In R. v. MacMillan,[^35] the Ontario Court of Appeal made reference to R. v. Wills and the passage referred to in the defence written submissions[^36] and Justice Rosenberg for the Court held

…this approach to breath samples was overruled by the majority of the court in Grant, at para. 111. The court has recognized that breath sample evidence is relatively non-intrusive and is not the significant state intrusion into one's personal privacy described in Wills.[^37]

[167] The request to blow across the officer’s face was not a state capture of Mr. Sillars’ breath, which might give rise to s. 8 concerns. Wills was referring to the accused blowing into an ASD, which in turn could lead to the formation of reasonable grounds to arrest on a charge of over 80 and then make a demand pursuant to s. 254(3) for breath samples into an approved instrument. As I indicated above it is my view the two questions asked by Sgt. Allison were permitted by Thomsen and Orbanski and there was no breach of s. 8.

2. Was the ASD demand made by Sgt. Allison made forthwith?

[168] Section 254(2)(b) provides:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it is in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[169] Sgt. Allison’s notes indicate he read the approved screening device demand to Mr. Sillars at 6:50 pm, after forming a reasonable suspicion Mr. Sillars had, within the previous three hours, alcohol in his body when he operated a vessel. As discussed above, Sgt. Allison’s reasonable suspicion was formed as a result of his asking Mr. Sillars to blow across Sgt. Allison’s face and asking whether Mr. Sillars had consumed any alcohol.

[170] The issue raised by the defence concerns the timing of when Sgt. Allison asked Mr. Sillars those two questions, which both parties agree would have provided Sgt. Allison with the reasonable suspicion set out in s. 254(2)(b) (see R. v. Lindsay, 1999 CanLII 4301 (ON CA), [1999] O.J. No. 870 (C.A.) at para. 2 and R. v. Carson, 2009 ONCA 157, [2009] O.J. No. 660 (C.A.)).

[171] The defence pointed to Sgt. Allison’s evidence in cross-examination that upon entering the hospital he went to Trauma Room 2 where Mr. Sillars was being treated for hypothermia. Mr. Rosenthal in cross-examination put to Sgt. Allison he entered the room where Mr. Sillars was shortly after he arrived at the hospital at 6:38 pm and immediately asked Mr. Sillars to blow across his face and asked what he had to drink. Mr. Rosenthal submitted if this was correct Sgt. Allison formed his reasonable suspicion around 6:40 p.m. and therefore did not make the ASD demand forthwith when his notes indicate the ASD demand was made at 6:50 p.m. It was submitted by Mr. Rosenthal there was a 10 minute delay from the formation of the reasonable suspicion and the ASD demand.

[172] However, there are two separate occasions where I find it is clear Sgt. Allison had conversations with Constables MacDonald and Coles at the hospital prior to his speaking to Mr. Sillars. One of those conversations occurred outside the quiet room, which was located some distance from the Emergency area down a hallway. This was where Sgt. Allison was advised by P.C. MacDonald of the information obtained from Jessica Hooper, Thomas’ mother; namely, Mr. Sillars and Thomas got into the canoe and paddled towards the barrier at 4:45 p.m. and that Mr. Sillars had consumed two coolers prior to going in the canoe. This information could only have been provided to Sgt. Allison by PC MacDonald shortly after Sgt. Allison arrived at the hospital and before he spoke to Mr. Sillars. I find, considering the whole of the evidence on this issue, that Sgt. Allison did not have a telephone conversation with Constable MacDonald where he was advised of Mr. Sillars consuming two coolers at the cottage before getting in the canoe. I accept P.C. MacDonald’s evidence this information was provided to him by Ms. Hooper at the hospital in the quiet room and he advised Sgt. Allison about this when they spoke, face to face, outside the quiet room. The other significant piece of information provided by Ms. Hooper was the time of canoeing – 4:45 p.m., which was provided by Ms. Hooper to PC MacDonald in the quiet room. Sgt. Allison was only provided this information by P.C. MacDonald at the hospital outside the quiet room. In order to make an ASD demand Sgt. Allison had to be aware the time of canoeing was within the preceding three hours. Unfortunately, both P.C. MacDonald and P.C. Coles did not note the time they spoke to Sgt. Allison outside the quiet room.

[173] It is my view, based on the whole of the evidence respecting this conversation and knowing Sgt. Allison had requested officers to determine additional facts to find out what had actually happened concerning the canoe capsizing, where on the river it occurred and what happened to Thomas, it makes sense Sgt. Allison would speak to P.C. MacDonald to determine what further information had been discovered before he approached Mr. Sillars. It is my view as well that Sgt. Allison had learned second or third hand from an officer at the police detachment that information had been given by the owner of the cottage of Mr. Sillars consuming alcohol. This explains why Sgt. Allison brought the approved screening device and blood kit with him when he returned to the hospital.

[174] Further, this also explains why Sgt. Allison requested P.C. Coles to retrieve the OPP cell phone from his cruiser. In my view it makes logical sense that Sgt. Allison would request the OPP Blackberry be obtained from his cruiser in the event he developed grounds to make an ASD demand after speaking to Mr. Sillars, that in providing a breath sample the ASD registered a “Fail” and the necessity of implementing access to counsel presented itself after arresting Mr. Sillars.

[175] Further, PC Maki testified he believed he briefed Sgt. Allison about what he had learned from Mr. Sillars as a result of PC Maki speaking to him. He testified this occurred when Sgt. Allison first arrived at the hospital. Sgt. Allison noted his arrival at SMMH occurred at 6:38 pm and I find he most likely spoke to PC Maki upon his arrival as he had detailed him, according to PC Maki, to speak to Mr. Sillars. PC Rickaby testified he spoke to PC Maki before he left the hospital and advised him that PC Wadia had spoken to the owner of the cottage where Mr. Sillars had been and received information that Mr. Sillars had been drinking before he left in the canoe on the river. Sgt Allison could have been told by PC Maki as well about an officer speaking to the owner of the cottage and that Mr. Sillars had been drinking before he went canoeing.

[176] Consequently, it is my determination that Sgt. Allison did not immediately enter Trauma Room 2 where Mr. Sillars was receiving medical treatment until after he had spoken to Constables MacDonald and Coles outside the quiet room. Further, I find he spoke to PC Maki before entering Trauma Room 2 to speak with Mr. Sillars. I also find at 6:48 p.m. Sgt. Allison tested the approved screening device he brought from the detachment by doing a self-test and checking when it was calibrated and determined the ASD was working properly. I find this occurred just outside Mr. Sillars’ room as I accept Sgt. Allison’s evidence Mr. Sillars was receiving medical treatment before he entered the room. This was also confirmed in the nurses’ notes, which reflected that blood was drawn from Mr. Sillars by either Nurse Smith or the lab technician, Gisela McPherson. It is significant that Nurse Smith did not have the OPP entering Trauma Room 2 until 6:50 pm, which was after the blood was drawn and the urine was provided and sent for analysis. This put Sgt. Allison in a position to observe the technician pushing a tray with vials of blood exiting Mr. Sillars’ room.

[177] The fact Sgt. Allison did not enter Mr. Sillars room until after he self-tested the ASD is further confirmed by Nurse Smith’s notes in Mr. Sillars’ hospital records, which indicated the OPP entered Mr. Sillars’ room at 6:50 p.m. I further find there is a reasonable inference that only Nurse Smith and Gisela McPherson were in Trauma Room 2 when blood was drawn from Mr. Sillars and a urine sample was obtained and sent for a drug screen analysis. Mr. Sillars was not detained by the police or under arrest when the hospital staff drew blood as per Dr. Kents’ order.[^38] I will deal with the order to draw blood from Mr. Sillars in greater detail when I address the defence submission that the hospital medical staff were co-opted by the police later in these reasons.

[178] I find that Sgt. Allison first entered Mr. Sillars’ room in the Emergency at 6:50 pm.[^39] I find Sgt. Allison asked the two questions of Mr. Sillars referred to above and upon forming his reasonable suspicion that Mr. Sillars had alcohol in his body within the preceding three hours of operating a vessel he immediately read Mr. Sillars the ASD demand pursuant to s. 254(2) of the Criminal Code from the preprinted card he carried. The only evidence I have concerning Mr. Sillars’ response to the ASD demand was from the evidence of Sgt. Allison that Mr. Sillars said, “Just wait,” then he said “I’m cold,” and “Won’t this get me in trouble?” As I previously indicated above, I find Sgt. Allison advised Mr. Sillars it was a legal demand and what the consequences were for refusing. I do not believe it was Sgt. Allison’s position that Mr. Sillars was refusing to provide a breath sample into the ASD, he described him as being generally cooperative prior to the ASD demand but somewhat uncooperative at after it was made.

[179] When this was occurring Sgt. Allison testified he observed Constables MacDonald and Coles standing in the general area of the Emergency so he stepped out and spoke briefly to them. He asked them to attend the hospital lab to see whether there was any extra blood that could be sealed. This was confirmed by both Constables MacDonald and Coles, who testified Sgt. Allison came out of Trauma Room 2 when they were standing in the general area of the Emergency Department, after they had left the quiet room, and said that Mr. Sillars was being uncooperative in response to the ASD demand. Sgt. Allison requested they attend the lab to determine if there was an extra blood that could be sealed. They left and Sgt. Allison returned to Trauma Room 2.

[180] When Sgt. Allison returned to Trauma Room 2, Mr. Sillars advised he would blow into the approved screening device. At 6:57 p.m., Mr. Sillars provided a suitable sample of his breath directly into the ASD and it registered a “Fail.” It is my view in terms of Sgt. Allison’s notes respecting the times when events took place, including, the formation of his reasonable suspicion and the ASD demand, his conversation with Mr. Sillars concerning the demand, his conversation with P.C.s MacDonald and Coles about possibly sealing a vial of Mr. Sillars’ blood and Mr. Sillars providing a breath sample, which resulted in a “Fail,” the timing has a chronological flow, which accorded with common sense and was logical having regard to everything that took place.

[181] I do not find there has been any breach of the requirement in s. 254(2) that the ASD demand be made “forthwith.” In R. v. Quansah,[^40] LaForme J.A., held:

45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.

[182] I find Sgt. Allison did not enter Trauma Room 2 until sometime around 6:50 p.m., according to the nurses’ note. In less than a minute Sgt. Allison formed his reasonable suspicion as a result of the two questions he asked, which took no more than 15 seconds and immediately made an ASD demand around 6:50 p.m. There was no Charter violation as the ASD demand was made forthwith after Sgt. Allison formed his reasonable suspicion Mr. Sillars had alcohol in his body when he operated a vessel within the preceding three hours.

[183] Even if Mr. Rosenthal was correct that Sgt. Allison entered Trauma Room 2 shortly after arriving at the hospital at 6:38 p.m., it was necessary for him to determine the time of canoeing to be satisfied Mr. Sillars was operating a canoe within the preceding three hours, which is part of the requirements under s. 254(2). This information was provided to Sgt. Allison outside the quiet room by P.C. MacDonald, as well as further confirmation that Mr. Sillars had consumed at least two coolers. Sgt. Allison also needed to make sure the ASD he had brought to the hospital was in proper working order, which he did at 6:48 p.m. when he did a self-test. In my view his speaking to P.C. MacDonald to ascertain the time Mr. Sillars was in the canoe was necessary to have the proper grounds to make the ASD demand.

[184] Finally, even if Sgt. Allison had formed his reasonable suspicion and not read the ASD demand “forthwith,” the time period between the formation of the reasonable suspicion and the ASD demand must be of such length that there is a reasonable opportunity for Mr. Sillars to consult with counsel. I find the time between 6:40 p.m. and 6:50 p.m., when the ASD demand was made, was not sufficient time for there to be a reasonable opportunity to consult with counsel (see R. v. Woods,[^41] R. v. Tornsey,[^42] R. v. Latour,[^43] and R. v. Gill[^44]). Consequently, there was no breach of Mr. Sillars’ s. 10(b) Charter rights even if there had been a delay between Sgt. Allison forming his reasonable suspicion and waiting to determine when the canoeing commenced. In R. v. MacMillan,[^45] the Ontario Court of Appeal held that greater flexibility can be tolerated in the “forthwith” requirement where the suspect has not been detained between the time the officer forms the grounds and the time at which the officer makes the demand. In MacMillan, Justice Rosenberg, in an over 80 mg of alcohol causing death and impaired operation causing death case, which involved a vessel, dealt with when a suspect was detained:

36 I agree with the appellant that the trial judge erred in holding that the respondent was detained before the demand was made. Before the demand was made, the respondent was not physically restrained nor under any legal obligation to comply with a restrictive demand or direction. As is made clear in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 23, even where a person is under investigation for criminal activity and is asked questions, the person is not necessarily detained. In the absence of a legal obligation to comply, detention arises where a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

38 Since the respondent was not detained until the demand was made, her rights under ss. 9 and 10(b) were not infringed in the period before the demand was made.[^46]

[185] As I have already found, Mr. Sillars was not detained until Sgt. Allison made the ASD demand at 6:50 pm. Consequently, there was no infringement of Mr. Sillars’ Charter rights.

3. Was Mr. Sillars arrested for the wrong offence after the “Fail” on the ASD and therefore not properly advised of what offence he was charged with?

[186] The defence argued I should find that Sgt. Allison only arrested Mr. Sillars after the “Fail” on the ASD for impaired operation of a vessel because this was what other officers noted they were told by Sgt. Allison. The defence further argued Sgt. Allison only advised Mr. Sillars and duty counsel of an increased charge of impaired operation of a vessel causing death and left out an increased charge of operating a vessel with over 80 mg of alcohol in 100 mL of blood causing death.

[187] The defence also made an issue of Sgt. Allison not initially considering charges of impaired operation causing bodily harm and over 80 causing bodily harm because of Thomas Rancourt being recovered from the Muskoka River vital signs absent. Sgt. Allison explained why he did not consider these charges when he first arrested Mr. Sillars after the “Fail” on the ASD. He testified the hospital emergency area was chaotic and hectic and he was not fully aware of the exact condition of Thomas Rancourt although he knew Thomas had been rescued from the river, brought to SMMH by EMS and he knew the emergency doctor and other medical staff were performing life saving measures on him.

[188] It was the Crown’s position Mr. Sillars had sufficient information as to what charges he was arrested for to be able to determine whether he wished to exercise his right to counsel and then to receive the proper advice if he chose to speak to counsel. As the Supreme Court of Canada said in R. v. Black,[^47] "An individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy."

[189] The Crown submitted Sgt. Allison’s actions in providing immediate information to Mr. Sillars and duty counsel concerning Mr. Sillars’ change in jeopardy was appropriate, citing R. v. Evans,[^48] where the Supreme Court held “the police must restate the accused’s right to counsel where there is a fundamental and discrete change in the purpose of the investigation, one involving a different or unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.”

[190] I do not accept the defence submission that because other police officers, who were not directly involved when Sgt. Allison was dealing with Mr. Sillars and were not present when he advised Mr. Sillars of the charges he was being arrested for after he failed the ASD, that I should find Sgt. Allison only arrested Mr. Sillars for impaired operation of a vessel simpliciter and later impaired operation of a vessel causing death. The fact other officers noted Sgt. Allison made reference to Mr. Sillars being charged with impaired operation of a vessel causing death does not mean this was the only charge laid.

[191] In fact, the original Information charged Mr. Sillars with operating a vessel with over 80 mg of alcohol in 100 mL of blood and impaired operation of a vessel causing death. Further, the release papers prepared by Constable MacDonald included both of these charges, which was in conflict with Constable MacDonald’s evidence where he indicated Sgt. Allison referred only to the impaired operation causing death charge. Obviously Constable MacDonald was incorrect in his recollection of what was said by Sgt. Allison because he returned to the detachment when the OPP were advised Mr. Sillars was being kept overnight and prepared the Promise to Appear and Undertaking so he could be released from the hospital. The original information set out both charges as did the Promise to Appear, which is still in force. On this fact alone I would find Sgt. Allison advised Mr. Sillars of both charges – operating a vessel with over 80 mg of alcohol in 100 mL of blood and impaired operation of a vessel simpliciter and later impaired operation of a vessel causing death. It would appear, given the original information and the Promise to Appear that Sgt. Allison did not elevate the s. 253(1)(b) offence to a s. 255(3.1) offence. He was not asked about this discrepancy. The more serious over 80 charge was laid when a replacement information was filed with the Bracebridge Ontario Court of Justice. This information included the four charges this trial was conducted in respect of.

[192] I have no doubt that Sgt. Allison initially told Mr. Sillars when he failed the ASD that he was under arrest for operating a vessel with more than 80 mg of alcohol in 100 mL of blood, as well as the charge of impaired operation of a vessel. Sgt. Allison initially believed he passed the Blackberry to Mr. Sillars when he was told by PC Maki duty counsel had answered the phone. In cross-examination Sgt. Allison agreed he usually advised duty counsel of the circumstances of an individual’s arrest. He accepted the evidence contained in the duty counsel, Peter Gakiri’s, affidavit, namely, that he received a call from Bracebridge OPP at 7:04 pm and did not speak to Mr. Sillars until 7:07 pm, which caused Sgt. Allison to believe he had advised duty counsel of the circumstances surrounding Mr. Sillars’ arrest for over 80 and impaired operation.

[193] In my view there is a reasonable inference that Sgt. Allison advised Mr. Gakiri of the circumstances leading to Mr. Sillars’ arrest, including the following facts: Mr. Sillars had been operating a canoe after consuming alcohol on the Muskoka River; the canoe capsized throwing Mr. Sillars and an eight year old boy into the cold waters; Mr. Sillars made it to shore but suffered hypothermia and was in the Emergency of South Muskoka Memorial Hospital; the eight year old boy was also in hospital and receiving medical care; the officer detected a slight odour of alcohol on Mr. Sillars’ breath and Mr. Sillars admitted consuming two coolers and he had failed the ASD. I also find there is a reasonable inference Sgt. Allison advised Mr. Gakiri that Mr. Sillars would be providing breath samples into an approved instrument when he first spoke to him.

[194] The defence argued Sgt. Allison never turned his mind to the distinction of the two offences (over 80 and impaired) and arrested Mr. Sillars for only impaired operation, which he later upgraded to impaired operation cause death. I do not agree with this submission. Sgt. Allison after the failure on the ASD and after reading the right to counsel from the pre-printed card, called the detachment and spoke to PC Woods and requested he pack up the Intoxilyzer 8000C to bring to the hospital. Sgt. Allison obviously turned his mind to the over 80 charge, which arose directly from Mr. Sillars’ failure on the ASD. Further, Sgt. Allison turned his mind to the fact Mr. Sillars’ BAC was 100 mg or greater as a result of the “Fail” on the ASD, which provided him with reasonable and probable grounds that Mr. Sillars’ ability to operate a canoe was impaired by the consumption of alcohol based on his experience and knowledge of what expert witnesses attest to.

[195] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, Durno J., delivering the judgment of the Ontario Court of Appeal, summarized the proper approach to be taken by trial judges in assessing whether the necessary reasonable and probable grounds exist. In R. v. Suntharalingham, 2012 ONSC 6207, [2012] O.J. No. 5145 (S.C.J.), Campbell J. summarized this approach as follows in para. 21:

(1) The standard of reasonable and probable grounds lies somewhere between "reasonable suspicion" and "proof beyond a reasonable doubt." Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. See: R. v. Bush, at para. 36-37. See also: R. v. Censoni, at para. 30-31; R. v. Shepherd, at para. 23; R v. Baron (1993), 1993 CanLII 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.) at pp. 531-532.

(2) In the context of a demand for breath samples, the requirement of reasonable and probable grounds standard is "not an onerous test." It must not be "inflated to the context of testing trial evidence," but neither must it be "so diluted as to threaten individual freedom." See: R. v. Bush, at para. 46. See also: R. v. Wang, at para. 17; R. v. Censoni, at para. 43.

(3) There is no necessity that the accused be in a state of "extreme intoxication" before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves "any degree of impairment from slight to great." Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, whether impacting upon perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. Accordingly, to justify an arrest or breath demand, the police officer need only have objectively based reasonable and probable grounds to believe that the accused's ability to drive was "slightly impaired" by alcohol. See: R. v. Bush, at para. 47-48. See also: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (C.A.); Affirmed: 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478; R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1; R. v. Censoni, at para. 47; R. v. Wang, at para. 17.

(4) In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked to engage in a "dissection" of the officer's grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene "without the luxury of judicial reflection." Yet it is "neither necessary nor desirable" to conduct an impaired driving trial as if it were a "threshold exercise in determining whether the officer's belief was reasonable." See: R. v. Bush, at para. 55. See also: R. v. McClelland (1995), 1995 ABCA 199, 165 A.R. 332 (C.A.); R. v. Jacques, [1996] 3 S.C.R. 12, at para. 23; R. v. Censoni, at para. 43.

(5) An assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent of an "impaired driver scorecard," with a list of all the "usual indicia of impairment" and counsel conducting an inventory as to which indicia are present and which are absent as part of the essential assessment. Indeed, there is "no mathematical formula" whereby the police officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessary reasonable and probable grounds are objectively present. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding that there are reasonable and probable grounds to believe the accused is impaired based upon all of the circumstances of the case. See: R. v. Bush, at para. 56. See also: R. v. Censoni, at para. 46; R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; R. v. Wang, at para. 21.

(6) A trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. A trial judge is entitled to take into consideration the experience and training of the police officer in assessing whether or not he or she objectively possessed the necessary reasonable and probable grounds. See: R. v. Bush, at para. 61. See also: R. v. Censoni, at para. 36-37.

[196] I find on the totality of the evidence on this issue that Mr. Sillars was certainly aware of the jeopardy he was facing after failing the ASD. Sgt. Allison testified he arrested Mr. Sillars for over 80 because the approved screening device was calibrated to fail when a person’s BAC was 100 mg or more, which was over 80 mg. I accept Sgt. Allison’s evidence on this issue as it accords with common sense. Sgt. Allison testified he also arrested Mr. Sillars for impaired operation because he knew as a qualified breath technician that toxicologists at the Centre of Forensic Sciences provided the opinion that if a person had a BAC of 100 mg of alcohol in 100 mL of blood or more, their ability to operate a motor vehicle was impaired. Considering the totality of the circumstances of this case, taking an eight year old boy in a canoe during spring run-off, when water levels were high, where the water was extremely cold and it was moving faster than normal, together with the impairment to a person’s intellectual faculties when they have a BAC of greater than 50 mg of alcohol in 100 mL of blood (the evidence of Mr. Palmentier, Toxicologist at CFS on this trial), it is my view a police officer, with Sgt. Allison’s experience as a qualified breath technician for 29 years, would have both subjective and objective reasonable and probable grounds to arrest for impaired operation after Mr. Sillars’ failure of the ASD.

[197] In my view Sgt. Allison could reasonably rely on the following facts supporting impairment:

1. The decision by Mr. Sillars to go canoeing towards High Falls with an eight year old boy during spring run-off; a swollen river; cold temperatures, both air and water and an extremely fast current;

2. An unexplained capsizing of the canoe;

3. A slight odour of alcohol on Mr. Sillars’ breath;

4. His admission of consuming two coolers;

5. Information from the owner of the cottage and from Ms. Hooper that Mr. Sillars had consumed alcohol before going in the canoe;

6. Mr. Sillars’ “Fail” on the approved screening device, Alcotest 6810, which indicated a breath reading of 100 mg of alcohol in 100 mL of blood or more; and

7. Sgt. Allison’s belief and knowledge that CFS Toxicology experts testify a person’s ability to operate a motor vehicle or vessel is impaired with a BAC 100 mg or more.

[198] I find Sgt. Allison had a subjective belief Mr. Sillars’ ability to operate a canoe was impaired by the consumption of alcohol. Further, I am satisfied on the totality of the information available to Sgt. Allison after Mr. Sillars’ failure on the ASD, there were, objectively viewed, reasonable grounds for him to believe Mr. Sillars was operating a canoe while his ability was impaired by alcohol.

[199] Further, given my findings that the definition of “vessel” included a canoe, the fact there were or were not studies concerning the impact of alcohol on a person’s ability to operate a canoe does not diminish or minimize the studies respecting impairment by alcohol, which have generally assessed alcohol’s ability to impair a person’s intellectual faculties relating to decision making, divided attention, vigilance, risk assessment, choice reaction time, vision or where the person is faced with sudden or unexpected tasks or events or emergencies. It is not difficult to appreciate how a person’s intellectual faculties would be impaired by the consumption of alcohol in respect of their operation of a canoe, particularly in the circumstances presented on the facts of this case.

[200] When Sgt. Allison was advised Thomas Rancourt had been declared deceased, he made the decision to interrupt Mr. Sillars’ call with duty counsel to advise Mr. Sillars and duty counsel of the change in circumstances and the increased jeopardy Mr. Sillars was then facing. It is my view Sgt. Allison cannot be criticized, in the circumstances that were presented, for advising Mr. Sillars and duty counsel, while Mr. Sillars was still speaking with duty counsel, of the more significant charge Mr. Sillars was facing as a result of the death of Thomas Rancourt, namely, impaired operation of a vessel causing death.

[201] No issue was taken by the defence respecting Sgt. Allison interrupting Mr. Sillars’ call with duty counsel to advise of the increased jeopardy Mr. Sillars was facing. Mr. Gakiri was not called as a witness on the blended hearing addressing the Charter applications. He provided an affidavit that was filed as part of the Agreed Statement of Facts prepared by counsel, yet this affidavit did not address the information provided to Mr. Gakiri by the police (Sgt. Allison) relating to Mr. Sillars arrest. The defence assertion that “duty counsel may very well have concluded that Sgt. Allison was making a deliberate decision not to pursue a charge of operation of a vessel over 80 causing death and would for that reason not be making a breathalyzer demand and relied on that assumption when giving [Mr. Sillars] legal advice” is without merit. In my view it would be pure speculation to accede to this submission. Indeed, I have already found there is a reasonable inference Sgt. Allison did advise Mr. Gakiri he intended to obtain two samples of Mr. Sillars’ breath into an approved instrument as a result of the ASD “Fail” when he first spoke to him. If the defence submission accorded with Mr. Gakiri’s evidence, one could reasonably assume he would have been called as a witness on the Charter application given the onus is on the defence to demonstrate the breach of Mr. Sillars’ s. 10(b) Charter rights.

[202] On the totality of the evidence it is my view Mr. Sillars was fully aware of the charges he was facing as well as the jeopardy he was in. It is clear from his response to Sgt. Allison when the ASD demand was read to him, “Is this get me into trouble” that he was acutely aware of where the police questions were heading. He had indicated to PC Maki how stupid his decision was to go canoeing with Thomas to retrieve the blue barrel at the barrier just above High Falls. He knew Thomas had been swept down river and had likely gone over the waterfalls. In my view this leads to the reasonable inference Mr. Sillars was aware of what Sgt. Allison was investigating and the reason why he was being asked to blow across Sgt. Allison’s face and what he had to drink. On the evidence before me I find Mr. Sillars was fully aware of the charges he was arrested for after he failed the ASD.

[203] Further, when the doctor pronounced Thomas Rancourt as being deceased at 7:06 pm. Sgt. Allison interrupted Mr. Sillars’ call with duty counsel and advised of the more serious charge he was facing and the increased jeopardy. Mr. Sillars was able to have an informed discussion with duty counsel about the implications of the more serious charge.

[204] I do not agree with the defence that Mr. Sillars was arrested for the wrong offence or that he was not properly advised of the basis for his arrest. On the totality of the evidence dealing with this issue Mr. Sillars has failed to establish an infringement of his s. 10(a) and 10(b) Charter rights on this issue.

4. Was Mr. Sillars’ s. 10(b) right infringed because he was not afforded counsel of choice?

[205] As I have indicated, it is important to note that Mr. Sillars bears the onus of proving a breach of his s. 10 Charter rights on a balance of probabilities. Mr. Rosenthal submitted the police “funnelled” Mr. Sillars to duty counsel and consequently, they breached his Charter rights under s. 10(b) of the Charter. Mr. Rosenthal does not take any issue with the wording of the right to counsel contained on the pre-printed card Sgt. Allison had. The standard right to counsel advises a detainee they have the right to telephone any lawyer they wish, without delay and they also have the right to free advice from a legal aid lawyer and a toll free number is provided.

[206] Section 10(b) of the Charter is comprised of two components: an informational component and an implementational component: see R. v. Bartle.[^49] Ordinarily, the informational component only requires the police to inform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aid and duty counsel: see Bartle; R. v. Devries;[^50] and R. v. Willier.[^51]

[207] In R. v. Brydges,[^52] the Supreme Court held the police must give a detainee his rights to counsel before breath samples are provided and must give the detainee sufficient information to make an informed decision about speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have an obligation to facilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and consult counsel, see R. v. Manninen.[^53]

[208] The Supreme Court of Canada has consistently held since R. v. Baig,[^54] that the implementation duties of the police "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel": R. v. Bartle;[^55] R. v. Willier;[^56] and R. v. Taylor.[^57] The Ontario Court of Appeal has also held that implementation obligations arise only when detainees express a wish to exercise their right to counsel: R. v. Fuller.[^58] The question of whether a detainee asserted a desire to consult with counsel is essentially a question of fact: R. v. Backhouse[^59] and R. v. Owens.[^60]

[209] In R. v. Sinclair,[^61] the Supreme Court has also made it clear the implementational duties of the police flowing from s. 10(b) are not absolute. Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended. This has been recently confirmed in R. v. Owens.[^62] (See also R. v. Burlingham,[^63] R. v. Ross,[^64] and R. v. Richfield.[^65])

[210] After failing the ASD at 6:57 pm Sgt. Allison arrested Mr. Sillars for impaired operation of a vessel and operating a vessel with more than 80 mg of alcohol/100 mL of blood, Mr. Sillars asked Sgt. Allison, “Do I need a lawyer?” He testified he read Mr. Sillars the caution from the pre-printed card he had. When he was asked if he read Mr. Sillars anything else Sgt. Allison testified he read Mr. Sillars’ his right to counsel, also from the same pre-printed card. He told him he was under arrest for impaired operation of a vessel and operating a vessel with more than 80 mg of alcohol. He read the right to counsel verbatim:

It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged for an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a number that will put you in contact with legal aid duty counsel for free legal advice right now. Do you understand?

[211] Mr. Sillars responded to the right to counsel, “I don’t have a lawyer.” Sgt. Allison testified he specifically recalled telling Mr. Sillars, “We can find a lawyer for you. If you have a name of a lawyer, I can even get a phonebook that’s at the detachment. We have lots of officers. We can go get that phonebook. We can look up your lawyer’s name in the phonebook and we can get his number.” Mr. Sillars again told Sgt. Allison he didn’t have a lawyer. Sgt. Allison told him, “You know what, we have free legal advice for you and that’s what this number is for, and we can put you in contact with a free lawyer and free counsel.”

[212] Sgt. Allison testified Mr. Sillars opted for counsel – duty counsel, free legal advice and they called the 1-800 number. Sgt. Allison described how there was a great deal of commotion at the hospital, it was chaotic and very hectic and he had a number of things he had to do, which included calling for an Intoxilyzer to be brought to the hospital from the detachment. He asked PC Maki to use the OPP Blackberry to call duty counsel. When PC Maki called duty counsel the duty counsel lawyer answered right away, which was unusual and a surprise to Sgt. Allison. He was still making arrangements for the Intoxilyzer. Sgt. Allison testified he took the phone and gave it to Mr. Sillars at 7:03 pm and told him duty counsel was on the phone for him to speak to. He and PC Maki left to provide Mr. Sillars privacy.

[213] Sgt. Allison testified he knew he had not read Mr. Sillars the breath demand but decided to read it to him after he finished the call with duty counsel. At 7:06 pm Sgt. Allison was advised by medical staff that Thomas Rancourt had passed away. He decided he should advise Mr. Sillars and duty counsel of this increase in jeopardy and the seriousness of the charge Mr. Sillars was now facing – impaired operation of a vessel causing death. He left the room again. The call according to Sgt. Allison was completed just before 7:15 pm when he re-entered Trauma Room 2 and read Mr. Sillars the breath demand. I will deal with the Charter application concerning Sgt. Allison reading of the breath demand after Mr. Sillars spoke to duty counsel, which is alleged to be an infringement of Mr. Sillars’ s. 10(b) Charter rights later in these reasons.

[214] Sgt. Allison’s notes in respect of his providing Mr. Sillars with his right to counsel are problematic and far from perfect. I was not provided with all of his notes on this issue but it is clear from his evidence there were two “late” entries concerning the rights to counsel. The first was entered in Sgt. Allison’s notes right after the 7 pm entry where he arranged for an Intoxilyzer to be brought to the hospital. Prior to the entry concerning the Intoxilyzer, Sgt. Allison noted the failure on the ASD, Mr. Sillars’ arrest for impaired and over 80 and his reading of the caution, which he read from the pre-printed card. The entry concerning the right to counsel has an asterisk to indicate it is out of order and should have followed the arrest with the caution following the right to counsel. This entry indicated: “Rights explained at time of arrest. Male understands and wanted to talk to counsel.” Sgt. Allison maintained Mr. Sillars’ response to the rights to counsel being read was “Do I need a lawyer?” In his second day of cross-examination this changed to “Should I call a lawyer.” It was Sgt. Allison’s testimony that Mr. Sillars decided to speak to duty counsel.

[215] The second late entry was made by Sgt. Allison just prior to ending his tour of duty on April 8, 2017, around 5 am, when he wrote in his notes: “He immediately asked about a lawyer.” What is clear from the evidence was that Sgt. Allison did not accurately record anything in his notes relating to Mr. Sillars’ response to the reading of the right to counsel. Further, Sgt. Allison did not record any of the additional things he said to Mr. Sillars comment when he was arrested, “Do I need a lawyer” or “Should I call a lawyer.” Sgt. Allison testified they had a conversation where they discussed whether Mr. Sillars had a lawyer he wanted to call. Sgt. Allison testified Mr. Sillars said, “I do not.” Sgt. Allison told Mr. Sillars there was free duty counsel available and it was as a result of this conversation that Sgt. Allison called duty counsel, as Mr. Sillars wanted to speak to a lawyer but did not have one so he opted for duty counsel. Sgt. Allison testified if a person does not have a lawyer or the name of a lawyer there is duty counsel they can call.

[216] The defence Charter application alleges Sgt. Allison “funnelled” or “steered” Mr. Sillars towards duty counsel and did not advise him he had the right to make inquiries which would enable him to identify, select and contact private counsel and then to be given the necessary means to do so.[^66] A number of cases decided by Ontario Court of Justice judges were cited to support this obligation on the police. I do not agree with many of those decisions.

[217] First, this is not a case where Mr. Sillars requested to speak to a specific lawyer but did not have the lawyer’s phone number. This was also not a case where Mr. Sillars requested to call a friend or family member to obtain the name of a lawyer. This is also not a case where Mr. Sillars requested a phonebook to look up a criminal lawyer to call. The only evidence on this trial is that Mr. Sillars did not have a lawyer he wanted Sgt. Allison to call on his behalf. Sgt. Allison testified after Mr. Sillars said he did not have a lawyer he asked Mr. Sillars if he wanted to call duty counsel, which was a free lawyer available by calling a 1-800 number. According to Sgt. Allison, Mr. Sillars decided he wanted to call duty counsel. On the evidence this is not a case where Mr. Sillars requested to speak to counsel of choice or a friend/family member to get the name of a lawyer, rather, according to Sgt. Allison’s evidence Mr. Sillars requested to speak to duty counsel and he was put into contact and was able to speak to duty counsel.

[218] Second, Mr. Sillars chose not to testify on the blended hearing dealing with the Charter applications, which was his right. Unfortunately I do not have any evidence from Mr. Sillars as to what his intentions were respecting his rights to counsel and therefore the evidentiary basis for the defence allegation must be inferred from the evidence adduced on the blended hearing. The defence submitted because Sgt. Allison did not make any specific notes about Mr. Sillars requesting to speak to duty counsel I should be unsure as to whether Mr. Sillars had requested duty counsel be called or whether he had requested to try and find and contact a private lawyer. In my view the difficulty with this submission, despite Sgt. Allison’s clearly deficient note-taking, is it would be pure speculation to find Mr. Sillars wanted the opportunity to try to find his own private counsel as there is no evidence upon which to find there is a reasonable inference that was his request. In fact, in one of the cases cited by the defence, R. v. Manuel, Justice Burstein stated:

Of course, where an accused fails to testify or their testimony has been rejected, that accused is unlikely to meet their burden of demonstrating a s. 10(b) violation.

[219] Third, it was clear from the evidence that Sgt. Allison was not overbearing or abrasive or dismissive in his dealings with Mr. Sillars. He testified he initially thought Thomas Rancourt was Mr. Sillars’ son and as a result had sympathy and empathy for him and the surrounding circumstances. He further indicated even after learning Mr. Sillars was Thomas’ mother’s boyfriend he felt empathy for him, given the tragic circumstances and it was clear to Sgt. Allison Mr. Sillars was clearly concerned for Thomas’ wellbeing. Sgt. Allison also indicated Mr. Sillars, throughout his dealings with Sgt. Allison, was polite and courteous towards him and I draw the reasonable inference Sgt. Allison and Mr. Sillars were not at odds with each other, rather, they got along with each other despite the difficult circumstances. This leads to the reasonable inference that Sgt. Allison had no motive for ignoring Mr. Sillars’ requests, if he made any, by funnelling Mr. Sillars to duty counsel.

[220] Fourth, the defence were not able to provide me with any binding authority that there is an obligation on the police to provide a phonebook or a cell phone with data or a computer to allow a detainee to search for a criminal lawyer where they request a lawyer but do not know of one. It is my view there are many binding authorities, which stand for the exact opposite, many of which I have referred to above.

[221] Fifth, the test is not whether Sgt. Allison could have done more for Mr. Sillars in obtaining a phonebook from the detachment or using his own cell phone’s data or the OPP Blackberry’s data to look up the names and phone numbers of criminal lawyers. The question is whether Sgt. Allison provided Mr. Sillars with the information required to assist in exercising the rights to counsel, and whether he facilitated that contact (see R. v. Winterfield,[^67] and R. v. Gentile[^68]). Sgt. Allison did facilitate contact with duty counsel and Mr. Sillars received legal advice from duty counsel.

[222] In R. v. Winterfield,[^69] Justice Durno held there is no automatic breach of the right to counsel if the detainee speaks to duty counsel after unsuccessfully seeking to contact their own counsel: R. v. Littleford;[^70] and R. v. Mayo.[^71] The defence did not allege in their cross-examination of Sgt. Allison that he had deliberately ignored Mr. Sillars’ request to speak to a specific lawyer. There was no allegation during their questioning that he in any way deliberately did anything to subvert or prevent Mr. Sillars from obtaining legal advice. Mr. Rosenthal submitted because Sgt. Allison’s note-taking did not contain any specific note reflecting Mr. Sillars’ requesting or even acceding to duty counsel there was no “valid waiver” by Mr. Sillars “to receive fully adequate information about his constitutional options.” It is my view, based on the authorities referred to above, Bartle, Manninen, Brydges, Baig, Willier, Devries and Sinclair that the police need only advise a detainee of his right to retain and instruct counsel without delay, that he can call any lawyer he wishes and to inform the detainee of the availability of Legal Aid and free duty counsel. This was not a situation where the detainee was waiving his right to counsel as discussed in Bartle. The notion of a valid waiver arises where a detainee requests to speak to a lawyer and then decides later he does not want to speak to a lawyer, which has no application to the facts in Mr. Sillars’ case. Sgt. Allison did what the jurisprudence required him to do in terms of the informational and implementational components. In my view Mr. Sillars did not waive his right to speak to counsel, in fact he did speak to counsel – duty counsel.

[223] It is not so long ago that the Canadian Charter of Rights and Freedoms did not exist and when it was first made the law of Canada it was extremely difficult to put detainees in contact with a lawyer, particularly since 24 hour duty counsel did not exist. In fact, it was not until Brydges[^72] in 1990 where the Supreme Court of Canada extended the informational component of s. 10(b) to include the requirement that the detainee must be informed of the existence and availability of duty counsel through Legal Aid, and the availability of 24 hour, seven days a week, immediate free legal advice to everyone through duty counsel services assuming those services existed in the jurisdiction. The importance of free duty counsel was reiterated in Bartle.[^73] In Devries[^74] the Ontario Court of Appeal held:

The requirement that all detainees must be told of the existence and means of accessing duty counsel and Legal Aid gives the constitutional right to counsel found in s. 10(b) real meaning. The right would be hollow for those unaware of how they might obtain immediate legal assistance if they were given no information by the authorities as to how to access legal assistance. Nor, given the dynamics at play in a detention situation, should the onus be on the detainee to make inquiries as to how he or she might exercise the constitutional right to counsel. Brydges and Bartle ensure that all detainees have sufficient information to make an informed decision as to whether to speak with counsel before submitting to police interrogation or testing. [Emphasis added]

[224] It is difficult to reconcile the attitude that has developed in recent years where duty counsel are treated as second class incompetent lawyers with the comments made in Brydges, Bartle and Devries concerning the importance of the immediate free legal advice through the toll-free number, which conveys the necessary immediacy and universal availability of legal assistance. The cases cited by Mr. Rosenthal in the Applicant’s Factum, at paragraphs 42 to 48, place a requirement on police officers to assist detainees who do not know any criminal lawyers or do not have a “counsel of choice” with searching and trying to locate and then contact private counsel. This requirement is nowhere to be found in the jurisprudence from the Supreme Court of Canada, the Ontario Court of Appeal or the Ontario Superior Court appellate decisions. In fact, all this requirement will do is delay access to counsel where the detainee does not have a “counsel of choice” or even know the name of a criminal lawyer.

[225] There is no evidence from which I could find Mr. Sillars was “funneled” to duty counsel. The one thing Sgt. Allison was consistent and clear about was that Mr. Sillars told him he did not have a lawyer but he wanted to speak to a lawyer. As I have indicated, it is my view the jurisprudence from the Supreme Court of Canada and the Ontario Court of Appeal does not put any additional obligations on the police to provide detainees with phonebooks or computers to assist them in finding and contacting private lawyers they are not aware of when they are detained or arrested. Where a detainee requests to speak to a specific lawyer it is my view the police do have an obligation to make reasonable efforts to contact that lawyer on behalf of the detainee. However, even that obligation has its limitations, see R. v. Black.[^75]

[226] Where a detainee, like Mr. Sillars, has been put in touch with duty counsel and received legal advice and made no complaint about the advice provided, it is my view the Supreme Court of Canada’s decision in R. v. Willier,[^76] governs. In that case the Supreme Court held where there was no complaint by a detainee as to the legal advice provided, the police were entitled to assume the accused was satisfied and to continue with their investigation, in this case, the obtaining of breath samples.

33 Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonable diligence in attempting to contact counsel: R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138; R. v. Smith, 1989 CanLII 27 (SCC), [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson J. stated in Black (pp. 154-55):

A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain from questioning the accused are suspended: see R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435.

41 While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard of adequacy is unclear. As this Court recognized in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27, there is a "wide range of reasonable professional assistance", and as such what is considered reasonable, sufficient, or adequate advice is ill defined and highly variable.

42 As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier's conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate. Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning. Mr. Willier is not entitled to express such satisfaction, remain silent in the face of offers from the police for further contact with counsel, remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advice was inadequate because of its brevity. A s. 10(b) Charter breach cannot be founded upon an assertion of the inadequacy of Mr. Willier's legal advice. [Emphasis added]

43 Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(b) right to counsel. In no way did the police interfere with Mr. Willier's right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Cst. Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise. [Emphasis added]

(See also R v Littleford[^77]; R. v. Winterfield;[^78] and R. v. Wilson;[^79] and R. v. Blackett[^80]).

[227] In R. v. Zoghaib, [2005] O.J. No. 5947 (SCJ) aff'd [2006] O.J. NO. 1023 (C.A.), the Court of Appeal said the following in a brief endorsement:

We are in substantial agreement with the analysis of the Summary Conviction Appeal Court. The appellant was fully advised of her right to counsel at the roadside and understood those rights. On the finding of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known by the officer. The Summary Conviction Appeal Court correctly held that as a matter of law the appellant's unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(b) of the Charter. [Emphasis added]

It has been said in some of the Ontario Court of Justice cases cited by the defence that R. v. Zoghaib, supra, is only an endorsement of the Ontario Court of Appeal and should not be considered as a jurisprudential precedent. However, what this ignores is that the Ontario Court of Appeal decision held, “The Summary Conviction Appeal Court correctly held that as a matter of law the appellant’s unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(b) of the Charter.” [Emphasis added] (See also R. v. Papanastasiou,[^81] and R. v. Ablack[^82]).

[228] Based on the totality of the evidence I do not find Mr. Sillars has met his onus to prove a breach of his s. 10(b) Charter rights.

5. Was Mr. Sillars’ s. 10(b) right infringed when the breath demand was made after he spoke to duty counsel and he was not re-advised of the right to counsel and advised he could contact counsel again if he wished?

[229] Under s. 254(3) provides:

If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified breath technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood

[230] PC Maki testified he was asked by Sgt. Allison to contact duty counsel at the 1-800 telephone number after Mr. Sillars failed the ASD, been given his right to counsel, indicated he wanted to call a lawyer and decided he would speak to duty counsel. PC Maki testified he did this because Sgt. Allison was requesting an Intoxilyzer 8000C be brought to SMMH on his personal telephone and he knew Sgt. Allison was not wearing his glasses and it was difficult to see the small numbers of the Blackberry. After he dialed the number a duty counsel immediately answered the call and he handed the Blackberry to Sgt. Allison.

[231] Sgt. Allison testified he asked PC Maki to dial duty counsel because he was attending to other duties and he was not wearing his glasses and could not see the small numbers of the Blackberry. Sgt. Allison and PC Maki testified they were both surprised when duty counsel answered the call and a message did not have to be left. Sgt. Allison testified he believed he had just finished reading the caution from the pre-printed card he carried and did not have time to get a response from Mr. Sillars as to whether he understood it. He decided to turn the phone over to Mr. Sillars so he could obtain legal advice from duty counsel.

[232] As indicated above, it is my view Sgt. Allison advised Peter Gakiri, duty counsel, of the circumstances of Mr. Sillars’ arrest, including Mr. Sillars’ failure of the ASD, the charges he was facing (over 80 and impaired operation) and that there was a reasonable inference he also advised Mr. Gakiri that Mr. Sillars would be providing two samples of his breath into an Intoxilyzer 8000C. This explained the three minutes from Mr. Gakiri answering the phone at 7:03 pm. and when he was put in contact with Mr. Sillars at 7:07 pm. Sgt. Allison testified he realized that he had not read Mr. Sillars the breath demand pursuant to s. 254(3). He made a decision it was more important for Mr. Sillars to speak to duty counsel than to delay implementing Mr. Sillars’ right to counsel by reading the breath demand.

[233] Sgt. Allison became aware Mr. Sillars had finished his call to duty counsel and at 7:15 pm he read Mr. Sillars the breath demand pursuant to s. 254(3) from the pre-printed card he had. After Sgt. Allison testified as part of his protocol he further explained the demand by saying:

This is a legal demand. We’re going to blow into an instrument, a very accurate instrument, and you have to provide at least two samples of breath into this instrument. So we’re going to go through that procedure now.

[234] Sgt. Allison did not have a note of whether Mr. Sillars said he understood the breath demand and/or his explanation but he believed Mr. Sillars understood what he was requiring Mr. Sillars to do. He also asked Mr. Sillars if he was “okay with his conversation with duty counsel” and Mr. Sillars did not make any complaint. Sgt. Allison testified if Mr. Sillars had made a complaint or indicated he was not satisfied with the advice he had received he would have asked Mr. Sillars if there was any other lawyer he wanted to speak to and would have implemented his request.

[235] The defence submitted Sgt. Allison breached Mr. Sillars’ s. 10(b) Charter rights by not re-advising Mr. Sillars of his right to counsel after reading the formal breath demand. It was the defence position Mr. Sillars was not able to receive proper legal advice concerning the breath tests because he was unaware Sgt. Allison was requiring him to provide two samples of his breath.

[236] As I have already indicated, it is my view without hearing from Mr. Gakiri that he believed the police were not requiring Mr. Sillars to provide two samples of his breath into an approved instrument it would be pure speculation to come to that conclusion. It was the defence who suggested to Sgt. Allison in cross-examination he must have spoken to duty counsel and advised him of the circumstances and background of Mr. Sillars’ arrest, which would have necessitated describing how Sgt. Allison formed a reasonable suspicion and made an ASD demand, which led to Mr. Sillars providing a sample of his breath that registered a “Fail” on the ASD. Mr. Sillars spoke to duty counsel for at least five minutes before ending the call. On the evidence there was no complaint made by Mr. Sillars and I have no evidence from him as to any misunderstanding concerning his rights or what the law required him to do.

[237] The defence did not challenge or question that Sgt. Allison read Mr. Sillars his right to counsel from a pre-printed card provided to police officers by the OPP. Sgt. Allison therefore complied with the informational component as per Mannienen. The information contained in the right to counsel read to Mr. Sillars clearly sets out his right to retain and instruct counsel, any counsel, whether his own lawyer or duty counsel – routinely offered to detained/arrested individuals since Brydges, without delay. Mr. Sillars was put in contact with duty counsel, who provided him with legal advice on how to exercise his rights and what his obligations were having regard to the charges he was facing.

[238] Mr. Rosenthal makes reference to R. v. Sinclair,[^83] where the Supreme Court was considering the issue of whether s. 10(b) applied to a “point in time” or “a continuum,” respecting a detainee being interviewed by police respecting the giving of a statement. The Supreme Court had previously held in R. v. Evans,[^84] where a fundamental and discrete change in the purpose of the investigation, for example, a more serious charge occurred the detainee should be re-advised of their right to counsel. This occurred in this case where Sgt. Allison, upon being advised that Thomas Rancourt had died, interrupted Mr. Sillars’ call with duty counsel to advise of this fact and that Mr. Sillars was now facing increased jeopardy respecting a charge of impaired operation of a vessel causing death.[^85]

[239] The passage in Sinclair referred to by Mr. Rosenthal addressed situations where the police, during their investigation of a detainee, raise non-routine procedures, such as participation in a line-up, voluntarily providing a DNA sample or submitting to a polygraph, which are procedures that generally will not fall within the expectation of the advising lawyer at the time of the initial consultation. In those circumstances the Supreme Court held further advice from counsel is necessary.

[240] In the circumstances of this case a breath demand to provide two samples of breath into an approved instrument after a failure of the ASD could not be viewed as a non-routine procedure and the initial advice of counsel would clearly be directed to providing advice to Mr. Sillars as to his obligation to comply with the demand to provide two samples of his breath into an approved instrument. Further, it would also be expected for counsel to provide advice that Mr. Sillars has the right to remain silent and does not have to answer any questions or perform any physical tests asked by the breath technician.

[241] The defence referred to the decision of Justice Lamer (as he then was) in the case of R. v. Schmautz,[^86] where he wrote a separate judgment that in part agreed with the dissenting judge, Lambert J., of the British Columbia Court of Appeal. In this case the defendant was questioned at his home concerning a hit and run that had just occurred involving a bronze vehicle, which had damage with yellow paint. The defendant lived very close to the scene of the accident and he had a yellow van with damage and bronze paint with the engine being warm. The police advised the defendant they were inviting a hit and run and further advised him of his right to remain silent and his right to counsel. The conversation lasted about 10 minutes and turned to whether, when and where the defendant had been drinking. The defendant said he had a little to drink at an inn and lot to drink after he got home. The police then demanded he provide samples of his breath and he refused. Justice Lamer was of the view Mr. Schmautz should have been re-advised of his right to counsel as he was not detained prior to the breath demand being made. However, Justice Lamer’s view was not the finding by the majority who held:

28 …These warnings [which included s. 10(b) rights] made him aware that all he would say could incriminate him and that he had the right to remain silent and to instruct counsel on every aspect of the interview that followed. The situation that arose with the breathalyzer demand was directly connected to the investigation. Indeed, the demand generated the type of situation where the appellant might be expected to take advantage of the warning given to him a few minutes earlier. The demand itself, together with the fact that he was also advised of the criminal consequences of a refusal, would normally trigger the consideration of the appellant of whether or not to instruct counsel. The appellant never mentioned that he wished to contact a lawyer.

29 The situation, then, was not one where another more serious offence was suddenly being investigated because of changed circumstances external to the encounter and destructive of the close factual linkage relating the prior advice to the detention. In this case, the demand arose directly and immediately out of the inquiry; it was part of a single incident at which the appellant was fully made aware of his rights.

30 Given the circumstances of the case, I would therefore conclude that the warning served on the appellant amounted to sufficient compliance with s. 10(b) of the Charter.[^87]

[242] It is my view, the majority judgment in Schmautz does not support the submission made by Mr. Rosenthal, rather, the demand made after Mr. Sillars spoke to duty counsel was directly related and connected to the investigation commenced by Sgt. Allison when he first entered Trauma Room 2 and asked Mr. Sillars to blow across his face and what did he have to drink? This coupled with the ASD demand and the “fail” registered when Mr. Sillars provided a suitable breath sample, followed by the right to counsel and Mr. Sillars speaking to duty counsel just a few minutes later would have triggered a consideration by Mr. Sillars to discuss the next steps in the process with duty counsel, as envisioned in the above passage by Justice Gonthier for the majority.

[243] In R. v. Guenter,[^88] the Ontario Court of Appeal held that s. 254(3) did not require that the breath demand be made by the arresting officer. A timely demand by the breath technician after receipt of grounds complied with the “as soon as practicable” requirement of that section.

[244] Justice Brown in Guenter addressed the inter-relationship between s. 254(3) and s. 10(b) of the Charter and held:

87 As the Supreme Court of Canada observed in R. v. Deruelle, 1992 CanLII 73 (SCC), [1992] 2 S.C.R. 663, at p. 677, "s. 254(3) is not a model of clarity". The lack of clarity reveals itself in the context of the present case. On the one hand, the term "peace officer" used in s. 254(3) certainly includes both an investigating/arresting officer, as well as a breathalyzer technician. On the other hand, s. 254(3)(a) requires a person to provide a breath sample as soon as practicable after a demand is made, and s. 254(3)(b) requires the person, "if necessary, to accompany the peace officer for that purpose". That requirement reflects the general practice that the demand for a breath sample is made at the scene of a stop or accident, and the person then accompanies the officer to the police station to provide the breath sample.

88 Nevertheless, the interpretation of s. 254(3) adopted in Deruelle at p. 671 is clear: "s. 254(3) should be interpreted as requiring only that a peace officer form a belief that an impaired driving offence has been committed by the suspect within the past [three] hours. A demand made pursuant to that belief must follow ...as soon as practicable, but this may fall outside the [three]-hour limit."

89 Given the close inter-relationship between the operation of s. 254(3) and the need for officers to ensure that a detained person can exercise his s. 10(b) rights in a meaningful way, linking the making of the demand to the timing of the detention has a certain practical attractiveness. But that is not how s. 254(3) reads. As this court held in R. v. Wylie, 2013 ONCA 673, 51 M.V.R. (6th) 1, at para. 10: "All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the 'who, what, where and when' of the demand." Moreover, the larger objective of the Criminal Code's breathalyzer scheme of forcing prompt police investigation was held to be promoted by the three hour limit in s. 254(3): Deruelle, at p. 672.[^89]

[245] In Guenter, the breath demand was not made until the accused was brought before the qualified breath technician, who was provided the reasonable grounds for the arrest by the arresting officer and then made the breath demand. The Court of Appeal found the demand was valid and consequently, s. 8 was not breached. Further, by implication from the above passage, the accused’s s. 10(b) rights were also not breached by the breath demand being made after the accused may have spoken to counsel given the breath demand has to be made by a peace officer, either the investigating/arresting officer or the qualified breath technician, respecting a person who has committed an offence under 253 as a result of the consumption of alcohol within the preceding three hours. If the qualified breath technician made the breath demand, if the detainee requested counsel, he or she would have already spoken to counsel. The comments of Justice Gonthier in Schmautz are clearly applicable, as are the comments in Guenter.

[246] The case at bar is somewhat unique, in that Sgt. Allison was the investigating/arresting officer and the qualified breath technician. In my view there was an appropriate explanation for the delaying of the breath demand as a result of the unusual circumstance of duty counsel immediately answering the call by PC Maki. Sgt. Allison was faced with having to explain to duty counsel the circumstances surrounding Mr. Sillars’ arrest and he implemented Mr. Sillars’ right to counsel by providing him the Blackberry and then provided him privacy by leaving Trauma Room 2. As I have found, where there has been a “Fail” on an ASD there was a reasonable inference Sgt. Allison advised the duty counsel of his intention to obtain two samples of breath and further, as I have found, the demand and requirement to provide two samples of breath into an approved instrument is a routine procedure, even in the context of a police investigation into a canoeing accident where alcohol was involved. Without hearing contrary evidence from Mr. Gakiri or Mr. Sillars, who of course is not required to give evidence, it is my view the defence have not established on a balance of probabilities any breach under s. 10(b) and the Crown has met his onus to demonstrate there has been no breach of s. 8. I am not satisfied the defence, on the evidence, has established a breach of s. 10(b). As a result, I find there was no breach of s. 8 or s. 10(b) as a result of Sgt. Allison making the breath demand within eleven minutes of forming his reasonable grounds after Mr. Sillars spoke with duty counsel.

6. Did the hospital staff draw an “extra” vial of blood to assist the police investigation and therefore act as police agents?

7. Did Dr. Kents order the ethanol blood analysis to assist the police investigation thereby breaching Mr. Sillars’ s. 8 Charter rights?

[247] It is my intention to address these two arguments together as the facts are so inter-twined. I have set out the facts applicable to both arguments but will deal with each argument separately.

[248] The defence alleged there was strong circumstantial evidence the red-capped vial of blood that was seized by the police by warrant was deliberately drawn by the hospital staff, Ms. Gisela McPherson, in order to aid the police investigation, rather than for any valid medical purpose. The defence submitted this infringed Mr. Sillars’ s. 8 Charter rights as the hospital staff were acting as police agents.

[249] The defence further argued Dr. Kents ordered the blood alcohol analysis to assist the police investigation and for no valid medical purpose.

[250] It was the Crown’s position that there was no evidence that the hospital staff did anything at the request of the police. In fact, it was the Crown’s submission the evidence from all of the hospital staff was to the contrary, the police did not request any of the hospital staff to draw extra vials of blood for police purposes. Each of the hospital staff were clear their responsibility was to their patient and they only took orders from the attending emergency physician, Dr. Kents.

[251] All of the police officers testified they did not attempt in any way to co-opt any of the hospital staff to do anything for police purposes. The Crown submitted there was no air of reality to the submission by the defence that the hospital staff, namely Ms. McPherson, had been co-opted by the police to act as a police agent by taking an extra vial of blood, which the defence alleged they were either requested to do by the police or did out of their own desire to assist the police investigation.

[252] The Crown further submitted Dr. Kents did not order the blood alcohol analysis to assist the police, rather, it was ordered by Dr. Kents as part of her treatment and care of Mr. Sillars, who was in hospital because of hypothermia.

Factual background respecting these issues

[253] Mr. Sillars was assessed by paramedics with Bracebridge EMS to be hypothermic and was brought to SMMH arriving around 5:51 pm with care being transferred by EMS at 5:54 pm. After being brought into the hospital Mr. Sillars was assessed by the attending emergency physician, Dr. Kents. She testified she spent approximately 15 minutes with Mr. Sillars prior to the second patient, Thomas Rancourt arriving by another ambulance. Dr. Kents testified Mr. Sillars was clearly hypothermic as his temperature in hospital was 33.5 Celsius and had been 31 Celsius when first assessed by EMS at the scene. This was potentially a serious medical condition. Mr. Sillars was extremely cold, shivering un­controllably. He was confused and argumentative. He was swearing and shouting obscenities. Dr. Kents observed a strong odour of alcohol coming from his breath as she examined him. She gave a verbal order to draw a Trauma Blood Panel, which she believed included a toxicology test for his ethanol/alcohol level. She wanted the ethanol level tested because it might become necessary to prescribe medications to Mr. Sillars, which would be contraindicated if his ethanol level was too high. She also ordered a toxicology test for other intoxicants from his urine, which was noted as ordered at 6:41 and received in the lab at 6:58 pm. This test was completed by Mr. Wood at 7:11 pm. Dr. Kents also ordered the nursing staff to “warm” up Mr. Sillars by putting in warm fluids intravenously into both hands, wrapping him in blankets and using the “Bair Hugger.” Dr. Kents was not in the room when this was happening as she was dealing with Thomas Rancourt in Trauma Room 1.

[254] Dr. Kents testified the police do not, in any way, guide or alter the course of care of patients in the emergency department. The police did not attempt to request anything of her treatment in respect of Mr. Sillars. She did not order any blood work at the request of the police or for the purpose of assisting the police. The police at no time attempted to have her act as an agent for the police. When Dr. Kents was in Trauma Room 2 where Mr. Sillars was located there were no police officers present. She did not speak with any police officers on the evening Mr. Sillars was in the emergency department. Dr. Kents believed she requested the nurse, Vicki Smith, for the Trauma Panel to be drawn respecting Mr. Sillars. She believed she did this during the 15 minutes she was assessing Mr. Sillars.

[255] Dr. Kents testified either the emergency nurse or the lab technician would draw the blood. The blood would be taken to the lab and the tests would be performed with the results being posted on the computer. Dr. Kents had no knowledge of how many vials of blood would be drawn or what coloured tops they would have in order to perform the tests required for a Trauma Panel. Once the tests were performed they were entered on the digital chart, which she would have access to in the emergency department.

[256] There was an ethanol test, which showed 30 millimoles of ethanol in 1 litre of blood. The urine analysis would show the presence of various substances, such as cannabinoids, opioids, etc. There was an indication of positive for cannabinoids, benzodiazepine and oxycodone. Dr. Kents had ordered Mr. Sillars be kept overnight and had ordered some repeat blood work for 6 am, to check if everything was okay and he was improving his lactate but Mr. Sillars checked himself out of the hospital at 11:45 pm.

[257] Dr. Kents testified some of the computer generated times in Mr. Sillars’ hospital records, Exhibit 13, indicated the time something is entered into the computer as opposed to when it was actually done. Her notes in the chart indicated she first started to assess Mr. Sillars at 5:50 pm. She agreed she would have put these notes on the chart some time later, probably around 7:45 pm but she would make notes of times of her orders and treatment on a piece of paper, which she would then put onto the chart when things were quieter. She described the emergency as organized chaos after Mr. Sillars arrived. All of the medical staff and police officers described the emergency area as being frantic, hectic and chaotic, especially after Thomas Rancourt arrived.

[258] The medical treatment being done with Mr. Sillars was to get his body temperature back to normal. The saline IVs were discontinued, according to the chart, at 7:20 pm. Dr. Kents did not make this order, this was something done by the emergency nurse. At 7:34 pm, Dr. Kents determined Mr. Sillars should be kept overnight and have further blood work before he was released from hospital. Dr. Kents believed she returned to Trauma Room 2 to reassess Mr. Sillars around 7:45 pm, which was the time indicated in her handwritten notes. At 7:45 pm Mr. Sillars’ temperature was 36 Celsius.

[259] Dr. Kents prescribed Ativan given Mr. Sillars presentation upon admission to the hospital. This PRN order was made at 8:13 pm and meant if he needed Ativan, it was available for him.

[260] In cross-examination Dr. Kents was shown computer entries respecting her ordering the Trauma Panel for the drawing of blood respecting Mr. Sillars as being at 6:35 pm. It was her position this was the time the computer entry was generated not when she ordered the Trauma Panel.

[261] Dr. Kents testified she believed when she ordered a Trauma Panel the ethanol/alcohol test was included. She realized when she checked the results of the blood tests that an ethanol test had not been done so she contacted the lab and ordered it. The time on the computer generated forms indicated this was ordered by Dr. Kents at 8:14 pm (p. 10 of 36 in Exhibit 13). Dr. Kents testified the 8:14 pm time is when the order was entered into the computer. Dr. Kents testified she did not know if there was a change to what was included in the Trauma Panel or if it had not been done but this was a test she expected would be done when she ordered the Trauma Panel.

[262] It was Dr. Kents’ evidence after the saline IVs were removed Mr. Sillars would be checked for decompensation and in the morning the additional blood tests would be checking his lactate. Dr. Kents’ note at 7:45 pm indicated she had looked at the blood test results as she had noted Mr. Sillars’ lactate as being 5.6, potassium as being 3.5 and white blood count as being 13.5 (p. 18 of 36 in Exhibit 13). It would have been at that point Dr. Kents realized the blood alcohol level had not been tested and she ordered it. She called to the lab and gave a verbal order. The ethanol test was completed according to the computer printout at 8:23 pm (p. 10 of 36, Exhibit 13).

[263] Dr. Kents maintained in cross-examination she ordered the blood alcohol analysis at the beginning because she believed it was an included test in a Trauma Panel. When she observed it had not been done or had been overlooked, to ensure completeness of her chart she requested it be done so all of the tests she wanted done had been completed. She did not do any further tests after she saw the ethanol result of 30 mmol/L (p. 13 of 36, Exhibit 13)

[264] Dr. Kents testified she did not discuss with Mr. Sillars why she was ordering blood to be drawn as he was not being co-operative and he was confused. When Dr. Kents first assessed Mr. Sillars he was not conversing. He was swearing profanities. She did not tell any of the OPP officers present that she had ordered blood samples to be drawn from Mr. Sillars. She did not tell the OPP officers any of the results of the blood tests. She did not know if it was a hospital policy respecting police but it was certainly her policy not to share confidential information concerning a patient with anyone who was not a family member or had a Power of Attorney. She might recognize some police officer’s faces because Bracebridge is a small community but she did not know their names. She did not recall any OPP officer asking her if Mr. Sillars was capable of providing breath samples.

[265] Dr. Kents did not know what the hospital’s policies were respecting the retention or disposal of blood samples not utilized during treatment. If she ordered another test the lab would try to use the blood already drawn if there was sufficient quantity available. If not, more blood would be drawn.

[266] Dr. Kent testified she believed she had ordered the ethanol test after she first assessed Mr. Sillars because of the smell of alcohol in order to know what his baseline was if he required further treatments. When she reviewed the results at 7:45 pm she became aware the ethanol test had not been done so she ordered it by calling the lab. When she ordered the PRN order for Ativan at 8:13 pm and the ethanol test at 8:14 pm Mr. Sillars was conscious and co-operative. She ordered the ethanol test for completeness because she had to answer to the Colleges of Physicians and Surgeons for her standard of care.

[267] It was Dr. Kents’ evidence that an emergency doctor who had a patient who was confused and smelt of alcohol should be finding out what their alcohol level was to provide them with safe care. Even if Mr. Sillars had not smelled of alcohol she would have tested for it because he was confused.

[268] Vicki Smith was the emergency nurse on duty from the arrival of Mr. Sillars at the hospital until she was relieved by the night nurse at 7:30 pm. She had worked in the emergency at SMMH for 18 years and York Finch Hospital in Toronto in the ICU and Telemetry for 10 years before. Her nurses’ notes were found at p. 22 of 36 in Exhibit 13.

[269] At 5:50 pm she received a patient, David Sillars, by ambulance that had been in a canoe that flipped over and he was exposed to freezing cold temperature water. Mr. Sillars was transferred onto a hospital bed and Dr. Kents assessed him. The Bair Hugger was used to warm him, as were warm saline IVs in each hand and warm blankets were wrapped around him to try to warm up his body. Dr. Kents had to leave at some point to attend to the young boy who had also been in the canoe and was brought in by ambulance.

[270] Vicki Smith testified Dr. Kents poked her head into Trauma Room 2 at 6:30 pm, and verbally ordered a Trauma Panel for blood work. This was reflected in the nurses’ notes. A Trauma Panel would include CBC, electrolytes, INR, liver function, different tests that we do on anybody that’s come in with exposure or car accidents. The Trauma Panel would sometimes include blood chemistry for alcohol. In the presentation of Mr. Sillars, Ms. Smith testified a blood alcohol test would be a typical test. This was one of the tests Dr. Kents ordered. The Trauma Panel ordered by Dr. Kents was a little later because of the child being brought into the emergency and Dr. Kents having to leave.

[271] The blood was drawn from Mr. Sillars at 6:45 pm, according to the nurses’ notes. Usually it was done by the lab technician but it could also be done by a nurse if it had to be drawn from an IV site because of bad veins or the person was freezing. Ms. Smith did not have a specific recollection of who drew the blood, it was either Ms. McPherson, the lab technician, or herself. Ms. Smith was present for the blood draw. When Ms. Smith made her notes she used the clock on the wall in the emergency for her times. She believed there would be four to five vials of blood being drawn. The vials are all different sizes. Each vial had a different coloured top. The blood alcohol test was done probably from the green top vial’s blood.

[272] In order to ensure the blood in a vial came from the patient it was drawn from there was a label affixed to the vial with the person’s name and MRN number and their date of birth. These were generated by the computer and related to the wrist band on the patient’s arm. After the blood was drawn it was taken by the lab technician to the laboratory, which at SMMH was down the hall from the emergency department.

[273] Ms. Smith did not recall anything that was said by her or the lab technician to Mr. Sillars concerning the drawing of the blood as this happened a year and a half ago. She remembered Mr. Sillars being curled up in a ball and he let them take the blood. There were a lot of distractions and commotion with the child in the next trauma room, they were doing CPR on the child.

[274] Ms. Smith did not recall any additional blood being drawn from Mr. Sillars. She testified she charted the time the blood was being drawn from the patient, in this case 6:45 pm. Ms. Smith did not believe any tests were done in relation to Mr. Sillars that were not medically necessary in the circumstances. The blood drawn was pursuant to Dr. Kents’ order. If she drew the blood she would not have taken extra vials of blood, the only blood drawn would be the Trauma Panel.

[275] Ms. Smith testified the police never requested the staff take extra vials of blood. The police never told the staff what to do in respect of Mr. Sillars. She never received any directions from any police officer. If a police officer had asked her to take an extra vial of blood she would have said no.

[276] At 6:30 pm, an OPP officer was in Trauma Room 2 but she did not know which officer. While the officer was in the room, Dr. Kents poked her head in and ordered the Trauma Panel for blood to be drawn. There was a code respecting the child next door so Dr. Kents was not long. The blood was drawn at 6:45 pm and the urine was also obtained around the same time.

[277] Ms. Smith did not make any note about observing the odour of alcohol in connection with Mr. Sillars but that was not Ms. Smith’s focus as she was providing treatment to him and looking after him.

[278] Peter Wood was the lab technologist at SMMH. Blood was normally drawn by the lab technician, Gisela McPherson but the nurse could also draw it. Doctors in the emergency order different panels for blood: Trauma Panel, cardiac panel, or abdominal pain panel. Mr. Wood did not believe that the Bracebridge Trauma Panel included an alcohol test. Labels were put on the vials of blood drawn that correspond to the patient who the blood was taken from.

[279] Mr. Wood performed the various tests on the blood drawn from Mr. Sillars and posted the results on the hospital computer so they could be accessed by the doctor and medical staff providing care for Mr. Sillars. No additional blood outside of the normal protocol for a medical patient was taken. Ms. McPherson and an OPP officer did place a seal on one of the vials of blood drawn from Mr. Sillars. Mr. Wood testified if that blood had been needed for Mr. Sillars medically then the seal would have been broken and the blood would be used.

[280] The ethanol test was ordered at 8:14 pm by Dr. Kents to Ms. McPherson. The original blood drawn from Mr. Sillars was used. No additional blood was drawn to conduct this ethanol test.

[281] Mr. Wood did not have any interaction with the police on April 7, 2017. He did not draw the blood from Mr. Sillars so he did not know how many vials were actually taken. The records did not reflect exactly how many vials were taken.

[282] Mr. Wood obtained information from the IT Department of the hospital which showed an ethanol test was not included in the Trauma Panel on April 7, 2017. It was included, according to what Mr. Wood was advised by the IT Department, for a 9-day period in 2016.

[283] On the computer records the time was indicated when Ms. McPherson brought the drawn blood from Mr. Sillars to the laboratory, namely, 7:01 pm, and she entered each vial of blood into the system. The next time indicated for the various tests is when Mr. Wood completed the test and entered the results into the computer so they could be viewed by the emergency doctor and other medical staff. There was no time listed when a particular individual reviewed the tests results.

[284] Ms. McPherson did not have any specific memory of any of the things she did respecting Mr. Sillars. She did not recall whether she or the nurse drew blood from Mr. Sillars pursuant to Dr. Kents’ order. She did not remember Mr. Sillars at all. She knew she was working in the laboratory the night the child was brought into the emergency who had gone over the falls because of a canoe capsizing.

[285] Ms. McPherson was a lab technician at SMMH and had been employed in this position for 19 years. Her duties included drawing blood work for the laboratory. She also performed ECGs and did paperwork. In the emergency department either she or the nurse would draw blood as per a doctor’s order.

[286] She was familiar with a Trauma Panel, which would require her to draw seven vials of blood. Each vial would have a particular purpose they would be drawn for. A red-top vial was a start tube that would ultimately be discarded. The start tube was utilized when there was coagulation.

[287] She collected blood as per the doctor’s orders only. She would never collect blood for her own reasons. She would never collect extra blood to assist the police or for any other reason. She had never collected blood beyond the doctor’s orders. On April 7, 2017, if she collected the blood on that day for any patient she did not draw any blood beyond what was medically necessary. She had never drawn blood to improve her relationship with the police or to help the police.

[288] Based on the computer records shown to Ms. McPherson from Exhibit 13, she assumed she was the person who drew blood from Mr. Sillars but she had no independent recollection of doing so. When blood was drawn she would first have to identify the patient by asking their name and birthdate. Labels were generated by the computer for individual patients with their name and birthdate and hospital number, which was on a wristband on the patient’s arm. When drawing blood she would confirm all of that information prior to affixing labels to the various vials. If a patient was unable to answer who they are and their birthdate, the nurse would have to confirm the patient’s identity.

[289] After blood was drawn it went directly to the lab and was entered into the system. She would be the person to log the vials of blood into the system and from there they were analysed and processed by the lab technologist, in this case, Peter Wood. Ms. McPherson described the steps she would take respecting each of the vials depending on what the tests were.

[290] Ms. McPherson did not specifically recall any blood being sealed by police but she had been involved in that process on a number of occasions. An officer would come to the laboratory and fill out a form and the vial of blood would be sealed and placed in a special area of the refrigerator. Vials that were sealed would be blood the lab was finished with.

[291] Ms. McPherson testified it was not her job to be responsible for what happened with the vials and the blood remaining in them after the tests were completed by Mr. Wood. Ms. McPherson testified she did not dispose of any blood vials, Mr. Wood would be the person to either put them in the refrigerator or dispose of them. Mr. Woods testified the remaining blood drawn from a patient after the testing of the blood was put into the refrigerator in the lab for five days before disposal.

[292] In cross-examination Ms. McPherson described the specific blood vials that would have been drawn from Mr. Sillars for a Trauma Panel. She had no recollection of drawing any blood from Mr. Sillars.

1. Lavender stopper was for CBC differential;

2. Blue stopper was for tests for INR and PTT;

3. Green stopper (1^st vial) was for tests for Urea, Creatinine, Glucose Random, Bilibirubin (Plasma) Profile, Alkaline Phosphatase, AST, ALT, Troponin-U (Plasma), Liapase (Plasma and Electrolytes Profile (MO). This was the green topped vial that gets spun;

4. Green stopper (2^nd vial) was the vial that did not get spun and was for blood gas (Venous) – MAHC and the ethanol test;

5. Grey stopper was for test for Lactate level;

6. Light pink stopper was for test for Group and Screen (Careset)

7. Red stopper vial was for the “start” vial.

[293] Ms. McPherson testified the red stopper vial was a “start” vial when there was coagulation, which was done for the INR and PTT tests. The red stopper vial was used first to clear the line as a specific volume was needed to be drawn into the blue stopper vial. Ms. McPherson testified this vial would have a label and would just have a squirt/spurt or small amount of blood. Ms. McPherson did not recall dealing at all with Mr. Sillars. There would have been the six vials referred to above and the red stopper vial for a total of seven vials drawn from Mr. Sillars.

[294] Every vial or tube had a purpose. She testified she would have drawn those vials. Ms. McPherson did not know any of the OPP officers, other than Constable MacDonald, as he made the arrangements with her to come to testify. She only knew him now because of this. She testified she would not tell the police any of the tests being performed on a patient’s blood. If the police came and asked to seal a vial of blood the testing of the vial of blood that was sealed would be finished.

[295] Constable MacDonald testified he attended the lab at the request of Sgt. Allison to determine if there was any blood that might be available for the police to put a seal on. He attended the lab with PC Coles and asked Gisela McPherson, the lab technician, if there was a vial of blood that the hospital did not require for their use. He told Ms. McPherson if there was a vial of blood the hospital was not using he would like to put a CFS seal on it and later obtain a warrant to seize it. Ms. McPherson told Constable MacDonald there was a vial of blood that was not needed and she produced it to him. Constable MacDonald did not note the time he attended with PC Coles to the lab.

[296] In terms of the time Constable MacDonald went to the lab it had to be after Sgt. Allison read Mr. Sillars the ASD demand, which was at 6:50 pm. The blood had already been drawn, according to the nurses’ notes this began at 6:45 pm. Ms. McPherson had entered the various different vials of blood to be tested at 7:01 pm. It is therefore a reasonable inference that Constables MacDonald and Coles were likely in the lab sometime after Ms. McPherson had returned to the lab and finished inputting Mr. Sillars’ vials of blood into the computer, sometime shortly after 7 pm.

[297] At that point in time the only vial of blood drawn from Mr. Sillars that was not needed for medical purposes for tests was the red stopper vial or the “start” vial that would have been discarded. All of the other six vials would have been put at the various stations in the laboratory where Mr. Wood would have commenced his tests. Two of the vials would have been put into the centrifuge by Ms. McPherson to be spun.

[298] Constable MacDonald testified Ms. McPherson provided him a vial of blood, on which he placed CFS seal #2F57321. The vial had a label with the name David Sillars and he placed the CFS seal over top of the vial. He told Ms. McPherson if the blood was needed for Mr. Sillars’ treatment then the seal could be broken and the hospital was under no obligation to hold it for the police. It was placed in a tray in the refrigerator labelled, “Save for Police.”

[299] On July 27, 2017, Constable MacDonald prepared an Information to Obtain in support of a Search Warrant to seize David Sillars’ SMMH hospital records, as well as the vial of blood he had sealed on April 7, 2017. The warrant for these items was executed on July 28, 2017 and Constable MacDonald attended SMMH and seized David Sillars’ hospital records and the vial of blood he had previously sealed. The vial of blood had CFS seal #2F57321 and David Sillars name on a label, which was still intact and it was the same vial of blood Constable MacDonald sealed in Ms. McPherson’s and PC Coles’ presence. This vial of blood was then transported to the Centre of Forensic Sciences for examination and testing.

[300] Mr. Jean-Paul Palmentier is a forensic toxicologist employed by the Centre of Forensic Sciences (CFS) and he was qualified, on consent, as an expert witness in toxicology in the following four areas:

1. The absorption, distribution, and elimination of alcohol, drugs and poisons in and by the human body;

2. The effects of alcohol, drugs and poisons on the human body;

3. The analysis of alcohol, drugs and poisons in biological samples; and

4. The theory, use and operation of the Intoxilyzer 8000C and the Dräger Alcotest Model 6810.

[301] Mr. Palmentier did not originally receive the vial of blood with CFS Seal #2F57321 as the original examination and testing was done by a colleague, Ms. Amanda Lowe, who, at that time, was a forensic toxicologist at the CFS. He reviewed the contents of the case file, including all the paperwork that was submitted, the analyses, the reports and the letters of opinion that were prepared by Ms. Lowe. He was satisfied with the scientific validity of the conclusions that were reached by Ms. Lowe in those reports.

[302] Ms. Lowe was the toxicologist who broke the CFS seal #2F57321 on the vial of blood submitted by Bracebridge OPP in respect of David Sillars. There were no markings on the vial and her note indicated she estimated there was approximately 4 mL of blood in the red stopper vial the Centre received. Ms. Lowe indicated she had to peel back the seal to estimate the amount of the blood in the vial. Also on the seal was the name David Sillars with birthdate 13 Jun 79 and Constable MacDonald’s name and his badge number. If the CFS seal was over a hospital seal it would not be able to be seen. Mr. Palmentier did not see the red stopper vial of blood with the CFS seal. He did not see how much blood was in the vial and he did not perform any of the tests on the blood.

[303] Ms. Lowe’s Toxicology Report dated October 23, 2017, was marked as Exhibit 19 and her Letter of Opinion dated October 26, 2017 was marked as Exhibit 20. The blood contained in vial sealed by CFS seal #2F57321 was tested and found to contain Ethanol of 128 mg/100 mL ±3 mg/100mL. The blood from this vial also contained 14 ng/mL ±2 ng/mL of Tetrahydrcannabinol or THC, which is the main ingredient in cannabis. Based on a projected BAC at or between approximately 4:45 pm and 5:29 pm was 128 to 170 mg alcohol100 mL of blood.

[304] In Ms. Lowe’s Toxicology Letter dated October 26, 2017, Exhibit 20, she found the plasma alcohol concentration of 30 mmol/L, determined by the SMMH laboratory, was equivalent to a BAC of 119 mg/100mL and based on a projected BAC at or between 4:45 pm and 5:29 pm was 119 to 161 mg of alcohol/100 mL of blood..

[305] The breath samples test results, projected BAC at or between 4:45 pm and 5:29 pm was 90 to 150 mg/100mL. The CFS alcohol result obtained from the blood seal #2F57321 result referred to above, the projected BAC at or between 4:45 pm and 5:29 pm was 128 to 170 mg of alcohol /100 mL of blood.

Analysis

Did Gisela McPherson take an extra vial of blood?

[306] Where a doctor orders blood to be drawn from a patient solely for medical purposes in an emergency unit there is no breach of s. 8 (see R. v. Dersch[^90]). However, the issue has arisen in some of the cases, where a doctor or nurse who drew blood did so at the behest of the police, they did so as police agents and s. 8 of the Charter would be breached see R. v. Dyment[^91]).

[307] The defence argued that the hospital staff breached Mr. Sillars’ s. 8 Charter rights to be free from unreasonable search and seizure when they drew blood from him for a non-medical purpose. It is the position of the defence that there is circumstantial evidence supporting that Gisela McPherson, the lab technician, drew an extra vial of blood into a red stopper vial, solely for the purpose of assisting the police without being asked to do so by a police officer. The defence further argued the red stopper vial of blood, seized by the police by search warrant, did not match Ms. McPherson’s description of a “start” tube because it contained significantly more than a “squirt” or “spurt” of blood. I do not accept the defence assertions respecting the vial of blood sealed by Constable MacDonald for the following reasons.

1. Ms. McPherson also referred to this red stopper “start” vial of blood as “usually having a small amount of blood” without providing what specific quantity of blood this would be and she had no specific recollection of any of the vials of blood drawn from Mr. Sillars or their quantities of blood. She did not know how much blood she drew into the red stopper “start” tube as it related to Mr. Sillars. At one point Mr. Thompson suggested that there would probably not even be a millimetre of blood drawn into the red-topped “start” vial and Ms. McPherson said, “Probably not.” The problem with the suggestion and the answer was Ms. McPherson had no recollection of drawing blood from Mr. Sillars and could not recall how much blood was actually drawn into the red stopper vial. I find Ms. McPherson’s evidence did not establish with any accuracy how much blood was in the red stopper “start” vial such that the defence allegation of an extra vial of blood being drawn by Ms. McPherson was made out.

2. Ms. McPherson testified she did not take any extra vial or vials of blood other than what was ordered by the attending emergency physician and that was medically necessary. She testified she only took six vials of blood, with the different coloured stoppers as she described for the various tests required for a Trauma Panel and the red stopper vial, which was a “start” tube for the blue stopper vial of blood that involved coagulation. The defence did not put to Ms. McPherson directly their contention that she drew an extra vial of blood for the purpose of assisting the police without the police requesting this of her. Ms. McPherson was asked by the Crown what she would say if a police officer asked her to take an extra vial of blood for police purposes and she testified she would never do that and no police officer had ever requested her to do this. The Crown also asked Ms. McPherson if she would draw blood from a patient for her own reasons and she testified she would never do that.

3. Mr. Palmentier did not see the sealed vial of blood from SMMH with CFS seal #2F57321 as the tests were performed by another toxicologist, Amanda Lowe, and he was relating the estimate that approximately 4 mL of blood was in the red stopper vial Ms. McPherson provided to Constable MacDonald. This was only an estimate on Ms. Lowe’s part, according to Mr. Palmentier, because the red stopper vial did not have any markings indicating the different gradations or amounts in mL. Exhibit 21 is the Toxicology Criminal Case Processing Form filled out by a CFS staff person upon receipt of the vial from Bracebridge OPP and by Ms. Lowe after she received the heat sealed bag (delivery container) and opened it to retrieve the sealed, #2F57321, vial of blood. Further, no photographs were taken by Ms. Lowe of this vial of blood, which would have shown how much blood was contained in the vial.

4. In my view continuity has been proven through the evidence of Constable MacDonald through his placing a seal on the vial of blood provided to him by Ms. McPherson when he asked if there was any blood available that the hospital no longer required to perform the tests ordered by Dr. Kents. He placed CFS seal #2F57321 on a vial of blood he was provided by Ms