Case Summary

The accused was charged with impaired operation of a motor vehicle causing bodily harm and operation of a motor vehicle with blood alcohol concentration exceeding 80 mg/100 mL following a head-on collision. The accused advanced multiple Charter arguments challenging the admissibility of evidence, including claims of arbitrary detention, unreasonable search and seizure, violations of the right to counsel, lost evidence, and pre-charge delay. The court found that while there were minor procedural imperfections in the police investigation, no serious Charter violations occurred. The blood sample was taken by hospital staff for medical purposes, not at police direction, and therefore did not constitute state action. The court rejected arguments regarding lost evidence and pre-charge delay, finding no demonstrated prejudice to fair trial rights. The evidence was admitted and the accused was convicted on all counts. interesting_citations_summary: > This decision provides important guidance on the distinction between state action and private conduct in the context of medical evidence collection. The court clarified that hospital staff taking blood samples for medical purposes, even when police are aware of the samples, does not constitute state action requiring Charter compliance. The decision also addresses the limited scope of judicial review over police investigative efficiency and establishes that pre-charge delay, absent demonstrated prejudice to fair trial rights, does not constitute a Charter violation. The court's analysis of the right to counsel in circumstances where a detainee is unable to comprehend their rights due to intoxication provides nuanced guidance on police obligations in such situations. final_judgement: > The accused was found guilty of impaired operation of a motor vehicle causing bodily harm (two counts) and operation of a motor vehicle with blood alcohol concentration exceeding 80 mg/100 mL. All Charter applications were dismissed. The court invited submissions on the application of the Kienapple principle and whether sentencing could proceed remotely. keywords: - Impaired driving - Blood alcohol concentration - Charter violations - Right to counsel - Search and seizure - Lost evidence - Pre-charge delay - State action - Hospital records - Toxicology areas_of_law: - Criminal Law - Impaired Driving - Charter Rights - Evidence - Criminal Procedure legislation: - title: "Criminal Code, R.S.C. 1985, c. C-46, s. 253, s. 254, s. 255" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/" - title: "Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11" url: "https://laws-lois.justice.gc.ca/eng/const/page-12.html" case_law: - title: "Ares v. Venner, [1970] S.C.R. 608" url: "https://www.canlii.org/en/ca/scc/doc/1970/1970canlii5/1970canlii5.html" - title: "R. v. Grimba and Wilder, [1977] O.J. No. 2606 (Co. Ct.)" url: "https://www.canlii.org/en/on/onca/doc/1977/1977canlii2606/1977canlii2606.html" - title: "R. v. Monkhouse, 1987 ABCA 227, [1987] A.J. No. 1031 (C.A.)" url: "https://www.canlii.org/en/ab/abca/doc/1987/1987abca227/1987abca227.html" - title: "R. v. Garofoli, [1990] 2 S.C.R. 1421" url: "https://www.canlii.org/en/ca/scc/doc/1990/1990canlii52/1990canlii52.html" - title: "R. v. Strauss, 2017 ONCA 628, [2017] O.J. No. 4084 (Ont. C.A.)" url: "https://www.canlii.org/en/on/onca/doc/2017/2017onca628/2017onca628.html" - title: "R. v. Paryniuk, 2017 ONCA 87" url: "https://www.canlii.org/en/on/onca/doc/2017/2017onca87/2017onca87.html" - title: "R. v. Tash, [2008] O.J. No. 200 (S.C.J.)" url: "https://www.canlii.org/en/on/onsc/doc/2008/2008canlii1541/2008canlii1541.html" - title: "R. v. Suberu, 2009 SCC 33" url: "https://www.canlii.org/en/ca/scc/doc/2009/2009scc33/2009scc33.html" - title: "R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429" url: "https://www.canlii.org/en/ca/scc/doc/2010/2010scc37/2010scc37.html" - title: "R. v. Devries, 2009 ONCA 477, [2009] O.J. No. 2421 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca477/2009onca477.html" - title: "R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310" url: "https://www.canlii.org/en/ca/scc/doc/2010/2010scc35/2010scc35.html" - title: "R. v. 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No. 2820 (S.C.J.)" url: "https://www.canlii.org/en/on/onsc/doc/2015/2015onsc2820/2015onsc2820.html" --- # Ontario Court of Justice **Date:** June 1, 2020 **Central East Region** --- ## Between: **HER MAJESTY THE QUEEN** — AND — **SAMUEL HUNT** --- **Before:** Justice F. Javed **Heard on:** February 25, 27, 28, 2020 **Reasons on Application and trial proceedings released electronically on:** June 1, 2020 --- **Counsel:** - D. Slessor — counsel for the Crown - S. Gill — counsel for the defendant --- # I. INTRODUCTION [1] It is a fundamental tenet of the Canadian criminal justice system that any person charged with a criminal offence is entitled to a fair trial by being able to make full answer and defence. This right is enshrined in s.11(d) of the [Charter of Rights and Freedoms](https://laws-lois.justice.gc.ca/eng/const/page-12.html) ("Charter") and is jealously protected by the courts. When a court determines that a person was deprived of the right to a fair trial for whatever reason(s), the Charter provides a court with some means to redress the unfairness. One remedy is to exclude evidence so it can't be used against the person during the trial, while another is to terminate or "stay" the prosecution. [2] In this case, Mr. Hunt (the Applicant), argues he was deprived of the right to have a fair trial because the state violated his Charter rights by unconstitutionally securing his blood sample, then losing the blood sample, followed with a negligent and slow police investigation. He says these alleged constitutional violations should result in the court excluding the evidence of his elevated blood alcohol concentration (BAC) readings and/or awarding him the drastic remedy of staying the prosecution. [3] A snapshot of the case will place these arguments in proper context. In September 2017, Mr. Hunt was arrested for the offence of impaired driving after he was involved in a head-on motor vehicle collision. The collision caused the other driver to suffer injuries. Acting Sergeant Brown of the Durham Regional Police Service ("A/Sgt Brown") investigated Mr. Hunt who was found in the driver's seat of his vehicle covered in his own vomit. He appeared intoxicated. A/Sgt Brown determined he needed medical attention, so he sent Mr. Hunt to the hospital even though Mr. Hunt did not ask to go. At the hospital, a nurse took blood from Mr. Hunt at the instruction of a doctor. The blood test included testing for ethanol, which measures if there is alcohol in one's body. A/Sgt Brown advised he would return to the hospital armed with a search warrant to seize Mr. Hunt's blood. Mr. Hunt was left at the hospital to sober up and was not, at that time, charged with any criminal offences. He was told he could go home. Three days later, A/Sgt Brown discovered Mr. Hunt's blood was not available to be seized by the police. The matter was turned over to a criminal investigator, Detective Constable Shaddick ("DC Shaddick"), who would later testify at trial that the police investigation "fell through the cracks". After some months, a production order was obtained for Mr. Hunt's hospital records, which were used by the Centre of Forensic Sciences ("CFS") to form an opinion that Mr. Hunt's BAC exceeded 80mgs of alcohol in 100mls of blood at the time of the collision. Finally, after waiting over 13 months, Mr. Hunt was formally charged with the criminal allegations contrary to the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/): having care or control of a motor vehicle while his blood alcohol concentration exceeded 80 mgs of alcohol in 100 mls of blood contrary to s.253(1)(a) and two counts of impaired operation of a motor vehicle causing bodily harm contrary to s.255(2).[1] [4] Mr. Hunt's trial was heard before me over the course of three days. The Crown called A/Sgt. Brown, DC Shaddick, Jennifer Evans, the nurse who took Mr. Hunt's blood at the hospital, and Randal Soubasis, a laboratory technician who described the way the blood was tested. Mr. Hunt filed an affidavit on the Charter voir dire. He was cross-examined by Crown counsel, Mr. Slessor. The parties agreed to blend the evidence of the Crown's witnesses on the Charter and trial issues but not the evidence of Mr. Hunt who decided not to testify on the trial issues. [5] During the trial, the Crown sought a ruling on the admissibility of Mr. Hunt's hospital records. Mr. Gill on behalf of Mr. Hunt argued against their admission. In a brief oral ruling, I ruled the hospital records were admissible pursuant to a common law exception to the hearsay rule, subject to the Charter ruling: [Ares v. Venner](https://www.canlii.org/en/ca/scc/doc/1970/1970canlii5/1970canlii5.html), [1970] S.C.R. 608; [R. v. Grimba and Wilder](https://www.canlii.org/en/on/onca/doc/1977/1977canlii2606/1977canlii2606.html), [1977] O.J. No. 2606 (Co. Ct.); [R. v. Monkhouse](https://www.canlii.org/en/ab/abca/doc/1987/1987abca227/1987abca227.html), 1987 ABCA 227, [1987] A.J. No. 1031(C.A.) at pg. 7. On the blended voir dire, I heard evidence from a nurse, Ms. Evans. I was satisfied that the hospital records were made by a person who was under a duty to record the information, the records were recorded in the ordinary practice of the business and the records were contemporaneously made with the facts stated in the records. I was also satisfied the hospital records were reliable, such that they were created without a motive to misrepresent facts. [6] The Crown also tendered the opinion of Rachelle Wallage, a toxicologist employed with the CFS as Exhibit 2. This too was admitted subject to the Charter ruling. The defence did not seek to cross-examine Ms. Wallage on her opinion on either the Charter or trial issues. --- # II. THE PROCEDURAL BACKGROUND [7] Mr. Gill advanced several Charter arguments but did not initially argue against the admissibility of a production order which was used to secure Mr. Hunt's hospital records. The hospital records were then used by Ms. Wallage to prepare her opinion that Mr. Hunt's BAC at the relevant time exceeded 80mgs of alcohol in 100mls of blood. The production order was judicially authorized, and the law treats it as presumptively valid subject to a challenge against its admission. One mode of challenge is to argue that the order could not have been authorized because it was obtained without reasonable suspicion and violated s.8 of the Charter. Mr. Gill did not launch this challenge. However, as the trial progressed, it became clear that the thrust of the defence position was to challenge the admissibility of the opinion of Ms. Wallage, which by implication, would mean the evidence she relied on to form her opinion, namely the hospital records which contained information about Mr. Hunt's blood tests. This issue first reared its head during the cross-examination of DC Shaddick, the affiant of the Information to Obtain ("ITO") in support of the production order. Mr. Gill launched into a series of questions designed to undermine the basis for the grounds he relied on to secure the production order. The Crown objected citing that no Charter application was filed on this basis nor was there an application seeking leave to cross-examine the affiant: [R. v. Garofoli](https://www.canlii.org/en/ca/scc/doc/1990/1990canlii52/1990canlii52.html), [1990] 2 S.C.R. 1421. Mr. Gill clarified he was not seeking to challenge the issuance of the production order, but rather, was attempting to adduce evidence about the chronology of the investigation which he was going to later argue was negligent. I permitted him to explore the evidence on this basis. [8] However, as the evidence unfolded, it became clear that Mr. Gill was seeking to implicitly challenge the production order, even if there was no explicit Charter challenge. After some discussion, I gave him overnight to consider his position to determine if he would seek leave to amend his Charter materials. Mr. Gill returned with a request to reframe his Charter arguments but not because he wanted to launch a s.8 facial or sub-facial challenge to the production order, but rather, he wanted to argue under s.7/8 that the court should exercise its residual discretion to set aside the production order because it was obtained in a subversive manner: [R. v. Strauss](/on/onca/2017/628), 2017 ONCA 628, [2017] O.J. No. 4084 (Ont. C.A.); [R. v. Paryniuk](/on/onca/2017/87), 2017 ONCA 87. As part of this application, Mr. Gill did not seek to recall DC Shaddick nor call any other evidence but instead asked that any evidence already called on the Charter voir dires apply to this issue. Mr. Slessor understandably opposed this request which he said was a tactical shift in strategy. While I understood the Crown's concern, I permitted Mr. Gill to pursue the argument because I did not see it as a change in tactics. It was clear that Mr. Gill's trial strategy was to attack the admissibility of the blood evidence which was used to obtain the BAC readings. This would include the production order. The law provides for some procedural flexibility in adjudicating Charter applications to avoid an unfair result: [R. v. Tash](https://www.canlii.org/en/on/onsc/doc/2008/2008canlii1541/2008canlii1541.html), [2008] O.J. No. 200 (S.C.J.). While the timing and lack of notice was imperfect, the Crown was not prejudiced given the scope of the issue as framed by Mr. Gill. Both counsel had conducted an extensive examination-in-chief and cross-examination of the relevant witnesses and both chose to not to call any additional evidence. [9] At the end of the voir dire, Mr. Gill sought a ruling on the Charter issues before proceeding further with the substantive trial issues. However, he also advised he would not be calling any defence evidence on the trial issues irrespective of the Charter ruling. Equally, Mr. Slessor advised the Crown would also not be calling any evidence on the trial issues. Given the positions of the parties, I invited submissions on all issues mindful of my obligation to separately analyze the Charter and trial issues in one ruling. Specifically, I would not rely on Mr. Hunt's evidence on the voir dire on the trial issues. As a procedural safeguard, I permitted the parties to supplement their oral submissions with written submissions, if necessary, and set a timeline to exchange materials. The parties agreed to proceed in this fashion. A date for judgment on all issues was set for April 6, 2020. In the interim, the court did not receive any further written submissions. [10] On April 6, 2020, the matter did not proceed as scheduled given the health emergency caused by the novel Coronavirus ("COVID-19"). As directed by the Chief of the Ontario Court of Justice, all non-urgent, out of custody matters would be presumptively adjourned for 10 weeks. In this case, the matter was presumptively adjourned to June 2, 2020. As my part of inherent duty to minimize delay, the court communicated with the parties in advance of the return date to canvass their position on whether the proceedings could proceed remotely by audioconference pursuant to s.715.24 of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/). The court invited submissions on this issue in light of Part XX11.01 of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/) which creates a presumption for in-person attendances subject to provisions of the Code. Both counsel responded they were consenting to proceed remotely, by audioconference. The parties did not make submissions against proceeding by audioconference.[2] Accordingly, to promote an efficient hearing, the court offered to deliver this ruling to counsel electronically prior to June 2, 2020 with a direction that Mr. Gill provide a copy to his client, Mr. Hunt.[3] --- # III. OVERVIEW OF POSITIONS OF THE PARTIES [11] Distilled to its core, the overall defence position alleges an incompetent police investigation, which Mr. Gill argues has irreparably breached Mr. Hunt's fair trial rights under the Charter. He says this should entitle Mr. Hunt to a Charter remedy of excluding the evidence under s.24(2) and/or staying the proceedings under s.24(1). The alleged police incompetence is premised on a number of things including: a roadside investigation that was not Charter compliant, unacceptable police negligence in permitting blood to be destroyed which isn't available for the defence to independently test, the indifferent and slow approach to the investigation which lead to inordinate pre-charge delay causing memory loss and anxiety for Mr. Hunt and finally, material non-disclosure to an issuing Justice when applying for a production order which subverted the administration of justice. Mr. Gill argued these discrete and repeated Charter violations were deliberate and serious and require the court to intervene to cure the injustice. [12] Mr. Slessor disagrees – on all fronts. The Crown position is that the police investigation, while imperfect, was Charter compliant and did not result in an unfair trial or the inability to make full answer and defence. He says there is no evidence that the hospital employees were acting at the behest of the police, which makes the seizure of Mr. Hunt's blood and therefore the seizure of the hospital records, lawful. Mr. Slessor concedes it is unfortunate the blood is not available, but this was not because of state misconduct. Further, he says there is no merit to the lost evidence complaint because the police didn't lose anything. Finally, the delay in arriving at trial caused no unfairness because Mr. Hunt's evidence on the prejudice he suffered should be rejected. Mr. Slessor says this imperfect case is nowhere close to being stayed as a remedy of last resort. --- # IV. SUMMARY OF LEGAL CONCLUSIONS [13] For reasons that follow, I am in substantial agreement with the Crown's position and conclude there were no Charter violations of consequence in this case. In short, the police investigation, while imperfect, was not plagued with unacceptable negligence or unfairness. Mr. Hunt's blood was seized for medical purposes and lawfully tested. His hospital records were lawfully obtained pursuant to a valid court order and exist independently of his blood. There were no proven Charter violations with the exception of one area involving the provision of rights to counsel ("RTC") under s.10(b) of the Charter. Specifically, the evidence as a whole establishes that Mr. Hunt was not provided his RTC without delay and wasn't properly informed of his RTC at the hospital when the investigation shifted from a breath to blood demand and after time had passed from the roadside investigation. However, as I will explain, these missteps were largely a byproduct of the unique factual circumstances of this case and do not give rise to a serious problem that would otherwise attract a Charter remedy. On this record, they were purely inconsequential because the police conduct was not serious nor motivated by bad faith. Instead, the conduct was imperfect, like the circumstances of this case, but not unfair. Further, Mr. Hunt never chose to exercise his RTC thus any problems in this area had no impact on his Charter protected rights. In the final analysis, Mr. Hunt was a patient in a hospital and the police used lawful means to obtain his medical records to generate an opinion about his BAC level. While this case proceeded slower than most drinking and driving cases, it was not plagued with lost evidence or unacceptable negligence. Mr. Hunt was not deprived of his right to a fair trial and there is no basis to exclude the evidence and/or stay the proceedings. The blood evidence, including the hospital records, are Charter compliant and admissible. The Charter applications are therefore dismissed. I will explain my conclusions below beginning with an identification of the legal issues. --- # V. ISSUES [14] The Charter issues in this case overlap in many respects. I propose to address them in a chronological manner given Mr. Hunt's allegation that his fair trial rights were compromised by an unfair police investigation. This requires a closer examination of the police investigation. I will address the discrete Charter complaints within the wider umbrella of an incompetent police investigation, which wasn't specifically advanced as a separate Charter violation, but appears to be the defence anchor. [15] Accordingly, the issues for the court to determine are: **(i)** Was Mr. Hunt arbitrarily detained under s.9 of the Charter because A/Sgt Brown did not have reasonable and probable grounds to arrest him for an offence under s.495(1) of the Code? **(ii)** Was there a s.8 Charter violation by the failure of A/Sgt Brown to have sufficient grounds to make an approved instrument demand? **(iii)** Did A/Sgt Brown breach Mr. Hunt's s.10(b) Charter rights by failing to: > a. Inform Mr. Hunt of his RTC without delay? > > b. Hold off in administering a breath and blood demand to ensure he understood his rights and the demands; and > > c. Provide reasonable assistance in implementing his RTC; **(iv)** Was there a s.8 Charter violation on the basis that the hospital staff were acting as state agents in taking Mr. Hunt's blood? **(v)** Was there a s.8 Charter violation on the basis that A/Sgt Brown violated Mr. Hunt's right to privacy because he was present during the seizure of his blood? **(vi)** Was there a s.7 Charter violation because the police lost evidence of Mr. Hunt's blood? **(vii)** Was Mr. Hunt deprived of the right to a fair trial guaranteed by s.11(d) of the Charter by the pre-charge delay in charging him with a criminal offence? Related to this, was the police investigation incompetent? **(viii)** If there were proven Charter violation(s), has the defence met their onus to exclude the evidence under s.24(2)? **(ix)** Should the production order authorizing seizure of Mr. Hunt's hospital records be set aside because it was obtained in a subversive manner? **(x)** If the evidence is otherwise admissible, has Mr. Hunt met his onus under s.24(1) to stay the proceedings? and finally, **(xi)** If the evidence is admissible, has the Crown proven the elements of the two offences beyond a reasonable doubt? --- # VI. THE BACKGROUND FACTS ## A. The Collision [16] On September 19, 2017, at approximately 10:15 p.m., Ms. Kathey Herbert picked up her husband from the Ajax Go station. It was a gorgeous day with good road conditions. Ms. Herbert was driving a new Honda Civic motor vehicle while her husband was the passenger. She approached Bayly St. in Ajax, in the region of Durham, and noticed the lanes narrowed in both directions due to construction. [17] Ms. Herbert testified she saw the headlights of a vehicle driving towards her. I find this vehicle was being operated by Mr. Hunt. Ms. Herbert began to panic, as there was nowhere to go given the narrowed lanes. Accordingly, she swerved and two collided head on. The force of the collision caused her to slam into concrete construction blocks. The force of the impact caused her air bags to be deployed. She recalled there was dust everywhere and worried her vehicle would catch fire. The on-star system in the vehicle automatically deployed and called an ambulance. She was in horrific pain in her back and her hands felt "wonky". ## B. The Injuries [18] The ambulance took both Ms. Herbert and her husband to the Ajax hospital. She explained she broke both hands, which required a soft cast and later a hard cast. She also broke two fingers in her left arm. The right hand took 6 weeks to recover while the left hand took 8-9 weeks. She continues to have difficulties using her two hands at full capacity. Further, her back was fractured and treated with a bone simulator. She was bedridden for a month. After the casts were removed, she worked with a physiotherapist for at least twice a week for a few months. [19] I find these injuries clearly make out "bodily harm" as defined by s.2 of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/). [20] There is no evidence of Mr. Hunt suffering any injuries even though he testified he suspected he may have suffered a concussion. In cross-examination, Mr. Hunt testified he was out with his friend Adam but couldn't recall his last name. While he recalled throwing up, he couldn't recall if it was due to alcohol consumption or eating too much food. As I will explain below, I find Mr. Hunt was intoxicated by alcohol at the time of the collision which was proven without his evidence on the Charter voir dires. ## C. The Roadside Investigation [21] A/Sgt Brown responded to the scene of the collision. He has been a police officer with the DRPS since 2003. In September 2017, he was working as a front-line officer with A Platoon in the Ajax/Pickering area. On the date in question, he was in uniform and working alone. [22] At 22:36, he was dispatched to a personal injury motor vehicle collision at Bayly St. and Westney Rd. in Ajax. He explained there are two lanes traveling in an eastbound and westbound direction. On the night in question, there was a lot of construction and the lanes had been reduced to one lane in each direction. [23] At 22:44 he arrived on scene and saw firefighters, paramedics and remnants of a head on collision. He learned that the Herberts required hospitalization. He turned his attention to the other vehicle, which had two occupants. Ultimately, he determined the person in the driver's seat was Mr. Hunt. [24] Mr. Hunt was covered in vomit. He testified his eyes were glossy and there was an odour of alcohol coming from the vehicle. The air bag had not been deployed. Mr. Hunt was asleep and was not wearing a seatbelt. After rousing him, Mr. Hunt uttered "I am sorry" and fell back asleep. He had difficulty understanding his words and believed he was slurring his words based on his experience in dealing with intoxicated people. While talking to him, he noted an odour of alcohol emanating from his breath. [25] A/Sgt. Brown asked Mr. Hunt if he needed to attend at the hospital and he slurred the word "No". He asked if he could stand up and he responded: "No, I am drunk". Mr. Hunt was in and out of consciousness and kept slurring"I am sorry". At this point, Mr. Hunt was arrested for impaired driving. [26] On the voir dire, Mr. Hunt acknowledged passing out but did not concede it was due to alcohol consumption. He testified he couldn't recall if he drank alcohol but had a clearer memory that he was in and out of consciousness "all night". He attributed this to the accident and not even the possibility of alcohol as a contributing factor. When pressed, he admitted there were no preexisting medical conditions which explained his near comatose state nor was he diabetic. I reject Mr. Hunt's evidence on this issue. I found him to be evasive and professing to have a selective memory when it came to alcohol consumption, where his position was he had no recall. At the same time he said he was in and out of consciousness where he would have the ability to recall events. While the collision could have contributed to his near comatose state, I find alcohol was a clear contributing factor. I accept the evidence of A/Sgt Brown that he smelled alcohol on Mr. Hunt's breath. I find that Mr. Hunt was clearly impaired by alcohol. [27] I will now turn to my analysis of the Charter issues. --- # VII. CHARTER ISSUES & ANALYSIS ## Section 8 & 9 – Reasonable and Probable Grounds ### i. Did A/Sgt Brown have reasonable and probable grounds to arrest Mr. Hunt for the offence of impaired driving? Further, was there a s.8 Charter violation by the failure to have sufficient grounds to make an approved instrument and blood demand? [28] Mr. Gill advanced separate arguments under ss.8 and 9 of the Charter but the evidence on these issues overlaps, thus I propose to address the arguments together. [29] Section 495(1) of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/) provides: > A peace officer may arrest without a warrant > > (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; > > (b) a person whom he finds committing a criminal offence; or [30] Section 254(3) of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/) (as it was at the time) provided: > 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 technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or > > (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood; and determine the concentration, if any, of alcohol in the person's blood and > > b) if necessary, to accompany the peace officer for that purpose. [31] Mr. Gill argued that A/Sgt Brown did not have any grounds to arrest Mr. Hunt for a criminal offence pursuant to s.495(1) of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/) which made his detention and arrest arbitrary. Further, there were insufficient grounds to make a breath demand into an approved instrument and ultimately insufficient grounds for a blood demand. [32] Mr. Slessor argues A/Sgt Brown had ample grounds for both the arrest and the two demands. [33] The law provides that the Crown must prove a lawful arrest as well as lawful grounds for an approved instrument demand and/or blood demand, failing which, a s.8/9 Charter violation may be proven: [R. v. Alex](https://www.canlii.org/en/ca/scc/doc/2017/2017scc37/2017scc37.html), 2017 SCC 37, [2017] 1 SCR 967. If there were no grounds for an arrest, the detention would be arbitrary. [34] Section 254(3) of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/) requires that a police officer have reasonable and probable grounds to make a breath demand into an approved instrument. The Supreme Court has explained this contains both an objective and subjective component. That is, the investigating officer must have an honest belief that the suspect has committed an offence and objectively, there must exist reasonable grounds for this belief. In [R. v. Bush](https://www.canlii.org/en/on/onca/doc/2010/2010onca554/2010onca554.html), 2010 ONCA 554, [2010] OJ No. 3453 (Ont. C.A.), Justice Durno writing for the Court of Appeal summarized the proper approach to be taken by trial judges in assessing whether the necessary reasonable and probable grounds exist. This approach was helpfully summarized by Justice Campbell in [R. v. Suntharalingham](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc6207/2012onsc6207.html), 2012 ONSC 6207, [2012] O.J. No. 5145 (SCJ) at para. 21. These legal principles are well settled. [35] In [R. v. Notaro](/on/onca/2018/449), 2018 ONCA 449, Justice Paciocco observed at paragraphs 34-35: > 34 The reasonable and probable grounds test is not about the quality of the investigation or the range of the questions the officer asks herself. It turns on whether an arresting officer's honest, subjective belief that an offence has been committed is supported by the objective facts that the officer was aware of: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 71-72. As Durno J.(sitting ad hoc) noted in Bush, at para. 70"the issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so." > > 35 This is not to say that the quality of the investigation will have no practical bearing on whether the arresting officer has reasonable and probable grounds. After all, the nature and quality of the investigation will affect the information that the officer has, and can therefore indirectly influence the sufficiency of the officer's grounds. The point is that the material focus in a reasonable and probable grounds analysis is not on the extent of the investigation that an officer goes through in forming her belief. The material focus is on what the information known to the officer would mean to a reasonable person. [36] A/Sgt Brown testified that at 22:47, thus 3 minutes after arriving on scene, he formed reasonable grounds that Mr. Hunt's ability to operate a motor vehicle was impaired by alcohol. He stated that while he had information of a collision prior to attending, he had investigated many drinking and driving offences in the past and knew of his obligation to form independent grounds which he did. In cross-examination, he acknowledged that Mr. Hunt's near comatose-like condition could have been due to the collision but it was obvious to him that Mr. Hunt was intoxicated by alcohol. He didn't think he suffered from a concussion because he was in and out of consciousness and was somewhat responsive and was able to walk with his assistance to the ambulance. He did not pass out completely suggesting he was unconscious. I accept this evidence and find Mr. Hunt was not concussed. Moreover, Mr. Hunt never testified he was concussed at any point. [37] I find on the totality of the evidence, A/Sgt Brown could reasonably rely on the following facts supporting his honest belief that Mr. Hunt was impaired by alcohol: > (i) the circumstances of the unexplained head on collision, > > (ii) finding Mr. Hunt in the driver's seat while being in and out of consciousness; > > (iii) the smell of alcohol emanating from the vehicle, which he isolated to Mr. Hunt after speaking with him; > > (iv) the odour of alcohol coming from Mr. Hunt's breath; > > (v) Mr. Hunt admitting he was "drunk" and > > (vi) Mr. Hunt's repeated and incoherent apologies. [38] A/Sgt Brown testified Mr. Hunt was arrested for the offence of impaired driving. He did not ask him to exit from his vehicle to form any additional grounds. Nor was he initially handcuffed during the detention. Given his intoxicated state, he wanted to confirm his identity so he reached into his pants and obtained his wallet. The defence did not argue this was a breach of s.8 but in any event, I find this was reasonable given Mr. Hunt's state and the obligation to identify a driver under the Highway Traffic Act. A/Sgt Brown located a driver's license and confirmed his identity. While Ms. Herbert was not asked to identify Mr. Hunt in the courtroom, I find the Crown has clearly proven identification beyond a reasonable doubt. I will address this further when I discuss the trial issues. Mr. Hunt had to be assisted out of the vehicle and was escorted to the ambulance to be seen by the paramedics. I accept the evidence of A/Sgt Brown that during this walk of about 80 feet, Mr. Hunt was stumbling and swaying – which was after and independent of his grounds for arrest. Mr. Hunt didn't want to go to the hospital and sat on the bumper of the ambulance. A/Sgt Brown said Mr. Hunt appeared to fall asleep and had to be roused and escorted to his cruiser. Mr. Hunt sat in the back of the cruiser with the door open. Mr. Hunt could not recall any of these details. In fact, he had very little or no memory of the roadside interaction. [39] A/Sgt Brown had a subjective belief that Mr. Hunt's ability to operate a vehicle was impaired by the consumption of alcohol. Further, I am satisfied based on the totality of the information available to him that there were, objectively viewed, reasonable grounds for him to believe that Mr. Hunt was operating a vehicle while his ability to do so was impaired by alcohol. Courts have held that in some circumstances, consumption of alcohol plus an unexplained accident may generate reasonable and probable grounds but not always: [R. v. Rhyason](https://www.canlii.org/en/ca/scc/doc/2007/2007scc39/2007scc39.html), 2007 SCC 39, [2007] S.C.J No. 39 at para. 19. Here, there were no factors that pointed away to an "explained" collision. While there was construction and the roads were narrowed, there is no evidence before me that the head-on collision was caused by an error attributed to the construction, mechanics of the vehicle or the like. Ms. Herbert testified there were two marked lanes and she was properly in her lane and Mr. Hunt came into the wrong lane of traffic and caused the collision. I accept this. Nor is there evidence that Mr. Hunt fell asleep at the wheel prior to the collision. Overall, the reasonable grounds standard was easily met. A/Sgt. Brown did not have to have enough grounds to prove impairment beyond a reasonable doubt. The s.8 Charter argument is therefore dismissed. [40] Similarly, there is no merit to the argument that A/Sgt. Brown engaged in an unlawful arrest under s.495(1) of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/). I rely on my above comments in finding that A/Sgt Brown had subjective grounds supported by objective facts to believe that Mr. Hunt had committed an indictable offence. Indeed, a reasonable person standing in the shoes of A/Sgt Brown could easily conclude that there were reasonable and probable grounds for an arrest: [R. v. Storrey](https://www.canlii.org/en/ca/scc/doc/1990/1990canlii125/1990canlii125.html), [1990] S.C.J. No. 12 at para. 17. Accordingly, Mr. Hunt was not arbitrarily detained. The argument under s.9 of the Charter is similarly dismissed. Turning next to the s.10 Charter arguments. --- ## Section 10 Charter – Rights to Counsel [41] Mr. Gill advanced a three-prong argument under s.10(b) of the Charter. The overall focus of the complaints was that Mr. Hunt was unable to understand and act on his rights because of his physical state. Mr. Gill did not advance a violation of s.10(a) of the Charter which guarantees a person who has been detained the right to be promptly informed of the reasons for his detention: [R. v. Evans](https://www.canlii.org/en/ca/scc/doc/1991/1991canlii98/1991canlii98.html), [1991] 1 SCR 869. ### (ii-a) Was there a s.10(b) Charter violation by failing to inform Mr. Hunt of his RTC without delay? ### Section 10(b) – General Principles [42] Section 10(b) of the Charter provides that everyone has a right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. Section 10(b) imposes certain duties on the police and the detainee. The Supreme Court summarized the obligations on the police in [R. v. Willier](https://www.canlii.org/en/ca/scc/doc/2010/2010scc37/2010scc37.html), 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29: > (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel: [R. v. Devries](https://www.canlii.org/en/on/onca/doc/2009/2009onca477/2009onca477.html), 2009 ONCA 477, [2009] O.J. No 2421 (C.A.), at paras. 21-23; > > (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and > > (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). [43] The first duty requires the police to provide sufficient information to the detainee whereas the other two duties require the police to assist the detainee if she decides to exercise her RTC. Cases have referred to these as the "informational" and "implementational" duties. In 2010, in a trilogy of cases, the Supreme Court recognized that the two duties often overlap. In other words, the scope of the information and assistance required will depend on the circumstances of the case: [Willier](https://www.canlii.org/en/ca/scc/doc/2010/2010scc37/2010scc37.html), supra, [R. v. Sinclair](https://www.canlii.org/en/ca/scc/doc/2010/2010scc35/2010scc35.html), 2010 SCC 35, [2010] 2 S.C.R. 310 and [R. v. McCrimmon](https://www.canlii.org/en/ca/scc/doc/2010/2010scc36/2010scc36.html), 2010 SCC 36, [2010] 2 S.C.R. 402. [44] The law also imposes a duty on the detainee to exercise the right with reasonable diligence. A detainee has a RTC of counsel but the provision does not guarantee the RTC of choice at all times: [R. v. Burlingham](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii88/1995canlii88.html) (1995), 97 C.C.C. (3d) 385 (SCC) at para. 16. When the right is invoked, a detainee has the right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time, the detainee should be expected to exercise the RTC by calling another lawyer, including duty counsel: [R. v. Ross](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii134/1989canlii134.html) (1989), 46 CCC (3d) 129 (SCC) at 135; [R. v. Richfield](https://www.canlii.org/en/on/onca/doc/2003/2003canlii52164/2003canlii52164.html), [2003] O.J. No. 3230 (Ont. C.A.). The law is also clear that the police must hold off from attempting to elicit evidence from a detainee until she has been afforded a reasonable opportunity to exercise her RTC: [R. v. Bartle](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii64/1994canlii64.html) (1994), 92 C.C.C. (3d) 289 (S.C.C.): [R. v. Prospser](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii65/1994canlii65.html) (1994), 92 C.C.C. (3d) 353 (S.C.C.); [R. v. Traicheff](https://www.canlii.org/en/on/onca/doc/2010/2010onca851/2010onca851.html), 2010 ONCA 851, aff'g [2008] OJ No. 4361 (SCJ), aff'g 2007 ONCJ 564. [45] Mr. Gill's first argument is that A/Sgt Brown did not provide RTC in a timely way or "without delay" resulting in a Charter violation. Mr. Slessor responds that given the circumstances of the collision and the fact that he was investigating the collision on his own, some delay was warranted and reasonable, given the unique circumstances. [46] In [R. v. Suberu](https://www.canlii.org/en/ca/scc/doc/2009/2009scc33/2009scc33.html), 2009 SCC 33, the Supreme Court made it clear that a detainee must be informed of his RTC as soon as the detention arises. The court held at paragraph 41: "If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises." The law has developed that although without delay means "immediately" for the purposes of s. 10(b), the immediacy of the obligation is subject to concerns for officer or public safety. [47] A/Sgt Brown testified he read Mr. Hunt his RTC from his notebook at 22:57, thus 10 minutes after he formed grounds to arrest him. No issue is taken with the content of the information. Any delay in not advising Mr. Hunt of his RTC during the initial roadside interaction has been constitutionally justified but the period of detention after grounds for an arrest have crystalized is treated differently. Unfortunately, there is very little evidence on this record as to why it took 10 minutes to inform Mr. Hunt of his RTC. While I can reasonably infer that the scene was chaotic and perhaps A/Sgt Brown was undermanned, I still don't know why A/Sgt Brown didn't turn his mind to providing RTC. Perhaps it was because Mr. Hunt was in his words "in and out" of consciousness but it still doesn't explain why he wasn't given RTC when he was conscious. The evidence on this issue is simply thin and must inure to the benefit of Mr. Hunt who bears the onus of proving a breach. In the summary conviction appeal decision of [R. v. Ferose](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc645/2019onsc645.html), [2019] O.J. No. 645 (Ont. Sup. Ct.), the trial judge found a s.10(b) breach due to a similar 10 minute delay in the provision of RTC but said it had a minimal impact on the detainee's Charter rights as the police were tending to a distressed child. On appeal, the SCAJ judge did not disturb the s.10(b) finding. There are other cases where a delay is caused by things such as the medical condition of the detainee or passenger, circumstances of an accident, unsafe location of the vehicle on a roadway or something else that needs to be reasonably tended to before an officer can turn her mind to RTC. While I can speculate the circumstances of the accident may have been the reason for the delay and may have justified the delay, I simply don't know for sure because the issue was never explored. For this reason, I'm satisfied Mr. Hunt has met his onus on a balance of probabilities and proven he wasn't afforded his RTC in a timely way – on this record. However, like the court in Ferose, I am of the view that this had a very minimal impact on Mr. Hunt's Charter protected rights and therefore was of no consequence. See also [R. v. Ahmad](https://www.canlii.org/en/on/onsc/doc/2015/2015onsc16712/2015onsc16712.html), 2015 CarswellOnt 16712 (S.C.), at paras. 17-19. ### (ii-b) Was there a s.10(b) Charter violation because A/Sgt Brown did not ensure Mr. Hunt understood his RTC? [48] Mr. Gill's next argument is that there was a s.10(b) violation because A/Sgt Brown failed to hold off administering a breath demand, blood demand and providing RTC until he was satisfied that Mr. Hunt was capable of understanding the demands/rights. [49] Mr. Slessor submits the conduct of A/Sgt Brown was lawful but even if this occasioned a Charter violation, it was inconsequential because at the end of the day, the police did not secure any evidence as a result of the breath and/or blood demand. Nor did Mr. Hunt invoke his RTC or ask to speak to a lawyer, thus it had a minimal impact on his Charter protected rights. ### Understanding Rights to Counsel – The Legal Principles [50] These arguments must begin with a review of the overarching legal principles underlying s.10(b) of the Charter. The purpose of the right to counsel is to guard against the risk of involuntary self-incrimination and to ensure that the detainee's choice to speak with police is free and informed. For this reason, the provision of RTC must be comprehensive in scope. Cases where the detainee like Mr. Hunt are unable to understand the RTC because of their state, pose special considerations for the police. In [Evans](https://www.canlii.org/en/ca/scc/doc/1991/1991canlii98/1991canlii98.html), at para. 21, the Supreme Court held that where there are circumstances which suggest a detainee may not understand the information communicated to her by state authorities, a mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s.10(b) rights. See also [R. v. S.L.H.](https://www.canlii.org/en/bc/bcsc/doc/2004/2004bcsc410/2004bcsc410.html), 2004 BCSC 410 and [R. v. Culotta](https://www.canlii.org/en/on/onca/doc/2018/2018onca665/2018onca665.html), 2018 ONCA 665 at para. 29. The extent of these additional steps depends on the circumstances of the case. [51] In most cases, it can be inferred from the circumstances that the detainee understands what he or she has been told, but where there are circumstances where the detainee may not understand his or her RTC, or has indicated she does not understand them, the police must take steps to facilitate that understanding: [Sinclair](https://www.canlii.org/en/ca/scc/doc/2010/2010scc35/2010scc35.html), at para. 52. This includes giving consideration to the detainee's understanding and capacity to understand: [Evans](https://www.canlii.org/en/ca/scc/doc/1991/1991canlii98/1991canlii98.html), at para. 44. [52] In the case at bar, there is no controversy that A/Sgt Brown informed Mr. Hunt of his RTC at the roadside and Mr. Hunt did not understand them. In fact, A/Sgt Brown candidly testified he had "zero confidence" that Mr. Hunt understood them because he was in and out of consciousness and incoherent. When asked why he bothered even administering the rights given his state, he testified he's obligated to do so and it's part of his arrest procedure. Legally speaking, A/Sgt Brown was right in taking this position. He acknowledged that Mr. Hunt's responses to him were incoherent and didn't make much sense. However, I can't fault A/Sgt Brown for not taking additional time or steps to facilitate the comprehension of RTC at the roadside. Some additional findings are important here. [53] A/Sgt Brown testified that at 22:57, he read Mr. Hunt his RTC and caution. Again, there is no complaint under s.10(a) of about the content of this information. At the time, Mr. Hunt had been escorted out of his car and to the police cruiser. In response to the provision of RTC and caution, Mr. Hunt said: "No, I am sorry." A/Sgt. Brown didn't take the "No" response as a choice to not exercise his RTC but rather incoherence on the part of Mr. Hunt remained in and out of consciousness and not making sense. He believed, correctly in my view, he was intoxicated. Two minutes later, at 23:00, he read him the breath demand and when asked if he understood, Mr. Hunt responded: "No I am drunk". Similarly, he didn't take the "No" as not understanding the demand but rather more incoherence given his state. He testified he became concerned about Mr. Hunt's medical wellbeing which prompted him to consult with a paramedic who was on scene. After doing so, he decided it was prudent to send him to the hospital for examination. At that point, even though he had administered a breath demand, he did not think Mr. Hunt would be able to comply, but this could change. He was more concerned with his wellbeing, worrying that Mr. Hunt could die from alcohol poisoning. I accept this was a reasonable belief at the time given Mr. Hunt's state. While he was investigating a possible criminal offence, he was also dealing with a serious motor vehicle collision where Mr. Hunt could have been injured. Notably, there is no evidence from Hunt that after he was read RTC, Mr. Hunt indicated he didn't understand them or asked they be repeated. Indeed, Mr. Hunt never testified he invoked his RTC and this was ignored. I find without hesitation that Mr. Hunt never asked to speak with a lawyer. [54] Mr. Hunt was placed on a stretcher and A/Sgt Brown notified his police dispatch he would not accompany him in the ambulance but instead would attend at the hospital in his cruiser. Mr. Hunt was handcuffed to the stretcher in the ambulance for his own safety and that of the ambulance personnel. There was no Charter complaint on this basis but in my view, this was a reasonable step because he was under arrest and in police custody but not under police supervision. It is not a leap of logic that a volatile situation could have erupted compromising public safety if Mr. Hunt was not restrained. [55] At 23:05, the parties left the scene, arriving at the hospital 7 minutes later at 23:12. In the interim, A/Sgt Brown asked for a breath technician to meet him at the hospital as it was his intention at the time, to administer breath tests, if Mr. Hunt's condition improved. Upon arriving at the hospital, Mr. Hunt was triaged and waited in the hallway to be seen by a doctor. He was still on a stretcher and still handcuffed. For similar reasons, this restriction of liberty was justified given his state. Mr. Hunt remained in and out of consciousness and continued to make slurred remarks, such as "he was sorry". A/Sgt Brown said he briefly spoke with the Herberts who were also at the hospital but was focused on Mr. Hunt. He didn't take formal statements from anybody at that time which is understandable given the location. [56] Mr. Hunt was seen by a triage nurse and then seen by Dr. Mann at 00:15. A/Sgt Brown said he knew of Dr. Mann given his police experience of 17 years, but he was not friendly with him. He didn't know if Dr. Mann knew of him. I accept this evidence. Dr. Mann spent a few minutes with Mr. Hunt who was still in and out of consciousness. He was standing 2-3 feet away and was not eavesdropping. Dr. Mann advised him that Mr. Hunt would have to attend for x-rays. In cross-examination he said he did not tell Dr. Mann he was investigating him for a drinking and driving offence or that he needed his blood for his investigation. Ultimately, A/Sgt. Brown determined Mr. Hunt would not be able to complete breath tests and instead he would administer a blood demand. Further, PC Sheridan, the anticipated breath technician, was at the hospital, but elsewhere. He did not have a conversation with him. I accept the evidence of A/Sgt Brown that he did not confer with Dr. Mann before he made a decision to administer a blood demand. There is no evidence that Dr. Mann was acting at the behest of the police. [57] At 00:20 am, A/Sgt Brown administered a blood demand from the back of his notebook. Mr. Gill doesn't take issue with the content of the demand but raises the same complaint, namely, there were insufficient grounds and Mr. Hunt wasn't able to understand the demand. [58] In my view, this argument suffers from the same fate as the attack on the reasonable grounds to make the breath demand. A/Sgt Brown had the same grounds for the breath demand which did not change over time but rather were fortified by his personal observations that Mr. Hunt would not be able to perform breath tests given his medical condition. He was still in and out of consciousness. I find A/Sgt Brown had ample subjective grounds supported by objective facts for a blood demand under the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/). [59] A/Sgt Brown testified Dr. Mann was not present when he made a blood demand. I believe him. Nor were the hospital staff around or involved in this demand. I believe this as well. He testified Mr. Hunt did not appear to understand the blood demand as he was still in and out of consciousness. [60] A/Sgt Brown testified he never asked any medical personnel to take blood at his behest. He stated despite knowing of Dr. Mann, he didn't ask him because it's "common practice due to Mr. Hunt's rights", not to ask a medical staff to take blood for the police. In any event, he knew that if he did ask Dr. Mann, he would have likely said no. [61] In cross-examination, A/Sgt Brown explained that he made the blood demand because based on his experience and the state of Mr. Hunt, he was 99% confident that the hospital would take blood for medical purposes. He also knew that x-rays were to be taken. He said his plan was to advise the staff that he would return with a search warrant and seize the blood. [62] In the end, A/Sgt Brown said Mr. Hunt's "in and out" state did not improve and at 00:04 am, he told the attending nurse that Mr. Hunt was no longer in custody and he could leave once he sobered up. He explained he did this because he felt Mr. Hunt would remain at the hospital for a while and he would not understand a Promise to Appear if he was given one. He didn't think it was good use of police time or resources to remain at the hospital for this purpose so he thought it would be better to follow up with him later on. [63] Having considered the evidence as a whole, I disagree with the defence position that there was a s.8 violation on the basis that the breath and blood demands were not lawful because A/Sgt Brown failed to ensure Mr. Hunt understood them. In the end, both demands became superfluous because neither resulted in Mr. Hunt complying with them. It would have been different if the demands were made and Mr. Hunt eventually provided breath samples and/or blood samples after he sobered up, but that's not the record. In [R. v. Squires](https://www.canlii.org/en/on/onca/doc/2002/2002canlii44982/2002canlii44982.html), [2002] O.J. No. 2314 (C.A.), the Court of Appeal held that a lawful demand should be administered once a person is able to understand the questions and respond to the demand in a meaningful way. Here, Mr. Hunt was never made to respond to the demands and never required to comply with either demand, thus any complaint he didn't understand something he wasn't required to comply with, is of no consequence. Mr. Hunt never provided breath tests and his blood was taken by the hospital for medical purposes, not as a result of the blood demand. This part of the s.8 argument has no merit and fails. [64] However, the related s.10(b) argument premised on Mr. Hunt's lack of comprehension has more merit, but only marginally so. I tend to agree with Mr. Gill that he failure of A/Sgt Brown to fully ensure that Mr. Hunt properly understood his RTC and legal jeopardy at the hospital, occasioned a s.10(b) Charter violation but I disagree there was a similar problem at the roadside. For this reason, I am inclined to find a discrete s.10(b) violation for what didn't happen at the hospital given the unique circumstances of this case, but not at the roadside. But, as I will explain, this too was inconsequential and cannot attract a Charter remedy. [65] The purpose of the RTC is so that the detainee can make free and informed choices to speak with the police and minimize the risk of self-incrimination. In drinking and driving cases, one of the ways this risk is triggered is when the police make a lawful breath demand which the law requires a detainee to submit to, failing which the person can be charged with a separate offence of refusing to comply with a breath demand. A detainee has the right to obtain legal advice before providing her breath samples. The law has recognized that RTC are constitutionally suspended for some periods of time at the roadside to account for the exigencies of an investigation. This is recognized as a reasonable limitation on one's RTC under s.1 of the Charter. In [Evans](https://www.canlii.org/en/ca/scc/doc/1991/1991canlii98/1991canlii98.html), the Supreme Court has held that a police officer when administering RTC should give consideration of the person's capacity to understand the rights. In this case, A/Sgt's Brown instinct at the roadside to administer RTC even when Mr. Hunt was in and out of consciousness was legally correct and prudent because Mr. Hunt had been roused from his sleep and was coherent for parts of the interaction. There's no way that A/Sgt Brown could have known before hand the true extent of Mr. Hunt's physical condition so it was wise to read RTC. Mr. Hunt was "in and out" of it and gave an incoherent response to the provision of RTC and caution suggesting he didn't truly understand what was going on. A/Sgt Brown made a decision, reasonably in my view, that notwithstanding his breath demand, Mr. Hunt first needed medical attention, thus he was going to the hospital, not a police detachment for breath testing. Safety concerns animated his decisions at the roadside which were reasonable. It would have been futile for him to take additional time and steps at the roadside to ascertain if he understood his RTC at that point because of the extent of his condition and because he had some evidence (as little as it was) that Mr. Hunt didn't decide to exercise his RTC. It would have been different had Mr. Hunt responded in a way that suggested he was turning his mind to RTC but that's not the answers he received. Mr. Hunt was incoherent. [66] Evans involved a case where the police repeatedly interviewed an accused with "subnormal intelligence". The investigation shifted from a minor marijuana investigation to a more serious murder investigation. Mr. Evans, like Mr. Hunt, was properly informed of his RTC but when he was asked if he understood, he replied in the negative. Here, Mr. Hunt's answer wasn't responsive which is fundamentally different from an articulated response. The police proceeded to interview Mr. Evans, generating incriminating evidence, which the Supreme Court held was a serious breach of s.10(b) and excluded his statements. In this case, while it is true that A/Sgt Brown knew Mr. Hunt didn't appear to understand his RTC at the roadside, I think it was reasonable for him to hold the belief that he wouldn't acquire the capacity to understand them even if he took other steps such as "breaking it down" or repeating them, because of his condition. He was not keen on securing any evidence from him but rather tending to his wellbeing. I agree with his assessment it would have been futile. Further, there is no evidence on the voir dire that Mr. Hunt asserted his desire or had the capacity to be able to exercise his RTC because he didn't recall much of anything. This is unlike Evans where the accused made it clear he didn't understand his RTC which obligated the police to act differently. It would have been unreasonable for him to remain on scene for as long as it took to make sure he understood his RTC which could have compromised Mr. Hunt's health. That would be absurd. The fact that he didn't ride with him in the ambulance to take additional steps to make sure he understood his RTC is a window into his state of mind that he was first and foremost worried about Mr. Hunt's safety. Accordingly, I don't find a s.10(b) violation on this basis. If I am wrong in this conclusion, it was a purely a technical problem devoid of consequence. [67] That said, I tend to agree with the defence that the circumstances at the hospital were different. The evidence establishes that A/Sgt Brown administered a blood demand at 0020 which is 5 minutes after he was seen by Dr. Mann who told A/Sgt Brown that he would have to attend for x-rays as he was not "medically fit" to perform breath tests. Based on this information, along with the existing grounds he had for the breath demand, A/Sgt Brown formed grounds for a blood demand which I have found were lawful. Mr. Hunt was still in his custody and largely asleep. In fact, the record establishes that A/Sgt Brown read the blood demand when he [Mr. Hunt] was sleeping. He testified that the purpose of doing so was to let him know that he's testing for blood and because it was part of his duties to do so. He said Mr. Hunt "didn't even respond" suggesting Mr. Hunt didn't have the capacity to understand what was read to him. Ultimately, A/Sgt Brown decided not to follow through with the blood demand because he was 90% sure that the hospital would take his blood as part of the x-rays that were ordered and he would simply apply for a warrant later on. A/Sgt Brown wasn't by Mr. Hunt's side when the hospital extracted blood from him which according to the hospital records was at 0040, thus 20 minutes after the demand. [68] In my view, the above circumstances as they developed are fertile ground for a s.10(b) Charter violation, on the basis that A/Sgt Brown should have taken steps to make sure Mr. Hunt understood his RTC at this juncture of the investigation. To be clear, the law did not require him to administer RTC because of a new offence but in my view, the circumstances of the initial recitation of RTC had now materially changed necessitating revisiting the initial RTC which A/Sgt Brown knew Mr. Hunt didn't understand. Unfortunately, that didn't happen but as I will explain, given the unique circumstances of this case, this was of no consequence. My reasons for reaching this conclusion are as follows. First, the scope of Mr. Hunt's detention had evolved from being at the roadside, where the law allows for the temporary suspension of constitutional rights, to a more secure location, a hospital where the same exigencies don't exist. The law has held that a hospital is not a Charter free zone. Second, more than one hour had elapsed where the potential effects of a collision and alcohol could have subsided suggesting that a person may be in a better position to comprehend RTC. Third, the safety concerns that existed at the roadside had subsided and Mr. Hunt was at a secure location. Hypothetically, if Mr. Hunt decided to exercise his RTC at the hospital, it could have been more easily implemented, as compared to the roadside. Fourth, the investigative step of a blood demand is arguably more intrusive than a breath demand, even though it did not technically increase his legal jeopardy. Even though in the end, the police didn't take Mr. Hunt's blood, a blood sample is arguably a more serious step where the potential scope of legal advice is different. One's RTC is designed to arm oneself from self-incrimination and there is a difference in my view, between breath samples and blood sampling. Fifth, A/Sgt Brown had time at the hospital to take additional steps to facilitate comprehension of RTC which he did not have at the roadside. The evidence establishes he had at least 20 minutes before blood was taken by a nurse where he could have roused him and tried to ensure comprehension of RTC. This is especially so because he was in his words"asleep" where he would know he couldn't understand what was read to him unlike the roadside where he was incoherent where Mr. Hunt may not have understood what was read to him. While legally and technically correct, it's unhelpful to read RTC to somebody who is asleep. If A/Sgt Brown was being careful, it would not have taken any more effort to try to rouse Mr. Hunt out of his sleep before he's made to hear and understand RTC. Otherwise, it's not helpful to anybody. Moreover, the hospital records establish at the time blood was taken, he was "lethargic" but understood blood was drawn suggesting he wasn't in a deep sleep or truly comatose. For these reasons, I am satisfied on this unique record that there was a s.10(b) Charter violation on the basis that A/Sgt Brown didn't take steps to ensure understanding RTC at the hospital. I would think that in most cases this issue wouldn't arise but this record was unusual. See also [R. v. Magalong](https://www.canlii.org/en/bc/bcca/doc/2013/2013bcca478/2013bcca478.html), 2013 BCCA 478. [69] Having found a violation though, this misstep was of absolutely no consequence in this case. For starters, there is no evidence that Mr. Hunt ever invoked his RTC or put otherwise, chose to exercise his RTC at any point during his interaction with the police. Nor did he say he would have acted differently at the hospital if RTC were explained to him in more clear terms. Viewed this way, it's hard to fault A/Sgt Brown for what he didn't do but maybe should have. In the end, Mr. Hunt was a patient at a hospital who was brought there by the police because he was involved in a serious collision and was in and out of consciousness. While I could appreciate his frustration that he was told he could leave after being in police supervision, there is no basis to ground a Charter remedy because of the conduct or lack thereof related to A/Sgt Brown. I suspect that any further efforts of A/Sgt Brown to facilitate RTC at the hospital might have been futile but I don't know for sure. However, the law places duties on the police when it comes to the informational component of the RTC and it is on this basis I'm prepared to find a discrete violation. Importantly, this is not a case where a detainee is conscripted into providing breath samples (or blood samples) in circumstances where he did not understand his RTC and could not make an informed decision about what to do. See for example [R. v. Poire](https://www.canlii.org/en/on/oncj/doc/1990/1990oncj1029/1990oncj1029.html), [1990] O.J. No. 1029 (Ont. Prov. Ct.). Mr. Hunt's blood was taken by the hospital, who were not acting as police agents. Mr. Hunt was never made to incriminate himself which substantially attenuates any information he didn't receive. [70] In [R. v. Nitura](https://www.canlii.org/en/bc/bcca/doc/2009/2009bcca1448/2009bcca1448.html), [2009] B.C.J. No. 1448, Justice Hicks considered a somewhat similar case where the accused collided with another vehicle and argued at trial there was a s.10(b) Charter violation where the police did not make sure he understood his RTC before the police collected evidence. The Crown argued against a violation because there was no evidence as to the effect of the collision on his faculties and the conversation recorded by the police was consistent with Mr. Nitura appreciating his circumstances. The court found a s.10(b) Charter violation on the basis that Mr. Nitura was in no shape to understand his rights and because he provided breath samples after not understanding his RTC. The evidence was excluded under s.24(2). [71] The fundamental difference between this case and Nitura is that Mr. Hunt was never legally obliged to submit to breath testing or the collection of blood for the police. I have also considered the case of [R. v. Clarkson](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii61/1986canlii61.html), [1986] 1 S.C.R. 383 cited to me by Mr. Gill which I find has no application in this case. Clarkson involved circumstances where an intoxicated detainee confessed to a crime after being advised of his RTC. The Supreme Court was clear that a waiver of one's RTC must be borne out of an operating mind and an intoxicated person may not have an operating mind. Clarkson has no application here because Mr. Hunt never invoked his RTC and the police never secured any evidence from him. Nor did Mr. Hunt confess to a criminal offence while intoxicated. Therefore, while I am inclined to find a technical s.10(b) Charter violation on the basis that A/Sgt Brown should have taken steps to clarify the initial RTC after deciding he was going to administer a blood demand, this misstep is of no moment in this case. [72] I now turn to Mr. Gill's final s.10(b) complaint surrounding the implementational duties of the police. ### (ii-c) Was there a s.10(b) Charter violation by the failure of A/Sgt Brown to assist Mr. Hunt in implementing his right to counsel? [73] This argument can be easily addressed because there is no evidence before me that Mr. Hunt invoked his RTC, which is a precondition to the police duty to implement a detainee's RTC. To put it differently, Mr. Hunt never asked to exercise his right to counsel. ### Implementing Right to Counsel – The Legal Principles [74] The Supreme Court of Canada has consistently held since [R. v. Baig](https://www.canlii.org/en/ca/scc/doc/1987/1987canlii40/1987canlii40.html), [1987] 2 S.C.R. 537, 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": [Bartle](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii64/1994canlii64.html), supra, at p. 192; [Willier](https://www.canlii.org/en/ca/scc/doc/2010/2010scc37/2010scc37.html), supra, at paras. 30 & 33; and [R. v. Taylor](https://www.canlii.org/en/ca/scc/doc/2014/2014scc50/2014scc50.html), 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 23-24. 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](https://www.canlii.org/en/on/onca/doc/2012/2012onca565/2012onca565.html) 2012 ONCA 565, at para. 17. The question of whether a detainee asserted a desire to consult with counsel is essentially a question of fact: [R. v. Backhouse](https://www.canlii.org/en/on/onca/doc/2005/2005canlii4937/2005canlii4937.html), [2005] O.J. No. 754 (C.A.), at paras. 77-78 and [R. v. Owens](https://www.canlii.org/en/on/onca/doc/2015/2015onca652/2015onca652.html), 2015 ONCA 652, [2015] O.J. No. 4972 (C.A.), at para. 28 [75] In [Sinclair](https://www.canlii.org/en/ca/scc/doc/2010/2010scc35/2010scc35.html), at para. 27, the Supreme Court 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 [Owens](https://www.canlii.org/en/on/onca/doc/2015/2015onca652/2015onca652.html), at para. 25; [R. v. Burlingham](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii88/1995canlii88.html) (1995), 97 C.C.C. (3d) 385 (S.C.C.) at para. 16; [R. v. Ross](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii134/1989canlii134.html) (1989), 46 C.C.C. (3d) 129 (S.C.C.) at 135; and [R. v. Richfield](https://www.canlii.org/en/on/onca/doc/2003/2003canlii52164/2003canlii52164.html), [2003] O.J. No. 3230 (C.A.). [76] At the risk of repeating myself, Mr. Hunt never invoked his RTC, both at the roadside or at the hospital. Mr. Gill does not disagree with this factual finding but instead argues Mr. Hunt couldn't have invoked his RTC because he was never properly informed of his rights, thus the police were required to assist him in implementing the right despite his lack of invocation. In my view, this argument is without merit. It presupposes that in cases where a person can't invoke their RTC, the police should still help the detainee in exercising their rights by calling a lawyer for them. Simply stated, that's not the law. Furthermore, there is no evidence before me that Mr. Hunt would have chosen to exercise his RTC. It is one thing to inform somebody of a right but it is another for the person to act on it. Mr. Hunt swore in his affidavit that after learning he could leave the hospital, he followed up with the police in the days and months that followed and sought advice and assistance from his family – not a lawyer. In other words, I am not satisfied on a balance of probabilities that Mr. Hunt probably would have spoken with a private lawyer or duty counsel to obtain legal advice on the night in question had the police waited. Mr. Gill cited the case of [R. v. Taylor](https://www.canlii.org/en/ca/scc/doc/2014/2014scc50/2014scc50.html), 2014 SCC 50, [2014] S.C.J. No. 50 but it does not assist the defence position because there, the evidence was clear that Mr. Taylor invoked his RTC (at para. 5) and the police made no efforts to assist him in implementing his RTC or holding off in securing evidence. The Supreme Court held (at para. 34) that a hospital is not a Charter free-zone and the police must still follow through with their constitutional obligations. In this case, Mr. Gill did not invoke his RTC at any point, thus Taylor does not apply. Nor is this a case where the police took advantage of Mr. Gill because of his condition. As noted above, the blood was taken by a hospital employee for medical purposes. Similarly, the case of [R. v. Henrikson](https://www.canlii.org/en/mb/mbqb/doc/2003/2003mbqb387/2003mbqb387.html), [2003] M.J. No. 387 (Man. Q.B.) also does not apply. [77] Accordingly, there is no merit to the argument that the police failed in their implementational duties. [78] I now turn to the s.8 issues involving the blood sample. --- ## Section 8 Charter Arguments – Blood Sample ### (iii) Was there a s.8 Charter violation on the basis of the hospital taking Mr. Hunt's blood? [79] Mr. Gill argues that the seizure of Mr. Hunt's blood was a s.8 Charter violation because the hospital employees were acting as state agents and because A/Sgt Brown violated his right to privacy as he was in close proximity when the blood was taken. [80] Mr. Slessor submits neither argument has merit because the hospital employees were not acting as state agents. [81] I agree with the Crown's position. ### Seizure of Blood – The Legal Principles [82] Section 8 of the Charter protects against unreasonable searches and seizures. When state examination or state action constitutes an intrusion on a reasonable privacy interest of an individual, there is a "search" as contemplated under s.8. In [R. v. Dyment](https://www.canlii.org/en/ca/scc/doc/1988/1988canlii10/1988canlii10.html), [1988] 2 SCR 417, Justice La Forest (as he then was) explained where a bodily substance such as blood is taken from a patient at a hospital by a doctor at the request of the police, this can amount to an unreasonable search and seizure for purposes of s.8 of the Charter. See also [R. v. Pohoretsky](https://www.canlii.org/en/ca/scc/doc/1987/1987canlii62/1987canlii62.html), [1987] 1 SCR 945. Almost 5 years later, the Supreme Court reiterated that where blood samples are taken at the direction of a police officer, the nurse or doctor are acting as agents of the state which makes this action state conduct, for purposes of s.8: [R. v. Dersh](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii32/1993canlii32.html), [1993] 3 SCR 768. [83] In the case at bar, while Mr. Hunt did not want to attend at the hospital, A/Sgt Brown felt it was prudent given his almost comatose-like state at the roadside. This decision was not made alone but after speaking with a paramedic. In my view, this was not an unreasonable decision given what A/Sgt Brown knew at the time. It would have been unreasonable (and potentially unsafe for Mr. Hunt) for him to take Mr. Hunt to a police detachment and try to obtain breath samples given his state. While it is true that A/Sgt Brown intended on taking breath samples at the hospital, this deflates the defence argument that his true intention was to obtain blood samples with the assistance of the hospital staff. Clearly, that was not his intention. It was fixated on Mr. Hunt's wellbeing. [84] Moreover, A/Sgt Brown did not accompany Mr. Hunt in the ambulance, which is another window into his state of mind at the time, suggesting he wanted to ensure his wellbeing and would let the paramedics tend to him. Mr. Hunt was handcuffed to the stretcher, which makes sense because he was in police custody. Turning next to the circumstances of the taking of blood. [85] Jennifer Evans is a Registered Nurse employed with the Lakeridge Health hospital in Ajax. She testified on the Charter voir dire. I found her to be a credible witness. She testified she did not have an independent recollection of treating Mr. Hunt on the night in question but was able to confirm her involvement in the matter based on refreshing her memory from the hospital records in Exhibit A. I would not expect her to recall an interaction with Mr. Hunt, let alone any patient in a busy emergency room. This does not detract from the credibility or reliability of her account. [86] As noted earlier in these reasons, I ruled the hospital records (Exhibit A) were admissible pursuant to the common law exception to the hearsay rule, subject to the Charter ruling. I did so based on the following findings. Ms. Evans was able to confirm that the records were created on September 19, 2017, the date of Mr. Hunt's admission to the hospital. She recognized her handwriting and signature on the records. She also recognized the writing of the treating physician, Dr. Mann. Her memory of the events was refreshed from the records. She testified that at 11:42 pm, Mr. Hunt was registered as a patient at the hospital. In cross-examination, she testified members of the public, including police officers are allowed to remain in the emergency waiting area. She could not recall in this case if a police officer was present. [87] At 12:05 am, Mr. Hunt was turned over to her after he was seen by Dr. Mann. She recalled this based on the hospital records which requisitioned blood work, x-rays and a CT scan. Mr. Hunt was instructed to remain "NPO" which she said means nothing to eat or drink. She could not recall if a police officer was present when she received Mr. Hunt. [88] At 12:40 am, she began to take some blood from Mr. Hunt. Again, she did not recall the specific interaction but based on the hospital records, confirmed she was the nurse who took his blood. Based on her experience and hospital protocol, which she is obligated to follow at all times, she would have extracted blood from Mr. Hunt in accordance with this protocol. The protocol involves examining the requisition, ascertaining what kind of blood tests are to be done and printing the appropriate labels to place on the vials. As a precaution, she would examine the patient's armband to make sure she was dealing with the right person. [89] In this case, the hospital records jogged her recollection that she was asked by Dr. Mann to take 3 vials of blood that were lavender, light green and yellow in colour. Specifically, she was directed to test for a toxicological screen, ASA (acetaminophen), and ETOH, which is ethanol, to determine if there is alcohol in one's blood. After drawing the blood, she would record her identification and Code, the time the blood was drawn and place the vials in a biohazard Ziploc bag. The vials contain a barcode unique to the patient and would be sent to the lab in a tube. She testified there would be no reason for her to depart from this established protocol in the case of Mr. Hunt. [90] Further, Ms. Evans testified she had no specific recollection of any police officer being present during the taking of blood. She explained that blood is taken in an open part of the hospital and it would not be unusual for a person to be in the hallway or nearby. In this case, she could not recall if a police officer followed her into the area where the blood was taken. She did not recall speaking with a police officer at any point including being told the police would obtain a search warrant. Indeed, she had no recollection of most, if not all the interaction but for her involvement based on the records. She said generally, there is no need for a police officer to be present during the taking of blood and more firmly, she would never draw blood at the request of a police officer because she takes direction only from a doctor. [91] The evidence of Ms. Evans stands unchallenged. Mr. Hunt never testified that a police officer was present by his side during the taking of blood. A/Sgt Brown testified he saw Ms. Evans take 3 vials of blood, which is consistent with her evidence based on the records and only learned her name from her name tag. He said he told Ms. Evans he would obtain a warrant after seeing her package the blood and storing it into a tube. At 12:40 am, he advised the nursing staff that Mr. Hunt was no longer in custody and to advise Mr. Hunt that he would follow up with charges in the future. [92] I find as a fact that A/Sgt Browne did not explicitly or implicitly instruct the hospital staff to take blood at the request of the police. While the hospital staff would have known he was in police custody for an offence involving alcohol, this doesn't necessarily mean the hospital staff became state agents in a police investigation. The police evidence is not undermined by the evidence of Ms. Evans who testified she would never take direction from a police officer to suggest she departed from her usual practice of following her protocol. Nor does this record allow me to draw a reasonable inference that the police asked the hospital to take blood for the police. Instead, I find that Ms. Evans took blood at the request of Dr. Mann, not the police, and did so based on medical protocol. Accordingly, there was no state sponsored seizure of blood, which means the initial s.8 Charter argument must fail. [93] In [Dyment](https://www.canlii.org/en/ca/scc/doc/1988/1988canlii10/1988canlii10.html), the police had no reasonable and probable grounds to believe the accused was involved in a criminal offence and obtained medical information by asking a nurse to divulge the ethanol results of the accused. La Forest J. described this a serious Charter violation. Similarly, in [R. v. Campbell](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1638/2019onsc1638.html), [2019] O.J. No. 1638 (SCJ), the court found a s.8 Charter violation where the hospital took urine from the accused for medical purposes and the police received the test result without legal authority and then used the test for their own purposes without the person's consent. The Court of Appeal upheld the trial judge's finding that this was a serious s.8 Charter violation. See also [R. v. Erickson](https://www.canlii.org/en/ab/abca/doc/1992/1992abca69/1992abca69.html), (1992), 1992 ABCA 69, 72 CCC (3d) 75 (Alta. C.A.), aff'd, [1993] 2 SCR 649 and [R. v. Culotta](https://www.canlii.org/en/on/onca/doc/2018/2018onca665/2018onca665.html), 2018 ONCA 665, aff'd, 2018 SCC 57. [94] The circumstances of this case are materially different from Dyment, Campbell or Erickson because A/Sgt Brown never directed nor asked the hospital for any evidence. Nor is this case where A/Sgt Brown directed the hospital to "hold" the blood for the police. In [R. v. Abbott](https://www.canlii.org/en/bc/bcpc/doc/2015/2015bcpc2975/2015bcpc2975.html), [2015] B.C.J. No. 2975 (B.C. Prov. Ct.), the court dealt with a similar case where blood was drawn for medical purposes. The court found that the hospital protocol was to store the blood at the hospital for one week for medical purposes. In addition, the court found that the investigating officer directed a lab technician to set aside the blood after the one-week expiry period as the police would apply for a search warrant. The blood was set aside on this basis and resulted in evidence against Mr. Abbott. The court held (at para. 29) "The decision of Martinson (the lab technician) to hold Abbott's blood sample for the police, after the point in time when it would otherwise have been discarded is a seizure within the meaning of s.8. Mr. Abbott clearly had a privacy interest in his own blood. It was kept by a state agent without his knowledge or consent for reasons unrelated to the medical purpose for which it was taken and beyond the time frame for which it would otherwise have been in custody of the hospital". The court found this to be a s.8 Charter violation and excluded the blood samples under s.24(2). [95] In this case, there is no evidence about how long the hospital would ordinarily store Mr. Hunt's blood for medical purposes. More importantly, A/Sgt Brown never asked or told anybody to "hold" Mr. Hunt's blood for the police. I find he simply told Ms. Evans he would return with a search warrant, which is different from asking or telling the staff what to do. He never said when he would return or intimate other details that might lead me to infer he intended to have the hospital staff act as state agents. For example, he did not leave his card or contact details. Indeed, this may explain why the blood was not available to be seized with a warrant – because he did not ask them to act as state agents in the first place. In my view, Abbott, supra does not apply to this case. Instead, this case is closer to [R. v. Racicot](https://www.canlii.org/en/on/oncj/doc/2009/2009oncj5704/2009oncj5704.html), [2009] O.J. No. 5704 (Ont. Prov. Ct.) where the investigating officer made a request to the hospital staff to obtain and secure blood samples. In Racicot, the court concluded (at para. 13) "The fact that officer Gark seemed satisfied that there were vials of blood taken by the nurse does not convert her actions as those of a government agent taken direction from the officer". In my view, the same conclusion applies here. Ms. Evans took blood solely as a hospital employee and for medical purposes at the direction of Dr. Mann. The fact that one vial included testing for ethanol, which measures alcohol doesn't necessarily mean it was done at the insistence of the police. I believe A/Sgt Brown when he said he was present when Dr. Mann tried to talk to Mr. Hunt, but nothing was learned from this interaction as Mr. Hunt was still in and out of consciousness except that he would not be able to do breath tests and would need an x-ray and CT scan. I believe him when he said he never asked Dr. Mann to order specific blood tests which might explain why only the necessary tests (and only 3 vials) were ordered. Presumably if the police ordered the blood test, he would have asked for more vials. He did not do so. It was reasonable for the hospital to want to know, for example, if Mr. Hunt would fall prey to alcohol poisoning which would be a perfectly good reason to test for ethanol. I find the hospital employees were not acting as state agents at any point. [96] Mr. Gill further argues there was a s.8 Charter violation based on the presence of A/Sgt Brown in close proximity to Mr. Hunt when his blood was extracted. Respectfully, I disagree. [97] In [Dersch](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii32/1993canlii32.html), the Supreme Court reiterated that an accused has a reasonable expectation of privacy in respect of his personal medical information while receiving treatment in the hospital. This would include information that is exchanged during the taking of blood, which may include information inputted on a vial of blood. [98] Mr. Gill cited the case of [R. v. Schneider](https://www.canlii.org/en/on/oncj/doc/2013/2013oncj6212/2013oncj6212.html), [2013] O.J. No. 6212 (Ont. Prov. Ct.), in support of his submission. With respect, this case can be distinguished. In Schneider, the investigating officer was casually allowed into an area where the accused was being treated. Importantly, the accused was not in custody which would change his legal jeopardy. The police officer stood behind a curtain and the court found was in a position to overhear confidential discussions between a patient and doctor (at para. 43). This case is different because Mr. Hunt was in police custody and therefore in the lawful care of A/Sgt Brown. Moreover, for reasons cited above, A/Sgt Brown was not involved in directing Dr. Mann and/or the nursing staff to take blood from Mr. Hunt. While A/Sgt Brown said he saw Ms. Evans take Mr. Hunt's blood and package it in a tube, I fail to see how ensuring continuity of a prisoner and making general observations translates into a breach of one's privacy rights, especially because Ms. Evans said that area of the hospital is open to anybody. In other words, there's no evidence that like Schneider, Mr. Hunt was secured behind a closed curtain which is some evidence of preserving one's privacy. There's also no evidence that A/Sgt Brown stood in close proximity or was able to overhear any confidential communications. Ms. Evans was clear that she would never take direction from a police officer. There is a paucity of evidence from Mr. Hunt about any incursions on his expectation of privacy. He never testified the police were present where he felt compelled or inhibited from saying no to the taking of his blood. [99] For these reasons, there was no s.8 Charter violation on this basis either. Turning next to the s.7 lost evidence complaints. --- ## Section 7 Charter Arguments ### (xii) Was there a s.7 Charter violation on the basis that the police lost Mr. Hunt's blood? [100] Mr. Gill's next argument is the lynchpin of this case. The defence position is that the police lost Mr. Hunt's blood evidence or that the pace of the police investigation resulted in unacceptable negligence and contributed to the loss of the blood evidence. Mr. Gill advanced discrete breaches of s.7 and 11(d) of the Charter and submitted the only acceptable remedy would be to stay the proceedings under s.24(1) of the Charter. Mr. Gill acknowledges the defence bears the onus to prove both the Charter violations and remedy on a balance of probabilities. [101] Mr. Slessor argues the defence has not met its burden on either establishing a Charter violation or being awarded a Charter remedy. First, Mr. Slessor says while Mr. Hunt's blood was unfortunately unavailable, there is no evidence that the police were responsible for this. It was argued there is no duty to preserve evidence that the police did not secure in the first place. It was taken by medical staff independently of the police. Second, the pre-charge delay in this case is of no consequence because Mr. Hunt's ability to defend himself was never prejudiced. Mr. Slessor urges the court to find that if there was any material prejudice to Mr. Hunt's fair trial rights, it was occasioned by himself, not the police or the prosecution. [102] As I will explain below, I agree wholly with the Crown's position. In my view, there is no evidence the police or Crown lost evidence which grounds a s.7 Charter complaint. Further, while the police investigation was imperfect, it did not suffer from unacceptable negligence and therefore was not incompetent for purposes of s.11(d) of the Charter. If I am wrong about any of these conclusions, respectfully, the record is not close to awarding the drastic remedy of staying the proceedings or excluding the evidence. [103] While the defence launched separate Charter complaints, I propose to address them together. I do so, noting that Mr. Gill did not specifically allege an incompetent or negligent police investigation as a separate violation but to give his argument the most fair and broadest consideration, I will consider this argument. I expect the Crown response to be the same so there is no disadvantage. I have also chosen to proceed in this fashion because Mr. Gill's next Charter argument is also grounded in s.7 but targets a different issue, namely a discretionary Charter remedy under s.24(1) to set aside the production order on the basis that it was subversive: [Paranyiuk](/on/onca/2017/87), supra. The principal submission in support of this argument was that the police investigation was incompetent, materially misleading and/or negligent: [R. v. Wawrykiewycz](https://www.canlii.org/en/on/oncj/doc/2018/2018oncj1651/2018oncj1651.html), [2018] O.J. No. 1651 (Ont. Prov. Ct.). Accordingly, my findings on the Charter issues will be helpful in both contexts. ### Right to a Fair Trial – The Legal Principles [104] Section 7 of the Charter provides: > Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice [105] Section 11(d) of the Charter provides: > Any person charged with an offence has the right > > (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal [106] In [R. v. Harrer](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii70/1995canlii70.html), [1995] 3 S.C.R. 562, the Supreme Court explained what it means to have a fair trial: > 45 At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: [R. v. Lyons](https://www.canlii.org/en/ca/scc/doc/1987/1987canlii25/1987canlii25.html), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused. (my emphasis) [107] Further, the Harrer court explained the scope of Charter remedies that are available to a court who concludes the right to a fair trial has been breached. This includes staying the proceedings and excluding evidence where appropriate. At paragraphs 42-44, the Supreme Court held: > 42 In addition to the common law exclusionary power, the Charter guarantees the right to a fair trial (s. 11(d)) and provides new remedies for breaches of the legal rights accorded to an accused person. Evidence obtained in breach of the Charter may only be excluded under s. 24(2): [R. v. Therens](https://www.canlii.org/en/ca/scc/doc/1985/1985canlii29/1985canlii29.html), [1985] 1 S.C.R. 613. Evidence not obtained in breach of the Charter but the admission of which may undermine the right to a fair trial may be excluded under s. 24(1), which provides for "such remedy as the court considers appropriate and just in the circumstances" for Charter breaches. Section 24(1) applies to prospective breaches, although its wording refers to "infringe" and "deny" in the past tense: [Operation Dismantle Inc. v. The Queen](https://www.canlii.org/en/ca/scc/doc/1985/1985canlii74/1985canlii74.html), [1985] 1 S.C.R. 441. It follows that s. 24(1) permits a court to exclude evidence which has not been obtained in violation of the Charter, but which would render the trial unfair contrary to s. 11(d) of the Charter. > > 43 I conclude that a judge may exclude evidence which was not obtained by Charter breach but which would render the trial unfair either at common law or under s. 24(1) of the Charter. The debate thus shifts to the third premise of the appellant's argument -- that to admit Harrer's second statement would render the trial unfair. > > 44 Whether a particular piece of evidence would render a trial unfair is often a matter of some difficulty. A distinction must be made at the outset between unfairness in the way a statement was obtained and an unfair process or trial. The situation in which police take evidence is complex. Even where every effort is made to comply with the law, aspects of the process may, in hindsight, be argued to have been less than fair. Sometimes the unfairness is minor or rendered insignificant by other developments (for example, that the police would probably have obtained the evidence anyway) or by other aspects of the case (for example, that the accused waived or acquiesced in the unfairness). Sometimes the unfairness is more serious. The point is simply this: unfairness in the way evidence is taken may affect the fairness of the admission of that evidence at trial, but does not necessarily do so. This is true for breaches; not every breach of the Charter creates an unfairness at trial which requires exclusion of the evidence thereby obtained: [R. v. Collins](https://www.canlii.org/en/ca/scc/doc/1987/1987canlii84/1987canlii84.html), [1987] 1 S.C.R. 265, at p. 284. It must also be true for irregularities that do not constitute Charter breaches. ### Lost Evidence – General Principles [108] Turning first to the lost evidence allegation. Mr. Gill cited the case of [R. v. Prosa](https://www.canlii.org/en/on/onsc/doc/2015/2015onsc3122/2015onsc3122.html), 2015 ONSC 3122, [2015] O.J. No. 2707 (SCJ), in which Justice Hainey helpfully reviewed the principles involving lost evidence as developed from Supreme Court jurisprudence. The applicable principles and approach is set out at paragraph 31: > 31 The proper approach, where an accused person claims that the failure to preserve evidence in the possession of the Crown results in a breach of a Charter right, is found in the Supreme Court of Canada's decision in [R. v. La](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii309/1997canlii309.html), [1997] S.C.J. No. 30. That approach is summarized by the Nova Scotia Court of Appeal in [R. v. F.C.B.](https://www.canlii.org/en/ns/nsca/doc/2000/2000nsca35/2000nsca35.html) (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540 at 547-48 as follows: > > (1) The Crown has an obligation to disclose all relevant information in its possession. > > (2) The Crown's duty to disclose gives rise to a duty to preserve relevant evidence. > > (3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence. > > (4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. > > (5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it. > > (6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused's s. 7 Charter rights. > > (7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of evidence was deliberately for the purpose of defeating the disclosure obligation. > > (8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O'Connor. > > (9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy. > > (10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence. [109] In Prosa, Hainey J. found a s.7 Charter violation in circumstances where a hospital took blood from the accused. The police sent the blood sample to the CFS where it remained for about 2 years. Hainey J. found the CFS was storing the blood sample on behalf of the police. Ultimately, the CFS did not properly seal the blood when it was sent for testing resulting in the sample being contaminated and being unavailable for testing at the request of the defence. Hainey J. found the explanation given by the CFS in improperly storing the blood amounted to unacceptable negligence and resulted in a s.7 Charter violation. Notwithstanding the Charter violation, Hainey J. held that Mr. Prosa did not meet his onus to stay the proceedings under s.24(1). [110] Mr. Gill relied heavily on Prosa in support of his submission that the police engaged in similar unacceptable negligence in not taking steps to ensure Mr. Hunt's blood sample was not lost by the hospital. Alternatively, he says the delay in the police investigation contributed to the hospital losing the sample. [111] Respectfully, I disagree with the defence position. The facts in Prosa are fundamentally different from this case which makes it distinguishable and not persuasive. I will nevertheless follow the analytical approach below. ### Was the sample of Mr. Hunt's blood sample reliably taken? [112] I rely on my earlier findings that Mr. Hunt's blood was taken by nurse Evans at the request of Dr. Mann, not the police. A/Sgt Brown saw Mr. Hunt's blood being extracted and I accept his evidence that he told Ms. Evans he would return with a search warrant even if she did not recall this. There was no direction or request to store Mr. Hunt's blood or a portion of the sample for police testing. The police were not involved in sending the blood to the lab. In the end, I agree with the Crown that the blood was never "lost" per se by the police, because the evidence establishes it was contaminated. There isn't specific evidence as to how it became contaminated but it would appear this happened after the blood was tested because the lab was able to generate an interpretation of the blood samples. Unlike Prosa, there is no evidence that Mr. Hunt's blood came back to the hospital where it was subsequently lost. To consider this issue fully, I will review the circumstances of the testing. [113] The Crown called a lab technician, Mr. Randal Soubasis to explain the circumstances of the blood testing. For the past 7 years, he has been employed with Lakeridge Health as a Medical Laboratory Technologist. He has a degree in Health Sciences. He testified about the process of analyzing blood when it arrives at the lab. Mr. Soubasis said when blood arrives, it is removed from a biohazard bag, which is a pneumatic container and inspected to see if there is any leakage. If there's a problem, the blood can't be analyzed. In this case, while he didn't have a specific memory of testing Mr. Hunt's blood, based on the hospital records (Exhibit A), his name appeared in the report which told him he was involved in the testing. He said typically a technician works with a colleague and the final results have to be approved by a lab manager. In this case, the fact that the lab produced a report analyzing Mr. Hunt's blood told him that there were no problems in analyzing Mr. Hunt's blood. I accept this evidence. [114] Mr. Soubasis said there are quality control protocols established by the lab that must be followed in the examination of every blood sample. The protocols are put in place to ensure patient safety and ensuring accuracy of lab results. The quality control measures are repeated once every 24 hours. If the results are within acceptable limits, the machine will function properly. The machine has built in parameters which display visual flags to note if there is a problem. If there is a problem, the blood will not be analyzed. Again, because the blood in this case was able to be tested, I find there's no evidence of any internal problems with the testing procedure. [115] All technicians are required to wear a lab coat and use nitrile gloves to ensure the integrity of the sample. Typically, the technician would remove the plastic vials from the biohazard bag and ensure the vial is tagged with a barcode that is unique to the patient. The lab uses a lab information system by scanning the barcode which pulls up the tests that have been ordered by the attending physician. In the case of a toxicological screen, the lab would test for ethanol, which tests for alcohol in ones' blood. This test can be bundled with a test for ASA. A specific device is used to transfer the blood into a reaction chamber. In certain cases, for example, where there is very low volume of blood, the transfer can happen manually by the technician. This would involve the technician de-capping or removing the cap from the vial and pouring it in the chamber. In cross-examination, he acknowledged there is always the possibility of human error in this process. That said, there is no evidence as to whether Mr. Hunt's blood was transferred manually or by a machine into the chamber. For example, the records do not show the volume of blood that was sent. Mr. Gill urged the court to find as a fact that there was possibly human error in the transferring process but there is no basis for this finding. In my view, a reasonable inference arises based on the evidence as a whole that given the requisition for three types of blood tests, the volume of blood was likely lower than it would be, if for example more tests were ordered, but this doesn't necessarily mean the blood was transferred manually. [116] Once the blood sample is analyzed by being "spun" in the chamber, the results of the analysis are shared on a common records system called "Meditech". The results are held in a pre-release phase before a lab manager can approve them for release. This is the final stage before they are sent to the hospital who can then access the results on their system. [117] Mr. Soubasis's memory of events was refreshed by the records which showed that the attending physician (Dr. Mann) ordered three types of blood tests. He identified the records as displaying blood and urine analysis. He confirmed that the lab tested the blood on December 12, 2017. Mr. Hunt's blood was analyzed for ethanol (alcohol) with a result of 36.9 milimoles per litre. [118] Mr. Soubasis testified that all lab technicians have received similar training and must adhere to the same quality control protocols. In cross-examination, Mr. Gill confirmed that some blood vials have additives in them which could result in "some changes" ostensibly, during the testing. One common brand of a vial is "Vacutainer". He was unfamiliar with a BD Vacutainer™ or a BD Vacutainer RDF. In this case, plastic disposable vials were used which he referred to as "pipettes" but there was no way to know which brand of vial was used. This is not displayed in the hospital or lab records. There is no evidence before me that the integrity of the blood testing was impacted somehow by the type of container that was used. This is entirely speculative. Based on the evidence as a whole, I find the circumstantial evidence easily proves the blood was reliably tested. Mr. Soubasis said that if there were any human errors in testing, they would occur in the pre-analytical phase and there's no evidence of any such errors in this case. The blood was analyzed and produced a result which is some evidence that the quality control protocols produced a reliable result. I accept his evidence that the lab must follow the directions of the hospital based on the barcode and would not independently decide to test for something else. [119] I find as a fact that the lab correctly and reliably tested Mr. Hunt's blood in this case which produced the result of 36.9 mm per litre. The defence arguments that challenge the reliability of this result are without any evidentiary foundation and entirely speculative. ### Did the police have an obligation to preserve Mr. Hunt's blood sample? [120] Mr. Gill argues the police failed in their obligation to preserve Mr. Hunt's blood sample. I disagree. In law, the Crown's disclosure obligation includes the preservation of relevant evidence. Here, there was no evidence to preserve because the blood was never under the control of the police, thus the obligation never arose. Accordingly, the Stinchcombe standard doesn't apply because there was nothing to disclose. After the blood was taken by the hospital, A/Sgt Brown testified he returned to a day shift on September 23, 2017, which is only 3-4 days after the blood was taken. He began to draft a blood warrant. He called Lakeridge Health and spoke with a technician, Nicole Momongan to confirm if the blood was in existence. Unfortunately, he found out that Mr. Hunt's blood did not exist because it was contaminated, but Mr. Hunt's medical records did exist. [121] Mr. Gill argues it was unacceptably negligent for A/Sgt Brown to leave this task for 3-4 days and he should have started the blood warrant immediately or delegated this task to a colleague. If I am incorrect that the Crown still bears the onus of proving the blood was not destroyed due to maliciousness or unacceptable negligence, this standard would easily be met on this record. In [R. v. Hersi](/on/onca/2019/94), 2019 ONCA 94, [2019] O.J. No. 671 (C.A.) at para. 30, the Court of Appeal said this about assessing unacceptable negligence: "the phrase "unacceptable negligence" suggests conduct which is more than merely negligent….the reasonableness of the police conduct resulting in the loss or destruction of the evidence is a touchstone of the inquiry. The more obvious the importance of the evidence, the higher will be the degree of care expected of reasonable police officers. In my view, A/Sgt Brown's conduct in this case, while imperfect, was not unacceptably negligent. A/Sgt Brown testified that while he had investigated many drinking and driving offences in the past, he had never applied for a blood warrant where the accused was medically unfit to provide a breath sample. I disagree with the defence argument because it was not an unreasonable assumption that the blood would be returned to the hospital and it would do so in a timely way (within 3-4 days after the lab tests), where it would be available for the police to seize through a warrant. There's no specific evidence as to when the blood was going to return and if A/Sgt Brown knew this. Indeed, the lost evidence argument is deflated because A/Sgt Brown never acquired this information suggesting he never co-opted the hospital to test the blood for the police. If such were the case, one would expect better coordination but there wasn't, suggesting the hospital and police were acting on their own. I do not fault A/Sgt Brown for not delegating this task because he formed grounds for the initial arrest. I also note that working a night shift and preparing a warrant would be more difficult than doing so on a day shift where it could be authorized by a Justice. There was nothing unreasonable about waiting 3-4 days. [122] A/Sgt Brown learned he would have to apply for a production order to gain access to Mr. Hunt's hospital records. He did not just ask or demand them from the hospital. However, this was not something he was familiar with, so the task was transferred to the Criminal Investigations Branch (CIB) which is used to drafting these kinds of warrants. Ultimately, he learned the matter would be transferred to DC Shaddick. [123] Mr. Gill urges me to find that DC Shaddick's police investigation, after he took over for A/Sgt Brown also amounted to unacceptable negligence. I disagree. In [Hill v. Hamilton-Wentworth Police Services Board](https://www.canlii.org/en/ca/scc/doc/2007/2007scc41/2007scc41.html), 2007 SCC 41, [2007] 3 S.C.R. 129, the Supreme Court considered the scope of the duty of care a police officer owes to a suspect who is being investigated for a criminal offence. While the analysis was undertaken with a view of the tort of negligent investigation, the legal principles are helpful in this context as well. The Supreme Court at para. 68 held that the standard of care is that of a reasonable police officer in all of the circumstances. At para. 73, the Supreme Court explained: > 73 I conclude that the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances. This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made -- circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359). Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere "errors in judgment" which any reasonable professional might have made and therefore, which do not breach the standard of care. (See Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; Folland v. Reardon (2005), 74 O.R. (3d) 688 (C.A.); Klar, at p. 359.) [124] In my view, when the conduct of A/Sgt Brown and DC Shaddick, are considered against the standard of reasonableness, I find that standard was met in this case. As I will explain, while the pace of the investigation by DC Shaddick could have been faster, it wasn't unacceptably negligent or even plainly negligent that grounds a Charter violation. To understand this submission, I will provide a timeline of key events below which will be helpful in evaluating the pre-charge delay argument as well: | Date | Event | |------|-------| | September 19, 2017 | Date of alleged offence | | September 20, 2017 | Blood tested by lab | | September 23, 2017 | A/Sgt Brown contacted hospital to determine if blood available. Learns blood contaminated, hospital records available. | | September 24-December 11, 2017 | Delay | | December 12, 2017 | DC Shaddick took over investigation. | | December 13, 2017 | DC Shaddick applied for production order which was granted | | December 13 – January 7, 2018 | Delay | | January 8, 2018 | DC Shaddick sought and received interpretation from PC Bastien to interpret millimole reading from hospital records | | January 9, 2018 – March 4, 2018 | Delay | | March 5, 2018 | DC Shaddick tried to locate Mr. Hunt but unsuccessful. Did not leave message or business card. Did not seek an arrest warrant. | | March 6, 2018 – September 15, 2018 | Delay | | September 16, 2018 | DC Shaddick got statements from the Herberts | [125] DC Shaddick testified he has been a police officer with the DRPS for 19 years. In September 2017, he was working in uniform patrol in Pickering. He did not become involved with this matter until December 12, 2017. At that time, he was working as an Acting Sergeant and a road officer. He was asked to prepare a production order which he said was unusual because he was not involved in the matter. He learned there were medical records at the hospital in existence related to Mr. Hunt. On December 13th, his production order was granted by a Justice of the Peace in Durham. This order was executed one week later when he returned to the day shift as it was impracticable to do so during the night shift. While he could have asked a colleague to do this task, I find it was reasonable for him to wait as the order was valid for 30 days and it was his investigation. [126] DC Shaddick acknowledged that unfortunately the police investigation "fell through the cracks" while he was a road officer. It didn't pick up until he became an investigator. This is a reasonable explanation because a road officer is involved in a number of reactive police investigations and has different duties than an investigator who can devote more time and attention to one investigation at a time. He said several weeks or several shifts later, he reviewed the hospital records and was trying to assess Mr. Hunt's BAC. He was unfamiliar with the term "millimoles" and as a result sought out the expertise of PC Bastien, a Qualified Breath Technician, from Traffic Services. [127] On January 8, 2018, he emailed PC Bastien and learned that 36.9 mm/L would translate into a BAC that would exceed 80mgs of alcohol in 100mls of blood. On this basis, he believed he had reasonable and probable grounds to charge Mr. Hunt with the criminal offences of impaired operation and exceed 80mgs. However, he was still working in uniform patrol. He testified he tried to contact Mr. Hunt by telephone but was unsuccessful. He didn't leave a voice message. In hindsight, he should have done so. [128] On March 5, 2018, thus three months later, he attended at Mr. Hunt's last known residential address in Scarborough but was unable to make contact with him. He did not leave a business card. He explained he was also involved in other duties at the time and was away on annual leave and felt it was his investigation thus didn't feel it was appropriate to enlist assistance from his colleagues, hence explaining the three month delay. Without knowing the full scope of his other duties, three months seems was perhaps too much time to wait but not unacceptably negligent. [129] On September 16, 2018, thus six months later, DC Shaddick moved out of uniform duties and into CIB. He realized the investigation had stalled and needed attention after the Herberts called the police asking for information. There's no evidence that Mr. Hunt was also calling the police asking for information, although his sister was told early on that the police would follow up. In other words, while there was an initial inquiry, it doesn't appear to be the case that there was a consistent inquiry which the police were simply ignoring. As a result of the inquiries by the Herberts, he requested that Mr. and Mrs. Herbert attend at the police station and provide written statements. At this point, he realized they had both been injured by the accident. While the Herberts might have been the catalyst to pick up the investigation, respectfully, there is very little evidence as to why the investigation stalled for six months. I can infer that by "falling through the cracks" it was maybe placed on a backburner because it wasn't as serious as other investigations, but I can't find that this was unacceptably negligent. It was unfortunate, but in context, this was not an average drinking and driving investigation. There were moving parts including the unavailability of blood samples, analyzing hospital records, experience levels of police officers, and other investigative duties. If this was the only active investigation, I may arrive at a different result. [130] On October 12, 2018, Mr. Hunt was formally charged with the offences of impaired care or control and the exceed 80mgs count. [131] In cross-examination, DC Shaddick acknowledged that he could have asked colleagues to assist him with the investigation by, for example, searching for Mr. Hunt but said he felt it was solely his responsibility. He denied ignoring the investigation all together. For example, when he learned of this investigation in December, he had already planned his vacation in advance and could not tend to it immediately. He did not consult the Crown Attorney's office before he laid the two charges, even though he knew of the injuries suffered by the Herberts. [132] I find as a fact that the pace of the police investigation was imperfect, but it did rise to the level of negligence or even unacceptable negligence. Policing, like other occupations is multi-faceted, fast paced and prone to human proclivities. DC Shaddick was quick to admit the investigation fell through the cracks but at the same time, was still working on other matters. Circumstances such as experience, schedules, planned vacations and the like got in the way but in the end, he was able to lay a charge with minimal impact on Mr. Hunt's constitutional rights. Investigations sometimes take time. This one is no different and not exceptional. The police conduct while unfortunate, was not negligent. [133] In light of the above findings, I will now consider the specific Charter complaints beginning with the lost evidence allegation. ### Lost Evidence & Trial Fairness [134] I agree with the Crown position that the duty to preserve relevant evidence never materialized because the Crown and police never came into possession of Mr. Hunt's blood in the first place. As noted above, the blood was in the possession of the hospital who were not acting as agents of the police. Based on the evidence before me, the blood was contaminated at some point after it was tested. I fail to see how this problem falls at the feet of the police or the Crown who didn't order the tests, thus were not responsible for supervising the testing procedure. It would appear that the fault, if any, lies at the feet of the hospital and/or laboratory, although this was not flushed out in the evidence. Accordingly, neither the police or the Crown had a legal duty to preserve evidence they did not secure. [135] However, this doesn't end the matter. The law provides that negligent loss or destruction of evidence by the police may result in a s.7 Charter violation and may justify invoking s.24(1) to exclude related evidence in order to preserve trial fairness. Mr. Gill complained that the circumstances of the lost blood through negligence resulted in Mr. Hunt being unable to test the blood on his own which impairs his right to a fair trial. This argument presumes there was first a duty to preserve the blood and the police were negligent in failing to preserve it. I've already explained above why this isn't the case on this record. But if I'm wrong that the police were negligent in failing to preserve his blood, the complaint around trial fairness is still without merit. In [R. v. Nicholas](/on/onca/2017/646), 2017 ONCA 646, the police negligently failed to preserve an orange juice container taken from the victim's fridge during a home invasion, which was later used by the Crown to ground a similar fact application. The defence applied for a stay of proceedings or alternatively, an order excluding the evidence. The trial judge found the police to be negligent but not grossly negligent and declined to stay the proceedings. Importantly, the Court of Appeal held at paras. 54-58, that "it was entirely speculative to imagine that the destroyed container would have yielded exculpatory evidence". [136] In this case, I have found the police conduct as it related to the delay in charging Mr. Hunt to be imperfect, not negligent. Recall the blood was tested by the lab in September 20th and A/Sgt Brown found out that it was unavailable on September 23rd, thus 3 days later. There is no specific evidence about when the blood became contaminated and how. This period of police inaction was 3 days which I held was reasonable in the circumstances. After this date, there was no blood for Mr. Hunt to independently test. The defence argument that Mr. Hunt's blood was not available for any defence testing is entirely speculative and without merit. There is absolutely no evidence either grounded in the hospital records or otherwise which gives an air of reality to the position that if Mr. Hunt's blood was available for independent testing (assuming it was not contaminated), it would have allowed him to test the reliability of the millimole reading that ultimately resulted in the CFS opinion of his elevated BAC's. It is no different than an argument challenging the reliability of breath results based on malfunction of the testing equipment. I have no evidence, expert or otherwise, that grounds this argument. Separate and apart from this issue, my finding of imperfection on the part of DC Shaddick has nothing to do with the 3-4 day delay in applying for the blood warrant. In other words, there is no evidentiary link between the delay occasioned by the slow pace of the investigation and the contamination of the blood. For these reasons, the s.7 Charter applications relating to "lost evidence" and/or trial unfairness is without merit and are dismissed. ### Lost Evidence and Pre-charge delay [137] Turning next to the related argument based on pre-charge delay. Mr. Gill argues the delay in charging Mr. Hunt resulted in a breach of s.7 and s.11(d) of the Charter because it impaired his client's ability to have a fair trial and make full answer and defence. Mr. Slessor says this argument is without merit because the court should reject his evidence of procedural prejudice and in any event, any prejudice suffered by Mr. Hunt was of his own making. [138] Mr. Gill did not advance an argument framed under s.11(b) of the Charter arguing that Mr. Hunt's right to a trial in a reasonable time was violated but rather styled his argument on the basis of pre-charge delay. [139] In [R. v. Kalanj](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii63/1989canlii63.html), [1989] 1 SCR 1594, Justice McIntyre writing on behalf of the Supreme Court held at page 1608, that section 7 of the Charter "applies to all stages of the investigatory and judicial process". He also held that pre-charge delay has no role in a s.11(b) analysis but can apply for purposes of s.7 (at pages 1609 to 1610). In [Mills v. The Queen](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii17/1986canlii17.html), [1986] 1 S.C.R. 863, at p.945, Lamer J. (as he then was) held that pre-charge delay is relevant under ss.7 and 11(d) because it is not the length of the delay which matters, but rather the effect of that delay upon the fairness of the trial. [140] In [R. v. Hunt](https://www.canlii.org/en/nl/nlca/doc/2016/2016nlca61/2016nlca61.html), 2016 NLCA 61, [2016] N.J. No. 372, the issue of pre-charge delay was authoritatively discussed. A majority of the Newfoundland Court of Appeal agreed with the trial court that there was a s.7 Charter violation on the basis of pre-charge delay which should result in a remedy under s.24(1). However, Justice Hoegg dissented on this issue and his decision was affirmed in the Supreme Court, reported at [2017 SCC 25](https://www.canlii.org/en/ca/scc/doc/2017/2017scc25/2017scc25.html), [2017] S.C.J. No. 25. Hoegg J.A. found no s.7 Charter violation on the basis of pre-charge delay and would not award a remedy under s.24(1). Accordingly, the dissenting judgment of Hoegg J.A. is binding on me. In my view, the discussion of the legal principles are instructive. [141] Hoegg J.A reviewed the legal principles germane to this issue at paras. 65-70. I do not propose to repeat them here. However, I will reproduce his discussion of the issue in the context of judicial consideration of police investigations, which in effect, is the argument being raised by Mr. Gill. At paras. 71-72, he wrote: > 71 In [R. v. Rourke](https://www.canlii.org/en/ca/scc/doc/1977/1977canlii191/1977canlii191.html), [1978] 1 S.C.R. 1021, the Supreme Court held that courts are not authorized to supervise the operation and efficiency of police investigations. Laskin C.J., agreed, although he dissented on other issues, saying there remained a judicial discretion to stay a proceeding on the basis of abuse of process if the Crown were improperly motivated by an ulterior purpose in carrying out an investigation (at 1040-1041). In [R. v. Young](https://www.canlii.org/en/on/onca/doc/1984/1984canlii2145/1984canlii2145.html) (1984), 46 O.R. (2d) 520 (Ont. C.A.), Dubin J.A. similarly reasoned, saying that "courts cannot undertake the supervision of the operation or the efficiency of police departments and to be asked to determine whether the police proceeded as expeditiously as they should have in any given case". Furthermore, he stated that to compel the police or Crown counsel to institute proceedings before they have reason to believe they will be able to establish the accused's guilt beyond a reasonable doubt "would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself." > > 72 As noted above, Kalanj concerned the relevance of pre-charge delay to an analysis under section 11(b) of the Charter. In deciding that pre-charge delay concerned section 7 rather than section 11(b), McIntyre J. said that assessment of a reasonable time for conclusion of a trial under section 11(b) begins when an Information is sworn. The Court's ruling stipulates that the time period to be considered in a section 11(b) analysis is after a charge is laid up to the conclusion of trial. Kalanj does not stand for the proposition that the courts are authorized to assess the efficiency of a police investigation or determine when the Crown was in a position to lay charges. Neither does it set out a method of evaluating conduct involved in pre-charge delay. [142] Further, at para. 81, Hoegg J.A. discussed time limitations on the laying of criminal charges in the context of an abuse of process allegation. He wrote: > 81 Subject to a few specific exceptions, the laying of indictable criminal charges is not subject to limitation periods (Rourke). (See also [R. v. Finta](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii129/1994canlii129.html), [1994] 1 S.C.R. 701.) Limitation periods in criminal law are the province of parliament, subject to judicial scrutiny only for constitutional compliance and the ability of courts to control their own processes to protect accused persons through the doctrine of abuse of process. The invocation of section 7 of the Charter to assist an accused person whose regularly constituted charges involve significant pre-charge delay has been carefully confined to few and unusual circumstances where demonstrated prejudice to his or her fair trial rights or abuse of process is found. (My emphasis added) [143] Accordingly, the legal test for the court to apply is whether Mr. Hunt has satisfied me on a balance of probabilities that there is demonstrated prejudice to his fair trial rights or a proven abuse of process. I will review both arguments below. ### Fair Trial Rights – Discussion [144] Mr. Hunt swore in his affidavit that after leaving the hospital, he went home and discussed the matter with his family. He did not know what to do and did not know if he would be facing any criminal charges. Further, his sister called the police and learned that the police were working on his case and would contact him if needed. Over the next few months, he didn't hear anything from the police and became stressed. He swore: > "I developed significant anxiety and depression due to the fact that I did not know what was going to happen next. I had lost my vehicle and my job. I constantly sat in my room struggling with the thoughts of what was to come in my future". [145] In cross-examination, Mr. Hunt was challenged on his asserted prejudice and anxiety. In my view, Mr. Hunt was not a credible witness. He was evasive and internally inconsistent. I reject his evidence of being prejudiced for the following reasons. [146] First, Mr. Hunt acknowledged that his friend Adam was with him the night of the incident. Adam used to work with him at Doucette Roofing but he lost touch with him. He admitted not speaking with Adam or obtaining details of the event from him. He acknowledged he had ample opportunity to do so by stating "I guess I could have". To be clear, this has no bearing on the trial issues because Mr. Hunt is presumed innocent and has no onus to prove anything. However, it remains relevant to meeting his onus on the s.7 Charter issues. [147] Second, Mr. Hunt testified that despite losing touch with Adam, he continued to work for him for "several months" after the incident thus had ample opportunity to preserve and memorialize his memory (and Adam's) of what happened on the night in question. He agreed Adam could have assisted him with his drinking pattern and the circumstances of the collision. Mr. Hunt did not avail himself of this opportunity. [148] Third, Mr. Hunt acknowledged that after the incident he made "some notes" of the events including his interaction at the hospital but didn't preserve them. He no longer has access to them. When asked to explain what happened to them, he could not recall. Respectfully, this speaks against his claim of prejudice. [149] Fourth, Mr. Hunt's evidence was internally inconsistent which makes it less credible. For example, he swore in his affidavit he was advised by the hospital that the police had released him unconditionally but later testified he was told this by the police. When challenged on this inconsistency, he said "it might have happened" followed with it's a "possibility" it didn't happen. He later said he attested to this because "it was part of what happened that night". Overall, he said "most" of what he attested to in his affidavit was accurate but he couldn't recall many details. Mr. Hunt was not reliable in his account. Perhaps he did not draft the affidavit himself, but he swore to its contents thus one would expect greater care would be taken to ensure it was reliable. He did not do so. This causes me to lose confidence in his account. [150] Fifth, I find that any prejudice Mr. Hunt suffered was not due to the slow police investigation but rather because of the circumstances at large. For example, in cross-examination he testified he didn't think he committed any criminal offences because he was not impaired by alcohol but instead the source of his anxiety and stress was because he knew he was speeding and not wearing a seatbelt. When Mr. Slessor challenged him as to why he felt stressed about not getting two infraction notices under the Highway Traffic Act, he stated he was worried because he wasn't driving his own car. In my view, this makes no sense. While Mr. Hunt later admitted that perhaps there were criminal charges, he took no steps on his own to assuage his concerns. For example, he did not contact the police, attend at the police station or retain counsel until after he was charged. Again, this speaks to the claim of prejudice not the merits. [151] Overall, I found Mr. Hunt's evidence of prejudice to be wholly unreliable and incredible. I do not accept he suffered any form of prejudice apart from the usual stress associated with a police interaction that abruptly came to an end at the hospital. I fail to see how he was procedurally prejudiced by having a criminal charge looming over his head for months. While there may be some financial prejudice in terms of retaining counsel to advance these Charter motions, that is not something that results in a s.7 Charter violation. Given his state of being at the time of the incident, I do not accept his evidence that with the passage of time, his memory of the events has faded so as to impair his ability to defend himself: [R. v. P. (H.)](https://www.canlii.org/en/on/onsc/doc/1992/1992canlii15049/1992canlii15049.html), 15 C.R. (4th) 121 (Ont. Sup. Ct.). This is not a case which rises or falls on credibility or reliability assessments where the passage of time would be more significant. This is a drinking and driving allegation where the fact of a motor vehicle collision and injury is not in dispute. Nor is the fact of the blood testing in dispute. This case turns on the admissibility of evidence gleaned from a constitutional perspective and largely, the conduct of the police. It has nothing or little to do with faded memories. I do not find a breach of s.11(d) of the Charter. [152] I will now consider the alternative argument of an abuse of process. ### Abuse of Process – Discussion [153] The abuse of process doctrine was explained by the Supreme Court in [R. v. O'Connor](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii51/1995canlii51.html), [1995] 4 S.C.R. 411 and makes it possible to punish any inappropriate use of the judicial process when the result is manifestly unfair to a party to the litigation or brings the administration of justice into disrepute. This doctrine applies to civil and criminal cases: [Canam Enterprises Inc v. Coles](https://www.canlii.org/en/on/onca/doc/2000/2000canlii8514/2000canlii8514.html) (2000), 51 O.R. (3d) 481, at paras. 55-56, affirmed 2002 SCC 63. In Hunt, supra, at para. 73, the court also considered the doctrine in a similar context and quoted from [R. v. Jewitt](https://www.canlii.org/en/ca/scc/doc/1985/1985canlii47/1985canlii47.html), [1985] 2 SCR 128, where the Supreme Court ruled that a trial judge had the discretion to stay proceedings for abuse of process "where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the community's sense of fair play and decency through oppressive or vexatious proceedings" (at 136-137). [154] After Jewitt, courts have explained other means by which an abuse of process can be proven. For example, in [R. v. Keyowski](https://www.canlii.org/en/ca/scc/doc/1988/1988canlii74/1988canlii74.html), [1988] 1 SCR 657, Wilson J. for the Supreme Court held that prosecutorial misconduct and/or improper motivation to proceed with a criminal prosecution may be grounds for an abuse of process. Similarly, in [R. v. Conway](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii66/1989canlii66.html), [1989] 1 SCR 1659, Justice L'Heureux-Dube (as she then was) described the doctrine as "an unfair or oppressive act which disentitles the Crown to carry on with a prosecution because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court" (at 1667). [155] In the case at bar, Mr. Gill does not argue, nor does the evidence establish, that an abuse of process manifested with the Crown's decision to proceed with different and more serious charges from what Mr. Hunt originally faced. For example, the police charged Mr. Hunt with impaired driving and exceed 80mgs but it was the Crown who decided the evidence justified laying the charges of impaired driving causing bodily harm in light of the injuries of the Herberts. I find nothing abusive of this decision which was entirely appropriate. Nor does this decision factor into the prejudice analysis. [156] Instead, Mr. Gill's argument focused on the unfairness of the prosecution in circumstances where it took an inordinate amount of time to come to trial along with the fact that Mr. Hunt's blood is not available as evidence. While it is unfortunate that Mr. Hunt's blood is not available, as I've held above, this has nothing to do with state conduct. If Mr. Hunt has any claim against any party, arguably, it would be against the lab for contaminating his blood, although that's not even clear. To be sure, I am not finding there is a viable claim in this regard but only make the point that Mr. Hunt's claim against the state is unfounded. Moreover, there is nothing inherently unfair about a prosecution that started approximately 12 months after the alleged offence date. As I've held above, there is no merit to the argument that Mr. Hunt was prejudiced in preparing his defence. While he complains of faded memories, it's unclear on this record how a more timely police investigation would have ameliorated his legal position. For example, he acknowledged passing out after the accident, where his memory would have been impaired. It's unclear to me how his memory would have been better if the police charged him sooner because he still would have to deal with the fact that he was in and out of consciousness. While he made notes, there's no evidence that he lost them because of the passage of time or because of police conduct. And, the police investigation has nothing to do with the quality of the testimonial evidence of his friend Adam, who did not testify on the voir dire. [157] In Hunt, supra, the Supreme Court endorsed the view that subject to few specific exceptions, the laying of indictable criminal charges is not subject to limitation periods: [R. v. Finta](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii129/1994canlii129.html), [1994] 1 S.C.R. 701. Section 7 of the Charter may assist an accused where there has been "significant" pre-charge delay and is confined to "few and unusual circumstances" where [the accused] has demonstrated prejudice to his or her fair trial rights or where abuse of process has been found. [158] Hunt involved an examination of a s.7 Charter violation where there was a 10 year delay in laying criminal charges when the Crown conceded it was in a position to lay charges 5 years earlier. The allegation involved sexual offences where memories of key events and details are particularly vulnerable over time and as one ages. Hoegg J.A. agreed with the majority that this did not impact the accused's fair trial rights under s.7 but disagreed with their analysis of the abuse of process doctrine. He held that his colleagues erred in upholding the trial courts consideration of investigatory delay as "egregious". At para. 84, he held: "[W]hat is required to make out abuse of process is egregious Crown conduct in the handling of the investigation. It is the Crown conduct that is in issue, not the length of the delay". Moreover, he held at para. 85 that the claim must be evaluated given the factual background of the case and resort must be had to the evidence tendered on the application. Ultimately, he held the police investigatory delay was justified because it was complex and massive. The Crown did not act improper in prosecuting the case. [159] In the case at bar, and I repeat, there is no evidence of Crown conduct that is oppressive. Nor does the defence raise this issue. Ultimately, the abuse allegation is rooted in contaminated (and unavailable) blood and a 12 month delay in being charged. For reasons already articulated, neither are reasons, either alone or together, that rise to the level of proving an abuse of process. Mr. Gill's reliance on Prosa, supra is misplaced. In Prosa, Hainey J. was critical of the state because the CFS took control of blood and it became unavailable due to unacceptable negligence (at para. 53). He held it was a sufficiently serious departure from the Crown's duty to preserve evidence to constitute an abuse of process. Despite finding an abuse of process, he went on to consider the remedy of staying the proceedings and held that onus wasn't met. At para. 61 he found that the lost blood sample "might" have assisted Mr. Prosa. He wrote "This was more than a realistic possibility and was no more likely than test results adverse to or neutral to his defence", citing [R. v. Bero](https://www.canlii.org/en/on/onca/doc/2000/2000canlii16956/2000canlii16956.html), [2000] O.J. No. 4199 (Ont. C.A.). I note that in Prosa, supra, the defence had proffered evidence from an expert that perhaps Mr. Prosa had involuntarily ingested another drug other than alcohol which would explain the bizarre and purposeless driving behavior or his en bloc memory loss (at para. 64). There is no such evidence in this case. As stated above, the argument that independent testing would have yielded evidence to assist Mr. Hunt in making full answer and defence is entirely speculative. [160] For the above reasons, I find that Mr. Hunt has not proven on a balance of probabilities that his rights under s.7 or s.11(d) of the Charter were violated. Both applications are dismissed. [161] Given that I found notional violations of s.10(b) of the Charter, I will engage in an analysis to consider whether Mr. Hunt has met his onus to exclude the evidence. However, before I do, I will turn briefly to the argument that the production order that was used to secure the hospital records should be set aside under s.24(1) as a violation of s.7 of the Charter. [162] Mr. Gill chose not to attack the facial or sub-facial validity of the ITO in support of the production order which the law treats as presumptively valid. Instead, he launched a discrete attack premised on the investigative conduct of the police during the pre-authorization process. He argues that the ITO in support of the production order was materially misleading with false statements and unconstitutionally obtained evidence. He says DC Shaddick subverted the administration of justice which should result in a remedy. ### (xiii) Setting Aside the Production Order – The Legal Principles [163] The court has a residual discretion to set aside a judicially authorized court order, in this case a production order, even if there are no proven Charter violations: [R. v. Strauss](/on/onca/2017/628), 2017 ONCA 628, [2017] OJ No. 4084 (C.A.). In Strauss, supra, the Ontario Court of Appeal discussed these principles in detail. Benotto J.A. held at para. 25: > 25 Having found the warrant valid, the trial judge did not go on to consider the effect of the investigative conduct of the police in the pre-authorization process. This court has recognized a discretion to set aside a warrant -- despite grounds for its issuance -- when conduct leading up to its issuance has been subversive. In [R. v. Paryniuk](/on/onca/2017/87), 2017 ONCA 87, 134 O.R. (3d) 321, leave to appeal refused, [2017] S.C.C.A. No. 81, at para. 66, this court said: "a trial judge has a residual discretion to set aside a properly issued search warrant or authorization where the judge is satisfied that the conduct of the police has been subversive of the pre-authorization process leading to the issuance of the search warrant." Such conduct includes omitting facts from an ITO in order to mislead the issuing judicial officer. [164] In Paryniuk, at para. 74, Watt J.A. explained that the Applicant must demonstrate that the police conduct subverted the pre-authorization process in order to bring her case within the sweep of the residual discretion. "Subversion connotes undermining, corrupting, weakening, destroying or disrupting a system or process. In plain terms, an abuse of the pre-authorization process by non-disclosure or misleading disclosure or their like". [165] Mr. Gill says A/Sgt Brown subverted the pre-authorization process by misleading the issuing Justice. Respectfully, this defence argument has no merit. [166] The parties agreed to make the ITO in support of the production order as Exhibit 2 on the Charter voir dire. DC Shaddick was the affiant who swore the ITO. The order was granted by a Justice of the Peace on December 13, 2017. Mr. Gill complained about the following aspects of the ITO: > • At paragraph 12, DC Shaddick swore that A/Sgt Brown administered a blood demand. Mr. Gill says this is misleading because Mr. Hunt was in and out of consciousness and thus couldn't understand the blood demand. In my view, this does not amount to false or misleading statements, because there's nothing false about the fact that a blood demand was made which is required by the Criminal Code. In this case, while the blood demand was made, ultimately, it was the hospital that took the blood on their own accord so the legal demand did not yield any evidence. There is nothing subversive about this; > > • At paragraph 15, DC Shaddick swore that Mr. Hunt's blood samples were "no longer in the lab and its whereabouts were unknown". Mr. Gill argues this was misleading because it seems to imply the blood was still available and doesn't say the blood was contaminated. I fail to see how this is misleading. The point of the production order was to obtain hospital records because the blood was unavailable. Whether it was unavailable because it was contaminated or lost is of no moment because it's clear the police did not participate in contaminating or losing the blood. The issuing Justice could have issued the order even if the blood was lost or wasn't available by other means; > > • At paragraph 28, DC Shaddick swore that he had grounds to believe the hospital records would afford evidence, namely it would show the level of toxicology, if any, in the blood of Mr. Hunt on the date of his treatment. Mr. Gill says this was misleading. I fail to see how this is misleading because that's exactly what the police did in this case. The hospital records were the impetus for the toxicology report, which Mr. Gill did not challenge. [167] Mr. Gill also argues that the ITO contained other "unconstitutional" evidence including the alleged s.8 Charter violation and the s.10(b) breaches. As I've explained above, absent the notional s.10(b) violations in not ensuring a timely and understood RTC at the hospital, there were no other Charter violations of consequence. I do not agree that the pre-authorization process was subversive. The police did exactly what a competent investigator would be expected to do when the blood became unavailable through no fault of their own. The fact that the police were able to obtain the evidence of the blood results through hospital records is not subversive. [168] As a result, the s.7 Charter argument to set aside the authorization is dismissed. ### (ix) Has Mr. Hunt met his onus to be awarded a Charter remedy? [169] The final issue left for consideration is whether Mr. Hunt has met his onus on a balance of probabilities to be awarded a Charter remedy, either under s.24(2) or s.24(1). In my view, Mr. Hunt has not met his onus on either remedy. [170] First, dealing with s.24(1). I rely on my comments above and reiterate there were no proven Charter violations nor an abuse of process that justify a stay of proceedings. Courts have held that a stay of proceedings is a remedy of last resort and only to be granted in the clearest of cases: [R. v. Babos](https://www.canlii.org/en/ca/scc/doc/2014/2014scc16/2014scc16.html), 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. This case is nowhere close to be such a case. I have considered Mr. Gill's submission of the case, [R. v. T.T.](https://www.canlii.org/en/on/oncj/doc/2009/2009oncj950/2009oncj950.html), [2009] O.J. No. 950 (Ont. Prov. Ct.) which found Charter violations based on pre-charge delay, but the ruling was made in the context of a youth prosecution involving an allegation of sexual assault. The principles that underlie prosecutions under the Youth Criminal Justice Act especially as they relate to delay, do not apply to cases involving adults. I rely on my earlier comments that this is a drinking and driving allegation, not a sexual assault case where trial fairness concerns are fundamentally different. Mr. Hunt has not met his onus to stay the proceedings under s.24(1). [171] Second, dealing with s.24(2). The legal test for exclusion of evidence under s.24(2) of the Charter was described by the Supreme Court in [R. v. Grant](https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html), 2009 SCC 32, [2009] 2 S.C.R. 353, 245 C.C.C. (3d) 1. Mr. Hunt must prove on a balance of probabilities the evidence sought to be excluded was obtained in a manner that infringed a Charter right and the admission of the evidence would bring the administration of justice into disrepute. [172] For reasons described above, the only viable Charter complaint in this case is the untimely s.10(b) advice that was given to Mr. Hunt when he was unable to understand it at the hospital. However, this misstep was not serious because the police never secured any evidence from him which his RTC could have neutralized. The toxicology report was premised on hospital records taken by the hospital who were not acting as state agents. Thus, it is arguable that any evidence was even "obtained in a manner" that infringed the Charter which would make the s.24(2) analysis moot. [173] However, in the event that I am wrong, I will apply a liberal interpretation of this provision having regard to the principles in [R. v. Wittwer](https://www.canlii.org/en/ca/scc/doc/2008/2008scc33/2008scc33.html), 2008 SCC 33, [2008] 2 S.C.R. 235 at para. 21 and [R. v. Pino](https://www.canlii.org/en/on/onca/doc/2016/2016onca389/2016onca389.html), 2016 ONCA 389, 130 O.R. (3d) 561 at paras. 50-70. I will therefore examine the Grant factors. [174] The consideration of whether the admission of the evidence would bring the administration of justice into disrepute requires a consideration and balancing of the following factors: > (i) The seriousness of the Charter-infringing state conduct; > > (ii) The impact of the breach on the Charter-protected interests of the accused; > > (iii) Society's interest in an adjudication on the merits. [175] In the first prong, police conduct must be placed along a spectrum of conduct from minor or inadvertent violations to willful disregard for an accused's Charter rights: [R. v. Marakah](https://www.canlii.org/en/ca/scc/doc/2017/2017scc59/2017scc59.html), 2017 SCC 59, [2017] SCJ No. 59 at para. 61. Mr. Slessor says if there were any errors by A/Sgt Brown, they were made in good faith. In [R. v. Paterson](https://www.canlii.org/en/ca/scc/doc/2017/2017scc15/2017scc15.html), 2017 SCC 15, [2017] 1 S.C.R. 202. Brown J. stated (at para. 44) that for errors to be considered to have been made in good faith, they must be reasonable. Further, the Charter infringing conduct in question need not be deliberate, nor result from systemic or institutional abuse to result in exclusion of evidence that was obtained as a result of a clear violation of well-established rules. [176] When the circumstances are assessed as a whole, while the RTC is a core right, A/Sgt Brown recited RTC and caution as part of his general duties which means he was not ignorant of his duties. While it would have been better to provide them sooner and again with some probing at the hospital, the failure to do so wasn't serious because no evidence was obtained. A/Sgt Brown was always acting in good faith and there were no systemic failings. This factor weighs heavily in favor of inclusion of the evidence. [177] Next, the impact of the Charter violation was minimal. Mr. Hunt never engaged with legal counsel until after he was formally charged several months later. And, the police did not secure any evidence by means of Mr. Hunt's blood or breath samples. The blood was taken by the hospital. This separates this case from Poire, where breath samples were secured when the detainee didn't understand his RTC when he was in and out of consciousness. In [R. v. Rover](/on/onca/2018/745), 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45, Doherty J.A. explained that the right to counsel for detained person protects more than access to legal advice: it is a lifeline. Here, Mr. Hunt never invoked his RTC because he was unable to do so. He was simply too intoxicated. Had the police attempted to obtain evidence from him during this state and against not exercising his RTC, he would have needed his lifeline. But that's not what happened here. This factor weighs strongly in favor of inclusion of the evidence. [178] The focus of s.24(2) is to maintain the public's confidence in the rule of law. For reasons that I've explained, all the evidence points against not excluding the evidence if I am wrong about the Charter violation(s). The Charter applications are therefore dismissed. [179] Accordingly, Mr. Hunt's hospital records and opinion of Rachelle Wallage of the CFS are therefore admissible. I now turn to the merits of the case. --- ### (x) Has the Crown proven the elements of the three offences beyond a reasonable doubt? [180] The parties made brief submissions on the merits of the case assuming the evidence is admissible. Mr. Gill argues the evidence that Mr. Hunt was impaired by alcohol is speculative. On the exceed 80mgs count, Mr. Gill argues the test results are not reliable because Mr. Soubasias could not say how the vials of blood were de-capped thus creating a doubt. [181] Mr. Slessor disagrees. He argues the Crown has proven both offences beyond a reasonable doubt. [182] I agree with the Crown's submissions. ### Impaired Operation Causing Bodily Harm – Discussion [183] It is well settled that impairment of the ability to operate a motor vehicle which must be proven, and not just "impairment" generally: [R. v. Andrews](https://www.canlii.org/en/ab/abca/doc/1996/1996abca23/1996abca23.html) (1996), 1996 ABCA 23, 104 C.C.C.(3d) 392 (Alta. C.A.), leave to appeal refused [1996] S.C.C.A. No. 115, 106 C.C.C. (3d) vi (S.C.C.). Any degree of impairment ranging from slight to great, establishes the offence: [R. v. Stellato](https://www.canlii.org/en/on/onca/doc/1993/1993canlii3375/1993canlii3375.html) (1993), 78 C.C.C. (3d) 380 (Ont. C.A.) at p. 384; aff'd (1994), 90 C.C.C. (3d) 160 (S.C.C.). Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like: [R. v. Censoni](https://www.canlii.org/en/on/onsc/doc/2001/2001onsc5189/2001onsc5189.html), [2001] O.J. No 5189 (S.C.J.) at para. 4; [R. v. Michitsch](https://www.canlii.org/en/on/onsc/doc/2004/2004onsc1296/2004onsc1296.html), [2004] O.J. No. 1296 (S.C.J.). Bad driving coupled with the absence of physical signs of intoxication other than the odour of alcohol might not give rise to impairment to the slightest degree: [R. v. Jones](https://www.canlii.org/en/ab/abca/doc/2004/2004abca735/2004abca735.html), [2004] A.J. No. 735 (C.A.); [R. v. MacCoubrey](https://www.canlii.org/en/on/onsc/doc/2015/2015onsc2820/2015onsc2820.html), [2015] O.J. No. 2820 (S.C.J.) at para. 27. [184] There is no dispute that Mr. Hunt was operating a motor vehicle that was involved in the collision. He was investigated by the police occupying the driver's seat, which puts him in legal care or control and there's no evidence to suggest he switched seats with his passenger. He was reliably identified by A/Sgt Brown. I find that the Crown has proven identity beyond a reasonable doubt. [185] Further, I'm also satisfied that the Crown has proven that Mr. Hunt's ability to operate a motor vehicle was slightly impaired by alcohol. I accept the evidence of A/Sgt Brown that Mr. Hunt presented with indicia of impairment including: vomiting on himself, the smell of alcohol in the car; the smell of alcohol on his breath, physical indicia including slurring his words, the state of his eyes and of course and the circumstances of the unexplained accident. [186] Mr. Hunt is presumed to be innocent until this burden is displaced by the Crown beyond a reasonable doubt. A reasonable doubt is based on reason and common sense and logically derived from the evidence or the absence of evidence. In [R. v. Villaroman](https://www.canlii.org/en/ca/scc/doc/2016/2016scc22/2016scc22.html), 2016 SCC 22, 338 (CCC) (3d) 1, Justice Cromwell noted (at para. 38) that the basic question is whether the circumstantial evidence "viewed logically and in light of human experience, is reasonably capable of supporting an inference other than the accused is guilty". [187] Based on all the evidence, I am satisfied the inference of impairment of the ability to drive based on the voluntary consumption of alcohol is the only reasonable inference. There's no reasonable inference that Mr. Hunt presented as he did because of a head injury or something else. A conviction will be registered. ### Exceed 80mgs – Discussion [188] On the exceed 80mgs count, Mr. Gill argues the examination of the blood sample was unreliable because of uncertainty about how the blood was de-capped. For reasons articulated above, I do not accept this argument because any evidence that might undermine the integrity of the blood samples is speculative and isn't capable of raising a reasonable doubt. While the testing of blood is different from the testing of BAC, the legal principles developed by the Supreme Court in [R. v. Cyr-Langlois](https://www.canlii.org/en/ca/scc/doc/2018/2018scc54/2018scc54.html), 2018 SCC 54, on how to evaluate this argument are instructive. In Cyr-Langlois, supra, the Supreme Court was clear that a reasonable doubt cannot arise from speculative evidence (at para. 19). In that case, there was no evidence that tended to show the alleged defect in the breath testing procedure was sufficient to raise a reasonable doubt. While Mr. Soubasis could not say how the blood was de-capped, there was nothing in his evidence that undermined the reliability of the tests. Any issues, if any, would have been at the pre-analytical phase and there's no evidence to suggest there was an issue at that stage. The blood was tested and produced a result: serum alcohol concentration of 36.9 mmol/L. There's no evidence to undermine or challenge this finding. [189] Further, Mr. Gill did not challenge the opinion of Ms. Wallage whose opinion was made Exhibit 2. She drew on the following facts which are supported in the evidence: > 1. Mr. Hunt was involved in an accident at or between approximately 10:25 pm to 10:35 pm; > > 2. A blood sample was collected at the hospital at or between approximately 12:37 am and 12:40 am; > > 3. The hospital analyzed the serum portion of the blood samples and determined a serum alcohol concentration of 36.9 mmo/L. [190] Ms. Wallage opined that the detected serum alcohol concentration (BAC) of 147 milligrams of alcohol in 100 millilitres of blood (mg/100mL). The projected BAC at or between approximately 10:25 pm to 10:35 was 147 to 192 mg/100 mL. Ms. Wallage further opined that this opinion depended on the following factors: > 1. A rate of elimination of alcohol from the blood ranging from 10 to 20 mg/100ml per hour. > > 2. Allowance for a plateau of up to two hours. > > 3. No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident. > > 4. No consumption of alcoholic beverages after the incident and before the sample collection. [191] There is no evidence to displace the above assumptions and facts. Finally, she opined that an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range. [192] I have considered that Mr. Hunt did not testify on the trial issues but nor did he have to. I have disabused my mind of his evidence on the Charter voir dire. The Crown bears the burden of proving all the elements of the offences beyond a reasonable doubt. In my view, the evidence as a whole, easily proves that Mr. Hunt was in care or control of a motor vehicle as he was found in the driver' seat while his BAC exceeded 80mgs of alcohol in 100mls of blood. He was operating a motor vehicle and his ability to do so was impaired by alcohol consumption. The Herberts suffered injuries during the collision which resulted in bodily harm. All elements have been proven to the requisite degree. --- # VIII. CONCLUSION [193] For the above reasons, Mr. Hunt will be found guilty of all offences. I will invite submissions on the application of the Kienapple principle. I will also invite submissions on whether the expected sentencing hearing can proceed remotely. [194] I would like to thank counsel for their helpful material and submissions in this case. --- **Released (electronically):** June 1, 2020 **Signed:** "Mr. Justice F. Javed" --- [1] These provisions in the Criminal Code were amended as a result of Bill C-46 and now can be found in s.320.14(1) – 320.14(4) of the Criminal Code. [2] Section 715.21 of the Criminal Code presumes an in-person court appearance of an accused party "except as otherwise provided in the Act". Section 650(1) of the Criminal Code provides for an accused to be present during the "whole of his or her trial" subject to (1.1) to (2). Subsection (1.1) permits a defendant to appear by counsel or "any other means" for any part of the trial other than a part in which evidence is taken. In this case, the parties agreed to participate by audioconference to receive judgment: s.715.23(1). Section 715.23(2) provides that a court shall provide reasons for not making an order if otherwise appropriate having regard to all the circumstances when permitting an accused to appear remotely. In this case, the procedure for an audio appearance proceeded on consent, thus, these reasons do not contemplate addressing this issue. As these reasons are being distributed electronically prior to the audio appearance on June 2, if the court determines during the audio appearance that it is no longer suitable to proceed by audio, by for example, a failure in the technology, the court will cease the audio appearance and direct that the matter proceed in-person on a future date. See R. v. Daley, [2020] O.J. No. 1723 (Ont. Prov. Ct.) [3] The court directed counsel Mr. Gill to provide an electronic copy of these reasons to his client, Mr. Hunt. The court will direct that the clerk of the court attach a copy of these reasons to the court information to complete the court record in the event they are reviewed or are sought by the public in furtherance of the open court principle. There is no publication ban that was sought or imposed.