ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P) 330/13
DATE: 2015-07-27

BETWEEN:

HER MAJESTY THE QUEEN

Robin Prihar, for the Crown

• and -

JANINA KRAUS

Adam Forbes, for the Defendant

HEARD: November 25-27, 2014, and June 8, 2015

Ruling on Voluntariness and Charter Applications¹

Baltman J.

1On July 11, 2012, Ms. Kraus was the driver of a car involved in a motor vehicle collision in Mississauga. She faces four charges as a result:

i. Impaired Driving Causing Bodily Harm;

ii. Operating a Motor Vehicle while “Over 80”;

iii. Dangerous Driving causing Bodily Harm;

iv. Refusal to Comply with Breath Demand

2Both the Crown and Defence have brought pre-trial applications. The Crown seeks a ruling on the voluntariness of various utterances attributed to Ms. Kraus; the Defence wishes to exclude both the blood samples taken at the hospital and evidence of the breath demand on the basis that Ms. Kraus’ right to counsel pursuant to s. 10 (b) of the Charter was breached.

3For the following reasons, I have concluded:

a) The utterances in issue are not admissible;

b) The blood samples were obtained in violation of s. 10(b) of the Charter, and shall be excluded pursuant to s. 24(2);

c) The evidence of the breath demand was obtained in violation of s. 10(b) of the Charter, and shall be excluded pursuant to s. 24(2).

The Factual Framework

4Just after midnight on July 11, 2012, police were called to the scene of a two car collision on the Queen Elizabeth Way, in Mississauga. Ms. Kraus’ vehicle, a black Jeep, was on its roof in the middle of the highway; the other car, containing a family of four, was found in a ditch.

5Paramedics arrived on the scene at 12:19 and began to attend to Ms. Kraus. Although she responded to their questions, some of her answers were irrational. They observed that she was confused and emotional, and were concerned that she might have sustained a head injury. Constable Phillips from Peel Regional Police arrived at 12:17; he observed that Ms. Kraus seemed dazed but responsive to his questions. Constable Duncan of the OPP, a ten year veteran, arrived at 12:21; he noted a strong odour of alcohol on her breath, and formed the opinion that she was impaired.

6Ms. Kraus was then strapped onto a stretcher and loaded into the ambulance. At 12:32 Duncan arrested her for impaired driving. He did so by stepping partially into the rear of the ambulance and leaning in. From there he was able to see Ms. Kraus and speak to her. However, he did not then provide her with her rights to counsel, or with the standard caution. He testified that as the ambulance was cramped and the paramedics were in the midst of assessing Ms. Kraus, it was awkward for him to speak with her face to face. He also stated he wanted to wait until her condition had stabilized so he could be sure she understood what he was saying.

7Shortly after her arrest, in response to questions from the paramedics, Ms. Kraus told them she had consumed alcohol, and may have fallen asleep.

8The ambulance then departed for the hospital; Duncan drove there separately in his police vehicle.

9After her arrival at the hospital, Duncan was present in the room while Ms. Kraus was being assessed by medical staff, but standing approximately 20 feet away. At 1:04 a.m. he overheard Ms. Kraus state “I think I fell asleep.” He testified that that statement was not directed at him.

10The attending nurse, Sherry Colman, testified that although she has no specific recollection of Ms. Kraus, based on her notes it is apparent that at 1:10 a.m. she drew six vials of blood from Ms. Kraus, for testing. Colman stated that is part of the standard protocol in a trauma case. She testified that before she takes blood from patients she advises them of her intention, and if they instruct her not to take blood, she does not.

11Referring to his notes, Duncan testified that Colman drew blood at 1:20 a.m., not 1:10. I prefer Colman’s evidence on this point: she is the person who both took the blood and charted that activity.

12At 1:11 a.m. Duncan finally read Ms. Kraus her rights to counsel; in response to his question, “do you want to call a lawyer now?”, she answered “yes, eventually, not right now.”

13According to Duncan, one minute later, at 1:12 a.m., Ms. Kraus spontaneously stated “I had 3 coolers over 2 days, last thing I remember is falling asleep.” He could not recall whether medical personnel were still in the room or to whom that statement was directed.

14At 1:13 Duncan read Ms. Kraus the standard caution, which she stated she understood. At 1:27 Duncan requested and received from Colman one of the six vials of blood she had drawn, and sealed it with a CFS seal.

15The attending physician was Dr. Manjot Samagh. At 1:28 Duncan asked Dr. Samagh whether there was any medical reason Ms. Kraus could not provide a breath sample. She said no. At 1:30 Duncan read Ms. Kraus the breath demand, which she indicated she understood.

16Over the next hour and a half Ms. Kraus was sent for x-rays and a cat scan. At 3:00 a.m., after she was discharged from the hospital, Constable Dunnah (an OPP technician) attempted to obtain a breath sample. At 3:27 Ms. Kraus was arrested for refusing to provide a sample, and read her rights to counsel. In response to the question “do you want to call a lawyer now?”, Ms. Kraus said “yes”.

17Duncan then drove Ms. Kraus from the hospital to the OPP detachment in Port Credit. Shortly after 4:00 a.m., and after Ms. Kraus had been lodged into the cells, Duncan asked if she still wished to speak to a lawyer, and she declined. At 5:20 she was released from police custody.

18The following chart summarizes the chronology I have laid out above:

Time
Event

12:12
Motor vehicle collision

12:19
Paramedics arrive

12:21
PC Duncan arrives on scene

12:26-12:28
Ms. Kraus is removed from her vehicle on a backboard

12:32
PC Duncan arrests Ms. Kraus for impaired operation

12:38-12:40
Paramedics conduct secondary assessment of Ms. Kraus, during which she is asked about alcohol consumption

12:42
Ambulance with Ms. Kraus leaves scene of collision

12:53
Ambulance with Ms. Kraus arrives at Credit Valley Hospital

1:00
Ms. Kraus taken into resuscitation room

1:04
Ms. Kraus states while she’s being assessed, “I think I fell asleep”

1:10
Blood drawn by RN Colman

1:11
PC Duncan reads Ms. Kraus her rights to counsel. He asks, “Do you want to call a lawyer now? She says, “Yes, eventually. Not right now.”

1:12
Ms. Kraus states, “I had 3 coolers over 2 days. Last thing I remember is falling asleep.”

1:13
PC Duncan reads Ms. Kraus the caution, which she indicates she understands.

1:27
PC Duncan seals one of the vials of blood with a CFS seal.

1:28
PC Duncan asks Dr. Samagh if there’s any medical reason Ms. Kraus cannot provide a breath sample. Dr. Samagh says no.

1:30
PC Duncan reads Ms. Kraus the breath demand, which she indicates she understands.

2:57
Ms. Kraus is discharged from the hospital.

3:27
PC Duncan arrests Ms. Kraus for refusal/failure to provide.

3:28
PC Duncan reads Ms. Kraus her rights to counsel and asks, “Do you want to call a lawyer now?” Ms. Kraus says, “Yes”.

3:35-3:48
PC Duncan drives Ms. Kraus from the hospital to the OPP detachment.

4:07
Ms. Kraus is lodged into cells. PC Duncan asks her if she still wants to speak to a lawyer, she says she no longer wishes to speak to a lawyer.

5:20
Ms. Kraus is released from police custody.

Analysis

1. The Utterances

The Legal Test

19The test on voluntariness is not in dispute. Statements to persons in authority are presumptively involuntary; the Crown is therefore required to prove voluntariness beyond a reasonable doubt. The relevant factors include threats or promises, oppression, the requirement of an operating mind and police trickery. These inquiries are highly fact-specific: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.).

20A person in authority is someone who the accused subjectively believes could influence the prosecutorial proceedings against her. Her belief must also be objectively reasonable: R. v. Hodgson (1998), 127 C.C.C. (3d) 449 (S.C.C.).

21The defence challenges admission of the utterances made both in the ambulance (to the paramedics) and at the hospital. The defendant argues the statements are both involuntary and in contravention of s. 10(b) of the Charter. I shall deal with each set of statements in turn.

Statements to the paramedics

22The initial question is whether the paramedics in this case were “persons in authority”.

23In this case, Ms. Kraus’ statements to the paramedics were made in response to questions they put to her after she had been strapped to a stretcher, loaded into the ambulance, and placed under arrest by Officer Duncan. Although the police officer did not accompany the paramedics to the hospital, he sought and received permission from the paramedics to enter the ambulance, whereupon he arrested Ms. Kraus while she was lying inside, with the paramedics beside her. Both the ambulance attendants testified that she appeared distraught, emotional and confused. A few minutes later she made the incriminating statements to the paramedics.

24Thus, at the relevant time, Ms. Kraus was not only under the physical control and authority of the paramedics, but also made the impugned statements to them while in a confused state and almost immediately after her arrest and detention by police. In this context I find it was both subjectively plausible and objectively reasonable for her to view the paramedics as persons in authority.

25As for the voluntariness of the statements, I find it significant that they were made before Ms. Kraus was given her rights to counsel or, perhaps even more importantly, before being cautioned that she had the right to remain silent and that any statement made could be used in evidence against her. As the Supreme Court observed in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 (S.C.C.) at para. 31, the absence of a caution is an important factor in assessing voluntariness:

[T]he notion of voluntariness is broad-based and has long included the common law principle that a person is not obliged to give information to the police or to answer questions. This component of the voluntariness rule is reflected in the usual police caution given to a suspect and the importance attached (even before the advent of the Charter) to the presence of a caution as a factor in determining the voluntariness of a statement made by a person under arrest or detention.

26See also R. v. Brown, 2010 ONCA 622 where our Court of Appeal overruled a trial judge’s finding that a statement was voluntary, primarily because the appellant was not cautioned beforehand.

27On that basis I have excluded any utterances made to the paramedics.

Statements at the hospital

28Two utterances are in issue; the first was at 1:04 a.m., when Duncan overheard Ms. Kraus state “I think I fell asleep.” The second was at 1:12 a.m., when she “spontaneously” stated “I had 3 coolers over 2 days, last thing I remember is falling asleep.” Although Duncan was standing nearby in the room when both statements were made, in neither case did he elicit the statements or were they directed at him. In both cases they occurred while Ms. Kraus was being assessed by medical staff. Essentially then, these are fragments that he overheard Ms. Kraus say to others.

29Importantly, we have little evidence of the context in which these utterances were made. Were they in response to questions from staff? If so, what questions were asked? What preceded the questions? Were the words uttered part of a larger statement? If so, what words preceded or followed the utterance? Did Ms. Kraus know that Duncan was in the room at the time?

30As Duncan did not report what occurred or was said immediately before or after the impugned utterances, the Court is deprived of the ability to attribute any thought or meaning to the remarks. It is on that basis that appellate courts have repeatedly declined to admit fragments of conversation, devoid of context. As our Court of Appeal stated in R. v. Hunter, at para. 19:

Where an overheard utterance is known to have a verbal context, but that context is itself unknown, it may be impossible to know the meaning of the overheard words or to otherwise conclude that those words represent a complete thought regardless of context. Even if the overheard words can be said to have any relevance, where their meaning is speculative and their probative value therefore tenuous yet their prejudicial effect substantial, the overheard words should be excluded.

31See also R. v. Ferris, [1994] 3 S.C.R. 756 (S.C.C.).

32On the evidence adduced a trier of fact could not ascertain Ms. Kraus’ meaning when she uttered the words in question. The words therefore are not logically probative of a fact in issue and are irrelevant. It follows that the utterances must be excluded from evidence.

2. The Blood Samples

The Legal Test

33Section 10(b) provides that everyone has the right on arrest or detention to retain and instruct counsel “without delay”, and to be informed of that right. The purpose of this Charter right is to allow the arrested person to not only be informed of her rights under the law but also obtain advice on how to exercise those rights. Access to legal advice ensures that a detainee is able to make a free and informed choice whether to cooperate with the police, and guards against the risk of involuntary self-incrimination: R. v. Taylor, 2014 SCC 50; R. v. Suberu, 2009 SCC 33.

34The duty to inform a detained person of her right to counsel arises “immediately” upon arrest or detention: Suberu, paras. 41‑42. Until the detainee has been informed of her rights and, where requested, given access to counsel, police must refrain from taking further investigative steps to elicit evidence: Taylor, paras. 25‑26.

Analysis

35As noted above, I have found that the blood samples were taken at 1:10 a.m., just before Duncan gave Ms. Kraus her rights to counsel and nearly 40 minutes after he had arrested her.

36At the very least it is apparent that Duncan completely misunderstood his legal obligation to inform Ms. Kraus of her rights; he testified he was obliged to deliver them “as soon as is practicable”, when in fact the Supreme Court has made it clear that for the purposes of s. 10(b), “without delay” means “immediately”.

37According to Suberu, the only exceptions to the “immediate” delivery of rights to counsel involve concerns for officer or public safety.

38Even if Duncan is correct in stating that he gave Ms. Kraus her rights to counsel just before her blood was taken, rather than after, another problem arises in how he interpreted her response: “Yes, eventually, not right now”.

39The standard for a waiver of a detained person’s s. 10(b) rights is very high.

40In my view, Ms. Kraus’ response – “yes, eventually, not right now” – is equivocal.

41This case to some extent parallels the circumstances in R. v. Munro.

42This is especially so where, as here, the police have reason to believe that the suspect is impaired and therefore may not appreciate the consequences of giving up the right to legal advice.

43Whether one views all this as a delay in providing rights to counsel, or a failure to obtain a waiver of such rights - or both - I am satisfied that Ms. Kraus’ right to counsel under s. 10(b) was breached prior to the taking of the blood samples.

3. The Breath Demand

Was the Breath Demand made “as soon as practicable”

44The defence has challenged the admissibility of the alleged refusal on two separate bases.

45When considering whether a demand for a breath sample was made “as soon as practicable”, courts have generally interpreted that phrase as meaning “within a reasonably prompt time”.

46In this case, Duncan read the breath demand to Ms. Kraus at approximately 1:30 a.m.

47Duncan testified that although there was nothing stopping him from making the demand earlier than 1:30, he refrained from doing so until he knew Ms. Kraus was medically capable of providing a breath sample.

48In my view it was entirely reasonable for Duncan to wait until he was cleared by the attending physician to administer the breath machine.

Was evidence of the refusal obtained in a manner that violated the Charter?

49Mr. Forbes’ alternative argument is that given the 10(b) violation, Ms. Kraus’ alleged refusal to provide a breath sample should be excluded from the evidence under s. 24(2) of the Charter.

50The issue of the effect of a 10(b) breach on an accused’s subsequent criminal acts has been the subject of some debate in the jurisprudence.

51In R. v. Hanneson (1989) four police officers were convicted of attempting to obstruct justice.

52Our Court of Appeal found that the Charter breach under 10(b) did not insulate the officers from liability for subsequent criminal acts.

53The Court concluded by noting that a breach of s. 10(b) “does not insulate the person detained from subsequent criminal responsibility by rendering inadmissible statements which are the whole or part of the actus reus of a crime.”

54Our Court of Appeal again considered this issue in R. v. Ha, 2010 ONCA 433.

55On appeal, the Court ordered a new trial with respect to the bribery charge.

56The Crown argues those cases are determinative.

57Five years after Hanneson the Supreme Court of Canada addressed whether evidence of a refusal to comply with a breathalyzer demand should be admitted under s. 24(2) in R. v. Cobham.

58The Supreme Court concluded that the evidence regarding the refusal should be excluded.

59In recent years a number of Ontario Court decisions have relied on the reasoning in Cobham.

60After a lengthy analysis of the jurisprudence, Stribopoulos J. concluded that Cobham should be the guiding voice.

61I find that logic compelling.

62This is in contrast to the factual scenarios in both Hanneson and Ha.

63It is also consistent with the Ontario Court of Appeal’s decision in R. v. Williams (1992).

64Finally, I note that Stribopoulos J.’s approach has been specifically approved of in other cases.

65In sum, I agree that Cobham takes precedence.

Should the impugned evidence be excluded under s. 24(2)?

66As explained above, I have concluded that Ms. Kraus’ Charter rights were breached when Duncan delayed giving Ms. Kraus her rights to counsel.

67As the Supreme Court determined in R. v. Grant, 2009 SCC 32, courts must weigh three factors.

68Dealing first with the seriousness of the state conduct involved, I find it troubling that after a decade of policing and years of Charter jurisprudence, Duncan remains either unaware or disinterested in the fundamentals of when and how to deliver the rights to counsel.

69As for the impact, the violation of s. 10(b) is linked to the accused’s alleged refusal to provide a breath sample.

70Moreover, the collection of blood samples is both undeniably intrusive and fraught with conflict.

71Given all those factors, I find the impact of the breach on Ms. Kraus’ constitutionally protected interests was significant.

72Turning to the final consideration, undoubtedly the public has a strong interest in a trial on the merits.

73After balancing the competing factors, I am satisfied that given the serious nature of the breach and its impact on the applicant’s protected Charter rights, to admit the evidence in this case would bring the administration of justice into disrepute.

Conclusion

74For the reasons set out above, I have concluded that a) the utterances in issue are not admissible; b) the blood samples were obtained in violation of s. 10(b) of the Charter, and shall be excluded under s. 24(2) thereof; and c) the evidence of the breath demand was obtained in violation of s. 10(b) of the Charter, and shall be excluded under s. 24(2).

Baltman J.

Footnotes

1. 1With the consent of counsel, this decision replaces an earlier incomplete version.