COURT FILE No.: 0611-998-21-1317 DATE: February 10, 2023

ONTARIO COURT OF JUSTICE Central West Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

brendan hamilton

Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on November 29, December 6, and December 12, 2022 Reasons released on February 10, 2023

Counsel: Mr. Ayoub Ansari................................................................................................... for the Crown Mr. Brian Starkman......................................................................................... for the Defendant

SCHWARZL, J.:

REASONS FOR JUDGMENT

1.0: INTRODUCTION

[1.] The Defendant, Brendan Hamilton, stands trial for two alcohol-related charges stemming from a single-car collision on September 27, 2021. Count 1 is a charge of impaired driving; Count 2 alleges that he drove a conveyance with excess blood alcohol concentration.

[2.] The prosecution led evidence from four witnesses. There was also an agreed statement of fact regarding a prosecution witness. The defendant gave evidence in connection with his application regarding his constitutional rights, but not on the trial.

[3.] With respect to the impaired driving charge, the sole issue is whether the prosecution has proven on the criminal standard that the defendant’s ability to drive was impaired by the consumption of alcohol.

[4.] With respect to the drive with excess blood alcohol charge, the only issue is whether the defendant’s right to counsel was violated by the police and, if it was, whether the breath test results should be suppressed.

2.0: FACTS NOT IN DISPUTE

[5.] The following facts are not in dispute.

[6.] At around 9:30 p.m. on September 27, 2021 a citizen called 911 after hearing the sound of a car crash near a marked s-bend in the area of Airport Road and Cedar Lane in the town of Mono. The defendant was the sole occupant and driver of the motor vehicle involved in the single-car collision.

[7.] Ambulance services and police were dispatched to attend the scene, with ambulance personnel arriving ahead of the police. One ambulance came from Shelburne while a second one came from Orangeville.

[8.] One of the Orangeville ambulance attendants, Mr. Jonathan Reid, testified. When he got to the scene at around 10:00 p.m., ambulance attendants from Shelburne were placing a cervical collar on the defendant’s neck, who was at that time beside a severely damaged SUV laying on the passenger side down a steep embankment on the west side of Airport Road. The Defendant’s head was bleeding. No evidence was led concerning the nature or extent of his injury.

[9.] The defendant was placed on a gurney and brought to the ambulance destined to take him to the hospital in Orangeville. In the ambulance, the defendant told Reid that he had been drinking, but gave no other information. The defendant was emotionally volatile both in the ambulance and in the hospital emergency department: he was angry one moment, but sad and apologetic the next. While in the emergency room, he calmed down.

[10.] Shortly after the two ambulances arrived, P.C. McKay and his partner, P.C. Crisp, attended the scene.

[11.] P.C. McKay assessed the collision scene and observed the following: the guard rails on both the east and west sides of Airport Road were damaged. There were tire marks of approximately 50 yards in length on the road leading to the point of impact with the first guardrail and to the point of impact with the other guardrail. The weather was slightly cloudy and the road was dry.

[12.] As the ambulance personnel attended to the Defendant, he told them that he was returning from golf and had been drinking. He also said that he was sorry and that he fucked up and had made a huge mistake. The Defendant was crying at the scene.

[13.] Shortly after entering the ambulance, police arrested the Defendant. When asked if he understood his right to speak to lawyer, he responded, “Fuck you. I hate fucking cops. Go fuck yourself.”

[14.] Sometime after arriving at the hospital, and after attempts to reach private counsel, the Defendant spoke to duty counsel from a curtained-off bed in the emergency room. He did not complain to anybody about a lack of privacy. After his call, the Defendant told the qualified breath technician that he was satisfied with his call with counsel.

[15.] The Defendant then provided two suitable samples of his breath into an approved instrument operated by P.C. Dent. The lowest result of the two tests was 170 milligrams of alcohol per one hundred millilitres of blood.

3.0: COUNT 1: WAS THE DEFENDANT IMPAIRED?

3.1: Positions of the Parties

[16.] The defence submits that when considering the evidence as a whole, it would be fair to suspect that the Defendant was impaired but wrong to conclude impairment beyond a reasonable doubt.

[17.] The prosecution submits that on the totality of the facts, the only rational conclusion is that the defendant’s ability to drive safely was impaired to some degree by the consumption of alcohol.

3.2: Relevant Legal Principles

[18.] Impairment of the ability to operate a motor vehicle or a conveyance must be proven, not just “impairment” generally: R. v. Ryan, [1998] O.J. No. 3539 (Gen. Div.); R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A); R. v. Jobin (2002), 2002 32209 (QC CA), 165 C.C.C. (3d) 550 (Que. C.A.) at ¶ 53.

[19.] Any degree of impairment ranging from slight to great, establishes the offence: R. v. Stellato (1993), 1993 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.); aff’d (1994), 1994 94 (SCC), 90 C.C.C. (3d) 160 (S.C.C.); R. v. Moreno-Baches, 2007 ONCA 258, [2007] O.J. No. 1314 (C.A.) at ¶ 2.

[20.] The trial judge must assess the cumulative effect of whole of the evidence of impairment, not each piece of evidence individually: R. v. Elvikis, [1997] O.J. No. 234 (G.D.), at ¶ 23 – 29; R. v. Grant, 2014 ONSC 1479, [2014] O.J. No. 1143 (S.C.J.) at ¶ 50; R. v. Reeves, [2018] O.J. No. 4431 (S.C.J.) at ¶ 76; R. v. Uduma, [2019] O.J. No. 1866 (S.C.J.) at ¶ 11 – 16; R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 at ¶ 54 – 58. The ultimate question is not whether there are other possible explanations for individual circumstances, but whether a finding guilt is the only reasonable inference that can be drawn from the whole of the evidence: R. v. Griffin, 2009 SCC 28 at ¶ 27.

[21.] Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like: R. v. Censoni, [2001] O.J. No 5189 at ¶ 47 (S.C.J.).

3.3: Principles Applied

[22.] For reasons I will explain, I find that the prosecution has proven beyond a reasonable doubt that the ability of the defendant to drive was impaired by the consumption of alcohol at the time of the collision.

[23.] The gross signs of intoxication were modest in this case. Some of those signs including the condition of his eyes, the smell of alcohol on his breath, and his emotional volatility may ambiguous taken individually in the circumstances. Furthermore, the Defendant’s statements that he was drinking and that he “fucked up” are also not determinative in isolation. Even a sober person or someone who had something to drink can get into a collision without criminal liability.

[24.] When considering all of the circumstances taken together, I am satisfied beyond a reasonable doubt that the defendant’s ability to drive was impaired by alcohol at the time of the collision. Given that only one witness described slurred speech, I do not factor that observation into my assessment. There is no doubt that the Defendant consumed alcohol. His eyes were watery not only at the scene, but also at the hospital, well after he stopped crying. At no time did the Defendant appear disoriented, confused, or incoherent. The absence of cognitive difficulties undermines any reasonable doubt that that his emotional volatility (which subsided at the hospital) may have been the result of his head injury. The fact that that he drove badly and wound up in a ditch was likely upsetting, but I have no doubt that the consumption of alcohol also contributed to his mood swings.

[25.] I disagree with the submission made by the defence that the circumstances of the collision are weak indicators of intoxication in this case: R. v. Rhyason, 2006 ABCA 367, [2006] A.J. No. 1498, aff'd on other grounds 2007 SCC 39, [2007] S.C.J. No. 39, at paras. 36-37; R. v. Goudreault, 2004 34503 (ON CA), [2004] O.J. No. 4307 (C.A.), at para. 14.

[26.] In this case, neither the weather nor road conditions influenced the driving. It is obvious that the Defendant mishandled his automobile and there was no explanation other than poor judgment and unnecessary risk taking. The s-curve was marked with warning signs, which he did not heed. The presence and length of significant tire marks indicates that he was driving too fast or without proper attention. The fact of contact with guard rails on both sides of the road shows that he failed to maintain control of his car. All of this happened after he had consumed alcohol. I am well satisfied with that his statement that he “fucked up and made a big mistake” is an admission that due his consumption of alcohol he could not drive safely. Even if the Defendant had said nothing, I would still conclude on the totality of the other evidence that the defendant’s ability to drive was impaired by the consumption of alcohol to, or beyond, the slightest degree: R. v. Lyaruu, 2011 ONCA 547, [2011] O.J. No. 3558 (C.A.); R. v. Ramroop, [2021] O.J. No. 4855 (C.A) at ¶ 11 to 16.

[27.] I do not find that the Defendant’s level of intoxication was significant, especially since he appeared to sober up at the hospital. Nevertheless, when assessing the cumulative effect of the whole of the evidence, I find beyond a reasonable doubt that the only reasonable inference is that the consumption of alcohol materially contributed to his failure to negotiate Airport Road safely.

4.0: COUNT 2: RIGHTS TO COUNSEL

4.1: Positions of the Parties

[28.] The Defendant submits that his right to counsel guaranteed by section 10(b) of the Canadian Charter of Rights and Freedoms (the Charter) was probably violated in two ways: first, because the police failed to properly facilitate access to private counsel, and second, because his privacy was infringed by police and hospital staff when he spoke to duty counsel. The Defendant submits that if I find that his right to counsel was breached, I should exclude the breath test results and find him not guilty of count 2.

[29.] The prosecution submits that the police acted reasonably in facilitating the defendant’s access to legal advice and gave him the best possible privacy in the circumstances. They further submit that the hospital staff are not agents of the state for the purpose of facilitating rights to counsel.

4.2: Relevant Legal Principles

[30.] In the recent case of R. v. Williams, [2023] O.J. No. 215 (O.C.J.) at paragraphs 38 to 41, De Filippis J. summarized the following principles regarding rights to counsel that pertinent to the case at bar:

38. The Supreme Court of Canada has described the purpose of s. 10 (b) as ensuring "that a suspect is able to make a choice to speak to the police investigators that is both free and informed." R. v. Sinclair, 2010 SCC 35. This purpose is accomplished "by ensuring that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations": R. v. Willier, 2010 SCC 37. This means that s. 10 (b) imposes certain duties on the police:

    1. To inform the detainee of his/her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;
    2. If the detainee has expressed a desire to exercise this right, to provide the person with a reasonable opportunity to exercise the right;
    3. To refrain from eliciting evidence from the detainee until the person has had that opportunity.

39. When the police assist the detainee in exercising his or her right to counsel, the police are not required to exhaust all reasonable means for a detainee to speak with a lawyer. The test is not whether the police could have done more, but whether the police provided the detainee with the necessary information and assistance to allow the detainee a reasonable opportunity to exercise his or her rights: R. v Wilding, 2007 ONCA 853.

40. The defendant must establish an evidentiary basis for a finding that he was improperly steered to duty counsel….

41. When counsel of choice is not immediately available the police are allowed to follow up by asking the detainee is they wish to speak with duty counsel; R. v Shen, 2020 ONSC 2629; R. v Persaud, 2020 ONSC 3413. Where the detainee accepts the opportunity to speak with duty counsel after an unsuccessful attempt to contact counsel of choice, no Prosper warning is required. The detainee has not waived their right to counsel, they have chosen to exercise their right to counsel by speaking with duty counsel: Willier, supra. Where the officer leaves a message for counsel of choice and then immediately puts the accused in contact with duty counsel, there is no s.10 (b) breach where the accused did not express any concern and there was no indication that the accused did not understand their rights: R. v. Littleford, 2001 8559 (ON CA), [2001] O.J. No. 2437 (C.A.).

[31.] The right to counsel includes speaking with counsel in private. If there is an invasion or prevention of privacy, then a breach of s. 10 (b) is made out: R. v. Carroll, [2002] O.J. No. 1215 (O.C.J.). Where there is no actual invasion of privacy, there may still be a breach of s. 10 (b) where the detainee establishes that he reasonably believed in the circumstances that he could not retain or instruct counsel in private. However, the mere possibility of being overheard is insufficient to establish a breach: R. v. Playford (1987), 1987 125 (ON CA), 40 C.C.C. (3d) 142 (Ont. C.A.); R. v. Olak (1990), 1990 11012 (ON CA), 55 C.C.C. (3d) 257 (Ont. C.A.); R. v. Cairns, 2004 17588 (ON CA), [2004] O.J. No. 210 (C.A.); R. v. Burley, 2004 9437 (ON CA), [2004] O.J. No. 319 (C.A.); R. v. Peyton, [2007] O.J. No. 3723 (O.C.J.); R. v. Sirelpuu, [2011] O.J. No. 3268 (C.J.); R. v. Hume, 2013 ONCJ 380, [2013] O.J. No. 3243 (C.J.), aff’d 2014 ONSC 6641, [2014] O.J. No. 5727 (S.C.J.); R. v. Beals, [2020] O.J. No. 6140 (S.C.J.) at ¶ 114 – 116; R. v. Cheng, [2021] O.J. No. 2547 (C.A.).

[32.] In a hospital setting, the need to provide access to counsel in private may be more challenging for police than it would be at a police station. However, a hospital is not a Charter-free zone, and the police have an obligation under s. 10(b) to take reasonable steps to facilitate access to counsel in private at the first reasonable opportunity: R. v. Niganobe, [2008] O.J. No. 1639 at ¶ 189; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495 at ¶ 34; R. v. Tyson, [2019] O.J. No. 1701 (O.C.J.) at ¶ 80. When facilitating rights to counsel in a place other than a police station, the police must afford the detainee the “best possible accommodation” of privacy: R. v. Turriff, [1998] O.J. No. 4818 (G.D.) aff’d [2000] O.J. No. 1522 (C.A.).

[33.] Depending on the circumstances, a detainee’s right to speak with a lawyer in private could be violated by non-state actors such as television crews, hospital patients, and medical staff: R. v. Gautam, [2017] O.J. No. 4418 (O.C.J.); R. v. Kress, [2017] O.J. No. 7084 (O.C.J.); R. v. Ahmad, [2011] O.J. No. 6456 (O.C.J.).

4.3: Principles Applied

4.3.1: General Assessment of the witnesses

[34.] The two principal witnesses on the rights to counsel issue are P.C. Crisp and the defendant. While the other two police officers have relevant evidence, their roles on this issue are secondary. For reasons I will explain, the evidence of P.C. Crisp is reliable and credible, whereas that of the Defendant is less so.

[35.] The Defendant submits that because P.C. Crisp lacked notes his memory of the evidence is inherently unreliable. I found P.C. Crisp to be a careful, cautious, fair, and honest witness. He was candid in stating that he made few notes on the privacy issue because he did not consider it a problem at the time. This is entirely reasonable given his testimony and that of the other officers, all of whom said that they knew they had to give the Defendant as much privacy as possible in a busy and crowded Emergency Room. Crisp was aware of, and alert to, his duties to facilitate access to counsel and he has dealt with issue at the emergency room in the past. Accordingly, his familiarity with his duties and with the emergency room serve to give me confidence in his evidence. Furthermore, Crisp appeared to have a clear and certain memory of the events despite the lack of notes. Lastly, Crisp’s evidence was materially confirmed by the other officers, neither of whom had detailed notes either.

[36.] The defendant did not make any notes at the time, but I am not asked to penalize him given the singularity of the events to his life experience. I am as unconcerned about his lack of notes as I am about the officers’ lack of notes. The Defendant’s recall was laced with uncertainty. Two examples illustrate this uncertainty. First, he unsure that the police told him they called his father after he asked them to do so Second, he did not recall if the lawyer his father recommended had been called. When considering the weight of the defendant’s evidence, I keep in mind that he had been drinking and was distraught, both of which impact negatively on his perceptions of the relevant events. All this said, there are many aspects of his evidence which were consistent with that of the police officers, for example that he was told by P.C. Crisp to inform a nurse when he was done speaking with counsel.

[37.] Accordingly, where there are differences between the evidence of P.C. Crisp and Mr. Hamilton, I prefer the evidence of P.C. Crisp.

4.3.2: Facilitating Access to Private Lawyer

[38.] After viewing and reviewing the evidence, I find that the following chronology is probably what happened with respect to the facilitation of counsel for the defendant.

[39.] After the police and the defendant arrived at the hospital, Mr. Hamilton began to calm down. He told the police he wanted to contact his father to get a private lawyer. After making several calls, P.C. Crisp was able to speak with the Defendant’s father who told the officer that the only lawyer he knew was Jason Self, an estate lawyer. The Defendant’s father thought that Mr. Self might know a criminal lawyer. At 11:04 p.m. P.C. Crisp called the number for Mr. Self that he had been given by the Defendant’s father. The number was for Mr. Self’s office. No one picked up so P.C. Crisp left a message. Crisp then told the Defendant that he had called Mr. Self and that a message was left. Crisp also told the Defendant that Mr. Self was an estate lawyer. He did so for no other purpose than completeness and transparency. Although he did not try to find an alternative number, this was reasonable given that the events occurred away from the police station so that the tools available to P.C. Crisp were limited. He also told the Defendant that given the time of day, it was unlikely that Mr. Self would call back especially since the office number only facilitated leaving a message. The Defendant did not ask the police to pursue an alternative number for Mr. Self.

[40.] After telling the Defendant about the call to Mr. Self, P.C. Crisp told the Defendant that he could call another lawyer if he would tell them who it was and how to contact them. He also told the Defendant that he could try to search for a lawyer if he wanted. Lastly, P.C. Crisp told the Defendant that if he wanted, he could speak to the free duty counsel lawyer. The Defendant told Crisp that he wanted to speak with duty counsel, which was confirmed by P.C. McKay who overheard this conversation. The Defendant also told the police that he did not want to speak with Mr. Self because he did not know him to be anything other than a lawyer for his family. In his evidence the Defendant agreed the police appeared to make sincere efforts to call a lawyer for him, but he wanted immediate advice which is why he spoke to duty counsel.

[41.] The Defendant testified that he believed that duty counsel was the only option. Not only is this materially contradicted by the reliable evidence of P.C. Crisp and P.C. McKay, but it is belied by his evidence that he did not know any other lawyers and he wanted to talk to a lawyer right away. I also disbelieve him when he said that he did not know he could look up or call another lawyer because I accept the careful and reasonable evidence of P.C. Crisp who told the Defendant that this is exactly what he could do if he wanted. Furthermore, when given his right to counsel, the defendant was clearly told that he could speak with any lawyer he wanted. There was no evidence that the defendant did not understand his rights at the time he was so informed.

[42.] I conclude that (a) the police made reasonable efforts to facilitate a call to counsel of choice and (b) when that lawyer was not immediately available, the defendant made a fully informed choice to speak to duty counsel, which meant there was no need to wait to see if Mr. Self would call back.

4.3.3: Privacy When Speaking with Duty Counsel

[43.] For reasons I will explain, I find that when the Defendant spoke with duty counsel, the police afforded him the best accommodation of his privacy that was possible in the circumstances.

[44.] The E.R. of the Headwaters Hospital has a seclusion room which, if used, would afford complete privacy. The room was not used by the police in this case. I accept the evidence that the seclusion room is normally offered to the police for their use if available. Since it was not used, the only logical inference on the evidence is that the room was probably already being used by the hospital. This is consistent with the uncontradicted evidence that it was a very busy night in the E.R. at the time of this occurrence.

[45.] The Defendant accessed legal advice by telephone while lying on a gurney surrounded only by a curtain. Complete audio privacy was impossible unless the police left the E.R. entirely, which they could not reasonably do because they had to at least maintain visual observation of the Defendant’s location, albeit while he was behind a curtain.

[46.] The Defendant said in his affidavit that an officer stood next to him for the duration of his call to duty counsel. I disbelieve him for three reasons. First, he contradicted this by testifying that the police were 8 to 10 feet away beyond his bed curtain while he was on the telephone. Second, each officer testified that they stood quite a distance away to provide audio privacy. All three officers said they moved away from the defendant’s bed as far as possible. P.C. Dent thought they were closer than McKay and Crisp recalled, but I find that they were all far enough away from the Defendant’s bed so as to give him as much audio privacy as possible. Finally, I believe P.C. Crisp that he told the Defendant that they would go down the hall to give him privacy. This is consistent with his evidence (with which the Defendant agreed) that he told Mr. Hamilton to alert a nurse when he was finished speaking with duty counsel. The only reason to tell the Defendant to advise a nurse when he was done is because the officers would be too far away to hear the Defendant. If an officer stood next to, or near, his bed there was no reason to make such a statement to him.

[47.] There was no evidence or suggestion that any patients, hospital staff, or any third party impeded the Defendant’s ability to speak privately with duty counsel.

[48.] The Defendant said he could hear the officers’ radios and their voices and thus he thought they could hear him, too. Every witness agreed that the hospital E.R. was very busy and noisy that night. There was so much ambient sound of hospital personnel, patients, police, medical and police devices and machines that the police could not hear the Defendant and he could not hear them. The Defendant acknowledged that at best he could hear voices, but he was not able to make out what was being said by others. If he could not make out what others said, it was likely that no one could hear what he said, either. In these circumstances, it was not reasonable for the Defendant to believe that he could not speak with counsel privately.

[49.] In the circumstances of this case, the Defendant has failed to demonstrate that his privacy was violated. While the situation was not ideal, his privacy was accommodated as best as possible by the reasonable conduct of the police and by the surrounding noise which rendered unrealistic the prospects of anybody overhearing what he said while on the telephone.

[50.] The Defendant’s claim that he reasonably believed his call was not private does withstand scrutiny. As I already stated, he was told that the officers would move far away, which they did; he was told to let a nurse know when he was finished his call; and the E.R. was too noisy for anybody to hear what he was saying or for him to hear what anyone in the area was saying. Furthermore, the Defendant never complained during or after his call that he felt his privacy was impeded in any way. To the contrary, he told the police that he was satisfied with his call with duty counsel.

[51.] The Defendant gave evidence that he thought he was not entitled to privacy. This claim is spurious not only given the facts as I have found them but by his own evidence that he spoke quietly, the only reason for which is to create and maintain privacy. I find that the Defendant was unreasonable to think that his call with counsel was not as private as it could be in the circumstances.

[52.] For all the foregoing reasons, I find that the Defendant has failed to demonstrate that his right to counsel was most likely violated in this case. His Charter application is dismissed, and the breath test results are admissible evidence on Count 2.

5.0: CONCLUSIONS

[53.] My verdicts are therefore as follows. On Count 1, impaired driving: guilty. On Count 2, driving with excess blood alcohol: guilty.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice