ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-0498

DATE: 2015/01/07

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CHRISTOPHER LOGUE

Accused

Me Julie Bourgeois, Counsel for the Crown

Me Yves Jubinville, Counsel for the Accused

HEARD: November 17, 18 and 19, 2014

REASONS FOR DECISION ON THE CHARTER APPLICATION

CHARBONNEAU, M.Z.

[1] Mr. Logue brings an application under section 24 (2) of the Canadian Charter of Rights and Freedoms (the Charter) asking the Court to exclude evidence on the grounds that his rights guaranteed by Sections 7, 8, 9, and 10 (b) of the Charter were breached. The accused also asks that certain statements he made to the firefighters and paramedics be excluded on the ground that they were provided as a result of his obligation to do so pursuant to his statutory duty under section 199 of the Ontario Highway Act. The accused is charged with dangerous driving causing bodily harm, failing to comply with a demand to provide a sample of breath knowing that his operation of a motor vehicle caused an accident resulting in bodily harm and operating a motor vehicle while impaired and thereby causing bodily harm.

[2] The evidence reveals that on April 7, 2013 Mr. Logue was the driver of a motor vehicle eastbound on Highway 17 near the Town of Rockland. His girlfriend Marcia Landriault was the other occupant of the vehicle. At one point, the vehicle travelled approximately 100 meters on the south shoulder and hit a street lamp post. Mrs. Landriault suffered serious bodily harm as a result of the accident.

[3] OPP Constable Eric Bruneau was assigned to accompany the accused in the ambulance bringing him to the hospital. En route to the hospital Constable Bruneau arrested Mr. Logue for impaired driving. Once at the hospital Constable Bruneau made a demand for a breath sample in an approved Intoxilyzer. Constable Bruneau testified Mr. Logue refused to provide a sample of his breath. That specific issue need not be addressed at this time. It will be determined at the end of the trial.

The impugned evidence

[4] The defense seeks to exclude the following evidence:

a) His statement to the firefighters and to the paramedics that he was the driver of the vehicle;

b) All statements made by the accused and all observations made by Constable Bruneau of the accused relevant to the charges which occurred after Constable Bruneau arrested the accused for impaired driving.

The evidence

[5] At the scene several firefighters were assigned to administer first aid to Mr. Logue. According to Guy Simard, one of the firefighters, Mr. Logue told him that he was back from the gym and had picked up his girlfriend who is from Kanata. He also heard the accused say “I injured her”. The accused was agitated. Firefighter Robert Regimbal at the request of a police officer asked the accused if he had been drinking. The accused said he had not. Mr. Logue told Regimbal he had been at the gym and had picked up his girlfriend.

[6] Paramedic Sophie Martel testified that she attended to Mr. Logue at a time when he was being looked after by the firefighters. She took over his care. She asked him what his name was and he replied Christopher Logue. He also indicated he was the driver. She smelled a strong odour of alcohol on his breath and she alerted Sergeant Villeneuve, the senior OPP officer on the scene, of those facts.

[7] Mr. Logue was carried on a stretcher into the ambulance. He was strapped and his head immobilized. She redid the primary care examination which entailed putting various questions to Mr. Logue. As a result of her questions Mr. Logue told her he was driving at the speed limit. Her questions were part of her normal routine in doing a primary care examination.

[8] She testified that at one point en route to the hospital Constable Bruneau approached the accused and asked him questions. On several occasions she saw Mr. Logue push Constable Bruneau. She got the impression he did not want to speak to the constable. She was not paying much attention to the interaction between the police officer and the accused although she recalls that at one point Constable Bruneau started to read him his rights. She heard bits and pieces of the conversation and has no specific recollection of what was said.

[9] She testified the trip to the hospital took 18 minutes namely from 03:13 to 03:31. She indicated, although strapped, Mr. Logue’s arms were free enough to allow him to push the officer with his forearm as he did. He could not move his head but he could look sideways. She indicated that Constable Bruneau came in a few minutes before the ambulance left. Mr. Logue was coherent and she had no problem understanding what he said although when he had the mask on she had to be close to his face to properly hear. Constable Bruneau approached the accused and was possibly 3-4 inches from the accused when he questioned him.

[10] She also testified she did not notice redness in his eyes. If she had noticed redness she would have noted it. She looked at his eyes to see if his pupils were dilated. This is routine in her primary care assessment.

[11] Constable Bruneau testified that between 01:56 to 02:39 when he first got the call of the accident, he was patrolling in the Rockland area. This caused him to drive on several occasions eastbound on Highway 17 in the vicinity of the location where the accident happened. The traffic was very light. The road was dry.

[12] He got to the scene at 02:44. He saw the vehicle sitting on the base of the street lamp. Two persons were in the ditch, a male and a female.

[13] With some difficulty, he convinced the accused to move away from the female. The accused was somewhat in shock and as he walked with him the accused was unsteady on his feet. Mr. Logue was taken in charge by the firefighters.

[14] Later, Sergeant Villeneuve ordered him to accompany Mr. Logue to the hospital in the ambulance. At that time, he had been told by one firefighter that he had detected an odour of alcohol on Mr. Logue’s breath. There were five (5) OPP officers on the scene of the accident.

[15] Before the ambulance left, he entered the ambulance and overhead the conversation between Martel and the accused. He indicates that he overheard Logue say “I was not speeding. I was going at the speed limit”.

[16] He rode in the ambulance to the Civic Hospital. Also present in the ambulance were fireman Jonathan Desmarais and paramedic Sophie Martel. Ms. Martel told him she had detected an odour of alcohol on Mr. Logue’s breath. Martel told him that she was not concerned for Mr. Logue’s health. She was satisfied that he did not have any life threatening injury and that he could talk.

[17] He decided to approach the accused sometime after the ambulance was already en route to the hospital. He identified himself as a police officer. He was wearing his police uniform. He started questioning Mr. Logue. At first he could not hear what the accused said. He moved closer to Mr. Logue to hear him. The accused was mumbling. He asked him what happened and the accused said “I got involved in a car accident”. However, the accused did not answer when he asked him if he had consumed alcohol and where he had come from. Constable Bruneau noticed that the accused had red glassy eyes and he smelled a strong odour of alcohol on his breath.

[18] Constable Bruneau was of the opinion that the accused was avoiding him while being questioned. He refused to make eye contact. He moved his head from side to side. At one point during the questioning, the accused started talking on top of him. He also pushed him away in order to prevent contact.

[19] At 03:24, Constable Bruneau testified that he formed the opinion that the accused had driven a vehicle while impaired. He formally notified the accused that he was arrested.

[20] Constable Bruneau indicated that his conclusion was based on the following:

i) the accused had been drinking alcohol and was driving;

ii) the accused had been involved in an unexplained accident on a dry clear night;

iii) the accused was avoiding his questions as evidenced by his mumbling, his pushing him and talking over him, and refraining to make eye contact;

iv) the fact the accused had red glassy eyes and had some difficulty walking when he accompanied him up to the shoulder of the road.

[21] Constable Bruneau indicated he had started to read the accused his rights to counsel when the ambulance arrived at the scene. The accused had repeatedly interrupted him while he was reading the demand for a breath sample. This prevented him from completing reading the rights to counsel before arrival.

[22] Once at the hospital, after the accused had been examined by a doctor who had indicated to him that the accused could provide a breath sample, Constable Bruneau proceeded to make a demand for a breath sample and read the accused his rights to counsel. Mr. Logue once again continually interrupted him. He would not say whether he understood his rights to counsel. He said things like: I do not know what I want or I want to speak to my girl.

[23] Constable Bruneau explained to the accused the consequence of a failure. Finally after repeating over and over if he wanted to provide a sample, Mr. Logue said no. Mr. Logue then also said sarcastically “you are such a great cop”. Constable Bruneau testified Mr. Logue never requested to speak to a lawyer.

[24] Mr. Logue testified that he remembers a police officer pulling him away from his girlfriend to allow paramedics to help her and that he was then taken care by certain firefighters. Everything was very hectic. Somebody asked him for his driver’s license which he provided. When asked he told the firefighters that he was driving. He told them he was driving because he believed it was the right thing to do. He was scared and upset because his girlfriend could be dead.

[25] He answered the questions of the paramedic because he thought he had to. He explained further he believed it was the right thing to do.

[26] In cross-examination, he said he thought he had to answer the questions of the firefighters and the paramedics because when persons are helping you, you should answer their questions. It was the right thing to do according to his upbringing.

[27] Later, a police officer asked him questions. He has no recollection what the officer asked. He slept all through the ambulance ride. He did not understand what the constable was saying. He was upset, scared, in a state of shock and cold. In cross-examination, he testified he could not understand anything the police officer said to him in the ambulance. He told the officer “I don’t understand”. The officer was within inches of his face. He understood the paramedic because she spoke loud and clear.

[28] At the hospital, he remembers speaking to the nurse and the doctor although not much of what was aid. He remembers the doctor telling him he would be able to walk.

[29] He remembers Constable Bruneau was in his hospital room. Bruneau read him his rights. He asked Bruneau about his girlfriend and Bruneau replied that he did not think she was going to make it. After that, Bruneau read him his rights again. Bruneau told him he was under arrest. He repeated it a number of times. He remembers Constable Bruneau asking him if he wanted to speak to a counsel. He answered he wanted to see his girlfriend.

The position of the Accused

[30] Mr. Jubinville submits that the admission of the accused that he was driving the vehicle at the time of the collision made to the firefighters and to the paramedic was made under legal compulsion by the duty to report an accident imposed by section 199, Highway Traffic Act.

Mr. Jubinville relies on the decision of the Supreme Court of Canada in R.v. White 1999 689 (SCC), [1999] 2, S.C.R. 417. In that decision, the Supreme Court of Canada held that a statement made by an accused under compulsion of the British Columbia Motor Vehicle Act was inadmissible as offending the principle against self-incrimination embodied in s. 7 of the Charter. The Ontario Court of Appeal in R.v. Soules, 291 ONCA 429, held that the principles outlined in White (supra) applied equally to the Ontario Highway Act.

[31] Mr. Jubinville submits that the statements are inadmissible. As a result, Constable Bruneau did not have any evidence that the accused was driving and therefore he did not have reasonable and probable grounds to make a demand under section 254 of the Criminal Code.

[32] Alternatively even if the statements about being the driver are not excluded on the principle in White, the accused submits that on the evidence Constable Bruneau did not have reasonable and probable grounds to arrest the accused nor make a demand with the information he had at the time of the arrest and that therefore he breached the accused guaranteed rights under section 7, 8 and 9 of the Charter.

[33] Finally, the accused submits that Constable Bruneau breached his section 10 (b) rights to counsel and that the statements made to Constable Bruneau are inadmissible on that basis.

The legal principle

-A- Whether the statements were made under statutory compulsion

[34] The Supreme Court in White set the test as follows at paragraph 75: “ Whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given”.

[35] Further, the Court established that he onus is on the accused to establish the compulsory nature of the statement. At paragraph 81 of White (supra):

“Where an accused seeks to argue that the admission of a statement

into evidence will violate the principle against self-incrimination

under s. 7 because he or she was compelled to make the statement by

the terms of a provincial statute, it is the accused who must establish

on the balance of probabilities that the statement was compelled”.

-B- Whether Constable Bruneau could arrest the accused and/or make a demand for a breath sample

[36] The law is clear that in order to validly make a demand under section 254, a police officer must have reasonable and probable grounds to do so. The test for deciding whether there is reasonable and probable grounds includes both a subjective and an objective component. On the one hand, the officer must have an honest belief that the suspect committed an offence under section 253 and secondly the subjective belief of the officer must be objectively reasonable in the sense that a reasonable person with the knowledge and experience of the officer would conclude there were reasonable grounds.

-C- Whether the accused Right to Counsel under section 10(b) of the Charter was breached

[37] Section 10 (b) guarantees a person being arrested the right to retain and instruct counsel without delay and to be informed of that right. The accused has the onus of proving on a balance of probabilities that his right to counsel was violated.

[38] In order to not breach an individual’s guaranteed right to counsel upon arrest, the police officer has the following duties:

(1) to inform the detainee of his or her right to retain and instruct counsel

without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee

with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detained until he or she has had the reasonable opportunity (again, except in cases of urgency or danger).

[39] The detained person has an obligation to be diligent in exercising his right to counsel. If the accused is not reasonably diligent there will be no breach.

Analysis

Exclusion under section 199 of the Highway Traffic Act

[40] The accused has failed to prove on a balance of probability that his statements that he was driving made to the firefighters and/or paramedic Martel were made under compulsion. His explanation as to why he was answering their questions clearly establishes he did not do so because he had a duty to report the accident but because it was the right thing to do and because they were helping him.

[41] This is particularly true of the statements to the paramedic which I find the accused knew was examining him for health reasons. I found he was alert, coherent and answered all questions at that time.

Reasonable and Probable Grounds To Make the Demand

[42] The accused submits that Constable Bruneau’s evidence that he knew the accused was the driver of the vehicle should be rejected as not credible. Mr. Jubinville submits that the Court should not find that Constable Bruneau had the requisite honest subjective belief.

[43] Mr. Jubinville points to several problematic areas in Constable Bruneau’s evidence. First, Constable Bruneau wrote in the Occupational Report on April 22, 2014 that Mrs. Grenier, the first civilian he met on the scene told him that she saw the male occupant of the vehicle dragging the female occupant out of the car. This was written in the section of the report relating to identification of the driver.

[44] Mrs. Grenier testified that she did not see the male occupant dragging the female out of the vehicle. She testified seeing the male dragging the female up the ditch area. The female was unconscious and appeared like a rag doll being dragged. She testifies she did not recall exactly what she told the police that night. She gave a written statement to a constable on April 23^rd, 2014.

[45] Mr. Jubinville submits that Constable Bruneau invented that part of Mrs. Grenier’s evidence to corroborate his evidence that the accused was the driver. This clearly severely affects his credibility and reliability.

[46] Secondly, Constable Bruneau testified that he overhead the accused telling paramedic Martel that he was driving and also that Martel told him Logue had told him that he was driving. Mr. Jubinville points to the fact that Constable Bruneau testified that Martel told him she smelled odour of alcohol as he was getting into the ambulance or shortly thereafter. There is no indication of this in his notes. He further testified that Martel told him Logue told her he was driving. He makes a note of this at 03:13. However defense counsel submits this is not credible since he was in the ambulance when the conversation took place between Martel and Logue. Mr. Jubinville therefore submits that there is no credible evidence that Constable Bruneau had the information he says he had on the crucial issue of who was driving the vehicle.

[47] Mr. Jubinville submits that in view of the evidence of Martel, the Court should reject Constable Bruneau’s evidence that he observed that Mr. Logue had red eyes.

[48] Finally, Mr. Jubinville submits that in many respects the evidence of Constable Bruneau is improbable. He points amongst other things the pushes given by Mr. Logue while strapped, the moving of the head side to side when his head was immobilized and his use of the instability of Mr. Logue when walking as a ground of impairment when he knew he had been in a severe accident.

[49] I am satisfied that Constable Bruneau while testifying was attempting to give a truthful account of his observations and of his conclusions. I reject that he deliberately tried to mislead the court.

[50] His note in the report that Mrs. Grenier told him the male dragged the female out of the vehicle is in contradiction to what Mrs. Grenier remembered at trial. However, it is clear in her testimony that she saw the male dragging the female up from the ditch. The only portion of the car that could be said was in the ditch is the very passenger’s side of the car. This means that Mrs. Grenier saw Mr. Logue dragging the female up the ditch and it was from the area of the height of that left passenger’s side. It is impossible to say exactly what was said by Mrs. Grenier to Constable Bruneau that night. She does not recall exactly what she told him. The fact that Constable Bruneau was under the impression that she said he was dragging the female out of the vehicle as compared to dragging her up from the ditch is certainly not sufficient to conclude Constable Bruneau was not being truthful or his evidence is totally unreliable.

[51] Similarly, Constable Bruneau puts in his notes at 03:11, when the ambulance leaves, that Martel tells him Logue told her he was driving. I find there is no discrepancy between that fact and the fact he had himself overhead the conversation. All the evidence points to the fact the ambulance was stationary during the initial conversation between Martel and the accused and that Constable Bruneau was in the ambulance and the ambulance left at 03:11.

[52] Martel and fireman Jonathan Desmarais in large part corroborated the evidence of Constable Bruneau in relation to his interactions with the accused. They surely do not corroborate the accused’s evidence that he slept throughout the trip as he maintained in examination-in-chief. The discrepancy concerning the present or absence of red glassy eyes can be explained by the fact the two individuals had very different purposes to note or not the redness in the eyes. This is not sufficient to reject Constable Bruneau’s evidence.

[53] I find that the evidence of Constable Bruneau is credible and I am convinced he had an honest belief that he had the reasonable and probable grounds to make a demand under s. 254. Since he had that honest belief there was no need to proceed with obtaining a sample in a roadside screening device before making the demand.

[54] The remaining issue is : was there an objective basis for Constable Bruneau’s subjectif belief?

[55] A review of the totality of the evidence indicates that Constable Bruneau had the following information available to him when he formed his subjective belief:

1. The accused was the driver of the vehicle.

2. He had an odour of alcohol on his breath.

3. He had been involved in an unexplained accident. The visibility was good and the road was dry. There was no apparent reason for the accused vehicle to have left the paved road and hit the street lamp post.

4. When he helped the accused up to the road surface he noticed the accused was unsteady on his feet.

5. The accused was not seriously injured and he appeared to be cooperative with the paramedic when she questioned him. Yet when he approached the accused, the accused became totally uncooperative, avoiding his questions and even pushing him away.

6. Constable Bruneau observed that the accused had red glossy eyes when he was close to him asking him questions.

[56] Constable Bruneau is an experienced police officer. With the above-noted information, I find that his subjective belief that the accused had driven his vehicle while impaired was objectively based. He was therefore justified in arresting the accused and make a demand from a sample of his breath.

Breach of Right to Counsel

[57] I accept the evidence of Constable Bruneau that he attempted to read to Mr. Logue his right to counsel in the ambulance but never managed to do so. This was in large part due to Mr. Logue’s interventions and uncooperative conduct. I reject Mr. Logue’s evidence that he did not understand what the officer was telling him. The totality of the evidence suggests that he was alert and coherent at all times while in the ambulance.

[58] Mr. Logue admits that once at the hospital, Constable Bruneau read him his rights to counsel and asked him if he wanted to speak to counsel. His answer was that he wanted to see his girlfriend. The evidence clearly establishes he understood his rights and never requested to speak to counsel.

[59] I find that Constable Bruneau informed the accused of his right to retain and instruct counsel without delay and the existence and availability of legal aid. I find Mr. Logue never indicated a desire to exercise this right. There was therefore not breach of his s. 10 (b) rights.

Conclusion

[60] For all of these reasons I find that:

1. Mr. Logue has failed to prove any breach of his rights guaranteed by the Charter.

2. The accused’s application to exclude evidence is dismissed.

Charbonneau, M.Z.

Released: January 7, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

CHRISTOPHER LOGUE

REASONS FOR JUDGMENT

Charbonneau, J.

Released: January 7, 2015