Court File and Parties

Ontario Court of Justice

Date: October 22, 2020

Court File No.: Sudbury 4011-998-119-01076-00

Between:

Her Majesty the Queen

— and —

Mateusz Pabisz

Before: Justice André L. Guay

Heard on: December 4 and 9, 2019

Reasons for Judgment released on: October 22, 2020

Counsel:

• Jeffrey Martin, for the Crown
• P. Berk Keaney, for the accused Mateusz Pabisz

Judgment

GUAY J.:

Introduction

[1] On January 4, 2019, Mateusz Pabisz was charged that within two hours after ceasing to operate his vehicle, he had a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 milliliters of blood pursuant to s.320.14 (1)(b). Earlier that afternoon, around 1:30 p.m., he had accompanied his partner, Samantha McQueen, and her son, Rowan, to a medical appointment. At that time, he seemed fine. Approximately three hours later, however, while again with his partner and her son, Rowan, he began driving erratically. He veered his vehicle without notice onto Falconbridge Road in the City of Greater Sudbury where he took a really wide turn, prompting Ms. McQueen to ask him if he had been drinking. While he denied that he had been drinking, she noticed a couple of open Pepsi bottles in his vehicle from which was emanating the smell of alcohol. The accused then admitted that he had a drinking problem. Ms. McQueen recalled how, at that point, he held the steering wheel of his vehicle so tightly that his knuckles whitened. Then, on two further occasions, he again veered his vehicle directly into the path of oncoming traffic, disaster only being avoided when Ms. McQueen steered the vehicle away in order to avoid a collision.

[2] At this point, Ms. McQueen began asking him to pull over, telling him that they were no longer going to get her infant daughter at her daycare. Ms. McQueen finally persuaded the accused to pull over and let her and her son Rowan exit his vehicle. She testified that when she asked him what was wrong, he told her that he had consumed some of Rowan's medication. A subsequent search of the accused incidental to arrest revealed that he had some of Rowan's medication on his person. The amount found missing from that medication suggested that he had likely consumed some of it.

[3] Once out of the vehicle, Ms. McQueen called 911 on her cell phone to report the accused's erratic driving, telling the dispatcher that she suspected he had become impaired with alcohol or a mixture of drugs and alcohol. The accused left the scene where Ms. McQueen and her son had exited his vehicle with all its doors open. After exiting the vehicle, Ms. McQueen called her mother to ask her to pick up her daughter from her daycare. After returning home with her mother to fetch Rowan's medication, Ms. McQueen noticed the accused had arrived there. He had parked his vehicle in front of their residence located at 40 Moreau Avenue in the City of Greater Sudbury. Seeing him there, Ms. McQueen again called 911 to inform the police of the accused's location. Ms. McQueen's evidence in and of itself establishes that the accused had been driving his vehicle within the three-hour period prior to the arrival of the police and the ambulance at 40 Moreau Avenue, Sudbury at about 5:00 p.m. on January 4, 2019.

[4] Shortly after Ms. McQueen made this second 911 call, the police and the ambulance arrived at their residence. Surprisingly, when asked if she had smelled any alcohol emanating from the accused, Ms. McQueen indicated that she had not, either earlier in the day around 1:30 p.m. or later around 4:45 p.m., the approximate time of her second 911 call. In cross-examination, Ms. McQueen indicated she was aware that the accused had an alcohol abuse problem, informing the police that she and the accused had downplayed this problem until this point in time.

[5] Paramedic Danielle Coutu arrived at 40 Moreau Avenue, Sudbury, accompanied by an associate and a paramedic student. She testified that when she approached the accused, he was sitting in his vehicle. She stated that after some persuasion, she had been able to get him to exit his vehicle and get into the ambulance. She recalled that at that time he looked "groggy" and "confused". She further testified that accused refused to participate in her on-the-scene assessment. She and the other paramedic personnel as well as the investigating police officer, Constable Sajatovic, left for the hospital, Health Sciences North, at about 5:11 p.m.

[6] Constable Sajatovic indicated in his testimony that he had arrived at the scene at approximately 5:01 p.m. He testified that upon entering the ambulance, where the accused was lying on a stretcher, he detected a strong odor of alcohol. Prior to his arrival, he had been informed by the dispatcher about the allegations made by Samantha McQueen regarding the accused's condition.

[7] Constable Sajatovic testified that he found the accused to be "lethargic". He stated that he held off questioning him until he got an "O.K." from Paramedic Coutu. While he testified that the ambulance left for the hospital at 5:01p.m, I prefer the evidence given by Paramedic Coutu respecting the time of departure. She testified that the ambulance left the scene at 5:11 p.m. and had noted the time of departure in her Ambulance Call Report.

[8] It was on route to the hospital that Constable Sajatovic formed a reasonable suspicion the accused had been driving his motor vehicle while his ability to do so was impaired by alcohol. Not long after Paramedic Coutu gave him the green light to speak to the accused, Constable Sajatovic made a roadside screening demand on him. This, I estimate from the evidence, occurred at about 5:18 p.m., seven or so minutes after the ambulance left 40 Moreau Avenue. While Paramedic Coutu recalled that the roadside screening had occurred outside the ambulance before it left for Health Sciences North, I accept Constable Sajatovic's evidence on this point. Constable Sajatovic's evidence was that after he arrived at the scene, he shortly thereafter, entered the ambulance to find the accused there. There was no evidence indicating that the officer met the paramedic outside the ambulance, or which placed the accused in his vehicle with the officer and the paramedic outside the ambulance.

[9] The timing indicated by Constable Sajatovic as well as other evidence suggested that he arrested the accused and made a formal demand on him to provide the requisite breath samples at about 5:24 p.m. By that time, the ambulance would have arrived or was not far from arriving at the hospital.

[10] On the question of whether Constable Sajatovic had grounds to suspect that the accused had been driving while his ability to do so was impaired by alcohol or a combination of alcohol and drugs, I find that he did have reasonable grounds to do so. I find that he formed those grounds on the basis of the information received from the 911 police dispatcher, his own personal observations of the accused soon after his arrival at 40 Moreau Avenue and his observations of the accused while he accompanied him to the hospital. Constable Sajatovic testified that he had smelled a strong odor of alcohol emanating from the accused and noticed his delayed response to questions put to him as well as the fact that his speech was slightly slurred.

[11] While the ambulance was proceeding to Health Sciences North, Constable Sajatovic spoke briefly with the accused. The evidence suggests that it took the ambulance 11 to 12 minutes or so to arrive at Health Sciences North. By this time, the accused had already been given a roadside screening test and had failed it. The ambulance arrived at the hospital shortly around 5:25 p.m. On the basis of the roadside screening test result and his observations respecting the accused's impaired condition (his unusual lethargy, his staring into the distance, his delay in comprehension and the strong odor of alcohol emanating from his person) Constable Sajatovic made a demand that he provide the requisite breath samples at approximately 5:23 p.m., shortly before the ambulance arrived at the hospital. At that time, he provided the accused with his rights to counsel and gave him the required caution.

[12] According to Constable Sajatovic he advised the accused on more than one occasion of his right to counsel. At approximately 5:50 p.m., and for the second time, he informed the accused of his right to counsel. This offer was met with a clear "No" from the accused.

[13] At approximately 6:12 p.m., the accused was turned over to hospital doctors to be examined for any injuries he may have received and to assess his condition. It was at about this time that Constable Sajatovic called headquarters to request the services of a qualified breath technician at the hospital.

[14] It was Constable Katulka who got the call to attend upon the accused at the hospital for the purpose of administering the formal breath tests on him. He arrived there at approximately 6:09 p.m. Constable Katulka briefly left the hospital, however, at about 6:18 p.m. in order to obtain a replacement part for the simulator component of the portable Intoxilyzer which he had brought to the hospital to carry out the breath tests. Constable Katulka returned to the hospital at approximately 6:38 p.m. Shortly after his return, he proceeded to set up his equipment in a room provided by the hospital to the police for that purpose.

[15] At 6:12 p.m., hospital doctors briefly assessed the accused, administering to him, among other tests, a blood test. These procedures took no more than five minutes, with the accused being returned to Constable Sajatovic's custody at approximately 6:17 p.m.

[16] Constable Insinna, another officer called upon to act in this matter, testified that she was dispatched to the hospital at approximately 5:12 p.m. She arrived there at approximately 5:18 p.m. She testified that at about 5:50 p.m., she witnessed Constable Sajatovic's second offer to assist the accused in obtaining the services of a lawyer.

[17] The next attempt to assist the accused in obtaining counsel occurred shortly after Constable Katulka left the hospital to obtain a replacement part for the Intoxilyzer's defective simulator component. This time, it was Constable Insinna who spoke to the accused.

[18] Constable Insinna testified that when the accused asked her what he did wrong, she explained that to him. When the accused told her that he was confused about what to do and that he had no money to hire a lawyer, Constable Insinna further explained to him that he could obtain free legal advice by using the services of a legal aid duty counsel. At first, the accused was unwilling to speak to a legal aid lawyer. Constable Insinna mentioned to the accused that there was a list of lawyers available for him to call. While the accused appears to have indicated he wanted to see the list, he was told by her that it was located at headquarters and not at the hospital. The evidence suggests that the issue of procuring the list of lawyers at police headquarters was subsumed into the more difficult conversation about the accused's lack of money to hire a lawyer and his confusion about what course of action to follow. The evidence also suggests that after his conversation with Constable Insinna, the accused agreed to use the services of duty counsel.

[19] Shortly after Constable Katulka's return to the hospital from police headquarters at about 6:38 p.m., the accused agreed to speak to legal aid duty counsel. In the circumstances, it appears that he did not really have any other options. He had no specific lawyer in mind. He had no money to hire a lawyer. He was confused about what course of action to follow in the circumstances he found himself. According to Constable Sajatovic, Legal Aid was called at about 6:40 p.m. and an immediate response was received from them. The accused was put in touch with a lawyer and provided with a private place in which to confer with that lawyer, the interview lasting only approximately four minutes.

[20] At about 6:51 p.m., the accused was turned over to Constable Katulka for the purpose of carrying out the required blood-alcohol tests. The first breath test was administered to the accused at about 7:09 p.m. after he had received yet another caution. The second test was administered at 7:30 p.m. The evidence of Constable Katulka, which I accept, indicated that he properly performed the requisite breath testing procedures. The accused's test results indicated two readings of 280 milligrams of alcohol in 100 milliliters of blood.

[21] Having determined on the basis of the evidence that the accused last operated his vehicle at about 4:45 p.m., it is clear that the blood alcohol tests were carried out more than two hours after this time. Relying on s.320.31(4) of the Code and allowing an estimated delay in carrying out the blood alcohol testing of one half hour or so beyond the statutory period of two hours, I am entitled to and do find that the accused's blood alcohol level during the two-hours period after which he had ceased to operate his vehicle was 285 mgs. of alcohol in 100 milliliters of blood.

[22] At 8:10 p.m., Acting Sergeant Wilmot arrived at the hospital to prepare and have the accused execute the requisite release documents and cause the accused's case to be adjourned to a future court date.

Charter Violations

Sections 8, 9 and 10 of the Charter

[23] The accused brought a number of Charter challenges respecting the conduct of the police and the legality of the evidence obtained against him. He alleged that the conduct of the investigating police officers violated his constitutional rights under sections 8, 9 and 10 of the Canadian Charter of Rights and Freedoms.

Sections 8 and 9 of the Charter

[24] The accused alleged that his right under section 8 of the Charter to be free from unreasonable search and seizure had been violated because the police did not have grounds to form a reasonable suspicion that he was impaired before demanding that he submit to a roadside screening breath demand. The use of those results, together with police observation of him while he was being transported to the hospital, to assist the police in making a formal breath demand on him, he argued, infringed on his ss.8 and 9 Charter rights to be free from unreasonable search and seizure and not be arbitrarily detained.

Section 10 of the Charter

[25] The accused also alleged that his section 10 Charter rights to counsel, particularly those under s.10(b), were violated by the investigating police officer accompanying him to the local hospital, Health Sciences North. The accused maintained that the investigating officer ought not to have been present in the ambulance taking him to the hospital and that he ought not to have interviewed him on the way there. He argued that had the investigating officer held back from questioning him until he had had an opportunity to speak to a lawyer after arriving there, he would not have been confused about what to do and would not have been deprived of his s.10 Charter rights.

Background

[26] Constable Sajatovic, the investigating officer, arrived on the scene at 40 Moreau Avenue, Sudbury, just minutes after the arrival of an ambulance also sent there. Both the police and the ambulance were sent to that address as a result of two 911 calls made by the accused's girlfriend, Samantha McQueen.

[27] The evidence indicates that upon arriving at the scene, Constable Sajatovic noticed the accused's vehicle parked next to the ambulance. He testified that he entered the ambulance without opposition in order to find out what had happened to the vehicle's driver. He was informed by Paramedic Coutu that it had taken her a little time to persuade the accused to move from his vehicle into the ambulance but that she had finally managed to persuade him do so.

[28] Without opposition from the paramedics, Constable Sajatovic decided to accompany the accused to the hospital in the ambulance. Once he had been given permission by Paramedic Coutu to speak to the accused, Constable Sajatovic did so. At least one of the questions put to the accused by Constable Sajatovic focused on his consumption of alcohol. Constable Sajatovic was told by the accused that he had last consumed alcohol around 3:00 p.m. earlier that afternoon. At this point, Constable Sajatovic appeared to be looking for confirmation of his intention to make a roadside screening demand on the accused pursuant to s. 320.27(1) (b) of the Criminal Code.

[29] The accused took issue with Constable Sajatovic's conduct on that occasion, alleging that by riding with him to the hospital, he had invaded his personal privacy and interfered with his rights to counsel, thereby violating his section 8 and 9 Charter rights. In R v LaChappelle (2007 ONCA 655), the late Justice Rosenberg, speaking for the Ontario Court of Appeal, addressed a very similar issue. In LaChappelle, the accused argued that the presence of the investigating police officer in the ambulance taking him to the hospital together with her observation of him once they arrived there had violated his right to privacy. By doing so, he maintained, the officer had been able to obtain information regarding his condition which would not otherwise have been available to assist her in forming her grounds for making a breath demand on him. Finding the investigating officer's "nonintrusive presence with the consent of the ambulance personnel" had not breached the appellant's reasonable expectation of privacy and that the accused had not been deprived of his section 8 Charter right to privacy, Justice Rosenberg stated:

[30] In my view, the mere fact that Constable Randall accompanied the appellant in the ambulance did not violate his s.8 rights, even if the appellant had a reasonable expectation of privacy with respect to the ambulance.

[31] Section 8, Justice Rosenberg maintained, was only engaged if there is a search or seizure. He rejected the appellant's claim that because Constable Randall had been able to observe his interaction with the ambulance attendants, he had been deprived of his right to privacy because of the officer's unwanted presence.

[32] Adopting the test set out in R. v Plant (), respecting factors to be considered where section 8 informational privacy rights are alleged to have been breached, Justice Rosenberg pointed out that the observational information collected by the investigating police officer had not provided the police with information of a highly confidential nature. In Plant, Justice Rosenberg stated, Justice Sopinka had noted the need for balancing support for informational privacy rights under section 8 of the Charter against "the seriousness of the crime being investigated". Factors to consider in such circumstances, he concurred, were the relationship between the parties, the place where the information was obtained and the manner in which it was obtained (para. 34).

[33] Alluding to the investigating officer's ability to observe the accused both inside the ambulance and outside the ambulance after arriving at the hospital, she had not, Justice Rosenberg concluded, violated the accused's section 8 privacy interests (paras. 34 – 37). In concluding, Justice Rosenberg noted the seriousness of the drinking and driving offence before the Court, stating that "…The acts of Constable Randall in passively observing the appellant in the ambulance were wholly proportionate to the seriousness of the situation" (para. 38).

[34] In the present case, the accused disclosed to the investigating officer, Constable Sajatovic, the fact that he had last consumed alcohol at around 3:00 p.m. While in certain circumstances this information could have been crucial to the issue of establishing the accused's immediate drinking history, I find that there were other sources from which the investigating officer could and did establish the time of the accused's last consumption of alcohol. The information provided by the accused's girlfriend to the police about his conduct at about 4:30 p.m. that day, as well as the observations made by the officer with respect to the accused's comportment, lack of focus and the odor of alcohol emanating from him together allowed him to conclude that within the previous three hours to his arrival on the scene the accused had consumed alcohol and had been driving his motor vehicle. Given the observation by Justice Sopinka in Plant that the factors to be considered in assessing a situation when a section 8 breach is alleged must be weighed and balanced against the need for "effective law enforcement", I find that the accused has not demonstrated that his section 8 Charter rights were violated.

Making the ASD Demand "Forthwith" and the Intoxilyzer Demand "As Soon As Practicable"

[35] The accused alleges that his section 8 and section 9 Charter rights were breached when the investigating officer and his colleagues fail to administer the approved screening device test and the more formal breath tests "forthwith", in the case of the approved screening device test and "as soon as practicable" in the case of the Intoxilyzer tests. Given the circumstances in which the approved screening device test was conducted and the finding I have made with respect to when a demand was made for this test, I find that the accused's allegations of breach to be without merit. The evidence indicated that when the investigating officer, Constable Sajatovic, arrived at the scene, the accused was already in the ambulance where, it should be noted, he was under no compulsion to remain. Given this fact and the fact that after approximately 10 -12 minutes the accused and Constable Sajatovic proceeded immediately to Health Sciences North, there is evidence that the ASD demand was made within minutes after Constable Sajatovic got permission from Paramedic Coutu to speak to the accused. I find that Constable Sajatovic, as the investigating officer, acted "forthwith" and as quickly as the circumstances permitted in making a demand, that accused provide a breath sample into the approved screening device which he had with him.

[36] The other issue here arises with respect to the time taken to administer the Intoxilyzer breath tests. Under s. 320.28(1)(b) of the Code, the requisite breath tests are to be taken "as soon as practicable". In R. v Ledford (), the Court considered the meaning of the phrase "as soon as practicable". It decided that the phrase did not mean "as soon as possible" but rather "in all of the circumstances within a reasonably prompt time" (para.20). In R. v Vanderbruggen (), the Court indicated that the phrase "as soon as practicable" meant "nothing more than that the tests were to be taken "within a reasonably prompt time under the circumstances" (para 12). In maintaining that the test must be applied with reason, the Court held that while the onus was on the Crown to establish that such tests had been taken within a reasonably prompt time, there was no duty on the Crown to provide a detailed record of everything that occurred during every minute the accused was in custody (para. 13).

[37] The evidence indicates that the Intoxilyzer technician, Constable Katulka, arrived at, Health Sciences North at about 6:09 p.m. He had had, however, to return to headquarters in center of the City of Greater Sudbury in order to obtain a replacement part for the simulator component of the Intoxilyzer which he had brought with him to the hospital. He left the hospital at approximately 6:18 p.m. and was able to return with the Intoxilyzer's defective, simulator component part at approximately 6:38 p.m. While the accused argued that this problem reflected on the competence of the police with negative consequences to himself, I do not think it is reasonable to find that there was unacceptable delay in acting to replace the defective part. I find that the task of retrieving the working simulator part appears to have been carried out with the greatest dispatch on the part of Constable Katulka, given the distance of police headquarters from Health Sciences North. The purpose of the simulator is to ensure that the Intoxylizer is working properly. Without it, reliance cannot be placed on Intoxilyzer readings. It was, frankly, in the accused's interest to have his breath properly analyzed using a machine which works properly and on the operation of which his innocence or guilt could be established.

[38] Upon his return to the hospital and completing pre-testing procedures, Constable Katulka was able to proceed with the first of the accused's two blood tests at 7:09 p.m. He returned the accused to Constable Sajatovic's custody at approximately 7:35 p.m. The accused was eventually released by Acting Sergeant Wilmot at 8:12 p.m.

[39] It should be noted that in the time it took Constable Katulka to attend headquarters, obtain the replacement simulator part and return to the hospital, the clock had not stood still for the accused. By approximately 6:40 p.m., it had been arranged for him to speak with duty counsel and receive necessary legal advice.

[40] If one takes into consideration the whole "chain of events" in the present matter, it is apparent that concerns about the accused's medical condition necessitated that he be dealt with first in a hospital setting. This alone had the inevitable effect of delaying the time for carrying out the required breath testing. Additionally, and strictly because of their decision to first allow the accused to be treated, the need to return to headquarters to obtain a replacement cable for the Intoxilyzer's simulator component caused unexpected delay in the breath-testing procedure. In retrospect, if extra time was required to deal with the accused's medical condition and attend at headquarters to obtain a replacement simulator cable, the fault lay not with the police but rather with the condition in which the accused had placed himself by virtue of his intoxication. Had the accused been taken directly to police headquarters where he would not have received medical assistance but where the replacement cable was located, no delay would have occurred. In light of these facts, I find that the accused's claim that his section 8 and 9 Charter rights were violated is without merit.

Section 10 (b) Right to Counsel

[41] While the accused complained strongly about deprivation of his privacy right and the role that the presence of the investigating officer accompanying him to the hospital played in depriving him of that right, he also complained that he had been denied his s.10(b) Charter right to counsel. A review of his interactions with the police at the hospital, whether Constable Sajatovic, Constable Katulka or Constable Insinna, demonstrate, however, that these officers were very much alive to their obligation to respect the accused's s.10 Charter rights and, in particular, his s.10(b) Charter right.

[42] On the basis of the evidence adduced in this matter, I am unable to conclude that there is any merit to the accused's allegation that the police breached his s.10(a) right to be informed of the charges against him. It is clear from the evidence that he knew from the outset what charges he was facing, even if he did not know what to do about them. There is no evidence that he was unaware of the charges brought against him. Rather, the evidence establishes that he was confused about how to legally respond to these charges.

[43] On a number of occasions, the accused was advised of his rights to counsel - by Constable Sajatovic on at least two occasions, by Constable Katulka prior to his breath tests being carried out and by Constable Insinna during the time Constable Katulka left the hospital to go to headquarters to obtain a replacement part for the Intoxilyzer's simulator component.

[44] The most notable example of police willingness to respect the accused's s.10(b) right to counsel came when Constable Insinna spoke with the accused encouraging him to speak to a legal aid lawyer. The accused told Constable Insinna that he was confused about what to do in the circumstances in which he found himself. He told her that he did not have the money to hire a private lawyer. Importantly, he did not ask for help to seek out a lawyer of choice. There was, in fact, no evidence indicating that he had a particular lawyer in mind. While the existence of a list of available lawyers was brought to the accused's attention, Constable Insinna pointed out to him that while such a list was available at police headquarters, it was not available at the hospital. The accused did not suggest to Constable Insinna that they wait until the list could be brought to the hospital from police headquarters. Given the time constraints on the police for carrying out the required breath testing as soon as practicable, this was not a reasonable option.

[45] In the end, the accused decided to speak to legal aid duty counsel. Surprisingly, the call to the lawyer referral service went through almost immediately. The accused was able to speak to a lawyer in private for a period of 4 minutes. At the time, the accused seemed satisfied with the advice he received. He did not complain about that advice or demand to speak with another lawyer. Shortly after receiving this advice, the accused was turned over to Constable Katulka for completion of the required breath tests.

[46] Citing Supreme Court of Canada decisions in R. v Brydges (), and R. v Ross (), among others, the court in R. v Blackett (), pointed out the duty of accused persons to be "reasonably diligent" in exercising their right to counsel. It concurred with the Supreme Court's decision that it was only when counsel of choice was not available within a reasonable time that the accused was under an obligation to use alternate counsel (paras. 5-9). The court in Blackett noted its concurrence with appellate rulings, directing that when duty counsel was available, "the scope of the police duty to facilitate contact with counsel of choice is minimal." (para. 25) In the present case, I find that there is no issue with the accused not having been afforded an opportunity to confer with a lawyer of choice. The accused did not have a lawyer of choice. He was unable to identify a specific lawyer to the officers trying to put him in touch with one. In the present circumstances, I think that it would be incorrect to interpret the term "counsel of choice" as meaning a lawyer chosen from a list of unknown lawyers. One cannot, I think, make a meaningful choice about the merits of someone one knows little or nothing about.

[47] In R v Littleford (), the Ontario Court of Appeal drew attention to the need for an accused to be clear in the exercise of his or her s.10(b) right to counsel. Failure to express dissatisfaction with counsel other than a counsel of choice, the Court indicated, would suggest that an accused was content with the advice offered to him or her. When in Littleford the accused's lawyer of choice could not be reached because of the late hour, he agreed to use the services of legal aid duty counsel made available to him with the assistance of the police. Having done so and not having expressed dissatisfaction with the advice received at the time he received it, the Court found that his s.10(b) rights had not been violated.

[48] In R v Richfield (), the Ontario Court of Appeal concluded that the accused's refusal to avail himself of available legal aid duty counsel when his lawyer could not be reached prevented him from later successfully arguing that his s. 10(b) right to counsel had been violated. The Court in Richfield also drew on the Supreme Court of Canada's decision R v Brydges (), suggesting that the failure of an accused to use legal aid duty counsel when an accused could not reach his lawyer of choice could be construed as "unreasonable" and not demonstrating the exercise of reasonable diligence in pursuing his or her s.10(b) right to counsel.

[49] In R v Ferose (2019 ONSC 1052), the court agreed that:

1. where the accused had not requested to speak to a particular lawyer, or such a lawyer was not available but

2. he or she was given an opportunity to speak privately to a lawyer, failed to complain about the advice provided by that lawyer; and

3. did not claim any harm or prejudice resulting from the advice provided;

4. it was "…unlikely that any breach of the detainee's s.10(b)interests will be found, and if any such breach is found, the impact of such breach will be minimal" (para. 73).

Conclusion

[50] While initially tempted to view Constable Sajatovic's conversation with the accused on the way to the hospital as possibly constituting a breach of his s.10(b) Charter rights, upon reflection I have reached a different conclusion. I have done so for the following reasons:

a) At the time the accused and Constable Sajatovic were on the way to the hospital, Constable Sajatovic deferred to the accused's medical needs before speaking to him. On the basis of the evidence, I estimate that this conversation took no more than 5 minutes. The initial 5 to 6 minutes of the trip to the hospital would have been required by Paramedic Coutu to carry out her assessment of the accused's medical condition and to decide if immediate treatment was required. There was no evidence indicating that the conversation between Constable Sajatovic and the accused was oppressive or overbearing in either its tone or its manner. The only potential breach which is known to have occurred in their conversation was the question put to the accused by Constable Sajatovic relating to the time he had last consumed alcohol. The accused told Constable Sajatovic that he had last consumed alcohol at about 3:00 p.m. that day. How credible this information was and how much Constable Sajatovic could rely on it in the circumstances is debatable. By way of conclusion on this point, I note that it may now no longer be required by virtue of s.320.27(2) for the arresting officer to demonstrate that he or she had reasonable suspicion of the presence of alcohol in a driver's body before making a screening demand, providing they have an approved screening device readily at hand.

b) At the time the question of his last consumption of alcohol was put to the accused, I do not believe that he had been arrested; nor that he had yet been asked to participate in a roadside screening test. I conclude from the evidence that at the time Constable Sajatovic spoke to the accused, Constable Sajatovic already had a reasonable suspicion that the accused had been driving while impaired and was very much intent on making an ASD demand on him. Constable Sajatovic testified that the accused smelled of alcohol which he noticed while he was travelling with him to the hospital. Under the circumstances, it is more than reasonable to infer that this odour had to be coming from the person of the accused. Constable Sajatovic had initially received the dispatcher's broadcasts containing information from the accused's girlfriend, Samantha McQueen, about the accused's erratic driving at about 4:30 p.m. earlier that day. She informed the police that she had smelled alcohol emanating from open Pepsi bottles in his vehicle when she was driving with him at that time and that he had indicated to her that he had a problem with alcohol abuse. Lastly, Constable Sajatovic had spoken to Paramedic Coutu about the circumstances in which she had first seen the accused in his vehicle and how she had managed to persuade him to come into the ambulance to be assessed. This information would, I find, have been sufficient to lead Constable Sajatovic to reasonably suspect that the accused had been driving while impaired within the three-hour period preceding his arrival at 40 Moreau Ave., Sudbury. The officer cannot be faulted for going the extra step in his investigation, particularly when one considers that the procedure prescribed for laying an impaired (over 80 mg.) driving charge against the accused was unfolding in circumstances where the accused, his suspect, was being taken to the hospital, not for police purposes but for reasons of his personal health.

c) Bearing in mind the delay being caused in transporting the accused to the hospital as well as the delay which could reasonably be expected for medical reasons once there, time was always of the essence in carrying out the breath-testing procedures required to determine whether the accused was impaired and to charge him accordingly. While of note, then, the information obtained from the accused by Constable Sajatovic in his brief conversation with him was not critical to the task at hand and did not constitute a breach of his s.10(b) Charter rights. Under the circumstances, the officer was reasonably exercising his investigatory duty as diligently and thoroughly as he could before making a roadside screening demand on the accused. Considering the evidence available from his own observations and those of the accused's girlfriend, Samantha McQueen, and Paramedic Coutu, the little information obtained directly from the accused was of no great consequence to a determination of his guilt.

[51] I find, then, that the accused's allegations respecting various breaches of his rights under the Code and under sections 8, 9 and 10 of the Charter are not made out. On the basis of the evidence presented in this matter, in particular the Intoxilyzer results, I convict him of the offence that within two hours of ceasing to operate his vehicle he had a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 milliliters of blood as charged.

Released: October 22, 2020

Signed: Justice André L. Guay