COURT FILE NO.: 23/15 DATE: 2016 06 14
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – John Paul BUDARICK Appellant
Counsel: R. Fetterly, for the Respondent D. Moore, for the Appellant
HEARD: April 29, 2016
REASONS FOR JUDGMENT
Woollcombe J.
A. Introduction
[1] John Paul Budarick was found guilty of impaired operation of a motor vehicle, contrary to s. 253(1)(a) of the Criminal Code, after a trial before Maund J. in the Ontario Court of Justice. The trial was blended with Mr. Budarick’s application under s. 24(2) of the Charter to exclude evidence on the basis of alleged violations of ss. 8, 9 and 10(b) of the Charter.
[2] The trial judge concluded that there had been no Charter breaches. As a result, he found that the blood demand was properly made and the blood sample was admissible. Mr. Budarick conceded that in the absence of any Charter breaches, a conviction was appropriate. He was convicted and received a fine of $1,300.00 and a one year driving prohibition.
[3] On this appeal, Mr. Budarick advances two arguments:
i. That the trial judge misapprehended the relevant evidence and so erred in finding that Constable Crowhurst, who made the demand for blood under s. 254(3)(a)(ii) of the Criminal Code, had the subjective belief required to make that demand. ii. That the trial judge erred in concluding that there was no violation of s. 10(b) of the Charter when the police did not offer to Mr. Budarick a second opportunity to consult with counsel after making a demand for a blood sample, following the breath demand.
B. Relevant Factual Background
[4] Some context is necessary to address these grounds of appeal.
The Roadside Stop and Arrest
[5] On March 27, 2014 OPP officers Melissa Kolodziechuk and Sarah Crowhurst were driving north on Airport Road in the Township of Mulmur and saw Mr. Budarick’s car travelling southbound in a posted 80 kilometres per hour zone. Constable Crowhurst was operating a radar, which showed Mr. Budarick’s car was travelling at speeds of 157, 133 and 121 kilometres per hour. The officers turned around the cruiser, activated their emergency lights and pulled Mr. Budarick’s car over at 9:25 p.m.
[6] At that point, the conditions were very dark and it had started to rain. The temperature was around freezing, which created the potential for freezing rain and icy conditions on the road.
[7] Constable Crowhurst approached Mr. Budarick’s car. She saw two males in the front seat and ski equipment in the backseat. She noticed that Mr. Budarick, the driver, had eyes that were a bit watery and glassy and said she detected a strong odour of alcoholic beverage. She told him that she had stopped him for speeding. As he produced his documents, and his passenger said that he had been drinking, the officer decided to separate Mr. Budarick from his passenger to determine from whom the odour of alcoholic beverage was emanating.
[8] As he stepped out, Constable Crowhurst smelled an odour of alcoholic beverage on Mr. Budarick’s breath. She asked him to get off of the road and noticed that he weaved and steadied himself on the guardrail at the side of the road.
[9] Constable Kolodziechuk smelled the odour of alcohol from Mr. Budarick. The fly of his pants was open and, when he walked to the police cruiser, she said that he shuffled. She also saw him reach for the guardrail causing her to be concerned he might fall. She described his speech as slow and deliberate, which she thought was an indicia of impairment. She testified that she felt strongly that the speed he was driving was indicative of someone whose ability to make correct decisions was impaired.
[10] Constable Kolodziechuk said that on a scale of one to ten, in terms of intoxication, her observations of Mr. Budarick led her to rate him a seven at the roadside, before the arrest. Constable Crowhurst ranked him as an eight.
[11] Constable Crowhurst testified that she had reasonable grounds to believe that Mr. Budarick had been operating a motor vehicle while impaired by alcohol. She told him that she had observed the strong smell of alcohol, that his eyes were watery, red and a little bloodshot, and that he was weaving when he got out of his car.
[12] Constable Crowhurst arrested Mr. Budarick for impaired driving.
[13] As she was searching him at 9:34, Mr. Budarick complained that he was experiencing chest pains. He was placed in the rear of the police cruiser and an ambulance was called at 9:35.
[14] Constable Kolodziechuk testified that while they waited for the ambulance, Mr. Budarick was in the back of the police cruiser and was “lamenting of his chest pain”. She also testified that during her continued interaction with Mr. Budarick, beginning when he was in the rear of the cruiser, “he presented as having extreme difficulty breathing” and the way he communicated with them changed from how he spoke initially to him “gasping for air”.
[15] Mr. Budarick was given his rights to counsel at 9:36. When asked if he understood, he asked for them to be read again. He said that he understood. He was asked if he wished to call a lawyer and he said that he would like to but that he did not have a number for one. He was told that the police could facilitate him speaking with duty counsel and he said he was content with duty counsel.
[16] After he was read the caution at 9:37, Mr. Budarick said that his chest was really hurting. At 9:40, Constable Crowhurst read the breath demand to Mr. Budarick. He told her that he consented to the breath demand. He asked about his phone and wallet and she retrieved them from his car. He then told her he was having “ridiculous chest pains”.
[17] The ambulance arrived at 9:52. The ambulance attendants spoke with Mr. Budarick, who was waiting in the back of the police cruiser. He told them that he had chest pain and pain down his left arm. His pulse was rapid. He was worried that movement would exacerbate his pain. He used a stretcher and was placed in the back of the ambulance where a cardiac monitor was attached. He was not complaining of any shortness of breath. He seemed anxious, was trembling, and acknowledged being nervous. He advised that he had experienced several episodes of ventricular tachycardia in the past but was not on any medications.
[18] The ambulance attendants said that Mr. Budarick was complaining of chest pain and that they accept a patient at their word. He asked to go to Humber River Church Street hospital in Toronto, but was told that because of his chest pain, he would be taken to the closest hospital, Stevenson Memorial. No medication was given as Mr. Budarick was “retching and vomiting with very little coming up”.
[19] Constable Crowhurst said that the paramedics gave Mr. Budarick a bag to breathe in because he seemed to be having problems breathing.
[20] They left the scene at 10:03 and arrived at the hospital at 10:19.
[21] Ambulance attendant Dean Worry testified that when he initially talked with Mr. Budarick, he noticed a smell of alcohol and that he slurred his words a moderate amount. He was also uncooperative. Mr. Worry thought he had been drinking more than was appropriate for driving and placed him at an eight on a scale of one to ten.
The Hospital Visit
[22] Constable Crowhurst said that they entered the hospital through the emergency room area with Mr. Budarick on a stretcher. She noted that his signs of impairment were worsening as his face was extremely red and flushed and his eyes were very red. He spoke slowly but was demanding about where his wallet was. His arms started to shake and so did his hands on occasion. He continued to demand to go to Humber Church but the paramedics told him that was not feasible. He told the police that his pain was worsening.
[23] Constable Kolodziechuk, who was the qualified Intoxylizer operator, said that when she arrived at the hospital at 10:26, Mr. Budarick was on the stretcher and was “shaking significantly”. She recalled his arms vibrating.
[24] At 10:48, Mr. Budarick asked the medical personnel to assess him because the pain in his chest was worsening. He described it as radiating to his arm causing him numbness. He continued to shake.
[25] At 10:50, Mr. Budarick was assessed. At 10:57, Mr. Budarick told the nurse that he felt worried. Constable Crowhurst said that he started to have problems breathing again and the nurse told him to stop talking if he was having breathing problems. Constable Crowhurst said that at that point, he was speaking in broken sentences and gasping for breath as he spoke. He told the nurse he had a family history and that he had tingling in his face. He did not look comfortable.
[26] Constable Kolodziechuk asked the hospital staff if she could set up the intoxylizer. She was given permission to do so at 11:07. As she started to do so, Mr. Budarick asked for privacy so that he could go to the washroom. He was then assessed by emergency room doctor, Dr. Shahzad, from 11:15 until 11:24.
[27] The doctor left Mr. Budarick’s room at 11:24 and Constable Kolodziechuk started to set up the intoxylizer. At 11:28, Mr. Budarick asked to use the washroom again.
[28] At 11:26, Constable Crowhurst placed a call to duty counsel. This was the first opportunity that she had to call duty counsel and allow for a call back in which Mr. Budarick would be able to speak privately. While they waited for the call back, Constable Crowhurst testified that Mr. Budarick was struggling to speak and gasping for breath.
[29] The call back from duty counsel came at 11:37. Constable Crowhurst had already left a message that they were at a hospital in the emergency department. She spoke briefly with duty counsel. She advised that Mr. Budarick was under arrest for impaired driving and that a breath demand had been made. She explained that Mr. Budarick had complained of chest pains and so an ambulance had been called, and they were in the emergency department.
[30] At 11:44, when the nursing staff were finished with Mr. Budarick, Constable Crowhurst gave him the cell phone with duty counsel on the line. She noted that his right hand, in which he took the phone, was shaking very violently. Constable Kolodziechuk said that as Constable Crowhurst handed the phone to Mr. Budarick, his hand was shaking so badly that it appeared that he would have difficulty grasping it.
[31] The police left the room so that Mr. Budarick could have a confidential conversation with duty counsel. While he was on the phone, Constable Kolodziechuk could see into the room where Mr. Budarick was. His head was slumped to the left in a way that it would look if he were asleep. Constable Crowhurst said that they could see into the room and that he was sitting upright. She could see the back of Mr. Budarick’s head. He had his right hand to his ear and his arm was shaking violently as he spoke on the phone.
[32] The two police officers had a conversation outside Mr. Budarick’s room while he spoke with duty counsel. Constable Kolodziechuk expressed concern about whether Mr. Budarick would be able to provide a breath sample given the difficulty he was having stringing words together without gasping for air, and continually telling the officers he did not feel well. She was worried that his shaking would make it difficult for him to make an effective seal on the mouthpiece. The gasping alone gave her a sufficient concern that he would not be able to provide a breath sample.
[33] Constable Crowhurst’s evidence was that Constable Kolodziechuk, as the breath technician, had concerns given that Mr. Budarick was gasping for breath and complaining of chest pains, and that Constable Kolodziechuk did not believe he would be able to provide a suitable breath sample.
[34] They discussed whether, as a result, a blood demand should be pursued. This was the first time Constable Crowhurst had made a blood demand.
[35] While Mr. Budarick was on the phone with duty counsel, the decision was made to make a blood demand.
[36] Constable Kolodziechuk was asked whether she thought Mr. Budarick was faking. She said, “perhaps he was”, but that the symptoms he presented were extreme breathlessness, an inability to formulate a sentence and apparent medical distress. She was suspicious he was faking but had not come to any conclusion. She did not think it was reasonably practicable for him to provide a breath sample.
[37] Constable Crowhurst was cross-examined examined extensively on whether she believed Mr. Budarick was faking. She testified that she was of the opinion that he was faking at the time she made the blood demand. When it was suggested to her that if he was faking, there was no reason why he could not blow in the intoxylizer, she said that it was up to the breath technician, Officer Kolodziechuk, as she was the one who was going to have to obtain the breath sample. Constable Crowhurst testified that Constable Kolodziechuk did not think Mr. Budarick would be able to supply one because of his breathing problems.
[38] The cross-examination continued with Constable Crowhurst testifying that it was her personal belief that Mr. Budarick was faking but that this was a personal opinion and not a medical opinion. She then clarified that from her conversation with Constable Kolodziechuk, she understood that the physical signs that he was exhibiting were going to interfere with his ability to provide a suitable breath sample. She relied on his physical signs of distress as being what made him incapable of providing a breath sample, notwithstanding her personal view that he was faking his symptoms.
[39] Constable Crowhurst said that as a result of her conversation with Constable Kolodziechuk, “we had decided that we would go by way of a blood sample because we weren’t of the belief that Mr. Budarick was going to be able to provide breath samples based on the, the physical signs of medical distress that he was exhibiting”. More specifically, she said that she did not believe he would be able to provide a breath sample because of the chest pains, gasping for air and breathing difficulty.
[40] Mr. Budarick finished his conversation with duty counsel at 12:02 a.m.
[41] At 12:03 a.m., Constable Crowhurst made a blood demand.
[42] Constable Crowhurst was asked why she had not re-provided Mr. Budarick with his rights to counsel when the decision was made to move from a breath sample to a blood sample. She said that she did not think anything about his situation had changed or his jeopardy had changed.
[43] She did not tell duty counsel about the blood demand because the decision to make a blood demand was made while duty counsel was on the phone with Mr. Budarick. She agreed that there was no reason not to tell duty counsel of the blood demand while he spoke with Mr. Budarick but said that she did not think of it.
[44] Mr. Budarick’s response to the blood demand was, “Why are you not allowing me to blow?” Constable Crowhurst said that she and Constable Kolodziechuk explained that they did not believe he would be able to provide suitable breath samples. He responded that he consented to blood being drawn but did not consent to the police seizing the blood that had already been taken.
[45] Constable Crowhurst was cross-examined on her notes in which she had recorded of her conversation with Mr. Budarick: “…explained outside time limit and now need blood”. She explained that this flowed from a conversation she had with Constable Kolodziechuk. She said that she had a misunderstanding about the significance of being close to three hours from the time of the arrest. She denied counsel’s suggestion that she made the blood demand because of concern with the timing and the ability to rely on the presumption, and stated more than once that timing was not a factor in the blood demand and that it was made because of their belief that Mr. Budarick was not going to be able to provide suitable breath samples.
[46] Blood samples were then taken.
C. Analysis
Did the trial judge misapprehend the relevant evidence and so err in finding that Constable Crowhurst had the required subjective belief to make the blood demand under s. 254(3)(a)(ii) of the Criminal Code?
[47] Section 254(3)(a)(ii) of the Criminal Code provides:
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person
(a) to provide, as soon as practicable,
(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood…
[48] The law is clear that there is both a subjective and an objective component to establishing reasonable grounds under s. 254(3). That is, the officer must have an honest subjective belief that the suspect committed an offence under s. 253 and there must be objectively reasonable grounds for this belief (R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35 at paras. 17).
[49] There was no issue in this case that Constable Crowhurst had reasonable grounds to believe that Mr. Budarick had committed, within the three preceding hours, an offence under s. 253 as a result of the consumption of alcohol.
[50] There was also no issue that the evidence, viewed objectively, suggested that Mr. Budarick may have been incapable of providing a breath sample or that it was impracticable for him to do so.
[51] The issue was whether Constable Crowhurst, who made the blood demand, subjectively had reasonable grounds to believe that, because of his physical condition, Mr. Budarick “may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath” such that a blood demand could properly be made.
[52] It was Mr. Budarick’s position that Constable Crowhurst’s evidence made clear that she thought Mr. Budarick was faking and that because of this belief, she could not, at the same time, have held had the requisite subjective belief for making the blood demand. Mr. Budarick submits that the trial judge misapprehended the relevant evidence in reaching the conclusion that Constable Budarick had the requisite subjective belief. He argues that if the officer did not have the requisite subjective belief, the blood samples were taken in violation of ss. 8 and 9 of the Charter.
[53] The trial judge dealt with this issue in his reasons. He rejected the defence position that because Constable Crowhurst believed that Mr. Budarick may have been faking, she was obligated to have him attempt to blow into the intoxylizer before making the blood demand. The trial judge concluded that the officer’s belief that Mr. Budarick was faking was “really no more than a suspicion on her part” and that there is no obligation to obtain a medical opinion about whether a breath sample could be obtained before making a blood demand. The trial judge found that Constable Crowhurst was entitled to rely on the opinion of the qualified breath technician, Constable Kolodziechuk.
[54] The trial judge acknowledged that Constable Crowhurst’s notes, which made reference to time limits for breath samples, were a mistake and accepted her evidence that this was not why she made the blood demand. He accepted her evidence that she applied for the correct test before making the blood demand.
[55] Ultimately, the trial judge held that Constable Crowhurst’s view that Mr. Budarick may have been faking did not preclude her from having both the subjective and objective grounds required by s. 254(3)(a)(ii). He accepted that the blood demand was made because of the physical condition presented by Mr. Budarick.
[56] In my view, when the trial judge’s reasons are read as a whole, he made no error in concluding that Constable Crowhurst subjectively held the requisite belief to make the blood demand.
[57] The Crown acknowledged on the appeal that the trial judge did misapprehend one aspect of Constable Crowhurst’s evidence. The trial judge purported to quote the officer’s evidence that “perhaps he was faking, I made no conclusion” and inferred from this that the officer thought that it was possible that Mr. Budarick was faking but viewed this as only a possibility.
[58] In fact, this was an inaccurate quotation of the officer’s evidence. The trial judge may have been referring to Constable Kolodziechuk’s evidence, although the passage he purported to quote is not exactly what she said either. Certainly, I accept that the trial judge misquoted what he attributed to Constable Crowhurst.
[59] I accept, as well, Mr. Budarick’s point that there were places in Constable Crowhurst’s evidence in which, viewed in isolation, she appears to have testified that she believed, rather than just suspected, that Mr. Budarick was faking at the time that she made the blood demand.
[60] However, it is important to consider Constable Crowhurst’s evidence as a whole, rather than passages in isolation. In my view, when Constable Crowhurst’s evidence is reviewed in its entirety, it becomes clear that she was careful to qualify her personal view that Mr. Budarick was faking and that she did, in fact, believe that he would not be able to provide a sample. I say that for three reasons.
[61] First, Constable Crowhurst was careful in her evidence to qualify that her opinion was personal and not medical. In other words, she recognized that her view was a limited one and was not an informed medical opinion. In my view, in giving this evidence, Constable Crowhurst was acknowledging that her lay view that Mr. Budarick was faking could not, because of its limitations, be dispositive of the question as to whether she subjectively believed that he could not provide a suitable breath sample.
[62] Second, it appears to me that in coming to her conclusion that Mr. Budarick would not be able to provide a sample, Constable Crowhurst relied on Constable Kolodziechuk’s opinion. Constable Kolodziechuk did not think Mr. Budarick would not be able to provide suitable breath samples. I think it was reasonable for Constable Crowhurst to listen to, and weigh in her assessment, the view of the qualified technician. Not only was Constable Kolodziechuk more experienced than Constable Crowhurst, but she was the person who would be administering the breath demand. It speaks well of Constable Crowhurst that before forming her own opinion, she weighed, considered and sought input from her more experienced partner. In her evidence, she carefully explained the significant weight that she ultimately placed on Constable Kolodziechuk’s opinion when she reached her subjective view that a blood demand was necessary. This was entirely proper.
[63] Third, and most importantly, despite believing that Mr. Budarick was faking, Constable Crowhurst testified that at the time, she was making personal observations of Mr. Budarick’s breathing problems. She observed him gasping for air and saw his physical signs of having difficulty breathing. Her evidence reveals that she appreciated that those symptoms would interfere with his ability to provide suitable breath samples. She was unequivocal that this was the critical factor she relied upon before making the demand.
[64] In my view, the trial judge made no error in concluding that at the time she made the blood demand, Constable Crowhurst reasonably believed that Mr. Budarick “may be incapable of providing a breath sample”. I do not think there is anything necessarily inconsistent in the officer’s expressly qualified personal opinion that Mr. Budarick was faking, and in her evidence that, based on his symptoms and her discussion with her experienced partner, she held the belief that a blood demand was necessary because he may not be able to provide a sample.
[65] This ground of appeal is dismissed.
Did the trial judge err in concluding that there was no violation of s. 10(b) of the Charter when the police did not offer to Mr. Budarick a further opportunity to consult with counsel after making a demand for a blood sample following the breath demand?
[66] The trial judge held that on the facts of the case before him, the progress of the impaired investigation from a breath testing procedure, to a demand for a blood sample, was not the sort of non-routine procedure contemplated in the Supreme Court of Canada’s decision in R. v. Sinclair, 2010 SCC 35, [2010] S.C.J. 35 that required the accused to be given a further opportunity to consult with counsel.
[67] The appellant argues that the trial judge fell into error in reaching this conclusion. He says that there is no authority directly on point and invites me to create a bright-line rule that when officers make a blood demand, following a breath demand, they must provide the detainee with another opportunity to speak with counsel.
[68] The Crown submits that the police were not required to provide Mr. Budarick with another opportunity to consult with counsel after making the blood demand and that the trial judge made no error.
[69] The starting point for my analysis is the decision in Sinclair. In that case, McLachlin C.J. and Charron J. reviewed the purpose of s. 10(b) of the Charter: They explained, at para 26, that the right to counsel is so that a detainee is not only informed of his or her rights but also obtains advice from counsel as to how to exercise those rights. The emphasis is on “assuring that the detainee’s decision to cooperate with the investigation or decline to do so is free and informed”. This is accomplished by requiring that detainees are advised of the right to counsel (the “informational” component) and given an opportunity to exercise the right (the “implementational” component).
[70] The court also considered, for the first time in detail, when an accused must be afforded an opportunity to re-consult with counsel:
47 Section 10(b) should be interpreted in a way that fully respects its purpose of supporting the detainee's s. 7 right to choose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention or shortly thereafter. This gives the detainee the information he needs to make a meaningful choice as to whether to cooperate with the investigation or decline to do so. However, as the cases illustrate, sometimes developments occur which require a second consultation, in order to allow the accused to get the advice he needs to exercise his right to choose in the new situation.
48 The general idea that underlies the cases where the Court has upheld a second right to consult with counsel is that changed circumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether to cooperate with the police investigation or not. The concern is that in the new or newly revealed circumstances, the initial advice may no longer be adequate.
49 …. The question here is when a further consultation is required under s. 10(b) of the Charter. For the purpose of providing guidance to investigating police officers, it is helpful to indicate situations in which it appears clear that a second consultation with counsel is so required. The categories are not closed. However, additions to them should be developed only where necessary to ensure that s. 10(b) has achieved its purpose.
New Procedures Involving the Detainee
50 The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary: R v. Ross, [1989] 1 S.C.R. 3. [emphasis added]
[71] The court’s comments about the general principles emerging from its decision include the following:
57 … It is assumed that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his or her rights in the context of the police investigation. The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10(b) to ensure that the detainee's decision to cooperate with the police or not is informed as well as free… [emphasis added]
[72] The issue for the trial judge was, therefore, whether in the context of this case, the blood demand was the sort of new development that meant that the initial legal advice from duty counsel was no longer sufficient or correct.
[73] Counsel before the trial judge both submitted that there was no binding authority on the issue of whether or not police must re-advise of the right to counsel when an officer makes a breath demand and then makes a blood demand. Indeed, it was put to me that counsel could identify only one Manitoba Provincial Court decision in which this issue had been decided.
[74] I must note, however, that the issue appears to have arisen in one case decided by the Court of Appeal for Ontario prior to Sinclair, a case that was not brought to the attention of the trial judge or raised by either side on the summary conviction appeal before me.
[75] In the case of R. v. Pavel, [1989] O.J. No. 2307 (C.A.), the Court of Appeal considered a Crown appeal from an acquittal of an accused charged with impaired driving causing bodily harm and drive over 80. While the Court upheld the determination that there had been a s. 10(b) violation because the police informed the accused that he would be permitted to make only one call, and that this was fatal to the Crown’s argument that the accused had been properly informed of his s. 10(b) rights, the Court commented about the police obligation to re-caution on the right to counsel when moving from a breath to a blood demand:
The evidence established that the respondent was informed of his right to retain and instruct counsel without delay at the time of his arrest and prior to a demand for a breath sample being made. He was not further informed of such right at the time that a demand was made for a blood sample nor at any time on the morning of his detention or arrest. To the extent that the trial judge relied on such a failure as a ground for finding that the respondent’s rights under s. 10(b) of the Charter had been infringed, he may have been in error. The respondent has been duly informed of his rights upon being arrested on a charge under s. 253. It was only one hour later that a demand for a blood sample was made upon him relating to the same charge. There is no reason to believe that in that short time he would have forgotten the information given to him in that regard or that the advice of counsel was any more or less important with regard to blood samples, than it would have been with regard to breath samples, bearing in mind that in each case the samples related to the same charge upon which he had been arrested. It seems to me that absent some extenuating circumstance such as the laying of some additional serious charge there is no obligation on the police to re-instruct an accused of his rights on every occasion when they seek to obtain a statement or breath or blood sample in moving on to a different stage of their investigation.
[76] While, if this decision is binding on me, the outcome of this appeal could be determined on the basis of this decision alone, there are two reasons why I am not inclined to do so. First, given the way in which the decision is written, I am not persuaded that the decision is binding on me as it appears to me that the relevant passage is obiter dicta (R. v. Henry, 2005 SCC 76, [2005] S.C.J. 76 at paras. 52-57). Second, I think it is important that the Court of Appeal did not have the benefit of Sinclair when it decided this case. I cannot say whether Goodman’s J.A.’s analysis would have been the same had he been applying the law as set out in Sinclair. Accordingly, while I am mindful of what the Court of Appeal observed in that case, I propose to determine whether the trial judge erred in his conclusion on the basis of the post-Sinclair jurisprudence that was considered by the trial judge.
[77] In my view, based on the analysis in Sinclair, the trial judge made no error in concluding that in this case, the police did not have to provide Mr. Budarick with as second opportunity to consult with counsel after they made the blood demand.
[78] The trial judge relied on what he found were two analogous cases. In the first, the issue was whether the change from a breath demand to a drug recognition evaluation (DRE), and demand for a urine sample, was a non-routine procedure that required a detainee to be re-advised of the right to counsel (R. v. Wilkinson, 2014 ONCJ 515, [2014] O.J. No.4708 (O.C.J.)). In the second, the issue was whether the progress from the DRE to a demand for fluids was a procedure that required a detainee to be re-advised of the right to counsel: (R. v. Fogarty, 2015 NSCA 6, [2015] N.S.J. 21 (C.A.)).
[79] In Wilkinson, Justice Block considered whether, when an accused had been provided with her rights to counsel on arrest and before the administration of the breath test, the police were required to do so again when a DRE demand was made under s. 254(3.1) of the Criminal Code, followed by a demand for a urine sample, under s. 254(3.4)(a) of the Criminal Code. In finding no s. 10(b) breach, Justice Block concluded that:
I do not regard the progress from alcohol-related breath testing to the DRE process within the same investigation for impaired driving as being a transition to a “non-routine procedure” as described in Sinclair. The issue as contemplated by the Supreme Court of Canada requires that the accused face a significantly changed set of circumstances than that which existed at the time of the initial advice of her right to consult counsel
[80] The Nova Scotia Court of Appeal considered a similar issue in Fogarty. There, on the basis of observations of the appellant in an ambulance following a car crash, the police officer made a DRE demand and then arrested the appellant for impaired driving. He had the opportunity with counsel. Following the DRE assessment, the officer made a demand for a blood sample under s. 254(3.4). On appeal, the issue was whether there was an obligation to provide an opportunity to re-consult after the demand for his blood sample.
[81] After reviewing the Sinclair decision, the Court of Appeal noted that in the absence of any challenge to the competency of his counsel, it is to be assumed both that counsel was competent and that competent counsel would have been aware and would have advised the accused that the DRE under s. 254(3.1) invokes the potential for a blood demand, and would have canvassed this in his pre-DRE advice to Mr. Fogarty. The Court went on to find that the DRE and blood demand are not disjunctive investigative techniques and that the DRE culminates with the fluids demand, a progression that counsel would have been aware of and would have explained to the accused. The Court found no s. 10(b) breach.
[82] After reviewing these decisions, the trial judge said:
While Fogarty dealt with a different investigative procedure from the one before me, I agree with the Crown that it is analogous. And I agree with the submission that it would be within the normal expectation of counsel that a client in medical distress with breathing problems at a hospital Emergency Department may ultimately be subject to a demand for blood samples.
[83] Like the trial judge, I think a fair comparison may be made between the situation faced by Mr. Budarick and that considered by the Court of Appeal in Fogarty.
[84] I am not prepared to create a “bright line rule”, as requested by the appellant. In my view, consistent with Sinclair, each case needs to be assessed on its own facts. But in this case, I see no error in the trial judge’s conclusion.
[85] Mr. Budarick was not an average person detained for impaired driving. He complained of chest pains and displayed real difficulties in breathing and speaking. He was gasping for air. He was taken to the closest hospital by ambulance and was treated in the emergency unit.
[86] By the time he spoke with counsel, Mr. Budarick had been in the emergency unit for over an hour and continued to exhibit these symptoms. Duty counsel was told that he was in hospital and that he was displaying chest pains. One must presume that Mr. Budarick raised his physical concerns with duty counsel during their conversation between 11:44 and 12:02. In my view, a competent counsel would have explained to Mr. Budarick the nature of the breath demand that had been made, the consequences of a refusal to provide a breath sample and the possibility of the police, in these circumstances, deciding to make a blood demand.
[87] While the appellant submits that it is speculative to assume that duty counsel’s advice covered this area, like the trial judge, I think that any competent counsel in this case would have covered the blood demand possibility in legal advice provided to Mr. Budarick. Like in Fogarty, there no evidence was adduced to suggest that the advice Mr. Budarick received from duty counsel was anything less than competent.
[88] In the circumstances in this case, I agree with the trial judge’s conclusion that the blood demand does not fall into the category on non-routine procedures discussed in Sinclair. Effectively, the blood demand was a continuation of the routine that would be expected to follow a breath demand, when the circumstances are such that, because of a medical condition, the detainee cannot be expected to provide a suitable breath sample.
[89] Furthermore, I am mindful of the need to consider the appellant’s argument in light of the purposes of s. 10(b) as described in Sinclair. To use the language of that case, I do not think that the blood demand, in this context, amounted to such a change in circumstances or new development that the initial advice from duty counsel was no longer sufficient or correct. There is no evidence to support this position and all of the circumstances do not lead me to view the blood demand as such here.
[90] I must emphasize that there would have been nothing wrong with the police providing Mr. Budarick with a further opportunity to consult with counsel. And, I can certainly imagine circumstances in which they would be required to do so. But, on the evidence before me, there is nothing about the making of the blood demand in this context that so changed the appellant’s situation that a further opportunity to consult with counsel was required.
D. Conclusion
[91] The appeal is dismissed.
Woollcombe J.
Released: June 14, 2016