WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. S.S., 2022 ONCJ 646

DATE: 2022 04 28

COURT FILE No.: Brampton 20-Y2

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

S.S., a Young Person

Before Justice Kathryn L. Hawke

Trial and Blended Voir Dires heard on January 18, 19, 20 and 21, 2022, and

Submissions heard on March 2 (Voir Dire submissions) and

March 24, 2022 (Trial Submissions)

Charter and Evidentiary and Trial Rulings and reasons released on April 28, 2022

P. Quilty................................................................................................ counsel for the Crown

J. Hue and D. Stein............................................................... counsel for the accused S.S.

HAWKE J.:

CHARTER & EVIDENTIARY RULINGS

INTRODUCTION

I. The Charges

[1] S.S. is charged as follows:

(1) [SS], a young person within the meaning of the Youth Criminal Justice Act, on or about the 4th day of November, 2019, at the City of Brampton in the said region did by criminal negligence to wit: operating a vehicle while impaired, cause the death of [J.S.], contrary to Section 220(b) of the Criminal Code of Canada.

(2) AND FURTHER THAT, [SS], a Young Person within the meaning of the Youth Criminal Justice Act, on or about the 4th day of November, 2019, at the City of Brampton in the said region did commit an offence under s. 320.14 (1) of the Criminal Code, and while operating the conveyance, caused the death of [J.S.], Contrary to Section 320.14 (3) of the Criminal Code of Canada.

II. Overview of the incident and the investigation

[2] The incident occurred sometime shortly before 11:45 p.m. on November 4, 2019, on McVean Drive, in the City of Brampton. In the area of the scene, McVean Drive is a straight road running north and south. It has two lanes, one in each direction. The posted speed limit was 70 km./hr.

[3] The investigation suggests that S.S. was driving southbound. He/she had one passenger, his/her friend J.S. S.S. was approaching a location where two other roads meet McVean. Rychman Lane is on the east side of McVean, and it runs east and west. Da Vinci Avenue is on the west side of McVean, and it runs east and west. There are stop signs on Rychman and Da Vinci only.

[4] The investigation that took place well after S.S. was taken from the scene, suggests that S.S.'s vehicle travelled left from the southbound lane, crossed over the opposing lane and then it went into the ditch on the west side of McVean. It travelled more or less parallel to McVean until it twisted to face east and came to a stop. It came to rest before reaching Rychman Lane i.e., it was in the northeast ditch.

[5] There was very extensive damage to the vehicle, particularly on the rear passenger side and the rear of the vehicle. Parts of the car were scattered about. This included part of the rear axle, with the back, passenger side, wheel still attached, being up on the roadway on the northbound shoulder of McVean.

[6] Some civilians, and then an ambulance, happened upon the scene. The first ambulance put in a call for a second ambulance. The paramedics on the first ambulance quickly realized that the passenger was deceased, and the driver was alive. Attempts were made to revive the passenger. There was no response, and he/she was pronounced dead. In the meantime, the second ambulance arrived and somewhere within this time frame the fire department arrived. Then the police arrived. The first officer on scene was P.C. Sagl, who, at a later stage in the investigation, became the arresting officer.

[7] When the second paramedic crew arrived, they took over the care of the driver, S.S. This was a crew of three - the driver, the primary care person Jessie Lemcke, and an advanced care paramedic. S.S. was outfitted with a cervical collar. Then the fire department took steps to get the S.S. extricated from the vehicle. Thereafter, the paramedics placed S.S. on a stretcher and put him/her in their ambulance.

[8] Prior to S.S. being put into the ambulance none of the paramedics, who testified, spoke of any police officer speaking to them about S.S., or otherwise being involved directly with S.S.

[9] Then P.C. Sagl entered the back of the ambulance. Shortly thereafter she arrested S.S. for impaired operation cause death. She also gave S.S. rights to counsel and a breath demand.

[10] The ambulance took S.S. to Sunnybrook Hospital. Eventually, he/she came into contact with P.C. Alszegi, a qualified breath technician. S.S. provided two samples of his/her breath in the early morning hours of November 5th.

[11] On November 6, 2019, Det. Cst. Jeff Davis, applied for and obtained a Production Order for hospital records and a Search Warrant for a blood sample taken at the hospital on November 5th.

III. Issues

[12] A blended hearing was held.

[13] This included all of the Crown's case. There were a number of trial admissibility issues, and they are covered in this part of the judgment.

[14] Further, the Defence brought an application alleging breaches under sections 7, 8, and 10(b) of the Canadian Charter of Rights and Freedoms, that span from the beginning of the investigation up to and including the issuance of a Search Warrant and a Production Order. This application also requests a s.24(2) remedy of excluding evidence that is tainted by the alleged breaches.

IV. THE EVIDENCE

At the Scene

I. P.C. Sagl

P.C. Sagl - Version #1

[15] P.C. Sagl testified that she was the first officer to arrive on scene. She was dispatched at 11:14 p.m. When she arrived at 11:23 p.m., she noticed the presence of the fire department and the paramedics who were located at a BMW in the east ditch. They were attending to the driver and a passenger. She did not go towards the location of this activity. Instead, she turned her attention to the scene. At 11:25 p.m., she learned that the passenger in the BMW had been pronounced dead.

[16] Regarding the scene, P.C. Sagl testified that she made brief observations and then she got out caution tape and blocked off all of McVean Drive, so that no vehicles could pass by.

[17] P.C. Sagl observed that that there were pieces of the vehicle all over McVean Drive and that the vehicle was completely totaled.

[18] P.C. Sagl also noticed a black backpack. In the backpack she noticed a bottle of alcohol with a lid on it, along with some garbage. She was shown a photo and she agreed it was of the backpack. She did not agree, however, that the bottle was opened as shown in the photo and she did not agree that the backpack was on the roadway/shoulder as shown in the photo. She said she saw it near the car. She did not provide any further detail on this point.

[19] It is also important to note P.C. Sagl's evidence about what she did not do.

Q … did you have any contact with the driver or the passenger of the vehicle prior to getting onboard the ambulance?

A. I did not.

Q. Did you, did you go to check out the vehicle at any point while you were on scene?

A. I did not walk down towards the vehicle.

(Transcript: January 19, 2022, p. 24 L. 14-16.)

[20] It is notable that, as shown in the photographs and as described in paramedic Christopher Hackett’s evidence, getting to the vehicle, in the ditch, would involve going down a steep, wet and slippery incline.

[21] P.C. Sagl testified that she received information from Acting Sergeant Byford "that [he/she] is possibly impaired and that [he/she] will be transported to Sunnybrook so at this time I go in the ambulance." (Transcript: January 19, 2022, p. 23, L. 14-16)

[22] P.C. Sagl testified that she got into the ambulance at 11:50 p.m. and that S.S. was already in the ambulance receiving treatment.

[23] The question of what information P.C. Sagl received from Acting Sgt. Byford came up again in examination-in-chief when she was asked whether the decision to arrest, later on, was hers or whether she had been told to arrest the Defendant. Her answer was: "It was my decision. I was told by Acting Sergeant Byford that there was a possibility [he/she] was impaired and to go investigate on the ambulance." (Transcript: January19, 2022, p. 28, L. 20-23.)

[24] In examination-in-chief P.C. Sagl was asked:

Q. Officer, at the time, at the time you entered the ambulance had you formed any opinion at that time as to a speed that you believed the vehicle had been travelling?

A. I believe [he/she] had been going approximately 100 kilometres an hour, high rate of speed, it was a single vehicle accident."

(Transcript: January 19, 2022, pg.27-28)

II. Acting Sgt. Byford

[25] Acting Sgt. Byford testified that he arrived on scene at 11:30 p.m. As the Patrol Sergeant he learned that the passenger was deceased and that there was a driver, who was conscious and breathing, who was on board the ambulance, and that the individual was going to be going to Sunnybrook Hospital.

[26] Further, he observed a black backpack, on the roadway, with a large bottle of alcohol in it. He could not recall if the bottle was open or closed with a lid. Based solely on the backpack and the bottle he turned to the nearest officer, P.C. Sagl and "I advised her to aboard ambulance to further investigate to see if the party that was onboard the ambulance was in fact impaired." (Transcript: January 18, 2022, p. 110, L 2-6) He also has a note saying that "shortly thereafter the [male/female] was in fact arrested."

[27] In cross-examination it was suggested that the S.S. was detained. Acting Sgt. Byford, by restating his evidence, did not agree with this characterization.

A. So upon my arrival and seeing the - seeing the bag on the ground, the statement that I'd - that what I had said to her was….I advised Constable Sagl to get onboard the ambulance as the [male/female] may be impaired. So this was, like just a quick interaction between Officer Sagl and I, she was standing beside me, I saw the bag on the ground and I - that's what I had told her, to get aboard the ambulance as the [male/female] may be impaired, solely based on the fact that I saw the bag."

(Transcript: January 18, 2022, p. 116, L11-19)

In the Ambulance

I. Jessie Lemcke - Paramedic

[28] Ms. Lemcke is the paramedic who took care of S.S. at the scene through to when he/she was turned over to hospital staff. As part of her duties, and while she was dealing with S.S., she also prepared the Ambulance Call Report, Exhibit A.

[29] Ms. Lemcke's independent recollection of the events of November 4th were, by her own admission, minimal. She had a very small amount of evidence to give. In addition, she provided information as to how to read the Ambulance Call Report. It did not go further than this, as this report did not refresh her memory.

[30] Ms. Lemcke testified about the typical questions she would ask any driver involved in any serious motor vehicle collision, and why. She asks these questions for her own purposes of assessing a person's medical condition, and some typical questions include: Were you wearing a seat belt? Do you remember what happened? Any drugs or alcohol onboard? How fast were you going? Do you remember events?

[31] Ms. Lemcke recalled: attending the scene late at night; another crew was working on a patient in the ditch; it took time to extricate the driver due to damage to the vehicle; the driver became her patient; and they took the driver to Sunnybrook.

[32] Ms. Lemcke's crew consisted of herself, her paramedic partner for the shift who was also the driver (Mr. Hackett) and an additional paramedic, in case a higher level of care was required (Mr. Niffen).

[33] Ms. Lemcke testified that the ambulance used that night was, loosely speaking, a cube van. She agreed that there were noises, but was reluctant to agree that it was noisy, because she can control the noise. Within the back of the ambulance the officer (P.C. Sagl) sat on a seat closer to the driver's cab.

[34] With regard to utterances made by S.S., Ms. Lemcke provided guidance for reading the Ambulance Call Report by pointing out things marked with quotation marks and phrases like "pt initially stated," with 'pt' standing for patient. In cross-examination, she agreed that she did not record any questions, nor full answers or sentences, nor all answers. Also, there is no record of how many times questions were asked or similar answers that may have been given. (Transcript: January 21, 2022, p. 27, L 24, - p. 28, L 24)

[35] In cross-examination she agreed the questions she asked were part of her assessment for the Glasgow Coma Scale and so too was S.S.’s responsiveness to the enquiry. If a patient is woken up there is an assessment of response by eyes, verbal and motor. She indicated that is part of taking a full set of vital signs. One can see on the Ambulance Call Report the five times that this full set of 'vitals' was taken before arriving at Sunnybrook.

[36] S.S.'s utterances, as recorded in Ambulance Call Report are set out below. I have underlined anything in quotes and things that appear to paraphrase suggested utterances.

• Incident History Section

o Pt [patient] initially reported the vehicle was travelling 120 km/hour

o pt initially stated [he/she] had drank "a lot" enroute and then stated it was 4 drinks at a house but unable to recall (beer vs liquor)

o pt denied drug use

o Pt states [he/she] does have a speech impediment and feels like [he/she] is talking normally.

• Physical Exam Section

o Pt had a loc [loss of consciousness] for unknown amount of time with no recall of events

• From page 2, time 23:59:58: Notes: pt sleepy, able to rouse easily, unclear of events unable to recall

[37] The Ambulance Call Report also contains Ms. Lemcke's observations about S.S:

• Incident History

o pt initially confused but able to follow commands with no particular complaints.

o Pt c/o [complaints of] of general head pain rated at 7/10 denies dizziness

• Physical Exam

o No obvious smell of alcohol present when in conversation.

o Pt has no sob [shortness of breath] and is speaking well.

o Injuries noted: abrasion and scrape around left eye; an obvious injury to [his/her] left clavicle with deformity bruising and tenderness

• Timed Notes

o 23:28 (i.e., still in motor vehicle) pt responding well still confused and pt restrained in driver seat of vehicle responding well but appears drowsy

o 00:04:07 - still drowsy easily roused

[38] Ms. Lemcke does not know how she got information about S.S.'s name, address and date of birth.

[39] There is one additional entry of note, on page 2 under Remarks:

4293 prpd [Peel Regional Police Department] rights have been read refused lawyer initially stated drank a lot then staed [stated] 4 unsure beer or liquor, line above.

[40] Ms. Lemcke testified that the part about drinking was not a new or additional statement, but rather it was a summary of what was recorded above.

[41] Ms. Lemcke testified that the police officer with this badge number had given rights to counsel, and given the way this is recorded, to her it means that this was before the ambulance left the scene. (Transcript: January 21, 2022, p.35, L15 – p. 36 L2 and p. 48. L.2-7)

[42] The Ambulance Call Report does not show how long S.S was in the ambulance prior to leaving the scene. For some perspective, I note that:

• 23:36 – he was extricated and put on a stretcher,

• 23:45:46 – vitals taken, presumably in ambulance,

• 23:50 – depart scene.

[43] Ms. Lemcke rejected the idea that an officer could have followed in a cruiser because "when somebody is under apprehension, based on our guidelines, we always take an officer with us." (Transcript: January 21, 2022, p. 39, L 23-24)

[44] Ms. Lemcke testified that, in circumstances of a serious motor vehicle accident involving serious injuries where someone was not in custody, they always ask for an officer to be onboard and this usually happens. She once again distinguished this case from the non-custody scenario: "No, I would say like you would have to come with me in this, in this case, yes." (Transcript: January 21, 2022, p. 40, L.21-22)

[45] Ms. Lemcke acknowledged that the Ambulance Call Report states at the top that it is confidential when completed. She also acknowledged the importance of having a patient feel like they can provide private information to health care professionals and that paramedics are bound by The Personal Health Information Protection Act.

II. P.C. Sagl

P.C. Sagl - Version #1 Continued

[46] Officer Sagl testified that she sat in the back of the ambulance. There were two paramedics in the back as well. She watched and listened as a paramedic dealt with [S.S.].

[47] P.C. Sagl testified about her observations: These were:

• the accused appeared to be going in and out of consciousness

• he/she appeared to be in a lot of pain

• She agreed in cross-examination that she had a notation of "driver is awake, but does not look with it, [he’s/she’s] very confused." She testified that she characterized this as being disoriented.

• She also agreed that she noted that he/she didn't seem to realize what had happened

• He/She appeared to be 20-25 years old

• He/She responded clearly to questions asked by the paramedic

[48] Regarding the questions and answers between the paramedic and S.S., P.C. Sagl’s testimony, in cross-examination, regarding her notes was:

• no questions were recorded;

• not all answers were recorded; and

• she wrote the ones [answers] that she believed were towards the investigation.

[49] P.C. Sagl testified about her notes, regarding what S.S said:

A. … And at this time I overhear the accused telling the paramedics that [he/she] had been drinking and was travelling approximately 100 to 120 kilometers an hour.

(Transcript January 19, 2022, p.25, L. 17-19)

[50] This answer was clarified in cross-examination, after a discussion about the notes not being verbatim,

Q. …Okay. And what you said in your notes was that, "[he/she] admitted to drinking plus was prob travelling 100 to 120 kilometres an hour"?

A. Yes.

Q. So when you say "prob", you mean probably.

A. Yes.

Q. Okay. So in-chief I think you said, [he/she] said[he/she] was going 100 to 120, I just want to clear that up because.

A. Possibly.

Q. Possibly?

A. Probably is what [he/she] is saying. Probably - prob means probably. My apologies.

(Transcript January 19, 2022, p.66 L20-31)

[51] Additional clarifications in cross-examination were:

Q. Your observations of [him/her] in the ambulance, on … your page 134, you make notes of while [he’s/she’s] in the ambulance [he’s/she’s] advising of pain. [He/She] appears to have a speech impediment?

A. [He/She] advised that [he/she] has a speech impediment.

(Transcript January 19, 2022, p. 64, L30 - p. 65, L3.)

[52] Further clarifications in cross-examination were:

Q. And what you heard is the [male/female] said approximately four drinks and could not remember being in a car accident?

A. That's correct.

Q. Okay. Was that al (sic) one sentence or was that in two sentences?

A. I don't recall.

Q. So there could have been things in between those two things about not being in a car - not remember being in a car accident and the drinking?

A. Possibly, yes.

Q. Or it could have been a gap in time?

A. Perhaps.

Q. There could've been other questions that were asked?

A. Perhaps.

Q. You could have missed words in both sentences?

A. Perhaps.

(Transcript January 19, 2022, p. 67, L.11-28)

[53] In examination-in-chief, after listing these utterances there were the following questions and answers.

Q. What happens, what happens after you overhear the - these utterances by the, by the individual in the, in the ambulance?

A. I believed that [he/she] had been driving impaired, and I waited until they were done to be able to talk to [him/her] and place [him/her] in custody at that time.

Q. And when you say in custody do you mean an arrest or…

A. Under arrest.

(Transcript January 19, 2022, pg. 28, L. 6-15)

[54] P.C. Sagl testified that the arrest was at midnight. She did rights to counsel and the breath demand at 12:02. Thereafter she gave a blood sample demand.

[55] Then in examination-in-chief there is the following:

Q. Did you make any observations while you were reading rights to counsel.

A. Yes. While I was reading my rights to counsel I had to get fairly close to [him/her], so at that time I was able to smell an odour of alcohol on [his/her] breath."

(Transcript January 19, 2022, P.32 L27 - p. 33, L1)

P.C. Sagl - Version #2

[56] There was significant cross-examination about P.C. Sagl's knowledge and any accompanying grounds for arrest/demand she may have had by the time she entered the ambulance. (Note: this section is all cross-examination unless otherwise noted.)

[57] P.C. Sagl testified she had some of her own grounds at the point she was directed by Acting Sgt. Byford to go on the ambulance. She agreed these were related to the possibility of speeding, the alcohol bottle and advise from Acting Sgt. Byford of possible impairment. (Transcript January 19, 2022, p. 51, L24 to p. 52, L11)

[58] Then she agreed to, or said, the following:

• She was told by Officer Byford that he believed that the accused was impaired (Transcript January 19, 2022, p. 54, L. 13-15)

• She knew of and was participating in a criminal investigation before getting into the ambulance (Transcript January 19, 2022, p. 54, L.29 - p. 55, L3)

• Officer Byford told her, prior to her getting into the ambulance, that she was to place the [male/female] in custody. (Transcript January 19, 2022, p. 57, L8-12)

• She has a notebook notation that reads "Officer Byford said to place the [male/female] I/C [in custody]" (Transcript January 19, 2022, p. 56 28-30)

• She planned to put [him/her] in custody as soon as she had the opportunity to speak to [him/her] in the ambulance (Transcript January 19, 2022, p.57, L19-20)

• She would not have let [him/her] leave (Transcript January 19, 2022, p.58, L19-23)

[59] At the end of this line of questioning there is the following:

Q. …as you've talked to my friend what in custody means to you is you were going to arrest that [male/female]?

A. Yes, I'm sorry , yes.

Q. Okay. So then it's fair to say that you had the grounds to place S.S. under arrest…

A. Yes.

Q. ...prior to getting into that ambulance, that's what you are saying?

A. Yes.

Q. Okay. In other words, you did not need any statement that allegedly S.S. made to a paramedic…

A. No, I didn't.

Q. … in order to form your grounds?

A. No.

(Transcript January 19, 2022, pg. 57, L26 to p. 58, L.9)

[60] P.C. Sagl resisted the suggestion that she was in the back of the ambulance to investigate.

[61] In re-examination P.C. Sagl indicated:

A I got into the ambulance because we had a criminal offence, I'm sorry, but I wasn't investigating [him/her] and questioning [him/her] at this time.

(Transcript January 19, 2022, p. 99, L. 14-16)

P.C. Sagl - Version #3

[62] P.C. Sagl was cross-examined about a phone conversation between her and Cst. Cutler at 3:03 a.m. Cst. Cutler was the Officer in Charge. P.C Sagl did not recall the phone call, nor did she adopt any of the content as being true, with a minor exception that would be consistent with her testimony in court.

[63] Specifically, she was confronted with having said: (Transcript January 19, 2022, p. 94- 95)

• She had approached S.S., by the driver’s seat of the vehicle and that he was still in the vehicle, and that this was before [he/she] was extricated by the fire people at the scene

• She was told by paramedics that they suspected that S.S. was drinking

• She entered the ambulance and she spoke to S.S. and that she could detect an odour of alcohol on [his/her] breath.

o Sagl's response in court: Yes, this happened but during rights to counsel only

• She heard S.S. talking to the paramedics about having consumed four alcohol drinks, and it was after that that she had formed the grounds to believe that [he/she] was impaired.

• Her grounds to place [him/her] under arrest occurred at 12 a.m.

III. Cst. Cutler

[64] Cst. Cutler testified, and his testimony confirmed the above suggestions regarding P.C. Sagl's statement to him. His testimony about her statement differed from the suggestions above in only two ways: 1) she said "by alcohol" after impaired, in her grounds; and 2) she said when she got to scene the passenger was lying on the ground by the car. (Transcript January 2, 20/22, p. 34)

[65] I note that this conversation was approximately one minute before P.C. Sagl began to give her grounds to the breath tech.

[66] I note that the last two points in the list above are consistent with Version 1 of her testimony. Everything else amounts to a prior inconsistent statement when compared to her testimony.

IV. P.C. Sagl - Continued

P.C. Sagl - Version #4

[67] P.C. Sagl was cross-examined about the grounds she gave to the Qualified Breath Technician, P.C. Alszegi, at the hospital. P.C. Sagl recalls that she gave her grounds, but otherwise she did not recall what was said, and once again she did not adopt any of the content of the suggested statement as being true, with a couple of minor exceptions that would be consistent with her testimony in court. Those responses are noted below.

[68] Specifically, she was confronted with having told P.C. Alszegi the following: (Transcript January 19, 2022, pages 95-98)

• On arriving at the accident, she walked to the driver side of the vehicle, and she observed the [male/female] in the driver's seat.

• S.S. was conscious and [he/she] was seated in the driver's seat

• Fire had to attend to get [him/her] out and extricate [him/her] from the vehicle

• The vehicle was severely damaged and in pieces all over the roadway

o Sagl's response: her answer was limited to agreeing that the vehicle was severely damaged

• The accused, the [male/female], was extricated from the vehicle and [he/she] was put into the back of the ambulance

• She observed a plastic bag with empty bottles of alcohol near the crash

• She attempted to get the ID from the [male/female]

• S.S. was quiet and hard to understand

o Sagl's response: yes, this description is in her notes, but she has no memory of saying this to the breath tech

• She had to lean close to understand what S.S. was saying

o Sagl's response: yes, this is in her notes, but she has no memory of saying it to breath tech

• She detected a strong odour of alcohol on the [male's/female’s] breath when she was leaning in close

o Sagl's response: I did but I don't recall the conversation [with breath tech]

• The [male/female] spoke slow and slurred [his/her] words and [he/she] appeared to be confused

• She formed the opinion that S.S. was impaired by alcohol, and she advised the [male/female] that [he/she] was in custody for impaired causing death.

o Sagl's response: It is in her notes, but she does not recall the conversation [with breath tech]

[69] Further, she was confronted with the suggestion that she did not tell P.C. Alszegi about overhearing the Defendant speaking to the paramedics about the speed or consuming four drinks. P.C. Sagl did not recall.

At Sunnybrook

I. P.C. Sagl

[70] P.C. Sagl indicated that they arrived at Sunnybrook Hospital at 12:12 a.m.

[71] P.C. Sagl testified to the following sequence of events:

• she was behind a partition

• 12:21 the first sample of blood work was taken by hospital staff

• she was approached by the charge nurse and given details about the S.S.'s name, address and date of birth.

• She realized then that S.S. was 17, and that she should give [him/her] rights again

• 12:29 a second blood sample was taken

• 12:34 she spoke to a doctor who advised that the S.S. was stable, and [his/her] injuries were non-life threatening

• 12:37 P.C. Adhya arrived. She advised him of the accused being in custody for impaired cause death.

• 12:51 she and S.S. move to the CT Scan room.

• 1:01 - 1:20 she worked on 'out of sequence' notes relating back to the scene

• 1:22 - she and S.S. return to the trauma room.

• Upon return she went through the Young Offender right to counsel and caution. There were two parts, and the times were 1:26 and 1:27. (i.e., approximately one and a half hours post arrest)

• Then she began asking S.S. questions about who the passenger was

• 2:14 they went to the X-ray room.

• 2:23 they returned to the trauma room and S.S. asked to speak to Duty Counsel

• 2:43 P.C. Sagl called Duty Counsel and at 2:46 she left a message for Duty Counsel

• 2:50 Duty Counsel called back, and S.S. was put on the phone

• 3:02 P.C. Sagl’s start time for her grounds to the Breath Tech

• 3:06 S.S. off of phone

• 3:46 P.C. Sagl transferred custody to the Qualified Breath Technician, P.C. Alszegi

• 4:25 custody of S.S. was returned to P.C. Sagl

• 4:36 P.C. Sagl was informed by the breath tech that the S.S. will not be charged with Impaired Cause Death and will be charged with Criminal Negligence cause death

• 4:55 P.C Sagl tells the S.S. about the new charge (Note: no rights given)

• 5:11 she served Notice to Parent on S.S's parents who had arrived at the hospital (Note: There is no evidence regarding when they arrived.)

[72] As mentioned, S.S. was questioned right after he/she received his/her Young Offender rights to counsel which incorporated him/her being able to call parents, another adult relative, or if they are not available another adult. S.S. answered in the affirmative regarding understanding at various stages and he/she declined calling a lawyer or one of the three options regarding adults. There was also a primary caution. (Transcript January 10, 2022, pg. 40)

[73] Then P.C. Sagl says she began questioning by asking if he/she recalls who was in the vehicle with him/her. In examination-in-chief, the Crown then moved on to another area and made no attempt to illicit this conversation/questioning.

[74] Cross-examination revealed that P.C. Sagl was with a partner, P.C. Adhya during this time. P.C. Sagl agreed:

• "[Male/female] advises [he/she] doesn't know who was with [him/her] in vehicle." (notebook notation)

• He/she then said a couple of friends and when advised there was one person, he/she could not remember a name.

• He/She also advised that he/she did not remember anyone in the car.

• He/she remembered his/her dog Max was in the car, and

• He/She did not recall anyone else in the car.

• (Transcript January 19,2022, pages 78-79)

[75] Then there is the following exchange in cross-examination:

Q. And, again, when you give [him/her] the, the second rights to counsel, the youth version….you told [S.S.] what [he/she] is being charged with?

A. Yes.

Q. Okay. And so you're charging [him/her] with impaired operation driving cause death?

A. Yes.

Q. And, and what you're seeing is that [he's/she’s] still not comprehending that there was even anyone potentially in the car?

A. Correct.

Q. Would that not suggest to you that maybe you should be holding off asking this young person questions?

A. We wanted to try and figure out who the passenger was so that we could continue on with that aspect of the investigation.

(Transcript January 19, 2022, p.79, L.28 - Pg. 80, L. 17.)

II. P.C. Alszegi (Breath Tech)

[76] P.C. Alszegi was the qualified breath technician in this case. He was dispatched at 11:58 p.m. to attend Sunnybrook Hospital. He arrived at Sunnybrook at 12:46 a.m. As he attended the trauma unit, S.S. was wheeled by him on the way to a CT Scan. S.S. was wearing a cervical collar.

[77] At 1:22 a.m., S.S. was wheeled back to the trauma unit. Then P.C. Alszegi spoke to the charge nurse about the fact that blood samples had been taken. He then proceeded to the hospital lab. He placed a seal on a vial that the hospital had already done their work on at 1:46 a.m.

[78] At 2:15 a.m. P.C. Alszegi spoke to P.C. Adhya about S.S.'s injuries. After S.S. returned to the trauma area P.C. Alszegi spoke to a doctor about S.S.'s condition.

[79] P.C. Alszegi then left to retrieve his Intoxilyzer and then at 2:52 a.m. he began setting it up. He left the room two minutes later in order to allow S.S. privacy when speaking to Duty Counsel. During the duty counsel call he spoke to P.C. Sagl about her grounds. He did not say when he returned to the room, but the Intoxilyzer was in ready mode at 3:23 a.m. and he conducted his checks until 3:35. Then he set up a portable camera until 3:46.

[80] P.C. Alszegi spoke to P.C. Sagl about her grounds beginning at 3:02 a.m. This was completed at 3:22 a.m. He testified that he took verbatim notes, the particulars of these grounds are reviewed in paragraph 84 below.

[81] Before giving his account of what P.C. Sagl said, P.C. Alszegi testified: "I received grounds from her which include all of the necessary information for me to continue her investigation and conduct the breath test..." (Transcript January 20, 2022, L.29-3). Later on, P.C. Alszegi shifted this to suggest he formulated his own grounds for a breath demand. The details of this evidence are:

• In examination-in-chief, immediately after P.C. Alszegi detailed P.C. Sagl's grounds there were the following exchanges:

"Q. Based on whatever observations you had made and what Cst. Sagl had told you, did you form any belief of your own with respect to [S.S.]?

A. Yes, I - during my interaction (see note below) with [S.S.] I had - I had myself detected - I had myself detected a slight odour of alcohol coming from [his/her] breath. I observed [his/her] eyes to be bloodshot and I found [his/her] speech to be - I noted it to be fair as it was very ah low tone, very quiet and ah - appeared to be confused state, and [his/her] attitude that I noted was [he/she] was - to me [he/she] seemed indifferent and in a sleepy state."

"Q. So, based on what you saw and what Cst. Sagl told you, did you yourself form any belief?

A. Yes, I believed the impaired operation charge to be accurate and I formed the same opinion…"

(Transcript January 20, 2022, p. 74, L4-19)

• In cross-examination P.C Alszegi asserted he considered the totality of what he had learned to form his grounds. He agreed to the suggestion that the most important items he considered in forming his personal grounds were: a very serious accident; bottles of alcohol; and alcohol on breath. P.C. Alszegi made a point of adding slow and slurred speech as mentioned to him by P.C. Sagl.

(Transcript January 20, 2022, pg. 81 L11-18)

o Note: There is no evidence about what P.C. Alszegi was referring to when he referenced “my interaction” in the first quote above. Given other evidence, the only opportunity for any interaction was between 3:46 and 3:51. Presumably, S.S. was still immobile with a neck brace and laying on the stretcher used to move him/her around.

[82] P.C. Alszegi read the following to S.S.

• 3:51 - the Youth caution and secondary caution

• 3:52 - the breath demand which S.S. understood

[83] S.S. provided two samples of his breath:

• 3:58 a.m. 12 mg of alcohol/100 ml. of blood

• 4:23 a.m. 9 mg of alcohol/100 ml. of blood

[84] Returning to P.C. Sagl's grounds, as recorded by P.C. Alszegi, the following sets out each sentence individually. After each of these sentences I have added comments about how the sentence compares to P.C. Sagl's testimony. I have also included comments about the narrative established by her report to P.C. Alszegi compared to the narratives given in evidence.

• This was a single motor vehicle incident

o This is consistent with her testimony.

• Both the driver and the passenger were unconscious inside the vehicle.

o This was not part of her testimony in terms of what she saw or was told on the radio call.

o She testified that the information provided on the radio call was: "That it is a single vehicle collision and the vehicle had been in the ditch."

o She did not testify that she saw the driver unconscious in the vehicle.

o She did not testify that she saw the passenger in the vehicle.

• A witness said they saw smoke at the crash site, however, did not actually witness the accident happen

o This was not part of her testimony.

o In her testimony there is no mention of speaking to any witness.

o This also does not match her description of the radio call either.

• Once she arrived on scene, both fire and ambulance crew were already present

o This matches her testimony.

• They were conducting CPR on the passenger who at this time was on the ground beside the passenger door of the vehicle.

o This was part of her testimony, although the location was not mentioned.

• She walked over to the driver's side of this vehicle.

o This was not part of her testimony.

o She testified "I did not walk down towards the vehicle". Further she testified "I did not go towards where everyone was located just because paramedics and fire were working on the scene." (Transcript January 20, 2022, p.22 L. 11-13.) (emphasis added)

o In her testimony she also outlined what she did do i.e., she taped off the road to traffic. This evidence places her at a significant distance and elevation from the driver.

• She observed S.S. in the driver's seat.

o This was not part of her testimony and cannot be reconciled with her testimony about not going down to the vehicle.

• She made note that S.S. appeared to be conscious and fire crew was attempting to get him out of the vehicle.

o As per above, her evidence does not support the suggestion that she was close enough to evaluate S.S.'s consciousness while he/she was still in the car.

o Her testimony, as noted above, is that she did see the fire department working on scene, but she stayed away from this activity.

• The vehicle was severely damaged with pieces of the vehicle all over the roadway.

o This was part of her testimony.

• Once S.S. was extracted out of the vehicle, he/she was placed in the back of an ambulance to get to the medical help as well.

o This statement is vague as to whether she saw this, or whether she deduced this, but it is basically consistent with her testimony.

• At this time, she observed a clear plastic bag with empty bottles of alcohol near the crash site which she believed to be from the subject vehicle

o This description is inconsistent with her evidence which was that she saw a black knapsack, that contained a bottle of liquor with a lid on it. The existence of this black knapsack was confirmed by Acting Sgt. Byford and photographs. There is no evidence from any officer (on the trial or the voir dire) or the photographs, of any type of plastic bag containing empty bottles of alcohol.

• After this she went to the ambulance, and she attempted to get ID from S.S.

o She did not say this in her testimony. Further, she did not testify about ever trying to get ID from S.S., or ever asking him/her for his/her name etc. Her testimony was that she got this from the charge nurse at the hospital.

o Further, this assertion, plus the narrative proceeding it, leaves the impression that P.C. Sagl decided to take on the task of investigating S.S., in the natural course of following up on what she had observed about S.S., and the scene prior to S.S. being in the ambulance.

o In contrast, her testimony was that she went to the ambulance because she was directed to by Acting Sgt. Byford.

o Also, she did not mention the 2nd version of her testimony to P.C. Alszegi, i.e., to the effect that Acting Sgt. Byford directed her to put S.S. in custody.

• S.S. was very quiet and hard to understand and that she had to lean close in order to hear him/her.

o If one follows the narrative of these grounds, then this is when she was allegedly trying to get S.S.'s ID i.e., before arrest. In contrast her testimony is that she had to lean in close to him/her during the rights to counsel post arrest.

o She testified in court that she had to get close to hear, but she did not describe any issues about finding him/her hard to understand and further asserted he/she understood all of rights to counsel, cautions and the demand and she had no difficulty recording his/her answers.

• At this particular time is when she detected a strong odour of alcohol coming from his/her breath.

o The timing suggested in this narrative to P.C. Alszegi is that of this was prior to arrest. This is different from her testimony which places this observation as being post arrest, during rights to counsel.

o She did not use the adjective ‘strong’ in her testimony.

• His/her speech was slow and slurred

o This alleged observation was not part of her testimony.

o Further, she testified that she overhead S.S. tell the paramedic that he/she had a speech impediment. (The fact that S.S. told the paramedic this is confirmed in the Ambulance Call Report.)

o The combination of these two points taken together is very impactful because it amounted to adding a common indicia of impairment i.e., slurring, along with omitting S.S.'s comment about having a speech impediment.

• He appeared to be very confused.

o This comment made to P.C. Alszegi was in the context of grounds formed prior to arrest. In her testimony P.C Sagl did describe S.S. as going in and out of consciousness, but she did not describe him/her as being confused in his/her dealings with her or the paramedic.

o In her testimony she asserted he/she understood and gave appropriate responses to both the paramedic and her.

o She did not testify about any other actions or words prior to arrest at all, much less any that showed confusion. The only thing that was close was that S.S. said he/she could not remember the accident.

• She advised S.S. that he/she is in custody for impaired operation cause death

o This matches her testimony.

• She advised that the time of the arrest was 12:00 midnight.

o This matches her testimony.

[85] There are other things, that P.C. Sagl testified about, that were not mentioned to P.C. Alszegi. This includes: any of the utterances in the ambulance (i.e., re: consumption of alcohol, speed and speech impediment); Acting Sgt. Byford; Acting Sgt. Byford’s directions: the black knapsack with a closed bottle of liquor.

Production Order and Search Warrant

I. General

[86] Detective Constable Davis worked out of the Major Collision Bureau of Peel Regional Police.

[87] Det. Cst. Davis attended the scene at 12:30 a.m. on November 5, 2019. When he testified, he was not asked about his observations of the scene.

[88] On November 6, 2019, Det. Cst. Davis made an application for a Search Warrant for S.S.'s blood sample at Sunnybrook Hospital and for a Production Order for all medical records regarding S.S. at Sunnybrook Hospital. Det. Cst. Davis was the affiant on each Information to Obtain (ITO). He received both a Search Warrant and a Production Order later on the 6th. Thereafter, on November 7th, he attended at Sunnybrook with the orders and received records, which are Exhibit C in these proceedings, and vial of blood. He then delivered the blood, along with the medical records, to the Centre for Forensic Sciences.

[89] Exhibit C is a lab report. I do not know what, if anything, happened regarding the execution of the Production Order vis-à-vis other hospital records.

[90] P.C. Davis did not prepare and file a Report to Justice after the execution of the search warrant. The Court's warrant file was retrieved by Court Services during the hearing. The court file did not include any Report to Justice.

II. Cross-examination on affidavit

[91] I granted leave for the Applicant to cross-examine P.C. Davis on the ITOs.

[92] At the time I granted leave, I also raised concerns about the ITOs. These concerns were:

• In both instances a standard form was used that referred to Appendices. Documents with titles Appendix A, B, and C. were not commissioned as being an Appendix to the form.

• On the form entitled Information to Obtain a Production Order, Appendix B is not filled in anywhere and the jurat is incomplete as it does not have the date or the place where sworn.

[93] I also noted that Appendix C in both instances was separately sworn.

[94] As a result of my observations, before cross-examination the Crown was given an opportunity to ask Det. Cst. Davis about the documents. I will not review this evidence. In the end, I was sufficiently satisfied that these were the documents that Det. Cst. Davis had when he appeared before the Commissioner of Oaths. That being said, I do not condone the carelessness exhibited prior to submission to the Justice of the Peace.

[95] In the ITOs, Exhibit "C" is where Det. P.C. Davis set out his grounds. The first 5 pages plus the first 4 lines on page 6 of each ITO are exactly the same as the other. Paragraph numbering does not begin immediately, so another way of expressing this is that up to the end of paragraph 6 the documents are the same. Therefore, the cross-examination on one document applies to the other.

'Background' pg. 2 of ITO

[96] Cross-examination revealed one part of the 'Background' section was inaccurate when it stated that S.S. was "conscious and alert and exhibiting signs of impairment, therefore [he/she] was placed under arrest…" The inaccuracy was shown by the fact that Det. Cst. Davis testified that he did not speak to P.C. Sagl, that he used her notes only, and it is apparent from paragraph 5 of the ITO, where Det. Cst. Davis summarized P.C. Sagl's notes, that the ‘background’ does not match the notes.

[97] This led to evidence that basically suggests that Det. Cst. Davis did not see a need to be precise in the 'Background' section and/or thought his grounds started after the 'Background' section.

"A. Yes sir, However, the background isn't necessarily also chronological. I attempt a background brief snapshot of the story that I'm about to tell. And then paragraph 1, basically, is where the story starts. (Transcript Jan 25/22 p. 35 L. 18-21.)

"A. The, the background is just a summary. It's paraphrasing. And that wasn't, it's a general sourcing of the information that I've reviewed. I won't say that the background was a direct correlation of Officer Sagl's notes." (Transcript Jan 25/22, P. 47, L18-22.)

[98] It also appears P.C. Davis also took some liberties in the 'Background' section regarding his own observations. The “Background’ says, "high rate of speed" and "violently struck two trees" whereas in paragraph 2 where he gives his observations he indicated "speed was a factor" and "struck two trees."

The Backpack

[99] Cross-examination also focused on paragraph 2(d) of P.C. Davis' observations: "There was a backpack containing an open container of alcohol located in close proximity to the vehicle." It was pointed out he used a narrow selection of a single photograph of the backpack (i.e., close up only, where one cannot discern a location.) He was directed to other photos showing the location of the backpack. Det. Cst. Davis agreed that using these photos he would be unable to say where in the car the backpack may have come from. Also, he is unable to say the bottle was open in the car.

Use of Officer Notes

[100] P.C. Davis identified the notes of P.C. Sagl and P.C. Alszegi as being the ones he reviewed, and they were marked as exhibits on the hearing.

[101] Cross-examination revealed that P.C. Sagl's notes were not fully summarized with a focus on three places where S.S.'s problems with recalling the event are mentioned, but none of them are included in the ITO.

[102] P.C. Davis acknowledged an inconsistency between P.C. Sagl's notes and P.C. Alszegi's notes about what P.C. Sagl said. This was not reflected in the ITO. In re-examination he said he prefers to use an officer's own notes whenever possible.

Things not mentioned.

[103] He was cross-examined about the fact he made no mention of road, weather, or lighting conditions.

Degree of belief

[104] Det. Cst. Davis was cross-examined with the suggestion that he had a suspicion of an offence only. P.C. Davis strongly disagreed and stated he had strong reasonable grounds that an offence had been committed and in retrospect he may have worded his conclusion in the document differently.

Expert Evidence

[105] Dr. Mayers was qualified, on consent, as a forensic toxicologist in four different areas. As part of his evidence, he adopted two reports that he authored. These were made Exhibits 7 and 8. With the benefit of hindsight, given the application to exclude this evidence as a result of the S. 8 application these should have been made lettered exhibits on the voir dire.

[106] Dr. Mayers received the blood sample that the police delivered from Sunnybrook. He relied upon a time marked on the vial for the time the sample was taken i.e., 12:27. He analyzed the serum and gave an opinion that the equivalent blood alcohol in the sample was 86 mg. of alcohol in 100 ml. of blood.

[107] In addition, the Crown referred Dr. Mayers to the Sunnybrook records. Dr. Mayers did not take any responsibility for these records. They were marked as Exhibit ‘C’ for identification purposes only.

[108] Part of what was elicited from Dr. Mayers in examination-in-chief was that his interpretation of the Sunnybrook lab report would suggest that the hospital had a similar time for the sample and by using a conversion equation he would say the hospital results were in close agreement with his results.

[109] Dr. Mayers, however, was very clear that he did not rely upon these records in any way in coming to his opinion about the timing of the blood sample or the results of the his analyses of the blood sample. He vouched for his own analyses as being accurate and reliable and he was careful to not comment on how the hospital did its analyses.

[110] Dr. Mayers based upon a) a time of driving of 11:14 p.m., b) his lab results, and c) four assumptions, gave opinion evidence of a blood alcohol level within a range of 86 to 111 mg of alcohol in100 ml. of blood, at 11:14 p.m.

[111] In cross-examination this was adjusted to a range of 79 to 96 mg. of alcohol in 100 ml. of blood.

[112] Dr. Mayers was examined and cross-examined about the four assumptions involved. The most significant of these was his assumption of: ‘No large consumption of alcoholic beverages just prior to the incident’.

[113] Dr. Mayers was unable to do a ‘read back’ to the time of the incident using the Intoxilizer results, as the results were too low.

[114] Dr. Mayers was asked by the Crown to give opinion evidence about impairment using blood alcohol levels.

[115] There were many questions and answers in-chief and in cross–examination about the meaning of impairment in the driving context.

[116] It was Dr. Mayer’s opinion that a person’s ability to operate a motor vehicle would be impaired at 50 mg. of alcohol in 100 ml. of blood. This is also a consensus opinion at the Centre of Forensic Sciences (CFS) and this common standard opinion is included in every report of this nature. He acknowledged that he has encountered other opinions on this front, and these were covered in cross-examination.

[117] In examination-in-chief Dr. Mayers gave the following opinion: Transcript Jan. 24/22, P. 31, L11-13

All I can say is, in my opinion, an individual would be impaired within my projected blood alcohol concentration ranges.

[118] Dr. Mayers was cross-examined about this, culminating in the following: Transcript Jan 24/22 p. 71, L13 to p. 72, L3.

Q. Alright … Dr. Mayers, I’m just showing you the title of a case called Her Majesty the Queen and Daniel Ballantine, forwarded by the Court of Appeal. Do you see that before you?

A. I do. Thank you, sir.

Q. I’m just going to take you down to, to paragraph four, where the Court of Appeal attributes an opinion to you and I’m going to just show you – it’s highlighted here. The part I’m going to read to you saying:

Based on a number of assumptions, he – that would you – projected that the BAC at 8:30 to 8:45 was between 80 and 140 milligrams of alcohol and 100 milliliters of blood. His opinion was that a person would be impaired at this blood alcohol level. Indeed, in his opinion, individuals who have what I’ll call levels of 50 milligrams and greater have an aspect of their ability to operate a motor vehicle impaired. However, he was clear that absent individual testing of the appellant’s reaction to alcohol, he could not specifically say that the appellant was impaired.

Do you agree with the opinion that’s attributed to you?

A. Yes, It’s the same opinion I’ve just expressed for this court.

ANALYSES

Charter Section 8 - The breath demands

I. Overview and Issues

[119] S.S. provided two samples of his/her breath. The first sample was at 3:58 a.m. with a result of 12 mg. of alcohol/100ml. of blood. The second was at 4:23 a.m. and the result was 9 mg. of alcohol/100 ml. of blood.

[120] S.S. alleges that the taking of these samples infringed his/her s. 8 Charter right. Section 8 provides:

Everyone has the right to be secure against unreasonable search or seizure.

[121] The breath samples were provided pursuant to two breath demands using the standard wording. The first demand was made by the arresting officer, P.C. Sagl, at 12:02 a.m. The qualified breath technician, P.C. Alszegi, made a demand at 3:52 a.m.

[122] The taking of breath samples is a warrantless search. Warrantless searches are presumptively unreasonable. The Crown bears the onus of rebutting the presumption by establishing that the search was authorized by law.

[123] There are two separate alleged breaches to be determined regarding the alleged S.8 breach associated with the breath demands. They are:

(1) Was there a separate, preliminary, unreasonable search or seizure prior to P.C. Sagl’s 12:02 a.m. demand, when P.C. Sagl listened in on S.S.'s exchange with paramedic Lemcke, and kept a partial record of S.S.'s utterances?

(2) With both demands, i.e., Sagl's and Alszegi's, has the Crown shown that the officers had the reasonable grounds necessary for making a breath demand.

[124] The Applicant’s position is that: 1) there was an unreasonable search or seizure when P.C. Sagl listened in; 2) the results of this allegedly unreasonable search should not be considered as part of P.C. Sagl’s grounds for her demand; 3) regardless of the outcome on points 1 & 2, that the Crown has not met its onus of showing that either P.C. Sagl’s or P.C. Alszegi’s demands were authorized by law. (Note: it is also the Applicant’s position the utterances overheard during the alleged unreasonable search or seizure in point 1, should be excluded from the trial. This is dealt with later under s. 24(2)).

[125] The Crown's position is that: 1) there was no search or seizure when P.C. Sagl listened in; 2) the arresting officer's demand is irrelevant, and that the qualified breath technician's demand is a lawful, independent freestanding demand; and 3) that in any event, the arresting officer's demand was lawful.

II. Analytical framework re: unreasonable search or seizure issue re: utterances

[126] The analytical framework that I used below, with respect to this issue was to ask and answer the following questions.

[127] The questions are:

(1) Was there a search or seizure?

(a) Has the applicant met the "totality of the circumstances" test in light of the answers to the following:

(i) What is the subject matter of the search?

(ii) Did S.S. have a direct interest in the subject matter?

(iii) Did S.S. have a subjective expectation of privacy?

(iv) Was S.S.'s subjective expectation of privacy objectively reasonable?

(2) If yes to #1 (i.e., there was a search or seizure), was it unreasonable?

(a) Given that a warrantless search is presumptively unreasonable, has the Crown rebutted the presumption by establishing that the search was authorized by law.

III. Analytical framework re: grounds for the breath demands

[128] The taking of a breath sample is a warrantless search and as such is presumptively unreasonable unless the Crown can rebut the presumption by establishing the search was authorized by law, and in this instance, this can be done by evidence that the relevant police officers had reasonable grounds for a breath demand under S. 320.28(1) of the Criminal Code, R.S.C., 1985, c. C-46.

320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person's ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), [i.e., 80 and over] the peace officer may, by demand made as soon as practicable (a) require the person to provide, as soon as practicable, (i) the samples of breath that, ..."

[129] Before getting into the details about these grounds it is important to remember what said about these grounds in the context of s.8 of the Charter, in R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51:

The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms. [Note: s.254(3) was the section for a breath demand in force at the time]

(emphasis added)

[130] It is important to recognize this dual role because in any given case of impaired operation, S. 320.28(1) may be relevant as a statutory requirement for demand or a constitutional requirement for the demand, or both, depending upon the issues.

[131] When one is dealing with S. 320.28(1) as a section 8 constitutional requirement, the Crown, in order to rebut the presumption of the warrantless search being unreasonable, needs to satisfy the following two-part test: Bernshaw, at para 48:

The existence of reasonable and probable grounds entails both an objective and a subjective component. That is, s.254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief.

(emphasis added)

[132] Based on above, the following questions are utilized in my analyses below:

• Did the Officer, at the time indicated, have an honest belief that S.S. had committed the offence of operating a conveyance while his/her ability to operate it was impaired to any degree, by alcohol?

• Objectively, were there reasonable grounds for the Officer’s stated belief?

[133] When answering these questions, one needs to be mindful of the following:

• It is the totality of the circumstances that are considered in determining whether an officer had reasonable grounds to make the breath demand. (i.e., reasonable grounds to believe S.S. had committed the offence of impaired operation)

• One needs to decide where, along a scale, did an officer's belief lie. Moving from the bottom to the top, the scale is:

o Mere suspicion or a generalized suspicion about the requisite offence

o Reasonable grounds to suspect the requisite offence occurred (i.e., on the totality of the circumstances a reasonable possibility)

o Reasonable grounds to believe the requisite offence occurred (i.e. on the totality of the circumstances a reasonable probability)

[134] As outlined above, the breath demand pursuant to s. 320.28(1) requires that the reasonable grounds to believe standard be met.

[135] In this is case, one of the critical decisions in the analyses is the determination of which officer, or officers, must the Crown show had grounds (subjectively and objectively) regarding any given breath demand, in order for that demand to be lawful. This issue arises in two instances in this case.

[136] It arises most clearly in the Crown's position with regard to the qualified breath technician's grounds. In the Crown Response, at paragraph 6, the Crown states the following:

It should be noted that the arresting officer's [P.C. Sagl's] breath and blood demands are irrelevant to this case. Since neither demand resulted in a sample being taken, there was no search to result in a S. 8 breach. The qualified technician's [P.C. Alszegi's] demand was an independent freestanding demand.

[137] As I understand the Crown’s position, he is submitting that: P.C. Alszegi received P.C. Sagl's grounds for her demand; he adopted them and combined them with a couple of his own observations; and then, based on all of this, he formed his grounds for the breath demand that he made.

[138] Then, the Crown submits that P.C. Sagl's demand becomes irrelevant, and the court need only determine if P.C. Alszegi's grounds meet the subjective and objective test regarding s. S. 320.28(1).

[139] Inherent in this argument is the assertion that not only does P.C. Sagl's demand become irrelevant, but that P.C. Sagl's grounds for her demand, as given to P.C. Alszegi, also become irrelevant. This leads to an assertion that P.C. Sagl's grounds need not, and indeed should not, be something that the Crown needs to show were lawful (subjectively and objectively) as part of showing that P.C. Alszegi's demand was lawful.

[140] As authority for this proposition the Crown relies on R. v. Guenter, 2016 ONCA 572, at paras. 64-94. In that case there was no demand at the scene, in circumstances where the arresting officer completely forgot to do it. The arresting officer relayed her grounds for a demand to the breath tech as per standard practice. The breath tech testified that based on this, he had sufficient grounds to proceed, and he gave rights to counsel, and made a breath demand. The issue was if the demand was made as soon as practicable, given the relevant section at the time. The finding, was that the requirement had been met, given the circumstances. Inherent in this finding was that the qualified breath technician could formulate grounds for a demand based on the arresting officer's grounds, even where there was no demand.

[141] In my view Guenter speaks only to the statutory requirements of s. 320.28(1). Guenter does not factually or legally speak to the section 8 constitutional requirement of S. 320.28(1).

[142] Further, I believe that the procedural and the constitutional requirements are separate requirements and that they should not be conflated.

[143] Leaving aside the particulars of this case, I find that in a scenario where there is one demand by the arresting officer, followed by a second demand by another officer, where the second officer incorporates the first officer's grounds, in whole, or in part, into his/her grounds, the first officer's grounds do not become irrelevant, and must be included as part of the section 8 analyses.

[144] This decision is based, in a general sense, on the premise that section 8 is about the state's interference with an individual. There is one state, and, in this instance, there is one police service acting on behalf of the state. This is not an issue about individual police officers.

[145] A breath demand is a state/police action that is continuing in its nature until there is a sample, or a refusal, or rarely there is abandonment of any attempt to take the sample by the police.

[146] Along the way, from the first demand to the taking of the sample, there is no automatic switch off, and switch back on, of a defendant's section 8 rights, just because a second demand is made.

[147] I believe that the Crown may be proposing that the second demand is a 'fresh start' situation for the second officer. In my view, this depends upon the circumstances and the decision about whether it is, is a judicial decision. The act of a second officer giving an additional demand cannot be a substitute for a judicial decision about any proposed 'fresh start.' Further, the second demand cannot shield the evidence about the grounds for the first demand from consideration, in deciding this issue.

[148] Given the above, the preliminary question used in the analytical framework regarding grounds for the breath demands issue is: Based on the testimony of an officer issuing a demand to S.S., which police officer, or police officers, are identified as having grounds for a breath demand?

IV. P.C. Sagl's evidence - general comments

[149] P.C. Sagl was the arresting officer. Her evidence is very difficult to manage, given that, over time, she gave four different narratives about how she carried out her duties on November 4 and 5.

[150] Two versions of her narrative were given in her court testimony. Further, she provided a statement to two separate officers. Each of these statements are inconsistent with either version of her testimony and are also inconsistent with each other. Each of the four versions provides a different, internally consistent, narrative about how her investigation unfolded. The details varied according to which narrative they were attached to.

[151] With regard to the prior inconsistent statements to the Officer in Charge, P.C. Cutler, and to the qualified breath technician, P.C. Alszegi, I find that: 1) each of these officers were honest, reliable witnesses; 2) the conversations did take place; and 3) that these officers accurately recorded what P.C. Sagl said to them.

[152] In the review of evidence above, I gave P.C. Sagl's narratives numbers. The numbers were determined by the order in which the narratives came out in the evidence.

• Version 1: Examination-in-chief - re: grounds based on S.S.’s utterances in ambulance.

• Version 2: Cross-examination - re: had grounds before entering ambulance (i.e., earlier in time than Version 1)

• Version 3: Statement to P.C. Cutler

• Version 4: Statement to P.C. Alszegi

[153] Version 3 only served as additional damage to P.C. Sagl's credibility. I note, in particular, that the part of this statement about her investigation before and immediately upon entering the ambulance is completely different than her testimony, i.e., different from Versions 1 & 2. The other versions (1, 2, and 4) are part of the analyses.

V. Analyses - P.C. Sagl grounds for a demand before she entered ambulance (i.e., Version 2)

[154] This segment of the analyses has to do with P.C. Sagl's evidence in cross-examination (see paras. 56-61 above), where she testified that she had the necessary grounds prior to hearing the utterances made to the paramedic.

[155] P.C. Sagl identified the following as contributing to her grounds for arrest and demand:

• her own observations of the scene that raised the possibility of speeding and her observation of the closed alcohol bottle (in the backpack)

• Acting Sgt. Byford telling her to get into the ambulance and to put him/her in custody, which she understood as a direction to arrest him/her

• Acting Sgt. Byford told her that he believed [the person] was impaired.

Question 1: Based on the testimony of an officer issuing a demand, i.e., P.C. Sagl, which police officer, or police officers, are identified as having grounds for a breath demand?

[156] Given P.C. Sagl's evidence (i.e., Version 2), and given that the grounds for an arrest and a demand are the same in this case, the analyses should include Acting Sgt. Byford and P.C. Sagl. (Note: The reasoning in R. v. Debot, [1989] 2 SCR 1140 provides additional support for including Acting Sgt. Byford in this analyses)

Question 2: Did Acting Sgt. Byford, at the time he directed P.C. Sagl to board the ambulance, have an honest belief that S.S. committed the offence of operating a conveyance while his/her ability to operate it was impaired to any degree, by alcohol?

[157] Acting Sgt. Byford testified that upon seeing the bottle, in the backpack, he thought the [male/female] may be impaired and he directed P.C. Sagl to go onboard the ambulance to see if the party was in fact impaired. (See paras. 25-27 above)

[158] Given this evidence, it is clear the answer to this question is 'No'. Acting Sgt. Byford did not have any subjective grounds for an arrest and the associated demand.

Question 3: Objectively, were there reasonable grounds for Acting Sgt. Byford's stated belief?

[159] There is no need to answer this question, given that the subjective part of the test, concerning grounds for a breath demand, was not met.

[160] I note however, that objectively, Acting Sgt. Byford got it right. There was reason to investigate the driver of the motor vehicle and as part of this to investigate further what I would categorize as a ‘generalized suspicion’ (See: para. 133 above) regarding whether the driver was impaired to any degree, by alcohol.

Question 4: Did P.C. Sagl, at the time she boarded the ambulance, have an honest belief that S.S. had committed the offence of operating a conveyance while his/her ability to operate it was impaired to any degree, by alcohol?

[161] If, Acting Sgt. Byford had confirmed that he, as a superior officer, directed P.C. Sagl to arrest S.S., then P.C. Sagl's subjective belief would likely be irrelevant (see: Debot). Given this was not the case, I examined this question.

[162] I think it is reasonable to ask whether P.C. Sagl had an honest, but mistaken, belief that Acting Sgt. Byford directed her to arrest S.S. I am, however, unable to find this to be the case, given that P.C. Sagl, in her evidence-in-chief said the opposite. She testified that the decision to arrest was her decision alone. This combined with Acting Sgt. Byford's evidence causes me to find that she did not have an honest belief that she had been directed to arrest S.S.

[163] Given this, I also considered whether she had an honest belief that she had grounds for the breath demand based just on her own observations up to this point. P.C. Sagl's evidence does not provide any support for this proposition.

[164] Putting everything together, the answer to the question is 'No'. P.C. Sagl, at the time she boarded the ambulance, did not have an honest belief that S.S. had committed the offence of operating a conveyance while his/her ability to operate it was impaired to any degree, by alcohol.

Question 5: Objectively, were there reasonable grounds for P.C. Sagl's stated belief?

[165] This question is unnecessary in the circumstances, given that the subjective part of the test was not met. I also note, however, that objectively, at this point in time, on the totality of the circumstances, there was only a basis for a generalized suspicion about the requisite offence (i.e., similar to Acting Sgt. Byford in paragraph 160 above).

Conclusion:

[166] Given that the two-part test for reasonable grounds under s. 320.28(1) has not been met, the warrantless search of taking a breath sample, has not been shown to be authorized by law based on this evidence. As such, this is a S. 8 Charter breach.

VI. Analyses: Was there an unreasonable search or seizure prior to P.C. Sagl’s demand

[167] This segment of the analyses has to do with Version 1 of P.C. Sagl's evidence as given in examination-in-chief (see paras. 15 -24 and above).

[168] P.C. Sagl's evidence is:

• she made observations of the scene including the closed bottle of alcohol

• she received information from Acting Sgt. Byford that there was a possibility that S.S. was impaired

• from the accident scene it was her opinion that the vehicle was going 100 km/hr.

• she got in the back of the ambulance and watched and listened as a paramedic dealt with S.S.

• she overheard responses about the consumption of alcohol and speed of the vehicle

• after overhearing these things "I believed that [he/she] had been driving impaired"

• she then arrested S.S. She gave him/her their rights to counsel. During this she had to get fairly close in order to hear [him/her] and at this time she smelled alcohol on [his/her] breath

• She gave him a breath and blood demand

[169] The issue here is whether, by watching and listening to S.S. while he/she was interacting with the paramedic, did P.C. Sagl obtain her grounds for her breath demand by means of an unreasonable search or seizure?

[170] Before turning to the questions outlined above in paragraph 127, I note the Crown's position, which is encapsulated in paragraph 11 of the Crown's Response.

11. The police are entitled to ride in the back of the ambulance with the accused or to wait in the hospital emergency room and observe. This does not violate the accused's privacy rights and the police do not need to obtain the accused's consent. (Four cases are footnoted in support of this proposition)

[171] I note that S.S was not an ‘accused’ person at the time in question and also the police have no apparent 'entitlement' as such. A section 8 analyses is highly contextual, and my approach was to deal with the context of this case, and this case only.

Question 1: What was the subject matter of the alleged search?

[172] The subject matter included two things:

• Communications, between a paramedic and S.S., made as a part of a medical assessment

• observations of S.S. during the same medical assessment

[173] The term medical assessment is being used to include the following in this case: the physical examination of injuries; the 'vitals' as defined by paramedic Lemcke (see para. 35 above); the recent medical history (e.g., what happened to you, questions about speed and alcohol etc.); and S.S.'s account of his/her symptoms.

Question 2: Did S.S. have a direct interest in the subject matter?

[174] People generally have a direct personal privacy interest when being examined and assessed by any type of medical practitioner, including a paramedic. Also, people generally have an informational privacy interest in their medical information disclosed during a medical assessment, and in who it will be shared with. There is also legislation, as pointed out by the Applicant, about the protection of medical information.

[175] S.S.'s direct interest in the subject matter was no different than anyone else as it was his/her body and his/her medical information. Why he/she was receiving this medical attention is irrelevant at this point in the analyses.

Question 3: Did S.S. have a subjective expectation of privacy?

[176] S.S. did not testify. Hence, there is no direct evidence on this point. I note that this aspect of the analyses is not a high hurdle to meet, and that testimony is not required. Given the personal and informational nature of the privacy interest, I presume he/she had an expectation of privacy in the subject matter of the alleged search.

Question 4: Was S.S.'s subjective expectation of privacy objectively reasonable?

[177] The analysis for this question is highly contextual.

[178] The ambulance was an enclosed space. This was a comprehensive medical assessment, limited only by the fact that an ambulance setting has limitations. This involved a medical practitioner - patient relationship. The physical medical examination, and the verbal exchange that was part of the examination with the paramedic were inextricably tied together. No one in this case is suggesting that the utterances, were anything but a part of this overall medical assessment.

[179] I conclude that objectively, in the moment, in these circumstances, an expectation of privacy was reasonable.

[180] Further, I conclude that there are no circumstances, in the context of this case, that objectively would point to another conclusion, nor in the alternative would point to some objectively based diminished, or qualified, expectation of privacy.

[181] I find that there was no diminished expectation of privacy here because S.S. was totally unaware of the presence of P.C. Sagl, at any point, prior to his arrest. There is no direct or circumstantial evidence to suggest otherwise. Further, the circumstantial evidence and the inferences that can be drawn from it support the finding that S.S. was not aware of police presence. This includes the following:

• he/she entered the ambulance with no memory of the accident

• no police officer spoke to him/her or was near him/her before he/she entered the ambulance

• he/she was in the ambulance, and being taken care of, before P.C. Sagl entered

• he/she was wearing a cervical collar that was placed on him/her before he/she was taken from the vehicle and remained on him/her at least to the point where the breath tech saw him/her at the hospital

• Cervical collars restrict the movement of the head, and in doing so restrict vision

• One can infer that his/her vision was restricted to what he/she could see by moving his/her eyes side to side and to the ceiling of the ambulance or whatever else was above him/her

• Further, given the collar, he/she would be able to lower his/her chin. I do not think he/she would be able to see his/her own feet or any part of the doorway of the vehicle below this level.

• Paramedic Lemcke was taking care of him/her, so she likely blocked some of his/her limited vision

• Paramedic Lemcke said she needed to rouse him/her so there may have been times, within the time period of concern, when S.S's eyes were closed.

• When P.C. Sagl entered, she did not speak to S.S. or in anyway announce herself or try to get S.S.'s attention.

• There were three people in a uniform in the back of the ambulance

• Ms. Lemcke's evidence is that P.C. Sagl sat on a seat close to the driver (i.e., still in the back as opposed to the passenger seat up front)

• I find that this was likely above S.S.'s head or above his/her head while off to one side. Either way, given S.S.'s limited view I infer that P.C. Sagl was outside of S.S.'s line of vision.

• P.C. Sagl testified that he/she looked like he/she went in and out of consciousness and I take this as another indication that there were times when S.S.’s eyes were closed.

• P.C. Sagl also testified that she stayed out of the way, which would also be some confirmation of the finding that S.S. was not aware of her presence.

[182] Even though it is entirely reasonable to think that S.S. may have anticipated the police investigating him/her given that he/she was someone who was taken from the driver's seat of a motor vehicle in a ditch, there is nothing that objectively would have let him/her know this was actually happening, at any point prior to the moment when P.C. Sagl placed him/her under arrest.

[183] I note that, if, S.S. had known about the presence of police during his/her medical assessment, not only would his/her expectation of privacy likely have been diminished, but it would also have presented him/her with a choice about what to say in front of the police.

[184] I also find that S.S. was not detained. S.S. was in the ambulance first. When P.C. Sagl got in she did not take any action to detain S.S. I have found that S.S. did not know she was there, so there could not be a psychological detention. Lastly, P.C. Sagl’s evidence in cross-examination that she would not have let him leave is purely hypothetical and irrelevant in the circumstances.

[185] Given the above, I find that S.S.'s subjective expectation of privacy was objectively reasonable.

Question 5: Was there a search or seizure?

[186] Yes, given the totality of the circumstances outlined above, there was a search or seizure of the subject matter described under 'Question 1' above.

Question 6: Was the search or seizure reasonable?

[187] This was a warrantless search. A warrantless search is presumptively unreasonable. The Crown bears the onus of rebutting the presumption.

[188] The Crown submitted that there was a duty upon the officer to investigate. I think this begs the question. The issue is not about the need or a duty to investigate. It is a question about how the investigation was conducted.

[189] There is no statute or common law to support finding that this search or seizure was lawful and/or reasonable.

Conclusion

[190] In the context of this case, I find that this search or seizure was not reasonable and that it was a breach of s. 8 of the Charter. I also find that given this result, that the subject matter of this search and seizure should be excluded from P.C. Sagl’s grounds for demand.

VII. Analyses: Were there grounds for P.C. Sagl's breath demand?

[191] This is the analyses of the grounds described by P.C. Sagl in examination-in-chief (i.e., Version 1). This is the same scenario as just described above where P.C. Sagl arrests and gives the breath demand after overhearing utterances in the ambulance. This analyses has two parts.

• A full analysis of these grounds without editing out the subject matter of the above S.8 Charter breach.

• An additional analysis where the Charter offending material is excluded from the analyses.

Question 1: Did P.C. Sagl, at the time of arrest 12:00 a.m. and the demand at 12:02 have an honest belief that S.S. committed the offence of operating a conveyance while his/her ability to operate it was impaired to any degree, by alcohol?

[192] This question is regarding P.C. Sagl's subjective belief after: her observations at the scene (including the closed bottle of alcohol in the backpack): her opinion about speed; and her observations of S.S. in the ambulance, including his/her utterances during the medical assessment. In addition, her evidence that during the arrest and right to counsel she smelled alcohol in his/her breath is also reviewed.

[193] P.C. Sagl testified that after overhearing the utterances "I believed that [he/she] had been driving impaired."

[194] P.C. Sagl’s testimony places the smelling of alcohol on S.S.’s breath as an after-the-fact observation and not part of her formulating her belief.

[195] If P.C. Sagl's evidence about her belief after the utterances is accepted, then this evidence would satisfy the subjective part of the test.

[196] However, I have serious concerns about a key aspect of P.C. Sagl’s evidence. I accept that she likely believed in the existence of the factual components of these proposed grounds as summarized in paragraph 192 above, but I question whether she believed that these components/grounds were capable of justifying the required belief. Further, I question whether she actually formulated any belief in the moment, including her testimony about this i.e., “I believed that he/she had been driving impaired.”

[197] The first reason for this concern is that I find that P.C. Sagl's credibility, generally speaking, was severely damaged by her giving four different accounts, over time, about her investigation. Therefore, there is every reason to be cautious about her evidence.

[198] In addition, there is evidence from which an inference is available that P.C. Sagl did not personally believe she had grounds for the arrest and demand, at the time she arrested S.S.

[199] This inference comes from the fact that three hours later she did not relay these grounds to the qualified breath technician, P.C. Alszegi. She gave him grounds that omitted key features of these grounds, most notably the utterances, and she provided P.C. Alszegi with a very different scenario as a factual basis for her grounds.

[200] This also included: changing the overall circumstances of her investigation; leaving out the deciding feature of the grounds under review i.e., the utterances; and she altered the timing of when she said she smelled alcohol.

[201] On the last component (i.e., smelling alcohol), changing the sequence about when she allegedly smelled alcohol from post-arrest (Version 1) to pre-arrest (Version 4) calls into question, even though it was technically possible, whether she ever smelled alcohol on S.S.’s breath at all. This appears instead to have been an exercise where P.C. Sagl inserted a common feature of drinking and driving investigations into a narrative, as necessary, in order to conveniently support each narrative. Further, there are additional reasons for questioning her veracity on this point given the overall credibility issues with her evidence, plus the fact that that Ambulance Call Report, prepared by the paramedic Ms. Lemcke, who had equally close contact with S.S. during the medical assessment, in the same time frame, indicates “No obvious smell of alcohol present when in conversation.” (See: para. 37 above)

[202] In the circumstances, I find that the Crown has not proven, on a balance of probabilities, that P.C. Sagl ever smelled alcohol on the S.S.'s breath.

[203] Returning to the broader question about P.C. Sagl’s grounds, if P.C. Sagl had a personal belief that the factual components of Version 1 could support the requisite belief then she surely would have relayed these grounds to P.C. Alszegi.

[204] The fact that instead, three hours later, where nothing had changed in the intervening time, she (a) did not give these grounds and (b) she told P.C. Alszegi something significantly different leads to an inference that she did not have the necessary personal belief as described in her testimony. There is no other explanation available given the evidence.

[205] P.C. Sagl's actions illustrate that she did not hold the belief that she testified to. In these circumstances, I cannot find that she had an honest personal belief at the time of the arrest and demand, that S.S. committed the offence of operating a conveyance while his/her ability to operate it was impaired to any degree, by alcohol.

[206] In these circumstances, I am unable to find, on a balance of probabilities, that the Crown has satisfied the subjective part of the two-part test.

Question 2: Objectively, were there reasonable grounds for P.C. Sagl's stated belief?

[207] In light of the finding about no personal belief by P.C. Sagl, the two-part test cannot be met, and this question becomes unnecessary.

Question 3: What is the effect of excluding the Charter offending material from the analyses?

[208] This would not change the outcome. On the subjective test nothing would improve as far as the Crown’s ability to justify the demand. With the objective test things remain the same regarding the question becoming unnecessary. If the question was undertaken the most notable thing is that there would be no evidence about any consumption of alcohol within any possible time frame.

Conclusion:

[209] Given that the two-part test for reasonable grounds under s. 320.28(1) has not been met, the warrantless search has not been shown to be authorized by law. As such, this is a S. 8 Charter breach.

VIII. Analyses: Were there grounds for P.C. Alszegi's breath demand?

[210] This segment of the analyses has to do with P.C. Sagl's Version #4 evidence (paras. 67-68 above) and P.C. Alszegi's evidence (paras. 81, and 84 above).

[211] P.C. Alszegi's evidence is that P.C. Sagl gave her grounds for her breath demand to him. Thereafter, he was prepared to proceed on P.C. Sagl's grounds, but then he went on to say that he formed his own grounds by combining the grounds given by P.C. Sagl and his own observations.

[212] P.C. Alszegi's personal observations would have been made between 3:46 a.m. and 3:51 a.m. i.e., minimum of 3 ¾ hours after arrest and a minimum of 4 hours after driving. His observations included: a slight smell of alcohol on breath; bloodshot eyes; fair speech; confused state; indifferent attitude; and a sleepy state.

[213] P.C. Alszegi then made a breath demand at 3:52 a.m. and then he proceeded to take the samples.

Question 1: Based on the testimony of an officer issuing a demand to S.S., i.e., P.C. Alszegi, which police officer, or police officers, are identified as having grounds for a breath demand?

[214] Given P.C. Alszegi's evidence, the analyses should include P.C. Sagl and P.C. Alszegi and it should begin with P.C. Sagl.

Question 2: Did P.C. Sagl, at the time she conveyed her grounds to P.C. Alszegi, have an honest belief that S.S. committed the offence of operating a conveyance while his/her ability to operate it was impaired to any degree, by alcohol?

[215] P.C. Sagl was unable to testify about her belief regarding this point in time when she gave her grounds to P.C. Alszegi. This is because she has no memory about this occasion beyond the fact that she was there.

[216] Further, other than on a few minor points, she did not adopt P.C. Alszegi's report/evidence about what she said, regarding the factual components of her grounds as being true. She also did not testify that his report was untrue in any way.

[217] Earlier in this decision I accepted P.C. Alszegi's account of what P.C. Sagl said as being a true account. The contents of this account are set out in full in paragraph 84 above.

[218] After carefully reviewing what P.C. Sagl said to P.C. Alszegi, I find that P.C. Sagl had no honest belief in the factual components of the grounds she presented, and it follows that she could not have had an honest belief that S.S. had committed the offence of impaired operation based on these grounds.

[219] I reached this conclusion by assessing each point she said to P.C. Alszegi against her evidence in court. I set this comparison out in detail in paragraph 84 above.

[220] After reviewing paragraph 84, I conclude that none of the things said to P.C. Alszegi can be attributed to an accidental slip of the tongue, or an inadvertent missing or adding of a point, or a slip up in the heat of the moment at a scene, given:

• This did not involve a small difference or two. It involved a significantly different narrative about her investigation

• She added an indicia of impairment, slurring, in her report to P.C. Alszegi when she did not say this in her evidence. Moreover, when she reported slurring to P.C. Alszegi she did not also report that she had heard S.S. tell the paramedic that he/she had a speech impediment. (Note: the fact that S.S said this in confirmed in the Ambulance Report, Exhibit A)

• She did not mention Acting Sgt. Byford instructing her to go onto the ambulance, as indicated in both her evidence and Acting Sgt. Byford's evidence. Instead, she presented a narrative where going on the ambulance was a continuation of her own investigation that began at the motor vehicle

• This statement, given to P.C. Alszegi, was made three hours after the arrest. It is clear P.C. Sagl had time to reflect on the situation. She even testified that she had time at the hospital, before seeing P.C. Alszegi, to write up her out-of-sequence notes.

[221] P.C. Sagl presented P.C. Alszegi with an almost entirely different narrative, as compared to her testimony in court, with different supporting details.

[222] After comparing the statement made to P.C. Alszegi with P.C. Sagl's testimony, I find that what P.C. Sagl told P.C. Alszegi cannot be true. The only other possible alternative finding would be that she was not truthful when she testified.

[223] I decided against the latter, given that there is some corroboration from Acting Sgt. Byford and paramedic Lemcke (including the Ambulance Call Report) for a few parts of P.C. Sagl’s testimony in court that are not part of what she told P.C. Alszegi. My finding is that P.C. Sagl gave a dishonest account of her grounds to P.C. Alszegi. (Note: This finding should not be perceived as being a positive finding of credibility regarding her court testimony generally).

[224] Given the finding that what P.C. Sagl told P.C. Alszegi was a dishonest account, I find that P.C. Sagl, at the time she conveyed her grounds to P.C. Alszegi, did not have an honest belief that S.S. committed the offence of operating a conveyance while his/her ability to operate it was impaired to any degree, by alcohol.

[225] I find, as a result of the above, that the subjective part of the test was has not been met.

[226] In addition, I also find that P.C. Sagl, as the arresting officer, knowingly provided misleading and untrue grounds to P.C. Alszegi, while also knowing that he was the qualified breath technician, who could be expected to act on these grounds and conduct a warrantless search by having S.S. provide a breath sample.

Question 3: Objectively, were there reasonable grounds for P.C. Sagl's stated belief?

[227] Given the finding of no subjective belief, this question becomes unnecessary. I note as well, given my finding of this being a false narrative, there is no evidence to use on the objective test.

Question 4: Did P.C. Alszegi, at the time he made a breath demand, have an honest belief that S.S. committed the offence of operating a conveyance while his/her ability to operate it was impaired to any degree, by alcohol?

[228] Based on his testimony, yes, he did.

[229] In making this finding, I also find that there is no escaping the fact that his belief relied heavily, almost exclusively, upon P.C. Sagl's grounds, as reported to him. This included her report of slurred speech that he was careful not to let counsel leave out. (See: para 81 above)

Question 5: Objectively, were there reasonable grounds for P.C. Alszegi's stated belief?

[230] In most instances one does not look behind the evidence available to the officer at the time when conducting the objective test. This also means that less than obviously misleading evidence may be part of this collection of evidence.

[231] As outlined in paragraphs 141 – 148, given the initial demand this case is different. In addition to the general principles outlines in those paragraphs, here:

• There is a finding Cst. Sagl deliberately mislead P.C. Alszegi knowing that he would use her grounds for the demand either directly or indirectly

• This was part of continuing s.8 breach by P.C. Sagl that got more serious at every turn, with this being the final step

• It would be bad enough if this just resulted in an arrest and the Young Person being held, but this action, i.e., the demand, compelled the Young Person to cooperate in a warrantless search or in the alternative face another criminal charge for refusing.

• P.C. Sagl's demand was still a live demand right up to the samples being given and so too were the Charter breaches associated with that demand.

[232] In these unique circumstances, I find that the factual components of P.C. Sagl's grounds for the demand, that go beyond the most basic things that she said she saw at the scene, should be excised from consideration on the objective test.

[233] If I am wrong in taking this approach the alternative is to address the issue under 24(2), which I will do at a later stage.

[234] One advantage of excising the material is that it allows for an examination of whether P.C. Alszegi objectively had grounds for a demand even without the misleading, Charter offending, material.

[235] After the offending material is excised from what P.C. Sagl told P.C. Alszegi, the following information remains:

• this was a single motor vehicle accident

• the vehicle was severely damaged with pieces all over the roadway

• ambulance and fire arrived before she did

• she saw the passenger receiving CPR

• S.S. was taken from the driver's seat and placed in the ambulance

[236] In addition to this there are P.C. Alszegi's observations. There is the slight smell of alcohol on S.S.’s breath. The other observations, made at the same time, a minimum of 4 hours after the fact, should be given no weight as they cannot be linked to the time of the alleged offence.

[237] In find that the remaining parts of P.C. Sagl's grounds and P.C Alszegi's observation of a slight smell of alcohol do not objectively show reasonable grounds under s. 320.28(1).

[238] This small collection of facts could support a ‘generalized suspicion’ (See: para. 133 above) about whether S.S. may have been impaired to any degree at the time when he/she was operating a motor vehicle, but it is not higher than that, and a suspicion is insufficient to satisfy the test.

[239] This is the most generous way to analyze this point. In fact, the slight smell of alcohol should be excised too given it is casually related to P.C. Sagl’s Charter violation. Without this violation, P.C. Alszegi would not be at Sunnybrook with the opportunity to meet S.S. With the smell excised there is not even a suspicion on the objective test.

[240] Given the facts, this is not a case where the second officer making a demand was in a 'fresh start' situation, because there was not enough untainted evidence and/or new evidence to work with.

Conclusion:

[241] Given the two- part test for reasonable grounds under s. 320.28(1)has not been met, the warrantless search of taking of breath samples has not been shown to be authorized by law. As such, this is a S. 8 Charter breach.

IX. Analyses: Section 8 re: The Search Warrant & Production Order

i) Overview

[242] Evidence used in the ITOs that is misleading and/or that was obtained through a Charter breach should be excised from the ITOs.

[243] Thereafter the issue to be determined is whether the remaining evidence could have been sufficient to justify issuing the Search Warrant/Production Order.

[244] It is important to keep in mind what offence the Search Warrant/Production Order is premised upon. In this case, each ITO is premised on there being reasonable grounds to believe a particular offence has been committed. That offence in is particularized in Appendix B which states:

1.On or about the 4th day of November, 2019 [S.S.] at the City of Brampton while his ability to operate a conveyance was impaired by alcohol did operate a conveyance and thereby caused the death of [J.S.] contrary to section 320.13(3) of the Criminal Code of Canada.

(Note: S. 320.13(3) is the section for Dangerous Operation Cause Death. This appears to be an error and the section number should be S.320.14(3))

[245] Given this, the question becomes, whether the remaining evidence, after excision, could have been sufficient to justify issuing the Search Warrant/Production Order based on there being reasonable grounds for this offence.

ii) What is excised

[246] I find that the following should be excised:

• Misleading material in the Background section caused by less than accurate paraphrasing

• Evidence connected to the S. 8 Charter breaches discussed above.

[247] Given that the S. 8 Charter breaches by P.C. Sagl start when she enters the ambulance and continue to run by virtue of her breath demand until the 2nd sample is taken, all of evidence attributed to her about S.S. for the same time period is excised. This includes things she heard and observed about S.S., what he was arrested for and the demand.

[248] P.C. Alszegi's evidence is casually related to P.C. Sagl's continuing demand and the associated continuing Charter breach. None of his evidence is outside of the time period of the continuing breach. Given this, the evidence attributed to P.C. Alszegi in the ITO about the Intoxilizer, his observations, his demand, and the results of testing is also excised.

[249] More specifically, the following words are excised:

• Background para.1: "[S.S.] was operating the vehicle at a high rate of speed when [he/she] lost control and left the roadway into the east side ditch where the vehicle violently struck two trees before coming to rest."

• Background para. 2: "was conscious and alert and exhibiting signs of impairment therefore [he/she]" - "for Impaired Operation Causing Death before [he/she]" - '"for Impaired Operation Causing Death."

• Background para. 3: "At Sunnybrook Hospital, S.S. provided two samples of [his/her] breath to police approximately 5 hours after the collision which registered samples well below the legal limit therefore for that reason and"

• Para. 1(d) "was now observed to be conscious" (Note: the CAD (Computer Aided Dispatch) is not clear which officer reported this, but it was likely P.C. Sagl, given she arrived first. This alleged observation about the driver is part of one of her Charter breaches)

• Para. 1(g) "At 11:53 a request is made for RBU (Regional Breathalyzer Unit) to attend Sunnybrook."

• Para. 5(c) Everything except "[male/female] is arrested"

• Para. 5(d) "Can detect strong odor (sic) of alcohol, [male/female] has slurred and very quiet speech."

• Para 5.(k) "Brief Constable #3903 of RBU and provide grounds."

• Para. 6(a) "with the Intoxilzyer"

• Para. 6 (g) "He noted that there was a slight odor (sic) of alcohol present, and that the [male/female] appears to show no remorse concerning outcome of the incident and that [he/she] spoke in a very low tone.”

• Para. 6(h) "First suitable breath sample conducted at 3:58 a.m. which registered 12 mg. of alcohol."

• Para. 6(i) "Second suitable breath sample conducted at 4:23 which registered 9 mg. of alcohol."

• Para. 9 in ITO for Production Order and para. 11 in ITO for Search Warrant: "for Impaired Operation Causing Death. At Sunnybrook Hospital [he/she] provided two breath samples, the first one 4 hours and 44 minutes after the collision and the second one 5 hours and 9 minutes after the collision, which registered readings of 12 mg and 9 mg of alcohol within 100 ml of blood respectively. There is clear evidence that alcohol was a factor in this collision, however more information is required to determine exactly what S.S.'s blood alcohol concentration was at the time of the collision."

[250] I also had concerns about the photographs. In the end, I decided to treat them as being uninformative, and I did not excise them. My concerns were:

• In the photo of the car #6167, when printed in the ITO, the knapsack does not show up. (It can be vaguely seen using the USB exhibit and zooming in).

• The notation in the ITO with the car photo states, “showing the heavily damaged BMW.” While it is true that the car was heavily damaged, the photo (#6167) is at least partially misleading. It shows the driver’s side of the vehicle with all of the driver’s seat exposed, a dismantled driver’s door, the central pillar and the backdoor are missing. It is clear from the evidence of one of the first civilians on the scene that there was a closed driver’s door that he was unable to open. Also, it is clear from Ms. Lemcke that the fire department took necessary steps to extricate S.S. The photo that is used in the ITO clearly includes, without any explanation, at least some additional damage caused by the fire department after-the-fact.

• As pointed out in cross-examination, the single close-up picture of the knapsack gives no context about the location.

iii) What content remains regarding reasonable grounds for the offence listed in Appendix B?

[251] The remaining content that could be considered is:

(1) On November 5th, 2019, I reviewed the CAD (Computer Aided Dispatch) printout for Peel Regional Police incident 19-040672 and I learned the following:

(a) It is for a Motor Vehicle Collision with Personal Injury call at the intersection of McVean Drive and Davinci Avenue in the City of Brampton. The call was received at 11:14 p.m. on November 4th, 2019 by Peel Police communications;

(b) The caller was a passerby who observed car parts on the road and observed the car on the northeast corner of the aforementioned intersection;

(c) The driver is described as a teenager who is unconscious, and the passenger was also unconscious. The vehicle which was described as a BMW was still running;

(d) At 11:23 police arrived on scene, XXXX, and the passenger was still unconscious and lifesaving efforts (CPR) had started;

(e) At 11:31 p.m., ambulance had pronounced the passenger as deceased;

(f) At 11:43 the driver was out of the vehicle and was to be transported to Sunnybrook Hospital;

(g) XXXX; and

(h) At 12:35 am, the driver was listed as stable with non-life threatening injuries.

(2) On November 5th, 2019, I attended the scene of this fatal collision where I observed the following:

(a) There was a heavily damaged dark coloured BMW in the northeast ditch of Mcvean Drive and Davinci Avenue in the City of Brampton;

(b) There was significant damage and debris from the vehicle indicating speed was a factor in this collision;

(c) There was evidence to support the vehicle was driving in a southbound direction before leaving the roadway on the east side of Mcvean where it struck two trees before coming to a rest; and

(d) There was a backpack containing an open container of alcohol located in close proximity to the vehicle.

(3) On November 5th, 2019, Constable Patterson #3561 from the Peel Regional Police Forensic Identification Service attended the collision scene for the purpose of taking photographs; Then there are two photos. One is of the driver's side of the car and the other is close up picture of knapsack and liquor bottle that gives no perspective regarding where it was on scene.

[252] I find that this evidence does not provide reasonable grounds for the offence listed in Appendix B i.e., section 320.14(3) of the Criminal Code, given there is no evidence about any state of impairment of the driver, or any consumption of alcohol by the driver, at the time driving. (This is basically the same as the situation as with Acting Sgt. Byford where there was a basis for a ‘generalized suspicion’, but nothing more.)

iv) Is the remaining content in the ITO sufficient to justify finding the Warrant/Production Order could have been issued?

[253] Given the above, 'No'.

v) Should the Search Warrant and the Production Order be quashed in whole or in part?

[254] In these circumstances, each of them is quashed. Therefore, the searches become warrantless searches.

vi) Is there a section 8 breach?

[255] Yes, given that both the seizing of the blood and the hospital lab records were the result of a warrantless search.

X. Analyses: Section 8 re: Report to Justice

[256] The Applicant alleges S. 8 breaches based on there being no Report to Justice filed in this case.

[257] There is no issue about the fact that if a Report to Justice should have been filed, and it was not, that this constitutes a S. 8 breach.

[258] There are three separate seizures to consider.

[259] The first seizure is the hospital records seized pursuant the Production Order. A Report to Justice is not required on a production order so in this instance there is no breach.

[260] The second seizure is the blood sample seized pursuant to the Search Warrant. In this instance the Crown has argued that the Applicant's claim about no Report to Justice was not timely. Given how this issue developed, I disagree. In the alternative, I grant an abridgement of the time. There is nothing about the Crown having more time that will fix the fact that it is clear no Report to Justice was filed. We obtained the Court's file for the Search Warrant, after significant effort by the staff during the hearing, and there is no Report to Justice in the file. It would not fix the problem, but it is also clear there is no officer on the case who thinks that he/she prepared a Report to Justice.

[261] The third seizure was on the evening of November 5th when officers attended the pound and they retrieved a wallet and contents, and a cell phone belonging to S.S. from the car door. There is no Report to Justice. The Crown's position is that S.S. was not the owner of the car and has no interest in this. The Defence position is that within a family, specific ownership is not necessarily a deciding factor. The Officer’s position is that they were completing an inventory search that happens with all vehicles sent to the pound. For my part, I am not sure that the subject matter of the search was the car, as opposed to S.S.'s documents. This is not unlike the cases about garbage bags where the subject matter is the contents. In the end, the issues around this seizure were not fully argued, little turns on it, and I am not making a decision about it.

XI. Analyses: Section 8 re: Other health information

[262] The Applicant submits that the inquiries made by police about the S.S.'s condition at the hospital constituted additional s.8 breaches. While I agree S.S. had a personal and informational privacy interest, I do not think the enquiries went beyond what was reasonable in the circumstances, for someone who was in custody, where a determination needed to be made about continuing to try to get a breath sample. Further, anything that was learned never became part of the investigation or the court case.

XII. Analyses: Charter Section 10(b)

[263] The Applicant raised a s.10(b) issue based upon the Applicant being under detention at the point that P.C. Sagl entered the ambulance and the fact that rights to counsel did not occur at that time.

[264] This was a reasonable application to make based on P.C. Sagl's notes but given that I have found during the course of this judgment that there was no detention at this time, the Applicant cannot meet the onus for the suggested breach.

[265] The Applicant also raises the fact that the additional aspects of the Youth caution under the Youth Criminal Justice Act were not given at the time of arrest. I agree with the Crown that this not part of constitutional 10(b) rights, so this does not amount to a breach.

[266] Although I find there was no 10(b) breach in this case, the circumstances of the arrest are disconcerting regarding how little attention was paid to this young person. This includes the following:

• even though P.C. Sagl claims she had no difficulty communicating with S.S. she did not ever ask basic questions like 'what is your name' and 'what is your date of birth' (She got this later from the nurse in charge)

• P.C. Sagl knew S.S. could not remember the accident, but she did not inform him/her until 1 ½ hours after arrest that it was a passenger who died. She just said he/she was being arrested for impaired cause death.

[267] These basic courtesies would have given S.S. a clue about what had happened, the cause of his/her legal jeopardy, and it would have triggered his/her cautions and options as a young person for assistance.

Analyses: Charter Section 24(2) - Exclusion of Evidence

i) Overview and Issues

[268] The applicant has made an application under s.24(2) of the Charter. Section 24(2) states:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

(emphasis added)

[269] The framework for the analyses is:

(1) What evidence was obtained "in a manner" that violated Charter rights? i.e., Is there a nexus or connection between a breach and the evidence that may be excluded?

(2) Would the admission of the various pieces of evidence identified pursuant to #1, bring the administration of justice into disrepute in this particular case after consideration of: (R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, at para. 71)

(a) The seriousness of the Charter-infringing state conduct;

(b) The impact of the breach(es) on the Charter-protected interest of the accused; and

(c) Society's interest in the adjudication of the case on its merits.

(ii) What was the evidence obtained?

[270] This case involves a Charter breaching course of conduct that begins with the arresting officer, P.C. Sagl who:

(1) Watched and listened during a medical assessment; and

(2) Arrested S.S., and most importantly, gave him/her a breath demand.

[271] By far, the breach of the Charter by giving the demand, which was not authorized by law, was the most impactful, because it brought S.S. into contact with the qualified breath technician who: made observations about S.S.; administered the search by taking breath samples; and who obtained results from the breath samples. But for P.C. Sagl’s continuing demand, and the associated Charter breach, none of this evidence would have been obtained.

[272] There is also the overlapping demand that was not authorized by law, given by the qualified breath technician, that resulted in the same breath samples and results.

[273] Then there is the evidence obtained from the Production Order and the Search Warrant that have been quashed, resulting in a warrantless search.

[274] Given these breaches the list of evidence obtained in a manner that violated the Charter includes:

• Utterances by S.S. during a medical assessment

• Observations of S.S. during the medical assessment

• The smell of alcohol on breath during rights to counsel. However, given my finding that this has not been proven, this point becomes moot.

• P.C. Alszegi's observations in his role of being the qualified breath technician. This includes among other things observations of S.S.'s eyes and a slight smell of the odour of alcohol on his/her breath

• The breath results in two ways: alcohol was detected and there were two readings.

• The blood sample

• Information contained in the hospital/laboratory report (Note: there are additional admissibility issues for these documents that are dealt with later in the judgment.)

(iii) Grant Factor 1: Seriousness of the Charter-infringing state conduct

[275] This factor considers the effect of the police misconduct on the reputation of the justice system. Aggravating and mitigating factors to seriousness are considered.

Aggravating Circumstances - General

[276] In this case there are multiple breaches: P.C. Sagl's observation of a medical assessment; P.C. Sagl's demand; P.C. Alszegi’s demand; the warrantless seizure of the blood sample; the warrantless seizure of the hospital laboratory records; and the failure to file a Report to Justice.

Aggravating Circumstances - P.C. Sagl

[277] P.C. Sagl was an inexperience officer, who was working alone, who got tossed into a serious and tragic case by virtue of the fact that she was the first officer who arrived on scene, and more importantly because she was ordered onto the ambulance by Acting Sgt. Byford, for no reason other than the fact that she was standing next to Byford at the moment he made his decision.

[278] This may provide some perspective on how P.C. Sagl's investigation got off to a rocky start. It does not however, account for what happened in this case that ultimately resulted in a total of 4 different narratives, including 2 two of these narratives being in her testimony, about 37 minutes in time (i.e., arrive on scene at 12:23 to arrest at midnight.)

[279] Inexperience does not account for any of the different narratives.

[280] I do not know what motivated or caused this behaviour but, at a minimum, throughout, it shows a reckless disregard of Charter rights. Further, the last step, when she willfully misled the qualified breath technician, displays an egregious disregard of Charter rights.

[281] Also, it really is an unfortunate state of affairs when a court needs to sift through less than credible evidence to see if somehow, somewhere, a police officer did comply with the Charter.

[282] Looking at all the above points taken together, I find that admitting evidence connected to this police conduct would have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

Aggravating Circumstances Det. Cst. Davis

[283] Det. Cst. Davis' actions in the preparation of the ITOs also needs to be considered. He actions lacked due care and attention resulting in at least some negligence toward Charter standards. My overall impression was that he treated getting the Search Warrant and the Production Order as a pro forma process as opposed to a serious 'judicial' process. Specifically:

• He included in the Background a statement about S.S.'s condition that was not in P.C. Sagl's notes

• He used the Background section in the ITOs to subtly enhance the evidence

• He did not fully summarize P.C. Sagl's notes

• He did not fully read P.C. Alszegi's notes, thereby not seeing P.C. Sagl's report to P.C. Alszegi and as a result this version (i.e., Version 4) was not included in the ITO

• He included photographs that were at best uninformative

• There were a number of problems with the documents regarding the Appendices and with one ITO the jurat was not complete

[284] Regarding P.C. Alszegi's notes, I cannot categorically say that Det. Cst. Davis would necessarily have appreciated the extent of the problem with regard to P.C. Sagl's grounds, if he had read P.C. Alszegi's notes, but at a minimum he could have included it in the ITO and/or made enquiries with P.C. Sagl.

[285] This type of conduct runs a risk damaging the reputation of the justice system. Warrants are done on an ex parte basis. The police hold all of the cards. The judiciary should not be seen as a rubber stamp. In order to have integrity for this judicial process the affiant on an ITO must give due care and attention to all aspects of the materials presented for judicial consideration.

Mitigating Factors.

[286] Even though P.C. Alszegi's demand was not authorized by law, he was acting in good faith. On an overall basis, however, this does not affect anything other than his reputation given that his demand was an overlap demand. P.C. Sagl's demand continued to be active and her actions also totally tainted P.C. Alszegi's investigation and demand.

[287] The above findings about the seriousness of the Charter-infringing state conduct strongly favour exclusion of the evidence listed in paragraph 274.

(iv) Grant Factor 2: The impact of the breaches on the Charter-protected interest of the accused

[288] It is widely accepted that a breath sample is relatively non-intrusive, and that the taking of breath samples is not a significant state intrusion into one's personal privacy.

[289] Surreptitiously observing and listening to a medical assessment by a medical professional is by its nature a reasonably significant state intrusion into one's personal and informational privacy.

[290] Further, the surreptitious aspect impinged upon S.S. interest in a free and informed choice about whether he/she would speak to the paramedic with a police officer listening.

[291] The seizing of a blood sample and hospital records associated with it is an intrusion on informational privacy. The sample itself must have been taken with either the direct or implied consent of S.S. for medical reasons only. There is no evidence to suggest S.S. was informed regarding what, medically speaking, the blood would be used for. Part of medical informational privacy is not just the taking of the information, but also the ability to control who it will be shared with.

[292] These are not just stand-alone intrusions. One intrusion results in information that feeds the next intrusion, and then this repeats itself for the next intrusion.

[293] I find that the impact of the breaches on the Charter-protected interest of the accused militate toward exclusion of the evidence.

(v) Grant Factor 3: Society's interest in the adjudication of the case on its merits.

[294] Society, generally speaking, has an interest and expectation in having criminal allegations adjudicated on the merits.

[295] Under this factor the reliability of the evidence may be considered.

[296] With regard to the utterances reliability cannot really be easily determined in this case given that:

• there is an incomplete and selective record regarding the utterances

• one cannot determine the time frame the utterances may be connected to given S.S. also indicated that he/she had no memory of the accident

• there is no independent evidence

[297] With regard to the results of the breath tests and the analyses of the blood, the evidence is reliable.

[298] I note that the blood results were not discoverable without a warrant.

[299] Another factor to be considered is the significance to the Crown's case.

[300] I will begin with the breath and blood results. This is not a case like an '80 and over' case where the breath readings are the only way to prove an essential element of the offence.

[301] In this case, the charges are about impaired operation and criminal negligence. The evidence from the breath samples, and the blood samples are pieces of circumstantial evidence.

• The breath results are evidence that at the time the sample was taken, S.S. had alcohol in his/her system. They do not provide evidence regarding blood alcohol levels at the time of driving.

• The blood sample result is evidence of a level of a blood alcohol concentration at that time the sample was taken.

• This is followed by expert opinion evidence that the provides a range for blood alcohol concentration at the time of driving.

• This is followed by an expert opinion about an inference being drawn about a degree of impairment at the time of driving.

[302] This evidence is very significant to Crown case.

[303] With regard to the utterances, what is said about speed is certainly something the Crown sees as being significant. It is, however, questionable whether it can assist the Crown given there is no clear connection to the time of the accident given that other parts of the utterances are to the effect that S.S. cannot remember the accident.

[304] Lastly, the seriousness of the offences is a factor to be considered. These are the most serious of charges, involving a loss of life. The charges include the area of drinking and driving. There is a clear public interest in holding people responsible for such conduct and thereby trying to curb such conduct by others in the future.

[305] I find that this factor, ‘Society’s interest in the adjudication of the case on its merits’ militates toward not excluding the evidence.

(vi) Conclusion

[306] After balancing the three areas of enquiry in Grant, I am satisfied that admission of the evidence listed in paragraph 274 will bring the administration of justice into disrepute. Therefore, it is excluded under s. 24(2) of the Charter.

XIII.Analyses: Admissibility of Hospital Records (Exhibit C)

[307] What appears to be a copy of a Sunnybrook Hospital electronic lab report was referred to in the examination-in-chief of Dr. Mayers, the forensic toxicologist from the Centre of Forensic Sciences. It was marked as Exhibit "C" for identification purposes.

[308] Presumably, this was a copy of the document retrieved from the hospital pursuant to the Production Order.

[309] The document was not tendered as an exhibit on the trial through Dr. Mayers. This is for a good reason. Simply put, the Crown was not in a position to do so as Dr. Mayers has no connection to Sunnybrook Hospital, including their record keeping. Dr. Mayers was also careful in his testimony not to suggest he could speak for the hospital.

[310] The Crown proposes that there are two routes to admissibility for Exhibit C: Section 30 of the Canada Evidence Act, R.S.C. 1970, E-10, s.1; and/or under the common law pursuant to Ares v. Venner, [1970] S.C.R. 608.

[311] No witness was called, under a subpoena or otherwise, for the purpose of tendering the proposed document.

[312] The Crown cannot meet the requirements of the Section 30 because:

• There is no evidence before the Court of a 'Notice of intention to produce record or affidavit' under s. 30(7)

o There obviously was disclosure of Exhibit "C," but that is different than serving notice of intending to use the evidentiary short cut of Section 30.

• There is no evidence before the Court of a waiver of s.30(7) by the Defendant

• There is no evidence to satisfy the basic requirements of s.30(1) of identifying the document as a business record

• There is no evidence to satisfy s. 30(3) regarding a copy of a business record

• There is no evidence under section 30(4) explaining the document. Without this one is unable to know for example, the meaning of the times, the results or whether the document has any information relevant to continuity.

[313] Turning to Ares v Venner, the Crown correctly quoted the Supreme Court at p. 626.

Hospital records, including nurses' notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.

[314] This is not an exception that means that all hospital records are prima facie admissible. They are admissible when tendered through a witness who can attest to:

• the record being a record of a hospital, business etc.

• the record was made contemporaneously to the observations etc. being recorded

• the record was made by someone having personal knowledge of the things being recorded

• the person who made the record was under a duty to make the record

[315] The Crown has made no attempt to call evidence about these things.

[316] I conclude that Exhibit "C" or any other hospital record is not admissible because neither the requirements of the Canada Evidence Act nor Ares v. Venner have been satisfied.

XIV. Analyses: Admissibility of the Ambulance Call Report, Exhibit A.

[317] The Crown seeks to have this report admitted on the trial. The first issue was how did the police and then the Crown come into possession of Exhibit A.

[318] It may have been through a particular request form that Peel Region Paramedic Services uses. However, the bottom line is that no one knows, in this case. There have been submissions about whether this form would have been appropriate. I do not see any reason for exploring this, given it is in fact a hypothetical. There was also an issue raised about whether it should have been obtained through a Production Order.

[319] I think all of these issues became moot given Ms. Lemcke's testimony. She was the author of the document. She was able to identify it. She filled it out contemporaneously as it was her duty to do. At the time of making the record she had personal knowledge of what was being recorded.

[320] As reviewed in the evidence summary above, she had almost no memory of the event. Also, the document did not refresh her memory. The most she could do was help others read the document.

[321] The evidence supports two routes for admissibility of the Ambulance Call Report. These are two exceptions to the hearsay rule: 1) past recollection recorded, and 2) the common law exception for a business record as described in Ares v. Venner.

[322] The Crown favours #1 and the Defence favours #2. In favouring #1, the Crown goes on to submit that the report becomes part of Ms. Lemcke's testimony, and that she has adopted this evidence. I do not think she adopted it. I do not think it is even possible to adopt something one cannot remember. What she could, and in fact did, was testify about her lack of memory, and about how and why the document came into being, and this was sufficient to meet both tests.

[323] The contents of this document are something Ms. Lemcke cannot be cross-examined about, given her lack of memory, and hence why a hearsay exception is necessary. Thereafter, it is, just what it is - a document that meets the basic criteria for admissibility.

[324] Given that the basic criteria for the admissibility of the document are met, two questions remain:

• Are all portions of the document admissible, given that, generally speaking, a document cannot be more admissible than oral evidence about the same thing?

• Is there any reason for me to exercise my residual discretion to exclude the documentary hearsay evidence as a matter of trial fairness?

[325] On the first question, there is an issue about utterances made by S.S., as recorded in the Ambulance Report. This is an issue because they are hearsay evidence, and not admissible unless they meet the requirements of a hearsay exception. The Crown submits that these utterances should be viewed as falling under the hearsay rule exception of admissions.

[326] Admissions, in this context, are a declaration(s) made by a party to a proceeding that an opposing party seeks to rely on as evidence against the declarant. This is an exception to the hearsay rule and there are no extra requirements, save and except when the admission is made to a person in authority and then voluntariness must be addressed.

[327] Subject to the trial fairness consideration discussed below, I agree with the Crown that utterances by S.S. to Ms. Lemcke, as recorded in the Ambulance Call Report, are admissible for their truth under the admissions exception to the hearsay rule. (These utterances are in the evidence review, para. 36 above.)

[328] Moving to the next question: Is there any reason for me to exercise my residual discretion to exclude documentary hearsay evidence as a matter of trial fairness?

[329] My concern begins with whether any record that P.C. Sagl (See: paras. 49-52 above) made of the S.S.'s utterances to Ms. Lemcke is admissible or inadmissible.

[330] If, the utterances made to Ms. Lemcke, as recorded by P.C. Sagl are not proffered by the Crown and/or are inadmissible, and if, the utterances in the Ambulance Call report remain admissible, then this result would raise an issue regarding trial fairness.

[331] The unfairness would involve the following:

• In all cases if someone's utterances are to be admitted the fair way to do this is to have the entirety of any given statement admitted into evidence, not just parts.

• In this case, what is available from both the Ambulance Report and P.C. Sagl are fragments of answers only.

• Given this, admitting only the fragments from the Ambulance Report magnifies the problem regarding incompleteness.

• Further, it is unfair because unlike when a witness gives oral evidence about an admission, here there would be no opportunity to cross-examine using the other (i.e., Sagl's) record of what was said.

• Similarly, the Defence cannot call evidence about utterances made by the Defendant to P.C. Sagl.

• Finally, it is unfair in this case, because it gives the Crown an advantage if only the utterances as recorded in the Ambulance Report are admitted.

[332] Following up on the last point, I note that both sets of reported utterances are extremely brief, lack context especially regarding timing of the things spoken of, and they cover the same topics. But they are not a match regarding details that are significant in this case i.e., alcohol consumption and speed.

[333] In terms of the fairness issue, the difference between what is reported in the Ambulance Call Report and what was recorded by P.C. Sagl regarding speed, is the most concerning, especially when one considers the fact the Crown does not have any other evidence of a specific speed, or range of speed.

[334] Leaving aside the lack of evidence about any reference to time within the utterances, if only the Ambulance Call Report is used, then the only evidence about speed would be an admission of travelling at 120 km./hr. in a 70 km./hr. zone. This would be 50 km/hr over the posted speed limit, and I would anticipate that the Crown would try to make the most of this, and perhaps point to things like stunt driving.

[335] If P.C. Sagl's evidence is admitted too, then there would be more evidence to consider that may be beneficial to the Defendant because P.C. Sagl recorded the utterance as "probably travelling 100 to 120 kilometres per hour." (emphasis added)

[336] In submissions at various times in the proceedings, the Crown submitted that he does not seek admission of S.S.'s utterances for their truth through P.C. Sagl. He only wishes to have P.C. Sagl's evidence about the utterances be considered for the fact that they were said, and then for the sole purpose of P.C. Sagl's state of mind in forming her grounds.

[337] I decided that before completing the analyses regarding the above issues that I would request further submissions from counsel.

[338] Late, on March 16, 2022, I wrote to the parties. I enclosed my draft judgment about Exhibit A, up to this point and I included the relevant evidence from the Ambulance Call Report and P.C. Sagl and the Charter ruling regarding P.C. Sagl's grounds that followed the utterances.

[339] I posed the following question and instructions:

• Does the Crown seek to have P.C. Sagl's evidence, about the words/utterances spoken by S.S. to Ms. Lemcke, be part of the evidence proffered as admissions made to Ms. Lemcke, along with the utterances reported in the Ambulance Call Report?

• If yes, please state your position and provide brief written submissions. If no, submissions are optional. Also, any submission that flows from this point forward is welcomed.

• The Defence, before, and/or after, the Crown response, may send written submissions as they see fit.

[340] I received responses from both parties.

[341] The Crown's response included the following points:

• There is no need to distinguish between the utterances as heard by Cst. Sagl or the utterances heard by Ms. Lemcke. They are obviously the same utterances. Cst. Sagl's evidence as to the utterances is admissible as part of her viva voce evidence. Ms. Lemcke's Ambulance Call Report - which contains evidence as to the utterances - is admissible as past recollection recorded. If either is deemed admissible, then there is evidence as to what the utterances were.

• Any discrepancies with respect to the exact details of the utterances go to weight and not admissibility. This was a chaotic scene. It should come as no surprise that a witness may not remember the exact same details as another witness.

• Similarly, any concerns about the lack of context - including the questions asked to obtain the utterances - goes to weight, and not admissibility.

[342] The Applicant's response included the following points:

• The central issue in dealing with P.C. Sagl's evidence and the utterances, such as they were, is the incomplete manner in which they were recorded and the evidentiary landscape that surrounded them.

• The scene [in the ambulance] was not chaotic.

• Examples were given from P.C. Sagl's evidence and surrounding evidence with a view to illustrating her lack of note taking and lack of memory.

• The Applicant's condition was raised including the fact that he/she did not seem to understand or realize that he/she had been in a car accident, and he/she had a vague sense of time and place.

• The law with respect to incomplete utterances was reviewed including R. v. Ferris, 1994 ABCA 20; aff'd R. v. Ferris [1994] 3SCR 756, and R. v. Hunter, 2001 5637.

• "Thus, the Applicant states that to permit the statements attributed to [him/her] by P.C. Sagl or, for that matter, those that were recorded in the A.C.R., to be introduced into evidence would compromise trial fairness. They should be excluded because of their substantial prejudicial effect and their slight probative value. To do otherwise could imperil not just trial fairness but also the Applicant's right to make full answer and defence and ultimately, the search for truth; see R. v. Khelawon, 2006 SCC 57, paras. 47-48."

[343] By the time I returned to this issue, I had decided to exclude P.C. Sagl's evidence relevant to this issue under s.24(2). This causes a further potential complication.

[344] When reflecting upon the problem at hand, I found that the Applicant's submissions were quite helpful and in particular being referred to Ferris was very helpful.

[345] I decided to somewhat reframe my earlier analyses. In addition, I left out my own s. 24(2) ruling for the purposes of this analyses.

[346] The analyses is the same as originally stated above, up to the point where the trial fairness issue arose.

[347] Thereafter, I decided to focus on the fact that with both the Ambulance Call Report and P.C. Sagl, I am dealing with incomplete utterances, some of which may be admissions. Going forward I will refer to all of them as fragments.

[348] In my initial analyses, that I sent to the parties, I was concerned about the fragments in the Ambulance Call Report causing an unfairness and I was looking at whether P.C. Sagl's fragments were admissible as a way to possibly address the trial fairness issue.

[349] My analyses changes at this point because I no longer think that P.C. Sagl's fragments have any potential for addressing the trial fairness issue.

[350] A second version of the fragments does not improve the situation. They are still fragments, with the same weaknesses. More of them does not make any of them stronger or make the trial fairer.

[351] The common problems, in both the Ambulance Call Report and P.C. Sagl's evidence include:

• no questions were recorded

• some partial answers were recorded

• some of the fragments are paraphrasing by the author

• other possible questions and answers on the same topics were not recorded

• neither Ms. Lemcke nor P.C. Sagl can assist with any issue beyond their respective notation of a fragment

[352] Lastly, and most importantly there is no context for these fragments that lends any meaning to them, particularly with regard to a time frame. This is important with both crucial topics i.e., alcohol consumption and speed.

[353] The speed issue illustrates the problem most clearly. The only time where speed is relevant in this case is in the second or two prior to S.S.'s vehicle entering the ditch. The available evidence on the voir dire consistently shows that S.S. has no memory of this timeframe. Given this, there is no reason to think that any fragment about speed is connected to the relevant time.

[354] In the circumstances this evidence has little or no probative value, and it is obviously prejudicial. The same is true regarding the fragments about alcohol consumption. The balancing of the substantially prejudicial effect and the minimal probative effect favours exclusion of the available fragments of S.S.'s utterances given to Ms. Lemcke as recorded in the Ambulance Call Report, and as witnessed by P.C. Sagl and recorded in her notes.

[355] This results in the exclusion of S.S.'s utterances in of the Call Ambulance Report and P.C. Sagl's evidence about what she recorded in her notes.

[356] I note that although I am presiding as a judge alone on this trial, the answer to the above issue must be the same as it would be for an adult defendant on a jury trial. I would not admit these fragments into evidence on a hypothetical jury trial, given the evidence in this case. Thinking of the issue this way also brings into focus the fact that any trier-of- fact, myself included, would not have access to approximately half of the evidence about the Applicant having no memory of the event. This is due to the fact that I had access, on the voir dire only, to the fact that approximately one and a half hours after the arrest the Applicant still had no memory of the accident, including not being able to remember anything about anyone being with him/her at the time.

XV. Analyses: Admissibility of Dr. Mayers' reports and evidence

[357] The Crown materials seeks to have Dr. Mayer's reports admitted into evidence.

[358] In the review of evidence above I stated as follows. As part of his [Dr. Mayers’] evidence he adopted two reports that he authored. These were made Exhibits 7 and 8. With the benefit of hindsight, given the application to exclude this evidence as a result of the S. 8 application these should have been made lettered exhibits on the voir dire.

[359] Dr. Mayers' expert opinion was based upon the blood sample he received. He used the blood plus a notation on the vial as the basis for all of his opinions. Given the blood sample has been excluded Dr. Mayers' viva voce evidence, and similar things said in his reports about the results from the blood sample and opinion evidence based on these results, become irrelevant and not admissible on the trial.

[360] Dr. Mayers, without taking any ownership of the hospital lab reports, made comments about them and how similar they were to his results. The Sunnybrook lab report has not been admitted into the trial. Therefore, Dr. Mayers' viva voce evidence, and any similar things said in his reports, about the Sunnybrook lab report become irrelevant and not admissible on the trial.

TRIAL RULING

INTRODUCTION AND POSITION OF PARTIES

[361] There is evidence, already reviewed in the Charter and Evidentiary Rulings part of this judgment, that applies to the trial. This includes:

• The overview of the incident outlined in paragraphs 2-8 above.

• P. C. Sagl's evidence about the scene as set out in paragraphs 15-18 above.

• P.C. Byford's evidence as set out in paragraphs 25-26 above.

• Jessie Lemcke's evidence as set out in paragraphs 28-42 above, with the exception of utterances by S.S. which were not admitted into the trial evidence.

• The Ambulance Call report with the same exception regarding the utterances just mentioned.

[362] In addition, there is trial evidence about the scene. This evidence consists of:

• Photographs of the scene taken at night with the use of some artificial lighting from the headlights of emergency vehicles and a couple of portable lights. (Note: No witness used the photos in their evidence beyond stating that 'this is the backpack' and 'these are the trees'.)

• These photographs, among other things, also show the damage to the car and the location of the black knapsack.

• One set of measurements regarding the path of the motor vehicle.

[363] It is also worth clarifying what is not part of the evidence in this case.

• There are no other measurements of anything at the scene.

• Given there are no measurements, perhaps unsurprisingly, there is no diagram of the scene.

• There is evidence that all vehicles with air bags have a 'black box' (i.e., an EDR - Event Data Recorder). This vehicle clearly had a multitude of air bags so it would have had a 'black box'. The police made no attempt to retrieve it. The reason for this appears to be that Peel Police have purchased software, Bosch Crash Data Retrieval Software, for analyzing 'black box' data, but the software they have purchased from Bosch does not support an analyses of the model year of this particular BMW. S.S.'s vehicle was a 2012 BMW 3 series sedan. The Bosch system for this vehicle begins in 2013.

• Beyond the photographs there is no evidence about the car, including whether it was front or rear wheel drive.

• There is no accident reconstruction report.

[364] A key point that the Crown asks me to infer from the evidence presented is about the speed of the car. The Crown submits that the combination of the following should lead me to conclude the speed was well over 100 km/hr and in the 150-200 km./hr. range:

• the distance travelled through a wet ditch;

• hitting 2 trees with the 2nd tree showing damage at an elevated level; and

• the car being "split in half" with part of it on the road.

[365] I asked the Crown if, in making this submission, he was suggesting that the trees split the car. He replied ‘no’, that it could be the trees or something in the ditch. The Crown did not identify what might have been in the ditch, and it seems that he favours the hypothetical that the vehicle hitting the trees caused the portion of the vehicle found on the roadway, to be split off.

[366] The Crown submits that life experience and common sense can lead to the conclusion he advocates for regarding speed.

[367] Then the Crown submits that I should also consider the wet weather when considering the inappropriateness of the speed.

[368] The overall Crown position is that the evidence proves the elements of the charges as laid, i.e., Impaired Causing Death and Criminal Negligence Causing Death or in the alternative for an included offence of Dangerous Operation Causing Death. The Crown bases this position on:

• this is a single vehicle, otherwise unexplained, accident;

• there was very high speed involved on a two-lane road with a posted speed limit of 70 km./hour; and

• the presence of alcohol at the scene, from which it is suggested an inference can be made about consumption and about impairment to any degree being a contributing factor, in the otherwise unexplained accident.

[369] The Defence Position is that there are no facts to apply to the necessary elements of each offence charged, and that the same is true for the offence of Dangerous Operation Causing Death. Specifically, the following was emphasized:

• no evidence of indicia of impairment;

• no evidence of manner of driving;

• no evidence of speed;

• no reconstruction evidence;

• no evidence about mechanical issues including re: tires; and

• no witnesses to the driving.

[370] The Defence position is that most of the things that the Crown asserts are speculative.

[371] There is no issue as between the parties regarding the elements of the three offences.

ADDITIONAL EVIDENCE

At the Scene

Civilian Evidence

[372] A civilian, Mr. Dhaliwal, was the first person to arrive on scene. He and a friend were driving southbound and noticed they were driving on car parts and then they saw smoke. They made a U-turn and came back. Mr. Dhaliwal was able to reach in and move the driver's air bag and noticed that the driver appeared unconscious and did not respond to him. He tried to open the driver's door, but it was jammed. He also noticed the back end of the vehicle was missing. He saw an unconscious passenger in the other front seat, but his body was pushed toward the backseat.

[373] Mr. Dhaliwal agreed that the lighting in the area was poor and that the roads were wet.

[374] One additional point that comes out of Mr. Dhaliwal's evidence is, as was pointed out in the s.8 Search Warrant analyses, that care must be taken to not attribute damage to the accident when it may have been caused, in certain instances, by the Fire Department.

The Backpack

[375] The close-up photo of the backpack (also used in the ITO) is photo #6171. The photo shows a liquor bottle with no lid. The photo is not suggestive of the bottle being easily available for drinking as it is tucked into the inner wall of the backpack with large plastic Canada Dry bottles (one with liquid in it and one empty and crumpled on top) in front of the bottle of liquor, holding it in place.

[376] P.C. Sagl's evidence is that there was a cap on the bottle when she saw it.

[377] There are a number of photos showing the position of the backpack on the road. One of those photos is #6161. This photo illustrates that this location is at the scene, but it is well away from, and above, the vehicle in the ditch. The backpack is at the same level as the part of the vehicle that is on the road, but the backpack is further south on the shoulder.

[378] There is no way of inferring where the backpack may have been before the vehicle entered the ditch.

The Vehicle

[379] The vehicle was a four-door sedan with low rise tires. The photographer, P.C. Patterson took quite a few pictures of the rear wheel tires. The left one was on the vehicle in the ditch and the right one was with other car parts on the road. These photos show there is an absence of cross-hatched treads on the tires, other than on the edges. There is no evidence about whether this was the way the tires were designed or if they were worn etc. A couple of the pictures of the wheel on the road appear to show a gap between the tire and the rim.

[380] The most remarkable thing about the damage to the vehicle is how much of it is broken off and up on the roadway. This damage is to the passenger side of the vehicle. From front to back, the damage begins in the vicinity of the back passenger seat. There is damage to the undercarriage at that point, which apparently resulted in the back passenger wheel and axel, and many connected parts of the rear of the vehicle, coming off of the rest of the vehicle and moving onto the roadway together (i.e., still connected). This also included some upper parts of the back passenger side of the vehicle including part of a back seat and a rear passenger window airbag and window frame. (See photos 6175, 6176, and 6238)

[381] After this damage occurred it is clear, at a minimum, there would be no functioning brakes in the rear of the vehicle. Looking at the amount of parts collected on the roadway together, I find that there is reasonable doubt as to whether the vehicle was operable after the event that caused this severe damage.

[382] The question then becomes when and where did the damage occur.

Path of front end of Vehicle

[383] P.C. Dawe attended scene at 12:25 a.m. He examined the path of the car. His evidence is: (Transcript January 20/22 p. 45. L.15-21.)

… I saw tire marks from the vehicle and it led off the roadway in an easterly direction, southeasterly direction, and then it went into a ditch where it struck grass and then it basically slid along the grass to a point where it struck one tree and then a second tree. And then it came to rest. So, I laid down some cones where I saw scrape marks in the grass or tire marks on the road.

[384] P.C. Dawe laid down yellow cones for the passenger side of the car.

• 32.9 metres - on pavement

• 2.7 metres - shoulder of road leading into grass

• 49.3 metres - remainder to resting point

• 84.9 metres - total

[385] P.C. Dawe laid down orange cones for the driver's side of the car.

• 68.3 metres - he did not testify about a starting point, but photos suggest it was just off of the paved shoulder. There were no marks on the pavement caused by driver's side.

[386] The officer explained that the passenger’s side path is longer because the vehicle was likely leaning more heavily on that side when braking on the roadway.

The trees

[387] The Crown pointed out the photos of the trees (#6187-#6193) with the photographer, P.C. Patterson. There is no additional evidence about the trees.

[388] The Crown's submissions raised the question: Could the trees have been the cause of the vehicle losing the part of the vehicle that was found on the roadway? This possibility cannot be eliminated, but it seems unlikely given the trees are on the driver's side and the severe damage is on the passenger’s side. Further P.C. Dawe's evidence would suggest that the front (and larger) portion of the car can be traced along the ground (i.e., he does not suggest the vehicle left the ground)

The Ditch

[389] The Crown did not explore the ditch beyond making a vague suggestion in submissions.

[390] Looking at the pictures, which in many cases are quite dark, the only thing I could find in the ditch were two culverts.

[391] One culvert has a dead dog just inside of the mouth of the culvert. I believe this is located south of where the vehicle came to a rest, and it is the culvert that runs north and south under Rychman Lane. Given this location, and the fact that it appears to be undamaged, it does not appear to have been involved. (Photos: 6195 and 6196)

[392] The other culvert runs under McVean and at least from the photographs it appears as if the under side and lower portion of the passenger side of the vehicle may have struck this culvert, as the vehicle was descending into the ditch, or just after the descent, and that after this contact the rear wheel, and the connected parts, came out of the ditch onto the roadway. The photographs that appear to show this are:

• Photo 6215 - when zoomed in one can see where the passenger side of vehicle left the road at yellow markers 32 & 33. In the same photo one can see orange (driver's side) markers 32 & 33 in the ditch.

• Photo 6218 - of the ditch, taken when no yellow markers were laid out, but one can see orange markers 32 & 33. To the right of the these markers one can see the culvert.

• Photo 6203 - closer shot of orange marker 33 and the culvert. Zooming in on the culvert shows that it looks dirty and damaged especially on the top, at the mouth of the culvert.

• Photo 6200 - shows a spray of dirt at the point where the passenger side of the vehicle enters the ditch. Zooming in somewhat shows a second spray of dirt just south of the first one and then the portion of the car on the road is south of this. Zooming in further and to the left, i.e., into the ditch, one can just see, at the bottom of the decline into the ditch, 3 ridges on the corrugated steel pipe of the culvert and to the left of that orange markers 33 and 32 (32 is unreadable, but identifiable given earlier photos).

[393] Given this evidence, combined with my earlier decision that there is a reasonable doubt about the vehicle being operable after the right passenger wheel and many attached car parts came off the car, I find that this reasonable doubt, about operability, begins at the point of this culvert, in the ditch.

[394] It follows that there is also reasonable doubt whether S.S. was operating the vehicle beyond this point, because it cannot be proven that it was operable.

Defence Evidence

[395] No evidence was called by the Defence.

FINDINGS OF FACT

[396] My findings are as follows:

• S.S. was operating the vehicle southbound on McVean.

• This was a two- lane road with a speed limit of 70 km/hr.

• The conditions at the time were: it was dark; there was no lighting on the roadway; this was a semi-rural, lightly traveled area; and the road was wet.

• S.S.’s vehicle moved into the northbound lane.

• A skid mark indicates that he applied the brakes.

• Everything that is known about the driving/operation of the vehicle begins with the beginning of the skid mark and ends at the culvert in the ditch (that ran under McVean).

• This is a distance of 36 or perhaps 37 metres. This calculates out to about more or less than 7 car lengths, and if hypothetically he was traveling at the speed limit a total of 2 seconds.

• This distance and time could reasonably be considered to be 'momentary.'

• There is no evidence as to what happened in this moment, or what preceded it.

• I do not accept the Crown’s position that I can determine a range of speed based on the wreckage and the scene.

• The Crown's position about speed is extremely speculative and I do not accept the concept that speed, at any level, in this case, is a matter of common sense and life experience and does not require expert evidence.

• I do not accept the Crown’s opinion about speed, and I will not engage in such speculation myself. There is no evidence from which any inference can be drawn.

• There is no evidence of indicia of impairment.

• I do not infer, from the presence of alcohol in the backpack at the scene, anything about the consumption of alcohol by S.S., and I do not infer it was readily available to him when he was driving.

• I do not infer from the momentary skidding that there was even a slight impairment in his ability to operate the vehicle.

CONCLUSION

[397] I will only deal with the actus reus of each offence because in each instance further analyses is not required.

Impaired Operation Causing Death

[398] The actus reus of this offence is operating a conveyance while the person's ability to operate it is impaired to any degree by alcohol or a drug or by any combination of alcohol and a drug.

[399] Given the overall findings of fact in paragraph 396 above there is no evidence of S.S.'s ability to operate his vehicle being impaired to any degree. The Crown has not proven the necessary elements of this offence beyond a reasonable doubt.

Dangerous Operation Causing Death

[400] This is an included offence on the Criminal Negligence Causing Death charge.

[401] The actus reus for this offence requires that, as the trier of fact, I must be satisfied beyond a reasonable doubt that, viewed objectively, S.S was driving in a manner that, having regard to all of the circumstances, is dangerous to the public.

[402] There is no evidence in this case of a 'manner of driving'. This cannot be extrapolated, in either direction, from the 1-2 seconds of driving evidence over 36-37 metres. There is no proof of objectively dangerous conduct. Tragically, the passenger, J.S. passed away, but this consequence does not inform the analyses.

[403] Given the overall findings of fact in paragraph 396 above, the Crown has not proven the necessary elements of this offence beyond a reasonable doubt.

Criminal Negligence Causing Death

[404] This charge requires that that the Crown prove S.S.'s conduct constituted a marked and substantial departure from that expected of a reasonable driver and proof that the conduct demonstrated a wanton or reckless disregard for the lives or safety of other person.

[405] In this case, the charge was particularized as being by impaired operation. It follows from the ruling on the impaired charge that this particular has not been proven.

[406] Leaving the particularization aside, as is clear from the elements just set out, the standard for criminal negligence causing death is higher than for the included offence of dangerous operation causing death and for the same reasons as stated for the dangerous operation charge, the elements of this offence have not been proven.

[407] Given the overall findings of fact in paragraph 396 above, the Crown has not proven the necessary elements of this offence beyond a reasonable doubt.

RULING

[408] S.S. is found not guilty on both charges on the Information.

Released: April 28, 2022

Signed: Justice Kathryn L. Hawke